FREQUENTLY ASKED CRIMINAL DEFENSE QUESTIONS

 

 

DO I HAVE TO SPEAK WITH LAW ENFORCEMENT?

 

You have the right to remain silent.  You also have the constitutional right to have a lawyer present when speaking with law enforcement agencies, whether city, state or federal.

 

You should never lie or provide false information to any law enforcement agency.  Lying to law enforcement agents under any circumstance is a crime.  Instead, clearly state you assert you right to remain silent.  

 

Answering what may seen to be an irrelevant or "innocent" question may hurt your interests.  An attorney is best able to protect your rights.

 

 

DO I HAVE TO LET LAW ENFORCEMENT INTO MY HOME?

 

You do not have to permit any law enforcement officer to enter your home unless they have a search warrant or if it is an emergency ("exigent circumstances").  

 

Police cannot arrest you simply for refusing to consent to a search of your home.  It is ok to ask for a search warrant.  

 

If law enforcement says they have a search warrant, politely ask to see it before allowing them to enter your home.  Have them slip it under the door.  Check to make sure the warrant has the correct address. 

 

If you are provided with or verbally told that there is a search warrant for your home, remember that you still have the right to remain silent.

 

Even if there is a search warrent, protect your rights-- tell law enforecement agents that you do not consent to the search.  This may not stop the search from happening, but it may protect your rights if you have to go to court.  By refusing to "consent" police are generally limited by the scope that the warrant authorizes and cannot exceed that scope by claiming you gave consent.  

 

However, do not interfere with or obstruct the police—you can be arrested for it.  

 

You should photo/video condition of property/home after the search, and note any items that may have been removed.

 

 

DO I HAVE TO CARRY ID WITH ME?

 

In New York, you are not required to carry ID (unless you are driving), and you don’t have to show ID to a police officer.  

 

If you are issued a summons or arrested, however, and you refuse to produce ID or tell officers who you are, the police may detain you until you can be positively identified.  

 

Non-immigrants may be required to carry ID if over age 18, and failure to do so may be a misdemeanor. Never give false documents. Instead, assert your right to remain silent and, if arrested, request an attorney.

 

If you are driving a vehicle, you must show your license, registration and proof of insurance. 

 

 

DO I HAVE TO TAKE ALCOHOL TESTS IF I AM STOPPED FOR SUSPICION OF DRUNK DRIVING?

 

If you are suspected of drunk driving (DWI/DUI), you may be asked to take a breath-alcohol and coordination tests. ("field sobriety tests).  If you refuse to take them, your driver’s license may be suspended and your car may be taken away.

 

Remember that you do not have to talk to law enforcement even if you have been arrested or detained. Clearly assert your right to remain silent, because anything you say may be used against you.  Ask for a lawyer and a phone call.

 

 

I'M NOT A CITIZEN AND I'VE BEEN ARRESTED, WILL IT EFFECT MY IMMIGRATION STATUS?

 

Non-U.S. citizens who have been charged with a crime have the same rights as U.S. citizens in criminal court, including the right to remain silent, the right to an attorney, and the right to a trial (including a speedy trial).

 

A non-citizen also has a right to contact their consulate when arrested.  However, practically speaking it may be better to contact friends or family and have them contact your consulate instead, in order to avoid drawing the officers’ attention to the issue of citizenship.

 

If you are a non-citizen considering a plea bargain in a criminal case, you must consider the immigration consequences.  Some deals that are "good" for U.S. citizens are "bad" for foreign nationals.  Sentences that seem very favorable in the context of the criminal case can still have disastrous immigration concequences later on.  Potential "collateral" consequences include expulsion, denial of re-entry, or denial of naturalization.

 

Be aware that, in addition to the criminal case, non-U.S. citizens may have to face immigration proceedings. By law, less evidence is required for a judge to decide that someone has violated immigration laws, than for a judge or jury to decide that someone has broken criminal laws.

 

 

CAN I PHOTOGRAPH OR VIDEO LAW ENFORCEMENT?

 

When in public spaces, where you are lawfully present, you have the right to photograph anything that is in plain view. That includes pictures of the police.

 

When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner's rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

 

Police officers may not confiscate or demand to view your digital photographs or video without a warrant. It is possible that courts may approve the temporary warrantless seizure of a camera in certain extreme “exigent” circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of evidence of a crime while they seek a warrant.

 

Police may not delete your photographs or video. Officers have faced felony charges of evidence tampering as well as obstruction and theft for taking a photographer’s memory card.

 

Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them.

 

Note that the right to photograph does not give you a right to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.

 

 

 

© 2015  The Law Office of Nasreen Syed, P.C.

 

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