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The after-midnight call comes in on your home phone. Your best friend/client/brother-in-law has been arrested and is in police custody. The charge is DWI (Driving While Intoxicated), or maybe felony assault, or drug possession. What now? There are several things that a lawyer with little background in criminal law should do during this unexpected call. Your goals are: to prevent further incriminating statements; to obtain information that may be helpful either immediately or in later legal proceedings; to possibly advise the client arrested for DWI (he or she is now your client for a few minutes, and quite possibly much longer) on taking a chemical test; to see whether the client can be released; and to provide a calming influence in a stressful situation. First, get out a pad of paper. Write down the time when the phone call came in. Get the phone number that your prospective client is calling from, as well as the location. And keep the original contemporaneous notes of your conversation — they may prove valuable later on. Now, with all police officers you speak with, write down their names. Ask for the spelling. Get their shield number. Next, maintain the status quo. If your client may be questioned by the police, that should stop. Ask to speak with the police officer standing nearby on the other end of the line and tell her that you represent the defendant and that no further questioning will occur. You can’t prevent whatever foolishness has already happened, but you can stop further damage. It doesn’t matter whether a defendant’s statement is oral or written — an inculpatory statement is an inculpatory statement. The message of no further questioning should be told to both client and police officer. Tell the client to cooperate, but to give no further information. Police are entitled to “pedigree” information — name, rank, and serial number — but no more. Sign the fingerprint card, get your picture taken, but no questioning. Some clients will want to tell how the police didn’t give them Miranda warnings. Save that for another day, and a suppression hearing. Find out exactly what happened. Was there an accident? Was the client drinking? But at the same time you don’t want him or her to say any more than necessary, especially since officers may be listening. And your client may be tipsy. Peter Gerstenzang, author of “Handling the DWI Case in New York” (West Group), practices client control at such a time by using “yes or no” questioning. The client is directed to answer each question yes or no — in the form of a tight cross-examination. “Was anyone injured?” Yes or no. “Was it beer?” Yes or no. “Did you have more than five drinks?” Yes or no. Gerstenzang starts questioning on number of drinks with “one” and goes up. The person on the phone may be a relative or friend of the person arrested and in better shape to answer some of the questions. If the person arrested calls but someone else is at the precinct station with him or her, ask to speak to that other person. Usually, though, the police have separated the defendant from others. Gerstenzang points out that by the time the client and attorney speak, often the police have already obtained the information they wanted, and thus sometimes the police are the better source of information. In the case of a DWI arrest, you can ask what the arresting officer thinks the client is going to “blow” (on a Breathalyzer or other chemical test). In New York state, a blood alcohol count from such a test of .10 percent or over will result in a DWI charge. DWI ARREST AND ‘THE TEST’ The most important decision for a client arrested for DWI or the traffic offense of Driving With Ability Impaired is probably whether he or she should take the test. Many factors must be considered. DWI in New York state is a misdemeanor for the first offense but a felony if there was a prior DWI conviction within the last 10 years. Thus one consideration is whether such a prior conviction exists. The police will have a printout of the driver’s rap sheet and may know this better. The absence of a chemical test result makes it a tougher case for the prosecutor to prove at trial. But refusal can also affect plea bargaining: Some district attorney’s offices in such a case will only offer a “plea to the charge” (i.e., no bargaining down to a lesser charge). A driver’s license will be suspended pending prosecution if the test result is .10 percent or higher. But there is automatic license suspension for refusing to take the test. However, license suspension may be better than a criminal (felony) conviction that stays for the rest of one’s life. Gerstenzang’s thumbnail response is, “The answer is yes [to taking the test], unless (a) there is an accident and someone was seriously hurt or killed, or (b) the defendant has prior DWI convictions (versus DWAI convictions). If prior DWAI convictions, the greater consequence is going to be on the driver’s license.” Manhattan attorney Lawrence S. Goldman, president of the National Association of Criminal Defense Lawyers, advises, “When in doubt, don’t take the test.” According to New York State Bar Association Ethical Opinion # 80-522, it is permissible for an attorney to advise a client to refuse the test. BAIL AND RELEASE The last issue is whether your client can be released. Ask to speak with the arresting police officer. It’s extremely helpful, at least initially, to get along with this person. He or she may be just doing a job, and there’s a pretty fair chance that your client did something between rather inappropriate and grossly illegal. Making nice might result in the client getting a “desk appearance ticket” (the client is released but receives a court appearance date in the future) rather than being hauled in front of a judge this same night. According to Goldman, there are even situations “where you can talk the cop into un-arresting someone.” But, he advises, never let the client do so. The client says nothing further to the police. If you get nowhere with the arresting officer, go higher up. Find out if the police have conferred with an assistant district attorney, and whether a bail recommendation was made. Make your bail pitch — that the defendant is a first offender (if true), is employed, has strong roots in the community, etc. — to the prosecutor as well. But throughout, represent your client. “I understand, officer, but there will be no more questioning of my client.” If the client is to stay in custody (meaning going to jail), explain that he or she will soon be brought before a judge, who will consider release (likely with a misdemeanor charge and no history of bench warrants). If bail is set, a relative with extra cash or ATM access is a plus (no personal checks). And the advice about not speaking to the police applies equally to jail inmates — truly, the walls have ears. If you accept this midnight call, your responsibility is to protect that citizen on the other end of the line for now. Then have the client speak with a lawyer whose practice centers on criminal law. Questions to ask a client stopped for DWI: � Where are you? � Have you been arrested? � Where is your car? � Have you been drinking, yes or no? � Were you driving? � Was there an accident? � Any personal injury? � Have you ever been arrested for DWI in the past? � Convicted? In the last 10 years? Questions to ask a police officer: � Was anyone injured? � Will the defendant be issued an appearance ticket, or will bail be set? � What court and judge will the defendant appear before? When? � What is the court’s telephone number? � Have you spoken to an assistant District Attorney? Who? � Has the assistant district attorney made any bail recommendation? Gary Muldoon, in private law practice in Rochester, N.Y., is co-author of “Handling a Criminal Case in New York” (West Group).

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