How can the State charge me if there is no proof?

Can the State charge me without proof?

So someone has accused you of wrong doing, but has not presented any evidence, what now?  How can the State charge you with a crime when it is just one person’s word against yours?  Don’t they need evidence?  Isn’t what they say about me ‘hearsay’?

I get these questions a lot from clients and prospective clients.  These issues demonstrate a misunderstanding of what ‘evidence’ is.

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Can I be arrested for a DUI after taking prescription medications?

 

Prescription Drug DUI

DUI? I am prescribed this medication.

Can you be arrested for a DUI for driving after taking a prescription medication?  Everyone knows the risk of drinking alcohol and driving. Few realize the potential for being arrested for driving after taking legally prescribed medications.  Approximately 15% of the DUI cases that come into my office are prescription drug DUIs. Continue reading

Ten Steps of a Divorce Case in Idaho

Steps of a Divorce Case1. Breakdown In The Relationship

It may have come as a surprise to you, but the chances are that something went wrong in the relationship long before you or your spouse asked for a divorce. Typically we see a pattern of gradual emotional distancing and erosion of trust between the spouses. Often the allegations of infidelity (either real or imagined) follow, and a complete breakdown in communications.

2. Lawyering Up

One side will usually start talking with family and friends about the failing relationship. Once the big “D” word (divorce) is finally out in the open, family members and friends begin to give advice (solicited and unsolicited) on what to do and how to choose an attorney.  Finally, an attorney is often randomly selected amongst a myriad of names that are thrown out by the family and friends.

3. Filing the Divorce Case

The plaintiff files the Complaint and Summons with the court and serves a copy on the opposing party (the defendant). The party initiating the divorce case is the plaintiff, and the other party is the defendant. In the Complaint, the party filing for divorce makes a list of claims against the defendant. It will request the court to grant the divorce, custody,  and support, and divide the marital property. Filing of the Complaint starts the process, forcing the other side to act or risk defaulting and giving the Plaintiff everything asked for in the complaint.

4. Answering the Complaint

Although a person served with the divorce complaint is not required by law to respond to the complaint, it is always a good idea to file an answer. See here.

5. Discovery Process

Making reasoned and practical decisions about custody and property issues is impossible without first gathering all the information available. The old saying that “knowledge is power” holds true here. This hunt for information is called the discovery process. Both sides will routinely file requests for information in the form of interrogatories, requests for admission, requests for production of documents and depositions.

6. Mediation

Idaho courts in divorce cases will regularly order the parties to complete a minimum of three hours of mediation in hopes of resolving the case or, in the alternative, narrowing the issues for the upcoming trial. See here.  The mediation will be presided over by a professional mediator.

7. Attorney Negotiations

Aside from the mediation process, the opposing attorneys are also communicating back and forth. They are trying to resolve a variety of legal issues having to do with discovery, potential legal motions and any issues that may have to do with the upcoming trial. The attorneys are also trying to facilitate the mediation process going on between the parties and addressing any other remaining contentious issues.

8. Trial

If the parties cannot resolve the divorce case in the mediation process, a trial will be necessary, and the judge will have the final word on the remaining issues of child custody and property division. The trial is a formal process whereby the two adversarial parties present their case to the judge. She will make a decision that is legally binding on the parties as long as she acts within the confines of the law.

9. Divorce Decree

A Decree of Divorce is a document that includes the specific rights and responsibilities of both parties that carries the force of the law behind it.

10. Enforcement of the Divorce Decree

Having the binding decree is one thing and enforcing its terms is quite another. Many divorcees discover to their disappointment that it is sometimes difficult to enforce the decree. The other party might not live up to their obligations. Such situations often require separate actions to enforce the existing legal rights established in the divorce process.  For example, motions for contempt of court.

The Victim Is Not Pressing Charges. Why Am I Still Being Charged?

