When Remaining Silent Hurts Your Case

When Remaining Silent Hurts Your Case

3 scenarios in which remaining silent can actually be used against you in a criminal case.

When Remaining Silent Hurts Your CaseIf you are familiar with criminal law at all—even simply from shows like Law & Order—you no doubt have some understanding of the right to remain silent. Police typically advise suspects of this right immediately upon arrest or at least directly before questioning following an arrest via the Miranda Warning. This warning reads:

  • You have the right to remain silent when questioned.
  • Anything you say or do may be used against you in a court of law.
  • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
  • If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
  • If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
  • Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

However, it is important to realize that the “right to remain silent” as promised in the Miranda warning is subject to limitations. If you do not understand these limitations you may be at risk of actually harming your case by remaining silent. Here are 3 examples of such scenarios.

When You Are Not Yet in Custody

Based on a controversial Supreme Court ruling from June of 2013, it is possible for police to construe silence as evidence of guilt when a suspect has not yet been arrested, been Mirandized, or invoked his right to silence on his own. The case in question revolved around a suspect who was not yet in custody and was cooperating with police. He answered all of their questions and even produced his gun for police inspection. However, when the police asked if shell casings at the scene would match this gun, the suspect didn’t answer. The police continued asking different questions and these were answered. The court ruled that this silence could be admitted as evidence of the subject’s guilt. The suspect could have avoided this by clearly stating he wished to invoke his 5th amendment right to silence.

When You Have Not Yet Affirmed Your Rights

It is very important to understand that literally remaining silent does not guarantee your right to protection against self-incrimination. This is why the Miranda Warning ends with a question. You must declare whether or not you wish to invoke or waive your rights. If you do not invoke your rights, anything you do eventually say—even hours or days later—can be entered as evidence according to a 2010 Supreme Court decision.

When Silence Is Construed as Callousness

One final example of when silence can hurt your case comes from a 2014 California Supreme Court decision involving a suspect accused of causing a fatal car crash. The suspect was arrested and said nothing. Later, the prosecution argued that his failure to ask after the well-being of the individuals in the car he had hit showed a lack of remorse. The court allowed this evidence because the suspect had not officially invoked his right to silence and therefore his silence was not protected under the 5th amendment.

Your best move is to immediately state you wish to invoke your right to silence—even if this is not offered by police—and contact a criminal defense attorney before answering any questions.

Felony DUIs in California

Felony DUIs in California

Serious charges need serious representation.

Felony DUIIn most situations, getting caught driving over the legal limit for drugs or alcohol will result in a misdemeanor charge. However, there are three situations where the DUI could be prosecuted as a felony. If you find yourself in one of these three situations, you will certainly want to enlist the services of an expert DUI defense attorney to help protect you from the serious penalties that could attend a conviction.

DUI Causing Injury or Death

If you struck a pedestrian or vehicle while driving under the influence and serious injuries or death resulted, you could be charged with a felony. Depending on the circumstances of your case, the prosecutor may decide to charge you with DUI vehicular manslaughter, DUI second-degree murder, or “driving under the influence causing injury” as described in California Vehicle Code 23513.

Multiple Convictions

The more times you are convicted of DUI, the stiffer the penalties will become. By the time you reach your fourth DUI within 10 years, you may be facing felony charges. The prosecutor can count out of state DUIs as well as California DUIs when determining whether or not your case merits felony charges due to multiple convictions.

Prior Felony DUI

If you have any prior felony DUIs on your record, your next DUI will automatically be charged as a felony as well, regardless of the circumstances of the case. This means you could be charged with a felony on your second DUI if your first DUI caused a death. The three strikes in 10 years concept that normally governs multiple DUIs will not apply to you.

Defending Against Felony DUI Charges

Because the potential penalties for a felony DUI are so severe (including time in state prison and a loss of driving privileges) it is extremely important that you exhaust every possible avenue in your defense. As an experienced DUI attorney, Torrence L. Howell can help.

One of the most effective ways to defend against a felony DUI or any type of DUI is to challenge the blood or breath tests used to establish your level of impairment. These tests can often give false positives due to factors including improper test administration, improper machine calibration, or interference from medications or medical conditions. Torrence L. Howell will investigate all of these possibilities thoroughly to see if the test results can be called into question. Once this hard evidence has been undermined, the case against you often falls apart.

Could Your Ex Have You Charged with Stalking?

Could Your Ex Have You Charged with Stalking?

