After a traffic stop and any field sobriety tests, the first stage of the criminal process in a DUI case begins when a police officer places the suspect under arrest. An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is "under arrest", and the suspect submits without the officer's use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person's voluntary or involuntary submission.
A police officer may usually arrest a person in the following circumstances:
The Police Officer Personally Observed a Crime
If a police officer personally sees a person commit a crime, the officer may lawfully arrest that person. For example:A police officer pulls over a vehicle that is being driven erratically, and after administering a Breathalyzer test, sees that the driver's alcohol intoxication level is more than twice the state's legal limit for safe operation of a vehicle. The police officer can legally arrest the driver for DUI.
The Police Officer Has "Probable Cause" To Suspect Criminal Activity
When a police officer has a reasonable belief, based on facts and circumstances, that a person has committed (or is about to commit) a crime, the officer may arrest that person. This belief, known as "Probable Cause", may legally justify a DUI arrest in certain situations where strong indications of DUI are present, but administration of a chemical test is refused or is otherwise not possible. For example:A police officer sees someone throw a bottle out of a vehicle in a jurisdiction that makes it a crime to throw bottles out of a moving vehicle. The officer pulls the vehicle over and notices empty beer bottles in the back seat of the car. When the driver refuses to submit to a breath test, the officer may lawfully arrest the motorist based on probable cause that a DUI has been committed.
The Police Officer Made a Lawful Traffic Stop Which Led to a DUI Arrest
In a large number of cases, traffic stops for routine traffic violations lead to DUI arrests. This is because police officers must show that they were not acting randomly or in an arbitrary manner merely to harass or intimidate an individual.
Legal traffic stops by police officers can range from the obvious, such as speeding violations, to more subtle violations like broken tail lights or illegal u-turns. For example:A police officer notices a vehicle with an expired license. When the officer pulls the driver over, he smells alcohol coming from the vehicle, along with other indications that he or she has been drinking. The officer then asks the driver to submit to a breath test or field sobriety test, finding that the driver is over the legal limit. Most courts will find that is was reasonable for the officer to detain the driver long enough to determine whether he or she is, in fact, intoxicated.
An Arrest Warrant Has Been Issued
When a police officer has obtained a valid warrant to arrest a person, the arrest is lawful. An arrest warrant is a legal document issued by a judge or magistrate, usually after a police officer has submitted a sworn statement that sets out the basis for the arrest. When issued, an arrest warrant typically: Identifies the crime(s) committed;
Identifies the individual suspected of committing the crime;
Specifies the location(s) where the individual may be found; and
Gives a police officer permission to arrest the person(s) identified in the warrant.
Challenging An Unlawful Arrest
At all stages of the criminal process, including arrest, police officers must protect citizens' constitutional rights, such as the right to remain silent and the right to be free from unreasonable searches. If these rights are violated, a court may later deem the arrest unlawful, and certain evidence may be thrown out of the case. Click here to learn more about a defendant's legal rights at the arrest stage.
While a criminal suspect may question the lawfulness of an arrest when it is happening, including the basis for the arrest and the actions of the police officers, that battle is better fought in court than on the street.
When is an Arrest a Legal Arrest ? + Many times when people are questioned by the police, they don't feel that they are free to walk away from the officer. However, until you've been formally detained (as in a traffic stop) or arrested, the officer can't stop you from simply walking away. However, once the officer prevents you from walking away, an arrest has taken place. Whether the arrest is legal or not depends in large part on whether he or she had "probable cause".What is Probable Cause?
The Fourth Amendment of the U.S. Constitution authorizes police to make an arrest as long as they have "probable cause". The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The idea behind probable cause is to prevent the sort of police states that exist in other countries, where officials can simply round up people they don't like as "undesirables" or "threats" without any justification. This standard is deliberately vague, but over time the interpretation of what constitutes probable cause has become fairly solidified:Probable cause is established through factual evidence, and not just suspicions or hunches.Probable cause can be established through observation alone (sight, smell, sound, etc), and includes observations that create suspicion based on a familiar pattern of criminal activity, such as when an officer sees a car circling around an area repeatedly or when someone is flashing their headlights.Probable cause can be based on information derived from witnesses, victims and informants.Probable cause can be based on police expertise, such as recognition of gang signs, detection of tools appropriate for committing certain crimes, or knowledge of movements and gestures that indicate criminal activity.Probable cause can be based on circumstantial evidence that only indirectly indicates that a crime has occurred, such as a broken window.Who Decides Whether an Officer had Probable Cause?
