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DON’T PLEAD GUILTY TO DRIVING WHILE LICENSE REVOKED…At least not yet.

***Update***

In a Technical Corrections bill, the legislature modified the law so that charges filed before 12/1/15 will still be considered moving violations, and the revised law will only apply to offenses on or after 12/1/15.  Therefore, there is no benefit to delaying your plea until after 12/1/15.

***

In the near decade Mahlum Law Office has been representing people charged with Driving While License Revoked charges, or DWLR, we have seen just about every cause of revocation.  The single most common, and the most frustrating, relates to time and money.  For an example, let’s talk about our made-up defendant Pete:

Pete received a seatbelt ticket a few weeks ago after forgetting to put it on.  He has court on Friday.  Unfortunately, Pete doesn’t have the money to pay the ticket right now, and he also can’t afford an attorney.  Pete decides he will go to court himself to continue the case, but his boss calls at the last minute and tells him he has to work or he will be fired.  Pete misses his court date to save his job. 

A seatbelt ticket is an infraction, so Pete won’t get arrested, but DMV will be notified that he failed to appear in court.  A few weeks later, Pete receives a letter from DMV telling him his license will be suspended soon if he doesn’t resolve the seatbelt ticket.  Determined to handle things properly, Pete travels to court on his day off to handle the seatbelt ticket.  Unfortunately, when he gets there he is told he also has to pay an additional $200 fee for Failing to Appear.  Since Pete wasn’t aware, and only makes $8 an hour, he can’t afford the fee right now.  He has wasted his day off and still hasn’t resolved the ticket because of the additional $200. After a few more weeks, Pete’s license is revoked.  Pete still has to go to work to support his family, so he still has to drive.  One day, Pete goes through a traffic checkpoint, and receives a DWLR charge since his license is now revoked.  His court date is in a month.

Fortunately for Pete, he was able to work some overtime and save up a little money.  He decides to use the money to take care of his seatbelt ticket so he can drive legally again.  Pete heads to the courthouse and pays the seatbelt ticket, plus the $200 FTA fee.  He then goes to DMV and pays the $110 restoration fee and receives his license.  Pete, having learned his lesson, goes to court for the DWLR charge.  The district attorney graciously agrees to allow Pete to plead to a lesser charge, which Pete does. 

Since this is the first time through the system for Pete, he doesn’t know all the ramifications to his actions.  The judge orders him to pay court costs and a $25 fine and Pete thinks he is done.  Unfortunately for Pete, a week later he gets another letter from DMV.  Because he pled guilty to a moving violation (when the DWLR was reduced to the lesser charge) that occurred while his license was suspended, DMV has revoked his license for a full year.  If Pete continues to drive and gets caught, his next suspension will be for two years, and a third conviction would be a permanent revocation.  Pete is in a bit of a mess that is all too common in North Carolina.

 

We have talked about the Driving While License Revoked suspension cycle before.  This time around, we have better news.

On August 5, 2015, the Governor signed the North Carolina Drivers License Restoration Act.  The goal of the Act is to break the suspension cycle, and it is a great step towards accomplishing that goal.  Now, instead of two different DWLR offenses, one for impaired revocations and one for non-impaired revocations, there will be four different offenses.

  1. Driving While License Revoked (DWLR-non impaired), Class 3 Misdemeanor, NOT a moving violation
  2. Driving While License Revoked for Impaired Revocation (DWLR-impaired), Class 1 Misdemeanor, Moving Violation
  3. Driving Without Reclaiming License, Class 3 Misdemeanor, NOT a moving violation
  4. Driving after Failure to Appear (for an impaired driving offense), Class 1 Misdemeanor, Moving Violation

The significant change applies to DWLR and Driving Without Reclaiming License.  DWLR for a non-impaired revocation is the most common charge for those with revoked licenses.  It happens when a court date is missed, fines aren’t paid, or a variety of other reasons (much like Pete).  The “without reclaiming” offense applies specifically to those who were charged with an implied consent offense (usually DWI) and received a Civil Revocation.  At the end of the civil revocation (usually 30 days), the defendant pays a $100 fee and their license is returned.  If that $100 fine isn’t paid after 30 days, and they are caught driving, this is the charge they will receive.

Starting with cases resolved after December 1, 2015, these offenses will no longer be considered moving violations and will no longer trigger additional suspensions.  In the above example, Pete won’t face the additional one year suspension, and he will be able to keep his license that he worked to have restored.  In effect, this change will stop the suspension cycle that is keeping many North Carolinians from driving legally.

