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Know Your Rights

by Adrian Martinez Madrone

Attorney Adrian Madrone partnered with Law Professor Julie A. Helling’s acclaimed Internet Podcast Series Justice On Trial. These “Know Your Rights” segments focus on navigating the legal system and common questions that arise.

Know Your Rights - During a DUI Stop

Episode 1 - Adrian Martinez Madrone

Know Your Rights – During a DUI Stop

DUI. Driving Under the Influence. This one of the most common criminal charges filed in the court system. So what is involved in a DUI case? And what can you do to protect yourself if a police officer suspects that you have been driving under the influence?

The first and simplest thing about DUIs is that the easiest way to avoid them is to not drink and drive. At all. Period. Some people believe that they are safe to drive because they have only had one or two drinks. Some people will say, “I’m sure I’m under the legal limit, so I have nothing to worry about.” But what most people don’t know is that you can be charged with a DUI even if you are under the legal limit of .08. In Washington State (as in many states), you are considered “legally impaired” with a breath test of .08 or above. It does not matter at that point how you actually feel; you are “legally impaired.” But the law does not stop there. With a breath test below .08, you can still be charged with and convicted of a DUI if you show any sign of being “affected by” alcohol. That is why the only absolute way to avoid a DUI charge is to not drink and drive at all.
But what happens if you are driving, get pulled over, and a police officer suspects that you are under the influence? Here is some general information to consider. (Remember, this is general information, and should not be considered legal advice for any specific situation.)

The first thing that will draw an officer’s attention to a possible DUI is the odor of alcohol. Other common indicators that officers often look for are red/watery/bloodshot eyes, slurred speech, and difficulty retrieving documents (like license, registration, and proof of insurance). A driver will have no control over any of these physical indicators. Again, that is why the safest thing to do is not drive after drinking.

If an officer sees any of these signs of possible impairment, the officer will usually ask something like, “Have you had anything to drink tonight?” or “How much have you had to drink tonight?” At this point, the DUI investigation has begun. Now, if you have had anything at all to drink prior to driving, there is no perfect answer to this question. However, you are also not legally required to answer this question. One possible answer that a driver might give is, “With all due respect officer, I’m going to decline to answer that question.” Of course, as you might expect, this answer is going to set off further suspicion for the officer. But it also does not incriminate the driver. And the law always protects your right not to incriminate yourself.

Next, if the officer’s DUI suspicion continues, the most common thing that will happen is the officer will ask you to step out of the vehicle. The law allows the officer to make this request, and in general, a person must comply. Once the driver is out of the vehicle, the officer will usually ask the driver to perform what are known as “Field Sobriety Tests” or FSTs. There are three FSTs that are used throughout the United States (though there are many more additional tests that may be used). The three “Standardized Field Sobriety Tests” are the Horizontal Gaze Nystagmus test (or HGN), the Walk and Turn test, and the One-Leg Stand test. For the HGN test, the officer moves a stimulus (usually a finger or pen) back in forth in front of the person’s eyes. The person must follow the stimulus with their eyes only, and the officer will watch for involuntary jerking of the eyes, which can indicate impairment. The Walk and Turn test involves walking on a straight line; 9 steps forward, a precise turn, and 9 steps returning. The One Leg Stand test involves raising one leg, holding it out, and counting. These tests are difficult, and people will regularly make mistakes on them even when completely sober.

The one thing to know about these field sobriety tests is that they are “voluntary.” But an officer may not always make this clear. For example, an officer may say, “I’d like to have you step out of the car and take some voluntary field sobriety tests.” Or, “I’m going to need you to take these tests to show me you’re ok to drive.” In the end, it is the driver’s choice whether or not to take the Field Sobriety Tests. But as with answering questions, you are never under any obligation to incriminate yourself, and it is often safest to politely decline to take any voluntary tests.
The other thing that will often happen on the side of the road is that the officer may request you to take a Portable Breath Test. This is a small, handheld device that you blow into for an initial reading of your breath alcohol level. In Washington State, this PBT test is not admissible as evidence against you at a trial, but is used to give an officer probable cause to arrest you if the reading is above the legal limit. Just like field sobriety tests, submitting to the portable breath test is voluntary. It is generally recommended that you decline to take this test.
Now, whether or not you take the Field Sobriety Tests or the Portable Breath Test, the officer may decide to place you under arrest for DUI. If that happens, the officer will handcuff you, place you in a police car, and transport you to a police station or jail for further processing. At that point, you have a legal right to speak to an attorney. You may or may not have the ability to reach an attorney of your choosing. But many places will have an “on-call public defender” who is available 24 hours a day to answer questions. If you have been arrested, it is usually a good idea to ask to speak to an attorney to make sure you understand everything that is happening. Also, it is usually best to decline to answer any further questions or engage in conversation with the arresting officer.

