Prop 47 Santa Rosa Lawyer Reduction

See If Your Felony Can Be Reduced to a Misdemeanor and You Can Get Out of Prison:
Recent Changes Because of Proposition 47

colorfulhandcuffsIf you were recently convicted of a property crime for $950 or less or possession of an illegal drug for personal use, think of calling Gabriel Quinnan, skilled criminal defense attorney. He can assess your case to help you determine whether you are eligible to have a felony offense downgraded to a misdemeanor. He can also argue for your release from jail or prison.

In early November, California voters said yes to Proposition 47. This was a retroactive ballot measure meant to lower the state’s prison costs. The law covers shoplifting, theft, writing bad checks, forgery, and possession of stolen goods. Individuals without prior convictions for murder, rape, certain sex offenses, or certain gun crimes are eligible for sentence reduction and prison release.

A felony conviction negatively affects your chances for employment and housing. If you do not pay off a debt related to a felony conviction, this can negatively affect your credit score. Public defender’s offices throughout the state have been overwhelmed with Prop. 47-related requests. Your petition for relief may move faster through the criminal justice system if you hire a private attorney to research your background and assist with your paperwork.

Gabriel Quinnan is available to represent you in Mendocino, Lake, Sonoma, and Marin counties. He is a thorough, patient, and competent criminal law attorney who has defended individuals in cases ranging from burglary and robbery to drug possession and sales. Call at him in Santa Rosa, California to learn more about how he can help you.

 

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Jury trial nullification

Jurors: Do I Have To Convict?

colorfuljudgeThis is a question I am often asked by non lawyer friends called upon to serve as jurors. What if, after all the evidence is presented, you believe beyond a reasonable doubt that the defendant committed the crime as charged, but you still don’t want to convict? Surprisingly, this happens more often than you think.

Let’s examine the case of a hungry homeless man stealing a loaf of bread. After trial, it is clear that the guy did it. However, during the course of trial, you learn that the guy hadn’t eaten anything for days, that he suffers from a mental illness that deprives him of a job, and has no familial support of any kind. Clearly, there are some fairly serious sympathetic facts that do not technically relieve him of guilt. However, it puts you in the difficult position of heaping further misfortune on him if you were to follow the law.

At the outset, the judge and prosecutor will spend lots of time ensuring that you will follow the law, no matter what. You will see people being excused from the jury for equivocating on this issue. For example, lots of people believe drug offenses should not be crimes and will say so in court. They will be excused. Once you are empaneled on the jury, the judge will strongly emphasize many times that you must follow the letter of the law regardless of your personal feelings about the law you are supposed to uphold. All of that is smoke and mirrors.

The power of a jury to nullify law is based on a principle has been well-established in U.S. law. As early as the 1800’s, jurors refused to convict persons found in violation law prohibiting aid to fugitive slaves. During alcohol prohibition, as many as 60% of cases regarding alcohol possession and consumption were nullified at trial. Recently, there has been a similar increase in nullification regarding drug prohibition, particularly in the case of marijuana possession and cultivation.

Jury nullifications’ roots lay in the common law power of the people to act as the final say in the propriety of any given law. In the example above regarding the hungry man stealing food, one may condemn stealing as a general principle, but decline to convict as applied under specific circumstances. The reason for this is that there can be no panacea law that can account for every factual circumstance. Therefore, the power of jury nullification acts as the final “people’s pardon” in cases where it is deserved.

And, we know such power exists because there are no legal consequences against a juror who simply refuses to convict. Moreover, the defendant cannot be tried a second time if the jury unanimously votes to refuse to convict based on nullification. Therefore, a rule without consequence is no rule at all.

If you find yourself a juror (especially in one of my cases!) I strongly encourage you to include fairness in your ultimate decision in addition to the mandates of the law. And let not guilty be a serious option regardless of the technical legal analysis.

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criminal record expungements

Clearing Your Criminal Record

unnamedOne of the least-used provisions in California law is the criminal record expungement laws. It’s too bad because getting an expungement can be relatively easy to do. And, there are certain benefits to getting one.

