On June 1, 2010, the Court issued an opinion in Berghuis v. Thompkins.   New York Times article.

This case did not alter the Miranda requirement that a suspect be told he or she has the right to remain silent.   However, the Court held that statements made by a defendant who received such warning and who did not expressly waive or invoke his or her rights, but who only spoke after remaining silent through hours of interrogations, may be admissible.

In this case, Mr. Thompkins was read his Miranda rights but refused to sign a form acknowledging that he understood them.   He then remained silent through three hours of questioning.   Then, Mr. Thompkins did eventually give a one word answer “yes” to a crucial question:  “Do you pray to God to forgive you for shooting that boy down?”   His affirmative answer to this question was used against him at trial and he appealed.  The U.S. Supreme Court held that the statement was admissible and that the burden would be placed on the suspect to invoke his rights.   Essentially, the Court ruled that a suspect who received the Miranda warnings waives the right to remain silent by making an uncoerced statement to the police.   New U.S. Supreme Court Justice Sotomayor dissented and pointed out the paradox of requiring a suspect to expressly invoke their Miranda right to remain silent by speaking their desire to do so in order to cut off questioning.

The Thompkins case follows two additional decisions in February of 2010 narrowing Miranda protections, Maryland v. Shatzer and Florida v. Powell.   New York Times article.

In the Shatzer case, the Court held that police can take a second run at questioning a suspect who has invoked his Miranda rights, but they must wait until 14 days after the suspect has been released from custody.   In the Powell case, the Court ruled that police may vary the language of the the Miranda warnings and that a warning that a suspect has the right to remain silent and the right to”talk to a lawyer before answering any of our questions” was sufficient (as opposed to the standard: “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 speak to an attorney.  If you cannot afford an attorney, one will be appointed to you.  Do you understand these rights as they have been read to you.”)  Each of these opinions may be found in their entirety at the U.S. Supreme Court website.

It is important for a suspect to be aware that they still have the right to remain silent and to consult with an attorney at all times.   But a suspect should expressly state their desire to invoke such rights, not vary from such express statement or behavior, and consult with an attorney as soon as possible.

Michael Gardner and Dana Littlefield, San Diego Union Tribune 03/29/2010.

Read Article:   San Diego Union Tribune

If you have received a citation for DUI in Humboldt County, it is important to contact a DUI lawyer as soon as possible.

DUI Probation License Suspension.

A change in the driving under the influence (DUI) law creates a new authority for DMV to administratively suspend the driver’s license for one year under a zero tolerance standard.  The new law authorizes law enforcement to issue a notice of suspension and impound the vehicle of a person who is driving with a blood-alcohol concentration (BAC) of 0.01 percent or greater while on court-ordered post-DUI probation.

Ignition Interlock Devices (IID)

This new law reduces the BAC from .20 percent to .15 percent or more at the time of arrest to trigger a requirement for the court to give heightened consideration for the installation of an IID for a first-time offender convicted of DUI of an alcoholic beverage.

Effective July 2009, this new law transfers authority for the administration of mandatory IID programs from the state courts to the Department of Motor Vehicles (DMV).   This law also authorizes the DMV to require any driver convicted of driving with a suspended license due to a prior conviction for DUI to install an IID in any vehicle that the offender owns or operates.

Text Messaging

New law makes it an infraction to write, send, or read text-based communication on an electronic wireless communication device, such as a cell phone, while driving.

The DMV administrative license suspension is an entirely separate proceeding from a criminal prosecution.   A DMV administrative suspension and a criminal charge in state court can each have license consequences.  Therefore, it is important that you separately address the DMV administrative suspension, which has the short ten (10) day deadline by which you may request a hearing to challenge the suspension.  An attorney may assist you with a hearing request to DMV to challenge the suspension and with the hearing itself.   According to the DMV:

The DMV hearing is an administrative proceeding regarding your driving privilege and the circumstances        surrounding the arrest, not whether you are innocent or guilty of a criminal act.   Only the following issues will be discussed:

If you took a blood or breath or (if applicable) a urine test:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 , 23152 , or 23153?

Were you placed under lawful arrest?

Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?

If you refused or failed to complete a blood, breath test, or (if applicable) a urine test:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 , 23152 , or, 23153 ?

Were you placed under lawful arrest?

Were you told that if you refused to submit to or failed to complete a test of your blood, breath, or (when applicable) urine, your driving privilege would be suspended for one year or revoked for two or three years?

Did you refuse to submit to or failed to complete a blood or breath test, or (if applicable) a urine test after being requested to do so by a peace officer?

Additional information on the subject of administrative hearings and criminal DUI charges can be found here.

The DMV also makes available on its website a useful blood alcohol concentration chart.

The Janssen Law Firm can assist you should you require a DUI lawyer for a DMV administrative hearing or DUI criminal charge in Humboldt County.