Once the initial processing is done, the officer will indicate that you are now being asked to submit to a breath test. In Washington State, participation in this breath testing is considered pseudo-voluntary. In other words, you have the legal right to decline to take the breath test, but there are enhanced penalties that you will face due to this refusal. These can include extra jail time, higher fines, and longer license suspension. It is generally recommended that you do submit to this breath test at the jail or police station.

There are many parts to a DUI case, and today we have just covered the basics of a DUI stop and breath testing. For more information, consult with an attorney. And remember, the only way to avoid all of this is to not drive after drinking at all.

This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.

Know Your Rights - What to Do After Getting Arrested

Episode 2 - Adrian Martinez Madrone

Know Your Rights – What to Do After Getting Arrested

As you know, this segment of the podcast is called “Know Your Rights” and today we’re going to talk specifically about the legal rights you have if you are placed under arrest. These are known as the Miranda rights. When police read you these rights, they are giving you Miranda warnings. So what are these rights? When do police need to read them? And what happens if police don’t read you your rights?

To start, here is the wording of the Miranda rights statement. “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 provided for you.”

So first question: when do police need to read you these rights? Answer: when you are placed under arrest. In other words, police can talk to you and ask questions at any time without placing you under arrest. This could be during an investigation, or even just in a social contact. Police do not need to read you rights before these types of conversations. That being said, if police are investigating something or just making social conversation, you do not have to answer any questions and you are free to terminate the contact at any time. The only slight exception to this would be if you are pulled over when driving a car, police can ask to see your license, registration, and proof of insurance. They do not have to read your rights to ask for this information, and you are legally required to provide these things.

So the next step would be when police place you under arrest. Whether you agree with them or not, the police can make a determination to arrest you whenever they believe they have grounds to do so. You can challenge that arrest decision later in the process, but not at the moment the officer decides to make the arrest. At that point when police are placing you under arrest, they will often then read you your rights. Police must read your rights if they intend to talk to you, ask questions, or interrogate you any further once you are under arrest. If they don’t intend to talk to you, they do not have to read you rights.

The Miranda rights are there to advise you that now that you are under arrest, you have certain legal rights— again, those are the right to remain silent, to speak to an attorney, and to have an attorney appointed if you cannot afford one. At this point, if police want to keep talking with you, they will typically ask “Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” If you answer yes to both of those questions, police can continue to question you and can use whatever answers you give them as evidence later in court. If you tell them you understand your rights and wish to keep speaking without an attorney present, this is called “waiving” your rights.

So, what happens if police arrest you and then question you without reading your rights? The answer is: if that happens, a judge can “suppress” any statements you make to police. Suppressing a statement means that it can no longer be used as evidence against you and cannot be presented to a jury at a trial. So, even if a person has confessed to murder, rape, any other serious crime, if that confession took place after arrest and without the reading of Miranda warnings, that confession can be thrown out entirely.

The last question is what should you do if police read you your rights and then ask if you want to waive those rights. Now, every situation is different, but for the most part there is a lot of potential downside to waiving your rights, and there are usually a lot of reasons why you would want to “invoke” your rights—meaning ask that your rights be respected. If you invoke your rights, the police may go ahead and make the arrest. But at some point fairly soon, you should get the opportunity to talk to an attorney. Only that attorney, who will be acting in your interest, can properly advise whether it is a good idea to submit to further questioning by police. So, in almost every situation, it is safest to invoke your rights and speak to an attorney before doing anything else.

This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.

Know Your Rights - The Role of a Criminal Defense Attorney

Episode 3 - Adrian Martinez Madrone

Know Your Rights: The Role of Criminal Defense Attorneys

How can you defend those people? As a criminal defense attorney, this is a question I hear a lot. In my career I have defended people in cases ranging from low-level traffic offenses, to the most serious violent felonies—including rape, robbery, child abuse, domestic violence, and homicide.

While the job of a criminal defense attorney can be stressful at times, I personally have no qualms at all about vigorously defending my clients. Criminal defense attorneys play a vital role in ensuring that the criminal justice system operates as it is supposed to, and does so in a way that is fair and just.

