What you need to know when arrested in Texas – Barry Bobbitt Interview – May 2016


ON NATIONALLY SYNDICATED RADIO TALK SHOW ‘MONEY FOR LUNCH’

Bert:

You have to prepare for any situation and my next guest, Attorney Barry Bobbitt. He is sort of the managing partner for the Bobbitt Law Firm where he concentrates his focus of practice in the areas of criminal defense. Barry is intensely committed to fighting for the rights and dignity of those who are victims of injustice at the hands of corporate and governmental interests. Barry Bobbitt, welcome to Money for Lunch.

Barry:

Thanks Bert. Glad to be here.

Bert:

This is, I think, such an interesting thing because a lot of us think when we’re innocent, we have nothing to hide. Therefore, I don’t have to worry about ever being arrested because I’m a good person and I have nothing to hide. I’m not doing anything wrong out there.

Barry:

It’s such a dangerous mindset.

Bert:

It is. Let me tell you, you didn’t know this but I went, in another life, I went to law school and I flourished and stuff like that. You don’t realize what you don’t know and I think everybody … this is one of the things after going to law school, I realized that everybody should take that first year of law. That should be just mandatory. Everybody’s thinking would change.

Barry:

I agree. It’d be great if everybody had a background. The problem is that it starts to warp your mind and you come out and you can only look at things through a single lens.

Bert:

That’s good though. To me, that’s good. I think….

Barry:

It’s good for the attorney that’s representing you. That is good. We only have the capacity to look at things through a worn lens. You know what they say, “When you’re a hammer, everything looks like a nail.”

Bert:

Let’s talk about this …

Barry:

Going back to your original point, it is such a dangerous … not only is it a dangerous mindset because you should be prepared for these things. Everyone should have a basic understanding how our legal process works but the problem is if you do find yourself in that situation or you’ve got someone in your family. It could be a son, daughter, wife, husband, cousin, whatever it is. They wind up in that situation, the system will use that against you.

If you don’t know and you’re not kind of equipped and have an idea, they’ll act like your friend. They’ll play like this is not much of an issue and before you know it you’ve built a case against yourself.

What you need to know when arrested in Texas?
Bert:

Absolutely. Back to the old hammer is a nail strategy you were talking about, when the cops are involved, everybody’s guilty. That’s what they’re trying to do.

Barry:

A common misconception is that the cops are an impartial party and that couldn’t be further from the truth. They’re paid by the same City/Government that is trying to prosecute you. They are in every sense of the word trying to build a case against you. They assume you’re guilty.

That’s the assumption they start with. Our Justice System is built to presume innocent but the cops are certainly starting their case presuming you’re guilty.

Bert:

I want to take it one step further. They presume your guilty and they also presume that you’re lying.

Barry:

That’s correct. They assume you’re not to be trusted. That’s the thing. Early in that process … whatever point of that legal process, you’re not going to have an attorney. Ideally as soon as possible everyone should know their right to request an attorney.

In that process there’s always going to be some part of that initial process when you’re first arrested, when you first got in trouble, it’s just you and the officer. They will tell you, “Hey buddy, just work with me and everything will be okay.”

Then if you’re not going to work with them they’ll go into, “Look, you messed up really bad. You’re life’s going to be wrecked.” It’s all a lie. You get to set in front of an attorney who can kind of explain to you the other side of it and the truths of it. The cops are just going to give you lies about this.

Bert:

Let’s talk about this. Let’s say for whatever reason I get arrested. What should I do after my arrest?

Barry:

The first and foremost thing you want to do is stay calm and collected. I know that’s a difficult thing to say but you just want to stay calm and collected. You’re not going to help your matter by being belligerent with the officers.

Cooperate with them as needed. If they don’t have a warrant and they’re trying to search something, then make sure they’ve got a warrant. You can calmly ask if they have a warrant. If they try to circumvent that and sometimes they don’t have a warrant they’ll say, “Can I search your car? Can I search your house?” You’re always entitled to say, “No.”

They may choose to go ahead and do it anyway but let’s deal with that afterwards and try some legalities after that. As soon as possible you want to keep your mouth shut, stay calm and collected and request your attorney because whatever constitutional rights, those police cannot continue to question you after you have asserted that right to an attorney. That will shut them down. If there’s any further questioning or you say anything after that, it’ll be excluded.

