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For the purposes of this post, Northern Virginia includes Fairfax, Loudoun, Frederick, Clarke, Loudoun, Prince William, and Fairfax Counties. For over a decade, former state prosecutor for the Commonwealth of Virginia and criminal defense attorney Beau Correll has litigated thousands of legal matters through disposition and trial in Virginia General District and Circuit Courts. He has handled criminal appeals to the state Court of Appeals and Supreme Court. Today, he shares with you tips in dealing with law enforcement in Virginia:
Running a Northern Virginia law firm with a focus on criminal defense has been one of the most satisfying experiences for a criminal trial lawyer. It has been an honor to represent so many individuals as a criminal defense lawyer. We’ve handled a variety of cases from violent crime, major embezzlement allegations, and DUI charges. The vast majority of clients are simply folks that may be productive members of society that made an error in judgment. Clients come from all backgrounds, from well-heeled entrepeneurs to indigent parents, trying to scrape by from day-to-day.
Despite all of the places I’ve practiced law and all of the varying types of clients, there are constantly reoccuring themes and situations that constantly reappear in almost every consultation. In these reoccuring fact-patterns one thing is always true: never be timid about invoking your rights – but do so in a polite and respectful manner.
In no particular order, I want to share with you some tips (and myths) to keep in mind when dealing with law enforcement subject to our sitewide disclaimer:
- “They Had To Read Me My ‘Rights.'” This appears to be a reoccuring misconception fueled by both Hollywood and urban myth. The “rights” at issue are better known as “Miranda Rights.” You’re probably reminded of what they are if I were to tell you that you have the right to remain silent…” One thing to keep in mind is that your Miranda Rights only have to be read in one of type of scenario – “custodial interrogation.” This, in itself, is also broken down into it’s component parts – “custody” and “interrogation.” “Custody” has been defined as a situation in which a reasonable person wouldn’t feel free to leave. Think handcuffs. “Interrogation” generally consists of questions that are reasonably calculated to elicit an incriminating response. A clear example of a Miranda Rights violation would be a handcuffed suspect being asked about a crime but not read their Miranda Rights beforehand. An example where it may not apply is if a person isn’t handcuffed and the police are asking about wrongdoing but the suspect is technically free to leave. If Miranda Rights are violated by rights not being read, there is a liklihood that an incriminating statement may be “thrown out of court.” Any criminal lawyer will tell you there are tons of exceptions and exceptions to exceptions but the general rule is that there must be custodial interrogation for your Miranda Rights to be implicated. For example, even when detained for suspicion of DUI and being questioned about how you may appear intoxicated, the United States Supreme Court held in Berkemer v. McCarty, 468 US 420, (1984) that an officer doesn’t even need to give you a Miranda warning because you aren’t “technically” in custody even though you aren’t free to leave!
- “They Were Going To Search Me Anyways.” Criminal lawyers hear this a lot. The situation typically occurs during a routine traffic stop for anything from speeding to even a DUI. An officer, perhaps insistently, asks to search your car. “We’ll just get a K-9” or “Do you have something to hide?” are frequently combined with the requests. You have rights enshrined by our Founders in the Constitution – use them! As a general rule, police either need legal justification or permission to search your person, vehicle, or home. Sometimes the justification can be them viewing evidence in plain sight – or “plain smell.” Other times they have a search warrant issued by a Virginia magistrate. You can’t do much about legal justification. You can, however, exercise your rights and affirmatively tell them that they do not have permission to search and that you do not wish to talk to them.
- “I Said Those Things Because I Didn’t Think I Could Leave…” There are generally three different types of interactions with law enforcement: consensual encounters, investigative detentions, and arrests. In a consensual encounter, you are free to leave. You may not terminate the encounter in either investigative detentions or arrests. Short of being placed in handcuffs, you should attempt to record the encounter (without interfering with the officer) and always seek to politely, yet firmly, question whether you are free to leave. If you don’t, months after you are formerly charged and are rapidly approaching a trial date, this can be critical. If you are under arrest and are being questioned related to the accusation always assert, “I want a lawyer.” The questioning must then cease. Courts have generally held that the request must be unequivocal.
- “But They Had To Tell Me They Were A Cop, Right?” There are few myths that have permeated Americans’ view of the criminal justice system than this myth. No, law enforcement nor confidential informants have to tell you that they are undercover under Supreme Court precedent. However, I think that there are outer limits to that. The lies/mistruths that that tend to be allowable are those which are factual in nature. For example, courts may have a problem with allowing lies based on misstatements of the law or deceptions which cause reliance resulting in unlawful conduct. The latter is called “entrapment.”
- “I Thought That I Had To Answer.” One prosecutor told me that the government’s conviction rate would drop 70% if no one made incriminating statements to law enforcement. The moral quandry that people accused of a crime find themselves in is, “Do I lie or just tell them the truth?” You should never lie to law enforcement. Not only did your mamma teach you better, but it’s also illegal in Virginia under Va. Code § 18.2-461 and law enforcement may frequently know the answer prior to questioning you. The most reasonable conduct is to invoke your rights and remain silent. Yes, the interaction may be uncomfortable but if you are free to leave the awkwardness won’t last forever and if you’re not free to leave, see our previous discussion about invoking your right to counsel.
- “Do You Know How Fast You Were Going Back There?” In the words of Admiral Akbar, “It’s a trap!” There are two ways that your speed can be proven in a speeding or reckless driving (by speed) case – either by scientific means like laser, radar, or pacing results or by your confession. The equipment may have be faulty, but the judge won’t care and you don’t do yourself any favors by giving the government the rope to hang yourself with by guessing your speed.
- Breathalyzers. In Virginia, there are two main types of breathalyzers – the handheld one that they give you on the side of the road to determine if they should arrest you (PBT) and the one at the jail, called the “Intoxilyzer.” You should always decline the PBT because if they’re going to arrest you they’re going to do it anyways. Legally, you can choose to decline the Intoxilyzer but if you do, you may likely get a year of no driver’s license, without eligibility to have a restricted license, and other penalties. With regard to the PBT, almost every single client that comes to our office from our area has their statutory PBT rights violated. Under Va. Code § 18.2-267, an officer must advise you that you have a right to refuse, that you can observe the test results, and it cannot be used in a prosecution against you. None of these requirements are generally carried out when someone is arrested for suspicion of DUI.
Northern Virginia criminal lawyer Beau Correll is a former state prosecutor and experienced criminal defense attorney. For a confidential consultation about your legal matter, please call our staff at (540) 535-2005 or fill out this form.
