When Do You Have a Right to an Attorney?

The right to an attorney is enshrined in the United States Constitution as one of the fundamental rights that every American has by birthright. After all, how can someone defend themselves in court if they aren’t given access to legal expertise, which they are unlikely to have themselves? But things are more complicated than they first appear, because there are two slightly different rights to an attorney, and the distinction can be important.

The right to an attorney is guaranteed by two constitutional amendments in the Bill of Rights: The Fifth Amendment, and the Sixth Amendment. Though both amendments guarantee your right to an attorney, they have a couple of important distinctions between them. First is the difference in timing: the 5th Amendment right to counsel guarantees your right to a lawyer while you’re being interrogated in police custody; the 6th Amendment right to counsel, on the other hand, guarantees your right to counsel during the critical parts of a criminal prosecution.

However, there’s another, more significant difference: the 6th Amendment requires the court to appoint you a lawyer if you can’t afford one at the time of your arraignment (when you’re formally charged with a crime). The 5th Amendment requires police to allow you access to a lawyer if you already have one, but they aren’t required to provide you with one, because an arrest doesn’t necessarily signal the beginning of a criminal prosecution. Thus, you can be in a situation where you are legally entitled to have an attorney, but you aren’t yet legally entitled to have one appointed to you by the court. And if you’re being interrogated by the police, it can be very helpful to have an attorney present to advise you on your rights.

Those who have been charged with a crime can face serious legal consequences. A New York criminal defense lawyer, who is experienced in handling criminal cases of all sorts, can advise you of your legal rights and will fight for your best interests in court. If you or your loved one has been arrested, contact the Suffolk County criminal defense attorneys at McGuire, Peláez & Bennett at (631) 348-1702.

Use of Drug Sniffing Dogs at Traffic Violation Stops

In 2005, the United States Supreme Court held that there is no expectation of privacy when carrying drugs. Accordingly, the Court determined that the use of drug sniffing dogs during a traffic violation stop did not violate the unwarranted search and seizure clause of the Fourth Amendment.

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What Happens at an Arraignment?

An arraignment is typically the first proceeding where a defendant is brought before a judge.  The Court must inform the individual of the charge(s) and determine whether bail is appropriate or if the person should be released on their own recognizance.

When deciding bail, the Court considers the defendants ties to the community and whether he will be a flight risk.     Some factors weighed include whether the defendant’s ties to the community, including whether he lives with and visits family, is employed, has a previous criminal history, and whether she has failed to appear at previous scheduled court proceedings.

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