While this is a big help for many, the Driving after Failure to Appear is a new offense that can hurt some others.  If a driver is charged with Driving While Impaired and fails to appear in court, the driver hasn’t been convicted and is not revoked for an impaired offense, only for not appearing in court.  After December 1, that driver could be charged with Driving after Failure to Appear, a Class 1 misdemeanor.  Undoubtedly, this will catch a few revoked drivers off guard.

What does this mean for you? If you are revoked for a DWI or other impaired driving offense, not much.  However, if you have been caught in the suspension cycle, and don’t have an impaired offense conviction, the Restoration Act may be your ticket to breaking the cycle after December 1.  And, if you currently have a Driving While License Revoked charge, DON’T PLEAD GUILTY…Yet.

Stop for that bus!

The Wake County Public School System has announced new safety procedures for their school buses. Starting immediately, bus drivers will turn on their flashing lights and visually check for safety.  Once it is deemed safe, the driver is supposed to deploy the mechanical crossing bar prior to allowing students off the bus. The goal is to improve safety for children riding the bus, but will the delay in deploying the cross bar improve safety?

One job of the flashing lights and cross bar is to alert drivers that children will be getting on or off the bus and, therefore, they need to stop.  The roads in the Triangle have gotten more congested in recent years.  As our roads have gone from two lanes to four and even six lanes, it has gotten more difficult to observe all traffic.  We have spoken with drivers who could not reasonably see a school bus because of tractor trailers or delivery trucks.  Obviously, everyone wants to make sure all drivers are aware of the school bus and act accordingly. If the cross bar isn’t deployed immediately, are drivers still on notice that they need to stop?

According to the law, “When a school bus is displaying its mechanical stop signal OR flashing red lights…” (emphasis added) the drivers must stop.  Based on this, drivers must stop when they see either the red lights or the stop signal.  A driver must stop when they see the flashing lights, even if the cross bar is not deployed so Wake County’s policy doesn’t create a safety issue by allowing cars to pass before the stop bar is out.  However, does the policy create a safety issue by delaying one means of notice that the bus is stopping? Time will tell, but in the meantime, keep an eye out and stop for that bus!

The Elusive IE

There is a traffic infraction in North Carolina called Improper Equipment, or IE.  It can pertain to several different parts of your vehicle, including speedometers, but it isn’t charged by police very often.  It is a non-moving violation, which means it will not affect your driver’s license or insurance rates.  Because it is a non-moving violation, it is usually much better to be convicted of an Improper Equipment charge than a Speeding ticket.  Most District Attorney’s offices in North Carolina have policies where they will reduce speeding tickets to improper equipment charges in certain circumstances.  Until recently, Wake County’s District Attorney did not allow charges to be reduced to Improper Equipments.

Last week, Wake County District Attorney Lorrin Freeman announced that her office, in an attempt to make the court’s limited resources operate more efficiently, would start offering Improper Equipment pleas in certain circumstances.  If eligible, it is our opinion that an Improper Equipment is the best possible outcome, short of having a case dismissed.  While there are slightly higher fees associated with an IE, it essentially operates as a “freebie,” there are no insurance points or driver’s license points. It amounts to little more than a parking ticket.  Unless we have a strong indication that a speeding ticket can be dismissed, we will recommend an IE plea on all eligible speeding tickets.

Who is eligible for an Improper Equipment plea?

  • The driver does not have another IE conviction on his or her record in the last three years.
  • The driver does not have more than one other moving violation in three years, and no more than three violations in the last ten years.
  • The original charge is for no more than 20 miles per hour over the speed limit, and the total speed is less than 85 MPH.
  • Work Zone and School Zone tickets are not eligible.

In addition, per the new policy and its goal of making courts more efficient, any plea to Improper Equipment must be done by the third setting, and it must be done in Disposition Court (where the officer is not present).  Because of this, we generally will not get to speak to the charging officer prior to making a decision about pleading to an Improper Equipment.

What does all this mean for your speeding ticket? It is probably great news if you are eligible.  Give us a call and we are happy to discuss it with you.  If you are eligible for an Improper Equipment, we are probably going to recommend you go that route.  If you are not eligible, we will defend you to the best of our abilities and not enter a plea to any charge unless we are reasonably certain you would be convicted, as we currently do for all charges.

Regardless of eligibility, give Mahlum Law Office a call today to help you with your Wake County speeding ticket.

