Very often in a criminal matter, when a person is arraigned before a judge, the judge will issue what is called an “Order of Protection” or sometimes called a “Restraining Order.”

Well what is an order of protection, you ask? First, there are actually four types of order of protection that are normally issued by the Courts. Essentially, there are two different types, each with their own acronyms or nicknames, and they can be 1) temporary or 2) final, depending on the stage of the proceedings.

First, you have what is called a Limited Order of Protection, a/k/a “LOP” or “Refrain From” order. This order from the Court says that you can have contact with the protected party, but you can’t act bad against the protected party. Normally, the order says something like, “Refrain from assaulting, harassing, choking, stalking, etc… the protected party. Second, there is a Full Order of Protection, which means stay away from the person, stay away from their home, stay away from their school, place of business… Do not call, text, Facebook, Snap, Kik… you get the idea.

A question I often get asked is why is there an order of protection if my boyfriend, girlfriend, husband, or whoever doesn’t want the order of protection. The answer is that it is the judge’s decision and he doesn’t always agree with what the “victim” in a case wants. And that brings us to the next point that many people do not understand. Violating an order of protection is not a crime against the protected entity; rather, it is a crime against the Court and a judge. This is why the District Attorney often does not care about the victim’s input when it comes to breaking an order of protection.

When you violate an order of protection, you can be charged with Criminal Contempt in the Second Degree or Criminal Contempt in the First Degree. Criminal Contempt in the Second Degree is a class A misdemeanor, punishable by up to a year in county jail, or up to 3 years of probation, or a combination of both. Criminal Contempt in the First Degree is punishable by up to four years in prison.

So what do you do if there is an order of protection…? Follow it! Do not think for one second that just one little phone call won’t make a difference. It will. Do not think that by just driving by his/her house, no one will notice. They will. Don’t put yourself in a position to make your criminal case harder to win.

I’ve had countless cases where the matter was set to resolve in favor of the defendant and then a criminal contempt throws a wrench into the plans. Remember, the police and prosecutor often do not need a cooperative “victim” to prosecute a criminal contempt because the only evidence they need is a single witness who saw the order being violated and often this witness is a police officer.

So, my common sense narrative to anyone who has an order of protection placed against them is to sit down and actually read the piece of paper. Word for word. I realized that the Judge recites the rules of the order in Court during the criminal arraignment or proceedings, but most defendants are in some form of shock during these proceedings and don’t fully understand the instructions or consequences.

As usual, these posts are not a substitute for legal advice. For that, give the Kokosa Law Firm a call at (518) 907-4694.

So with that, I implore the justice system to recognize the effect of mental illness on criminal defendants. Often there are solutions that don’t require confining someone and stripping them of their freedom. I can say, however, I am very thankful to the State for investing in the officer training to recognize the mental illness issue and I will candidly admit that I’ve met several investigators during this same time frame who have ended an investigation because they recognized the psychological issues, were able to articulate their facts and training to prosecutors, and come to a reasonable conclusion before an investigation turned into a full blown prosecution.

As always, these blog posts are for discussion only and do not constitute legal advice to any specific person or any specific situation. If you want that, you have to contact The Kokosa Law Firm, P.C. at (518) 907-4694 or mkokosa@albanylawgroup.com to set up an appointment for a free consultation. Also, if you have any similar stories of how mental illness has affected a case for someone you know, please let me know how the case worked out. I’m always trying to learn more and often the stories relayed to me give me perspective on how to work with similar individuals.

Lately I’ve had a few clients who are dealing with the NY DMV 3 in 25 rule. If you’ve never heard of this rule, let me give you a quick run-down. If you are convicted of a DWI or DWAI offense for the first time, the suspension or revocation period is pretty well spelled out in statute. If it is a DWAI, you generally receive a 90 day suspension and if it is a DWI you generally get a 6 month revocation. Both of these convictions allow you to take the DMV’s impaired driver program and apply for a conditional license.

That being said, in 2012, the DMV enacted new regulations that allowed the DMV to look back over your driving history for the previous 25 years. What are they looking for? These: Convictions for DWI, DWAI, DWAI-Drugs, Zero Tolerance violations, Breath Test Refusals, or generally any violation of Vehicle and Traffic Law sections 1192 or 1194. For the sake of brevity, let’s just call these “Alcohol Convictions.”

