DA to review 15 months of Philly DUI cases

Written by
Randy Barber
FILED UNDER
World News
U.S./World News

PHILADELPHIA (AP) – Prosecutors in Philadelphia will review 15 months of drunk-driving cases after four of the breathalyzer machines used by city police were found to be improperly calibrated.

A spokeswoman for District Attorney Seth Williams said Thursday the office decided to perform a wholesale review of cases from September 2009 to November 2010 because of faulty breath tests.

A day earlier, Williams and police Commissioner Charles Ramsey said the improperly calibrated machines affected about 1,150 DUI cases. City police file thousands of DUI cases each year.

The district attorney’s office says no defense attorneys have thus far requested a new trial or a dismissal of charges.

Spokeswoman Tasha Jamerson says the office will also do its own calibration checks on machines rather than relying only on police certifications.

Aggressive criminal defense or aggressive DUI defense means fighting the charge.  Not just showing up and pleading guilty.  Aggressive criminal defense or DUI defense means challenging the evidence.  Making the Prosecution prove the case beyond a reasonable doubt.  You may ask how does that happen?  Aggressive defense happens by careful analysis of the case and finding avenues to challenge the evidence.  Starting with the police contact, the evidence observed by the police, the evidence obtained by the police, the interpretation of the evidence, the fact witnesses, and finally the defendant.  In some cases it may be necessary to hire experts to find the answers to interpret the evidence and offer different conclusions.   Sometimes experts won’t help your case  An experienced criminal defense or DUI attorney should know when to use an expert?

The use of experts:  In driving under the influence cases, experts can help in interpreting the blood or breath alcohol results by discounting the weight it should carry due to errors in obtaining the evidence.  Experts can help explain medical explanations for the results and experts can scrutinize the police conduct in the stop of the defendant and subsequent field sobriety tests.  The use of experts is sometimes necessary to show the breath machine wasn’t working or the paramedic made errors in obtaining blood evidence. In cases where there are accidents, the use of an expert can show the jury where the officers made errors in the investigation which may help in some way.  In all criminal defense cases, an investigator may be necessary to interview witnesses and find errors in the police work.

Challenging the evidence:  Besides using experts to challenge the evidence, aggressive defense means making the prosecution prove the case to a jury.  In the process of proving the case, the filing of motions to challenge the police conduct is very importation.  A motions hearing is a great opportunity to make the police officers explain to the Judge why they contacted the defendant and what skills they used to determine the defendant should be arrested.  The motions hearing gives the attorney the chance to cross examine the officers and obtain a sneak preview of the evidence before the evidence is presented to a jury. Scrutinizing the training and experience of the officer is a nice way to show the Judge and eventually a jury that the officers subjected belief was wrong or based on poor training.  Just making the prosecution go through the process of a motions hearing makes them work harder.  Sometimes a case can be won at motions if a Judge finds the officer had no reasonable suspicion or probable cause to contact or arrest the defendant.  Other issues are addressed at motions like trying to prevent a statement made to the police by the defendant from being heard by the jury.

Jury trial: The next step to an aggressive defense is the jury trial.  After battling the prosecution at a motions hearing and retaining experts to consult on matters, the jury trial is the final stage to present your defense to a jury.   The aggressive DUI or criminal defense will often times resolve a case by the time of the trial.  The fighting tooth and nail of every issue will show the prosecution that you are up for the fight and sometimes a strong case will look a lot weaker after being scrutinized by experts and he officers credentials are challenged.

Remember as a defendant you are presumed innocent.  In DUI cases, there are many areas to challenge and the use of experts and filing motions challenging the officers conduct is important in achieving the best possible outcome.  Sometimes it is very worth the effort!  I always tell my clients, good things happen when preparing to take a case to trial.  Aggressive defense is the method of challenging the evidence and making the prosecutor prove the case against the defendant.  Many times it leads to a better outcome.

When you get arrested for driving under the influence of alcohol or drugs you often face two real problems–1) Your drivers license and the motor vehicle department and 2) the state law where jail is mandatory on some first offenses.