While probable cause needs to be established before an arrest by the police officer, probable cause can be determined after the fact by a judge. This means that an officer could have in good faith thought he or she had probable cause, but a judge can later determine that there was in fact no probable cause. If this occurs, evidence acquired without probable cause becomes inadmissible in court.
Also, even if it turns out that the police were wrong and a suspect is later acquitted, it doesn't affect the determination of probable cause. Probable cause is extremely important to the police, because even if the suspect is found to be innocent, the finding of probable cause shields the police from lawsuits.
How Much Evidence is Enough to Establish Probable Cause?
There is no set amount of information and no hard rule for what constitutes "enough" information to establish probable cause. The standard is meant to be flexible, and allows judges to balance the rights of the police to conduct investigations and protect the populace in good faith, against the rights of citizens to not be harassed by the police. Judges will often make their decision on whether probable cause existed based on their:Interpretations of what the drafters of the Fourth Amendment meant to protectViews on the police, government interference and defendant's rightsExperience in deciding similar factual situationsExperience with prior cases involving the arresting officer
Police Interrogations +
In what circumstances do the police need a warrant to make an arrest?
If the police have "probable cause," a reasonable belief that a person has committed a crime, it is unnecessary to obtain a warrant before making an arrest. However, the police must obtain a warrant when arresting a person in their home if it is for a non-serious offense and there is not a reasonable belief that the person will destroy evidence or harm the public. The arrest warrant must establish that a crime was committed, that the person named on the warrant committed the crime, and the warrant must comply with the rules of the court.
Do I have to answer questions if the police stop me while I am walking on the street?
The police can stop a person if they have a good faith belief that the person was involved in a crime. Under the Fifth Amendment right against self-incrimination, a person does not have to answer questions. The law, however, does require people to give their name if requested. This means that if questioned about a crime by the police, a person is not required to respond beyond giving their name.
Do the police have to give a Miranda warning when making an arrest?
No. The police do not need to give the Miranda warnings before making an arrest. To use self-incriminating evidence against a person at trial, however, the police must give Miranda warnings or an equivalent warning before questioning a person.
In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona that the police must advise people of their rights before a law enforcement officer questions those in police custody. Custody refers to the deprivation of a person's freedom of action in a significant way.
To use the information the police gather in interrogations at trail, the police must give full warnings. A typical Miranda warning consists of the following:
"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. If you decide to answer questions, you have the right to stop at any time."
If the police fail to give a Miranda warning before questioning a person in custody, the evidence gathered from the interview cannot be used against the person in a trial. If the interrogation leads to the collection of additional evidence, the "fruit of the poisonous tree" doctrine precludes the use of this evidence against the person in a trial.
The police questioned and arrested me without giving a Miranda warning. Will a court dismiss the case?
No. A prosecutor can still bring charges against suspects even if the police failed to give Miranda warnings before conducting police interrogations. While prosecutors cannot use evidence gathered during police interrogations at trial if the defendant was not Mirandized, the prosecutor can use other evidence to secure a conviction.
If I agree to police questioning, can I later decide not to answer questions?
Yes. Miranda warnings give a person the right to stop a police interrogation at any time even if they already waived the right to remain silent. A person can assert this right by refusing to answer any more questions, requesting to speak with an attorney, or by requesting to remain silent. Once a person asserts Miranda rights, the police must discontinue the interrogation.
What tactics can the police use when questioning a suspect?