Here’s where the new rules changed everything. If you receive a second alcohol conviction in the past 25 years, you will have to serve the entire revocation period before you can apply for any licensing privileges, even if you take the impaired driver program. Okay, that doesn’t sound too bad. Six months without a license? Let me now show you what I call the career ender.

Let’s say you received a DWAI in 1993. You were young, dumb, and 21 years old. I certainly was when I was 21. Then, in 2002, when you were out celebrating your birthday, you got stopped by the police and blew a .08, right on the nose. The prosecutor knows she will have a tough time with the case, so you get a reduction to DWAI. Now, it’s 2016 and you’re in your mid 40’s. A bit wiser and you don’t put up with this police-state crap. You get pulled over after having a glass of wine at dinner and the police officer stops you because you were going 55 in a 54. If you’ve read as many DWI supporting depositions as I have as both a prosecutor and a defense attorney, you know that sobriety tests are designed for failure. I’ve actually had officers in my office before attempting to show me how they conducted the sobriety tests and even they couldn’t perform them without failing. In any event, you hit 2 of the 8 clues on the walk and turn test and 2 clues on the one leg stand test. Never mind that you have a bulging disk… the officer doesn’t care. So, you tell him to pound sand and refuse the breath test. Even if you were found not guilty of the DWI or it was dismissed, the DMV categorized you refusal as a third event in 25 years. So what does this mean?

3 in 25

3 or 4 alcohol events in 25 years means your license application following any revocation period will be denied for at least 5 years. No conditional license until 5 years has passed. At that point, you will be required to install an ignition interlock for likely another 5 years. At a cost of $150 for installation and about $100 per month for monitoring by the State, you just gave the State another $6000. (For a further discussion on NY’s use of the DMV to balance the State budget, see my other blog post at:  http://www.albanylawgroup.com/the-upstate-new-york-empire-of-traffic-tickets/ )

So, you are in the prime of your career. You are 44 years old and have been in trouble twice in the past 2 decades. Only, you can’t drive. You can’t make it to work, because we live in upstate New York and the NYC MTA has yet to grace us with the presence of a subway or a decent bus system. Now you don’t work. So you made 2 bad decisions and fought the man once in 25 years, and you now have to be introduced to the welfare rolls.

Don’t get me wrong, I do not support drinking and driving. In fact, I support complete abstinence when operating a motor vehicle. Alcohol kills people when they drink and drive. However, I do not necessarily agree with draconian penalties that were not passed as laws, but rather were rules directed by the Department of Motor Vehicles at the behest of our governor. What is brutal is that I have clients who cannot even get to alcohol treatment because the sheer power that the DMV (read: Governor) exerts over the driving privileges in New York.

So what happens if you have 5 alcohol related events in 25 year? That’s a permanent denial of your license application in New York. Honestly, I don’t know how I feel about this one. On one end, part of me believes that if you made an alcohol related mistake on average once every five years, then you should be comfortable not driving. The other part of me says, if your government wants this rule, then let them pass it through the legislature and vote on it. This is a democracy, right? No, New York has not been a democracy in a long time.

To close, I want to share with you what I consider the worst case scenario when it comes to the 3 in 25 rule. I know a guy who took a DWAI when he was 16 years old and it was 14 years before these regulations were ever dreamed up by our State’s commander-in-chief. Had he pleaded guilty to DWI as he was charged and had the case sealed as a youthful offender adjudication, by law it would not have counted against his 3 in 25 because it would have been an adjudication and not a conviction. Instead, his attorney probably did the right thing since they didn’t know what was coming down the pike in a decade and a half and got the charge reduced to a violation. In any event, he had some issues with alcohol in his 30’s and ended up with 2 DWI convictions within 4 years. Had those 2 DWI convictions stood on their own, he would have his license right now. He’s done everything the State and his doctor has asked of him. He went to rehab, quit drinking, got healthy. He’s got a child, bills, and every other adult responsibility. What he doesn’t have is a job. Doesn’t matter that he’s been clean for 4 years, no employer will keep him on because he doesn’t have reliable transportation. In New York City, where all of these “regulations” are thought up by the governor’s dream team, you can get by without a license. Upstate, the long forgotten appendage of New York State, you may as well use your last few dollars to take a taxi to the welfare office.