 

The Security Deposit Refund Game

Mahlum Law Office is pleased to announce we will be expanding our practice to include representing Tenants in disputes with their Landlord, specifically in regard to the return of any security deposit. In recent months we have noticed an increase in calls from people whose Landlord refused to return their security deposit or deducted expenses that violate the law. This seems to be a growing practice for some Landlords, and North Carolina Attorney General Roy Cooper has had to file suit against one Chapel Hill landlord.

By law, a landlord must keep your security deposit in a separate Trust Account with a bank*, and notify you within 30 days of the name and location of that bank. A landlord must provide you with a written accounting of any deductions made from the security deposit, and return the balance to you within 30 days of the end of the lease. If damages cannot be assessed in 30 days, they can notify you and have an additional 30 days. Only actual expenses for damages that were NOT due to normal wear and tear can be deducted. If your landlord doesn’t keep the deposit in a trust account or doesn’t provide an accounting of damages in 30 days, he or she forfeits the ability to keep any of the security deposit and it should be returned to you in full.

What can a Landlord deduct from your deposit? After you move out, it can be used to cover any unpaid rent, including future months and the cost of re-renting the premises if you move out early. It can also be used for any unpaid bills that become a lien against the property or for costs related to eviction or storing your property after eviction. Of course, the landlord can also use the security deposit to fix damages to the premises. This is where the most egregious landlord violations happen. A landlord cannot estimate the expense, they cannot withhold for things that are “normal wear and tear,” and they cannot keep more than the actual cost to fix the damage.

What is the solution? You can file suit in Small Claims Court. You do not need an attorney and most forms are provided. You will need to pay a filing fee, but you will receive a court date in front of a Magistrate. On that court date, you can present your case and your landlord will have an opportunity to state their case. The Magistrate will make a ruling, but that ruling can be appealed to District Court.

Alternatively, you can contact us. We will review your case and discuss your options with you. Oftentimes these cases can be resolved with a simple letter to the landlord that explains their obligation to you, the tenant, and the landlord will refund what you are owed right away. Because we know many of these cases can be resolved quickly once we contact your landlord, we are able to represent you for an affordable fee and help you recover the money you are due.

In some cases, we may suggest that we sue your landlord in court. If your landlord’s actions were particularly bad, we may be able to sue for Unfair and Deceptive Trade Practices and recover more than the amount you originally paid. These cases are a little more involved and don’t get resolved as quickly, but the benefit may outweigh the negatives.

Landlord’s refusal to return security deposits stems from the position they are in. They have your deposit and you hope they return it. They are in the power position and they know most tenants will give up rather than pursuing the deposit. We can help you level the playing field and get your security deposit back. Call Mahlum Law Office, we can help.

*There is an exception to this rule; a Landlord can obtain a special Bond through an insurance company that would cover any security deposit in lieu of using a Trust Account. The landlord must notify you of the name of the insurance company if a trust account is not used.

Driving While License Revoked

Prior to December 1, 2013, Driving While License Revoked (or DWLR) was a Class 1 Misdemeanor, punishable by up to 120 days in jail.  Last year, the law was changed.  Under the new law, most DWLR offenses are reduced to a Class 3 misdemeanor that is NOT punishable with jail time.  If the defendant has three or fewer prior convictions, the judge can only sentence them to pay court costs and a fine.  The powers that be did create a new DWLR crime that is a Class 1 Misdemeanor, punishable by jail time, if the defendant’s license “was originally revoked for an impaired driving revocation.” 

In reducing penalties, has the General Assembly gone soft on crime?  No.  Have they finally realized that DWLR disproportionately affects the poor and working class and decided to take the threat of jail time away? No.  In fact, quite the opposite.  But first, a little background on DWLR.

 

How Does Someone’s License Get Revoked?

Revocation can happen a number of ways.  Felony death by motor vehicle, DWI’s, and failing to pay child support all come to mind.  However, the typical DWLR client is revoked for financial reasons.   In eight years of representing DWLR defendants, I can say most of those client’s revocations can be traced back to either a missed court date or not being able to pay their court costs.  DMV has, and continues to have, the authority to suspend licenses for Failure to Appear or Failure to Comply.

 

Failing to Appear

Yes, everyone should go to court when ordered to do so.  However, it can be very difficult to get to downtown Raleigh without a license or a car.  It’s increasingly difficult when you work a job that doesn’t offer scheduling flexibility.  Add to that, if you aren’t willing to plead guilty to the charge, you will likely need to return to court several times.  Who faces this problem the most? Those who can’t afford to hire an attorney, those that work multiple low end jobs to try and get by, those that cannot afford an attorney and should have one appointed to them.