Generally speaking, most misdemeanor and felony offenses can be expunged, with certain exceptions. Those exceptions include certain sex offenses and those crimes that resulted in a sentence to state prison. Expungement is even available for those sentenced to serve a prison sentence in county jail under the realignment provisions pursuant to Penal Code section 1170(h)(c)(5).

Although not a complete whitewash of your record, an expungement does have certain benefits.  The most important is being able to tell others, especially potential employers, that you do not have a conviction of a crime on your record.  Employers would be prohibited from discriminating against you solely because of your expunged record. Another benefit is obtaining a professional license. In my practice, I have seen the impact a criminal conviction has on a person’s ability to obtain and keep a license.  Those rules are becoming more strict every single year. While an expungement will not guarantee you a professional license, it will help immeasurably.

When you consider petitioning for an expungement, you should consult with an experienced attorney to assist you. During that meeting, be prepared to provide all documents related to that conviction. You are in the best position to get your petition granted if you have successfully completed all terms and conditions of your probation, including pay all fines, fees and completed all jail terms and/or community work service hours. Moreover, you should have not committed any additional offenses since your original conviction. It is also helpful if you have a good reason for needing the expungement, such as seeking employment.

Keep in mind; even if you had violations of probation or subsequent convictions, the court may still grant your petition. Except that the burden will be significantly greater. You will likely need to show a significant period of time in which you are crime free. I would also want to see letters from members of the community, such as an employer, a clergyman, or other community leaders to support your petition. Even then, it will take a skilled advocate to expunge your prior record.

If you have been convicted of a felony “wobbler”, or a felony capable of being charged as either a misdemeanor or felony, you are also entitled to ask for a post conviction reduction to a misdemeanor and then an expungement. A felony conviction carries with it tremendous consequences, and will close many doors and freedoms in one’s life. If you can get this relief, it is well worth your time and money to make it happen.

In my practice, I have handled literally hundreds of criminal expungements. If you are thinking about having this done, please contact me immediately and we can discuss your options.

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Juvenile delinquency fitness hearings

Can Your Child Be Tried As An Adult?

gaveliconThe answer is yes, it is possible.  And it is becoming increasingly more possible across the country with every new headlines-grabbing offense. The old adage is correct; bad cases make bad laws. In recent years, the media has reported numerous child schoolyard shootings, murders, rapes and other serious and violent offenses.  In the Pennsylvania case of Jordan Brown, prosecutors attempted to try an 11 yr. old as an adult for the shooting death of his father’s pregnant fiancee, something unheard of before then.  In that case, the court ultimately sent the matter back to juvenile court, however, the mere fact that the prosecutor felt comfortable attempting it speaks of monumental changes within the juvenile justice system.

In California, a child may be tried as an adult as early as 14 years old pursuant to the Welfare & Institutions Code section 707 et seq.  Depending on the magnitude of the crime and the minor’s prior criminal history, filing in adult court may be discretionary or the court may presume the minor should be tried in adult court. However, the analysis is the same. The judge must use the following criteria in making its determination:

  1. The degree of criminal sophistication exhibited by the minor.
  2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.
  3. The minor’s previous delinquent history.
  4. Success of previous attempts by the juvenile court to rehabilitate the minor.
  5. The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor.

With this stringent criteria, it would seem that filing in adult criminal court is difficult. It is not.  I once represented a 16 year old accused of robbery.  One night, he went to a local grocery store on a “beer run”, or an attempt to steal beer.  He placed a 12 pack in his back pack and walked out of the store.  The loss prevention officer chased after him and grabbed his back pack as he fled.  He wiggled free from the back pack, which dropped to the ground causing the loss prevention officer’s arm to pop out of her socket. She later stated that he jerked the back pack away from her, deliberately using force to steal the beer. He had no prior criminal record.

