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  1. #21
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    Jul 2006
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    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    Quote Quoting flyingron
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    That's bad science (or misapplied) in that defense. While alcohol is indeed odorless, the metabolites of it do have a definite odor. I spent years as a paramedic and I can definitely recognize that smell, so depending on how the officer articulated the observation, it may indeed be sufficient.

    Further, at the probable cause stage, the smell of "scotch" or "bourbon" or whatever which isn't the alcohol itself, may indeed be sufficient.
    I had a case where the opposing party showed up completely reeking of alcohol when I (my client) was accusing him of being an alcoholic. Guess what happened there?

  2. #22
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    Mar 2015
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    Rochester, NY
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    22

    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    Quote Quoting Mr. Knowitall
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    With no chemical test results due to your refusal, that would have been an implied consent proceeding. I am skeptical of trying to claim that you were denied the right to counsel at roadside, when you forgot your phone at home and the officers didn't hand you one, but if that continued later when you were refusing to cooperate at the police station I can see where the ALJ could find that the refusal could not be used to justify administrative penalties.

    But the big question remains: what about the criminal charges? I was skeptical of the harassment charge from the outset, but you still have the issue of your refusal to get out of the car when ordered to do so by the officer.

    I suggest that you avoid showing your lovely personality in court, as that's the sort of behavior that causes minor incidents to be escalated into arrests and criminal prosecutions, when a polite or sensible person would likely have departed the scene with a speeding ticket or perhaps only a warning.
    Correct, it was implied consent hearing.

    Any concerns surrounding skeptical claims made by me, that I was denied my right to an attorney, were irrefutably removed by all three officers, as they openly admitted they denied my my right to an attorney prior to asking me to step out of the car, after they asked me to step out, once I was out, once I was in the station, and after I left the station. All 3 officers present individually admitted to denying me access to an attorney. The judge didn't take to kindly to hearing them attempting to justify why they would not give me access to an attorney, on the officers claims of my behavior & that I continued to claim the were violating my rights. This is why the judge dismissed the hearing & firmly stated that I have full driving privileges restored.

    My lawyer is obviously going to use their testimony in court on the other charges, where they will have to re-admit & reconfirm that they denied me access to legal counsel from the start.

    They charged me with obstruction for refusing to get out of my vehicle, after I requested an attorney multiple times. The harassment stems from me belittling all the officers, after I told them they were performing their duties wrong. I called them dishonorable piles of shit, and told them to resign from the service, toss their badges in the garbage, and to take the smiles off their faces, because violating someone's rights is not funny. They didn't like what I told them, so that's where the harassment 2nd comes from. I did not threaten them, I just shattered their little ego's obviously, so they came up with more charges. Officers originally said they were charging me with just DWI when I got out of the car, but apparently one of the sensitive officers changed his mind.

    Correct, my behavior is fine in court. I greet the judge with a smile & do not gesture anything towards anyone else. My behavior with the officers only stemmed from their refusal to provide me legal counsel, other than that I am quite sensible & very calm. I have never had an issue with cops who do their job correctly.

  3. #23
    Join Date
    Jan 2006
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    38,714

    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    You have no right to consult an attorney prior to complying with their lawful order to exit the vehicle. In fact, should you be refused counsel once you have the right to have counsel the most that would happen is any statements made by you would be eligible to be suppressed.

  4. #24
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,331

    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    It is no surprise to me, but I find no NY state law that requires that a person asked to step out of a vehicle be permitted to talk to an attorney. Nor is there any law that I can find that would require them to allow you access to an attorney prior to making a decision whether or not to take a mandated chemical test after you are arrested. If this was a real JUDGE that rules the officers had no right to ask you out of the car, then there was some other issue involved here.

    Something is off with this tale.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  5. #25
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    Mar 2015
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    Rochester, NY
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    22

    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    Quote Quoting jk
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    You have no right to consult an attorney prior to complying with their lawful order to exit the vehicle. In fact, should you be refused counsel once you have the right to have counsel the most that would happen is any statements made by you would be eligible to be suppressed.
    I am aware of that. They denied me counsel when I was in the barracks & kept trying to ask me questions relentlessly. I was refused counsel, as they never offered to provide it & admitting to not providing it.

    Quote Quoting cdwjava
    View Post
    It is no surprise to me, but I find no NY state law that requires that a person asked to step out of a vehicle be permitted to talk to an attorney. Nor is there any law that I can find that would require them to allow you access to an attorney prior to making a decision whether or not to take a mandated chemical test after you are arrested. If this was a real JUDGE that rules the officers had no right to ask you out of the car, then there was some other issue involved here.