The police are prohibited from using physical or psychological coercion when conducting police interrogations. A confession or evidence that results from coercive tactics is inadmissible at trial. The police, for example, may not use torture techniques, threats, drugging, or inhumane treatment during an interrogation. The police, however, can use lying, trickery, and other types of non-coercive methods to obtain a confession from a suspect.
Do the police have the right to take a bodily sample without permission?
According to the U.S. Supreme Court, the Fifth Amendment right against self-incrimination applies to communication and does not prohibit the police from collecting physical bodily evidence. The police can collect evidence like blood and hair samples without permission.
Miranda Warnings and Police Questioning + Through pop culture, TV and movies, most Americans know that in some cases the police are obligated to "read you your rights". Most of us can recall at least the beginning of a typical Miranda warning as easily as recalling the pledge of allegiance. What most Americans don't know, however, is exactly what their Miranda rights are and when they apply.
In 2010, the US Supreme Court issued a series of decisions that modified the rules surrounding Miranda rights. These decisions have significantly affected the circumstances under which Miranda protections apply, so it's a good idea to reexamine the rules for Miranda warnings.Your Miranda Rights
The Miranda warnings originated in a U.S. Supreme Court ruling, Miranda v. Arizona, 384 U.S. 436, which set forth the following warning and accompanying rights:You have the right to remain silent;Anything you say can be used against you in a court of law;You have the right to consult with a lawyer and have that lawyer present during the interrogation;If you cannot afford a lawyer, one will be appointed to represent you;You can invoke your right to be silent before or during an interrogation, and if you do so, the interrogation must stop.You can invoke your right to have an attorney present, and until your attorney is present, the interrogation must stop.Variations on Traditional Miranda Warnings
You might notice that the last two points from above are often omitted in pop culture references. In fact, many states have their own particular variation of Miranda requirements that their police officers must use, so the language differs slightly from one police department to another.
The most common addition to these core Miranda rights has been to end the traditional warning with a question along the lines of "do you understand these rights as they have been read to you". A suspect must affirmatively respond that they understand these rights - courts will not interpret silence as a sufficient acknowledgment of the Miranda warning.
The US Supreme Court firmly established this principle in a 2010 decision. In that case, a murder suspect refused to sign an acknowledgment of his Miranda rights, then later made statements that were used against him in his conviction for the crime.
The Court ruled that the burden was on the suspect to invoke his Miranda rights, and his failure to sign the acknowledgment essentially amounted to a waiver of those rights. Miranda Warnings Don't Always Apply
There are two very basic prerequisites before the police must issue a Miranda warning to a suspect:The suspect is in police custodyThe suspect is under interrogation
It's crucial to understand these prerequisites because if you aren't formally in police custody, and you aren't being interrogated, the police don't have to give you a Miranda warning. This, in turn, means that the police can use anything you say until those two requirements are fulfilled as evidence against you.Police Custody
"Police custody" is generally defined as anytime the police deprive you of your freedom of action in a significant way. Realistically though, it means being arrested. Some jurisdictions treat detentions differently than arrests, though, and a Miranda warning isn't required in such a situation.
Generally speaking, an actual arrest must take place before the police need to give you a Miranda warning. This means that simple things such as traffic stops or a police officer walking up to you and asking you questions are not considered police custody. When in doubt, just stay silent (except for the exception about identification discussed below).Police Interrogation
Finally it's worth noting that the warning must come before you are being interrogated, so until the interrogation has begun, you are not necessarily owed a Miranda warning. A request for identification is generally not considered an interrogation, nor have the police placed you into custody simply by asking about your identity. In general, you must always give a police officer identification.
Once police officers begin asking questions that may implicate involvement in a crime, however, an interrogation has begun.
In another 2010 case, the US Supreme Court refined the rules for police interrogations. In that case, the Court ruled that police officers could initiate a second interrogation of a suspect who had previously invoked his Miranda right to remain silent once two weeks had elapsed from the date of the original interrogation. The police did not have to give the suspect another Miranda warning, according to the Supreme Court. The Court decided that the Miranda warning from the previous interrogation remained in effect, thus the statements the suspect gave during the second interrogation constituted a waiver of his right to silence.Failing to Provide a Miranda Warning
If the police fail to make you aware of your Miranda rights, nothing said in response to a custodial interrogation can be used against you. In addition, any evidence that is derived from that improper custodial interrogation is also inadmissible.
