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Miranda Rights

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MIRANDA RIGHTS

By Andrew Powell Esq.

Almost everyone has seen a crime television show and heard the infamous phrase “you have the right to remain silent, anything you say can and will be used against you in the court of law, you have the right to an attorney, and if you cannot afford one an attorney would be appointed to you.” However, most people do not know when or why this phrase is so commonly used by police. In 1966, the United States Supreme Court decided to require law enforcement officials to read this list of rights to someone who has been taken into custody. These rights are known commonly as your “Miranda Rights.”

Purpose Of Reading The Miranda Rights

The United States Constitution and specifically the Fifth Amendment guarantees anyone who has been arrested the right not to incriminate themselves. Plainly put, an individual does not have to talk to police when they have been arrested. The Constitution and our form of justice requires that the government carry their burden and prove to a judge or jury that someone charged with a crime is guilty beyond a reasonable doubt.georgia-juvenile-defense

Too often law enforcement officials become overzealous with their search for the truth and overstep the Constitutional bounds in their pursuit. It may not surprise you that police use coercive tactics or even lie to someone to get them to confess to a crime. Miranda warnings are a safeguard to protect against those who may cross that Constitutional boundary. The government must show the court that you were read your Miranda rights and that you waived your rights guaranteed by the Constitution.

When Does Miranda Apply To Me?

Confessions are the leading source of Miranda violations. When someone has been accused of a crime, big or small, they are often questioned in connection with that crime. Miranda rights must be read to someone after they are under arrest and before any law enforcement official asks any questions to the suspect.  Law enforcement officials have a tough job and they investigate crimes every day. Many officers are trying to make quick decisions based on little information. However, this does not allow them to just simply force people to talk to them and answer their questions.

Many times law enforcement officials will arrest someone and take them back to the police station for an interview. Generally, they will quickly go over your rights with you and ask you if you want to talk to them. If you have been charged with a crime this is where you want to stop and tell the law enforcement official that you would like to speak to your attorney.

When Does Miranda Not Apply To Me?

People sometimes think that any encounter with law enforcement requires them to read you your Miranda rights. This is untrue. Most encounters between people and law enforcement do not require the reading of your Miranda rights. As discussed above, the Miranda warnings are only required when you have been placed under arrest and the police are asking you questions regarding the crime.

Traffic stops are a common place to have an encounter with law enforcement where Miranda warnings are not required to be read to someone. In this circumstance, generally you are not under arrest and law enforcement is just going to ask you some general questions and write you a ticket.

In terms of a DUI, the police officer is not required to read the Miranda warnings. The officer may ask you to take a series of tests, known as Field Sobriety Tests or request you to blow into a machine that registers your blood alcohol content. Even though the officer does not have to read your Miranda rights to you, you have the ability to refuse these tests and refuse giving a breath sample.

Another common scenario is when law enforcement asks you to come to the station and make a statement. In this circumstance, Miranda warnings are not necessary because you have voluntarily come to the police station and are not under arrest. Remember, law enforcement is only required to give you the Miranda warnings once you have been arrested and before they initiate any questioning of you.

What Does A Miranda Violation Mean For Me?

Confessions or statements made to law enforcement will not be allowed at trial if law enforcement has not, first, read you the warnings required in Miranda. If you were forced into making a statement or the police did not read your rights to you and you then confess to a crime, whether it is a DUI or murder, that confession cannot be used against you at your trial. With your statement or confession tossed out it can help strengthen your case and possibly force the prosecutor’s office to drop the charges because they do not have enough evidence to prosecute you.

If you have been charged with crime and feel your rights were violated during the process, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. At the W. Scott Smith law firm we can identify where the police have violated your rights and ensure evidence will be kept out. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

The “Slow Poke” Law

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The “Slow Poke” Law

Traffic Ticket for Driving The Speed Limit? Can you really get a ticket for driving the speed limit?

In Georgia, the answer is YES you can!

Although Georgia’s “slow poke” law has been in effect since July 1, 2014, many people are still unaware of the law and its impact. States across the country have begun cracking down on drivers that impede the flow of traffic by lingering in the left lane. As part of this effort to combat traffic congestion and road rage incidents, the Georgia legislature amended O.C.G.A. § 40-6-184 to criminalize the act of driving in the left lane regardless if the driver is driving the speed limit. Specifically, it is illegal to “impede the normal and reasonable movement of traffic.” Thus, a driver who is driving the speed limit in the left lane with drivers behind them can be ticketed for failure to move over one lane to the right. In areas with more than 2 lanes of traffic, the law only applies to the “most left-hand lane other than a high occupancy vehicle lane” so drivers are not required to move all the way over to the far right.

