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Overhearing Your Constitutional Rights Being Violated.

Posted by Raymond Ejarque | Sep 13, 2019 | 0 Comments

You've had it happen. On the bus, in a restaurant, by that mustached voyeur in a bar–the eavesdropping epidemic. This affliction occurs every time a person sits a little bit too close and listens a little bit to hard to a conversation that is none of their concern. The prevalence of officious inter meddling gives it the aura that its just another one of those life circumstances that must be tolerated–and most times it's easiest to do just that. Most times, but not all. A DUI allegation or any criminal situation are exceptions to the ‘tolerance rule' and one that a defendant should not take lightly. While it is hard to be polite and tell someone to go away, it is possible, recommended and supported by law.

If you are ever arrested for a DUI/Criminal offense, you are guaranteed the right to counsel and the conversations you have with your attorney should be private. This means that if a police officer is standing a bit too close for comfort, you have every rights to politely ask for privacy. If they refuse, they have refused a right afforded to you by the Sixth Amendment.

A defendant will be denied the statutory right to counsel when the police officer denies him private communication and the desire for private communication was either expressed to the officer and/or the defendant alleges that prejudice resulted. Koch, 53 Wn.App. at 357-58. For example, in Koch, a consolidated case, the two defendants had argued that they were denied access to counsel. The court rejected the defendant, Koch's, argument based on the fact that there was no evidence that the attorney or Koch asked the officer to move further away. Similarly, the court found that the defendant, Hanson, also failed to show that she requested additional privacy. See also, State v. Holland, 147 Ariz. 453, 711 P.2d 592 (Ariz.1985) (holding that the defendant was denied access to counsel when he asked the officer to step out of ear shot and the officer denied his request).

Learn from precedent and turn mistakes into legal defenses. If you wish to have a private conversation with your attorney, let an officer know. As the law dictates: “innocent until proven guilty.” No one is a second class citizen when they enter a police precinct and although law enforcement can inventory your cell phone, wallet, clothes and keys–they cannot inventory your rights. Exercise them.

About the Author

Raymond Ejarque

Raymond Ejarque has practiced law since his admission to the Washington State Bar in June of 1994. He started his career in public interest law helping migrant farm workers and indigents in Texas and Washington State.  Later he worked in Criminal defense as a public defender in Seattle for many y...

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