    Something is off with this tale.
    I am aware that I don't have a technical right to an attorney prior to stepping out of a car. The officers told me to get out of my car, to insure that I was fit to drive. They didn't blanket-statement their request, saying "step out". They wanted me to step out to perform a FST, to which I told them I am not doing their game & want a lawyer immediately.

    It was a REAL judge at the DMV implied consent hearing. His tag read with the words "Hon." - for honorable judge, just like in real courts. I reconfirmed that he was a real judge prior to the hearing with my very experienced attorney, as I had the fear I was going into a hearing that would be overseen by some rag-tag DMV clerk/employee, who was not an official representative of law.

    I agree, there is something off & odd. I had 4 seasoned DWI attorneys tell me this is a very odd case, and the DMV judge told me it was a very odd set of circumstances too. The officers didn't look credible at the hearing either, as they forgot quite a bit of what happened, made a few wrong statements that did not correlate to the report, and the sergeant paused for about 15 seconds on his very first question & didn't bring a copy of the report when he attended. The judge subliminally scolded the officers for them not affording me an opportunity to legal counsel. It also appears as if the officer's credibility was heavily undermined at the hearing, as they all appeared to be stumbling with their words & very forgetful. Prior to this hearing the officers also split the charges, sending 2 charges to one jurisdiction & the DWI charge to another. The judge in one jurisdiction was dumbfounded at this, and moved all the charges to one court. I would have to imagine this gives the officers a bad appearance from the start?

    I'm not sure what else would be "off", if my license was given back & the judge subliminally talked down to the officers for what they did. I'm just stating what had occurred.

  6. #26
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    Sep 2005
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    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    Quote Quoting JoeyBloeySmoey
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    The judge subliminally scolded the officers for them not affording me an opportunity to legal counsel.
    Subliminal... You mean, the judge didn't say or do anything to scold the officers, but you were nonetheless somehow left with the impression that it happened?

  7. #27
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    Mar 2015
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    Rochester, NY
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    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    Subliminal in the sense that he did not directly attack their character or act unprofessionally, as some judges sometimes do (I have seen unprofessional judges who should be removed from their chair).

    The judge grilled them relentlessly on making a point that they never afforded me right to legal counsel. He repeated it over and over - it was nearly the only question he was asking them & when the officers got side-tracked on the other charges, the judge firmly redirected them back to the topic of them denying me counsel. I would say he was trying to make a point to the officers there. When all 3 officers were being cross examined by the judge, he finished by saying...

    "So from what I have gathered here, is that Mr. (my last name) was never afforded a right to legal counsel although he had asked for it on many occasions? Is that correct officers?"

    The officers responded "Yes, that's correct."

    Judge said "This case is dismissed, Mr. (my last name) you have full driving privileges back."

    The tone and unfolding of the questioning from the Judge was very much so done in a scolding sort of fashion. I guess that is an impression though.

  8. #28
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    Sep 2005
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    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    So we're back to talking about the ALJ in the driver's license hearing, a proceeding that has absolutely no relevance to your criminal case.

  9. #29
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    Mar 2015
    Location
    Rochester, NY
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    22

    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    It's somewhat relevant in my opinion, as they all occurred during the same instance. I would imagine my attorney will definitely be able to undermine their credibility with what they said at the hearing, in relation to their reports.

    I will keep this updated once I go to the pre-trial hearing. It will be fun to watch my attorney likely rip the cops a new one, like he did at the DMV. Hoping for a dismal of charges at pre-trial, but we will see how it goes.

  10. #30
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    Oct 2015
    Location
    California
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    169

    Default Re: No probable cause / No Miranda Rights after arrested & questioned

    Quote Quoting JoeyBloeySmoey
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    It's somewhat relevant in my opinion, as they all occurred during the same instance. I would imagine my attorney will definitely be able to undermine their credibility with what they said at the hearing, in relation to their reports.

    I will keep this updated once I go to the pre-trial hearing. It will be fun to watch my attorney likely rip the cops a new one, like he did at the DMV. Hoping for a dismal of charges at pre-trial, but we will see how it goes.
    Congratulations on dismissal! I trust the criminal charges will follow suit. It is disconcerting, though, that you have to pay a lawyer to uphold your constitutional rights. I hope it was worth it.

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