“You have the right to an attorney” is a common phrase most everyone has heard. But what is the significance of this phrase? And how far does this right extend? An individual, in criminal proceedings, always has the right to an attorney. This right is protected by the Sixth Amendment of the United States Constitution. The importance of this right is that it ensures the defendant is not subject to unfair coercion on the part of the state or government. As such, police officers are required to “advise” individuals of their right to an attorney in certain situations. One such situation is when you are in police custody and the police ask for your consent to search your home or vehicle. In those scenarios, an individual can consent to such a search, but the police must advise the individual of his or her right to an attorney before such consent can be considered “valid.” This blog explores a new limit on this right, so you can better understand your rights if you are involved in a criminal investigation.
As this introduction suggests–and just like everything else in life–there are limits or exceptions to this rule. And the Indiana Supreme Court just clarified one such limit. In Dycus v. State, the Indiana Supreme Court ruled that a drug recognition exam (DRE) is not the type of search that requires a defendant’s advisement of the right to counsel for an individual’s consent to be considered valid and subsequent evidence used against him/her1. Specifically, in Dycus, the Defendant was pulled over by a police officer, and during the stop, the officer smelled marijuana coming from the defendant’s breath. The Defendant admitted to smoking marijuana about an hour before the stop. The Officer asked the Defendant if she would submit to a DRE, and the Defendant consented. The results came back positive and the Defendant was subsequently charged with Operating a Vehicle While Intoxicated.
The Defendant argued that the results of the DRE should be excluded and not used against her in this criminal prosecution because she was not advised of her right to counsel, and as such, her consent to the DRE was not valid. The Court of Appeals agreed with the Defendant and excluded the results of the DRE as improper. However, the Indiana Supreme Court reversed the decision of the Court of Appeals, finding that a separate advisement of rights was not necessary in this situation. The Supreme Court found that because the DRE was not likely to uncover new criminal evidence, and instead, simply confirm what the Defendant already admitted to (e.g., smoking marijuana), an advisement of right to counsel was not necessary.
This area of law is extremely technical, and you need to understand its complexities to know to not make admissions and obtain counsel. An individual who is unaware of their rights may waive them (admitting to smoking pot before the stop) without even knowing – leading to a negative result for you. The importance of understanding the status of developments in the law is the key to avoiding criminal liability, as well as being an engaged citizen in our participatory system of government. This blog post on a key new case was written by attorneys at Dixon & Moseley, P.C. who handle criminal defense cases and appeals of criminal convictions throughout the state. Having criminal defense counsel current on the latest developments in law provides you with the best criminal defense. This blog is written for educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
