Lori Elaine Laird, J.D.

Archive for February, 2012|Monthly archive page

Understanding and Exercising Miranda Rights

In Constitutional Law on February 8, 2012 at 3:28 am

When you face an arrest by a law enforcement officer, it can be an intimidating and inherently oppressive experience.  The pressure of being questioned by an officer equipped with a firearm who is empowered to arrest you can create enormous anxiety and fear.  Many people in the city of Houston and throughout Galveston County try to talk their way out of an arrest under the mistaken belief that they may be able to convince an officer to send them home.

Anyone who has watched a crime show on television is familiar with the Miranda warning that a police officer reads to a suspect when taking someone into custody.  The protections afforded by the Miranda warning are among a suspect’s most important Constitutional protections.  The Miranda warnings ensure that when someone is taken into custody he or she is informed of certain critical rights during police interrogations.

Supreme Court decisions in recent years, including Maryland vs. Shatzner [i]and Florida vs. Powell[ii], have significantly emasculated the protections afforded by the Miranda decision and its progeny.  The Shatzner and Powell decisions weakened the protections against self-incrimination and the right to counsel.  The Shatzner decision permits officers to recommence interrogation even after the accused has invoked the right to have an attorney present during questioning once 14 days have passed.  The Powell decision makes clear that while the four warnings required by Miranda do not vary, the words that the police use to convey those warnings may vary so there is no specific wording that must be followed by police.

The decision in Miranda vs. Arizona [iii]acknowledged the “oppressive nature of station house questioning” a suspect faces when in police custody.  The Miranda decision acknowledged that the pressure of a custodial interrogation could overwhelm a suspect’s ability to assert his or her Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel.  Miranda warnings discourage suspects from making incriminating statements that are not “knowing, intelligent and voluntary.”

The Supreme Court in Edwards vs. Arizona[iv] strengthened the protections afforded by the Miranda decision by holding that once a suspect has asserted one’s right to counsel police may not try to interrogate the suspect again “unless the accused himself initiates further communication, exchanges, or conversations with the police.”  The Supreme Court in Edwards created a presumption that once a suspect invokes the right to have counsel present during a police interrogation, any subsequent waiver of that right is to be considered involuntary unless the suspect initiates the waiver.

In Shatzner, the Supreme Court limited the Edwards decision by finding that officers could re-initiate interrogation after a suspect had invoked his right to have an attorney present during questioning.  The Shatzner case was particularly notable for two reasons.  In Shatzner, the original interrogation and invocation of the suspect’s right to have an attorney present during questioning occurred about two and a half years before the subsequent interrogation.  Yet, the court did not limit its decision to such lengthy breaks in interrogation.  The Supreme Court indicated that only 14 days needed to pass after a waiver before the police could again initiate interrogation.

The other notable aspect of the Shatzner decision is that the Supreme Court indicated that returning Shatzner to the general prison population constituted a “break in custody.”  The Supreme Court reasoned that returning a defendant to custody in the general prison population where he had been held since the first interrogation was not the same as being held in custody at the police station following an arrest.  By defining the holding of a person among the general prison population as a break in custody, this decision greatly expands the ability of officers to re-initiate an interrogation following a suspect’s invocation of the right to counsel.

The protection afforded by the Miranda warnings also has been weakened by the Powell decision.  In Powell, the police changed the wording of the standard Miranda warning regarding the right to have an attorney present during questioning.  The decision found that law enforcement could change the wording of the warnings.  The Supreme Court held that telling a suspect that he could exercise his right to counsel “before” questioning did not mean that the suspect did not have an ongoing right to invoke the right once questioning was initiated.

The Shatzner and Powell decisions when taken together constitute a significant emasculation of the protections afforded by the Miranda decision.  A suspect’s failure to invoke and continue to assert one’s rights against self-incrimination and right to counsel under these new decisions make it much less likely that incriminating statements will be suppressed.

The important point to keep in mind is that you should absolutely decline to speak to law enforcement if you are arrested.  Law enforcement officers have extensive training and experience interrogating suspects and obtaining incriminating statements.  Many times it may not even seem that you are being interrogated.  The officer may even suggest that you can go home as soon as things are cleared up.  As a former police officer, Houston criminal defense lawyer Lori Laird knows that the purpose of interviewing you is not to “clear things up” but to develop evidence that will be used to prosecute you.

If you have been arrested, you should clearly and unequivocally inform the officer that you are asserting your right to remain silent and that you do not wish to discuss anything until your Houston criminal defense attorney is present.  Ms. Laird carefully investigates all criminal cases to identify Miranda violations that may create a basis for suppressing incriminating statements or confessions.

If you are facing criminal charges in Houston, Galveston, Angleton, Richmond or anywhere throughout Harris County, Galveston County, Brazoria County, Fort Bend County or Chambers County, Ms. Laird will work diligently toward a dismissal of charges or acquittal after trial.  Where this is not possible, she will build the most compelling case possible to negotiate a plea reduction from a position of strength.  Call 832-699-1966 today for your free consultation or visit my website to learn more about my firm.


[i] 559 U.S. ___ (2010)

[ii] 559 U.S. ___ (2010)

[iii] 384 U.S. 436 (1966)

[iv] 451 U.S. 477 (1981)

Field Sobriety Tests–Inaccurate and Unreliable?

