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.

Should I refuse to blow when arrested for DUI?

refuse to blow

Armchair lawyers will tell their friends to refuse to blow into the breathalyzer when arrested on suspicion of a DUI. But that’s not always the best advice.

Actual impairment vs. Per Se DUI

Even if you refuse to blow, the State can proceed on an ‘actual impairment’ theory.  This means that they can try to prove the DUI case by presenting other evidence of intoxication. Such as a driving pattern, blood shot eyes, the smell of alcohol, failed field sobriety tests, impaired memory, slurred speech, etc.  The breath alcohol test allows the State to proceed on a ‘per se DUI’ theory. That means they only have to prove that you were in ‘actual physical control’ of the vehicle and that you were over the legal limit.

365-day License Suspension if you Refuse to Blow

One of the major consequences of refusing to blow into the breathalyzer is a mandatory 365-day license suspension. The reasoning behind suspending your license when you refuse to blow is what is known as “Implied Consent”. Implied consent means that when you get your driver’s license, you are consenting to the rules of the road. If an officer stops you for driving under the influence, you must comply with tests to ensure you are safe to drive.  Or else risk losing your license.

Bear in mind the 365-day license suspension is a consequence separate from any consequence you might get for the crime of DUI. It is a separate offense to refuse to cooperate with a breath test. Even if you were stone cold sober when you were arrested, you still must comply with a breath test. Being innocent of DUI does not absolve you of the responsibility to comply with the rules of the road. Even if you beat the DUI charge, you will still be stuck with a 365-day license suspension. And that is an absolute suspension, meaning you cannot drive for any reason, even work. Whereas if the court convicted you of a DUI charge, suspended your license for only 180 days. Additionally, you could apply for a work permit after the first 30 days of the suspension.

Forced Blood Draw

Another reason not to refuse to blow is because law enforcement is probably going to get your blood anyway. The State does not need your consent to draw your blood, they simply need a warrant from a judge. Most cities have a process in place for waking up a judge at 2:00 a.m. to get a warrant. If that judge ends up being the judge on your case, you can imagine how upset he (or she) is going to be that you forced him to wake up at 2:00 a.m. The courts in Idaho have not settled the law on whether they can charge you for a refusal after a blood draw. Consequently, there is a chance that they may get your blood, and charge you with refusal to provide a breath sample. So they will get their cake and eat it too, while you suffer twice.

Proof of Innocense

In Idaho, one reason you may not want to refuse a breathalyzer is because if you feel like you are under the legal limit, blowing under a .08 will normally get you out of a DUI charge. Unless the officer has reason to suspect drug use, he must let you go if you blow under a .08. If you refuse to blow and would have blown under a .08 had you blown, then the State could proceed on an ‘actual impairment’ theory, instead of a ‘per se DUI’ theory. So if you only had one beer, then it may make sense to take the test in hopes that the police will not arrest you.

Refuse for Felony

There are times where it may make sense to refuse a breathalyzer. If you were in an accident and someone was injured, a DUI charge would be charged as a felony. When you are facing a felony, it makes sense to preserve whatever defense you may have to the DUI. Especially since a driver’s license suspension on a felony DUI can be up to 5 years. A 365-day license suspension begins to not look so bad when you are facing a felony.

You can also get a felony DUI if you have had two prior DUIs in the last ten years, or one prior excessive DUI within 5 years. If you are facing these sorts of consequences, then it may make sense to exercise your right to remain silent, including refusing to consent to a breathalyzer. They may still get your blood, but there is always the small chance that they will not.

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.

 

 

 

What to do if you are accused of a sex offense.

Few things in this world are as scary as being accused of a sex offense.  Merely being accused is enough to end your career, and lose your family and friends.  No other accusation quite carries the stigma that the accusation of a sex offense does.  Sex offenses are taken very seriously by law enforcement, and they are willing to use some very underhanded strategies in the name of locking up anyone they suspect is guilty of a sex offense.

The fact of the matter is, many people who are accused of sex offenses are not guilty at all.  These types of accusations come up most often in the context of a messy divorce.  A bitter spouse knows the power of this accusation, and will throw it around in hopes of getting a better settlement in her (or sometimes his) divorce case.  If you have even been threatened with an accusation, make sure you watch out for the following things that are almost guaranteed to happen.