There are fact situations where getting an attorney may not benefit you.  Unfortunately you don’t know whether an attorney will help your case until an attorney has reviewed the case including investigated the blood test, breath machine, officer training, officers reports, witness statements and factors that affect the case such as medical conditions.  Often times cases fall apart for the prosecution during a hearing challenging the constitutionality of the stop.  Sometimes an attorney will need to get deep into the case before creating better options for the client.

The DUI case often includes a motor vehicle hearing where the attorney gets an opportunity to cross examine the police officer before the prosecutor has even seen the case.  The motor vehicle hearing sometimes is the most important piece of the case because the police officer often isn’t prepared to answer specific questions regarding his training and the arrest.  Committing the officer to one story that changes at a motions hearing or trial is golden.  Good things happen when preparing for trial.

So do I need an attorney? If you want to make sure the case against you is valid and you want to achieve the best possible result by plea or trial–You should get an attorney.  There is many ways a lawyer can help if you subsequently have to plead guilty to an alcohol offense.  A lawyer will properly advise you whether to challenge the case or whether a better plea option is available.  A lawyer will advise you whether hiring an expert to challenge the blood or breath results or explain a medical condition will benefit your case.  The right lawyer will navigate you through the process.

Sometimes taking a plea is the only or best option.   If a plea is on the horizon a lawyer will have you prepared for any type of sentencing.  There is nothing more frustrating then sitting in court and watching the individual without an attorney get hammered by the Judge because he wasn’t prepared.  He didn’t articulate what was going on in his life, he didn’t start taking classes, he didn’t say the right thing and the Judge didn’t listen.

Remember the officer isn’t your friend.  Strongly consider hiring an attorney.

Below are the possible penalties for a DUI or DWAI in Colorado.  The possible penalties changed in July 2010 and now when you have prior alcohol related offenses, the options for sentencing have changed.  If you are sent to jail, you get virtually no good time to shorten your sentence during the mandatory sentencing time.

Penalties (offenses on or after July 1, 2010): First Offense: 2 to 180 days in the county jail and a fine of $200.00 (mandatory minimum) to $500.00 plus a court imposed surcharge on the fine; 24 (mandatory minimum) to 48 hours of public service; 8 points assessed against the Defendant’s driver’s license; Court costs as ordered by the court; $100.00 persistent drunk driving surcharge; Up to 2 years probation. If Defendant’ s blood alcohol content was 0.2 or more at the time of driving or within 2 hours of driving, penalties: 10 days (mandatory minimum) to 1 year in the county jail.

Second Offense: 10days(mandatory minimum; no credit good or trustee time for r mandatory period; mandatory period consecutive; limited alternative sentencing for mandatory period if first conviction less than 5 years prior) to 1 year (plus additional 1 year for violation of probation) in the county jail and a fine of $600.00 (mandatory minimum) to $1500.00 plus a court imposed surcharge on the fine; 48 (mandatory minimum) to 120 hours of public service; 8 points assessed against the Defendant’s driver’s license; Court costs as ordered by the court; $200.00 persistent drunk driving surcharge; 2 years (mandatory minimum) to 4 years probation. Probation conditions shall include: 1 year suspended jail, level II alcohol and drug education or treatment program, restitution, and other conditions the Court requires.

Third and Subsequent Offenses: 60days(mandatory minimum; no credit good or trustee time for mandatory period; mandatory period consecutive; limited alternative sentencing for mandatory period) to 1 year (plus additional 1 year for violation of probation) in the county jail and a fine of $600.00 (mandatory minimum) to $1500.00 plus a court imposed surcharge on the fine; 48 (mandatory minimum) to 120 hours of public service; 8 points assessed against the Defendant’s driver’s license; Court costs as ordered by the court; $300.00- $500.00 persistent drunk driving surcharge; 2 years (mandatory minimum) to 4 years probation. Probation     conditions shall include: 1 year suspended jail, level II alcohol and drug education or treatment program, restitution, and other conditions the Court orders.

