Lebanon Pennsylvania DUI Patrol Update
According the the Lebanon Daily News, the police at Jonestown, PA, stopped 35 people as part of a DUI patrol and arrested three of them. That is fewer than 10 percent of the people they stopped. What does this mean?
Either the patrol was very focused in the people they pulled over OR if they pulled people over at random, then it would appear that 8.5 percent of the people in Jonestown were driving around with enough alcohol or drugs in their systems to get arrested for DUI.
Could this be indicative of the general population?
I have heard stats quoted as high as 25% of people on the road at 2am are legally under the influence of something, so 8.5% really doesn't seem that high, does it?
Colorado DU repeat offenders
So 33.33% of all Colorado DUI arrests are of people who have been down this road before. That's a staggering number when you think that for Colorado alone, over 10,000 people with previous DUIs were arrested. Here's an article that goes over those stats:
1 In 3 DUI Arrests Repeat Offenders - cbs4denver.com: "A Denver Post analysis has found that about 10,000 drunken drivers arrested in Colorado each year are repeat offenders.
Police arrest roughly 31,000 drunken drivers a year, so about one in three has at least one previous DUI.
The Post examined records of arrests made from 2005 to 2007.
From 2005 to 2007, an average of 31,011 suspected drunken drivers were arrested each year in Colorado, according to statistics from the Colorado Bureau of Investigation.
An average of 10,835 drunken drivers each year had at least one prior DUI arrest, according to Division of Behavioral Health data from probation-department evaluations of drivers facing DUI charges.
Jefferson County District Attorney Scott Storey says getting drunken drivers off the road for good is a constant struggle."
Learn more about Colorado DUI law and process.
So what's the solution? I would be interested to know how many people each year arrested for DUI in Colorado had suspended licenses for prior DUIs? Obviously, the number will be less than the total number of people arrested who had at least one prior, but how much less? How many of those arrested with priors were supposed to have ignition interlock devices on their vehicles but didn't? How many of those people did jail time? How many did substantial jail or prison time?
If we look at all of the statistics, I bet you that the only possible conclusion is that nothing except treatment works, and even treatment is ineffective.
So there's our civil liberties. There's the constitution. And then there's the sobering statistics in the quote above.
Man poses as lawyer
Here's a good reason for anybody who is looking for a lawyer to do adequate homework to make sure that they person is who he or she claims to be.
The fact is, anybody with a little homework, a suit and a serious set of you-know-whats, could easily pretend to be a lawyer and get away with it in many courts.
Felon posing as lawyer spoke at local legal seminar - JSOnline: "Dozens of Milwaukee-area lawyers earned education credits a little while back for attending a local seminar featuring a convicted felon posing as an expert on criminal sentencing.
How's that for getting the inside scoop?
Howard O. Kieffer was brought here by Federal Defender Services of Wisconsin to talk to local lawyers about the ins and outs of state and federal criminal prison sentences at a November 2007 conference. Kieffer was identified as a graduate of Antioch Law School.
In truth, he never set foot in the place. The Washington, D.C., school closed in 1992.
Nobody tied to the conference knew anything about his charade.
They weren't the only ones conned by Kieffer. Over the years, he made out like Leonardo DiCaprio on the big screen, persuading clients, attorneys, judges and court administrators around the country that he was totally legit.
Catch him if you can.
'To the extent that Mr. Kieffer hoodwinked Federal Defender Services of Wisconsin, we are one of many in that lot,' said Daniel Stiller, executive director of the agency.
It took authorities in South Dakota to nab the bogus barrister.
Earlier this month, Kieffer was convicted on federal charges of mail fraud and impersonating a lawyer in court records. The Denver Post reported that he has represented at least 16 clients in 10 federal courts throughout the country. Among those paying for his legal services was a former St. Louis Blues hockey player who pleaded guilty to plotting to kill his agent."
The fact is, I have never been asked for my bar card in courts in Washington State or in Arizona. I am rarely asked to write down my bar number, and even when I do, I highly doubt that anybody ever checks to make sure it matches up with the state bar's records.
New Georgia DUI implied consent opinion
On April 23, 2009, the Court of Appeals of Georgia issued a new DUI opinion regarding the interpretation and application of Georgia's new implied consent law.
The case is Williams v. State of Georgia, and no official citation is available at this time. The case hinges on Georgia's implied consent law.
ISSUE:
Shawn Williams was charged with vehicular homicide, reckless driving, driving while under the influence of a drug, following too closely, and serious injury by vehicle. He moved to suppress results of a blood test that police obtained from him without first informing him of his implied consent rights. [FN1] The trial court denied his motion, but certified the order for immediate review. We granted Williams' application for interlocutory review. For the reasons that follow, we reverse.
RULING:
The amendment at issue here, however, is different. It states that nothing in the implied consent law precludes the state from acquiring a defendant's voluntary consent to chemical testing, or admitting into evidence the results of that testing. The implied consent statute grants drivers the right to refuse to take a state-administered test, with one of the consequences of exercising that right being that evidence of such refusal is admissible at trial. Unlike the amendment at issue in the cases relied upon by the state, the amendment here eliminates the need to give the notice where an individual "voluntarily" agrees to testing. This amendment not only changes the substance of the implied consent warning, it does away with the requirement that the warning be given at all where an officer manages to otherwise lawfully obtain consent to testing. This is not merely a procedural or evidentiary change, but one eliminating a defendant's substantive right to refuse to submit to testing. Therefore, the trial court erred in applying the amendment retroactively and in denying Williams' motion to suppress.
For more about Georgia DUI Law, see also, Georgia DUI Penalties and Georgia DUI Process.
Alcohol and impulsive behavior is genetic
Here's a study that supports the theory that drinking (and be a tangential extension drinking and driving) may not be a choice for some people. If this is the case, it supports what I have argued for years, that people accused of DUI need more support and treatment, and less punishment.
Putting somebody in jail and stripping them of their dignity and their livelihood does not make them less likely to act impulsively and drink and drive in the future. In fact, it likely does just the opposite.
Scientists find genetic link to impulsive behaviour | Latest News: "In humans a blood alcohol level of .08 is produced by the consumption of two drinks an hour by a 120-pound individual or 3 drinks an hour by a 180-pound individual. At that level human concentration and judgment are impaired and all 50 states prohibit operation of a motor vehicle.
‘It is well documented that humans with alcohol problems have impulsivity issues. High impulsivity, when defined as the tendency to choose small instantaneous rewards over larger delayed rewards – like getting drunk instead of going to work for that paycheck in 2 weeks— is more prevalent in alcoholics than in non-alcoholics. Because these mice had never had alcohol, we were able to show that it was the genes that increase drinking, rather than drinking itself, that yielded impulsive behavior,’ said Dr. Grahame.
‘Our data can clearly be extrapolated to humans and strongly suggests that impulsivity contributes to high alcohol drinking. Consequently, the diagnosis of any disorder associated with impulsivity, such as attention deficit disorder or bipolar disorder, is cause for concern about future problems with alcoholism,’ he added"
As a society, we need to respond to the problem of DUI with more love and less judgment. Support and incentive is what quells impulsiveness.
Wisconsin DUI probable cause case
The Wisconsin Supreme Court is set to rule on whether there can be probable cause for a DUI arrest without an odor of alcohol, or, as the attorney arguing for the defense put it, any indication of drinking at all.
Wisconsin supreme court takes on drunk driving evidence - WKOW 27: Madison, WI Breaking News, Weather and Sports -: "'If you're going to drive drunk, make sure you really go big, because you need to have an accident, if it's really bad and there's a gasoline smell and someone's almost died, that you're not going to be able to arrest unless they can smell alcohol or see beer cans, or something like that in the car,' Ziegler said.
'That's the standard you're asking this court to accept.'
Cohen demurred. 'I'm not saying you need an odor of alcohol, I'm not saying you need a beer can, I'm just saying you need something that would indicate the use of intoxicants.
Justices pointed out state law assumes permission to test blood for alcohol, even if a driver is unconscious, if there's an odor of booze, or probable cause.
'The inference to me is that you can have probable cause to believe a violation, without detecting any presence of alcohol,' Justice Ann Walsh-Bradley said.
