You Have the Right to Remain Silent But You Must Claim It.

"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 to you. You may exercise these rights at any time."  This phrase, or similar versions to it are commonly referred to as your "Miranda Rights."  They are meant to explain a persons right against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution.

The Fifth Amendment to the United States Constitution provides: "No person ... shall be compelled in any criminal case to be a witness against himself..."  This right exists in any circumstance where a persons answer to a question may have the tendency to incriminate them or lead to the discovery of incriminating evidence.  According to the United States Supreme Court, this privilege "protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence."  The Iowa Supreme Court has further explained that the right is "properly asserted where the answer might furnish a link in the chain of evidence needed to prosecute a crime."

Many people faced with questioning by law enforcement or other individuals such as employers or school officials, often hesitate to come out and "plead the 5th."  Their thought process is that if I "plead the 5th" the person will know that I am hiding something and will assume I have done what they have accused me of doing.  Based upon the United States Supreme Court's recent decision in Salinas v. Texas, "pleading the 5th" is precisely what a person must do if they are to prevent their silence from being used against them."

In Salinas the defendant voluntarily submitted to questioning by law enforcement.  He was not advised of his Miranda rights since it was a voluntary questioning and he was free to leave at any time.  He voluntarily answered a number of questions about a homicide but then hesitated when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match his shotgun.  He was ultimately charged and convicted of Homicide based in part upon his reaction to the officers questioning which was used against him in his trial.  The United States Supreme Court, in a narrow 5 to 4 decision, concluded that because Salinas did not clearly and unequivocally invoke his constitutional right to remain silent (plead the 5th) in response to the question, his action was not an invocation of a constitutional right and consequently could be used against him.  Justice Alito's quote best sums up the Court's opinion: "A witness who desires the protection of the privilege must claim it."

The lesson provided by the Salinas decision is quite simple.  If a person wants to exercise their constitutional right to remain silent, they must be clear and unequivocal about it, otherwise they run the chance that their response to a question may be used against them.  A good example of a clear an unequivocal invocation of a constitutional right against self-incrimination can be found in the recent Iowa Supreme Court decision of State v. Washington, in which the defendant "plead the 5th" when the sentencing judge asked if a random urine test would be positive for drugs.  In response to that question, Washington's lawyer, clearly and unequivocally invoked his right against self-incrimination on his behalf, and the Iowa Supreme Court concluded that the defendant properly invoked his right to remain silent and the sentencing judge improperly punished him for exercising that right.

It has been said that the right to remain silent is probably the most commonly known right in our country but is the most difficult right for people to actually exercise.  The United States Supreme Court's decision has made this ever more apparent.  This is why the attorneys at GRL Law have created the Iowa Driver's Rights Card and Oh Crap App., to educate and assist citizens with knowing and invoking their constitutional rights when faced with a law enforcement investigation.  As it stands today, the law still prohibits the government from using a persons invocation of a constitutional right against them if they are later charged with a criminal offense.  However, the right must be clearly and unequivocally invoked.  You cant be shy, passive or hesitant when invoking the right.  Come out and say it: "I plead the 5th".  This is important because while the police officer may think he knows why you are invoking your right to remain silent, if charges are filed, your invocation of your right cannot be used against you in any of the court proceedings.  Your failure to invoke your rights however can and will be used against you.

Know your rights; Exercise your rights; Preserve your freedom!

Reporting an Accident

Accidents are not uncommon but a person's legal responsibilities following an accident are not always clear. In Iowa, any accident involving property damage in excess of $1,500.00 must be reported to the Iowa Department of Transportation within 72 hours from the accident. A person's legal duty following an accident depends upon the results of the accident.

Injury or Death
If the accident results in injury or death to any person, the driver of a vehicle involved in the accident must, "by the quickest means of communication," provide notice of the accident to the sheriff of the county in which the accident occurred, or the nearest office of the state patrol or other local law enforcement agency. This duty is fulfilled usually by simply calling 9-1-1, to report the accident. The driver of the vehicle must also stop the vehicle at the scene or as close as possible and shall remain on the scene or return to it until law enforcement has had an opportunity to obtain the information necessary to complete an accident report. Failing to comply with these requirements in a death accident is a Class D Felony and failing to comply when injury results is an Aggravated Misdemeanor. In a Vehicular Homicide charge, leaving the scene of the accident can result in the the person being required to serve 70% of their sentence before being eligible for parole.