So far, this seems like a very typical juvenile crime. Bad behavior, yes, but certainly not rape or murder. However, to my client’s surprise, at his first court hearing, the district attorney announced they would attempt to try my client as an adult. The matter was thoroughly investigated and we discovered an extremely helpful store video. And, after several arduous court dates, the court ultimately ruled that he should be tried as a juvenile. He later plead to a misdemeanor. It was, perhaps, the most stressful time in my client’s young life.

The point of this is that, despite the seemingly stringent requirements to try a minor as a juvenile, those are almost meaningless depending in the political climate of the times. It seems disturbing enough that the prosecutor, who is mandated by law to seek justice, felt that these circumstances justified such an attempt. However, had my client committed this act around the same time as Columbine or the Jordan Brown’s case, the court may have been inclined to make an example of my client and force him to face a strike offense as an adult. We live in a world where many jurisdictions (such as California) pick judges by election. As former Supreme Court Justice Sandra Day O’Connor has said, the pressures of the electoral process necessarily influences a judges’ rulings. Had that been the case during my client’s case, things might have turned out very differently for him.

If your child is faced with a felony petition, no matter how small the matter seems, it is important to choose a lawyer competent in juvenile court to effectively fight for your child’s future.

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Large law firm advantage?

Large Criminal Defense Firm Advantage?

unnamedWhile searching for your criminal defense attorney, you will have a number of questions, such as: is the attorney qualified? Is the attorney aggressive?  Will the attorney keep you informed about your case?  One that you will rarely encounter is whether or not you should choose a large firm or a small firm.  The fact is that most criminal defense firms typically have only one or two lawyers.  This is, perhaps, a result of the intensely independent nature of a criminal defense attorney.  However occasionally, law firms spring forth boasting of a larger number of attorneys.

There can be certain advantages of a large criminal defense firm.  The first is coverage.  In a large firm, if one attorney is in trial, other attorneys can fill in for the absent attorney.  Ideally, by virtue of working in the same office, the substitute attorney will have some familiarity with the case and provide adequate counsel without the need for delay.  The second advantage is, theoretically, access to the minds of other attorneys.  No attorney knows everything, thus having multiple perspectives can be extremely helpful when evaluating your case.  The third advantage is that of resources.  Because there are multiple attorneys and, as a result, multiple incomes, money is pooled to share in cheaper and more advanced resources, such as bulk paper, advertising materials and copy machines.

However, in practice, large criminal defense firms seldom take advantage of these inherent advantages.  As a former member of two large firms, my experience has proven to me that large firms tend to be disorganized, cumbersome money holes.  Big firms mean big expenses, especially if they need a building to house other attorneys.  Big firms bank on impressing you, the potential client, with expensive furniture and other vanity items.  These things cost money and that money pressure requires a huge volume of cases.  To get those cases, large firms engage in massive advertising campaigns, which also costs a pretty penny.

The problem with the quest for ever-increasing cases is that a huge case volume undermines the whole point of having multiple attorneys.  Rarely will one attorney have any idea what other attorneys are doing in their cases.  Rarely do attorneys have the time to sit around and casually discuss all the cases.  Inevitably, the member attorneys will develop a huge motive to get their clients to plea as soon as possible, regardless of the merits of their cases.  The quicker they can get rid of a case, the quicker they can resume their attempts to get more cases.  More importantly, there is the high likelihood that your case will be forgotten and they will not inform you of your case’s progress.  You can’t make intelligent decisions about your case if they don’t tell you what’s going on.

The final problem with large criminal law firms is management.  You will rarely see firm partner(s) actually handling cases, except perhaps for the media-grabbing cases.  The partner(s) focus is on firm management, i.e.: getting more cases, not making sure your case is handled properly.  You think you’re hiring a large firm, but what you’re really hiring is a single, overworked and underpaid attorney.

