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When Are You in Physical or Implicit Custody?

Interviewer: What are examples of being in custody?  What if you’re in handcuffs and sat on the curb while the police are processing?  Are you in custody or is it only when you’re in jail?

Ben Doscher: Oh yes, you’re in custody then.

Interviewer: If they ask you to step out of the car, are you in their custody or no?

Ben Doscher: If that is all they are asking, just to step out of the car, probably not then.

If You Feel You Cannot Leave on Your Own Volition, Then You Are Most Probably in Custody

Interviewer: Are there any actions that happen to people that can confuse them about whether they’re in custody or not?

Ben Doscher: If an individual is physically surrounded by the police but there are no handcuffs on them, then they’re in custody, I would say. However, the individual may be unaware that they are in custody.

If they are sitting on the couch and there are police guarding all the doors, then they’re in custody even if they are inside their own house.

Can You Request to Be Advised of Your Miranda Rights?

Interviewer:  How do you invoke your Miranda Rights or how do you request they be read to you when the time comes? Would you say, “I don’t wish to say anything”?

Ben Doscher: Yes, if you don’t want to say anything, you just say, “I don’t want to say anything.  I want to speak to an attorney.”

Can the Police Decline to Provide You with an Attorney after You Request One?

Interviewer: What happens if you’re in custody and you request an attorney, but the police say no or not now?

The Police Cannot Continue to Question You if You Have Asked for an Attorney and You Legally Must Go in Front of a Judge 24 Hours after Your Arrest

Ben Doscher: Then they can’t question you or do anything with you unless you have access to your attorney.  You’ll just have to wait, but you have to go in front of a judge within 24 hours of being arrested.

Interviewer: Even if it’s a holiday or a Friday evening? There’s judge on staff all year?

Ben Doscher: Yes, Christmas, Thanksgiving, every day, yes, and New Year’s.

Interviewer: Because I didn’t know if there was an inconvenient time to be arrested, such as Christmas Eve when you would think no staff will be around.

Ben Doscher: No, there will still be a judge the next day, on Christmas. I had to do arraignment on Christmas when I worked for Legal Aid. When I was a Legal Aid attorney, I used to work on Christmas Day and we did arraignments that day.

Physical Identification Can Be Suppressed but When You Consent to Undergo a Chemical test, the Result Cannot Be Suppressed

Interviewer: Are there any other examples of what you would get suppressed?  What about a breath test or a blood test?

Ben Doscher: Physical identification can be suppressed. For example, with physical identification, someone can say they saw you, but then you could dispute that and establish that they didn’t actually see you or they thought they saw you and it wasn’t really you, something like that.

Interviewer: What about blood or breath tests, let’s say, DWI arrests or something like that, can you suppress those?

Ben Doscher: No, if you consent to a breath test, it can be used against you.

Interviewer: Is there any way you know of to get those results thrown out?

Ben Doscher: A breath test?  No, not really.

Interviewer: Have you ever handles any cases where you felt really good about the outcome?

From Attorney Doscher’s Viewpoint, Sometimes the Simplest Set of Circumstances Leads to the Best Outcome for a Case

Ben Doscher: Yes, I handled a case where my client was going back to an old apartment to get something that he forgot there. He was knocking on the door and no one answered.  For whatever reason, the new person that lived called in the apartment the police and he was arrested for burglary.  Yes, crazy, but it happened.

Eventually the case was dismissed because he wasn’t trying to burglarize anything.  He was really trying to get something that belonged to him and he was just knocking on the door.  Sometimes it’s the simplest circumstances that are the best cases.

By Prevailing during Difficult Cases, Attorney Doscher Has Been Successful in Negotiating Advantageous Plea Bargains for His Clients

Interviewer: All right, how about a case that was really difficult to defend but you prevailed and were able to procure a good outcome?

Ben Doscher: Yes.  I had an attempted murder case where a woman was charged with attempted murder because she stabbed somebody in the chest and almost hit their heart. I argued that they were basically having a fight and she was protecting herself.  I was able to have it pled down to her only serving a year in jail because of the self-defense argument.  She was facing 20-25 years in jail for attempted murder. For my client, that was a really good outcome.

Interviewer: It sounds like attempted murder is worse than murder.

Ben Doscher: Sometimes it is because they have a witness in attempted murder.  In a murder, the police usually don’t have a witness.

Interviewer: How about a case that you thought would be really tough to win, but kind of unwound and became easy to win and the outcome surprised you?

If You Are Prevented from Seeing Someone Due to an Order of Protection, You Cannot Even Call Them on the Phone

Ben Doscher: Quite often, people have orders of protection which they abuse by saying that the orders of protection can prevent someone even calling them.

They have the individual who called them falsely arrested for violating that order.  It’s hard to win those cases because that person called them because of the accessibility of cellphone records.

Oftentimes a viable defense is arguing that your client dialed the number by accident because it was only for a brief period of time. These cases actually come up fairly often.  People get arrested for violating orders of protection, just by making a phone call.  When they really should do is take the person’s phone number out of their phone so they don’t dial it by accident, but most people don’t think like that.