Legal Basics: How the System Works

Immigration Reform Leaders Arrested 2

Not a great pic for this post, but I love his t-shirt.

Ok boys and girls, today’s topic is one of my favorites: “How the System Works” or “TV is not real.”

Let’s start with a hypothetical: you’re arrested for a misdemeanor offense, like DUI. Btw – check out my friend’s website for what you should do when you’re stopped for DUI

Do they have to handcuff you? Well, not necessarily. It’s standard procedure and they should do it unless the officer has a reason to believe handcuffs are not necessary or would cause harm to the person being arrested. For example, if you’re being arrested following an accident where your wrists were treated or injured, a note form the attending physician may be enough for you not to be cuffed. OF COURSE, they’re going to restrain you with handcuffs, chains, zip-ties, whatever, if you’re resisting or the officer(s) have reason to believe that you’ll hurt yourself or someone else.

They have to “read you your rights” when you’re cuffed right? Well, not necessarily. When you’re handcuffed, you’re not necessarily arrested. You might just be being “detained.” Even when you’re arrested, they don’t have to necessarily advise you of your rights right then. They don’t even need to tell you what you’re charged with – right then. You have a right to know what you’re charged with, but it is not necessarily an immediate thing – down at the police station may be fine. Oh, if you’re arrested, they have to advise you before they question you IF they want to use any thing you say during the questioning against you in court. Just because they can’t use it in court, doesn’t mean that they can’t use it. What you say – even when they can’t use it in court – may give them probable cause to, for example, add another charge, get a search warrant, charge someone else, etc.

I have the right to remain silent. All I’m gonna do is sit there. Well, not necessarily. According to a recent US Supreme Court case, you have to give the officers objective reason to believe that you’re invoking your right to remain silent. Either you need to say “I’m invoking my right to remain silent,” or somehow let them know that’s what you’re doing. Otherwise, SCOTUS says, NOT saying something may be construed as an answer to a question or a statement. How many of us have teenagers that don’t need to say anything to give us an answer? (typically an ill-advised one).

I have a right to a lawyer. Well, not necessarily. Only defendants with charges which carry a potential sentence of active jail time (and only over a certain threshold) have a right to counsel. Oh, and, just because you have a right to an attorney doesn’t mean its free. If you’re convicted, you still have to pay the attorney’s fees. Bummer.

Tune in for more “myths debunked” next time. Next time we’ll talk about bail!

In the meantime, check out our website at Thanks!

Posted in blog, Legal Basics Tagged , , , , Bookmark the permalink. Both comments and trackbacks are currently closed.