We all know from watching TV that you have the right to remain silent when arrested. But is that true? Can you simply refuse to say anything or do you have to say some kind of “magic words?”

In 2007 while speeding, Richard Tom collided with another vehicle carrying a mother and her two children. The accident injured one child and killed the other. Following the car accident Mr. Tom refused to answer any questions when confronted by the police, before he was read his Miranda rights. Mr. Tom spoke with his attorney on the phone then told officers he would not speak to them in the absence of counsel. The officer then had Mr. Tom perform a series of field sobriety tests (FSTs) and based on those results concluded that he was under the influence of alcohol at the time of the collision. Mr. Tom was then handcuffed, placed under arrest, and read his Miranda rights.

After Mr. Tom was read his Miranda rights, he again invoked his right to remain silent when he told the police he would not make a statement. However, he did not use the magic words.

In trial, over objection, the prosecution was allowed to admit evidence that Mr. Tom refused to answer questions. The jury convicted him. The Court of appeal overturned the conviction ruling that it was error to admit Mr. Tom’s silence and allow the prosecution to argue that his silence was evidence of guilt.

In August of 2014, in a 4-3 decision the California Supreme Court reinstated his felony conviction for the vehicular manslaughter case. It was an extremely frightening decision by the California Supreme Court. The Court decided that a defendant has to unambiguously invoke his Fifth Amendment right against self-incrimination to prevent prosecutors at trial from pointing to silence as evidence of guilt consciousness. The Court ruled that the actual refusal to speak was not an invocation of the right to remain silent. You must say the magic words.

The case does not end there. The case was remanded back because it had not been considered, as a question of fact, whether the defendant had unambiguously invoked his Fifth Amendment privilege. In April of 2015 the 1st District Court of Appeal reversed the conviction for vehicular manslaughter finding the jury likely interpreted the man’s silence as evidence of negligence. In an unpublished opinion overturning the verdict, Justice Martin J. Jenkins held that, “The prosecutor’s entreaty to the jury to consider the defendant’s silence as evidence of his guilt took an added significance,” reiterating that the prosecutor’s argument urging the jury to consider defendant’s failure to ask about the welfare of the occupants of the other car as substantive evidence of his guilt was highly prejudicial.

The right to remain silent is rooted in our Fifth Amendment right and has been long accepted. However, actually refusing to answer questions is not sufficient to invoke your Constitution right. This is what happened to Mr. Tom. He did not specifically invoke his Fifth Amendment right to remain silent using the magic words. Instead he told them he would not speak to them without an attorney. The prosecutors exploited his silence by telling the jurors to consider his silence as substantive evidence of an “I don’t care attitude,” to establish that he had acted with gross negligence.

This case is going to be one of many cases where the notion of unambiguous invocation of your right to remain silent will be challenged. It’s not enough to know your rights anymore, you also must know how to invoke them unambiguously to law enforcement. This is why it is so critical to get help from a Sacramento criminal defense attorney. This is an area the courts will continue to address and hopefully they will come to a conclusion that does not force the average citizen into fear of exercising their Constitutional rights guaranteed to them.