For instance, if the police fail to make you aware of your Miranda rights and questioning you leads them to a murder weapon, that weapon and the contents of that interrogation are both inadmissible unless they can show that they would have found the weapon without your statements.Physical and Psychological Intimidation
Information that you voluntarily offer to a police officer after receiving a proper Miranda warning is generally admissible in court. Police officers are not allowed to use physical or psychological intimidation to get you to make a statement, however. TV favorites such as hours spent under a bright light or sleep deprivation render the statement involuntary, and not admissible in court.What to Say and Not Say If You Are Arrested
People often blurt out admissions in the heat of the moment or let the police bait them into admissions. The best advice if you are arrested is quite simple: Be cooperative, be polite, provide identification, but say nothing other than to request a lawyer.
DUI Booking & Bail + After the Arrest process, a DUI suspect is usually taken into police custody and "booked" or "processed". During "booking", a police officer typically: Takes the criminal suspect's personal information (i.e., name, date of birth, physical characteristics);
Records information about the suspect's alleged crime;
Performs a record search of the suspect's criminal background;
Fingerprints, photographs, and searches the suspect;
Confiscates any personal property carried by the suspect (i.e., keys, purse), to be returned upon the suspect's release; and
Places the suspect in a police station holding cell or local jail.
For DUI suspects who are placed in jail, the first priority is usually getting out. A DUI suspect will usually be able to obtain pre-arraignment release through Bail or "Own Recognizance" Release.
Bail is a process through which an arrested DUI suspect is allowed to pay money in exchange for his or her release from police custody, usually after booking. As a condition of release, the suspect promises to appear in court for all scheduled criminal proceedings -- including arraignment, preliminary hearing, pre-trial motions, and the trial itself.
If the DUI suspect is not allowed to post bail at the police station immediately after booking, a judge may decide later, at a separate hearing or the arraignment, whether to allow release on bail. The bail amount may be predetermined, through a "bail schedule," or the judge may set a monetary figure based on:Suspect's DUI record and criminal history;
Seriousness of the DUI offense, in terms of injury to others
Suspect's ties to family, community, and employment.
If You Cannot Afford Bail -- Bail Bonds and Bond Agencies
A DUI suspect or the suspect's friends and family may put up the full bail amount as set by the court, or a "bond" may be posted in lieu of the full amount. A bond is a written guarantee that the full bail amount will be paid if the suspect fails to appear as promised. Bonds are usually obtained through a bail bond agency that charges a fee for posting of the bond (usually about 10 percent of the bail amount). Bail bond agencies may also demand additional collateral before posting the bond, since the agency will be responsible for paying the full bail amount if the suspect "jumps bail" and fails to appear as promised. "Own Recognizance" Release
When a DUI suspect is arrested, booked, and granted "own recognizance" release, no bail money needs to be paid to the court, and no bond is posted. The suspect is merely released after promising, in writing, to appear in court for all upcoming proceedings. Most state criminal courts impose certain conditions on own recognizance release, prohibiting the suspect from leaving the area while proceedings are ongoing, or requiring that the suspect contact the court periodically while the case is ongoing.
As when setting bail, a criminal court judge deciding whether to grant own recognizance release considers:Suspect's DUI record and criminal history;
Seriousness of the DUI offense, in terms of injury to others
Suspect's ties to family, community, and employment.
If a DUI suspect released on "own recognizance" fails to appear in criminal court as scheduled, he or she is subject to immediate arrest, and any chance for bail release is all but eliminated.
Getting Out of Jail after You Have Been Arrested + Once you have been arrested and put in jail, there is probably just one thing going through your head -- getting out.
In general, getting out of jail is accomplished by posting "bail." Bail is generally cash or a piece of property that has a cash value that you give to the court in return for your promise to show up to court when you are ordered to do so.