FAQ: K2, Spice Gold, and Herbal ‘Incense’

Legal Herbal Products Laced With Designer Drugs: Not Your Father’s Marijuana

By Daniel J. DeNoon

WebMD Health News

Reviewed by Louise Chang, MD

March 5, 2010 – K2, Spice Gold, and dozens of other currently legal “herbal incense” products are spiked with powerful designer drugs — and they don’t show up in drug tests.

As early as 2004, this type of product began appearing for sale on the Internet and in head shops in Europe. By 2008, sales throughout Europe soared; U.S. and Canada sales took off in 2009.

“I believe it is everywhere in the United States,” Marilyn Huestis, PhD, chief of chemistry and drug metabolism at the National Institute for Drug Abuse, tells WebMD.

Package labels feature psychedelic art and claim that the contents are a mixture of various herbs. But unlike smoking the herbs listed on the label, smoking the products produces effects similar to those of marijuana, hashish, and other forms of cannabis.

“Hospitals in Europe began to report instances where a person appeared with all the symptoms of cannabis intoxication, but their drug screen was negative,” Huestis says.

Users, parents, public health officers, and enforcement agencies all want to know: What really is in these products? How safe are they? Are they addictive?

Here are WebMD’s answers to these and other FAQs.

What drugs are in K2, Spice Gold, and other herbal incense products?

Initial tests of Spice Gold and similar products found no illegal substances and were not able to detect active ingredients that could explain the “high” they produced in users. The tests also were unable to detect most of the herbs the products were supposed to contain.

Finally, in late 2008, Volker Auwarter, ScD, and colleagues in the forensic toxicology lab at the University Hospital Freiburg, Germany, found that the products contained at least two different designer drugs known as synthetic cannabinoids.

The drugs detected by Auwarter had the same chemical signal as drugs detected — but not identified — in samples of Spice brand product tested privately by the user-oriented Erowid drug information web site in 2007.

Like THC, the active ingredient in marijuana and other forms of cannabis, these synthetic cannabinoids turn on the cannabinoid receptors found on many cells in the body. The brain is particularly rich in the CB1 cannabinoid receptor.

But most synthetic cannabinoids are quite different chemical structures from THC. And unlike cannabis, the new drugs have never been tested in humans.

One of these synthetic cannabinoids, JWH 018, was first made in 1995 for experimental purposes in the lab of Clemson University researcher John W. Huffman, PhD.

“In terms of biological activity, these things are similar to THC, the active compound in cannabis,” Huffman tells WebMD. “Now the thing is, nobody knows anything about how these new compounds act in the human body. Anecdotal reports say they stick around in the body for quite a long time.”

More than 100 different synthetic cannabinoids have been created. In his 2008 study, Auwarter tested seven of the herbal products and found they contained different levels of JWH 018, a synthetic cannabinoid created by Pfizer called CP 47,497, or both.

Since then, Auwarter has found five different synthetic cannabinoids in the products. Huestis estimates that about 10 different synthetic cannabinoids have been detected in the products, usually in some combination.

Are K2, Spice Gold, and other herbal incense products safe?

No. Until a drug is tested, it cannot be considered safe. Not only have synthetic cannabinoids not been tested, nearly all were created for experimental use in animals and cell cultures — not in humans.

And there are good reasons to believe that some if not all of these drugs are unsafe. JWH 018 and its many cousins, for example, have a chemical structure shared with known cancer-causing agents.

JWH 018 inventor John W. Huffman, PhD, puts it bluntly.

“It is like Russian roulette to use these drugs. We don’t know a darn thing about them for real,” he tells WebMD.

Most of these drugs were created because they bind much more tightly to the body’s cannabinoid receptors than THC does. THC, in fact, only partially binds to these important regulators of body function. Many of the synthetic cannabinoids fully activate the receptors.

“When you take these drugs, you are hijacking the part of the brain important for many functions: temperature control, food intake, perception, memory, and problem solving,” Huestis says. “And people taking these high-potency drugs are affecting other important functions throughout their bodies — hormone functions, for example.”

Moreover, cannabinoids also bind CB2, the cannabinoid receptor that helps regulate the immune system.

Finally, all of the effects of these drugs may not become apparent for a long time. That’s because they are stored in the body for a long period of time.

