The 5th and 6th Amendment Right to an Attorney: At the time of arrest and when you go to court

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The 5th and 6th Amendment Right to an Attorney

Under the Fifth Amendment right against self-incrimination and your Sixth Amendment right to have an attorney be available for your defense, you have a right for your attorney to be present any time the police are questioning you after your arrest. It is best, however, for you to invoke this right to have counsel present and to remain totally silent until your attorney arrives. Once you have unambiguously requested that your counsel be present, the police can no longer interrogate you without your permission. Nor can the police get someone else to ask their questions for them once you have requested the presence of your counsel.


Police must inform you of your right to remain silent and have an attorney present

The right to counsel and the related privilege against self-incrimination described above must be told to you as a part of the police reading of your "Miranda" rights. These rights also apply to actions of the states (not just to officials of the federal government) because of the extension of these Fifth Amendment rights by way of the Fourteenth Amendment.


Evidence obtained in violation of your 5th and 6th Amendment rights will be thrown out by the trial judge

Once you have been informed of your right to have your attorney present during questioning, and you unequivocally refuse to speak to the police unless your lawyer is present, anything you say cannot be used against you. If the police persist in questioning you, all such evidence obtained in violation of your Fifth and Sixth Amendment rights will be thrown out by your trial judge. Once custody is clear and the police push forward with field sobriety tests in order to gather evidence of DUI-DWI, you are first entitled to be told your Miranda rights.


Judge will inform you of your right to counsel, but will not explain everything a lawyer can and will do for you

When you appear in court, the judge will also inform you that you have a Sixth Amendment right to counsel. You can "waive" (give up) the right to be represented. However, the trial court does not, before accepting your waiver of counsel at a hearing at which you are going to plead guilty, have to give you a rigid and detailed admonishment of the usefulness of an attorney, tell you that an attorney may provide an independent opinion concerning whether it is wise to plead guilty and inform you that without an attorney, you may risk overlooking a defense.


Try to remember everything the police officer tells you, including when it was said

Thus, to provide for your best defense, it is critical that you remember exactly what was told to you by any law enforcement officer, at any time. The timing of questioning or statements made by you is also important, so be certain to note when anything was said to you by the police or asked of you by the police. It is also very important to tell the police early in their investigation of you that you want your attorney present any time you are to be questioned by them.


After your arrest, NOT being informed of your rights is a clear violation of the Consitution

If you were not informed (immediately following your arrest) as to your right to legal counsel, the right to remain silent and the right to be told that anything you say can and will be used against you, this is a clear violation of your constitutional rights. A "conversation" with you that is started by the police may be deemed to have been a contrivance to deprive you of your legal rights. If you were refused access to an attorney after you asked for one and the police continued to question you in spite of your request, proof of such a violation can be used by your attorney in your defense, or possibly used to get the entire charges against you dismissed.

Additional Resources

Mr. Head’s One-of-a-Kind Book for DUI Clients

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How to Beat a DUI/DWI Case

Helpful YouTube videos on DUI/DWI Defense

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