Clients often call me and tell me the complaining witness (also known as the “alleged victim”) is not “pressing charges.” They say that the complaining witness has even gone so far as to inform the prosecuting attorney that they want to “drop the charges.” “So…” the client asks me, “If no one is pressing charges, why am I still being charged?” Continue reading

What happens to a witness (or victim) if they fail to appear for court?

witness fail to appear for subpoenaWhat will happen to a witness (or alleged victim) if the witness fails to show up for court?  It is most commonly a wife, or girlfriend, of a defendant in a domestic violence case that asks this question.  I suspect they are asking this because they hope that their absence from the court will result in a dismissal of the case. Continue reading

Can the police lie to you to get you to confess?

can the police lie

Can the police lie?

I have made it clear that you should never speak to the police when they accuse you of a crime. Especially if you are innocent.  You cannot trust what the police are saying and what evidence they are presenting to you during the interrogation. Sometimes the police will lie to you, and tell you that they have evidence they do not have.  But can the police really lie to you and get away with it?  The short answer is yes they can in most cases.

In what ways can the police lie to you?

There are many ways a police officer may use deception to coerce a confession from a suspect.  Sometimes the officer will display false sympathy for the suspect. Other times he will lie and say he has incriminating evidence that he does not have. Sometimes he will falsely claim that a co-defendant has already implicated the suspect in the crime.

Rules of Interrogation

The police must follow certain procedures once the suspect is in custody.  The police must obtain a voluntary, knowing, intelligent waiver of the suspect’s privilege against self-incrimination.  Also a waiver of his right to counsel.  In other words, they must get you to give up your right to remain silent and to an attorney.  Only then can they interrogate you.

Voluntariness of the Confession

After you have waived your rights, the confession must still be a voluntary confession.  Whether a confession is voluntary or not is based on the “totality of the circumstances”.  The Courts have held that a police officer simply lying does not result in an “involuntary confession”.  However, they have said that it is one of the many factors when looking at the “totality of the circumstances”, whether the confession was voluntary.  In other words, if there are many other things the police officer did to force a confession, including lying to the defendant, then the Court may decide that the confession was involuntary. If so, the Court will not allow the State to present the confession to the jury. However, lying alone will not cause the court to suppress the confession.

False promises are disfavored.

Courts generally disfavor a police officer making false promises to the suspect to induce a confession, especially where the police promise to dismiss or reduce charges in exchange for a confession.  Police officers know this, and usually make more vague promises to the suspect, like promising to bring the suspect’s cooperation to the attention of the prosecutor, and how it will be better for them to confess.  These vague promises do not receive the same scrutiny as the express promise to dismiss a case in exchange for a confession.  Consequently, police commonly make these vague promises to extract a confession.

As I have said so many times before, you should exercise your right to remain silent, to begin with, so that you do not get caught in these traps.  If you have made damaging confessions to the police, then you should seek the services of an attorney.  See what he can do to help you with your case.

 

 

 

In Idaho can a police officer make a traffic stop for any reason he wants?

Technically? No.  Practically?  Pretty much.

According to the fourth amendment and its accompanying constitutional interpretation by the United States Supreme Court, as well as well settled case law in Idaho, in order for a police officer to stop your vehicle he or she must have reasonable articulable suspicion that criminal activity is afoot.  Absent such reasonable articulable suspicion, the officer must not stop your vehicle, and if he or she does it is an unlawful stop and any evidence of a crime that he or she may find thereafter will be suppressed as ‘fruit of the poisonous tree’.

So that sounds pretty fair and just, the officer must have a lawful reason to stop you, or he will not be able to use any evidence he collects when he stops you illegally.  But in practice, the legislature and courts have written and interpreted the laws regarding motor vehicles so broadly that only the most incompetent of police officers could not find a lawful reason for stopping your motor vehicle.

And bear in mind, the reason that the police are stopping you may obviously not be the real reason they are stopping you.  This is known as a ‘pre-textual stop’.  So for example, you are driving your car at 2 AM in the morning, and the officer wants to stop you to see if you have been drinking.  He can find an unrelated reason to pull you over (e.g. tail light out) just so can stop you and see if you’ve been drinking.  It is well settled law that pre-textual stops are perfectly legal. The officer doesn’t even have to charge you with the pre-textual reason he stopped you, and very often they do not.