Failing to Comply

Court Costs are currently $188 for an infraction in North Carolina.  That is more than 25 hours, pretax, at a minimum wage job.  Again, those that can afford an attorney usually do not have a problem paying their Court Costs, but those on the lower end of the economic scale often struggle to cover the costs.

 

What happens when someone fails to appear or comply?

After a period of time, the Court will tack on additional fines and notify DMV.  DMV will send a letter saying your license will be revoked if you don’t resolve it in 60 days.  Again, the people that face this are typically those that couldn’t afford to hire an attorney, couldn’t afford to take off work, or couldn’t afford to pay their costs.  Hitting them with an extra fine (currently $200 for FTA, $50 for FTC) only makes it less likely they will be able to fix the issue.

 

“You have the right to an attorney, if you cannot afford one, one will be appointed to you”

The landmark case of Gideon v. Wainwright (1963) guarantees all defendants, regardless of their ability to pay, the right to an attorney.  However, that right is generally limited to times when the Defendant faces the threat of jail time.  By removing the threat of jail time for anyone who wasn’t originally revoked for an impaired driving revocation, the State no longer has to provide a Public Defender or Court Appointed Attorney to people charged with DWLR, unless they have more than three priors.

 

Now, back to why the law was changed.  The move was blatantly designed to save money on Indigent Defense Services (the court-appointed system) and it likely has reduced the workload of some Public Defender Offices.  At least in Wake County, the dockets are heavy with DWLRs.  I would imagine cases get resolved quicker once someone is told they aren’t going to be given a lawyer, but they don’t have to worry about going to jail.  However, in our experience, people were rarely sentenced to jail for a first, second or third DWLR.  The main punishment comes not from the courts, but from DMV.  A first conviction of DWLR will revoke your license for one year, a second for two years, and a third conviction will permanently suspend your privilege to drive.  Even if the charge is reduced, suspensions will come for a conviction of any moving violation committed while the license was revoked.

Without a change to DMV’s automatic suspensions, defendants who resolve a DWLR on their own are almost certainly going to find themselves suspended even longer.  When people are forced to decide between breaking the law driving to work, or getting fired for not showing, most will drive themselves.  This increases the chances they are caught, charged again, thrown into the system without an attorney, and revoked even longer.  Once they accumulate a few convictions, they will face jail time and be given an attorney.  At that point, the Defendant won’t be worried about their license, but will simply be trying to stay out of jail.  The dockets will still be clogged with DWLR’s because more of the population remain revoked and the courts will have to appoint attorneys.  The short-sightedness of the General Assembly may save a few dollars on lawyers initially, but will end up costing substantially more by denying indigent defendants the help that can keep them from a lifetime of motor vehicle charges.

 

If your license is currently revoked, or you have a Driving While Revoked charge, know that you won’t be given a court-appointed attorney and what happens if you plead guilty.  Contact us today.  We have the experience to help get you back on the road and keep your license.

Separation Agreement Options

If you are not happy with the terms of your marital separation agreement, you are not alone.  It may be that you rushed into signing the agreement, without carefully analyzing the terms, and missed an important sentence.  Or, maybe you misunderstood the meaning of a particular provision.  Regardless of whether you want to make a few simple changes to your separation agreement, or want to set aside the entire agreement, we have provided some basic information to help you understand your options.

If both you and your spouse want to make revisions to your current separation agreement, and can agree on the new terms, making these changes could be as simple as drafting and executing an addendum to the original agreement.  Make sure you pay attention to any special provisions dealing with modification of terms in the original agreement.  It is also very important to clearly indicate which issues are being modified, and which issues will remain unchanged.

If your spouse will not agree to modify a currently existing separation agreement, your next move will largely depend on your motivation for wanting the revision, as well as the type of issue involved.  For example, if you contend that you did not actually agree to the current agreement, or that the agreement is not signed by you, you may be able to challenge the validity of the agreement.  North Carolina has specific requirements that all marital separation agreements must comply with in order to be valid, and failure to comply with these requirements could be grounds for rescission of the agreement.  Also, certain issues, like child custody and child support, are often modifiable through the court system, regardless of the existence of a valid separation agreement.