Most jurisdictions began implementing the law through the issuance of warnings, but officers are not required to give you a warning because ignorance of the law is not a legal defense. Remember to only use the far left-hand lane when passing slower vehicles and always yield to faster traffic by merging back over to the right. If ticketed with a violation of the “slow poke” law, it’s important to remember that while officers have a wide range of discretion in determining whether a driver is impeding traffic, there are also many other factors such as weather conditions, time of day, and the general flow of traffic in the area that can affect your case.

If you are ticketed for impeding the flow of traffic you may receive a fine up to $1,000, 3 points on your license, and a substantial increase in your insurance premiums. If you have been charged with a violation of Georgia’s “slow poke” law, call our office and we can help you deal with the court. Our office has extensive experience in traffic violations and DUI defense. Fighting traffic tickets with an attorney’s help is essential because any conviction on your record will greatly reduce the possibility of having future citations lowered or dismissed.  If you have received a traffic ticket give us a call for a free consultation at 404-581-0999.

Hit and Run

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Hit and Run

Do you know your responsibilities when involved in a car accident in the State of Georgia?  Many people don’t.  Every day, Georgia drivers find themselves charged with one of the worst traffic offenses someone can have on their driving record, hit and run.

Every person driving on Georgia roads has five distinct responsibilities that they must adhere to when involved in car accident involving death, injury, or damage to someone else’s vehicle.   The responsibilities must be met in order to avoid being charged with hit and run.

First, if you are involved in a car accident involving damage to another vehicle, injury, or death then you must provide the other driver your name, address, and the registration number of the vehicle you are driving.   Next, upon request, you must present your operator’s license (driver’s license) to the person struck or the driver or occupant of the other vehicle.  If someone is injured, you are required to give reasonable assistance to that person, including transporting or make arrangements to transport the person to a medical professional.  Also, if the other driver is unconscious or deceased, you must make every reasonable effort to contact medical services and local law enforcement (Call 911).  Finally, and most importantly, you must remain at the scene of the accident until all of the requirements mentioned above are fulfilled.

Most of the requirements seem to be common sense.  But a common, and unfortunate situation, is when a Georgia driver is involved in a car accident where both parties appear to be ok and there is little damage to the vehicles.  The other driver, we’ll call him John, tells you: “Everything is fine.  I don’t think we need to call the cops.”  Initially, you think that everything is fine and you can go about your business, only to later find out that “John” has called the police and reported the accident.   To make matters worse, “John” let the police know that you left the scene!   The police can then go the magistrate court and take a warrant for hit and run, leaving you with an active warrant for your arrest…

Sound like a nightmare? Believe me, it is.driving-car-accident

A conviction for a hit and run charge can result in severe consequences on your criminal history and the suspension of your driver’s license.  If someone is injured or dies as a result of the accident, then you can be charged with a felony and face up to three years in prison.   More common, if there is damage to other driver’s vehicle, and you are convicted of hit and run, you can receive up to twelve months in jail and $1000 fine.  And if that’s not enough, a conviction for hit and run will suspend your driver’s license.

If you have found yourself charged with hit and run, do not go to court and just plead guilty.  Contact our lawyers immediately to discuss your options and how to protect your rights going forward.  Our lawyers are trained to handle hit and run cases and are available for a free consultation.  Please call 404-581-0999 to setup a consultation as soon as possible.

Open Container

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OPEN CONTAINER 

Think about this scenario for a second.  You’re driving home with your significant other from a dinner party.  As you’re driving  you begin to discuss with your passenger how wonderful the evening was, especially the fantastic wine that you drank.  You’re thrilled that your dinner host graciously gave you the rest of that wonderful red wine that they brought back from Italy.  Next thing you know, you look up and you see blue lights in your rear view mirror.  Now, you know you may have been driving too fast, but nonetheless you expect to get a either a warning or a speeding ticket.

The Officer approaches the car and sees that you have a bottle of wine, with the cork lodge tightly on top, sitting in your back seat.  He says: “Ma’am, I pulled you over for speeding and it looks like you have got an open container in the back seat!”  OPEN CONTAINER!?  That’s right, now you have another ticket to worry about…

open-container

In Georgia, it is illegal to have an open bottle of an alcohol beverage in the passenger area of a motor vehicle. O.C.G.A. 40-6-253.   We often think of open container in the context of someone driving down the road with an open beer or maybe a mixed drink in a solo cup.  But it can also constitute someone carrying home an already open bottle of alcohol.  In fact, Georgia law defines an “open alcoholic beverage” (open container) as any bottle, can, or other receptacle that contains ANY amount of alcoholic beverage and: (1) is open or has a BROKEN SEAL; OR (2) the contents of which are partially removed.

So be careful out there! If you’re one of those lucky folks who gets the gift of a fine wine from Italy, go ahead and put it in the trunk.   That will avoid any headache with the police officer believing your impaired AND will help avoid you getting ticketed for open container.

However, if you have found yourself with an open container violation, please contact the office immediately at 404-581-0999.