A small firm, by contrast, usually has all the advantages of a large firm without all the overhead and administrative costs.  Fewer costs mean no pressure to settle your case or to increase case volume to unmanageable levels.  And a reputable attorney in the legal community will associate with plenty of other attorneys in the community to gain more than one perspective in a case.  In my firm, I am the sole attorney.  And I like it like that.  When I need a second set of eyes or I have need for coverage, there are a number of other attorneys in the community I can call on.  Moreover, resources are shared among the other, independent attorneys in my office, negating the large firm advantage.  Most importantly, I am the attorney on your case and solely responsible for its outcome, nobody else.  You won’t interview with me and get dumped on another nameless, faceless attorney in the office.

The surest way to determine whether or not you will have quality representation is to ask the prospective attorney when was the last time they defended a case at trial and how serious was the case.  Ask them how many trials they’ve defended criminal defendants in your community.  Ask other attorneys in the area about that firm’s reputation in the community.  If you like what they’re telling you, ask the attorney you interview with whether or not he/she is going to be the actual attorney working on your case.  If it looks like your case will be lost in the large firm large case volume, you’re probably right.

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Why liberals should support gun freedom

Why Liberals Should Support Gun Freedom

bookiconIn recent years, the 2nd Amendment has been fertile grounds for argument in the legal and civil contexts.  Since the landmark decision in District of Columbia v. Heller, lawyers and pundits alike have been arguing the intricacies contained in the specific words of the 2nd Amendment.  Some say it only refers to a well-regulated, state-run militia and some say it refers to an individual’s right to bear arms without state regulation.

The Supreme Court definitively decided that issue in Heller; it refers to an individual right to bear arms, with some restrictions.  Those restrictions include those who are deemed mentally ill and felons.  As a result, states, especially California, are scrambling to shoehorn significant gun restrictions within those two categories.  For example, although felons are prohibit from possessing guns, California decided that violent misdemeanants are just as bad, so surely they ought to be prohibited as well.  When I say “violent misdemeanants” that could mean something as slight as pushing someone else.  And Governor Brown recently signed into law sweeping new powers to take a person’s guns without the benefit of due process.

Granted, gun violence happens in America.  The spate of school shootings will understandably cause people to react strongly in opposition.  However, I think the left should be less vociferous in their revulsion of gun violence, given that it was gun violence or the threat of gun violence that underpinned a 100 years of the progressive movement in the United States.  For example, if it had not been for the force of arms, southern blacks would not have been emancipated.  Armed violence created labor unions and forced government to acquiesce to reasonable labor laws.  The threat of armed violence underpinned the “peaceful” civil rights movement of the 1950’s.  My own unit, the 82nd Airborne, was deployed to put down an armed uprising in Detroit, Michigan.  It has been said that Martin Luther King’s successful peace movement was a result of armed Black Panthers.  Government had to choose between armed insurrection or Dr. King’s peaceful approach.  There were innumerable leftist, terrorist organizations wreaking havoc across the country, threatening government buildings with bombings.  Recently, the Occupy Movement gains little attention until they forcibly resist.  Media pays no attention until buildings are occupied and cars are set alight.

The problem, then, with Americans and violence is really a problem with a government that responds to little else but violence.  Unfortunately, now that many of the left’s social aspirations have been obtained and so many are now in powerful government positions, they decry gun violence.  These are the same people who, in their youth, screamed for change “by any means necessary”, now seek to eliminate the possibility of future change.  They have become the Richard Daley’s they detested.

So, the founders had it right.  People have the right to arm themselves, not for hunting or self defense, but also to resist government, exert change and right wrongs.  And with the extreme militarization of the State, we are in need of the 2nd Amendment now more than ever before.

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Proposition 47 and criminal defense

California’s Proposition 47 and Drug Prosecution

unnamedIn case it wasn’t obvious, I am a vocal proponent for legalizing the personal use of most drugs.  Yes, even the hard drugs.  Many people can use drugs and still remain functional in society.  Those who cannot are not deterred by criminalization.  Rather, they are people who need treatment and a chance to take their lives back.  The current state of California criminal law does the exact opposite.  While I am all for full legalization, I understand that it is unlikely.  So, just like recent legislation that provides defenses to marijuana use, I will support every baby-steps measure that tends to decriminalize drugs, generally.