Bert:

Again, I want to point this out. Even if you’re 100% innocent and you have nothing to hide, you should always assert your right for an attorney.

Barry:

Absolutely.

What you need to know when arrested in Texas?
Bert:

I cannot say this enough and I’m not an attorney by any means. By right …

Barry:

Absolutely, especially if you’re innocent. People are surprised at how misinterpreted evidence can be. You’ll say something or do something completely in a sincere way or a completely innocent way and then later on it gets turned against you and you don’t even know how you ended up in that situation. How was that statement used against you? How was that fact or that disclosure used against you? They’re in the job of taking everything you say and do to build a case against you.

It’s only your attorney’s job, your defense attorney’s job to bring truth to the matter. Absolutely, they’ll try to distort everything you say or do. Especially if you’re innocent, you want to be quiet.

A lot of people think that’s going to be held against them. That’s not admissible in front of a jury that you’ve asserted your right to remain quiet and ask for an attorney. That can’t be in front of a jury. It’s only going to serve to protect you.

Bert:

I want to throw this at you. This is something that the police do and it’s portrayed on TV quite often. They’ll say, “Hey, if you’re asking for an attorney then I won’t be able to help you. If you have nothing to hide, you don’t need an attorney.”

They’re trying to persuade you not to assert your right. What do you say to that?

Barry:

That’s police work 101. I’m your buddy, I’m trying to help you. Kind of what we talked about, that couldn’t be further from the truth. They’re paid by the City to build a case against you and it’s just a lie.

It’s a safe assumption, if you’ve been charged, if you’ve been accused of anything, the police are not your friends. Do not work with them. We even have a lot of people who come into us and say they’re in the investigative phase, in other words a charge hasn’t been filed. A detective will call them and say, “Hey, I just want to talk to you. We’re investigating your buddy and we just want to talk to you. There’s some suspicious stuff. We don’t think it’ll be an issue, we just want to talk to you a little.”

You’d be surprised at how many people will have that conversation with the detective, they just document everything they can to now bring a case against them. The smart ones, like I said we get a lot of these calls. They’ll call and say, “Hey look, nothing’s been charged but I’ve got a detective that called me. Is this a point to bring in an attorney?” The answer is absolutely yes. If the officers are talking to you, it’s always appropriate to bring in an attorney.

An attorney’s going to mediate that situation. You wouldn’t believe how many times I’ve picked up the phone and talked to a detective and said, “Hey look, you want any communication you’ve got to go through me.” All of a sudden the phone calls stop. Nothing happens, no charges are pursued and nothing’s followed up. If the client had talked to that officer, you never know what’s going to happen.

Bert:

Yes. Guys, I know for a lot of people it’s hard to believe. The reality is that we have this adversarial system and it’s there for a reason. First of all, I want to say this. Police officers have a very difficult job, a very difficult job. They risk their lives. We’ve all seen and heard that police officers get killed for routine traffic stops. By all means, you mentioned something a little bit earlier about not being belligerent. You should never be belligerent. They’re doing their job. They’re doing the best that they can with what they have. It’s not personal or at least it shouldn’t be personal.

Bottom line is, be respectful at all times and remain calm. As you also said, it’s your rights.

Barry:

I think that’s a great point. This isn’t a condemnation of officers. They are simply serving their role on the system just as the prosecutors are. This is their role in the system. It’s about having your eyes wide open and being knowledgeable about what their role is and it’s not to help you.

I’m glad you clarified that. Certainly not a condemnation of officers. It’s just smart for anyone to be aware of their role in that process.

What you need to know when arrested in Texas?
Bert:

Absolutely. Let’s talk about this, again something that happens probably more often than just getting arrested maybe out of the blue. What happens when you get pulled over. Somebody gets pulled over for a DWI or a DUI, let’s talk about this. I think this is probably … especially with younger people, it’s a good chance of happening.

The first thing they’re going to ask you is obviously to step out of the car, things of that nature. What should you do. Walk me through that. If I got pulled over, I guess what I’m trying to say is at what point do I have to cooperate? I know I have to give them my license and my insurance. Is that it?