As always, my blogs are for discussion purposes only and are not intended to be legal advice for any specific person. However, if you find yourself charged with a DWI, please realize that the consequences may reach much further than the edges of the courtroom. If you are charged, please feel welcome to call the Kokosa Law Firm, P.C. at (518) 907-4694. If it is after hours or the weekend, we try to answer calls24 hours a day. You are always welcome to call me or text me at (518) 466-3062 as well.

Around the State, many counties have a standard DWI policy that dictates the terms of a plea bargain for a person charged with DWI. In most counties it is pretty straightforward and makes sense. Generally, for a first time offender, the charge for the defendant gets knocked down one level and depending on the blood alcohol content (BAC), perhaps an alcohol evaluation.

Not so in Albany County.

Under the guise of leading the State in addressing addiction related crimes, Albany County has the strictest and perhaps most confusing DWI reduction policy in the State. You may ask why is it confusing? Because unless your BAC was .14% or lower, there are no real reductions. You plead guilty to a misdemeanor DWI or Aggravated DWI and you take the sentence they offer you. Essentially, the District Attorney has usurped the Court and become the prosecutor and the sentencing judge.

Here are some examples that may happen and the results as per their written DWI policy:

Allegation:                   Rolled through a stop sign and arrested for first DWI with a BAC of .15%. No accident, no injuries.

Policy Result:              First, get an alcohol evaluation (at a cost of $150-$300) then you may plead guilty to DWI, continue alcohol treatment if recommended by said evaluation, attend the Victim Impact Panel (VIP), take the 7 week impaired driver program (also known as the drinking driver program) through the DMV, fine of $300-$500, mandatory surcharge of $400, and lastly, waive your right to appeal.

The last part is actually the scariest part of all of this. In this scenario, the D.A. has essentially traded you a dismissal of the Stop Sign ticket for you waiving a constitutional right. This is economic duress at its finest as most people in this same position have already spent so much money that the fine and surcharge on the Stop Sign ticket is their breaking point.

Now, this is where it starts to get interesting. Take a look at these next two:

Allegation:                   Speeding 41 in a 35 and arrested for first DWI with a BAC of .28%. No accident, no injuries.

Policy result:                Plead to Aggravated DWI, include everything from above and add in 3 years of probation and a $1000 fine.

Allegation:                   Absolutely wrecked, bombed, wasted, whatever you want to call it. Speeding ticket, tint ticket, failure to stay in lane, blow through a red light. Refused the breath test because you know you were breathing fire.

Policy result:                Even through you would have blown a .28%, here the result is the same as for the person who had the .15%. No probation. What does this say? It says that if you are not too drunk you should blow. But, if you are bombed, then you will probably do better by refusing the breath test.

I am all for safer roads and it’s a good day when no one calls needing a DWI attorney. That being said, most attorneys like when rules and policies make sense. There’s nothing harder to do than to explain to a client who received a DWI in Guilderland or Cohoes or Menands or Albany why someone who has arguably more criminal culpability gets a better deal by not cooperating with the police.

I’ve heard it from plenty of prosecutors in the area; this policy handcuffs them from actually looking at a DWI case objectively and often leads to one of two outcomes. 1) An acquittal because the policy doesn’t actually look at the merits of the case, or 2) a person entering probation for three years who simply doesn’t need probation and becomes a burden to the taxpayers. What’s even scarier is that the prosecutors are not permitted to exercise their own personal and professional judgement, and if they diverge from the policy without prior and explicit permission, they get fired. I’m not exactly sure where this racks up in terms of our State’s ethical rules, but eventually some young attorney is going to push a case to trial that has absolutely no merits going to trial, out of fear of being fired. Do you think the D.A. will stand up for that attorney when the ethical committee is questioning them regarding a malicious prosecution?

I too was once a prosecutor. I’ve handled 1,000s of cases. However, when I was learning this trade, certain “policies” were never mandated. In fact, I was taught that a one size fits all policy does more to eviscerate justice than it does to promote it. My job back then was to look at each case; the facts of each case and make a determination based on those. I was taught that if the case was exceptionally serious, then to speak with a more experience prosecutor who would help you find the right offer if there was one to give.

Over the years, I’ve gotten a little older, a little wiser, and a touch greyer. But I’ve taken these tools with me everywhere I’ve gone. If anything, it taught me to be patient and to know every knowable fact in a case. This is where success for our clients at the Kokosa Law Firm comes from. It doesn’t come from exacting policies. It is a combination of always paying attention, knowing your facts, and knowing when to talk and when to be quiet.