The big issue that I have found in my 9 years of criminal defense practice is that, under the current penal code provisions, those who get caught possessing small amounts of methamphetamine, cocaine or heroin for personal use are often charged with felonies.  Felonies can carry horrific consequences, such as loss of employment or employment opportunities, loss of professional licenses, loss of educational financial aid, loss of one’s right to possess firearms, loss of voting rights, and loss of freedom.  Not to mention the massive amount of money spent in fines, fees, probation supervision and, yes, defense attorneys.

Except in the case of methamphetamine, even the rare sympathetic prosecutor has little discretion when charging these offenses.  The law, as it stands, gives them no discretion to charge crimes such as cocaine possession as a misdemeanor.  However, in the case of methamphetamine possession, prosecutors can charge it as a felony or a misdemeanor.  Unfortunately, most prosecutors will charge the crime as a felony at the outset.  The reason for this is to increase their bargaining position and induce the defendant to give up on his right to trial by accepting a misdemeanor plea deal.  Afraid to risk a felony conviction at trial, most defendants will take the misdemeanor deal, even if they are innocent.

These are crimes that ought to be misdemeanors, if they must be criminalized at all.  If the person is abusing drugs, he or she is already operating at a disadvantage in society.  Once they have incurred the stain of a felony, particularly one involving cocaine or heroin, the consequences I mentioned above make it virtually impossible for them to kick the addiction and reintegrate back into society.  They are placed on probation where the only support they get is in the form of an unsympathetic probation officer who is eagerly looking forward to a “hot” pee test.  The felony conviction will prevent any possibility of obtaining employment, since that is the main question on any employment application.  Even if the probationer was able to obtain employment, he will be visited at his place of work by law enforcement to ensure he is in compliance.  The end result is often homelessness, despair and multiple violations of probation.  And, of course, imprisonment.

The sheer costs to our community of this cycle are hard to contemplate.  It saddens me to see people who would otherwise be worthwhile contributors to society so marginalized.  I recently had a client who was once a skilled woodworker.  His methamphetamine use was the result of a number of very sad factors in his life.  He had an extensive history of personal use convictions, which undermined any possibility of being employed or any future to look forward to.  I often thought of how things might have been different if he had received the help he needed years ago rather than constant punitive consequences.  In the end, he is warehoused in prison along with thousands of others at our expense.

These days, it is difficult enough for the non-addicted, well-adjusted among us to create success.  We cannot continue to sabotage people who suffer from addiction with the burdens of a felony conviction.  Voting in favor of Proposition 47 goes a long way to fix this problem and give these people a second chance.

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Police complaint procedure

A Police Complaint: The Why and How

courthouseiconWe are seeing in the news increased reports of police abuse across the country.  In Ferguson, Missouri, not only is an unarmed teen shot to death, but, in subsequent protests, we saw substantial infringement of First Amendment rights by the entire police department.  In Albuquerque, New Mexico, we saw police shoot dead an unarmed, mentally ill, homeless man.  Here in Santa Rosa, where I practice criminal defense, a teen is shot dead for carrying a plastic rifle through a vacant lot.  There are many, many other examples.

The fact that police abuse of power is in the headlines more frequently is, perhaps, a function of our increased connectivity.  The ability to film and download incidents as they happen and the ability to transmit that footage to the entire world through social media sites allow us instant access to information from previously isolated regions.  However, as any criminal defense attorney can tell you, stories about abuse of power are far from unusual.  It can be seemingly innocuous, such as exaggerating the truth or fabricating probable cause to stop and search, or extreme examples, such as rape, drug sales, or murder.  (see article regarding People v. Sergio Alvarez here).  The result is the same: denial of our right to fair treatment by our government.