Here are some examples of laws that are frequently used by police officers in Idaho to justify stopping your vehicle.

Idaho Code 49-808 (Turning Movements and Required Signals):

This statute deals with turn signals.  The statute mandates that “On controlled-access highways and before turning from a parked position, the signal shall be given continuously for not less than five (5) seconds and, in all other instances, for not less than the last one hundred (100) feet traveled by the vehicle before turning.” Courts have interpreted this to mean that on highways that have exits and onramps, you must leave your turn signal on for at least five seconds before making a turning movement.  This also applies if you a turning from a parked position, for example if you are turning out from being parallel parked on the side of the street.  That means that if you only signaled for 4 seconds before making the movement, then you have violated the law, and the officer can stop your vehicle.  Now take out your stop watch and watch five seconds pass by.  Now imagine waiting that long before changing lanes on the freeway. You will quickly see that if an officer wanted to stop you, all he would have to do is follow you long enough to see you make this mistake that so many driver’s make.  And sometimes it’s not even a mistake, its a necessary maneuver when traffic is changing so quickly.

Next, the statute requires that on all other roadways that you signal for 100 feet before turning.  Now the fact of the matter is, in many instances, especially in the city, this is next to impossible.  If you are traveling in slow moving traffic in down town Boise, it is impossible to wait until you have traveled 100 feet with your turn signal on before changing lanes, or turning.  Again, an officer that wants to stop you only needs to follow you for a few minutes before you will be forced to make this maneuver, and then he will have his lawful basis to stop you.

Idaho Code 49-644 (Required Position and Method of Turning):

This statute deals with how you should behave when you turn your motor vehicle.  This is a favorite of police officers, because it’s a common way to drive, and most people do not realize it is illegal.  Again, it is also sometimes necessary if you have an immediate second turn you need to make.

Most driver’s know that when you are turning left that you need to turn into the closest lane of travel, otherwise you may run into a vehicle coming the opposite direction who is lawfully turning right.  However, what driver’s don’t realize is, you have to do the same when turning right.  The code requires that ‘Both the approach for a right turn and the right turn shall be made as close as practicable to the right hand curb or edge of the roadway’.  Courts have interpreted this to mean you must remain in the closest lane to the curb.  If you take a right turn, and swing into the lane further from the curb, you are in violation of this statute.  This gives a police officer a lawful reason to pull you over.

Idaho Code 49-637 (Driving on Highways Laned for Traffic)

This is a very frequently used statute for stopping vehicles, especially if you are out past 2AM. The statute requires you to ‘drive as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety’.  Follow any car, on any road, day or night, and count how many times it touches one of the lines marking the lanes of travel.  Each time a car touches one of those lines marking the lanes of travel, they have violated 49-637.  Again, it doesn’t take very many minutes of an officer following your vehicle for you to make this mistake.  It’s even more likely to happen when a police officer is tailing you because you are nervously watching the officer in your rearview mirror, and are bound to let your vehicle drift just enough to touch or cross these lines.  The officer then has the reasonable articulable suspicion he needs to stop your vehicle.

Idaho Code 49-119(19)(Definition of Roadway) and 49-630 (Drive on Right Side of Roadway):

These two codes combine to form a reason similar to the last code discussed.  This combination of codes is used to stop someone for crossing over the ‘fog line’.  Courts have ruled that anything on the other side of the fog line is not the ‘roadway’ as defined in 49-119, and so is a violation of the requirement of 49-630 to always drive on the ‘roadway’.  And so if you touch or cross over the fog line, you have given a police officer reason to stop your vehicle.

Equipment Violations

Equipment Violations are one of most frequently used reasons a police officer stops a vehicle.  They like these because they are easy to spot, and they are objective.  Credibility really isn’t an issue because the equipment violation can be easily documented.

The following remaining examples are these types of equipment violations.