What if your spouse refuses to comply with certain provisions in your separation agreement?  Most separation agreements operate like contracts, and can be enforced in much the same manner.  Depending on the language contained in your marital separation agreement, you may be entitled to institute an action in court to enforce the terms of your agreement.  Your separation agreement may provide for other types of dispute resolution for failure to comply with certain terms, such as mediation or arbitration proceedings.  One party’s failure to comply with terms in a separation agreement may also “open the door” to a potential modification.  It is wise to consult with an attorney to determine the best way to proceed, and to learn how each option will affect you.  If you have questions about your separation agreement, contact us at 919-833-6640.

Holiday Visitation

Are you concerned about seeing your children over the holidays?  Disputes over holiday child custody visitation are not uncommon, but can be quite unpleasant. The holidays can be stressful enough, without having to worry about seeing your children.  Here is some information to help you get through the season.  As always, feel free to contact Mahlum Law Office with your custody or visitation questions.

1.  Do I have grounds for an emergency custody order?

In North Carolina, there are typically only two scenarios under which a parent may have grounds for an emergency custody order:  1) if a child is in serious danger of bodily harm, or 2) a parent is trying to flee the state with the child for the purpose of evading the jurisdiction.  If an agreement for holiday visitation is not being followed, as frustrating as it is, this situation will still not constitute grounds for an emergency custody order.

2.  What if I am entitled to a specific holiday, but it is not my weekend?

Often times, parents have questions regarding the logistics of holiday visitation orders.  For example, it may be one parent’s regularly scheduled weekends, but that weekend may also be a holiday.  Typically, specific holiday provisions in custodial agreements override general visitation provisions.  So even if it is your weekend, you may not be entitled to your regular visitation if the agreement provides that the other parent is entitled to the holiday in question.

3.  We don’t have a court order.  Can I see my kids?

If there is no written agreement as to which parent is entitled to holiday visitation with the children, things can get very contentious.  Unfortunately, absent a written agreement or court order to the contrary, each parent has just as much right to visitation as the other.  This is why it is very important to iron out these possible conflicts well in advance of any holiday.

4. How will the courts divide holiday visitation?

There are many different ways of ensuring that both parents get meaningful time with the children over the holidays.  Parents may agree to rotate holidays each year.  For example, one parent will be entitled to the holiday in odd years, while the other parent will be entitled to visitation on the same holiday in even years.  Or, parents may decide to equally divide the holiday, taking into account the length of the holiday and school schedules.  This method is popular, as both parents are allowed to see the children during the same holiday.  There is no black and white formula for dividing holiday visitation, and schedules are best determined on a case by case basis, to ensure that each family’s individual needs are met.

Parental Kidnapping

The recent news story involving Joshua and Sharyn Hakken, a Florida couple accused of kidnapping their children and fleeing to Cuba, highlights the issue of parental kidnapping in the United States.  As divorce rates soar, and contentious child custody battles seem to be all around us, there are more and more instances where one parent flees with the children.  But what happens when the children are removed from North Carolina?  Or even the United States?  What protections are in place?

One safeguard in the United States is the Full Faith and Credit clause of the United States Code.  This provision states that every state will recognize and enforce a custody order from another state.  Practically speaking, this means that if a parent has been given custody by one state, the other parent cannot remove the child from that state, in the hopes of escaping the current custody order.  This provision applies not only in the fifty states, but also in the District of Columbia, Puerto Rico, and the United States Territories.

To address growing issues with international kidnapping, the U.S. Department of State enacted the Children’s Passport Issuance Alert Program.  Under this program, parents can register their children, and will be contacted by the State Department if another parent or guardian applies for a passport for the child.  This is particularly useful in custody disputes where international travel is a concern.  If a parent objects to the issuance of the passport after being notified by the authorities, the U.S. Passport Agencies, embassies, and consulates abroad will be alerted.

Another safeguard put in place to combat parental kidnapping was the creation of The Hague Convention.  The Hague Convention is an international treaty that was enacted in 1988 to specifically address international kidnapping.  Today, the Hague treaty is in place between the United States and 48 other countries.  Under the Hague Convention, any child that is wrongfully removed from the United States (or another participating country of residence) must be returned to that country.  Each participating country has established authorities to process the inquiries and returns.  While this law prevents a kidnapper from hiding under the safeguards of another country’s laws, the Hague Convention may be of little help when the location of the child is not known and the kidnapper is truly “on the run.”

If you are concerned about your child being removed from your state of residence, or feel that someone you know may try to circumvent the courts to prevent you from seeing your child, it is important that you consult with an experienced family law attorney.  In addition to the resources listed above, there are other steps, both in and out of court, which can be taken to minimize the risk to your child and help give you peace of mind.  Contact Mahlum Law Office to learn about all of your options, we can help.