In DWI, Uncategorized on February 7, 2012 at 11:52 pm

There are few experiences that will raise your blood pressure more quickly than seeing flashing red and blue lights in your rear view mirror.  Many motorists pulled over by the police in Houston or Galveston counties have had little if any prior contact with law enforcement.  When you pull over and the officer approaches your vehicle, you may feel stress, fear or even anger.  However, if you have been drinking, what you do next can have a substantial impact on your future.  Many people pulled over after they having had a single drink presume that they will be arrested and hope that if they “cooperate” their chances of going home, rather than visiting the local jail, are better.  Generally speaking, nothing could be further from the truth.  When an officer pulls you over, often times their course of action is to develop evidence so that you do not go home.  It may be surprising to some, but DWI investigations are far less scientific and reliable than many drivers realize.  Most people have seen officers pull over drivers and administer standardized field sobriety tests (SFSTs) on television police dramas, but what most people do not realize is that an experienced DWI attorney may be able to effectively challenge both the legal basis for the stop and the SFST results.

A law enforcement officer may not pull you over on a mere hunch but must have a sufficient legal basis to justify the stop.  In most cases, this will either be a “reasonable suspicion” that a crime is being committed, such as observing you speeding or observing erratic driving behavior.  It is important to keep in mind that just because a law enforcement officer stops you does not mean that he or she has sufficient legal basis to conduct a DWI investigation.  Although speeding is a violation that permits an officer to pull you over, speeding is not evidence of intoxication.  The officer may detain you to write a traffic citation but does not have probable cause to conduct a DWI investigation which would include having you perform SFSTs.  If you are calm and provide your license and insurance information without engaging in a prolonged conversation you may well drive away from the encounter.  However, even if you have just had one drink, if the officer observes any signs of slurred speech, the odor of alcohol, red watery eyes or observes an open container of alcohol in the car—you may find yourself in the middle of a DWI investigation.

Even if you have only had one drink, it can be a serious mistake to engage the officer beyond producing your license and insurance information and providing brief concise answers to any questions.  It is never a good idea to admit you have been drinking or that you are coming from a bar.  The legal requirement for an initial stop is only that the officer has “reasonable suspicion” that a crime is being committed based on articulable facts.  This is a lower burden than the “probable cause” needed to conduct a DWI investigation.  The key to keep in mind is that the officer must have probable cause to believe you are driving under the influence of alcohol to initiate a DWI investigation and ask you to perform SFSTs.  If the officer only stopped you for speeding, then the officer may have no evidence supporting that you are driving under the influence because speeding is not evidence of DWI.  If you keep your interaction brief and provide short concise answers, the officer may not observe sufficient physical evidence of intoxication to ask you to take SFSTs.

Also remember, even if the officer does ask you to perform FSTs, you do not have to perform them.  If you have not been drinking and are not in a rush, you may choose to perform the tests, but they can be difficult and many people who are not intoxicated fail.  If you have been drinking, it is best to avoid the tests because their sole function is to provide evidence supporting probable cause for a DUI/DWI arrest.

Regardless of which route you take, any driver who agrees to take SFSTs should be aware that these tests are physically difficult and extremely inaccurate.  Although you may have seen many versions of field sobriety tests on television, there are only three that have been approved by the National Highway and Traffic Safety Administration (NHTSA) as being reasonably accurate at identifying intoxicated drivers.  While you may be familiar with any of these tests only the first three listed below have any validity according to the NHTSA:

  • Walk and turn
  • One-leg stand
  • Horizontal gaze nystagmus test
  • Reciting the alphabet
  • Counting backwards
  • Alternating touching your nose with a finger first with one hand than another
  • Standing with your feet together and head tipped backwards
  • Indicating the number of fingers held up by the officers

While it might be surprising to learn that only the first three tests have any legitimacy, most people do not realize that even those three are extremely inaccurate even when performed perfectly by a properly trained law enforcement officer who is fully trained in accurately demonstrating, explaining and scoring the tests.  Many officers submit subjective analysis for the objective scoring system or fail to follow the precise guidelines and procedures when demonstrating and explaining the SFSTs.  Even when all of this is done perfectly, which is not nearly as often as you might expect, the three SFSTs approved by the NHTSA still have a high failure rate.  The NHTSA acknowledges that the walk and turn and one-leg stand inaccurately identify someone as intoxicated 35 percent of the time while the horizontal gaze nystagmus test falsely identifies someone as impaired 23 percent of the time.

As a former police officer, I have conducted many DUI/DWI investigations and recognize the common mistakes made by officers when administering the tests.  I ensure that the jury also is well aware of the high rates of false positive results for intoxication produced by SFSTs even under the best of circumstances.  I also use my experience working in law enforcement on such cases to expose common errors made by officers when providing instructions and demonstrating the tests.  The tests must be precisely demonstrated and explained to be valid so my past experience as a patrol officer is valuable to clients in identifying and exposing clear departures from appropriate procedures and protocol.

I also know that the physical exercises that constitute SFSTs are highly unnatural and require a fair degree of physical fitness, balance and coordination.  I educate the jury on how foreign and unnatural these tests are for anyone who is unfamiliar with them.  The tests are all the more difficult if you suffer from obesity, a physical disability, diabetes, vertigo or other physical or mental disabilities.  I make certain a jury understands such physical and mental limitations and their potential impact on SFST results.

Many people arrested and charged with driving under the influence/driving while intoxicated presume that the DUI investigation process is based on a firm scientific basis.  What one should take away from this article is that there is an enormous margin of error in DWI investigations that permit a skilled criminal defense attorney with a background in law enforcement to protect your freedom and future.  If you are convicted of DUI/DWI in Houston, Galveston, Brazoria or Fort Bend counties you may suffer serious adverse consequences, including incarceration in county jail or state prison, substantial fines, installation of an ignition interlock device, probation, mandatory alcohol classes, driver’s license suspension or revocation, community service and other penalties.

If you are arrested for driving under the influence in Houston or anywhere throughout Harris, Galveston, Brazoria or Fort Bend Counties, Lori Elaine Laird provides a unique combination of investigative skills acquired as a former police officer and the legal experience and expertise of a successful criminal defense attorney.  Call  (832) 699-1966       today for your free consultation.