“The fact is these drugs have not been tested in humans, and we don’t know what they could do,” Huestis says. “There may be acute toxicity; there may be long-term toxicity. We don’t know any of that.”

And here’s another alarming thing that isn’t known. Tests show that even the same brand of one of these products may have different drugs — in different amounts — at different times.  Since the synthetic cannabinoids are very powerful, even a small increase in dose can have much more powerful side effects.

And since these products are not regulated drugs, there’s no way to know how big a dose you’re getting.  No drug is safe if you don’t know what it is and how much of it you’re taking.

What happens when a person smokes K2, Spice Gold, or other herbal incense products?

Before trying to find out what was in the herbal incense products, Auwarter wanted to know whether the products really had any activity.

So he took what is these days a very unusual step: He and a colleague tested the products on themselves.

They took a packet of a product called Spice Diamond and rolled 300 milligrams — a tenth of the package — into a cigarette paper. The two men shared the cigarette, so each consumed only a small dose of about 150 milligrams.

“Nothing happened in the first five minutes. I was just about to roll the next one and suddenly the effects came quite quickly,” Auwarter tells WebMD. “I had massive reddening of the eyes, and a very dry mouth. My heart rate doubled, from 60 to 120 beats per minute. And the feeling of intoxication was like the experience reported by cannabis users.”

Auwarter’s heart pounded away for the six hours it took for the drug’s acute effects to wear off. He did not sleep well that night and felt a slight hangover the next day.

Huffman tells a much scarier story. He says he’d never take the drugs himself, but he recently received an email from a worried parent whose daughter was given something to smoke at a party.

“She thought it was pot, but it was K2,” Huffman says. “She was still having effects a week later. And a toxicologist at St. Louis University came by a week ago and said there are all kinds of reports of people having heart rates like 150 and blood pressure shooting up to 200 over 100. That is dangerous.”

Are K2, Spice Gold, and other herbal incense products addictive?

Apparently so. Last year, German researchers reported the case of a 20-year-old man who had been using the Spice Gold product daily for eight months.

Not long after starting the product, the man found that he needed larger and larger doses to feel an effect. He quickly increased his use to 3 grams per day — 10 times the dose that produced the effects described by Auwarter.

The man felt a continuous need for the product. He was unable to get it for a period of time and experienced unrest, drug craving, nightmares, sweating, nausea, tremor, headache, high blood pressure, and racing heartbeat. This went away when he again began using the product.

Finally, the man was persuaded to stop using the product. But fearing a repeat of his earlier experience, he checked into a hospital. Sure enough, he again went through classic withdrawal symptoms that lasted a week.

This clinical description fits with reports that Auwarter has received. He says that while classic drug dependence is rare among cannabis users, it may be much more common among users of synthetic cannabinoids.

Do drug tests detect K2, Spice Gold, and other herbal incense products?

Not yet. Huffman says he heard from the director of a very strict boys’ school that gives weekly drug tests to pupils. Despite finding that some of the boys were smoking K2, none of them tested positive on the drug screens.

Auwarter says his team is close to developing a urine test for some of the synthetic cannabinoids. But today, the only way to identify the compounds is via a blood test — and that has to be performed before the effects of the drug wear off.

Are K2, Spice Gold, and other herbal incense products legal?

Because the synthetic cannabinoids found in these products are new, they remain legal in many states. Many European nations already have banned some or all of the products.

Kansas was the first state to pass a law banning sale of the products; similar laws have been proposed in Missouri, Tennessee, and several other states.

