“One Phone Call” and Other Myths – Understanding Your Rights After Being Arrested in Colorado

 

By H. Michael Steinberg Colorado Criminal Defense Lawyer

If you or someone you know has been arrested most likely they will describe the experience as a terrifying. It may have just happened in front of your eyes – in the presence of your family.

This brief article is intended to help demystify and to help you understand the process and shed light on what usually happens next. It may give you the insight you need to put yourself at an advantage in defending the case.

You’re Under Arrest – Initial Issues and Rights in Jail?

When a person is arrested in Colorado he or she will usually be taken directly to the county jail within the county in which they will be charged. If this suspect has been arrested in a different county, he or she will be transported to the charging county after being advised and having bond addressed by a judge in the first jurisdiction making the arrest.

What the family and friends of the person arrested must know immediately upon learning of that arrest starts with reading the following series of Colorado laws (which are linked to the actual wording) in this brief article.

The three Colorado laws that are relevant here are:

Section 16-3-401 – Treatment While in Custody

Section 16-3-402 – Right to Communicate with Attorney and Family

Section 16-3-403 – Right to Consult with Attorney

When a suspect arrives at the jail, that person is thoroughly searched – maybe for the second or third time. The personal belongings of the arrestee are confiscated, accounted for, and then stored by jail staff.

Next is the “data-collection process” known as “booking” takes place. The arrestee is asked a series of general questions – residence, employment, address, phone number, names of contacts etc. Booking includes the so called “mug shot” and the taking of fingerprints.

Drug and/or Alcohol Intoxication Arrests

If the person arrested is heavily under the influence of drugs or alcohol at the time of the arrest, a Colorado county jail cannot begin to accurately book and process that person, until the person arrested has sobered up.

Most jails will test the arrestee and attempt to confirm sobriety which may take as long as 8 hours, delaying their eligibility for booking.

After being booked been “booked,” the jail staff walks the arrestee to their cell. “Processing” cells differ from the post booking “extended stay” cells. While Colorado’s jails may differ jail to jail, following booking, there will, at some point, come a time when the prisoner is given an opportunity to make one or more phone calls.

Any stay in jail is, in fact terrifying, therefore it is critical that the arrestee stay strong and keep the correct mind-set. An intelligent and vigorous defense of the case starts from the moment of first contact with law enforcement.

Jail time allows for time to contemplate the accused legal options that lie ahead.  The decisions made from the very start of an investigation will often greatly impact the future of the case.

Medical Issues in Jail

The issue of administering medications in a Colorado jail is complex. If a person is arrested with serious medical conditions such as diabetes, asthma, epilepsy or heart conditions such as angina and they are on a medication schedule, they and/or their family should urgently notify the jail staff of that condition and provide the medications to the administration.

Medication is never allowed to be self administered while a person is in custody, the medication (which should be provided in a “pharmacy-issued” prescription bottle, is distributed by the nurse or doctor on staff.If the arrestee is ill, he or she is taken by EMTs to the closest hospital emergency room under guard.

Going to the hospital for those who are ill does not normally delay the ultimate release of the arrestee. It is another myth  that a serious medical condition will delay an inmate’s release and all serious medical matters should be brought to the attention of the jail’s staff.

The medical needs of a Colorado county jail inmate are protected by Section 16-3-401 – Treatment While in Custody.

Statements Should NOT be Made in the Jail and Proper the Use of the Phone While in Jail

Following the booking procedure, a person under arrest for a suspected criminal act will be tempted to use the phone to discuss the facts of the case with family, friends or perhaps the inmate’s employer.

Here is my warning – the inmate should NOT TALK to ANYONE about the facts or evidence in the case, …that includes family, friends and others over the phone or in person at the jail and that warning applies to, and especially includes, cell-mates and others in the jail and anyone in law enforcement.

It is understood that not talking about a case will be hard. While in jail the need to talk about one’s innocence can be overwhelming. But here is the reason for the warning, …all police stations and jails record inmate phone calls.

The prosecutor has a right, unless the call is to the inmate’s lawyer, to a complete copy of those recordings. Those recordings can later be used at trial or for any other purpose, such as proving a violation of a no-contact restraining order charge, should the arrestee contact the alleged victim in the case.

The arrestee should ask non-victim family or friends to locate and retain a criminal defense lawyer. In Colorado, public defenders are appointed to represent everyone who is in custody no matter their personal wealth or assets. They are excellent lawyers and work hard to make certain the inmates’ rights are protected and that bail bond is argued  and set for those persons to be released if possible.

