During the last year I have been called on to represent officers in dozens of cases where an officer has been accused of crimes ranging from minor infractions through conspiracy to possess controlled substances for sales.

The response to an officer as a defendant is varied and some feel a peace officer should know better and he or she deserves what is coming to him or her. However, peace officers are subject to emotion-based conduct no different then the general population. Further, I have seen many innocent officers wrongly accused based on the statement of another with nefarious motives.

This article addresses some of the issues that have surfaced, strategies and case examples.

Basic Rights Review

I am no longer surprised that experienced officers, even those who are or have been association members and/or employee representatives fail to exercise his or her right to remain silent or to consult with an attorney prior to making a statement. Many times an officer feels that guilty with an explanation will help-it seldom does, and, unfortunately, I have seen cases where an officer's statement has been misrepresented in a later report.

During a criminal investigation, you should expect the investigating officer will most likely treat you like any other criminal defendant and no special treatment will be afforded to you. In a recent domestic violence case I resolved, the arresting deputy commented many times, " He's a cop and should know better."

You have a right to an attorney-use it!

Under the 5th and 6th Amendments to the United States Constitution you have the right to consult with an attorney prior to making a statement and absolute right to counsel after criminal charges have been filed.

Typically, where I see an agency's attempt to circumvent this right is when an officer is suspected of CLETS (CALIFORNIA LAW ENFORCEMENT TELECOMMUNICATIONS SYSTEM) violations. The usual scenario involves an officer being called into the office while on-duty and then informed an investigator, sometimes a D.A. investigator, is there to talk to the employee and the employee is ordered or strongly encouraged to cooperate. However, the investigator will probably make it clear your statement is "voluntary," and a voluntary but reluctant statement is given. If this happens to you and you don't want to upset your superiors, make certain you record your statement and inform the investigator you are making your statement pursuant to the direction of your superior.

You have the right to remain silent, but probably lack the ability to exercise it.

Under the 5th Amendment an individual has the right to remain silent in lieu of a making a statement that may incriminate him or herself. As most officers know, the officer conducting an interrogation has no duty to tell an individual of this right unless the person is in custody (arrest) and incriminating responses are solicited. Conduct (e.g. field sobriety test) that would tend to incriminate an individual is considered a statement and afforded protection under the 5th Amendment. One's name, and physical evidence associated with one's person (fingerprints, blood, nail scrapings, etc.) are not. However, with few exceptions, an arrest and or warrant are required to obtain physical evidence.

Ironically, the varied investigative tactics that work on even the most sophisticated career criminals work on the peace officer as a suspect. The investigating officer tells the individual of the likely charge and then remains quiet and then lets the individual ramble, often saying nothing in response. Given enough time to talk, it doesn't take long until a full confession is given.

To cooperate or not to cooperate

There are times that cooperation and a reasonable explanation may bring an investigation to an early end and avoid criminal liability and an assertion of rights will only aggravate and prolong a criminal case. In cases where I am certain a client does not have criminal liability and the investigation objective, I usually advise clients to give cooperation. However, I have seen cases, too, where an investigation is far from objective and cooperation, at least without the advise of an experienced criminal attorney, is not advisable. Further, there are times an officer feels guilty with an explanation will help-it usually does not help, or the officer misunderstands the applicability of an affirmative legal defense but is mistaken as to its applicability in the given case. If there is any doubt as to an individual's liability, all rights should be asserted and consultation with an attorney sought.

DOMESTIC VIOLENCE CONVICTIONS AND PROHIBITION FROM POSSESSING FIREARMS=LOSS OF EMPLOYMENT

Peace officers are subject to domestic discord like everyone else and the strongest moral individual can be overcome by emotion during times of marital dissolution or discovery of infidelity; however, the career consequences can be much greater for officers who end up arrested after a domestic incident.

While it has been the law that a convicted felon may not possess or own a firearm, on February 24, 2009, the United States Supreme Court in U.S. v. Hayes affirmed and interpreted a portion of the 1996 expansion of federal Gun Control Act of 1968, and held that persons convicted of a misdemeanor crime of domestic violence may not own or possess a firearm. The 64,000-dollar question of course, what constitutes a misdemeanor crime of domestic violence? Unfortunately, due to the complexity of the law in this area, a one-size fits all explanation cannot be given in this article.

Since the Hayes decision, I have successfully resolved four incidents where officers were arrested on felony charges for 273.5 P.C. In three cases, I obtained complete dismissals of all charges and in the fourth case a very favorable plea was negotiated that did not trigger state or federal laws that would prohibit our client from possessing a firearm. I am glad that we can report that all four officers have been returned to full peace officer status, although each had to be placed on administrative leave or reassigned temporarily.

