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Unconstitutional, Void Offense Cannot be Used to Violate Probation

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Texas Penal Code § 21.15(b)(1) made it a crime to photograph someone “without the person’s consent” and “with intent to arouse or gratify the sexual desire of any person.”   In 2014, the Texas Court of Criminal Appeals in Ex parte Thompson declared the statute facially unconstitutional and that it infringed upon protected First Amendment speech.   In 2012, David Ray Lea pled guilty in Brazoria County to one count of improper visual photography, a state jail felony, and was given a two-year sentence.   That 2012 conviction posed a serious problem for Lea.   Defendant on Probation for Possession of Child Pornography   In April 2008, he pled guilty to three counts of possession of child pornography. The first count resulted in a two-year prison term. The other two counts resulted in 10-year prison terms but those sentences were probated for ten years.   The very day Lea was sentenced on the improper visual…

"Buried Under Workload, Public Defender's Office Pushes Back"

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From Nashville Scene: Facing an Unmanageable Workload, the Public Defender’s Office is Now Limiting the Cases it Takes With his attorneys, and the public defender’s office in general, now tied up in the case, attorneys from Bass, Berry & Sims...

Is Fire a Deadly Weapon?

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Texas law requires that criminal courts place “affirmative findings” in their judgment whenever it proven that a “deadly weapon” was knowingly used or exhibited during the commission of a felony.  Such a finding has serious consequences on a convicted individual, including limitations on availability of parole.   Deadly Weapon Defined   Texas Penal Code § 1.07(a)(17)(B) defines a deadly weapon as “a firearm or anything manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”   The Texas Court of Criminal Appeals was recently called upon to determine if fire is a “deadly weapon” within the meaning of § 1.07(a) (17) (B).   Family Feud Leads to Arson   The case involved Jeffery Lynn Pruett. According to the court’s January 25, 2017…

Massachusetts DUI/OUI: Don’t Make It A Stupor Bowl Event

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Amid all the Super Bowl hype, try to remember something:  Aside from New Year’s Eve, St. Patrick’s Day and Cinco de Mayo, Super Bowl Sunday is one the drunkest days of the year.  Worse still, the number of inebriated people who get behind the wheel after drinking at a Super Bowl party or similar event, is extremely high.  Doing so is just plain foolish, but a lot of people do it , thinking that they’re not “really drunk”, or that the odds of them being stopped by police is low. As a Wrentham Massachusetts OUI attorney I can assure you, that is not so:  The number of police patrols on the road this day have been increased dramatically – both in Massachusetts and across the country.  There are DUI checkpoints set up at strategic locations, and police will be watching. Here are a few interesting facts about DUI and Super Bowl Sunday: 1 – According to BACtrack, one of the better-known manufacturers of…

Michigan Driver’s License Restoration and Clearance – You must be Sober

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As a Michigan driver’s license restoration lawyer, I receive tons of emails from people who want to win back their driver’s license, or who need a clearance of Michigan’s hold on their driving record so they can get (or renew) a license out of state.  Many of these email messages are long, and recount the history of a person’s DUI convictions, and/or go on to explain how much they need a driver’s license.  As I read them, my eyes are searching for one thing – mention of sobriety.  All to often, people who send me a long story without any mention of quitting drinking or sobriety don’t pan out to be good candidates to win a license restoration or clearance appeal case.  The point I really want to make in this short and simple article is that sobriety is the absolute first and most important thing –  the real “meat and potatoes” – of a Michigan driver’s license restoration or…

The hardest of cases for death penalty abolitionists: convicted murderer who keeps murdering while in prison

TAKING IMMEDIATE ACTION AFTER A FEDERAL GRAND JURY INDICTMENT OFTEN GAINS THE BEST RESULTS

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We've looked at methods to stop the grand jury process, establishing there's been grand jury abuse and how to make direct challenges to a grand jury indictment. But unfortunately even when a grand jury indictment may be subject to a later challenge once a federal grand jury produces an indictment against a defendant who has not already been arrested for the allegations he will face immediate federal arrest. Within hours or a few days of the arrest the defendant will face a federal magistrate judge in a federal courtroom who will make important determinations as to whether the defendant should be released while awaiting trial and if so what restraints and limitations may be required such as giving up of passport, gps monitoring, drug monitoring or ankle bracelet. Eliminate Your Flight RiskUnlike the way criminal cases move forward in Florida's state criminal court system it's unusual for a bail bondsman to be involved in the federal bond…

A Serial Shoplifter’s Stealing Spree Comes To An End

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A 29 year old man, the suspect of a yearlong shoplifting spree, was arrested at his Santa Ana home on Tuesday after police served a search warrant and found thousands of dollars’ worth of merchandise. The suspect repeatedly terrorized retailers and their employees in several Orange County cities while using a replica gun to steal high end merchandise. At his home police found what they believe to be stolen merchandise, including: Gucci and Michael Kors handbags, children’s clothes, and perfumes. The police also found drug paraphernalia in the home. They were all stolen Cpl. Anthony Bertagna of the Santa Ana police department said. Police also found a syringe and a bent spoon used for injecting heroin. Continue reading →

The Kindergarten, Facebook and "Peace Disturbance"

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This post examines a recent opinion from the U.S. District Court for the Eastern District of Missouri: Ross v. City of Jackson, 2017 WL 435770. The U.S. District Court Judge who has the case begins the opinion by explaining that [t]his case stems from Plaintiff's arrest after he posted a comment on Facebook in response to a photographic meme on a friend's Facebook page depicting various guns with an explanation of the intended use for each gun under each image. (Pl.'s Statement of Uncontroverted Material Facts [`SUMF’] ¶¶ 6, 8–11, 36, ECF No. 38) The meme was copied or shared from a Facebook page associated with 2nd Amendment rights. (Pl.'s SUMF ¶ 7) Below the image of an assault rifle, Plaintiff commented, `Which one do I need to shoot up a kindergarten?’ (Pl.'s SUMF ¶¶ 10–12) Plaintiff meant the comment to be a `satirical question’ to make a point that the post was ridiculous. (Defs.'…