Your attorney should be trained in DUI defense.  Your DUI defense attorney should have extensive knowledge of the law and the science.  The DUI defense attorney should have completed extra training regarding field sobriety tests, drug recognition, the breath machine, blood tests and  science of Driving under the influence cases.  As a founding member of the National College of DUI Defense I have the extra training and knowledge.   Even with the extra training in DUI defense, you have the right to attorney who meets your needs.  You should expect an attorney to give you best possible defense and outcome.  You should expect:

1. Client Involvement.  Some people like to be actively involved with their case while others would prefer not to worry about it.  It is the client’s case.  Some attorneys enjoy having a client watching every move while other prefer to be able to work up the case and let the client know what is going on when there is something to tell.   You need to hire an attorney and philosophy that fits your situation.  I enjoy working with clients who give me as much information as they know about a situation, give me a list of people who can help and who are willing to be engaged with their defense.   My firm believes it is very important to have open communication with clients.  If the client has a question, he should call the attorney.
2. Investigation.  You and your attorney should agree on the scope of investigation.  Some cases require experts.  Some cases require witness interviews.  All cases require careful thought and strategy to determine how to approach resolving the matter.  My firm believes in using a team of experts to address any necessary investigation, expert testimony, or evaluations that need to be done to further the case and present the best possible defense, mitigation and investigation.  My firms consults with toxicologists, field sobriety experts and breath machine experts in cases where experts will help.
3. Communication.  You should expect your attorney to be available within a reasonable time.  If you have a question you should feel comfortable in calling your lawyer.  A lawyer should not be afraid to give you news you don’t want to hear.  After all, you are working towards the same goal.
4. Honesty.  Your attorney should analyze the peoples case often called discovery and give you an honest explanation of areas that need additional investigation, and research, potential defenses, potential pitfalls, potential penalties, likelihood of success at trial, recommendations regarding plea negotiations and a game plan for the best possible result.  Sometimes honesty hurts.  An experienced attorney will be to honestly answer questions based on years of experience.  You hire an attorney for counsel as well as to present the best possible defense.
5. Answers.  The attorney should be able to answer your questions.  Attorneys are not magicians and cannot predict the future but an attorney should be able to answer questions regarding what is going to happen, what is next and what should be expected from each state of the proceeding.  The attorney should be able to advise you on the possible drivers license consequences and possible penalties.
6. Counsel.  You go to an attorney to represent you in a criminal matter.  Sometimes that includes Counsel.  You pay an attorney for advice.  You may disregard his advice but you should at least feel comfortable to listen to the advice and Counsel and consider it in making important decisions.
7. Options.  A good criminal defense attorney will get you many options.  Whether it is a favorable plea offer or different strategies to pursue at trial, an attorney should give you many options to resolve your matter.  The decision to proceed with a plea agreement or take the matter to trial, is always the clients.  An open discussion with your attorney is very important in helping you make the best choice.

Richard B. Huttner limits his practice to criminal defense including driving under the influence of alcohol and/or drugs.  He has been practicing for 17 years and has conducted over 100 misdemeanor and felony jury trials.  Richard B. Huttner has defended over 2500 cases for clients.  Richard B. Huttner handles both misdemeanor and felony cases in all  Metro Denver counties including:  Adams, Arapahoe, Boulder,  Broomfield, Douglas, Denver, Gilpin,  and Jefferson Counties.  He practices in most Municipalities including Aurora, Lakewood, Littleton, Englewood, Thornton, Northglenn, Sheridan and Westminster.

Beginning in July 2010, multiple offenders have little chance of avoiding the jail and will have extra requirements on probation.  Furthermore, multiple offenders will not receive good time in jail and will have to serve the entire sentence. People convicted of multiple offenses within five years of each other will not be allowed to receive work release.  People convicted of a third or more offense receive a long minimum jail sentence with no work release.  The penalties, fines and costs and probation requirements are more onerous.  What does this mean?  When you get charged with driving under the influence of alcohol and or drugs you must get counsel.  You must be willing to fight each case and hire an attorney willing to fight for you.  A competent attorney who will look deep into the facts and challenge the prosecution.  You are presumed innocent.  Remember an experienced attorney who is willing to fight for your rights even on a first offense can make a big difference should you receive a second or third offense.  The penalties are tough and probably will get tougher.