Another standard that determines whether a drunk driving investigation can happen is the totality of the circumstances.
Mitchell Lange's arrest and blood draw took place at a Madison hospital. It was his second drunk driving arrest."
This case could mark a shift in Wisconsin DUI law, and has the potential to reach the US Supreme Court.
Riverside California Tox-Lab scandle
California lawyer Mary Frances Prevost has a blog entry about a scandal at Riverside's Bio-Tox lab. The post, quoting an article from DailyJournal.com, should be an example and a warning for all who think that forensic science in DUI cases is unassailable.
CALIFORNIA'S TOP LEGAL NEWSPAPER TRACKS BIOTOX SCANDAL :: California Criminal Lawyer Blog: "Defense attorneys are questioning the viability of evidence in thousands of criminal cases in Riverside, San Bernardino and San Diego counties because defendants' blood and urine tests were conducted by a forensic lab technician who admitted to fudging his analysis in a previous job.
Lawyers are frantically digging for information on every case Aaron Layton tested on behalf of Riverside-based Bio-Tox Laboratories over two years with the company until he was fired in February. Thousands of cases in the three counties that contract with Bio-Tox have been thrown into question, attorneys and some judges say, because Layton acknowledged lying hundreds of times about his testing while working at a Colorado lab eight years ago."
According to Fullerton DUI attorney Randall Longwith, who practices DUI and criminal defense in Los Angeles, Orange County and Riverside County, this is discouraging from the standpoint of justice and fair play, but some that good California DUI lawyers are always on the lookout for.
And this is not the only lab and the only time that this has happened. Our history is fraught with stories of people wrongfully convicted based on inaccurate and false scientific testimony. Sometimes that testimony is given intentionally, and sometimes out of accident or ignorance. The result is the same. Justice is not served.
San Diego's Official Navy Newspaper - Local Command Achieves 900 Days Alcohol Related Incident Free
San Diego Naval Detachment has made it 900 days without anybody getting a DUI.
This is news, and it is also quite amazing if you think about it. In my decade as a DUI defense lawyer, I have represented many people in the military.
San Diego's Official Navy Newspaper - Local Command Achieves 900 Days Alcohol Related Incident Free: "The Detachment has gone 900 days without having any driving under the influence (DUI) or alcohol related incidents (ARI). The accomplishments of the detachments can be attributed to constant awareness and the leadership reiterating the importance acting responsible at all times. ‘It all begins when the Sailors arrive at our command. They are briefed on responsible drinking, as well as making and following a good liberty plan. Additionally, the Senior Enlisted Leader (SEL) talks one-on-one with every newly arrived Sailor and re-emphasizes the importance of responsible drinking and conduct while on liberty,’ said Senior Chief Information Systems Technical (SW/AW) Lana Tullos, SEL for the command"
Eventually, somebody is going to get a DUI and break the streak, and then, for that person, there will be hell to pay.
I imagine that making this record well know would cause Sailors to think twice before getting behind the wheel after drinking. It's a lot to live up to, but it's positive.
I think positive reinforcement and goals, rather than scare and punish, is the best way to prevent DUI from happening everywhere.
Bellingham, MA DUI fatality defendant surrenders
This is so sad, and happens so often. A person has an accident and kills their passenger, who usually is a family member or friend. Then they find themselves prosecuted for DUI or vehicular homicide.
Driver charged with DUI after fatal Bellingham crash - Bellingham, MA - Country Gazette: "A Bellingham man was arrested Thursday and charged with drunken driving in connection with the fatal car wreck that claimed the life of his friend, 23-year-old Sean Whalen, on April 9.
Matthew Markham, 21, of 79 Elvira St., who drove his Oldsmobile Cutlass into several trees just beyond the High Street bridge, came to the Bellingham Police Station with his attorney yesterday, and was subsequently arrested, said District Attorney Joseph Early Jr.'s spokesman Tim Connolly."
According to Massachusetts DUI Attorney, the penalties for DUI resulting in death in MA are:
MANSLAUGHTER BY MOTOR VEHICLE:FINES: Up to $25,000;
JAIL: Mandatory minimum 5 years - maximum 20 years in prison;
LICENSE SUSPENSION: Mandatory minimum 15 year suspension - maximum lifetime suspension.
DUI/OUI VEHICULAR HOMICIDE:
Mandatory minimum 2.5 years in prison - maximum 15 years in prison; lifetime driver's license revocation; substantial fines. (source - Massachusetts DUI Penalties).
Terrible situation.
Vacaville California DUI Patrol
Here is a report for a "saturation patrol" out of Vacaville.
It appears that the DUI patrol actually resulted in many arrests for things other than DUI. Does this mean that the police were running background checks even on people who exhibited no signs or symptoms of alcohol consumption or impairment?
DUI patrol's busy night - The Reporter: "A DUI saturation patrol conducted by the Vacaville Police Department on Friday netted multiple arrests, police said.
They included the arrest of one person on suspicion of DUI and narcotics, another for violation of parole, a third arrest on narcotics charges and a fourth arrest for an individual with outstanding warrants. Four additional arrests were made for driving without a license.
In all, police said, seven vehicles were towed and 30 citations were issued."
DUI saturation patrols are a feel good measure that wastes resourced and does little good for removing DUI drivers from the roads as compared to regular patrols.
Virginia DUI Case Law Update: "Sleepwalking"
Here's a freshly minted Virginia DUI case that denies relief based on a defense of sleepwalking. The case centers around Ambien.
The full opinion is here.
Because the circuit court did not make a factual finding that Riley was sleepwalking at the time of the charged offenses, and because Riley's unconsciousness defense was predicated solely on the assumption that he was in fact sleepwalking, Riley failed to meet his burden to establish his unconsciousness defense. Without that defense, the evidence established merely voluntary intoxication and was otherwise sufficient to sustain his conviction for maiming. We will thus affirm the judgment of the Court of Appeals of Virginia upholding Riley's convictions.
Scratch off one more novel attempted DUI defense as ineffective, at least in Virginia.
Learn more about Virginia DUI Law.
Canada Drunk Driving Consequences
Here's another story about a police officer who got a DUI. This time it occurred in Canada. He was convicted under Canada's version of "DUI by physical control." He was not actually driving at the time he was found, but was passed out in his car.
Even though he wasn't driving, a fellow officer decided to arrest him. Although many officers would have protected him and just made sure he got home safely, this officer treated him like any other person found passed out with vehicle running.
Officer gets 18 months' probation for drunk driving: "A veteran Edmonton police officer convicted of impaired driving was given a conditional discharge and 18 months' probation in provincial court on Friday.
Const. Brian Toner, 50, was convicted in May 2008 of having care and control of a vehicle while impaired.
In February 2006, Toner was found intoxicated and passed out in his parked and running car three blocks from the west division police station. He had been drinking after his shift with some colleagues in the station. He was found by a fellow officer who brought him back to the station and charged him.
According to the conditions of his probation, Toner will have to seek treatment for alcoholism as directed by his probation officer.
He must also abstain from alcohol and provide a breath sample whenever requested by a peace officer.
He also must perform 30 hours of community service and cannot be in bars when off-duty.
If Toner meets the conditions of his probation, he will not have a criminal record. He will also be banned from driving for one year, though he can apply for a breath alcohol ignition interlock device for his vehicle in a few months.
At his sentencing hearing Friday, Toner told the court he has struggled with binge drinking most of his adult life. The drinking got worse in 1990 after he shot a man who attacked him with a knife while he was responding to a call.
Toner attended a 56-day residential treatment program in B.C. after he was charged in 2006 and said he has been sober ever since."
Some states have safe harbor DUI laws, which prevent a person from being charged with a DUI if they move safely off the road before being stopped and attempt to sleep it off or use their vehicle as a shelter.
The question is, is it good public policy to arrest and charge somebody who has pulled over and is passed out in their vehicle?
I vote no. I think it is a horrible idea to prosecute people who try to do the right thing. Doing so encourages people who know the law and realize that they might be impaired to attempt to make it home. Statistically, a high percentage of DUI accidents occur very close to the driver's home.