As always, this blog is for discussion purposes only. This is not legal advice. This is merely observations of the state of our union by a criminal defense attorney in Albany County and who practices in Rensselaer County, Saratoga County, Schenectady County, and beyond. If you need a DWI lawyer and would like to talk about the facts of your specific case, please always feel welcome to contact us at 518-907-4694 or mkokosa@albanylawgroup.com .

WHY CONSENTING TO A SEARCH OF YOUR CAR WILL NOT HELP YOU

You can tell the officer whichever way you prefer… my favorite is the Bill Lumberg. “I’m gonna have to go ahead and say you cannot search my car.” Other very acceptable responses are, “No, no you cannot” or just simply, “No.”

Sometimes they may try guilt trip on you, with the ol’ “If you’ve got nothing to hide, then why not consent.” Sometimes the police officer will use the forceful tactic of telling you that if you say no, he’s just going to bring out the dog. Sometimes the officer will use a double negative question (which they aren’t supposed to do) to trick you in to consenting. I’m sure you’ve heard this line before… “You don’t mind if I search your car real quick, do you?” If you say “no” are you saying you don’t mind. If you say “yes” are you consenting? Regardless, here are some methods behind the madness of refusing a car search. And yes, as always, this is not particular legal advice for a particular person. This is just for conversations sake. And if you do end up arrested, please always feel welcome to call the Kokosa Law Firm 24/7 at 518-907-4694 (or text us at 518-466-3062). In any event, here we go.

Why not consent to a search?

1. Because this is America, dammit, and not gestapo Germany. You have a right to be free from unreasonable searches and seizures and the sooner you give up that right the closer we are to a totalitarian State where the government controls your every movement. Yes, that was a bit over the top, but if you give up one right, why not give up another… then another. You get the picture.

2. This is a lose-lose game for you. You may think you know every nook and cranny of your car, but I’m going to venture that at some point in the last year someone else has driven your car. I’ve had this exact case come to me where a young man was adamant that the drugs found in the car after he consented to a search weren’t his. He even suggested that the police officer planted them. After a bit of investigation, it turns out the drugs were prescription drugs were dropped by his brother who actually had a written script for them. That case turned out well for the young man, but what if it wasn’t his brother…? what if it was the mechanic? Do you trust him to come forward and take responsibility?

Sadly, this can go even further. Right now there are more than 300 cases in Texas where the defendant pleaded guilty to drug charges after consenting to searches where the officer found “drugs” but the drugs turned out to be everything from candy crumbs to food seasonings. Those people pleaded guilty just to get out of jail, not because they did what they were accused of. If you are in that spot, the Kokosa Law Firm is here to help you, not coax you into a plea. If we have reason to believe the evidence is weak, we will push as much as we need to get you to the right place in your case.

3. If you think that giving your consent means that the officer will just assume your innocent and move on, you are sorely mistaken. This goes the same if you think you’ll get out of that speeding ticket. If you consent, they will search. If they pulled you over, you’re probably getting a ticket. While years ago, the courtesy warning was a mainstay of the police officer’s utility belt, these days the officers are being pushed to write as many tickets as they can. Why? Because it’s revenue and in case you haven’t noticed, over the past 20 years traffic violation money has become a huge part of our State revenue.

4. So the officer says that he’ll bring out the dog to sniff around if you don’t consent? Fine, let him call Rin Tin Tin. What’s the worst that can happen? If there was stuff in your car, and the dog is alerted to it, you’re ending up with the same charge as if you let the officer poke around. The officer will never say it, but they often insinuate that if you are completely cooperative with them, they’ll cut you a break. There’s no truth to that, and more often than not, they are taught by older officers that they’ll get more arrests if they can gain your trust. Your best interest and their best interest are usually never the same.

More importantly, if the officer indicates that he is bringing the dog out, you should ask if you are free to leave. He’ll say “no,” and that you are being temporarily detained. Ask again, every 3 to 5 minutes. If the officer keeps saying “no” at some point your temporary detention is going to become an arrest. He cannot keep you  indefinitely and if s/he wants to mess up his own case, let him or her. And, if the dog indicates there is something in your vehicle and the officer searches and finds nothing, what have you really lost? Certainly not your inalienable rights!

5. I didn’t say don’t be polite. You can be respectful and still assert your rights. Remember, they belong to you and by waiving them, you are essentially giving something of value away for free to a person who gets promoted by how many arrests he or she makes. Be polite, but say “no thank you.”