One of the most effective tools that law enforcement likes to use in sex offense cases is the ‘confrontation call’.  A confrontation call is a call that a complaining witness makes to the suspect.  It is often in the context of confronting the suspect about the allegations.  The problems with these calls is that the suspect believes the call is private, and he is being presented with some very scary accusations.  The suspect knows that if this complaining witness goes to law enforcement, it could end his life, even if he is not ultimately convicted.  Consequently the suspect will make concessions, and at a minimum apologize in hopes of changing the complaining witness’s mind.  What the suspect doesn’t know is that the witness already went to law enforcement, and law enforcement is recording the conversation, and coaching the witness on what to say.  Even a vague apology during one of these conversations will cause you a lot of problems in your case.  It could be interpreted as a confession, even if you didn’t really confess to anything.

After the confrontation call, and right before law enforcement concludes its investigation, they will make their own call to the suspect.  They will ask the suspect questions on the phone, or have him come into the police station to discuss the case.  They will pose it to the suspect that they want to get his side of the story, and that if the suspect doesn’t speak with them, that they will only have one side of the story.  They will say that if the suspect doesn’t speak to them they will have no choice but to turn the file over to the prosecutor with only one side to the story.

After the suspect agrees to sit down with the police, then comes the interrogation.  They will not be friendly to the suspect like they were to the complaining witness.  The complaining witness was treated with velvet gloves, and any inconsistencies in her statement were glossed over, or even worse the police attempted to help the witness rectify the inconsistency.  When the police interrogate the suspect it will be completely opposite.  The police will not only gloss over inconsistencies, they will try to twist the suspect’s words, and even where there was not an inconsistency, they will make it sound like it was.  And even if the suspect is smart, and avoids making any statement’s that can be used against him, they will find a way to use his words against him in other ways.  There is simply no benefit to anyone speaking to the police when accused of a sex offense.  If they had a weak case, then you will avoid making it a stronger case by speaking to them.  If it was a strong case, then speaking to them wouldn’t have helped you avoid being charged.

One of the final tools the police will use is an offer to perform a polygraph, also known as a lie detector test.  The polygraph is not intended to benefit the suspect.  It is simply an opportunity for the police to brow beat the suspect, and to tear him down psychologically when he fails the polygraph.  The fact of the matter is, polygraphs are based on junk science.  Even the American Psychological Association says so.  That is why courts will not even allow the polygraph results to be presented in court.  However, the courts will allow the statements made by the suspect during the polygraph to be used against the defendant in trial.  The only time a polygraph can be useful, is when your attorney negotiates a deal with the State to agree to take the polygraph in exchange for a dismissal or other concession in the event you pass the polygraph.  But make no mistake, this is only an agreement that can be reached with the prosecutor, not with the police.  Do not let them trick you into taking the polygraph by promising some better result for you.  They cannot promise you that.

If you are accused of a sex offense, you need to immediately call an attorney.  That attorney is going to advise you to remain silent.  When the witness, or anyone else calls you to talk to you about the case, get off the call.  Do not discuss anything with them.  If the police call you, tell them that you are exercising your right to remain silent, and will not speak with them.  And do not, under any circumstanes, agree to take a polygraph, unless your attorney tells you to.

Unprocessed rape kits are not a problem in Idaho, despite what the media says.

Recently KTVB reported that “the Nampa Police Department has collected more than 100 rape kits since 2010, but only 12 have been sent to a lab.”

The news report goes on to explain that ‘Those who support sexual assault victims…” (as opposed to those who do not give a hoot about sexual assault victims)  “…argue that every kit should be tested.”

As a criminal defense attorney, who has handled numerous sex offense cases, I am puzzled as to how this ever became news to begin with.

It is not surprising in the least that many so called ‘rape kits’ are never tested.  I have never worked for a law enforcement agency, and so I cannot speak with experience as to every possible reason that a rape kit may go untested, but I certainly can come up with a myriad of reasons from my experience as a criminal defense attorney.

1. Not every sexual assault results in penetration.

A rape kit includes more than just the sampling of body fluids, it also includes various other exams by a doctor.  But the part of the rape kit that gets sent to the lab examines the bodily fluids to identify DNA.  The only way the DNA will be relevant is if the suspect penetrated the victim.  If the victim is not alleging penetration, then analyzing the sample will be a waste of time and money.