Idaho Code 49-949 (Requirement as to Fender or Covers Over All Wheels on Motor Vehicles)

This code deals with fenders and mud flaps.  It’s a complicated statute, but it essentially says that a truck has to have mud flaps if the finder is 10” above the roadway when the truck is unloaded.  The Courts have interpreted the word ‘trucks’ to include ‘pickup trucks’.  Consequently even if you have a stock pickup truck, with no lift, if the fender is more than 10” off the road, you need to have a mud flap that makes up the difference.  Saying you purchased the pickup truck that way from the manufacturer is not a defense.

Also this code requires fender flares if you put on after market tires and wheels that extend out past the fender.  If the tires extend out past the fender, then they can stop you for violating 49-949.

If an officer wants to stop you, and he sees a violation of this statute, he will have a lawful basis to stop you.

Idaho Code 49-944 (Standards for Windshields and Windows of Motor Vehicles)

This law covers tinting of car windows and windshields.  It is a complicated statute, with many different technical requirements.  You may want to read it if you have tinting on your window to make sure you are within regulations.  The police will use that is an excuse to stop you.

Idaho Code 49-937 (Mufflers, Prevention of Noise)

Another low hanging fruit for the police to grab at is a noisy muffler.  The reason that this is a violation that the police will often use is because it is hard to quantify how loud your muffler is.  So accusing you of having a loud muffler is a perfect infraction to accuse you of to pull you over, because you will have difficulty proving that it isn’t.

Idaho Code 49-902 (Vehicle Equipment)

This code has made ii unlawful to operate a motor vehicle that has equipment that is in an ‘unsafe condition’.  The Idaho Court of Appeals held that a cracked windshield is a condition that makes the vehicle unsafe to drive. (See State v. Kinser, 112 P.3d 845, 141 Idaho 557 (Idaho App. 2005))  Even when the crack is on the passenger side of the vehicle.  So if a police officer sees a cracked windshield, he can stop your vehicle, and it will be a lawful stop.

This statute could be used in other scenarios as well, such as busted tail lights, and headlights that are burned out.

So next time you hear it said that the fourth amendment protects American citizens from unreasonable seizures, just remember that the Idaho legislature, and Idaho Appellate Courts have ensured that almost any stop the officers make will be deemed reasonable.

Ferguson, Grand Jury, and Indicting a Ham Sandwich

It is an old joke that a Grand Jury would indict a ham sandwich if you wanted them to.

The joke comes from the reality that Grand Jury proceedings are kind of a sham.

First, the burden of proof at a Grand Jury proceeding is probable cause.  The prosecutor must prove that there is probable cause to bring criminal charges against the Defendant.  Probable cause is the lowest burdens of proof.  The only burden of proof lower is ‘reasonable suspicion’.   The burden an officer must have to stop a vehicle for example.

Second, neither a defense attorney, nor the defendant himself can be present at the Grand Jury proceeding.  The proceedings are closed proceedings.  You can imagine what the consequences are when you have one hand clapping.  The prosecutor’s bias view rules the day.  There are rules of conduct that require the prosecutor to present evidence in mitigation, but you can only imagine the half hearted presentation that this evidence is given.

Consequently, anytime a prosecutor wants to indict a Defendant on a felony charge, he can do so.  It is a very rare occurrence for a Grand Jury to refuse to indict a Defendant.

That is what is so interesting about the Ferguson case.  Why didn’t the Grand Jury indict the officer that shot Michael Brown?  At a minimum it appears that there were conflicting statements from witnesses, some witnesses that say that Michael Brown was surrendering and still being shot.  Whether these witnesses are credible or not, why didn’t the grand jury at least find probable cause?  Did the prosecutor sabotage his own case in order to shift blame from himself to the Grand Jury?  Now the prosecutor can say, well I tried to charge the officer, but the Grand Jury refused to find probable cause.

What bothers me the most is not that the Grand Jury failed to indict the officer.  What bothers me is that under no circumstances would a Grand Jury have failed to indict anyone else that wasn’t wearing a badge.  There is a double standard in our country when it comes to self defense.  When an officer of the law defends himself, he is nearly always given the benefit of the doubt, and nearly always cleared of any wrong doing.  Anytime any other citizen defends themselves they face the very real possibility that they will be charged and convicted of murder.