Aside from turning to social or conventional media, there is little a victim of police abuse can do other than to file a complaint with the offending officer’s department.  The process is simple: you can fill out a complaint form provided by the department and file it.  The department is obligated to initiate an internal affairs disciplinary investigation.  If they find wrongdoing, you will be notified with a simple letter stating that the complaint is “sustained” and the officer will be disciplined in some way.  If the complaint is not sustained, you will get a letter stating something to that effect and nothing more.

It is a fact that the vast majority of complaints are not sustained.  Most of those who file complaints are also arrestees, thus their perspectives are rarely given any weight.  The only sustained complaints are those with some sort of other evidence, such as video footage or truly independent witnesses, such as, on occasion, other officers.  Of those sustained complaints, even fewer officers lose their jobs as a result.  More often than not, they may take a few days off and they are put right back out on the streets.  The findings will remain in their secret personnel file, known only by the officer’s superiors and his counsel.

Obviously, there are some fairly persuasive reasons why one should not file a complaint.  The offending officer will know who you are and will likely return to policing your streets, so there is the real fear of retaliation.  If the officer was willing to violate your rights before, it is possible he will be even more willing to do so after returning to work.  Moreover, such complaints are investigated by other officers in their internal investigation department, rendering the whole process suspect.  However, as a criminal defense lawyer, I find such complaints to be extremely helpful.  A complaint may not help you in your particular matter, but it will be of significant help in holding officers accountable in later cases.

The key is the officer’s personnel file.  If there are complaints regarding dishonesty and/or excessive use of force, whether or not they are sustained, I will be able to get them through the Pitchess Motion process, or a motion to disclose an officer’s personnel file. (check out Pitchess Motions here).  You may have the opportunity to testify about your incident in someone else’s trial and help render the officer’s testimony useless.  When an officer’s testimony is useless, he becomes useless to the department.

Another possibility, albeit a rarer one, is the the sheer accumulation of complaints against a particular officer might cause the department to dismiss the officer for fear of incurring liability through potential lawsuits.  Or, the department may more closely investigate future complaints if an officer has an extensive history of them.  Either way, complaints, taken as a whole, can be an extremely useful tool in holding officers accountable.

A final note about the complaint procedure: since you must give a personal statement regarding the incident to the department, it behooves you to wait until your criminal matter is resolved.  As any criminal defense attorney can tell you, your primary concern is to protect your right to remain silent while your criminal matter is pending.  If you are considering filing a complaint, you should first discuss it with your attorney.  By law, generally speaking, you have one year from the incident to do it, so you will likely have plenty of time.  In my practice, I offer consultation and assistance in filing complaints.  And, in the right case, file a lawsuit against the city or county.  If you are the victim of police abuse, contact me to discuss your options.

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Marijuana criminal defense

Marijuana Prohibition Continues to Create More Problems Than it Solves

unnamedOn Monday, police responded to a Santa Rosa home due to a report from a witness that shots were fired.  The police raided the home and discovered an estimated 230 lbs of marijuana in various stages of processing and several firearms.  As it turned out, there was no evidence of a shooting.  Rather, there was a dispute between the witness and the pot operation about payment and, unbelievably, the witness may have called the cops in retaliation.

Loaded Guns, Large Pot Operation Found in Santa Rosa House

The occupants of the house had recently been victims of a strong arm robbery a month prior in which one person was shot.  Evidently, perhaps as a result of that robbery, the occupants armed themselves and fortified the building.

It is becoming increasingly obvious that the continued criminalization of marijuana is, in itself, creating more crime, not less.  As a society, we must weigh the costs versus the benefits of any legislation.  For example, it is arguable that the use of PCP creates a high likelihood of criminal behavior: a person uses and is likely to commit some sort of violent offense.  A law criminalizing the use of PCP will increase the market value for the drug and result in a black market; i.e.: higher value and violence, because it’s harder to get.  We, as a society, have chosen that the criminal behavior deterred with the drug’s prohibition outweighs the criminal consequences of creating this black market.