Barry:

That is pretty much it and saying, “I respectfully refuse to take the test.” You’re right, this is a common scenario the DWI scenario. We’re not out there assaulting and stealing from people. None of us hang around that crowd, but it’s more than likely know about a friend, an associate, family or themselves who have gotten pulled over for a DWI.

It’s a lie that if you’ve had a drink and you’re driving that it’s against the law. The police want you to think that, but that’s a lie. You have to actually have your mental faculties impaired. In Texas it’s a two-part test. You either have to have an alcohol level of 0.08 or you have to have your mental and physical faculties impaired to where you can’t drive in a reasonable manner.

When the officer’s pulled you over, they’ve already made the assumption you’ve been drinking and driving. They are taking you to jail no matter what. Everything you do from that point is building a case. A big misconception is that if I just cooperate with the officer, then I get to go home and get in my cozy bed and this never happened.

Once you get pulled over, you are going to jail. Don’t build evidence and a case against yourself. You’re going to spend one night in jail. You’re get bonded out. From there on you will spend no more time in jail unless you’ve had multiple offenses, most people are talking about a first or even a second. You more than likely aren’t going to spend time in jail if you have a defense attorney on the case.

Don’t do anything to make this worse for you. In Texas we have an automatic suspension of your license for six months if you refuse to take field sobriety test, they call it the apply and consent law. Basically when you get a driver’s license you’ve inherently agreed to cooperate with an officer. The only penalty is that you have your license withdrawn for six months. Even in Texas it’s very easy to get an occupational driver’s license so you can still go to work. You can still go the grocery store. You can still pick your kids up. You can really do all the normal duties you have to do anyway.

>When they get out … the officers are very good at using the intimidation factor in their favor because it is intimidating. They’ve got the lights going. They pull over. They’re in an official uniform. Usually they travel in pairs. They’ll ask you to step out. They’ve got their gun in their holster. “Sir we need you to start taking these tests.” It’s not even a request. They’ll just tell you, you have to do them but your rights are to say, “Officer, I kindly refuse to do it.”

>We’ve had many clients that do that and when they don’t build a case against them it’s much easier to go in the court and say, “Look you really don’t have any hard evidence against my client. You didn’t do a field sobriety test. You didn’t do the breathalyzer. What evidence do you have? It’s your responsibility to prove to this jury beyond a reasonable doubt he actually committed a crime. You don’t have any hard evidence of that.”

Bert:

Again, this is something that does take a little bit of practice. The reality is, again, if you’re going to go out drinking, you should schedule a driver in advance. Either do a taxi or an Uber or get a designated driver but in a case where maybe you’ve only had one drink and you’re not impaired, this is a perfect scenario here that Barry’s talking about. Kindly and respectfully …

Barry:

Decline.

Bert:

… decline (thank you) to take the test and you may be taken down but as you said, it’s not that big of a deal.

Barry:

It can be scary. It’s worth over-emphasizing. I think a lot of people have heard this advice and they refuse to follow it when they’re in the actual situation they get intimidated by the process and before you know it, they start taking tests.

The officer says, “Hey look, let’s just … You know what, you took those tests, you don’t even seem drunk let’s just do a breathalyzer because I don’t think you’re going to blow over the limit and we can just send you home.” It’s a lie, it’s a lie, it’s a lie.

Do not forget and tell your family members. Do not forget, do not take these tests. I even go so far as to say if they take you to the jail and they video tape you and you can’t stand straight, sit on the ground where you can … lay on the ground. Don’t give them any evidence. They’re videotaping and you’re swaying, that’s going to be evidence against you. Just lay on the ground if you can’t even stand or set straight.

It is worth repeating, these are not trying to get out of the system, this is basically when you’ve been arrested it’s my job to make sure that the prosecutors prove their case beyond a reasonable doubt. I agree with you completely. I’m one of the biggest proponents of driving safety. Do not put yourself in that situation, not just for the legal consequences, more importantly the safety aspects.

If you hurt yourself or more significantly kill somebody else, that is something you’ll never be able to shake. A DWI on your record too is not going to hurt you. Having someone’s death or serious impairment on your conscious you’ll carry that with you for life.

What you need to know when arrested in Texas?
Bert:

Yes and that’s a really good point. I’m glad you said that.

Let’s talk about this. Let’s talk about what is a warrant and should I respond if all of a sudden I get a call and there’s a warrant issued for my arrest? Talk about this.

