This is the second installment of our two-part blog post on common myths involving criminal defense in Kansas. At our Kansas criminal defense law firm, we recognize that many times people compromise their case because they act on erroneous information and urban legends. We have tried to dispel some of these misconceptions in the hope that it will discourage some from inadvertently making their situation worse. We also invite you to review part-one of this blog post.
The police did not read me my Miranda rights so anything I told them must be excluded.
This is a misconception perpetrated by television and movies that often gets criminal defendants in hot water. Many defendants volunteer potentially incriminating or contradictory information because they presume that the information is safe since no Miranda warning has been provided. However, the Miranda warning is only required once a defendant is “in custody.” While this generally will refer to when you are actually arrested, there is a substantial amount of litigation over whether a defendant was “in custody” at the time damaging admissions were made to the police. The best policy is not to answer any questions or provide information about the case to anyone until you are represented by counsel.
I am required to submit to field sobriety tests and a roadside breath test unless I want to lose my driver’s license.
This misconception is based on a failure to distinguish roadside testing with a formal BAC test following a lawful arrest. While the Kansas Implied Consent Law does require that you submit to formal breath testing at the police station or other approved facility, there are no negative consequences imposed by law for refusing both field sobriety tests (FSTs) and a roadside breath testing. While you may still be arrested if you refuse these tests, there is little to gain by performing the tests. The evidence obtained will be used as a basis to establish probable cause for your arrest, as well as evidence of guilt in your DUI case so you can and should refuse to submit to such testing.
The conduct of the police constituted entrapment.
Many people do not understand the type of conduct referenced by the term “entrapment.” This term essentially refers to the police engaging in conduct that induces someone to commit an act they otherwise would not be inclined to engage in. The fact that police officers provide you an opportunity to violate the law, such as solicitation of a prostitute or purchasing drugs does not alone constitute entrapment.
Kansas DUI defense attorney Stacey Schlimmer diligently defends the Constitutional rights and freedom of her clients. While we have tried to dispel some of the common misconceptions about Kansas criminal cases, the best way to obtain more specific information is to schedule a free consultation with Kansas criminal defense attorney Stacey Schlimmer. Our Kansas criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.
There are a number of common myths that can seriously impact a Kansas criminal case when those subject to a criminal investigation or formal criminal charges assume these misconceptions are accurate. Because Kansas criminal defense attorney Stacey Schlimmer has represented hundreds of criminal defendants in the state and federal courts of Kansas, she recognizes the importance of understanding one’s rights undistorted by myths and misconceptions. We have addressed a number of common myths below but also encourage you to review part-two of this blog post.
The criminal system does not incarcerate those who are innocent.
While there is no question that innocent people can be prosecuted and convicted, we are only now starting to understand how prevalent wrongful convictions are as an increasing number of people are being released based on new DNA technology. The quality of your defense is largely based on the caliber of criminal defense attorney who represents your interest. When you retain a Kansas criminal defense attorney at our law firm, you can expect us to carefully investigate the facts and evidence, conduct diligent legal research, file appropriate motions, aggressively negotiate with the prosecutor and persuasively advocate for our clients. There are many appeals filed each year based on “ineffective assistance of counsel,” but a criminal defendant is much more likely to prevail at the trial court level than in an appellate court.
My case will result in an acquittal because the police conducted an unlawful search and seizure that violated the Fourth Amendment.
While it is possible that your case can be dismissed for this reason, it depends on a number of factors. Although evidence obtained in violation of the prohibition against unreasonable search and seizure may be excluded from a criminal case, there are exceptions to this rule. If the prosecutor can show that the police acted in good faith and would have inevitably discovered the evidence through other means, the prosecution may be allowed to present the evidence. Even if the illegally obtained evidence is excluded, this does not necessarily mean that the charges will be dropped. The issue will be whether the prosecution has sufficient evidence to proceed without the evidence that has been suppressed.
A public defender can accomplish the same result as a private criminal defense attorney.
While this is not a complete myth, it oversimplifies the issue of whether to retain a private attorney. Most public defenders are knowledgeable and skilled criminal defense attorneys, but they are saddled with a number of disadvantages that limit their options in presenting a defense. They typically have enormous caseloads and limited financial resources to devote to any individual case. This means that some types of expensive forensic testing and other investigative techniques may be unrealistic if you are represented by a public defender. Private criminal defense attorneys have more extensive resources and time to devote to building a compelling criminal defense strategy.
Kansas DUI defense attorney Stacey Schlimmer diligently defends the Constitutional rights, freedom and driving privileges of her clients. While we have tried to dispel some of the common misconceptions about criminal cases, the best way to obtain more specific information is to schedule a free consultation with Kansas criminal defense attorney Stacey Schlimmer. We also invite you to review part-two of this blog post. Our Kansas criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.