2.  Sexual contact is not in dispute.

Often in a rape case the Defendant’s defense will be that he had sex with the victim, but that the sex was consensual, thus not rape.  In these cases it is not necessary to prove that the Defendant had sex with the victim because the Defendant has already confessed that they had sex, he is simply arguing that the sex was consensual.  Clearly proof that the Defendant had sexual intercourse with the victim would be of no value in a case where the Defendant concedes that.

3.  The Defendant pleads guilty.

Many rape cases resolve quickly as a guilty plea.  When the Defendant enters a plea agreement with the State, an analysis of the Defendant’ DNA is irrelevant since the Defendant has entered a guilty plea admitting that he had raped the victim.  Again, in those types of cases an analysis of the bodily fluids has no value.  I do not know the percentage of cases that plead guilty in State Court, but in Federal Court 95% of the cases end in a guilty plea.  So it’s not hard to imagine that many if not most of the rape cases in State Court also end in a guilty plea.

4.  The accusation was a false accusation.

Regardless of what many people think, false rape accusations do happen, and sometimes they are caught early.  I can think of two false accusations of rape on the Greenbelt that were reported in the Idaho Statesman within the last two years.  If a victim has gotten as far as a rape kit before coming clean about her false accusations there will be a rape kit, but no reason to analyze the kit.

Despite these obvious examples of where an analysis of the bodily fluids from a rape kit are irrelevant, there are many concerns that people still have regarding law enforcements failure to process these kits.  I would like to address those concerns here.

1. If we are not sending in rape kits, how are we keeping track of perpetrators DNA?

One way that we keep track of DNA is through a law that requires that every defendant convicted of a felony (any felony) in the State of Idaho to submit a sample of their DNA to national database.  So any defendant that pleads guilty of any felony will be required to submit his DNA to the database, and that is how they track him.

Another way they keep track of DNA is through the kits that are submitted.  For example, if the rape perpetrator is unknown, those kits will surely be submitted for cross referencing as part of law enforcement’s investigation.   Now I concede, if there are instances that this has not happened, then there is a serious problem.  But the media has not reported that this specific problem has occurred.  They have only made a general complaint that there are kits that have not been processed.

2.  If we are not analyzing rape kits, then either guilty defendant’s are being set free, or innocent defendant’s are being found guilty.

This is most certainly not what’s happening.  Guilty defendant’s are not being set free because of unprocessed rape kits, and innocent defendant’s are not being convicted because of unprocessed rape kits.  If the Defendant’s defense is that he did not have sexual intercourse with the girl, then his attorney has the power to request that the kit be processed, and the State will be required to process the kit.  If the State’s case rests on the issue of whether sexual intercourse occurred or not, they most certainly have the ability to process the rape kit.  In my experience I have never seen or heard of an unprocessed rape kit becoming an issue at trial.

3.  The victim has to go through all that humiliation of getting the rape kit done, and then nothing is done with it.  This adds insult to injury.

Getting a rape kit done is important in order to maintain the integrity and efficiency of the system. A rape kit is done on day one. On day one no one knows how the case is going to proceed.  No one knows if there will be a guilty plea, or if intercourse will be disputed, or if the accusation is legit.  They know absolutely nothing, and a rape kit is time sensitive.  So it is essential to collect and preserve this evidence.  It will not always be used, and most of the time it will not be needed.  But in those rare instances where it is needed, it is good to know that it’s available. It is important to understand that although collecting the sample is time sensitive, the processing of the sample is not time sensitive.  It can be processed at any time since the samples are not disposed of, but retained.

Without the rape kit being done, a perverse incentive would remain for guilty defendant’s to dispute sexual contact.  With the rape kits this incentive is diminished.

Most victim’s will be happy knowing that the defendant has been caught, convicted, and appropriately punished for his crime, whether the rape kit needed to be processed or not.

Media selling emotionally charged stories.

The problem with the media is that they take emotionally charged issues, and present them in a way that gives a false impression of a serious problem.  The media presents statistics without context, and do not present any specific instance where this has become a real concrete problem.  Only general complaints are presented that appeal to strong emotions.

As a criminal defense attorney, it is easy for me to come up with complaints about how law enforcement does its job.  However, this is not one of those instances.  I have no reason to believe that law enforcement is being negligent or careless in the way they handle and process rape kits in Idaho.  Rather, it is the media that is being careless in the way they present stories with no context or background to explain why a large number of rape kits may go unprocessed.

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.