5 behaviors that could form the grounds for stalking charges

StalkingIf you’re going through a divorce or custody battle, you may find yourself feeling frustrated about an inability to communicate effectively with your ex through the lawyers or mediators that have been hired to help resolve your dispute. You might be tempted to take matters into your own hands and seek out opportunities to see your ex. Your motives may be good, but your behavior could be misinterpreted. Under California law, following, harassing, or threatening any individual to the point where it causes them fear and distress can be considered stalking. Here are 5 behaviors that could give your ex grounds to press stalking charges against you.


Following an individual or repeatedly showing up at place they are known to frequent is the most traditional definition of stalking. Avoid dropping by your ex’s home or workplace or your children’s school unexpectedly and without permission, especially if there is a protective order in place against you.


Many types of surveillance, including repeatedly driving past your ex’s home, going through their garbage, using hidden cameras or GPS systems to track them, or hiring a private investigator to do any of these things for you, could be considered stalking.

Unwanted Communications

Harassing your ex by phone, text, email, or snail mail can also be considered a type of stalking. This is true even if you don’t actually say anything threatening—even calling and hanging up can be grounds for a complaint against you. California also has laws against cyberstalking, so excessive messaging on social media or various internet sites can also be considered stalking.


When you’re angry at an ex, it can be tempting to take it out on something they value, like their car or other property. However, if your ex sees the damage as an effort to threaten or intimidate them, it can be considered stalking rather than mere vandalism and may expose you to much harsher penalties.


Lastly, any type of threat made towards your ex or their family, friends, or coworkers can be grounds for stalking charges.

What To Do If You’ve Been Charged with Stalking

If your ex or any other individual has accused you of stalking, you need to get expert representation right away. Stalking charges can be charged as felonies and result in up to 5 years in state prison in extreme cases. To make matters worse for individuals involved in custody disputes, a stalking conviction can seriously damage your chances of securing a favorable custody or visitation agreement. Fortunately, you can contact experienced stalking defense attorney Torrence L. Howell for help now.

Consequences of Driving Under the Influence

Consequences of Driving Under the Influence

The consequences of a DUI conviction may include fines, jail time, and license restriction, suspension or revocation

In the state of California, you can be charged with DUI or driving under the influence even if you don’t consider yourself impaired as a result of your drug or alcohol consumption. If your blood alcohol level is 0.08 percent or above (or 0.05 percent or above for drivers under 21), or if you test positive for high amounts of certain legal or illegal drugs, this qualifies as a DUI. If convicted, you can face the following consequences.

Consequences of a First DUI Conviction

Assuming the DUI incident did not result in an accident causing injury or death to any party, a first-time DUI conviction will result in the following penalties at minimum:

  • Fines of $390 to $2,800
  • 48 hours in county jail or a 90-day license restriction
  • License suspension through the DMV
  • Required completion of an alcohol treatment program
  • 3 to 5 years of probation

If your blood alcohol level was high or the circumstances of your DUI justify it in some other way, additional stricter penalties may apply. These include increased fines, up to 6 months in county jail, a 6 to 10-month license suspension, 30-day vehicle impoundment, and the installation of an “interlock” breath device on your vehicle that will prevent it from starting up when there is alcohol on your breath.

Subsequent DUI Convictions

If you are convicted of additional DUIs within 10 years of your first DUI, the severity of the penalties will increase even further. You will almost certainly spend time in county jail, possibly up to 16 months, and you will be required to install an interlock device on your car. Your alcohol treatment program will be longer, as will the periods of suspension or restriction on your license. For third or fourth convictions, your license can actually be revoked entirely for 3 or 4 years.

DUIs Involving Injury or Death

Naturally if the DUI causes injury or death, the consequences will be more severe. The DUI will probably be charged as a felony and you could end up in state prison for 1 to 5 years, depending on the nature of the incident and how many DUI convictions you already have.

More About Your Drivers License

Even simply getting arrested for a DUI will affect your drivers license. This is because the DMV immediately conducts an administrative review of your case and typically issues a 4-month suspension of your license. You can fight this suspension by having a criminal defense attorney like Torrence L Howell challenge it during the first 10 days after your arrest.

If you are convicted of a DUI, the judge may order further suspension, restriction, or revocation of your license. If your license is restricted, you will only be permitted to drive to and from work and to and from your alcohol treatment program. If your license is revoked, you will not be able to drive at all.

Get Help with DUI Charges

As you can see, getting convicted of a DUI can have a big impact on your ability to lead a normal daily life. Fortunately, you can get help fighting DUI charges from Torrence L Howell. Call the Law Offices of Torrence L Howell today for a free consultation.