The inmate’s family should focus on two things:

(1) raising the bail bond funds or, if that is not possible, contacting a reputable bonds person;

(2) locating and retaining a good criminal defense lawyer to handle and defend the case once the arrestee is out of jail.

The Right, and the Intelligence, to Remain Silent

While an arrestee does not have a constitutional right to make a phone call from jail as is classically depicted on the big screen, in Colorado he or she does have the statutory right to make calls from the jail.

This is covered in the second of the three statutes cited above:

Whether at a police station, jail, or other law enforcement facility after the arrest, Colorado law mandates a right to make a (undefined but) “reasonable number of telephone calls” at “the earliest time possible” and to meet in a confidential and protected setting with a lawyer as early as possible after booking – data-collection.

The law providing that right is reprinted below.

§ 16-3-402. Right to Communicate with Attorney and Family

(1) Persons who are arrested shall have the right to communicate with an attorney of their choice and a member of their family by making a reasonable number of telephone calls or by communicating in any other reasonable manner. Such communication shall be permitted at the earliest possible time after arrival at the police station, sheriff’s office, jail, or other like confinement facility to which such person is first taken after arrest.

(2) If the accused is transferred to a new place of custody, his right to communicate with an attorney and a member of his family is renewed.

BUT the next section of § 16-3-402 addresses contact with the alleged victim of the crime. Section 2.5  makes clear that if a phone call is a violation of a validly issued restraining order, all future phone calls for the inmate are shut down except calls made to the inmate’s attorney.

Why It Makes No Sense to Speak to the Police to “Tell Your Side of the Story”

As noted above, it is natural to want to try to “talk your way” out of the charges or out of jail. The arrestee should NEVER, EVER talk to anyone except a lawyer about the facts, evidence, or lack of evidence in the case.

An arrestee should NEVER try to argue his or her innocence to anyone in law enforcement. If a call is made to loved ones only two areas of information should be conveyed.

The inmate should:

1. Tell family or friends where the inmate is, the charges that are filed or are under investigation, and the amount of bond set on those charges, if any has been set at that time.

2. Request help in locating a bonds person and a criminal defense attorney.

And nothing more!

It is not only not helpful, it is actually dangerous in protesting one’s innocence. Law enforcement believes the accused is guilty, that is why the inmate is in jail. Any fact is a potentially dangerous fact. Until the criminal defense lawyer handling the case sees the whole picture, any statement from the mouth of the accused could be used at trial against you, and maybe even get you to confess.

The police are trained to try to get the arrestee to slip up. The more an inmate talks about their case, the more they put the outcome of that case at risk.

Jails” have ears” – the person in jail, especially in the most serious cases, should never, ever discuss their case with anyone other than the public defender or a privately retained criminal defense attorney.

The jails are filled with people who will snitch on anyone to gain an advantage in their case.

Here is what the arrested person should say if confronted “my attorney says I cannot talk about the specifics of the case with anyone, I am sorry.” If law enforcement wants to question the accused while in custody – the procedure is simple – “lawyer up,” – the law provides that upon requesting a lawyer, ALL QUESTIONING BY LAW ENFORCEMENT MUST STOP THERE AND THEN.

In today’s world, and this cannot be stressed enough, communicating about the case includes testing, or otherwise posting information about your case on social media.

The right to a lawyer to defend criminal charges in the court’s of Colorado is specifically protected in many ways in the constitution and by law. Knowing the law gives a person the confidence that comes from understanding their rights. That is why I try, when possible, to put the actual text of the law in my articles.

The third and final statute addressed in this article is

Section 16-3-403 – Right to Consult with Attorney

Any person committed, imprisoned, or arrested for any cause, whether or not such person is charged with an offense, shall be allowed to consult with an attorney-at-law of this state whom such person desires to see or consult, alone and in private at the place of custody, as many times and for such period each time as is reasonable…

Over the course of almost 35 plus years (as of 2020), I have handled thousands of complicated criminal cases from both sides of the courtroom career District Attorney (13 years) or seasoned criminal defense lawyer (22 years).

Obtaining the best outcomes for clients results from a unique blend of courtroom experience, knowledge of Colorado criminal law, and the skills and temperament of an experienced lawyer whether the task at hand is legal advice and counsel, negotiations with the prosecutor, or litigating a trial, years of experience fighting and resolving criminal cases with the clients’ best interests in mind is what makes the difference and it is what our firm offers.

Good luck HMS.