Barry:

Warrants can be issued in two different ways. Sometimes they’ll do it calmly and say, “Look we’ve got a warrant.” They can call you at a time and say, “We’re coming over”, or, “We’re going to your office and we need to search some things.” A lot of times they kind of forego the knock and announce so to speak. They just show up and they say, “Surprise, we’re searching all your stuff. You’re always entitled to ask to see if that’s been signed by a Judge. There are strict constitutional requirements. I would say probably half of the case law in criminal is based on search, seizures and warrants. There’s a lot of parameters and a lot of nuances to this.

You don’t need to worry about that at that time. If they show up and they’ve got a paper warrant signed by a Judge, let them do what they’re going to do. Your attorney can fight the legalities of that later. If they don’t have it, then like I said if they ask you, just politely decline. A lot of times they’ll choose to do it anyway. They’ll search anyway.

Don’t resist them, go along and let your attorney handle that issue later. If the officer’s actually see the commission of a crime and they have a reasonable suspicion that something’s occurring, they can do a warrantless search. Again, like I said don’t debate the officer on that, you’re not going to win that. Just cooperate and let your attorney deal with that later.

Bert:

I want to, like you said earlier, we’re not talking about some kind of tactics to get out of the system to circumvent the law. It’s really, again what I had said earlier about being an adversarial system. These guys have a certain point of view that they’re trying to fulfill their duty and you have a right to fulfill your duties to assert your right, to protect yourself.

There is nothing wrong, ever, ever by asserting your rights. You can assert your rights and still be a decent person and be, as you said, professional or polite and respectful. There’s nothing wrong with saying, “Hey, I respectfully decline. I’d like to talk to my attorney.” Again, these officers have a difficult duty and their training is to see everything through those glasses.

Barry:

Where I see that come up a lot is when clients are doing the initial arraignment, they’ve got to enter a plea of guilty or not guilty. I’ve had clients say, “I’m going to enter guilty.” First of all I say, “Look, you don’t even know what the elements of the offense are. Technically you’re not even qualified to determine whether you committed an offense. You’re just going off of what the officers told you. Let’s figure out if you actually did it.”

Second, this is not a morality issue. If you go in and you say, “Not guilty, I want to reserve my right to a jury trial, that’s not a morality issue. That is a constitutional right which makes our process work. You fight it.” You say, “Look, we’re going to make the prosecutor prove our case beyond a reasonable doubt. They put the evidence and if you did it, the jury’s going to make that ultimate decision.

You always have the right to say, “Not guilty. I want to make the prosecution prove that I did it.” It’s not a morality thing, it’s a constitutional right. A Judge will never hold that against you, never. They recognize that right.

Bert:

Absolutely. Bottom line is, there is also I’ll say degrees of guilty. There is … what do you call it, by waiting … I guess my point what I’m trying to say here, by pleading not guilty it makes the prosecution show you the evidence and then you can look at it with your attorney and say, “You know what, I’m willing to agree to this but not to this other stuff.” Then you can see what that really means.

Barry:

Ideally you want to have full disclosure what the evidence actually shows. Most states have some type of laws that require the prosecution to disclose any evidence that would help in your favor. It’s up to debate whether that’s actually followed through but that’s the law in most states.

You get a real clear understanding of what you’ve been charged with, what the evidence is against that. What you should be playing to, what you should be fighting. Even saying, Not guilty” and saying, “I want to pursue this” means let’s get a more clear understanding of what I’ve actually been charged with and what evidence you have that I did that.

Bert:

Absolutely. Because I went to law school and like I said, I worked for a law firm and I clerked and all that stuff, I personally, not that I get too many of them but occasionally I will get a speeding ticket or a traffic citation and I do enjoy fighting them. I want to say that I win 90% of them or 80% of them I win and then the other 20% I do some kind of probation so it doesn’t hit my points or my record.

My point being though, there was a scenario awhile back where I showed up. I’d gotten a parking ticket and I was fighting that. The police officer that showed up basically he was the witness against me. He was there and he witnessed that his statement was that he saw the meter had expired and therefore wrote me a ticket. Because he was a police officer, he’s given a little bit more …

Barry:Leeway, credibility?
Bert:

Yeah leeway, credibility. The Judge says, “Okay”. He kind of proved his Prima facie case that I had violated the parking statute or whatever and as we started … the Judge said, “Hey, do you want to just accept a guilty plea and we can just move on?” I said, “No, we’re here for trial, let’s do this trial thing.” We went to trial and the police officer opens up his folder and he’s got a completely different vehicle in there.