Child Custody: How Does It Work?

Child custody disputes can be one of the most stressful issues surrounding a legal separation or divorce.  What do you need to know?  Where do you start?  A good first step is always to contact an experienced attorney to help you, but it’s also important to know about the process.

Once a custody case has been filed in court, the Judge will consider the evidence presented in court to decide what type of visitation schedule is in the child’s best interest.  All custody cases are heard in the District Courts of the State, before a Judge, not a jury.

There are two main types of child custody – “legal custody” and “physical custody.”  Legal custody refers to who will make major decisions for the child, such as healthcare and education.  Legal custody may be awarded to both parents jointly (“joint legal custody”), or may be awarded only to one parent (“sole legal custody”).  It is not required that a child live with the parent in order for that parent to have legal custody.

Physical custody refers to where the child actually lives.  The Judge may award one parent “sole physical custody” of the child.  More commonly, physical custody is awarded to both parents, so that both parents are said to share “joint physical custody.”  This does not necessarily mean that the child spends equal time with each parent.  The judge will consider all of the circumstances of the case to determine the actual visitation schedule.

In North Carolina, it is required that all parties involved in child custody cases attend a mediation session prior to a permanent custody trial.  At the mediation session, a neutral third-party mediator will meet with both parents in the hopes of creating a visitation schedule that everyone agrees on.  The mediator will not take sides, cannot give legal advice to either party, and cannot force anyone to enter into an Agreement.  If the parties are able to agree on a visitation schedule, the agreement will be put into writing as a “Parenting Agreement.”  This agreement will then be submitted to the Judge for approval, and will become an order of the Court.

If your case does not resolve itself in a settlement agreement, the next step is the custody trial.  At the trial, you must present evidence that supports your side of the case, and you must follow the local rules of court, the rules of evidence, and the rules of civil procedure.  Custody cases can be complicated by issues like domestic violence, allegations of child abuse, non-traditional work schedules, out of state residence, and military deployment.

It is important that you are prepared and organized as you present your case in court.  If you do not have a lawyer, you will still be required to comply with all court rules.  The Judge is not allowed to help you present your case.  After hearing all the evidence, the Judge will issue a custody ruling, which will address issues such as the regular visitation schedule, holiday schedules, and who will have the right to make decisions concerning the child.  Regardless of whether your case settles outside of court or goes to trial, stay focused on your goals and do not be afraid to seek advice.  Contact Mahlum Law Office today if you have any questions or concerns about your child custody case.  We can help.

“You have the right to remain silent…”

Everyone has heard Miranda before on TV or in a movie, if not in person.  Some of you can probably recite the rights.  But when do the police need to read Miranda Rights to someone?

There has been quite a bit of news recently about whether to advise Boston Bombing suspect Dzhokhar Tsarnaev of his rights, and it is a great opportunity to discuss the implications of Miranda Rights.  There are many public policy decisions and issues for Dzhokhar that don’t pertain to the average defendant, but it is a good example.  So, what happens if the police do not advise you of your rights?

Miranda rights are required before any custodial interrogation.  What is a custodial interrogation?  First, it is one where the defendant is in custody.  Many days can be spent in law school debating what “in custody” means, but as a general rule, if you are in handcuffs or in the back of a squad car, you are in custody.  What constitutes an interrogation?  If the officer asks you any questions, it is considered an interrogation (though there are exceptions for basic questions like “what is your name”).

So what happens if you are questioned after you are arrested, but no one reads you your rights? Your case does not automatically get dismissed.  The FBI and Federal Prosecutors would not have asked Dzhokhar questions without reading him his rights if it meant the criminal case would get thrown out.  Prosecutors likely think they have enough evidence to convict him, even if they can’t use what he says during the interrogation.

If you are questioned without being read your rights, your responses to those questions probably can’t be used at trial.  At Mahlum Law Office, we would file a Motion to Suppress and argue to the judge that your rights were violated, and that anything you said during that interrogation shouldn’t be used against you.  If the Judge ruled in our favor, the DA couldn’t use any of the suppressed statements against you.  At that point, whether the DA chose to proceed or dismiss the case would depend on the strength of the other evidence.  If the police witnessed the crime, odds are the DA will still prosecute the charges.  However, if you confessed during a custodial interrogation, and there isn’t any other evidence, it might just be your lucky day.