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Ask Our Lawyer - March 2004

Information for clients of ABATE Legal Services

What do you do when the men and women in blue show up? What are your rights and what should happen? We get many inquiries from parents, neighbors and concerned friends about their rights and what to expect. The following tips should help.

1. When am I arrested?
You are arrested (or considered under arrest) when officers deprive you of your freedom of movement in order to have you answer for an alleged crime.

2. They want to question me - what are my rights?
Just like in those TV shows, you have the right to remain silent. If you don't keep silent, anything you say can be used in court against you. If you start answering questions, you can stop at any time. You have the right to speak with your lawyer and have them with you during questioning.

3. The cops won't let me go, but they haven't arrested me. Can they do that?
An officer can temporarily detain you in order to ask for identification and to get an explanation of your presence at a particular time. You can be subject to a limited pat-down search to ensure that you have no weapons, if the officer believes you are armed. You have the right not to answer the questions, but if you refuse to give any identification, the officer may have grounds to arrest you. Once this temporary detention is over, the officer must either arrest you or let you proceed on your way.

4. They want to arrest me, but don't have a warrant.
Officers can make an arrest without a warrant if they witness the offense being committed. They can also make an arrest if they receive information from a credible person that the suspect committed a felony and is about to escape.

5. I got hurt when I was arrested. How much force can they use?
On officer is entitled to use reasonable and necessary force to overcome resistance. These terms are relative, so the amount of force they can use depends on the situation.

6. They want to search my house. Do I have to let them?
Officer may conduct a limited search of the surroundings without a warrant. If you are in your home, they may seize contraband, stolen property, or evidence of a crime in plain sight. They may also check the residence for accomplices. If you are in your car, they can search for weapons that could be used against them. They may not conduct a broader search without a warrant, unless they reasonably believe that the vehicle has evidence of crime or contraband.

7. I've been arrested. Now what?
You are going to be taken to the detention facility, where you will be able to talk to an attorney. They should also tell you the charge being alleged. You can be required to participate in a lineup, give a handwriting sample, give a blood or urine sample, or perform certain other tasks

8. I want out!
Bail may or may not be set for your case, depending on the seriousness of the charge. If the charge is relatively minor, you may be released on your own recognizance. You can also petition the court to reduce the amount of bail set.

9. Where can I get a lawyer?
If you don't already know one, you can call you state or county bar association for a referral to criminal lawyers. If you can't afford to hire an attorney, you should tell the judge, who will ask you questions to determine if you qualify for a public defender.

10. My kid just called from jail. What rights to do they have?
Children have the same substantive rights as adults. In addition, they have the right to have a parent with them when being questioned. Also, the procedures in juvenile court are generally closed to the public.


I've spoken to a lot of members the last few weeks about our survey and wanted to share with you the results. We had 214 people return the survey forms. Here's the breakdown:

Yes No Yes No
1(a) 188 26 1(b) 122 92
2(a) 213 1 2(b) 201 13
3(a) 212 2 3(b) 206 8

Here are some of the percentages:

1. Not speeding, not distracted, runs stop sign
Crime committed - 87%; Jail time - 57%
2. Speeding, not distracted, runs stop sign
Crime committed - 99.5%; Jail time - 94%
3. Not speeding, distracted, runs stop sign
Crime committed - 99%; Jail time - 96%

I find these numbers very interesting. What is especially notable is that 96% of those surveyed believe when death or serious injury results from distracted driving, the driver is more deserving of jail time than someone who causes the same injury when speeding. We will take this data to the county prosecutors and district attorneys to reinforce with them the need to prosecute these crimes with as much energy and effort as those resulting from other causes.
Of course, what got me thinking about all of this was the Janklow case. Did you know that Janklow will only get 30 days in jail?!? In my mis-spent youth, I knew a fair number of people who had done 6 months for "borrowing" property that didn't belong to them. Somehow, I find it hard to stomach a sociopathic congressman that only has to serve 30 days for intentional conduct that results in the loss of a life.
The other thing that bothers me about this case is that everyone calls it the Janklow case. The motorcyclist that was killed was a wonderful human being with a family, a job, and served his country. His name is not nearly as well known. Instead of being a mere footnote to the perfidity of Janklow, we should recall the victim in this tragedy and this case should be called the Randy Scott case.


Michael "Balls" Farabaugh, longtime motorcycle rights activist and friend of ABATE, is now a radio personality! Balls is hosting a radio talk show dedicated to the motorcycling community. His show, called Freedom of the Ride, currently airs Saturday mornings from 10:30-11:30 on WGCL 1370 - AM, talk radio for southern Indiana. Balls focuses on motorcycles and motorcyclists, and interviews all sorts of persons of interest to the motorcycling community, from politicians to custom builders. One recent show even featured me! If you want to hear the show in your local market, you can contact WGCL at 812 333-2665 and encourage them to syndicate the show.


ABATE Legal Services has prepared over 400 wills for ABATE members and their families. If you haven't made out your will yet, call us at 1-800-25RIDER and get it done today, or check out the information on our website, www.abatelegal.com.

Ride safe and free,
Rod Taylor
ABATE Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: ASK OUR LAWYER, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com.