Colorado uses a 5000EN breath machine to conduct breath tests on DUI suspects.  Is it Accurate?  The machine makes assumptions that everybody is created equal.  That is one of the many problems with a breath test. Officers are trained to turn on the machine, have the machine run a number of internal checks, give the breath test and write down the results.  Comforting.  Does the machine work correctly?  Did the officer accurately observe the suspected drunk driver to make sure his/her body was ready to take the test?  Was the room the machine in properly ventilated?  Was the machine calibrated correctly?  There are many potential problems  with these machines.   When charged with a DUI or DWAI based on results form the breath machine you need to properly analyze the results from the machine in relationship with the other evidence in the case.  Below is an article from the Washington Post with examples of problems when the Machine is wrong:

400 drunken-driving convictions in D.C. based on flawed test, official say

By Mary Pat Flaherty

Washington Post Staff Writer Thursday, June 10, 2010

Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.
D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said. Nickles’s office has begun notifying the drivers, a move that immediately triggered at least one lawsuit against the District and could lead to requests for expungements, new trials and even deeper skepticism about the integrity of testing. Challenging test results is at the heart of drunken-driving cases, and this revelation will only strengthen those challenges, defense attorneys said. The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said. The flawed testing does not jeopardize cases involving accidents or injuries, including fatal crashes, because blood or urine samples would have been taken as additional evidence, Nickles said. Nickles said he does not believe the new findings will change the results of the routine DWI cases, either, because officers often relied on field sobriety tests and other observations for their arrests. Still, Assistant Police Chief Patrick Burke said he could see “reduced charges in cases.” The machines have been under investigation by Nickles’s office since February, when an outside consultant working for the city suspected an accuracy problem. The District has replaced the breath equipment with another brand and has begun to devise stricter standards for testing the accuracy of machines to put the city more in line with nearby jurisdictions.

The flawed cases emerged after a review of 1,100 prosecutions between September 2008 and February 2010 that relied heavily on breath test results, according to a June 4 letter that Nickles sent to the local trial lawyers association and the public defender’s service.

His letter listed each of the affected cases and told the lawyers’ groups that they “may take whatever action you deem appropriate” to spread the word among the legal community. His office, he wrote, has begun contacting each of the drivers and their attorneys, but “that process may take several more weeks.”

D.C. resident Hector Molina-Aviles, 45, drew a five-day jail sentence after his blood-alcohol level in a 2008 arrest registered .21 — a level that triggers mandatory incarceration in the District. He had been celebrating his wife’s birthday in Mount Pleasant. He was pulled over on 16th Street for speeding, and an officer later said he smelled alcohol, Molina-Aviles said.

His is one of the flawed cases, according to the list.

Molina-Aviles said he initially refused to take the test but relented because he needed his license to drive to work as an actor and writer. He said he “never believed the high number they gave me” but pleaded guilty in January “because fighting this for years took over my life.” He remains on probation, has to seek permission to travel to out-of-state jobs and has been told that if he wants to become a citizen after more than 30 years as a legal resident, he has to wait to apply.

He said, “I understand there are consequences for actions, but I knew that result could not be right.”

Some lawyers who specialize in drunken-driving cases questioned Nickles’s continued confidence in the DWI convictions, with one lawyer, Thomas A. Key, calling it “utter bull.”

“The way the law is written in the District, you cannot bring a DWI without a .08 result,” Key said. “It demands that result to make that arrest. I’d take a case without a score any day and beat that. But once they have that test number in there, it’s a whole new ballgame for a client.”

The breath test alone is enough for a charge of DWI, Burke and Nickles said, and field sobriety tests are not needed to bolster the case.

Key, along with the Albo & Oblon firm and lawyer Bryan Brown, filed suit Wednesday on behalf of some clients whose DWI cases are now called into question. They are seeking damages and allege that the problems with the system were well known in the department.

Brown said he particularly objected to having had a DWI charge used as leverage to get a client to plead guilty to lesser charges.

Richard B. Huttner is a founding member of the National College of DUI defense.  He aggressively Defends drivers accused of driving under the influence of alcohol and drugs.  He can be reached at 303-595-4342.

Everybody has heard of these rights.  On June 1, 2010, the United States Supreme Court ruled that a defendant must tell the police they wish to remain silent.  If you are contacted by police and wish to remain silent until you speak with an attorney, you must tell the police “I wish to remain silent.”