What do you think? Good idea or not?
North Carolina idiots face criminal charges after Dominos video
Two goofballs in their 30's face criminal charges in North Carolina after doing some disgusting things with the ingredients and taking a video of it.
Dominos says they are reviewing their hiring policies. I personally will stick to pizza joints where there is a very present private owner.
Not on the menu: Pizza workers charged in pranks: "CONOVER, N.C. – A gross video posted on YouTube showing a Domino's Pizza worker stuffing cheese up his nostril and waving salami under his rear end as he is making sandwiches has led to charges against him and a co-worker who recorded him, authorities said Wednesday.
Kristy Lynn Hammonds, 31, of Taylorsville and Michael Anthony Setzer, 32, of Conover are each charged with distributing prohibited foods. Police chief Gary Lafone says it is the same North Carolina statute that forbids any tampering with Halloween candy.
In the video, Setzer is making sandwiches while a giggling Hammonds narrates and urges him to 'do it again, do it again' in putting the cheese up his nose. It appears he threw some of the cheese in the garbage but some went on a sandwich.
Setzer says: 'This is Michael's special Italian sandwich.'
Hammonds says the sandwiches were meant to be delivered soon to customers and that 'little did they know that the cheese was in his nose.'
Domino's spokesman Tim McIntyre said the workers were fired and there is no evidence any of the tampered foods were served to customers. He said the company also may pursue a lawsuit."
The charge is "distributing prohibited foods." Interesting concept. You can turn a pig's rear end into a sausage and eat it. But if you are like Mr. Setzer and rub that pig's rear end on your own, it's a crime.
With this stapled to Mr. Setzer's resume, he's a natural to work cleanup at a sausage processing factory.
DUI homicide bail differences between states
There have been a wide range of bail amounts in DUI related homicides this month. Here's a quote about one in a Florida DUI homicide case:
Judge sets $75,000 bail for suspect in double-fatal DUI: "Randy Archiquette, the suspect in two crashes that killed two women last night, could be free if he posts $75,000 bail.
Hillsborough County Circuit Judge Walter Heinrich set bail for Archiquette, of 12610 Bramfield Drive in Riverview, during his first court appearance this morning.
Archiquette, left, is charged with two counts of DUI manslaughter, one charge of vehicular homicide with leaving the scene, and one charge of vehicular homicide."
Compare that to Rhode Island at $25k and California at $2 million and we can see that DUI homicide bail amounts are all over the map.
Missouri public defenders forced to accept cases
Overworked and underfunded, a Missouri public defense agency decided to stop taking cases to preserve the quality of the work that it was able to handle.
If you are accused of a crime in Missouri, and can't afford to hire a private criminal defense lawyer, you are entitled to a public defender. The catch is that the Missouri public defense system is the second least funded per capita system in the country. While public defenders in most states are overworked, the MO system is an extreme. Here's are quotes from a good article that discusses the ruling:
Appeals court says Missouri public defenders cannot refuse new cases - Kansas City Star: "A Missouri appeals court ruled Tuesday that the state’s public defender system cannot decline to accept new cases because of its caseload crisis.
The opinion, from a three-judge panel in Kansas City, throws out a state regulation that allowed public defender offices to refuse cases until caseloads had declined to a more manageable level.
. . .
Missouri ranks 49th among U.S. states in per-capita spending on indigent defense. Offices in Kansas City and Liberty, which serve Jackson, Clay and Platte counties, have not stopped taking cases."
Here is the entire opinion from the Missouri Court of Appeals.
We'll see what happens at the Missouri Supreme Court level, but at the moment, if I were a public defender in Missouri I would think long and hard about going private. If I were accused of a crime in Missouri, I would not want a public defender, not because they are bad, but an overextended criminal defense attorney is just like a surgeon running on a week of no sleep... might be the best lawyer in the world, but presently lacks the capacity to do everything possible in every situation.
Missouri DUI opinion issued on 4.14.09
On April 14, 2009, the Missouri Court of Appeals filed an opinion in the Missouri DUI case of State v. Richard Allen Edwards.
Mr. Edwards appealed the court's denial of his motion for a judgment of acquittal from his MO DWI arrest.
Defendant’s trial took place on April 25, 2008. The State presented testimony from Ayers. The Defendant chose not to present evidence. Defendant filed motions for judgment of acquittal at the close of the State’s evidence and the close of all evidence, both of which the trial court denied. After the jury instructions were read, and during deliberations, the trial court received a note from the jurors asking, “What is a DUI. What is a DWI. Are they both the same. Is it illega[l] to have a drink and th[e]n drive.” After discussing the questions with the parties, the trial court responded, “You must be guided by your recollection of the evidence and the instructions you have been given. No further instruction may be given.” The jury then returned a verdict of guilty of driving while intoxicated. On May 5, 2008, Defendant filed both a Motion for Judgment of Acquittal and Motion for New Trial. (emphasis added)
Look at the bolded quote above. This is the most common question that I hear asked by jurors in DUI cases. (As an aside, there are many acronyms for impaired driving, and the initials used typically indicate near identical charges from state to state, but some states chose one acronym, while others don't. Missouri happens to use "DWI" most commonly.) Now look at the answer the judge gave, also in bold. This is a variation of the most typical answer to jury questions in DUI cases.
The question is, is it a fair answer. Under Missouri DWI law it is not illegal per se to have alcohol and get behind the wheel of a vehicle.
Let's see what the Missouri Court of Appeals has to say about it.
Here, Defendant fails to adequately brief his third point on appeal. His argument section simply recites the relevant facts, makes a one-sentence conclusory statement, and then briefly argues policy. Glaringly absent from Defendant's argument is any supporting legal authority. We find that Defendant has abandoned this argument, and we decline to review this point on appeal.
Oops, a DUI defendant can't prove a negative. Sorry, appeal denied. Next.
Minnesota DWI presumption of innocence
Here's a novel idea. Let's give people accused of the serious crime of DWI the presumption of innocence.
Bill would presume innocence in drunk driving cases | Park Rapids Enterprise | Park Rapids, Minnesota: "If you are arrested for DWI in Minnesota, your license can be suspended or revoked within days of your arrest, even before you go to court on the actual criminal charges. This civil proceeding, the license revocation, is a separate matter, resulting in a maximum suspension of 90 days if your blood-alcohol content exceeds .08 percent.
The intent is to crack down on drunken drivers immediately and get them off the state’s highways.
A bill currently working its way through the Minnesota House of Representatives seeks to restore due process and a presumption of innocence to drivers arrested on suspicion of drunk driving. It would mandate a conviction on the criminal charges before the driver could lose his or her license. Currently, that process typically begins within seven days of the initial arrest.
The House bill, with a companion Senate bill, stands little chance of passing, opponents and political observers say. County attorneys throughout the state have organized a letter-writing campaign to their legislators. Hubbard County Attorney Don Dearstyne sent out several communications, imploring legislators not to take what he calls a drastic step backward in DWI prosecution."
Like the article says, the bill has little chance of passing. But what an idea. Presume somebody who might actually be innocent is innocent unless proven guilty. In America. Come on, pigs don't fly. Or do they?
Nick Adenhart's killer faces three counts of murder
The man who allegedly killed Nick Adenhart and two others in Fullteron has selected top Orange County California DUI lawyer Randall Longwith to represent him.
Law Practice Examiner: Nick Adenhart's alleged killer to be arraigned Monday: "Andrew Gallo, who is accused of three counts of vehicular murder, including Angel's rookie pitcher Nick Adenhart is scheduled to be arraigned Monday in Fullerton, California.
It has been estimated that Gallo's blood alcohol level was approximately three times the legal limit when he killed Adenhart and two others. Police reportedly found him a mile from the scene.
Mr. Gallo is represented by prominent Fullerton DUI Defense Lawyer Randall T. Longwith.
If convicted of all three counts, Gallo faces 55 years to life in prison.
Given the severity of this tragedy, Mr. Longwith will have his hands full dealing with both the legal issues and the court of public opinion.
Under California DUI law, there may be several aggravating factors in this case, including the deaths, the speed and Gallo's prior criminal history."
