This excerpt is reprinted with permission from “Sirens, Lights, and Lawyers: The Law & Other Really Important Stuff EMS Providers Never Learned in School”, by David Givot, Esq.
“Sirens, Lights, and Lawyers” demystifies the law, lawyers and risks affecting EMS, equipping you with the knowledge and understanding to navigate the legal and personal challenges that arise in your day-to-day work. This easy-to-understand, far-from-boring guide tackles both basic and complex legal concepts with real-life examples and practical advice on how to manage or avoid legal pitfalls. Beyond the law, Givot also explores topics such as leadership, mental health, interacting with lawyers and courtrooms, and other vital aspects of the EMS profession.
The rights provided by the Fifth Amendment are too often underappreciated and definitely misunderstood, so let’s clear it up.
The right against self-incrimination, more commonly referred to as the right to remain silent, refers to questioning by the government. When any law enforcement agent or other government agent, such as a licensing agency investigator or other public official, wants to ask questions, you have an absolute right to decline to answer and consult with an attorney first. There is absolutely nothing that the government agent can do by way of retaliation for the lawful exercise of your constitutional rights. Simply, if any government agent wants to ask you questions, you have a right to consult with a lawyer before you answer them…and you should!
Most commonly for EMS providers, the exercise of this right comes up when the licensing agency is investigating you, a call you were on, or an incident about which you may have some knowledge and they want to talk with you about it – read: they want to interrogate you. You have the right, whether they tell you or not, to consult an attorney before you submit to their interrogation, and you absolutely should! Yes, they will probably be pissed, but that is a “them” problem, your rights belong to you.
The decision to consult with counsel before subjecting yourself to questioning does not imply guilt or culpability. I have heard countless recordings of law enforcement officers and state investigators telling individuals that wanting to talk to a lawyer is “suspicious” and that only people with “something to hide” want lawyers. That is utter bull****! It is a trick to make you feel guilty or scared and to get you to talk on their terms, not yours, so they can take advantage of you. “It’s not a big deal,” they will say, “we know you didn’t do anything wrong; we only want your side of the story.” That may sound good for a second, but you won’t know what they are looking for and anything you say can, and often will be taken out of context and spun against you, so until you talk to a lawyer, you don’t have a side of any story.
Remember, too, that they are not required to tell you about your right to remain silent and your right to speak to a lawyer, unless you are actually in custody. However, the right to remain silent – to not answer any questions at all – exists regardless of whether you are under arrest. Furthermore, arrested or not, as soon as you say that you want a lawyer present and that you will not answer questions without a lawyer, they are legally prohibited from asking you any questions for which the answer may be incriminating.
The rights afforded by the Fifth Amendment are limited to questioning by government actors and they do not extend to private individuals or employers. While it is unlawful for a government agent or agency to retaliate against you for exercising your rights, a private employer can – and likely will – fire you for insubordination.
When it comes to investigations conducted by private employers or private actors, it may be worth consulting with an attorney before you agree to answer any questions or provide any written statements, specifically an EMS Defense or Criminal Defense attorney who understands how statements can be detrimental to you beyond just your employment. For example, any statements made to a private actor can be provided to law enforcement or other government investigators and used against you. Even and especially if you believe you have nothing to hide, it may be a good idea to consult with counsel first, just to make sure that your best interests are protected.
What to do when you are being investigated
At some point in your EMS career, you will likely find yourself under investigation for something. Not only is it very easy – and common – anymore for people to complain about one thing or another, but now more than ever, every complaint receives some sort of follow up and that usually means an investigation.
The best and smartest thing to do when you find yourself being investigated is to cooperate…on your terms. Cooperate does not mean that you waive and give up any of your rights to silence and counsel or to other representation, cooperate means that you protect your own interests without being dishonest, obfuscating, or obstructing the investigation.
The very first thing you do when you learn that you are the subject of or witness in an investigation is to know your rights. If you have a union, what does the union contract say with regard to how investigations are to be conducted? Are there any statutory requirements or protections with regard to how investigations are to be conducted? In California, for example, EMS providers who are employed by a fire department are protected by a firefighter’s bill of rights that spells out, specifically, how investigations are to be conducted.
The second thing to do is consult an attorney immediately. Regardless of whether you have a union contract or some other MOU or anything else that regulates how investigations are to be conducted, it is always in your best interest to consult right away with a locally licensed attorney that is only beholden to you and who understands EMS investigations.
Third, have YOUR attorney present during all questioning. Unless there is some express prohibition against it, you will want YOUR attorney to be present during any questioning by anyone about the subject of the investigation. Many private employers will not allow attorneys to be present during questioning. If that is the case, definitely consult with an attorney first so that you are clear about your rights. Usually (meaning always), private employers will only allow your attorney to be present during questioning if the company’s attorney is also present.
Fourth, avoid discussing the investigation or its subject matter with anyone other than your attorney. In particular, avoid discussing the matter with anyone else who may be involved or may be a witness. While any conversation may be perfectly innocent, the mere appearance of coercion to alter statements or conspiracy to align stories could be detrimental to your own interests. Moreover, any statements you make about the investigation, even silly jokes or innocent observations, could be used against you later.
Lastly, do not lie! It is better to say nothing at all and defer to counsel than to make any known false or misleading statements. The very worst thing any provider can do in the course of an investigation is to lie about anything. Lying includes embellishing or over-simplifying, omitting certain known facts, creating “facts,” or doing or saying anything to obfuscate the truth. It has been my experience that the worst of the outcomes I have seen were the result of some degree of dishonesty in the investigation. In fact, I have had clients who would have escaped any discipline at all but for their dishonesty in the investigation.
To be clear, there are investigations and there are INVESTIGATIONS. If your supervisor is investigating why you and your partner did not realize that the off-going crew had taken home both sets of keys until five hours after shift change, yeah that happened, you may not need to get all twisted up with lawyers. However, when it comes to things like missing meds or allegations of misconduct, even if you don’t know anything about it, you will want to still take every precaution to protect yourself. Just answering simple, innocent, seemingly innocuous questions could inadvertently put you smack in the middle of the crime without even realizing it and no way back.
Excerpted with permission from “Sirens, Lights, and Lawyers: The Law & Other Really Important Stuff EMS Providers Never Learned in School”, by David Givot, Esq.
Published by BookBaby (2023)
Available from Amazon
This article, originally published on June 05, 2023, has been updated.