The Job of a Criminal Defense Attorney
The job of the criminal defense attorney is one of the few jobs written into the United States Constitution. (This is in the Sixth Amendment, which says, “In all criminal prosecutions, the accused shall enjoy the right to…the assistance of counsel for his defense.”) The fact that this role is listed as a fundamental constitutional right conveys just how important this work is.

The reason that the role of a criminal defense attorney is so important is that every person accused of a crime faces a massive system laid out against them. And every criminal charge carries the possibility that the person accused is actually innocent. We hear frequently about people who have been imprisoned for years who are later proven to be completely innocent. The risk of sending an innocent person to jail or prison should be one of our paramount concerns as a society. And it is the role of the criminal defense attorney to fight every case as if their client is completely innocent, and to demand that government produce the evidence that it claims proves otherwise. Without attorneys filling that role and fighting that fight, more and more innocent people could be wrongfully convicted for things they did not do.

Beyond just defending innocent people (which happens occasionally but is certainly not always the case), I want to make sure that if the person has done something wrong and is convicted of a crime, that the punishment is appropriate to the defendant and the crime. It is the defense attorney who pushes back against punishment that is unfair or excessive. For example, an attorney defending someone charged with murder could very well agree that their client’s actions resulted in another person’s death. But the attorney could fight to show that the death was accidental or unintentional, and therefore should be treated as manslaughter rather than murder. Without someone pushing and fighting for an alternative perspective on a case, the system would be stacked unfairly against the defendant.
Beyond the big-picture importance of the role of the criminal defense attorney, the work also takes place on a close personal level. Criminal defense attorneys work closely with people whose lives are in great turmoil. When I meet with a client for the first time, I am typically meeting with someone who is scared, confused, and uncertain about their future. They may not know what they are charged with or why. They likely have no idea what options are available to them, or which option would be best to pursue. Criminal defense attorneys also regularly work with people who have significant issues with mental health and stability. Drug addiction, alcoholism, and anger issues are often regularly present with criminal defendants as well. The criminal defense attorney is the one who sits down with those clients and works with them to try to address the things that have brought them to this point in their lives. Outside of the criminal defense attorney, there is simply no one else in the system that fills that role.

Criminal defense attorneys really have to wear a number of hats in doing their job. Teaching, counseling, advocating, negotiating, mediating. These are all skills involved in being a criminal defense attorney. Sometimes the work can be tiring and challenging. It can require great patience and creativity. But without people doing this work the system would simply fail. So when people ask me how I can do this job, these are some of the things I tell them.
This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.

Know Your Rights - How to Find An Attorney for Your Case

Episode 4 - Adrian Martinez Madrone

Know Your Rights – How to Find An Attorney for Your Case

How to find an attorney. If you need legal representation, it is important to know how to find an attorney who meets your needs. There are a number of things to think about when starting your search.

The first important question to answer is: are you planning to pay the attorney out of your own pocket? If you are going to hire a private attorney, be aware that attorney fees can be structured in a few different ways. Some attorneys bill hourly for their time. This means the attorney will quote you an hourly rate, and usually take a lump sum deposit up front to work against. This is often referred to as a retainer. An attorney doing hourly billing may be able to estimate the amount of time they expect to take, but will likely also tell you that if things get more complicated, the bill could increase substantially. Hourly billing is common in business practice and in family law. Apart from hourly billing, some attorneys handle cases on a flat rate or flat fee basis. Flat rates are common in private criminal defense and for attorneys handling traffic tickets. A flat fee means you are given an up-front price quote based on the work to be done. Flat rate attorneys may require full payment of their fee up front, or they may allow payment plans. Finally, some attorneys take cases on a contingency fee. This is common in personal injury cases. A contingency fee is one where the attorney agrees to handle the case without payment up front, but instead gets paid by taking a percentage of any settlement or award that comes at the end of the case. So, hourly billing, flat fees, and contingency fees are common ways you can expect to pay the attorney you hire.