Gallo is expected to plead not guilty at his arraignment. I will continue to monitor the story as it unfolds.
Fullerton California DUI Homicide
Sometimes it is hard for even a DUI defense lawyer to have any sympathy for somebody accused of a DUI type offense.
Man Charged with Murder & Drunk Driving in MLB Pitcher's Death | Cleveland Leader: "According to the district attorney's office, Gallo was driving a minivan at 65mph in a 35mph zone around 12:35am Thursday in Fullerton, CA. He was on probation and his license had been suspended after a previous DUI charge. Police say he ran a red light and hit the car that Adenhart was in, killing the pitcher, 20-year-old California State University student Courtney Stewart and law student Henry Pearson, 25."
Prosecutorial misconduct in Florida
For anybody who thinks that prosecutors always play by the rules and always seek justice (rather than wins) in criminal cases, here is your weekly reminder.
FEDERAL JUDGE SANCTIONS GOVERNMENT $600,000 FOR SECRETLY TAPING DEFENSE LAWYER: "In a blistering 50-page opinion (PDF) today criticizing the 'win-at-any-cost behavior' of federal prosecutors who secretly taped a defense lawyer, a federal judge in Florida has awarded more than $600,000 in sanctions against the government.
The money, which the United States must pay to a South Florida physician it
accused of prescribing pain medication without a proper medical purpose,
will cover more than half of Dr. Ali Shaygan's defense costs, reports the
South Florida Sun-Sentinel.The 36-year-old doctor, who lives in Miami Beach, was acquitted in March of
141 counts of unlawful prescribing. As a result of his overprescribing, the
government had contended, a West Palm Beach man died of a drug overdose.The prosecutors who tried the case were Sean Cronin and Andrea Hoffman.
Midway through trial, the defense team learned that attorney David Markus,
one of three lawyers representing Shaygun, had been secretly recorded by
witnesses with approval from the government. The conversations-which the
government says were made to investigate possible witness-tampering-violated
legal ethics rules and U.S. Attorney's Office policy, according to the
newspaper, because they were not disclosed to the defense prior to trial.Alicia Valle, a spokeswoman for the U.S. Attorney's Office, says mistakes
were unintentionally made in the case, and that it has been referred to the
U.S. Department of Justice for further investigation, apparently concerning
the conduct of the prosecution, according to the Sun-Sentinel.After a two-day hearing after the jury's March 12 not-guilty verdict, U.S.
District Judge Alan Gold awarded $601,795.88 to Shaygun. In his opinion,
which accorded the most criticism to Cronin as lead prosecutor, the judge castigated the government for pursuing an 'unfounded' witness-tampering probe based on 'personal animus against the defense team,' the newspaper
writes."
The more power some people have, the less ethically they behave. While the vast majority of prosecutors are good and decent people who play by the rules, the ethical rules exist to prevent the few from doing this type of thing.
Utah DUI enforcement plan
Utah is starting to coordinate troopers on a state-wide basis to go after drunk drivers. Like many other states, Utah DUI enforcement is being taken more and more seriously.
ksl.com - First-of-its-kind DUI blitz planned for the weekend: "SALT LAKE COUNTY -- In an effort to curb drunk driving in Utah, law enforcement will be out in full force this weekend. The Utah Highway Patrol has coordinated a statewide effort with troopers from nearly every county to ensure that this holiday weekend is fatality free.
'To my knowledge and in my time with the Highway Patrol, we've never tried anything like this before. So hopefully it makes an impact,' UHP's Cameron Roden said.
Troopers say the blitz will start Friday night and last through Sunday.
Friday morning crash on I-15 near 16450 South.
UHP wants drivers to know just how serious they are about driving under the influence. They say this weekend's statewide blitz will prove that.'We're serious about getting drunk drivers off the road,' Roden said. In fact, they're 174 troopers serious.
This weekend's DUI blitz will be the biggest one in its history. But it's not just impaired drivers troopers are looking for; they will also be looking for aggressive drivers, speeders and for those not wearing their seat belts.
'These officers have been trained to spot different things, different indicators. Through somebody's driving, they may see something that catches their eye, and the driver's reaction to the way they are and just key off of that,' Roden said.
He says DUI-related crashes in Utah tend to fluctuate each year. A rollover crash on I-15 Friday morning is the perfect example of what they are trying to prevent.
A man riding in an SUV around 3:30 a.m. says he and his girlfriend were arguing, he tugged on the steering wheel and caused the woman to lose control and the vehicle to roll near 16450 South on Interstate 15.
Troopers say they suspect alcohol was involved because both people inside the SUV smelled of it, and containers of alcohol were found inside the vehicle.
Only the female driver was taken to the hospital. She is expected to be OK.
Law enforcement also believe alcohol played a factor in Thursday's crash in Hooper that sent three people to the hospital and left a family with a huge hole in the side of their house.
The driver of a blue Dodge Ram blew through a stop sign, hitting another vehicle and eventually ended up going airborne into the second-story living room.'We're trying to decrease them [DUI related crashes] regardless, and trying to get these things down. So, hopefully with a big push like this, people will see that were serious about this, and that this is a serious thing, and a serious matter, and hopefully they'll take it serious,' Roden said.
Roden says that the extra staff being used in this statewide blitz will be paid for by federal grants. While this is the first statewide blitz of its kind, it won't be the last. UHP is planning to do one of these every month from now on."
The important thing is to make sure that people are constitutionally protected as these saturation DUI enforcement programs take off across the country.
Criminal Defense Lawyers trapped on case
As often happens in criminal cases, the defense attorneys for Petters have not been paid. Given the complexity of the case, there is a real sense that being forced to remain on the case without pay could ruin the criminal defense attorneys financially.
Here the judge claims that he is worried about delay:
Report: Judge won’t let Petters' legal team quit - Minneapolis / St. Paul Business Journal:: "Although they haven’t been paid for any of the work they’ve done in defending Tom Petters on fraud charges this year, his attorneys will not be allowed to quit the case, the Star Tribune reported Friday.
U.S. District Court Judge Richard Kyle on Thursday informed Petters’ criminal defense attorneys, Jon Hopeman and Paul Engh, that they must continue to represent their client. Hopeman and Engh have said Petters’ defense could cost up to $5 million.
Petters is in jail in Sherburne County awaiting trial for allegedly defrauding investors of up to $3.5 billion. The trial is expected to begin this summer.
The defense team said it’s had to cut back on trial preparations including investigators, other attorneys and expert witnesses because of the impending ‘financial disaster’ it faces.
Kyle said that appointing a new defense team would delay the case.
Felhaber Larson Fenlon & Vogt, the law firm Hopeman works for, was paid more than $500,000 for work done in 2008.
Petters maintains his innocence."
There are many things that delay a criminal case. A lawyer who is not being paid may not do the best job for the client. There is an extreme potential for a conflict of interest. That conflict of interest could open up the real possibility of appeal.
All I can say is I'm glad I don't represent Petters on this one.
Obama taps MADD brass for NHTSA administration
President Obama has chosen a top MADD official to head NHTSA. NHTSA is responsible for much of the DUI regulations, and publishes the standards for field sobriety testing.
The Associated Press: Obama chooses MADD official to lead safety agency: "President Barack Obama has chosen a top official with Mothers Against Drunk Driving to lead a Transportation agency that oversees safety and fuel efficiency requirements for automakers.
Chuck Hurley was nominated Wednesday to become administrator of the National Highway Traffic Safety Administration. Hurley, a longtime safety advocate, has served as MADD's chief executive officer since 2005 and worked for the National Safety Council and the Insurance Institute for Highway Safety.
At MADD, Hurley urged states to adopt tougher drunken driving laws and require first-time offenders to use ignition interlock devices on their cars. The devices require drivers to blow into an instrument that measures alcohol and prevent a vehicle from starting if the driver's blood alcohol concentration exceeds a certain level.
MADD, a nonprofit organization based in Irving, Texas, was founded in 1980 and was instrumental in pushing Congress to set aside federal highway funds for anti-drunken driving efforts and to pass legislation to raise the federal minimum drinking age to 21.