While field sobriety tests (FSTs) are often used for laughs in television and movies, they are no laughing matter because they often provide critical evidence supporting a Kansas DUI arrest. These tests involve agility, coordination and balance but poor performance on FSTs may have little relationship to actual alcohol impairment. While many people believe that FSTs are reliable “scientifically valid” forms of identifying alcohol impairment, FSTs often inaccurately identify those who have physical injuries, illnesses or poor coordination as being intoxicated.
There are two forms of field sobriety tests – (1) standardized field sobriety tests and (2) non-standardized field sobriety tests. While officers sometimes employ non-standardized FSTs, the National Highway Traffic Safety Administration that regulates these tests have only authorized standardized FSTs as having any reliability in determining if a driver is intoxicated. Even standardized FSTs have substantial false positive error rates. The only standardized FSTS are the one leg stand, walk and turn and gaze nystagmus.
A study conducted by Dr. Spurgeon Cole of Clemson University asked fourteen police officers to evaluate 21 subjects performing FSTS and identify which ones were intoxicated. The officers identified approximately 46 percent of the subjects as being under the influence based on their performance of FSTs. However, all 21 subjects were stone cold sober because they had not consumed a drop of alcohol before performing the FTS. Statistically, the police officers would have been more accurate in determining who was intoxicated had they flipped a coin. This reveals that lack of training and skill that officers often have in evaluating the sobriety of drivers based on FST performance.
The walk and turn and one leg stand even when conducted by experienced trained officer are still inaccurate about 25-35 percent of the time. When the natural inaccuracy of FSTS are compounded by the expectation of the officer that a driver is impaired along with inadequate training in conducting and scoring FSTS, a substantial number of drivers may be arrested because of poor performance on FSTS that has nothing to do with being under the influence of alcohol.
If you are asked to perform FSTs by a police officer, the conventional wisdom is that you should decline. The officer has already made up his or her mind that you are intoxicated so the request that you perform FSTs is simply a way to develop enough evidence to establish probable cause for a DUI arrest. If you do decide to perform FSTs, it is imperative that you communicate any injury, illness, vertigo or other condition that may adversely impact you performance before engaging in FSTs.
Kansas DUI defense attorney Stacey Schlimmer diligently defends the Constitutional rights, freedom and driving privileges of her clients. We will carefully evaluate and raise appropriate challenges to the legal basis for your stop, police officer observations, any field sobriety or chemical blood alcohol tests and other applicable defenses. Our DUI defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.
While the Terry stop (otherwise referred to as a “stop and frisk”) procedure has been upheld by the U.S. Supreme Court, the use of this law enforcement tool is coming under fire in New York. In a case that could have implications for other states, the practices of the New York Police Department in conducting stop and frisks are being challenged because the police have stopped five million people during the last decade who were mostly black or Hispanic according to a report published by the AP.
A stop and frisk permits a law enforcement officer to briefly detain a suspect and inquire further if the officer has reasonable suspicion that the person detained is involved in criminal activity. The law enforcement contact must be brief and it must be based on articulable facts. During the brief duration of a stop and frisk, the officer may pat down the person detained. The rationale for permitting a pat down is to ensure the officer’s safety by confirming that the person stopped is not carrying any weapons.
Because the stop and frisk rule does not require the higher standard of probable cause, the law enforcement tool is has more potential for abuse. What transpires during a Terry stop will determine whether the officer has probable cause to conduct a more extensive search or arrest the suspect. The types of evidence that may be relevant to whether probable cause has been established during a stop and frisk include such factors as whether a suspect flees, closeness in description of the person stopped to a suspect, proximity of location to the criminal offense, demeanor of the person detained and other similar factors.
The civil case challenging the racial profiling of those subjected to a stop and frisk alleges that 83 percent of those who are subjected to the stop and frisk procedure in New York are either Hispanic or black. Of the over half a million people stopped annually by the police in New York, 51 percent are black while 32 percent are Hispanic despite the fact that only 26 percent of those who live in New York are black while 28 percent are Hispanic. About half of those forced to submit to the stop and frisk procedure have their bags or backpacks searched or are subject to a pat down.
The potential abuse of the stop and frisk also is supported by the fact that only about one in ten stop and frisks conducted during the last decade actually resulted in an arrest according to the AP report. If you suspect racial profiling was a factor in you or someone close to you being arrested in Johnson County or anywhere in the surrounding areas of Kansas, experienced Johnson County criminal defense attorney Stacey Schlimmer closely scrutinizes law enforcement procedures and officer conduct for evidence of racial bias. Our Kansas criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.