If you cannot afford to pay for an attorney, there are ways to get legal representation at low or no cost. First, if you are charged with a crime, you are legally entitled to a court-appointed attorney (also known as a public defender). You may also be entitled to a court-appointed attorney if your children are being removed from your care by Child Protective Services. For other types of legal cases, you are generally not entitled to court-appointed counsel. Some communities have civil legal aid groups to help with non-criminal issues like public benefits, housing, civil rights issues, or other needs. In Washington State, Columbia Legal Services and Northwest Justice Project are the two largest civil legal aid providers. One thing to be aware of though is that these types of civil legal aid organizations often do not have the resources to meet all the needs out there. So these organizations will not be able to take on every case. If a legal aid organization cannot help, you may be able to find an attorney or group who would be willing to represent you pro bono. (Pro bono is short for the Latin phrase Pro Bono Publico, meaning for the public good.) Some communities have organizations that help coordinate pro bono services (for example, in Whatcom County, Washington…a group called Law Advocates coordinates pro bono representation with local private attorneys). There may also be other organizations (like the American Civil Liberties Union) that do occasional pro bono representation in specific types of cases. In general, finding pro bono legal aid may require a fair amount of leg work, and it can get frustrating at times.

Finally, once you have figured out how you are going to find an attorney, you will need to actually need to do some work to find the right attorney for your needs. In some small communities, one single lawyer may handle many different kinds of cases, like family law, criminal defense, wills, etc. These attorneys are known as general practitioners. However, in larger towns and cities, attorneys will focus their work in more specialized practice areas. So if you live in a larger community, you first need to figure out what practice area would apply to your case. So, if you are charged with a crime, you are going to be looking for an attorney who focuses their practice on criminal defense. If you are getting divorced, you want an attorney who does family law. Doing research on the internet is now the most common way of finding an attorney in your area who works in the practice area you need. Attorney websites should tell you what types of cases they handle. There are also third-party websites that do attorney listings and sometimes even reviews from former clients. Avvo.com (spell) is one well-known attorney listing website.

Once you have a list of possible attorneys, you will want to call their offices and inquire about initial consultations. Some attorneys do free consultation appointments, while others charge for those meetings. Some attorneys will also get busy enough that they will not accept new clients for periods of time. You will want to contact a few attorney offices to get this information. Once you have an appointment with a prospective attorney, you will want to be prepared for your first meeting. Bring any paperwork or information about your case to the first appointment. In the initial consultation, the attorney will typically want to hear all the details about your situation, and may be able to give an initial assessment of the work they might do for you. You may also want to inquire about the attorney’s experience with similar types of cases, or other professional qualifications. All of this information will help you assess if this is the right attorney for you. Also, don’t forget to trust your instinct. Remember that you may be working closely with this attorney for some time, and you are going to be placing a great deal of trust in this person to handle your case properly. If you don’t feel a sense of connection and confidence in your first meeting, keep looking for an attorney who will be a better fit for you.

Finding the right attorney can take some work. But having a knowledgeable, hardworking attorney on your side can make a huge difference in your life. This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.

Know Your Rights - How Do You Represent Yourself in Court

Episode 5 - Adrian Martinez Madrone

Know Your Rights: Representing Yourself In Court

Not everyone who comes to court comes with an attorney by their side. When a person is charged with a crime, they are guaranteed the right to representation by a lawyer, and the court will appoint a lawyer to those people who cannot afford one on their own. However, for other types of cases — things like divorce or child custody, speeding tickets, housing issues, or small claims — there is no right to a court-appointed lawyer. This means that people involved in those types of cases frequently go to court alone, without legal representation. Representing yourself in court is called appearing pro se. While appearing pro se can be intimidating and challenging, there are ways to put your best foot forward. Here are some tips.

First, be aware of basic court etiquette. For starters, dress appropriately. It doesn’t have to be a full suit or gown, but dress in a way that shows you are taking things seriously—a button-up shirt, slacks and a tie, a modest business skirt, etc. When you arrive at court, be aware of any posted restrictions in the courtroom. For example, most courts do not allow beverages inside, and most expect you to remove hats or other non-religious headcoverings. If you have a phone, be sure to silence it before you go in. If you have small children, do your best to arrange childcare so you do not have to take the children to court, or at least have someone to help watch the children and take them outside if they get fidgety. Next, when the judge enters, stand up and wait to be seated until instructed. When you are called in front of the judge, refer to the judge as “Your Honor.” For example, if the judge says, “Ms. Jones, are you present in the courtroom?” Answer: “Yes, your honor.” This is more appropriate than Yes, sir or Yes, ma’am.

When you are presenting your case, be aware of the ground rules. Typically, the judge will indicate who gets to present their case first, and who goes second. If you are up second, wait your turn. Do not interrupt the other side. Even if they are saying things you disagree with…do not interrupt. Bring a notepad with you, and keep notes of the things you disagree with, so you can give your side of the issues when it is your turn. Also, keep calm. Even if the other side is saying things that are upsetting, the court expects you to maintain your composure. If you cannot control yourself, and you repeatedly interrupt or raise your voice, the judge has the authority to hold you in contempt. You could be fined, or even jailed on a finding of contempt. Do not let your court hearing get to this point!