On the other hand, it is without dispute that marijuana use is no more related to violent criminal behavior than, say, beer.  Probably less so.  Therefore, the underlying benefit sought by prohibition is missing with marijuana criminalization.  The costs, however, are severe.  Criminalization artificially inflates the value of the plant, thus making it more desirable for strong arm robberies, such as what happened in this case.  Moreover, the victims of such robberies cannot turn to the police for protection, so they must take measures to protect themselves.

What if marijuana was legal?  First, it is unlikely people would surreptitiously grow pot in their houses in neighborhoods across the U.S.  Secondly, growers could rely on the power of the state to protect them, rather than taking matters into their own hands.  Thirdly, if the market fixed the price of marijuana and it was reasonably accessible, we will see fewer violent robberies.  Fewer desperate people looking for a quick score.

In my own practice, over the years I have seen the impact of decriminalization.  Clients have told me that, with the onset of medicinal marijuana provisions, the value of marijuana has plummeted by as much as 2/3.  As a result, many small time growers reduced or eliminated their operations seeing little return on their investments.  However, in the current legal climate, larger operations can still be profitable, thus creating an enticing target for criminals.  And continued violence.

California must follow the lead of Colorado, Washington and, soon, Alaska.  We must undermine the market for marijuana to eliminate this senseless violence.

 

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DUI traffic stop basics

What To Do When Pulled Over for a DUI

colorfulhandcuffsIn these days of increased police interdiction for DUI and decreased constitutional protection against unreasonable search and seizure, chances are that you will be stopped for DUI at some point in your life.  The unfortunately reality is that juries give a huge amount of credence to police officers in evaluating for DUI.  Your job is to give them as little information as possible to later use against you at trial.

Police can stop you for a myriad of reasons: bad tail light; driving slightly too fast; driving slightly too slow; weaving slightly within your lane; too much window tint; and an anonymous tip.  On that last one, if an anonymous person tells the police you’re driving drunk, the cops don’t need to see any bad driving to stop you.  The bottom line is that there are so many traffic laws on the books that the police will probably find a reason to stop you.

When you get pulled over, you must hand the officer your license.  However, the officer will then ask you a number of questions.  Respectfully refuse to answer those questions.  They know why they pulled you over and their questions are designed to establish your guilt, even the ones that seem like making small talk.  YOU CANNOT TALK YOURSELF OUT OF THIS.

The officer will then ask you to submit to series of field sobriety tests, such as shining a light into your eyes looking for eyeball twitching, which supposedly indicates the consumption of alcohol, making you stand on one leg for an indeterminate period of time, or having you walk heel to toe in an imaginary line.  You can and should refuse these tests for two reasons: First, they are extremely subjective and not scientific at all; the officer can and does see signs of intoxication whenever he wants to; secondly, nobody can pass these tests, particularly at night and under the stress of arrest.

After the field sobriety test, the officer will ask you to submit to a preliminary breath test.  You can and should refuse to take this test as well.  This is a handheld device that you blow into used to approximate your level of intoxication.  The key term is approximate.  It is, in fact, wildly inaccurate, but will be seen as further evidence of intoxication.

At this point, they will have to make a hard decision; whether or not there’s enough evidence to arrest you for DUI with very little evidence.  If you smell like alcohol or, god forbid, you spoke to them with slurred speech, they will probably take you into custody.  Once you are arrested, they will tell you you must submit to a breathalyzer or give blood.  There are pros and cons to breath vs. blood.  In my view, breath is perhaps the better option since it is also often inaccurate and can be attacked at trial.  There are problems I can attack with the blood test, but it is seen as significantly more scientific.  If you do not submit to a breathalyzer, you will lose your license for a year.

The bottom line is that being stopped and arrested can be a terrifying event.  The officer will try to bully you into submitting to his demands.  He will make it seem like it’s no big deal; that they’re just trying to make sure you’re safe.  Just try to remember that you have rights.  Be polite, but assert those rights.  And ask to contact your attorney.

 

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