Famous last words: I am innocent, I do not need an attorney.

 

Too many times I have had criminal defendants come to me after their case is finished asking if there is something I can do to help them now that they have been wrongly convicted of a crime. Naturally I ask them why they didn’t come to me before the case was finished. The most frequent answer I get is that they were innocent of the charges, and they believed that everything would work out okay, because innocent people cannot be convicted of a crime.

The belief that innocent people cannot be convicted comes from, one the belief that Government is good and should be trusted, and two a misunderstanding of how the judicial system works.

The same clients that believed that everything would work out ok because they were innocent also believed that if the only evidence the State had was the testimony of one witness, there was no way they could be convicted. They had heard somewhere that this evidence is ‘hearsay’ evidence, and could not possibly be the basis for a criminal conviction.

Well first, testimony is only hearsay if that witness does not come to court. Once the witness comes to court and tells the jury the same words, it is no longer hearsay. And second, the belief that one persons words, without more evidence, cannot convict you, is a major misunderstanding of how our judicial system works. In fact, the greater portion of cases that go through the criminal courts are exactly that, cases based on one witnesses statements.

Since these defendants believe that they will not likely be convicted of the charges, they sit back and do nothing to improve their situation. They file no legal motions, they do no discovery or investigation, and they just show up to the court in hopes that they can just tell the judge to dismiss this obviously frivolous case. Those same defendants end up being sorely disappointed when they get convicted of a criminal charge, and even sent to jail.

So if you are one of these people who believe that the Government is good and would never wrongly convict someone, or believe that one persons allegations against you could never end in a conviction, then please call me today and set up a consultation so that we can talk about what you can do to save yourself from a very embarrassing, and even painful future in court.

Arrested and Not Read My Rights!

rights…The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.
United States Supreme Court,  Miranda v. Arizona

Hollywood has done both a service and disservice in raising awareness of what have come to be known as the Miranda Warnings.  Miranda warnings are the rights you are commonly read when arrested by the police.  In the movies and television shows, the police always read off a memorized statement of rights to the suspect they are hand cuffing before they throw him into the back of their car.  These movies have been a service to the public at large in that they make people aware that they indeed have these rights, and these rights must be read to them.  It has done a disservice to the public in that the movies and television shows do not explain when your rights must be read to you, and what the consequences are when they do not read them to you.  The movies and television shows make it look like your rights must be read to you whenever you are taken into custody, but that is not the case.

The reason that law enforcement is required to read the ‘Miranda Warnings’ is because historically the public has been unaware of exactly what their rights are.  If you do not know what your rights are, then obviously it is going to make it a little difficult to exercise those rights.

The truth about Miranda Warnings is, they do not have to be read to a suspect that is simply being arrested.  The warning has to be read to a suspect before he is questioned while in custody.  The reason police will sometimes read a suspect his rights when he is arrested is so that anything he says after he is arrested will be clearly admissible in court.  For example, after a suspect is arrested and placed in the police car, the officer may casually ask the suspect questions on the way to the jail.  The suspect may answer those questions.  If those questions have any relevance to a crime, the suspect may have a basis to suppress those statements at trial as a violation of his constitutional rights.  So some police agencies just read the rights to every individual suspect they arrest.  Many agencies do not.

There really are no ‘Miranda Rights’, there are only constitutional rights.  What we call ‘Miranda Rights’ are actually just a group of constitutional rights related to criminal law.  The Fifth and Sixth Amendments to the United States Constitution grant a defendant a right against self incrimination, and a right to an attorney during every stage of a criminal prosecution.

If a suspect is questioned by the police, while in custody, and hasn’t been read his rights, the statements the suspect makes to the police can be suppressed by a court for a violation of the Defendant’s constitutional rights.  But if the police simply never read the suspect his rights, and never question him while in custody, then there is no violation of his rights, and consequently no remedy.