Finally, although you are not expected to do the work of a trained attorney, do your best to prepare for your hearing in advance. That means researching the rules that apply and the options that might be available in court. Prepare in advance for what you are asking the court to do. In other words: know what you want. For example, if you go to court for a speeding ticket, you will generally have the options to contest, mitigate, or defer the ticket. Before you go to court, find out what these options mean, and decide in advance which one you will be asking for. Do not ask the judge for advice on which option is best for you. Finally, if you will be calling witnesses or presenting evidence, have those people or items with you and available once the hearing starts.

Going to court alone can be intimidating. But following some of these basic ground rules will help put you ahead of the game. This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.

Know Your Rights - How Are Jurors Selected

Episode 5 - Adrian Martinez Madrone

Know Your Rights: Being a Juror

When people see attorneys on tv and in the movies, they are usually seeing attorneys in trial. In reality, many attorneys (in fact, most attorneys) do their work without ever going to trial. The vast majority of legal work in the United States is done outside of the trial courtroom. However, some cases do still go to trial and you could be called as a potential juror for these trials. So, we’re going to talk about what the process of trial actually looks like. Trials are complex, and so we are going to split the discussion of trials into several segments. Today we will focus on preliminary matters and jury selection. In future segments, we will discuss opening statements, presentation of evidence, closing arguments, and verdicts.

Prior to a trial, the attorneys will have to decide whether to have the case heard by a jury, or by a judge alone. When a judge alone hears a trial, this is called a bench trial. There can be a number of strategic and legal reasons why attorneys may choose to have a bench trial rather than a jury trial. Sometimes the evidence may seem too complex for a jury (like a case involving lengthy financial records). In some other cases, like divorces and child custody disputes, the law may not allow for a trial by jury.

From here, let’s focus on cases that will be presented as jury trials. For a jury trial, things start out first with jury selection. After the attorneys and judge have gone over their preliminary matters, a jury is impaneled. Jury pools are made up of local community members, and the lists for jury pools are typically pulled from driver’s license records and voter registration. Community members who respond to their jury summons are typically gathered in an assembly room prior to being called into the courtroom. When the jury panel is brought into the courtroom, there are typically more panelists than will actually make it onto the jury. Depending on the type of case and the local court rules, juries can be anywhere from 6 to 12 people. So the group brought into the court room may be anywhere from a couple dozen to many more than that. Complex and high profile trials may even require hundreds of people in the initial jury pool.

Once the potential group of jurors is assembled, the jury selection process begins. Jury selection can vary greatly from place-to-place. Some courts will begin with a written questionnaire before questioning the potential jurors directly. When it comes to direct questioning, in some places, only the judge will question the potential jurors (often using questions proposed by the attorneys). Other places will allow the attorneys to question the potential jurors directly (this has become the more common method of jury questioning).

For the most part, the questioning of potential jurors will focus on a few things. First, the parties will want to determine if there are potential jurors who might be unable to sit on the jury due to medical issues, work conflicts, or personal scheduling. Some potential jurors may be excused on those grounds alone. Next, the parties will want to find out if there are any jurors who simply cannot be fair in this particular trial. For example, in a DUI trial, a potential juror may express that they lost a friend or family member to a drunk driver, and therefore simply cannot envision being fair and impartial for this type of case. If a potential juror expresses a firm belief that they cannot be fair and impartial, they will be excused for cause. There is no limit to the number of jurors that can be excused for cause. Finally, the parties will want to get an overall read of the remaining jurors, and what kinds of beliefs, feelings, and personalities they are bringing to their roles as jurors.

Once the questioning of the jurors has completed, the attorneys will review their notes and begin exercising what are called “peremptory challenges.” These are challenges to jurors that can be made without having to offer any specific justification. The attorneys are typically given a limited number of peremptory challenges that they can make to the remaining jurors. The only real limit to peremptory challenges is that they cannot be made for racially discriminatory reasons. If an attorney believes the other side has removed a juror for discriminatory reasons, they can raise this issue to the judge and require the attorney to state a non-discriminatory basis for exercising their challenge.

Eventually, the jury panel will be narrowed down to the six or twelve jurors who will be seated to hear the case. And the trial will be ready to begin.

On a future episode, we will discuss the process of trial after the jury has been seated. This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.