Generally, if you show up to court when you are supposed to after being let out of jail, the court will return your bail. However, if you do not show up, the court will keep your bail and most likely issue an arrest warrant for you, meaning you'll probably end up back in jail. The Process of Setting Bail
If you have been arrested, you will probably want to know how much your bail will be as soon as possible. If you are required to see a judge before your bail amount is set, you are probably going to spend some time in jail, often a weekend in jail (this is sometimes a tactic used by the police -- they arrest you on Friday, meaning that the earliest you will see a judge to set bail is Monday), and even up to five days. However, if you were arrested for a common type of crime, jails often have a chart that can be used to set standard bail amounts which means getting out is a simple matter of paying the standard amount.
The Eighth Amendment of the United States Constitution establishes that no person can have an excessive bail amount set against them. This has been held to mean that bail cannot be used as a way for the government to raise money for itself or punish a person for being arrested. The Eight Amendment is there to ensure that bail is not used for a purpose other than to guarantee that an arrested person comes back to court at the appointed time. The bail cannot be more than is reasonable to accomplish that.
Despite the theory behind the Eighth Amendment, judges often use excessively high bail amounts to prohibit an arrested individual from getting out of jail. This type of excessive bail is often used for people that have been arrested on suspicion of dealing drugs, murder or other crimes where flight is a real possibility. Many people have argued that this type of high bail violates the Eighth Amendment, but almost all have been unsuccessful.
There are also situations in which bail is set at a reasonable amount, but the arrestee still cannot afford to pay the bail. When this happens, the arrested individual must wait to ask the judge to lower the bail amount at a special bail hearing or during the defendant's first court appearance. Depending upon your financial situation, the judge may decide to lower your bail amount, which could making getting out of jail easier. Posting Bail
When you "post bail," you are paying the amount that your bail was set at. This can generally be done in a few ways, including: Paying by cash or check in the amount of your bail; Signing over ownership rights to property that has a cash value that is equal to or exceeds the amount of your bail; Giving a bond (a promise to pay if you do not appear) in the full amount of your bail; or Signing a statement that says you will appear in court at the required time, generally called "being released on your own recognizance."
Generally, if you can be released on your own recognizance, you should try to take that option. However, many people are forced to purchase a bail bond in order to get released from jail. A bond is much like a check that you give to a friend, asking him or her not to cash it until you say it's okay to do so. Generally, the purchase price of the bond is about 10% of the value. Therefore, if your bail is set at $5000, you can expect to pay about $500 in order to purchase a bail bond.
If you have the chance to avoid getting a bail bond in order to get out of jail, it is often good advice to take that second option. If you appear at court and proceed with all requirements thereof, you will generally get the full amount of your bail returned back to you (minus some small, administrative fees from the court). However, if you buy a bail bond, you are already out 10% of your bail amount (this is generally not refundable), and you will also probably have to give the bail bondsman some collateral in order to get the bond (such as an interest in your car or home). If you fail to appear in court at a required time, the bondsman can cash in on the collateral you gave, meaning that he or she could sell your property and take the money from the sale. Getting Released On Your Own Recognizance
As mentioned above, if you have the option of being released on your own recognizance, or "O.R.", you should jump at this opportunity. In general, in order to be released O.R., you must simply sign a paper promising to show up at court when required.
In order to get released O.R., you will probably have to request this at your first court appearance in front of a judge. If you are denied this request, you can always ask about getting a lower bail amount.
There are certain factors that can lead a judge to release you O.R., many of them having to do with your ties to the community in which you were arrested. Factors that could support your request to be release on your own recognizance include: Having close family members living in the community; Being raised in or living in the community for a number of years; Having a job in the community; Having no criminal history, or a criminal history that only includes small crimes and misdemeanors; and Having a good track record of showing up to court when required in the past.
DUI Arraignment + After the arrest, booking, and initial bail phases of the DUI process, the first stage of courtroom-based proceedings takes place -- arraignment. It is important to note that in DUI cases, the arraignment usually represents the first and last time the suspect will be in court, as most DUI suspects choose to plead guilty, especially if evidence of intoxication is strong and little leeway for a plea bargain exists.
