§ 9-27-317 — Waiver of right to counsel - Detention of juvenile - Questioning

Arkansas § 9-27-317

• Jurisdiction: Arkansas
• Title: 9

Text

(a) Waiver of the right to counsel at a delinquency or family in need of services hearing shall be accepted only upon a finding by the court from clear and convincing evidence, after questioning the juvenile, that: (1) The juvenile understands the full implications of the right to counsel; (2) The juvenile freely, voluntarily, and intelligently wishes to waive the right to counsel; and (3) The parent, guardian, custodian, or counsel for the juvenile has agreed with the juvenile's decision to waive the right to counsel. (b) The agreement of the parent, guardian, custodian, or attorney shall be accepted by the court only if the court finds: (1) That the person has freely, voluntarily, and intelligently made the decision to agree with the juvenile's waiver of the right to counsel; (2) That the person has no interest adverse to the juvenile; and (3) That the person has consulted with the juvenile in regard to the juvenile's waiver of the right to counsel. (c) In determining whether a juvenile's waiver of the right to counsel at any stage of the proceeding was made freely, voluntarily, and intelligently, the court shall consider all the circumstances of the waiver, including: (1) The juvenile's physical, mental, and emotional maturity; (2) Whether the juvenile understood the consequences of the waiver; (3) In cases in which the custodial parent, guardian, or custodian agreed with the juvenile's waiver of the right to counsel, whether the parent, guardian, or custodian understood the consequences of the waiver; (4) Whether the juvenile and his or her custodial parent, guardian, or custodian were informed of the alleged delinquent act; (5) Whether the waiver of the right to counsel was the result of any coercion, force, or inducement; (6) Whether the juvenile and his or her custodial parent, guardian, or custodian had been advised of the juvenile's right to remain silent and to the appointment of counsel and had waived such rights; and (7) Whether the waiver was recorded in audio or video format and the circumstances surrounding the availability or unavailability of the recorded waiver. (d) No waiver of the right to counsel shall be accepted in any case in which the parent, guardian, or custodian has filed a petition against the juvenile, initiated the filing of a petition against the juvenile, or requested the removal of the juvenile from the home. (e) No waiver of the right to counsel shall be accepted in any case in which counsel was appointed due to the likelihood of the juvenile's commitment to an institution under § 9-27-316(d) . (f) No waiver of counsel shall be accepted when a juvenile has been designated an extended juvenile jurisdiction offender. (g) No waiver of the right to counsel shall be accepted when a juvenile is in the custody of the Department of Human Services, including the Division of Youth Services. (h) (1) All waivers of the right to counsel, except those made in the presence of the court pursuant to subsection (a) of this section, shall be in writing and signed by the juvenile. (2) (A) When a custodial parent, guardian, or custodian cannot be located or is located and refuses to go to the place where the juvenile is being held, counsel shall be appointed for the juvenile. (B) Procedures shall then be the same as if the juvenile had invoked counsel. (i) (1) (A) Whenever a law enforcement officer has reasonable cause to believe that any juvenile found at or near the scene of a felony is a witness to the offense, he or she may stop that juvenile. (B) After having identified himself or herself, the officer must advise the juvenile of the purpose of the stopping and may then demand of the juvenile his or her name, address, and any information the juvenile may have regarding the offense. (C) Such detention shall in all cases be reasonable and shall not exceed fifteen (15) minutes, unless the juvenile shall refuse to give this information, in which case the juvenile, if detained further, shall immediately be brought before any judicial officer or prosecuting attorney to be examined with reference to his or her name, address, or the information the juvenile may have regarding the offense. (2) (A) A law enforcement officer who takes a juvenile into custody for a delinquent or criminal offense shall advise the juvenile of his or her Miranda rights in the juvenile's own language. (B) A law enforcement officer shall not question a juvenile who has been taken into custody for a delinquent act or criminal offense until the law enforcement officer has advised the juvenile of his or her rights pursuant to subdivision (i)(2)(C) of this section in the juvenile's own language. (C) A law enforcement officer shall not question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he or she: (i) Does not wish to be questioned; (ii) Wishes to speak with his or her custodial parent, guardian, or custodian or to have that person present; or (iii) Wishes to consult counsel before submitting to any questioning. (D) Any waiver of the right to counsel by a juvenile shall conform to subsection (h) of this section.

Legislative History

Acts 1989, No. 273, § 16; 1994 (2nd Ex. Sess.), No. 67, § 1; 1994 (2nd Ex. Sess.), No. 68, § 1; 1999, No. 1192, § 15; 2001, No. 1610, § 3; 2009, No. 759, § 2