6. In some cases, an officer has the right to search your car without your consent. It doesn’t hurt to just let that officer know that you don’t consent. If he smells weed or there is a vial of white powder in the center console, he can probably search anyway. But, you may want to break out the cell phone and get some video showing you not consenting to a search. It may not count for much at the time, but get it to your attorney and she or he may be able to make an issue out of it.

7. If you are the passenger in the car, and that car is hot, dirty, whatever, your first question should be, “Am I free to leave.” If the officer says “no”, then sit tight and be quiet. If s/he says “yes,” walk away quietly and without a scene. Your driver may need an attorney so feel free to give us a call at 518-907-4694 once you are out of ear shot of the officer.

8. Other than to say, “I do not consent” use your one of your other rights such as the right to remain silent. Alternatively, be fancy and say you assert your 5^th Amendment right and then be quiet. Pro Tip: It’s the “being quiet” part that is the most important. If the officer arrests you, just ask for your lawyer and then stay quiet. Other than to respond to biographical questions such as name, age, gender, your response should be, “I want an attorney.”

Okay, time for the final thought on this topic. In too many situations, people think they can out-maneuver the police or just be really nice to them with the false belief that they will just let you go. The reality is that they are trained to pull out evidence by whatever means necessary without breaking any rules. Most are very good at this, which is why refusing consent to search and then remaining quiet is so important. Everything you say will be interpreted whichever way the officer feels will get him/her to the bottom line in the quickest manner.

I do not in any way condone being rude or obnoxious to the police, however, so don’t get that idea. Sometimes they can be rude to you; don’t return the gesture. At the end of the day, they aren’t paid to make friends, they are paid to make arrests. Most of the time, a jury will give the officer a pass for being rude with the understanding that they probably have a tough job. A defendant never gets that advantage. If you are a jackwagon and you are at trial, you’d better believe that the prosecutor is going to make sure everyone in the courtroom knows it. Jurors often connect being rude with being guilty.

And my final word… get a dash cam. They’re like $30 these days and they don’t lie, fabricate, or embellish.

Often enough, when a man or woman is awaiting their trial or plea deal, they have to spend their time in the county jail because they can’t afford the bail amount set by the court. While bail is supposed to be set in an amount that would prevent you from absconding from the area or simply not showing up for court, too often judges set bail amounts that would keep a millionaire from running. While my issues with the bail system are best left for another blog, let’s talk about how you handle yourself while in jail.

1. You are going to be bored. Very bored. They isn’t a whole heck of a lot going on, so you have to find constructive things to do to keep you busy. The main point is to keep yourself occupied… not entertained!

2. If you have the money on your phone account, by all means talk to your family and friends on the outside. DO NOT DISCUSS YOUR CASE OR ITS FACTS!!!! I don’t know how many jailed clients have said this to me… “it’s fine, nobody’s going to listen to my calls.” WRONG. They can listen to your calls and they will listen to your calls. When I was a prosecutor, I listened to the calls, especially when I believed that someone’s case was heading for trial. There is no easier way for a prosecutor to shut down a defense than when they have a recording of the defendant talking to his girlfriend/boyfriend and admitting to everything they are alleged to have done, and more. So to repeat, when you are talking on the phone, imagine that the Assistant District Attorney is sitting next to you.

3. If you are planning to be in for a while, exercise, exercise, exercise. Make your skin feel lighter. This does not mean that you have to make friends with other inmates. In fact, as you’ll see from this blog, making friends should not be in your top ten priorities. You can exercise alone in your cell and you can exercise alone when they let you outside by running laps (in most jails.) If you like playing basketball, you can play basketball, but only if you are good at keeping your cool. The last thing you want to do is make enemies while inside because you keep bitching about hand checks. Most importantly, exercise will reduce your stress levels which are going to be high when you are in jail.

4. DO. NOT. GAMBLE. When you are inside, it seems like there are a thousand things you can gamble on… cards, games, whatever. What you have to gamble is your commissary account. The experienced guys in jail will hustle you until your commissary is empty and you’re calling your favorite aunt to put money into Joe Blow’s phone account so you don’t have another enemy to deal with in jail. The prosecutor should be your only problem, not the guy you lost to at “Go Fish.”

