YOUR legal RIGHTS

Gourley, Rehkemper & Lindholm PLC

If you are pulled over for drunk driving, you do not have to perform any tests! Know your rights. Call Iowa's DUI Defense Team! Your rights

All individuals within the United States of America have rights guaranteed to them by the Constitution. These rights are what separate and distinguish the United States of America from all other countries and forms of government in existence today. In laying the foundation for this country, the Founding Fathers believed that certain freedoms and rights must be guaranteed to all people in order to avoid the development of an oppressive and tyrannical government. These rights are to be protected at all costs for they are the very foundation of our system of government. Millions have died in an effort to ensure that these rights remain firm and steadfast in the face of an uncertain and hostile world. If the government is permitted to improperly infringe upon these constitutionally guaranteed freedoms, the very core of our nation is placed in jeopardy.

One cannot ensure that the rights and liberties guaranteed by the Constitution remain firm and steadfast if they begin to take on an aura of illusory idealism. Most Americans do not truly know or understand their rights. These rights are real; they are substantive; and they apply to our everyday life. Knowing and exercising these rights is what maintains the balance of power in our system of government. For this reason Benjamin Franklin stated: "This will be the best security for maintaining our liberties. A nation of well-informed men, who have been taught to know and prize the rights which God has given them, cannot be enslaved."

The attorneys at Gourley, Rehkemper & Lindholm, PLC, are passionate about educating the public about their rights and ensuring that the public not only knows and understands them but are able to exercise these rights in an effort to preserve their freedom. For this reason we have developed the slogan: Know your rights; exercise your rights; preserve your freedom. Nowhere is this more important then in the area of a criminal investigation.

While exercising constitutional and statutory rights may upset law enforcement and potentially lead to a premature arrest, a citizen who knows, understands and effectively exercises their rights will be much better served then an individual who does not. Do not let law enforcement intimidate you with threats of arrest. Prisons are full of individuals that attempted to talk themselves out of being arrested! By talking and consenting to searches and/or testing, an individual provides law enforcement and ultimately the prosecutor with the evidence necessary to potentially obtain a conviction. While all is not lost by cooperating, your best bet is to politely exercise your rights.

1. 4th Amendment: The 4th Amendment to the United States Constitution provides that: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

   Seizure: Anytime law enforcement restrains a person of their freedom by telling them to stop or not to move a "seizure" has occurred. This includes a traffic stop. The officer must have reason to believe the individual is involved or is about to become involved in criminal activity or has committed a traffic violation prior to restraining the person of their freedom. When an individual in public is approached by law enforcement they have the right to walk away and go on about their business. If law enforcement orders them to stop and talk to them, "reasonable suspicion" of criminal activity must be present or the stop is illegal.

   Search: The general rule is that in order to search a person's house, property, vehicle or person, law enforcement must have first obtained a search warrant supported by probable cause and signed by a neutral judge. There are exceptions to the search warrant requirement, the most common of which is consent. An individual can consent to the search and a warrant is not required. However, an individual also has the absolute constitutional right to refuse consent to search and can require law enforcement to first obtain a search warrant if they have enough evidence. Refusal of consent may not be used against the person to get a search warrant or in a future criminal prosecution, if any.

   Arrest: An arrest of an individual must be supported by probable cause to believe that they committed a criminal offense. Probable cause must be based upon a reasonable interpretation of the objective facts available to the officer at the time action was required. The question is: do the facts known to the officer at the time of the arrest, warrant a reasonable person in believing that the individual committed the criminal offense?

2. 5th Amendment: The 5th Amendment to the United States Constitution provides that an individual cannot be forced in any criminal case to be a witness against himself. You have the right to remain silent when questioned by law enforcement. This right to remain silent may be exercised at any time when your answer to any question in any circumstance may potentially incriminate you in a criminal proceeding.

3. Miranda: In the United State's Supreme Court case of Miranda v. Arizona the Supreme Court set forth an additional protection for individuals arrested for a criminal offense. This protection is commonly referred to as the "Miranda warning." This warning must be given by law enforcement prior to interrogating a suspect after they have taken him/her into custody. It warns the individual prior to questioning that anything they say in response to questioning by the police can and will be used against them in the criminal prosecution and that they are further entitled to the assistance of an attorney and to have the attorney present during any questioning.

   This warning does not have to be read to all individuals who are arrested and law enforcement's failure to read this advisory does not automatically result in dismissal of the charge(s). If the court finds that this rule has been violated, the statements obtained during the questioning are merely held to be inadmissible during the State's case in chief. If the defendant takes the stand and testifies, these statements under the proper circumstances may be used by the prosecutor to impeach the defendant.

4. Right to Attorney: An individual has the constitutional and statutory right to have an attorney present during any police initiated questioning. The suspect cannot be required by law enforcement to answer questions unless counsel is present if the request is made. In fact, once the request for an attorney is made, law enforcement may not reinitiate questioning of the defendant regarding that charge. Once charges are filed the individual also has the right to be represented by counsel during the court proceedings. If the individual cannot afford to retain private counsel, he/she has the right to request that counsel be appointed at State expense.

Free Initial Consultation

The drunk driving defense attorneys at Gourley, Rehkemper & Lindholm invite you to contact them for a free initial consultation if you have been arrested for a drunk driving offense.