The organization has received funding from several auto companies, including General Motors Corp., Toyota Motor Corp., Ford Motor Co. and others. The General Motors Foundation provided MADD and MADD-related programs with $133,000 in grants in 2007, according to financial records filed with the IRS.
Obama worked with Hurley as a state senator in Illinois to strengthen the state's auto safety laws, the White House said.
Vernon Betkey, chairman of the Governors Highway Safety Association, said Hurley was a 'passionate safety advocate whose career has been dedicated to reducing motor vehicle deaths and injuries.'"
NHTSA has always had an anti-DUI bent, but with Hurley at the helm, it will be interesting to see what changes come down the pike.
Pennsylvania DUI arrests increased in 2008
The number of Pennsylvania DUI arrests increased between 2007 and 2008. The increase is being attributed to a stepped-up enforcement.
LancasterOnline.com:News:DUI arrests in state rise in '08: "If you're planning to drink and drive, beware: There's a good chance you'll be caught.
State police have announced they made a record number of DUI arrests in 2008, nabbing 16,156 motorists who were driving under the influence.
That is a 3 percent increase from 2007, when police arrested 15,654 drivers.
'We've put a bigger focus on enforcement,' said Jack J. Lewis, state police press secretary. 'We don't think drinking and driving has risen. But it's like with speeding. When we put more emphasis on the problem, the numbers of arrests go up.'
DUI arrests include motorists under the influence of drugs as well as alcohol.
In Lancaster County, state police DUI arrests in 2008 totaled an even 600; 441 by troopers operating out of the main barracks in Lancaster, and 159 by those out of Ephrata."
In reality, a very small percentage of people who drive while impaired ever get caught. Smartly increasing enforcement should drive the arrest numbers up in any state, all things being equal.
Tucson DUI Intoxilyzer Source Code Issue Update
Here is an update on the DUI Intoxilyzer source code issues being litigated in Tucson, Arizona.
Ariz. court overturns order on breath-testing code - Forbes.com: "An Arizona appellate court skirted a big-picture issue snagging numerous drunken-driving cases as it issued a narrow ruling that overturned a judge's order requiring prosecutors to obtain a breath-testing machine's computer code and provide it to defense attorneys.
A Tucson-based panel of Court of Appeals judges ruled that Judge Deborah Bernini of Pima County Superior Court shouldn't have issued the order because law enforcement officials did not have the 'source code' for the Intoxilyzer 8000 machine and had no way to get it from the out-of-state manufacturer.
The next step in the case will likely be for defense lawyers to ask Bernini to prohibit use of breath-test results from the Intoxilyzer 8000, defense attorney Joseph P. St. Louis said from Tucson.
Meanwhile, the Court of Appeals' ruling Tuesday leaves a tangle of rulings by Superior Court and municipal judges, some of which prohibit use of the evidence while others that permit it, said Deputy Pima County Attorney Jacob Lines.
'It really depends on which judge you're in front of,' Line said. 'It's sort of been a mess.'
In cases where judges don't allow breath-test results to be used, prosecutors still press many drunken-driving cases by using evidence that includes testimony from police about drivers' performance behind the wheel and in field-sobriety tests, St. Louis said.
The Pima County Attorney's Office drew support in the Court of Appeals case from the Arizona Attorney General's Office and prosecution agencies for jurisdictions that included Phoenix, Tempe, Tucson and Yavapai County.
The Arizona Department of Public Safety has 250 of the Intoxilyzer 8000 machines in use statewide, spokesman Bart Graves said. Municipal police using the machines include departments in Phoenix and Tucson, officials said."
This issue has not gained the kind of traction in the Phoenix area that it has in Tucson.
Supreme Court to clarify Miranda Warnings?
There is a chance that the US Supreme Court will review a Florida case holding the pre-interrogation warnings that the officers gave the suspect were inadequate under Miranda v. Arizona.
What does Miranda require? | SCOTUSblog: "When he was taken by Tampa police to headquarters for questioning, he was given Miranda warnings. Detectives, reading from a standard form, included this warning in their recital: ‘You have a right to talk to a lawyer before answering any of our questions.’ Powell agreed to talk to them, and then provided the incriminating statement. He appealed his conviction, challenging the adequacy of that warning.
The Florida Supreme Court took on the issue, treating it as a matter of ‘great public importance.’ In its ruling, that Court remarked: ‘In this case the warning was misleading. The warning said ‘before answering any questions.’ The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.’ That, it said, is a direct violation of the Supreme Court’s Miranda decision."
(Via SCOTUSBlog.com.)
On the one hand, it would be good to get some clarification on the issue. On the other hand, at least from a criminal defense lawyer's perspective, that SCOTUS hears the case does not bode well for the potential outcome.
Montana DUI reasonable suspicion opinion
In a new case issued on 4/2/09 by the Montana Supreme Court, reasonable suspicion to stop for a DUI is reviewed and the case is affirmed.
The District Court’s decision to deny a motion to dismiss in a criminal case presents a question of law that we review de novo. We conduct plenary review to determine whether a district court’s conclusion is correct. State v. Howard, 2008 MT 173, ¶ 8, 343 Mont. 378, 184 P.3d 344. We review a district court’s denial of a criminal defendant’s motion to suppress evidence to determine whether the district court’s findings of fact are clearly erroneous and whether the district court’s interpretation and application of the law is correct.
In DUI trials you may not be entitled to a peremptory challenge
In an opinion issued on March 31, 2009, the United States Supreme Court held that peremptory challenges in criminal cases flows from the states and is not constitutionally mandated.
Read the full opinion here.
Essentially, if the State court denies you the right to strike a juror, SCOTUS doesn't care.
Ohio DUI Penalty for 3rd conviction
Can this be right? This dude got his 3rd DUI and is receiving 2 days in jail.
Mansfield Municipal Court: Man sentenced 3rd time for drunk driving | mansfieldnewsjournal.com | Mansfield News Journal: "Marshall C. Dunn, 630 Oak, Lot 93, Mansfield; (third) operating vehicle intoxicated; $900 fine; 180 days in jail; license suspended one year. No operator's license/failure to have proper endorsement; $350 fine; 30 days in jail, 28 suspended."
Under Ohio DUI Law, that was the result.
Now picture the same case under Arizona DUI Law. Can you say felony, with a minimum of 4 months in prison and a 3 year drivers license revocation? That would be the starting point.
I'm sure that there are those who complain that Ohio DUI law is too strict. Here's my suggestion if you fall into that category. "Splash some cold water on your face, open your eyes and take a look around."
Colorado DUI Saga: A senseless tragedy
Here is part of a very long "must read" article about the dangers and real human toll of driving impaired. It is also a good support exhibit for those who argue for stricter DUI penalties.
Reckless record ends in senseless tragedy - The Denver Post: "On the day she was accused of a hit-and-run crash that left two Connecticut librarians dead, Sandra Lee Jacobson had a suspended driver's license, a prior drunken-driving conviction and a blood-alcohol level more than twice the legal limit.
She also easily could have been in jail for repeatedly violating the terms of her probation in a 2006 DUI case."
Minnesota DUI for bus driver on the job
Here's a story about the bus driver in the Minneapolis area who got arrested for a Minnesota DUI. Since driving a bus in Minnesota requires a commercial driver's license, it shouldn't matter whether the person is "on duty" or "off duty" when the DUI occurs. You see, ANY DUI results in a one-year revocation of a commercial driver's license (CDL). A second DUI in a lifetime results in a "lifetime" revocation of the CDL, although there are certain ways around the "lifetime" revocation being forever.
Here's the story:
Off-duty DWI not always end of bus job: "Metro Transit said the DWI arrest last month of a driver in his bus was a first in its history and quickly fired him for 'gross misconduct.'
Yet it's not nearly so rare that Metro Transit drivers are arrested for off-duty drunken driving. Nor does it automatically mean the end of their bus-driving careers.
Since July 2006, 14 off-duty drivers have been charged with DWI, said Bob Gibbons, Metro Transit customer services director. Of those, nine lost their jobs after the state suspended their driver's licenses. Three others were transferred to non-driving jobs within the agency. Two drivers were able to get their licenses reinstated within about 30 days and quickly took the wheel of a bus once again.