5. DON’T think you are smart enough to have a friend or relative smuggle you contraband. Whether it’s a cell phone or Suboxone, if you are caught, you may as well just add another year onto your sentence and another $3000 to your attorney. Regardless of your opinion on attorneys, we don’t always want more money. Most of us, including the Kokosa Law Firm, want you to get the best outcome possible. Possession of contraband in jail does not get you that. Plus, we can’t even represent your friend or relative who’s trying to get you the stuff because that would be a conflict of interests. There goes the friends and family discount you were hoping for!

6. READ. If you aren’t a great reader, here’s where you can work on that. If you are a good reader, this will eat up hours on top of hours of the dead time that you spend sitting and waiting. The jails should have plenty of books. If there is something in particular you want or a certain genre, most jails have a booklet with overpriced books you can buy.

7. DON’T WATCH TV ALL DAY. There are some guys and girls who will just turn into TV blobs that watch anything that comes on the television. If you want to watch something you are interested in and the TV is tuned to that channel, by all means watch it. But if you are 3 hours into a Food TV marathon, walk back to your cell or an open corner and do some push-ups or run in place.

8. TAKE A PROGRAM THAT’S OFFERED BY THE JAIL (OR GET A JAIL JOB IF IT’S AVAILABLE. You have time, you have energy, and you have an active mind. May as well take a class if it’s offered. If you have issues with drugs or alcohol, take a program that will help you stay sober when you get out. Remember, you have time to kill, so you may as well make yourself a better person when you get out.

9. WRITE. Write about anything (except your criminal case). This will melt hours out of your day. Haven’t spoken to your great aunt Bertha in a while, write her a letter. Got in a fight with your Dad six years ago and haven’t talked to him since? Tell him you’re sorry and he was right. Spoiler alert… he probably was right. There aren’t a lot of psych services in jail, so writing about your emotions, even if you don’t plan on ever sending it out or just plan on ripping it up helps take pressure off your mind. My only warnings are don’t write about what you are accused of doing and do not write a letter to any person who has an order of protection against you. Things may seem bad right now, but adding a Criminal Contempt charge is not going to make them better. Heck, if the Kokosa Law Firm is your retained attorney, write me (Marc Kokosa) a letter. You can find me at the Kokosa Law Firm, 40 British American Blvd., Latham, New York 12110. You can call me at (518) 907-4694.

10. LEARN to do something you don’t know how to do. Learn to play chess. Take a GED class. Learn something. Remember when you were a kid and you learned how to play a sport? All those hours you spent practicing and learning how to do something ate up thousands of hours of your life and it felt like time flew by. The same premise works in jail.

11. BE RESPECTFUL. Be respectful to the guards. Be respectful to your bunkmate. Be respectful to the inmate serving your dinner. I’m not saying that you have to cow tow to another inmate, but treat others as you would like to be treated. 90% of the population in jail would rather be somewhere else, preferably sipping a margarita on a beach. That goes for the COs as well. The less problems you create for yourself in jail, the less stress you will have. This will allow you to actually do everything I stated in #1 through 9 without fear and anxiety.

There you have it. Eleven things you can do in jail to keep yourself occupied and your mental faculties at their prime. Nobody volunteers to go to jail, but sometimes it’s in the cards so you may as well make the most of it. And remember, if you need an attorney, you can always call the Kokosa Law Firm at (518) 907-4694 if you need representation on any crime, whether it’s Assault, DWI, Drug Possession or Sales, or even Sex Crimes. Like I’ve said in previous blogs, we don’t judge anyone just because they sin differently than we do.

A client came to me the other day and told me, in his words, that his life was over because he was arrested. I simply told him that everyone he knows, every friend that won’t return his calls, and every one of his family members has committed a crime at one time or another. Whether they were arrested is another question, but when it comes to breaking the law, I have yet to meet a person so pure of heart that they haven’t done at least one illegal thing in their life. This put him a little bit at ease as he realized those “friends” dropped out only because it reinforced their personal belief that they are a better person than the average person. Guess what? They aren’t.

That being said, in my line of work, 90% or so of my clients aren’t exactly “experienced” when it comes to being arrested. They are what I call “one and done” as opposed to a “frequent flyer.” This blog post is for the “one and dones” that aren’t sure what happens when someone gets arrested, what they should do, who they should call, etc. You may notice that there is a blunt, repeated message throughout this post… shut your mouth.