During a typical arraignment, a person charged with DUI is called before a criminal court judge, who:Reads the criminal charge(s) against the person (now called the "defendant");
Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney;
Asks the defendant how he or she answers, or "pleads to", the criminal charges -- "guilty," "not guilty," or "no contest";
Decides whether to alter the bail amount or to release the defendant on his or her own recognizance (Note: These matters are usually revisited even if addressed in prior proceedings); and
Also at the Preliminary Hearing, the prosecutor will give the DUI defendant and his or her attorney copies of police reports and any other documents relevant to the case. For example, the prosecutor may provide the defense with lab reports of any blood or chemical tests that were performed, and copies of a police officer's notes taken during field sobriety tests.
The Right to Counsel
If a DUI defendant faces the possibility of jail time if convicted, the defendant has a constitutional right to the assistance of an attorney, or "counsel." If the defendant wishes to be represented by an attorney but cannot afford to hire one, a government-appointed attorney will be assigned at no cost to the defendant. Usually employed as "public defenders", these government-appointed defense attorneys are responsible for zealously protecting a criminal defendant's rights at all stages of the criminal process. To learn more about the right to counsel, go here.
DUI Preliminary Hearing + Usually held soon after arraignment, a preliminary hearing is best described as a "trial before the trial" at which the judge decides, not whether the defendant is "guilty" or "not guilty," but whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the "probable cause" legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.
What to Expect at the Preliminary Hearing
In reaching this probable cause decision, the judge listens to arguments from the government (through a government attorney, or "prosecutor"), and from the defendant (usually through his or her attorney). The prosecutor may call witnesses to testify, and can introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense usually cross-examines the government's witnesses and calls into question any other evidence presented against the defendant, seeking to convince the judge that the prosecutor's case is not strong enough, so that the case against the defendant must be dismissed before trial.
Preliminary Hearing - Not in Most DUI Cases
It is important to note that most DUI cases do not reach the preliminary hearing stage. In the majority of such cases, the arraignment usually represents the first and last time the suspect will be in court, as most DUI suspects choose to plead guilty, especially if evidence of intoxication is strong.
Furthermore, a preliminary hearing may not be held in every DUI case in which a "not guilty" plea is entered. Some states conduct preliminary hearings only when a felony is charged, and other states utilize a "grand jury indictment" process in which a designated group of citizens decides whether, based on the government's evidence, the case should proceed to trial. Last but not least, though exceedingly rare in DUI cases, the possibility always exists that any time prior to the preliminary hearing the case will be resolved through a plea bargain between the government and the defendant.
DUI Pre-Trial Motions + After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge and make pre-trial motions -- arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.
Remember that most DUI cases do not reach the preliminary hearing stage. In the majority of such cases, the arraignment usually represents the first and last time the suspect will be in court, as most DUI suspects choose to plead guilty, especially if evidence of intoxication is strong.
Pre-trial motions are tools used by the government and the defense in an effort to set the boundaries for trial, should one take place: What physical evidence and testimony can be used? What legal arguments can and cannot be made? Is there any reason that the defendant should not be forced to stand trial?
What Arguments are Made During Pre-Trial Motions?While specific possibilities are endless, following are some examples of pre-trial motions that might be made in a DUI case:
The defense asks the judge to keep out of the case ("exclude") marijuana "joints" that the defense argues was obtained through an illegal search of the defendant's car.The defense argues that a confession made by the defendant should be excluded, because it was made to a police officer who failed to advise the defendant of his Miranda rights.The defense argues that Breathalyzer test results should be excluded, because the testing procedure used by the arresting officer was clearly flawed.
Scientific and Forensic Evidence + There are many types of evidence that are commonly used at trial. Scientific and forensic types of evidence can be extremely helpful in proving your case, but there are rules and standards that these types of evidence must meet before they can be submitted during a trial.