Metro Transit puts the burden on drivers to maintain valid commercial driver's licenses and pass regular drug and alcohol tests, rather than taking disciplinary action for any traffic violation. But the March 21 arrest of Alonzo V. Martin in his Route 5 bus has jolted the transit agency into reevaluating its hiring and alcohol-testing practices, including whether it should look back further than three years for traffic violations and DWIs before hiring a driver.
The agency is also planning to get 'more involved, more engaged' when drivers commit traffic violations in their buses, Gibbons said.
'A bus operator arrested while in service has not happened in our history,' he said. 'It's clearly a major safety violation.'
But Michelle Sommers, president of the Amalgamated Transit Union Local 1005, said federal laws already dictate extensive policies of alcohol and drug testing and tougher penalties for traffic violations by commercial drivers. A recent change in federal rules mandates a one-year suspension of a commercial driver's license for a DWI conviction, so she expects few bus drivers in the future will be able to keep their jobs if convicted of drunken driving."
A DUI arrest for a person with a CDL is typically career ending. In this economy there is virtually no chance of keeping a CDL required job in the near future if you get a DUI of any type today.
Minnesota DUI law does not govern licensing in other states. For that reason, a non-Minnesota licensed driver who gets a DUI while passing through MN will probably lose their CDL in their home state if their home state finds out.
Former congressman arrested for a New York DWI
Former Congressman John Sweeney was arrested in Clifton Park New York on charges of a second offense DWI.
Former Congressman Accused of DUI | accused, congressman, dui - Breaking News - WRGB CBS 6 Albany: "Former Republican Congressman John Sweeney of Clifton Park was arrested early Sunday morning for allegedly driving drunk.
According to the Saratoga County District Attorney's Office, Sweeney was speeding on State Route 9 in Clifton Park when State Police stopped him. He refused both breath and blood tests. He appeared on the charges Sunday at 6am in the Clifton Park Town Court. Bail was set at $2,500 cash and $5,000 bond. Mr Sweeney was booked on the charged, and posted bail a short time later.
This is not Sweeney's first run in with the law for DUI.
In 2007, Sweeney pleaded guilty of driving while under the influence. As part of a plea deal, his license was suspended that same December. The deal also required Sweeney to go through a Drinker/Driver program with State Police, pay a serious of fines and attend a victim impact panel.
Seeing that this is Sweeney's second arrest for DUI, Sunday's charge is considered a felony.
D.A. James Murphy said in a press release Sunday, 'We are fortunate that his alleged conduct did not result in death or serious physical injury to himself or anyone else. This case will proceed through the criminal justice system like any other. . .Mr. Sweeney will automatically lose his privilege to drive on the pending charge for one year as mandated by DMV due to the fact that he refused the breath/blood test.'
Sweeney served in Congress from 1999 to 2007. He was defeated in his quest for reelection by now Democratic Senator Kirsten Gillibrand."
Learn more about New York DWI law, and explore New York DWI Penalties.
Immigration consequences of DUI
DUI consequences are still for citizens, but they can be terrible for non-citizens who are not documented.
Chicago Progressive Examiner: The Rigo Padilla story: When is a DUI not just a DUI?: "So Padilla was placed in a lockup along with criminal offenders, and the next day ICE agents came for him and other undocumented detainees. On the way to the ICE detention center downtown, 'the driver kept saying,'your best bet is to request voluntary deportation,'' Padilla said. At the ICE facility he was given the choice of posting another bond or wearing a tracking bracelet on his ankle; he picked the latter, and by that point the DUI was no longer an issue. His next court appearance would be a deportation hearing. "
You decide: Should somebody who is not licensed to drive and not in the country legally who choses to drive while impaired be treated the same as a licensed driver who is a US citizen or in the country legally and does the same thing?
Utah DUI Checkpoints for April 2009
Here's an article listing planned DUI checkpoints in Utah for April 2009.
DUI checkpoints set for Utah County - Salt Lake Tribune: "As the summer recreation season begins, the Utah County Sheriff's Office has planned two sobriety checkpoints beginning April 9. The checkpoints will be located on State Road 6 at milepost 147, west of Elberta, Utah County Sheriff's Sgt. Wayne Keith said. The first will begin at 2 p.m. on April 9 and continue until 2 a.m. April 10. The second will begin at 2 p.m. April 10 and continue until 2 a.m. April 11."
Learn more about Utah DUI Law and DUI checkpoints.
Washington State DUI Law: Tri-cities vs. Seattle
Interesting factoids about Washington State DUI law. So Seattle gets 19 DUI arrests a night. Tri-cities gets 9-10 arrests per night. Population-wise that is a staggering statistic.
KNDO/KNDU Tri-Cities, Yakima, WA | DUI Bus Back in the Tri-Cities: "KENNEWICK, Wash-- The Mobile Impaired Driving Unit is run through State Patrol and it's designed to assist officers throughout the entire state. But in the last three months, it has come to the Tri-Cities three times.
Here's how it works: individual police units can request the bus, or if there's a big event, like the Water Follies, it will likely be here. But with no big events in 2009 so far, why has the bus come to the Tri-Cities multiple times?
One sergeant with the Washington State Patrol says drivers in our area too frequently gets behind the wheel drunk.
'If you're asking me if it's needed over here, of course it is,' says Sergeant Zach Elmore of the Washington State Patrol. 'Do we have a DUI problem? Yea, we really do. For us to get 9 or 10 in a night compared to Seattle, where they get 19 in a night. That kind of bothers me.'
The bus will help cut down the time it takes to process a DUI by up to an hour. It'll be in the Tri-Cities Friday and Saturday night. "
Learn more about Washington State DUI law.
Mobile web use caused fatal accident: Woman gets 6 years in prison
There are certain things that impair a person's ability to safely drive as much as alcohol or drugs. Using a cell phone is one them. Putting on makeup is another. Being extremely tired is another.
Below is an article describing a woman in California who was sentenced to six years in prison for killing another person because her multitasking (paying bills on her cell phone while speeding) was more important to her than the lives that she was putting in danger.
Calif woman gets 6 years for fatal texting crash: "REDDING, Calif. – A woman who crashed into a line of stopped vehicles while text-messaging on her cell phone has been sentenced to six years in a California prison for killing a woman in one of the vehicles.
Deborah Matis-Engle was sentenced Friday by a judge in Redding, Calif.
Investigators said Deborah Matis-Engle was speeding and text messaging when she slammed into the vehicles stopped at a construction zone in August 2007.
Shasta County prosecutor Stephanie Bridgett said the 49-year-old woman had paid several bills by cell phone in the moments before the crash.
She was in the middle of one of those transactions when she struck a vehicle that burst into flames, killing 46-year-old Petra Winn.
Defense attorney Jeffrey Stotter said he will appeal."
If instead of using her cell phone, she was drunk or on drugs, nobody would have a problem with a six year sentence. In fact, most people would think it was way too lenient.
This woman is just as bad as any drunk driver. Just as most drunk drivers don't intend to kill somebody, I'm sure she didn't either. But she did intend her actions, and should have been able to foresee the potential consequences, just as a person who chooses to drink and then drive should know the risks.
I'm a defense attorney, so this position will not be a popular one amongst my peers, but I'll say it anyways. This woman deserves every bit of six years, if not more. She needs to serve as an example to millions of others who are doing the same thing as her on the roads every day.
If we enforce DUI laws and abhor the decision to drink and drive, we must treat equally dangerous and negligent actions while driving equally. While I feel sorry for her to have to spend six years of her life behind bars, she did kill another human being because she was too self-involved to care about other people.
Pennsylvania DUI arrests: What these people have in common
Here's a list of some unfortunate people who happened to get arrested for a Pennsylvania DUI and have their names published in the below-referenced publication. Look through each of these names and the blurbs describing their arrest, and see if you can pick out a common theme.
The question is: What do each of the people named in the quote below have in common (besides obviously being arrested for impaired driving)?