While I cannot recite a formula that will result in a favorable outcome in all DV cases, should you or someone close to you be arrested, do everything you can to have a bond posted as soon as possible. By securing a release, the criminal investigation does not have to be hurried and if there are exonerating factors that can be presented a criminal filing may be avoided. However, with few exceptions, once a case is filed, it is much harder to get a case dismissed without a trial even when exculpatory evidence is presented during the pre-trial stages.

DUI ARRESTS

I briefly want to touch on DUI arrests and rights you have available and even though you may enforce the DUI laws regularly, you may not fully appreciate the reasons DUI arrests have a high rate of conviction.

The moment an officer suspects an individual has been drinking and driving, an officer is free to ask grossly incriminating questions like: have you been drinking, how much have you been drinking, where were your drinking and may even ask that you complete a sobriety test and submit to a Preliminary Alcohol Screening (PAS) test. Since the initial stop and inquiry are deemed no more than a detention, the Miranda warning is not triggered, and by the time it is sufficient probable cause exists for arrest and the admonition becomes a moot point. The defendant becomes the State's best witness, including supplying all necessary physical evidence.

Should you become the subject of a DUI investigation, you do not have to tell on yourself regarding how many drinks you have had, which experiences tells is "just two beers," which statement is historically proceeded by, "Ossifer, I'm not going to lie to you, I've been drinking," nor do you have to complete a FST or submit to a PAS, unless you are under 21. However, if you are arrested, you must submit to a chemical test of blood, urine, or breath. If you are truly one of the few who has only had one drink, provided its not one large drink, blood tests tend to be the most accurate and most likely to exonerate you later.

My experience though is that individuals who have been drinking too much are far too drunk to heed, remember and apply the admonitions contained in this section of the article and those who do will most likely speak in a slurred voice and even scramble the words thus giving the arresting officer plenty to write about in the arrest report, perhaps even bringing a chuckle and smile.

If you plan well, you may want to consider typing out the following statement and placing it on a laminated card in your wallet. (Use at your own risk of course.)

FORMER POLICE OFFICER CHARGED WITH IMPERSONATING A POLICE OFFICER ACQUITTED BY JURY TRIAL

I recently completed a jury trial in a Southern California Superior Court. It was a most interesting case and example of when an alternative, perhaps mediation, should have been sought in lieu of a criminal complaint. I write generally about this case to avoid casting blame on my client or the arresting agency.

In short, an officer was terminated from his employment and filed a wrongful termination lawsuit against the employing agency. That litigation is still pending. The former officer, along with other active employees, during his sworn employment was issued a new police identification card. Employees were allowed to keep the obsolete identification card. Upon the employee's termination, he turned in his newer identification card, but forgot about the old one and did not turn it in. The agency made no request for the card.

About one-two years post termination the former officer was stopped for an alleged traffic infraction by an active and newer officer of his former employer. A discussion occurred and his former employment with the agency was brought to the attention of the on-duty officer, who did not know our client. While looking for his license, our client came upon his old identification card and showed it to the officer. Our client was given a warning. Our client truly forgot about his old identification card and had not been stopped for a traffic violation since his termination. Realizing he had the old card and that it was inappropriate that he still have it, he destroyed it. A search warrant issued for his home and person failed to yield its discovery.

Based on the reports and events deduced at trial, the on-duty officer apparently discussed her contact with our client with superiors of her department. Some three weeks after the stop, the contact officer wrote a report that resulted in a search warrant and a criminal complaint filed for Impersonating an Officer, a misdemeanor charge with exposure of up to one year in the county jail.

Although the Deputy District Attorney offered a plea bargain and charge reduced to a 415 infraction, our client refused the offer because he knew he did not possess the ID card with the intent to represent himself as a current officer. He also believed the criminal complaint against him was a form of retaliation against him for filing a lawsuit against his former employer.

The Deputy District Attorney was a former police officer, as I am too. He was very gallant and I wish I could give him praise in this article for the professionalism he demonstrated during trial. Typically, my police background gives me an edge during trial; however, in this case, the DDA was able to keep up with me and generally employed the same strategies I used. We laughed quite a bit during trial trying to outwit the other.

During the trial I was able to establish facts that supported the contact officer simply misunderstood a number facts our client communicated to the contact officer. This case was heard by a jury who deliberated about three hours and acquitted our client of the charge. Hoorah.