You may be wondering what on earth scientific evidence could mean in regards to a trial. In general, scientific evidence is based off of knowledge that has been developed by using the scientific method. This means that the basis for the evidence has been hypothesized and tested and is generally accepted within the scientific community. This could mean that the theory on which the scientific evidence is based has been published in scientific journals and has been subjected to peer review within the scientific community.
Generally, many types of forensic evidence are often considered scientific evidence, like DNA matching, fingerprint identification, and hair/fiber evidence. The methods used to develop these types of evidence are generally beyond the scope of knowledge that judges and juries possess and are therefore normally introduced as scientific evidence.
However, this is not to say that scientific evidence cannot be excluded from a courtroom or trial. There are often many steps that must be taken before a piece of scientific evidence can be put forth in a courtroom as factual evidence. In general, a scientific theory must have established itself in the scientific community and become generally accepted as the truth before it will be asserted as evidence at trial.
For example, because it has been around for so long and because it has proven to be reliable, evidence regarding fingerprint matching is generally admissible as forensic evidence in trial. In addition, things like radar and laser speed guns are generally accepted as being a valid method to tell the speed of a car at a given time and can be admitted as evidence. But keep in mind that there will often be new types of scientific evidence that parties will attempt to submit at trial - science that may not have a solid foundation within the scientific community.
If one side of a trial wishes to submit scientific evidence that is not yet generally accepted within the scientific community, it often happens that the court orders a mini-trial to be held in order to determine the validity of the scientific theory on which the evidence is based. As an example, DNA evidence had to go through many mini-trials before it became generally accepted as valid evidence at trail.
In the future, we may see more mini-trials as more types of forensic evidence are introduced in court. As another example, many scientists are currently working on using functional Magnetic Resonance Imaging (fMRI) as a new type of lie detection machine (this works by imaging, in real time, the flow of blood around the brain). If, during a mini-trial, a judge can be convinced that a new, as-of-yet unproven, type of scientific evidence should be introduced at trial, then the judge will allow it to be presented.
Searches and Seizures: The Limitations of the Police + Although people in the United States are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are allowed, where justified, to search your premises, car, or other property in order to look for and seize illegal items, stolen goods or evidence of a crime. What rules must the police follow when engaging in searches and seizures? What can they do in upholding the laws, and what can't they do?
What the Police MAY Do:Under the Fourth Amendment to the U.S. Constitution, police may engage in "reasonable" searches and seizures.
To prove that a search is "reasonable," the police must generally show that it is more likely than not that a crime has occurred, and that if a search is conducted it is probable that they will find either stolen goods or evidence of the crime. This is called probable cause.
In some situations, the police must first make this showing to a judge who issues a search warrant. In many special circumstances, however, the police may be able to conduct a search without a warrant. In fact, the majority of searches are "warrantless."
Police may search and seize items or evidence when there is no "legitimate expectation of privacy." In other words, if you did not have a privacy interest in the items or evidence, the police can take them and, in effect, no "search" has occurred.
Note: In deciding whether there was a "legitimate expectation of privacy," a court will consider two things: Did you have an expectation of some degree of privacy?
Was that expectation reasonable in our society's view?
Example: You have a semi-automatic rifle that you stole from a pawn shop. You leave the rifle laying on the hood of your car when you get home. You do not have a "legitimate expectation of privacy" with regard to things you leave on the hood of your car, and the police may take the rifle. No search has occurred.
Police may use first-hand information, or tips from an informant to justify the need to search your property. If an informant's information is used, the police must prove that the information is reliable under the circumstances.
Once a warrant is obtained, the police may enter onto the specified area of the property and search for the items listed on the warrant.
Police may extend the search beyond the specified area of the property or include other items in the search beyond those specified or listed in the warrant if it is necessary to:
Ensure their safety or the safety of others;
Prevent the destruction of evidence;
Discover more about possible evidence or stolen items that are in plain view; or
Hunt for evidence or stolen items which, based upon their initial search of the specified area, they believe may be in a different location on the property.
Example: The police have a warrant to search your basement for evidence of a drug manufacturing operation. On their way through your house to go down to the basement, they see a cache of guns sitting on the kitchen table. They may take the guns in order to ensure their safety while searching your basement.