Barry:

That’s a common … you’d be surprised at how many times we see that.

Bert:

Right then I got that case dismissed and I got lucky. My point being is just because … back to what you were saying. Just because the Government says you did something wrong and I’m just using that as a minor example, doesn’t mean that you “really did anything wrong” and B, it doesn’t mean that they have all the facts.

Barry:

They work on mis-information and mis-interpreting the facts and they over state it. That’s just part of what they do. That’s why it’s so important to get a criminal defense attorney involved as soon as possible.

One of the biggest benefits of seeing a criminal defense attorney is that you have all these fears of the unknown, what’s going to happen. You start thinking about worse case scenarios and you have the officers telling you you’re the worst kind of criminal. When you’re able to set in front of an attorney and they say, “Look, I’ve handled this issue and in fact, I’ve actually been up in front of this Judge. I’ve had the same kind of case. Let me tell you more than likely what’s going to happen. You’re not going to do time. This is probably not going to affect your job depending on what kind of a job you have. It’s going to cost you this much rather than this much.”

Just that alleviating the fears is one of the biggest benefits. Your mind can start playing tricks on you and you assume the worst. That’s a huge benefit.

In your scenario, it sounded like you were going before a Judge … I’ve been doing this long enough to be very skeptical about Judges. I always trust the jury. The jury … it’s amazing seeing so many jury trials how serious they take their job. They really want to get to the truth. The Voir Dire process, when you’re kind of vetting potential jurors to be on your panel, it’s a common question to say, “Look, does that officer have more credibility in your eyes just because he’s an officer and he’s got a uniform on?”

It’s interesting because in some jurisdictions I’ve stopped asking that question because they’re more biased against officers. You see the prosecutors asking that question more. In some jurisdictions there’s more of a bias against the officers. Some of them you’ve got to pursue that because they really do hold officers in esteem as they should, but the point is that before they’ve heard any evidence, are they giving that witness, that officer more credibility than he’s due just because of his position? That’s where it’s dangerous and that’s where you ran into that scenario.

Absolutely. I know what the facts are and then when you get them on the stand, it turns out he’s completely confused about what case it was.

What you need to know when arrested in Texas?
Bert:

Let me ask you this. Let’s talk about this real quick. I want to get your thoughts. I’m going to put you on the spot a little bit. If I had to hire a defense attorney, what should I be looking for?

Barry:

You first want to know how many cases he’s handled of a similar nature and you want the outcomes. A good experienced attorney is not going to shy away from those questions.

You also want to have a confidence and a rapport. That’s a tricky line to kind of weigh because you go in and you want the attorney to be comfortable in the manner he’s speaking with but you don’t want him to be arrogant. You want him to be able to talk to you on your level, empathize with you, kind of see where you are uniquely because not every case is the same. You want an attorney to see that.

Also, if he can connect with you, more than likely he can connect with the jury. If some guy is real arrogant and talks down to you, what do you think he’s going to do when he gets in front of a jury? They’re going to sense that right away.

Always be straightforward about fees. Good attorneys, they’re going to tell you up front what it’s going to cost you until you get to the trial and they can usually just give you an estimate. A good attorney’s going to be expensive and he’s not going to be apologetic about that. He’s going to say, “Hey Mike, here’s my fee and there’s a reason why I charge that amount because it’s taken a lot of years and a lot of experience to do what I do. I kind of know the right bolts to tweak and the right nails to hit to get this resolved favorably.”

Also make sure there’s a clear amount of communication. Who do you talk to? What’s your expectations of getting a response? Like I said, when you’re going through a criminal charge there’s a lot of anxiety that’s built up and information is the best anecdote to that, having clear information can alleviate those fears.

Bert:

I love it. I love it Barry. It’s been an absolute pleasure having you on the show. I hope people will, if anything, take away the fact that no matter what they need to ask for an attorney. They need to assert their rights.

Barry Bobbitt, thank you so much for stopping by.

Barry:

Thanks Bert, it’s been fun.

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