When you are being investigated for a crime, whether it’s an Assault in the 3^rd Degree, or Petit/Grand Larceny, or ‘gasp!’ a sex crime, your rights are the same no matter what the police are looking at you for. We live in a society where the system is supposed to be the same no matter who you are and what you did or didn’t do. Sure, the commenters in the newspaper will have more to say if you’re alleged to have committed a serious crime, but guess what… they won’t be on the jury and they sure as heck aren’t going to be the judge. I’d like to say those commenters aren’t the police either, but I’ve met hundreds of police officers over the years and some of them are. While 98% are just as normal as any civilian, there’s a few who carry an unwarranted superiority complex that they can’t let down even when they get home. Those are the ones who usually make the headlines for something going bad. In any event that’s going to bring us to lesson one:

1. Shut up.

That’s right! It’s as simple as that. Don’t open your mouth. If you want to feel sophisticated, you can assert your 5^th Amendment right or say, “I want a lawyer.” Bottom line, the police aren’t speaking with you because they want to hang out with you later this week, they are speaking to you because they think you will give them the information they need to put the cuffs on you. Right now, you’re thinking one of two things. A) I can talk my way out of anything, I’m good with people, or B) I didn’t do anything wrong, what do I have to hide.

Here are your answers:

1A.      No, you can’t talk your way out of anything and you aren’t nearly as good with people as you think you are. Simply being with the police at this stage proves this. Keep in mind, a good investigator has done thousands of interrogations, taken classes on how to elicit confessions, and been trained by other detectives on how to get you to admit guilt. Heck, they might even be so good that you admit to something that you literally could not have done… which brings us to “B”.

1B.       Just keep your mouth closed, even if you have nothing to hide. If you really have nothing to hide, let your attorney know that and he can relay the message for you. Like previously noted, the police are talking to you because they think you hold a piece of evidence that lies between them and an arrest. Speaking up may give them the missing link and it may be your arrest! Sometimes people think because they weren’t given a Miranda warning, then the police can’t use their words against them. Not true! Without getting into great detail, your Miranda rights generally do not apply until you are arrested or in custody.

2. The Arrest.

Well, if you didn’t say anything and you were still arrested, they were planning on arresting you anyway. They were just hoping for a confession so their case would be a slam dunk. If you did speak with them and they arrested you, well… you should have paid more attention to number one (Shut up). Either way, this is where the case becomes pretty uniform no matter what you are charged with. The arresting officer will usually place handcuffs on you and place you in the back of the car.

THIS IS NOT THE TIME TO GET ANGRY, ESPECIALLY AT THE OFFICER (OR EVEN THE POLICE CAR)

Don’t make the situation worse by adding on a Resisting Arrest charge or felony Assault 2^nd for trying to hit the cop. Just go gently and keep your mouth shut (see #1). At this point, nearly everything you say or do is being recorded. Be aware that your pretty face will be on a TV screen should your case go to trial. Simply advise whatever officer that is speaking to you that you want a lawyer immediately. Many will give you the chance to call your lawyer after you’ve gotten the silver bracelets on. Take advantage of this. Call your lawyer, whether it’s me or someone else. (Shameless plug, you can always call the Kokosa Law Firm at (518) 907-4694 or text us at (518) 466-3062)).

The officer will generally sit you down somewhere and cuff you to an immovable object. Don’t try to pull your wrist away from the object because it will hurt. They know that the church pew you are sitting in is not going to move, that’s why they handcuffed you to it. When the officer is ready (which could mean 20 minutes or 2 hours) he will ask you intake and biographical questions. These you are required to answer. They have nothing to do with the arrest or crime and only have to do with your identity, generally.

3. Don’t give a fake name.

After they take your biographical information, you’re going to be fingerprinted. FYI, this isn’t 1975 where they use ink and roll your fingers. Everything is electronically scanned and sent to the NY Division of Criminal Justice Services where, if your prints are on file, your rap sheet will come back in about 15 minutes. So, if you think you’re going to be smart and give a fake name, they will know before you are done being processed. Oh, and you just tacked on a new charge—False Personation. If you sign the fake name, you’ll also get a Forgery charge and Offering a False Instrument for Filing charge.