Police may search your property without a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving it.
Police may search your person and the immediate surroundings without a warrant when they are placing you under arrest.
If a person is arrested in a residence, police may make a "protective sweep" of the residence in order to make a "cursory visual inspection" of places where an accomplice may be hiding. In order to do so, the police must have a reasonable belief that an accomplice may be around. Example: The police arrest you in your living room on charges of murder. They may open the door of your coat closet to make sure that no one else is hiding there, but may not open your medicine cabinet because an accomplice could not hide there.
When you are being taken to jail, police may perform an "inventory search" of items you have with you without a warrant. This search may include your car if it is being held by the police in order to make a list of all items inside.
Police may search without a warrant if they reasonably fear for their safety or for the public's safety.
Example: If the police drive past your house on a regular patrol of the neighborhood and see you, in your open garage, with ten cases of dynamite and a blowtorch, they may search your garage without a warrant.
If it's necessary to prevent the imminent destruction of evidence, the police may search without a warrant.
Example: If the police see you trying to burn a stack of money that you stole from a bank, they may perform a search without a warrant to prevent you from further destroying the money.
Perform a search, without a warrant, if they are in "hot pursuit" of a suspect who enters a private dwelling or area after fleeing the scene of a crime.
Example: If the police are chasing you from the scene of a murder, and you run into your apartment in an attempt to get away from them, they may follow you into the apartment and search the area without a warrant.
Police may perform a pat-down of your outer clothing, in what is called a "stop and frisk" situation, as long as they reasonably believe that you may be concealing a weapon and they fear for their safety.
What the Police MAY NOT Do:The police may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies.
If evidence was obtained through an unreasonable or illegal search, the police may not use it against you in a trial. This is called the "exclusionary rule."
The police may not use evidence resulting from an illegal search to find other evidence.
The police may not submit an affidavit in support of obtaining a search warrant if they did not have a reasonable belief in the truth of the statements in the affidavit.
Unless there is a reasonable suspicion that it contains evidence, illegal items, or stolen goods, the police may not search your vehicle. If your car has been confiscated by the police, however, they may search it.
Unless they have a reasonable suspicion that you are involved in a criminal activity, the police may not "stop and frisk" you. If they have a reasonable suspicion, they may pat down your outer clothing if they are concerned that you might be concealing a weapon.
Car Impounded After a DUI + Motorists may have their car impounded after committing a second or third drunk driving offense within a given period of time (usually five years). This vehicle impoundment has the goal of deterring future drunk driving incidents by removing the vehicle from the driver's control. Vehicle confiscation for a DUI or DWI almost always is limited to repeat offenders and it has become much less common with the proliferation of Ignition Interlock Devices (IIDs), which prevent intoxicated drivers from starting their car. Since the IID prevents DUI offenders from driving while drunk again, the reasoning goes, the government no longer has any reason to impound the offender's vehicle.
Some state courts have also ruled that vehicle confiscation is an excessive punishment in some cases and have limited its use. This area of DUI-related law continues to evolve, however, so be sure to check the current laws in your state for more information.
Vehicle confiscation typically is handled through a civil administrative process, rather than as a penalty imposed by the sentencing court following a DUI proceeding. An offender usually has the option of an appeal through the civil court after an impoundment rather than through the criminal court that handled the drunk driving charge. In most cases, the offender regains possession of the vehicle after paying fines and administrative fees. Therefore, vehicle confiscation is considered a deterrent of potential future DUI offenses rather than a permanent solution. Vehicle seizure and forfeiture can be permanent in some rare cases, however.
In Florida, a motorist convicted of driving under the influence is subject to vehicle confiscation and forfeiture if his or her license was suspended or revoked at the time because of a prior DUI conviction. Other states have similar rules in place.
Most states require some kind of a test to determine whether vehicle confiscation is unfairly excessive with regard to the underlying criminal offense. Most courts, though, have found that the public danger posed by repeat DUI or DWI offenders justifies confiscation in the majority of such cases.
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