Hilltown DUI log - The ReporterNews: Serving North Penn, Indian Valley and neighboring communities: "The following people recently were arrested and charged with driving under the influence of alcohol or a controlled substance. In Pennsylvania, you are considered legally drunk if your blood-alcohol content is 0.08 p
JAN. 1: HILLTOWN TOWNSHIP — John Vandevander, 42, of the 100 block of Spruce Lane, Perkasie, was charged with DUI after he was stopped for erratic driving on Bethlehem pIke in the area of Keystone Drive, police said.
JAN. 24: HILLTOWN TOWNSHIP — Lydia A. Smith, 27, of the 700 block of Jefferson Street, Red Hill, was charged with DUI after police investigated a traffic accident in the 1100 block of Church Road, police said.
JAN. 28: HILLTOWN TOWNSHIP — David DeCarme, 38, of the 300 block of Cambridge Circle, Harleysville, was charged with DUI after he was stopped on Bethlehem Pike in the area of Hilltown Pike by an officer who was familiar with DeCarme and knew his license was suspended, police said.
FEB. 14: HILTTOWN TOWSHIP — Atem Angok, 22, of the 800 block of Poplar Street, Perkasie, was charged with DUI and hit and run after police were called to the area of Route 309 and Route 113 for the report of a hit and run, police said.
FEB. 15: HILLTOWN TOWNSHIP — Taressa Mattix, 27, of the 5700 block of Old Easton Road, Plumsteadville, was charged with DUI after her vehicle was stopped for erratic driving, police said.
FEB. 25: HILTTOWN TOWSHIP — Douglas S. Luber, 18, of the of the 4300 block of South Park Road in Ottsville was charged with DUI after police stopped his car for moving violations on Route 113 in the area of Keystone Drive , police said.
FEB. 27: HILTTOWN TOWSHIP — Kenneth F. Baker, 40, of the 2300 block of Charles Lane in Jamsion was charged with DUI after police stopped his car for a vehicle equipment violation on Route 113 at Route 152, police said.
MARCH 1: HILTTOWN TOWSHIP — Jennifer R. McCray, 30, of the 500 block of Washington Street in Royersford was charged with DUI after police were called to the Hilltown Crossing Shopping Center for the report of a female slumped over the steering wheel of a vehicle, police said.
MARCH 21: HILLTOWN TOWNSHIP — Brian Hastings, 29, of the 200 block of Hampshire Drive, Perkasie, was charge with DUI after police investigated a report of a vehicle driving with a flat tire on Hilltown Pike in the area of Diamond Street, police said."
The answer: Each and every person named above is innocent unless proven guilty in criminal court. Reporters, judges and prosecutors sometimes forget that the presumption of innocence applies to drunk driving cases. It is good the check ourselves and remember this from time to time.
Minnesota DWI ignition interlock devices
Here is an interesting article about ignition interlock devices in Minnesota DUI cases.
DWI device can prevent motorists from driving drunk | Duluth News Tribune | Duluth, Minnesota: "A Twin Cities area defense attorney/businessman was in Duluth Friday to show how a potentially deadly weapon can be taken out of the hands of the intoxicated.
Attorney Edward Cohen Jr., vice president of Smart Start MN of Golden Valley, demonstrated his company’s ‘vehicle ignition interlock’ to a group of corrections officials, a representative of Mothers Against Drunk Driving and others who work with convicted drunken drivers.
The breath-testing device prevents a car from starting if it registers above a pre-set alcohol level when the driver blows and hums into a sensing unit. The technology has become more sophisticated and harder to beat than other ignition locks. It includes a camera to make sure the person who is required to use it is the person blowing into it, and not a sober buddy recruited to try to beat the system.
The device also requires a driver to do ‘rolling tests’’ at random intervals to make sure the driver doesn’t start drinking after getting the car started. The unit will record a violation if alcohol is detected or if the driver doesn’t perform the rolling test.
‘When you’re working in any type of corrections or with people in recovery, the more tools you have in the tool box the better chance you have to help people be successful,’’ said Dennis Cummings, director of the Duluth Bethel Center, which provides chemical dependency services."
Many DUI defense lawyers rant and rail against ignition interlock devices as being invasive and reactionary. However, I have personally seen repeat offenses where the person got a first DUI, and then didn't get an interlock device, and then got another DUI shortly thereafter. I have actually had clients tell me they wished that they had been required to install one on their vehicle after their first DUI conviction, as it would have prevented their second. Now, Arizona DUI law mandates that everybody convicted of a DUI get one for a year. I have seen people get second offense DUI arrests literally days after fulfilling their ignition interlock requirement and having the device removed.
Ignition interlock devices are bad for business if you are a DUI defense lawyer, unless or course, you also happen to own an interlock company. But I don't disagree with MADD on this one. The fact is, ignition interlock devices prevent people from easily getting DUIs, and probably save lives.
Idaho DUI opinion grants officers permission to enter residence
An unpublished Idaho DUI opinion issued by the Court of Appeals of Idaho on March 2, 2009 reversed the lower courts finding that officers following a DUI suspect into her residence was illegal without a warrant.
Here's why the court found that the police had probable cause to arrest for DUI prior to the defendant entering her house:
In this case, Deputy McFarland clearly had probable cause to arrest Finnicum for DUI before she retreated into the house. Finnicum’s son had informed him that Finnicum had been drinking all day, was highly intoxicated, and had recently driven away. About half an hour later, Deputy McFarland saw Finnicum driving on the adjacent public road and flagged her down. He then made observations that tended to confirm the report that she was intoxicated--she smelled strongly of alcohol, slurred her speech, had glassy and bloodshot eyes, and seemed confused. When Deputy Vrevich arrived, he noticed that Finnicum seemed unable to walk in a straight line. Collectively, this information amply provided probable cause for Finnicum’s arrest for DUI, and McFarland was authorized by state law to make a misdemeanor arrest without a warrant because the offense was committed in his presence. See I.C. § 19-603(1). Deputy McFarland not only possessed probable cause before he entered the residence, but he had already taken steps toward an arrest, notifying Finnicum that he suspected her of DUI and ordering her to stay by her vehicle while he finished interviewing her son. Although Finnicum initially complied, she ultimately disregarded this order and went into her residence.
The result of this case is predictable. Thinking about it logically, if the entry by police into the house under these circumstances was deemed unconstitutional, then anybody being pursued by police for an Idaho DUI would be on notice that if they could make it inside their residence before the police caught up to them, they would be safe from arrest (and then, of course, could quickly consume alcohol at home to further blur the issue).
I hate to say it, but I think the Court got this one right.
Minnesota DUI Intoxilyzer source code case: This ought to make you angry
On March 31, 2009 the Court of Appeals of Minnesota issued an "unpublished" opinion about a Minnesota DUI case involving the much sought after source code for the Intoxilyzer breath test machine. Astonishingly, the Court reversed the lower court's order compelling the disclosure of the source code under threat of suppression of the breath test results.
THIS IS A TERRIBLE OPINION AND SHOULD SHOCK YOU UNLESS YOU ARE USED TO "INJUSTICE AS USUAL"Quick fact summary by the Minnesota Court of Appeals:
The district court granted respondent’s request for discovery of the source code, finding it “relevant and necessary for [respondent’s] defense.” The district court specifically ordered the state to “provide the full source code to [respondent] within 30 days of the filing of this order,” and stated that “[i]f the source code is not produced within 30 days of the filing of this order, the Intoxilyzer test result shall be suppressed.”
Here is the (pardon my judicial criticism) but stupid logic that is used by the court, and is used in many cases to justify admission of unreliable evidence in DWI prosecutions:
The state argues that the district court’s discovery order has a critical impact on its case because if the Intoxilyzer results are suppressed, the state will be unable to prosecute respondent for second-degree DWI over .08 alcohol concentration. We agree. While the state may still prosecute respondent on the DWI charge based on the officers’ observations, this court has held that a critical impact is shown when evidence essential to prove some, but not all, criminal counts is suppressed. See State v. Grohoski, 390 N.W.2d 348, 352 (Minn. App. 1986) (holding that the critical-impact test is met when, without the chemical-test evidence, four of six charges would be dismissed), review denied (Minn. Aug. 27, 1986). Suppression of the Intoxilyzer result in this case, as required by the district court’s discovery order, has a critical impact on the state’s ability to prosecute respondent.