Supreme Court backs off strict enforcement of Miranda rights

Once a suspect has been informed of his rights, he has the duty to invoke them, the justices say. The decision reinstates a murder conviction based largely on a suspect’s one-word answer to police.
By David G. Savage, Tribune Washington BureauJune 2, 2010

Reporting from Washington — -

The Supreme Court backed off Tuesday from strict enforcement of its historic Miranda decision, ruling that a crime suspect’s words can be used against him if he fails to clearly tell police that he does not want to talk. In the past, the court said the “burden rests on the government” to show that a crime suspect had “knowingly and intelligently waived” his rights. Some police departments tell officers not to begin questioning until a suspect has waived his rights, usually by signing a waiver form. But in Tuesday’s 5-4 decision, the court shifted the balance in favor of the police, saying a suspect has a duty to speak up and say he does not want to talk.Moreover, the police are “not required to obtain a waiver” of the suspect’s “right to remain silent before interrogating him,” Justice Anthony M. Kennedy wrote.

In her first strongly written dissent, Justice Sonia Sotomayor said the ruling “turns Miranda upside down” and “marks a substantial retreat from the protection against compelled self-incrimination.” Some experts on police questioning said the court’s subtle shift would be felt in station houses across the country. “This is the most important Miranda decision in a decade. And it will have a substantial impact on police practices,” said Charles Weisselberg, a law professor at UC Berkeley. “This decision approves of the practice of giving the warnings and then asking questions of the suspect, without asking first whether he wants to waive his rights.”

The case decided Tuesday involved Van Thompkins, who was arrested a year after the shooting of two men outside a mall in Southfield, Mich. One of the men died.A police detective read Thompkins his rights, including the right to remain silent and to have a lawyer. Thompkins said he understood, but did not sign a form. For about two hours and 45 minutes, Thompkins said almost nothing in response to questions. The detective asked Thompkins if he believed in God and then asked: “Do you pray to God to forgive you for shooting that boy down?” “Yes,” Thompkins said, and looked away. He refused to sign a confession or to speak further, but he was convicted of first-degree murder, based largely on his one-word reply.

The U.S. 6th Circuit Court of Appeals overturned Thompkins’ conviction on the grounds that the use of the incriminating answer violated his right against self-incrimination under the Miranda decision. The Supreme Court reversed that ruling and reinstated the conviction. A suspect who wants to invoke the right to remain silent must “do so unambiguously,” Kennedy said. “Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning.”

Joining Kennedy to form the majority were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Kennedy has played a key role in the last decade in preserving the core Miranda rule, while also narrowing its practical effect. For example, he joined with the liberal bloc for a 5-4 ruling in 2004 that rejected the police tactic of questioning first and then warning a suspect of his rights only after he made an incriminating comment.

The same day, he joined a 5-4 ruling by the conservative side that said physical evidence, such as a gun or cash, could be used against a suspect even if he revealed it during questioning without Miranda warnings. In the case decided Tuesday, Kennedy emphasized that the suspect had been warned of his rights and eventually chose to speak. The California-based Criminal Justice Legal Foundation praised the justices for paring back the “artificial rule” set in the Miranda decision. The court “recognized the practical realities that the police face in dealing with suspects,” said Kent Scheidegger, the group’s legal director.

But Steven Shapiro, legal director for the American Civil Liberties Union, said the case “demonstrates the power of custodial interrogation to wear down the defendant’s willpower, which is what Miranda was designed to prevent.” In her dissent, Sotomayor faulted the majority for announcing a “new general principle of law” that will be confusing in practice. “Criminal suspects must now unambiguously invoke their right to remain silent — which, counterintuitively, requires them to speak,” she said. Joining her in dissent were Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.

The majority ruling is in line with the position taken by the Obama administration and Solicitor General Elena Kagan, who has been nominated to the Supreme Court. In December, Kagan filed a brief on the side of Michigan prosecutors and argued that “the government need not prove that a suspect expressly waived his rights.”

david.savage@latimes.com

Richard B. Huttner is an experienced criminal defense attorney.  He practices in the Denver metro area and surrounding counties.  He can be reached at 303-595-4342.