4. The Arraignment.

This is where some cases diverge from others. If you are arrested for a small crime like Petit Larceny or Shoplifting or even violations such as Disorderly Conduct or Harassment 2^nd, the police officer has a multitude of options of how he can treat you. If you have little to no criminal record, and you were quiet, respectful, and calm, they will usually release you with an appearance ticket. An appearance ticket is just that, a summons to appear in court on a later date. They may also give you what is called sergeant’s bail, which is usually $500 cash bail that they will take at the station. This will come with a notice to appear in court on a later date. If you are ornery, or charged with a D, C, B, or A Felony though, get ready to be tucked in for the night. Outside extenuating circumstances, the police can hold you for about 24 hours before you must be arraigned. This means that if it’s after 4 p.m., you’re going to jail for the night and you will be arraigned in the morning. It also means that they could ask a judge to leave his or her house and come arraign you at that moment. As you can guess, the judge is normally not thrilled with a middle of night arraignment so don’t be shocked when he sets bail at $5,000 over $10,000.

$5000 over $10,000 means that you can post $5000 cash or $10,000 bond (which will cost a little under $1000, but you don’t get the money back). If you need a bail bondsman, give us a call… we know a few. If you cannot make bail, you will be brought to the county correctional facility where you will wait during the pendency of your case or until you make bail. This system may be cruel, but it is the system. Arguing about it at this point is futile; you should have written your senator sooner.

In any event, you will have been given several opportunities to call an attorney along the way. You could have called us or you could have called that guy your uncle knows. He’s probably pretty good too. Either option is better than not speaking with an attorney. However, if you are locked up on bail, the good news is that you’re eligible to get a free attorney because you are now a ward of the State and automatically qualify for the public defender… which brings us to number 5.

5. The Public Defenders know what they are doing!

Every once in a while I get to hear someone say, “Public Pretender” or “I don’t want a PD, I want a real attorney.” Just so you know, this makes you a jerk. Some of the best attorneys I’ve ever met were public defenders. Some could juggle 35 felonies and a stack of misdemeanors at the same time without breaking a sweat. Just because they work for the public defender’s office doesn’t make them any less qualified to handle your case. Their only downside is something they have no control over… a lack of funding. This means too many public defenders are overworked and underpaid, resulting in less time and attention being paid to any one specific case. In the long run, though, public defenders are like any other attorneys. Some are better than others; some are better with certain types of cases than others. If you don’t like their bedside manner, just remember you aren’t paying.

6. Call the Kokosa Law Firm as soon as possible.

We already gave you the phone number, above. We know what we are doing. Everyone wants to know what it will cost up front. We can’t tell you that during a two minute phone call which is why we invite anyone who has been arrested to come meet with us in person. We don’t charge for a criminal consultation. If you’re still wondering about price, compared to other attorneys we usually land somewhere in the middle. We offer flat fee pricing on criminal matters which usually works better for clients since they know what the total amounts are going to be and don’t have to worry about monthly bills. Heck, we even take credit cards (even Discover as I found out recently.)

More importantly, we actually do care about you and your well-being. My wife thinks that I have trouble disassociating myself from the crimes my clients are alleged to have committed. I’m not even sure what that means, but my job is to bear some of the weight that has fallen on your shoulders, so maybe she is right. But you know what, this is the only way I know that I am giving my client everything I’ve got so I’m going to keep doing it this way even if it means midnight phone calls and 5 a.m. texts.

7. What you are experiencing… it won’t always feel like this.

The case will end at some point. You will be guilty, not guilty, or plea to something in the middle. The stress will slowly subside and you will readjust to a normal life (though your new “normal” may be somewhat different. Here’s where you get to make the decisions that will determine whether you are “one and done” or a “frequent flyer.” Like I said, most clients are one and done because they make the life adjustments that they need to move on with life in a productive manner. And while you can’t get rid of your family, remember those “friends” that dropped out at the first sign of trouble… don’t ever forget that. You can now become the person they pretend to be.

As always, my blog posts are for discussion only and are not intended to be legal advice for any specific person or event. You have to call me for that.

If you are stopped by the police, there are five things you should remember:

1. Remain calm. Know your rights, but always remain respectful of the officer.
2. Leave. Ask “Am I being detained? Why? Am I free to go, or am I under arrest?”
3. Remain silent. “Officer, I am choosing to remain silent. I would like my lawyer to present.”
4. Don’t consent. “Officer, I am not consenting to a search of my person or my property.”
5. Document. ” Officer, I am not interfering with you in any way. I am documenting this arrest, this is a public place, and I am entitle to do so.”