So essentially, their legal reasoning is that they can't compel the source code because they know that the company that makes the Intoxilyzer, CMI, will not give the code up. Therefore, even though the breath test evidence might be unreliable, they are going to allow the state and CMI to get away with it because to do otherwise hurts the state's case!
If you care about justice and this doesn't make you angry, check your pulse. Did these judges actually go to law school?
It gets better:
The state argues that respondent has not demonstrated that the source code has any specific relevance to his guilt or innocence. Specifically, the state contends respondent has not presented evidence raising a question as to the accuracy of the test in his case and has not shown that the Intoxilyzer malfunctioned or that the result was unreliable as to him. The state further argues that “[r]espondent failed to explain to the District Court how the source code could demonstrate some flaw in the software of the instrument or its operation.” (emphasis added)
So this court wants the defense to produce evidence that there is something wrong with the code from the machine in order to compel disclosure of the code. How could they possibly show there was something wrong with it without having a chance to examine it?
With the judicial clarity that this ruling shows on the part of these judges, perhaps they would rule that a psychic's assessment that the test was incorrect would suffice? What the heck are they looking for?
Here's the take home message. If you are accused of DUI in Minnesota, your battle is uphill, with the wind blowing in your face and little monkeys in black robes trying to steal your clothes and pickpocket you as you try to move forward.
Learn more about Minnesota DWI law, and find a Minnesota DWI lawyer.
Louisiana DWI suspect beat by police
Warning: This video is disturbing.
Could this treatment be justified?
California DUI case: Justice or good old boys network?
Here's a riddle.
Is justice the same when a prosecutor is a defendant as it is when a DUI prosecutor is just a prosecutor?
According the the DA in the story below, the reckless driving deal that this Nevada prosecutor took after his California DUI arrest was just business as usual, the same deal would be offered to anybody else.
Now before we DUI defense lawyers get our panties all up in a bunch, let's consider what we do every time we negotiate a case for one of our clients with a prosecutor. More on that later. First the article, quoted in full:
Calif. Prosecutor Drops DUI Charges Against Nevada Prosecutor | NBC Los Angeles: "A Nevada prosecutor pleads guilty to reckless driving and won't be prosecuted for DUI in connection with two crashes in a six-hour span, according to the Las Vegas Review-Journal.
Nye County District Attorney Bob Beckett crashed two cars within six hours on the same stretch of California highway in June 2008. He failed an alcohol breath test at the scene of the second crash.
In September, Beckett pleaded not guilty to DUI charges.
But he changed his plea after the DUI charges were dropped, pleading guilty instead to reckless driving. As part of the plea, he is also required to complete a class on alcohol and automobiles.
Beckett will not be prosecuted for drunken driving under the plea deal entered in Barstow, Calif., Superior Court on Friday.
In the first crash, which happened early afternoon, Beckett totaled the county-issued SUV he was driving on California Route 127, south of Shoshone, Calif. No other vehicles were involved.
After riding home in a tow truck, Beckett went out to the same highway in his own van, crashing six hours later.
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After failing a breath test for alcohol at the scene, Beckett was arrested, taken to Baker, Calif., and released into the custody of a friend, according to LVRJ.com.
San Bernardino County deputy district attorney Joel Buckingham said the plea agreement was not out of the ordinary and Beckett did not get any special consideration."
Now, back to what DUI defense lawyers do when they plea bargain a case.
1. First we present the facts and explain to the prosecutor why they favor our client.
2. If the facts don't favor our clients, then we present our legal theories.
3. If our legal theories are no good, then we present our client as a human being. We bring out the good. We hide or minimize the bad. "This client is an upstanding citizen, a doctor," we say. "This client just got home from Iraq where he took two bullets and rescued 5 babies from certain doom." We sell our clients value to society, and we emphasize that their behavior is more negligent than criminal, that they are guilty perhaps, but never condemnable.
4. If none of the above work, then some of us beg. Some of us whine. Some of us threaten litigation, and some of us vow to rid the planet of several trees as we explain to the judge in many motions what is wrong with the case.
For us DUI defense lawyers, if any of the above tactics work, then we are successful. It really does not matter how we got there if we got the client a good result, as long as we didn't violate the ethical rules.
So, for defense attorneys who are inclined to say that this is favoritism and not justice, think of the example it sets. Now, for California DUI lawyers practicing in San Bernardino County, they can cite this example.
This was a good result for a California DUI defendant who just happened to be a prosecutor. I congratulate him and hope that he has the good sense to learn from this not just one, but at least two lessons:
Lesson 1: Don't drive drunk. Pretty basic, huh?
Lesson 2: Perhaps this ordeal will cause him to approach people he prosecutes with greater compassion, and approach justice with a people based perspective. Perhaps he will set a tone for younger prosecutors in his office to follow.
Perhaps.
Ryan Moats incident officer Powell resigns
This is golden. Ofc. Powell of the Ryan Moats incident fame has resigned.
It was the right thing to do under the circumstances, given the negative publicity it has drawn to the Dallas PD.
Look at the quote below and read the statement issued by his lawyer, then see if you agree with my assessment below:
Cop who stopped NFL player in hospital lot resigns - NFL - Yahoo! Sports: "The police officer who pulled out his gun and threatened an NFL player with jail instead of allowing him inside a hospital where his mother-in-law was dying resigned Wednesday.
Officer Robert Powell had been placed on paid leave pending an investigation of the March 18 incident.
‘I made this decision in the hope that my resignation will allow the Dallas Police Department, my fellow officers and the citizens of Dallas to better reflect on this experience, learn from the mistakes made, and move forward,’ Powell said in a statement issued through his attorneys."
It will give everybody else other than him time to reflect and learn from his mistakes. Good that he's taking responsibility and learning himself.
Pennsylvania Bureau of Driver Licensing (PennDOT) Case: PA DUI Update
In a new opinion issued on March 31, 2009 by the Pennsylvania Commonwealth court, a drivers license suspension was reversed because the officer could not establish that the person who had been arrested for DUI actually drove the vehicle, which he had left after an accident, after he had consumed the alcohol that caused his impairment.
Officer Brown could not reasonably conclude that Stahr was driving under the influence simply because he showed signs of intoxication when he exited the state trooper’s vehicle without further establishing the timeframe between the accident and the observed intoxication. No timeframe between the accident and arrest was established according to the evidence provided to the trial court. We cannot, therefore, conclude that Officer Brown had reasonable suspicion that Stahr was in control of his vehicle while under the influence of alcohol. Since there was no objective evidence to support Officer Brown’s suspicion that Stahr was driving under the influence, the order of the trial court is reversed, and Stahr’s operating privileges are reinstated. (Quoted from original opinion).
This is a good result and one that makes me hopeful that there is justice in the world this Wednesday morning.
It is not illegal to get drunk after an accident. The State, even in DUI cases, is supposed to have the burden of proof. Learn more about Pennsylvania DUI law and how PA DUI suspensions work.
Charges dropped against Ted Stevens due to bad prosecutors
In an admission that one government branch prosecuting another public servant committed prosecutorial misconduct to get the conviction, the Justice Department is dropping all charges against Ted Stevens.
Eric Holder, the Attorney General under President Obama appears to be a stand up guy. It would not surprise many people if more charges are dismissed based on ill-gotten convictions under the Bush administration. After the Alberto Gonzales fiasco, it was clear that there was a lot of clean-up that was needed at the Justice Department. Below is part of an article that describes the Ted Stevens decision:
US seeks to drop case against former Sen. Stevens: "The trial was beset by government missteps, culminating recently when a federal judge took the unusual step of holding the Justice Department in contempt.
In early morning court filings, the Justice Department admitted it never turned over notes from an interview with the oil contractor, who estimated the value of the renovation work as far less than he testified at trial.
'I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial,' Attorney General Eric Holder said in a statement released Wednesday."
All I can say is wow. Good to have an Attorney General who does his job... pursues justice rather than political convictions. Even if Ted Stevens was the longest running corrupt politician in the history of America, it doesn't excuse withholding evidence from his defense team.
If we are, as we are led to believe, a nation of laws, it's high time, and refreshing, to see us start acting like one again.