Property Damage to Another Vehicle
If another vehicle is involved in the accident and that vehicle is either being driven or is "attended" at the time of the collision, the driver must stop and remain on the scene until an accident report can be completed or the required driver information is exchanged. If the other vehicle involved in the accident is not attended and parked, the driver is required to immediately stop and shall either locate and notify the owner of the struck vehicle or must leave a written notice providing the name and address of the driver and owner of the vehicle that struck their car as well as a statement explaining what happened.

Single Vehicle Accident - No Injury or Death
A common occurrence in Iowa, especially during the winter, is a single vehicle accident where nobody is injured or killed and no property damage is done to another vehicle. These types of accidents are not uncommon, whether due to weather, deer or other circumstances. If a person is involved in a single vehicle accident that does not result in injury or death to another person, there is no requirement that they remain on the scene of the accident or even report the accident that same night. It must only be reported if the accident resulted in more than $1,500.00 in damage and in that event, it must be done within 72 hours. If law enforcement investigates the accident, they will file the report. However, the driver of the vehicle, may on their own, report the accident as well. (DOT Form)

A question that is frequently raised in single vehicle accidents is "What if I do not want to incriminate myself?" That is an excellent question to be asking following an accident and something that should be at the forefront of a person's mind especially if alcohol was consumed prior to the accident. A driver, NEVER has to admit to conduct that may result in criminal liability. In fact, Iowa law, in addition to the 5th Amendment to the United States Constitution, specifically states that a driver and/or owner of a vehicle involved in an accident is not required to supply information to a police officer if the owner believes the information may be self incriminating. Also, accident reports and the contents of those reports are by law, confidential and may not be used as evidence in any civil or criminal case arising out of the facts on which the report is based. Thus, a person may report an accident truthfully by submitting the required report and any statements made in that report cannot be used to prosecute them for a crime.

A common practice by law enforcement agencies that is being used more and more, is to impound a persons vehicle until the "driver comes in and claims the vehicle." This is merely a ploy by law enforcement to determine who was driving the vehicle when they have no other evidence to establish that fact. In these situations, the driver, or other concerned individual, is well-advised to involve an attorney to ensure that their legal rights are properly respected. A knowledgeable attorney can assist the individual in complying with the reporting requirements while still preventing them from incriminating themselves.

KNOW YOUR RIGHTS; EXERCISE YOUR RIGHTS; PRESERVE YOUR FREEDOM.

The Right to Remain Silent and to an Attorney

When an arrested individual requests to speak to an attorney, all interrogation and questioning must cease. The Iowa Supreme Court reaffirmed this rule in its decision entered this morning in State v. Vincent Walls. (http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090220/07-0452.pdf). After being brought in for questioning, Mr. Walls made a specific request to talk to his attorney. The interrogating officer continued with the interrogation and the Iowa Supreme Court ruled that all statements obtained following Mr. Walls' request to speak to his lawyer, must be suppressed because they were obtained in violation of the 5th Amendment to the United States Constitution. In coming to this conclusion, the Iowa Supreme Court confirmed the already well-established rule that: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. 436, 444 (1966).

The rules surrounding Miranda warnings and custodial interrogations are some of the clearest and easiest to apply for the legal community. Unfortunately, they are also the most commonly misunderstood by the general public. The rules are as follows:

1. The burden is on the police to advise the arrested person of their constitutional rights under the 5th Amendment through what are commonly referred to as "Miranda warnings" (you have the right to remain silent, any thing 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 to represent you during questioning) prior to the interrogation.

2. Miranda warnings only apply when the police want to interrogate/question a person of criminal activity after they have been taken into custody or "deprived of their freedom". If the person is not in custody or otherwise detained and elect to answer questions no violation takes place.

3. If no interrogation takes place, Miranda warnings need not be given.

4. The right to remain silent and to the services of an attorney during questioning only applies to questioning, it does not apply to securing physical evidence.

5. If an arrested person indicates that he/she wishes to remain silent and does not want to answer questions, all questioning must stop immediately.

6. If an arrested person indicates that he/she wants to speak with an attorney or wants the services of an attorney, all questioning must stop immediately.

7. If the arrested person elects to remain silent or talk to an attorney, the police can re-initiate questioning if the arrested person re-initiates the conversation or contact with the police.

8. The 5th Amendment only applies to statements obtained through questioning. If the arrested person speaks of their own free will, those statements are not suppressible.

9. A violation of the 5th Amendment or Miranda only results in suppression of statements NOT dismissal of the charges.