Saturday, June 12, 2010

The Unexpected Consequences of Minor Offenses

I often get phone calls from people who have been arrested or ticketed for relatively minor crimes like underage possession of alcohol, public urination, open container, and false ID.  Many of them are quick to tell me they probably won’t hire a criminal defense attorney, but they want to pick my brain anyway.   I’m not one to waste my time giving out free advice over the phone to someone who probably doesn’t have any intention of actually retaining me, but there is something I always point out to these people before I give them the come-in-for-a-consultation-or-get-off-the-phone-and-stop-wasting-my-time ultimatum: there are going to be unexpected consequences of your guilty plea.

What most people don’t understand about these magistrate-level offenses is that they have collateral consequences outside the fines and/or jail time contemplated by the statute defining the crime.  For example, the statutory penalty for underage possession of alcohol, S.C. Code Ann. § 63-19-2440(A), is a $100-$200 fine, or up to 30 days in jail, or both.  Not so bad, right (you're probably not going to get jail time, and if you do, the judge will probably make it a suspended sentence)?  However, the following subsection (B) notes that anyone convicted under that statute must also attend a DAODAS-approved alcohol and drug class, the cost of which shall not exceed $150.  Maybe a little bit of a hassle, but not too terrible.  But if you dig deeper and look at S.C. Code Ann. § 56-1-746, you’ll find that a person convicted of underage possession of alcohol will also have his driver’s license suspended for 120 days for a first offense, and for 1 year for a second or subsequent offense.  Those suspensions aren’t negotiable – they’re administrative procedures through the DMV, and the judge has no say in the matter.

When I explain these consequences to the potential client, I can usually hear the surprise through the phone.  Most have no clue they stand to lose their driver’s license for 4 months, or would be required to take and pay for a alcohol and drug class.  And with good reason they shouldn’t.  The question I’ve always had is why does the State suspend the driver’s licenses of people who are convicted of offenses which have nothing to do with driving?  I agree that it makes logical sense for the State to suspend the license of someone convicted of DUI in South Carolina.  But crimes like underage possession of alcohol, false ID, and controlled substance possession have no logical connection or nexus to driving.

Interestingly, because the license suspension provisions are considered administrative rather than criminal, there are few meaningful challenges that South Carolina criminal defense attorneys can make against them.  That’s why I counsel potential clients to look beyond the “direct” consequences and penalties of their magistrate-level offenses and make sure to fully understand the “indirect” or collateral consequences they’ll face upon conviction.  Often, the potential loss of a driver’s license is enough for a defendant to decide to hire an attorney to explore not only the merits of the charge, but also alternative programs such as PTI, AEP, or deferred prosecution.

Tuesday, June 1, 2010

Supreme Court: Silence Is Not Sufficient to Invoke Miranda

If you want to invoke your right to remain silent, you better first say so.

I posted a comment recently about Berghuis v. Thompkins, which was then pending argument in the Supreme Court.  Today the Court released its opinion in the case.

[I won't get into the facts of the case here.  Check the above link to my previous post which outlines the factual and procedural issues.]

In a predictable 5-4 split, the Court found that mere silence is not enough to invoke your right to . . . remain silent.  Justice Kennedy wrote the majority opinion, finding "there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel . . . ."  Essentially, the Court adopts the Davis standard for right-to-remain-silent cases, which means that a suspect must invoke the right "unambiguously."  Well, what about the fact that we're talking about the right to remain silent?  While it is certainly understandable that the Court likes bright-line tests when dealing with Miranda and the Fourth Amendment, it seems quite odd to suggest that it is ambiguous for a suspect to invoke the right to remain silent by doing exactly what the right allows -- that is, remain silent.

Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Stevens.  Interestingly, the Justice Sotomayor wrote that she would not reach the issue of whether Thompkins had indeed invoked his right to remain silent.  Instead, she wrote, she would have disposed of the case based on a finding that the State could not demonstrate that Thompkins had waived his right initially.  [This case actually involves 2 separate Miranda issues -- invocation and waiver.  I will write about the waiver issue separately.]  But, she continued, she could not agree "with the Court's much broader ruling that a suspect must clearly invoke his right to remain silent by speaking."  To me, this is a very succinct and accurate way of posing the issue of Miranda invocation in this case.

It looks like the Court has decided that, to turn a baseball phrase, the tie goes to the pitcher.  The default presumption is now that a suspect has not invoked his right to remain silent if he decides to do just that.  Instead, he must actually say something and clearly invoke the right.

This new rule will make South Carolina criminal defense attorneys (and those nationwide) take a more careful look at their clients' statements to police and determine whether a suppression hearing is appropriate, as well as gauge the likelihood of success on the suppression motion.  I guess now it's not good practice to tell your clients to just keep their mouth shut if they're arrested -- they need to say something first.