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You have the right to remain silent, and you probably should

On Behalf of | Jun 4, 2020 | Criminal Defense |

Like other people here in New York and across the country, when you feel stressed or feel you are “in trouble,” your natural instinct is to explain yourself. This may not cause you much harm if you are explaining to your boss why you didn’t meet a deadline, but it could cause substantial issues if you try to do it with a police officer.

When an officer pulls you over on suspicion of drunk driving, he or she already has a bias against you. Every communication from this point is to bolster that position into probable cause for an arrest. Most likely, your best course of action is to remain silent, even if you are not yet under arrest. You don’t have to wait until then to exercise this Constitutional right.

How to invoke your right to remain silent

It may seem counterintuitive, but in order to properly take advantage of your right to remain silent, you have to speak up. The United States Supreme Court has ruled that merely not talking to police is not enough to make it clear that you are exercising your right to remain silent. Instead, you need to make it clear to officers, which you can do in one of the following ways:

  • You can say you want to remain silent.
  • You can say you don’t want to answer any questions without a lawyer present.
  • You can say you are exercising your right to remain silent.
  • You can say you will only speak to an attorney.

You do not have to use the above words specifically. The court did not dictate any “magic language” that makes it clear. However, you do need to be precise. Don’t use ambiguous words, such as maybe, perhaps or should. The point is to make it perfectly clear to any law enforcement officers you come in contact with that you will not be answering any questions regarding your supposed criminal activity without speaking to a lawyer first.

The officer may attempt to get you to talk by indicating that you are not even under arrest, so you can’t invoke your right to remain silent. That is not true. It is a Constitutional right you have, and you can exercise it at any time. In fact, some officers may delay the arrest in order to get more information out of you since most people believe you can only exercise certain rights upon arrest. If you do end up under arrest, you may want to exercise your right to legal counsel as soon as possible to continue protecting your rights.


Law Offices of Joseph J. Tock