Juvenile Florida Statute § 985.12(1): Allowing Law Enforcement to Issue Civil Citations in Place of Arresting our Children

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“Education is the most powerful weapon which you can use to change the world.”-Nelson Mandela Amanda M. Kennedy* I.    Introduction During the 2014-2015 school year, more than 2,000 children between the ages of five and ten years old were arrested for behavioral problems in Florida.  Legal experts say scenes of children being handcuffed inside classrooms play out too often in Central Florida. On May 21, 2015 Governor Rick Scott signed Senate Bill 378 2015 which took effect October 1st, 2015. The bill expanded juvenile civil citation by allowing law enforcement officers to issue a civil citation or participation in a similar diversion program to youth who have committed up to three misdemeanors.  Furthermore, the bill also stated that if an arrest is made, law enforcement must provide written documentation as to why the arrest is warranted. The purpose of this note is to understand the criminalization of our children that is happening in our…

Is Shoplifting a Misdemeanor or a Felony?

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Is shoplifting a felony or a misdemeanor? Shoplifting in and of itself is a crime of theft, and theft can be charged as a felony depending on if you have prior convictions. If this is your first shoplifting charge – let's say you went to Walmart and you took about $35 worth of makeup – it's gonna be a Class E misdemeanor. But if this is your third time around and you've got a problem with shoplifting – there's something going on in your life; maybe there's an emotional problem – whatever it might be that's driving you to continue with this type of behavior and you have two prior convictions for shoplifting, you're now facing a felony. It doesn't matter if you lifted a $5 Christmas card. If it's your third offense, you're facing five years in prison. It's always best to nip this in the bud and not get a first time conviction. There is a big difference between a first offense and a third offense,…

"State Legalization of Marijuana and Our American System of Federalism: A Historio-Constitutional Primer"

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The title of this post is the title of this notable new paper authored by Brian Blumenfeld now available via SSRN. Here is the abstract: Federal law, pursuant to the Controlled Substances Act, maintains a strict criminal prohibition on marijuana use of any kind. In states that have legalized marijuana,...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/N7UWFrx_OB4" height="1" width="1" alt=""/>

Idaho judge includes celibacy for teen sex offender on intensive probation

Facing Multiple DUI Convictions in Los Angeles

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Legal Representation Essential if Facing Multiple DUI Convictions   If you or a loved one is charged with a DUI and you already have a DUI conviction on your record (or multiple DUI convictions), then it is critical that you contact an experienced Los Angeles DUI defense attorney to represent you in court and fight for your rights.   The DUI laws in California are unforgiving. Even a first-time DUI offense can result in a defendant serving time in jail, being hit with large fines, incurring a license suspension, and more. As you can see, the penalties associated with a DUI conviction are quite serious and even more so if you have prior DUI convictions on your record. In fact, under California law, with each subsequent DUI conviction, the penalties increase in severity. Below is a sample of the potential penalties associated with multiple DUI convictions.   Second DUI Conviction   If you have one DUI conviction on your record and are convicted of a second…

Standing Water A Hazard On Interstate 86, near Raft RIver

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IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000 Fax (208) 324-7897 For Immediate Release: 2/6/2017 @ 3:55 p.m. Please direct questions to the District Office Interstate 86 at milepost 14 has an estimated one and a half feet of standing water for a stretch of approximately 200 feet. This is east of the I84 / I86 interchange, near Raft River. The water is covering both the eastbound and westbound lanes. Crews are on scene to evaluate the situation at this time. Motorists are being advised that travel can be hazardous, and some vehicles are stalling out in the deepest sections of the water. do / jm -------------

Capital Punishment After the 2016 Elections - Podcast

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The Federalist Society teleforum with Bill Otis and Carol Steiker, previously noted here, here, and here, is now available as a podcast.

Oral Argument Tomorrow In Immigration Order Case

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The U.S. Court of Appeals for the Ninth Circuit issued the following order today in State of Washington v. Trump et al., No. 17-35105:The State of Hawaii's emergency motion to intervene (Docket Entry No. 21) is denied for the purposes of this appeal only. The State of Hawaii's motion for leave to file an amicus curiae brief (Docket Entry No. 21) is granted. The State of Hawaii's amicus brief has been filed.Appellants and appellees shall appear by telephone for oral argument on Tuesday, February 7, 2017 at 3:00 p.m. PST. Each side will be permitted 30 minutes of argument time. Call-in instructions will be provided to the appearing parties. A recording of the oral argument will be made available to the public promptly following the conclusion of oral argument.All other pending motions will be addressed by separate order.The court's case information page on this "case of interest" is here.

How Over-the-Air Updates Could Alter NHTSA Auto Recall Process

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Recent changes in how much modern automobiles rely on computers and software may push the National Highway Traffic Safety Administration (NHTSA) to change its auto recall process. Currently, car manufacturers notify owners by mail and the owners must visit a local dealership to have the necessary repairs. Because of the role that software and computers play in many modern vehicles, though, more and more of these recalls require only over-the-air updates or other remote repairs.What brought on this change?Last May, a Tesla Model S crashed while it was operating on Autopilot. The NHTSA launched an investigation into the fatal accident, looking to identify the role the Autopilot system played in causing the wreck.Both Tesla and the NHTSA found that the Autopilot system failed to spot a large white truck because of the bright sun and light blue sky behind and above it. To the system’s electronic “eyes,” there was no difference in the light colors in the…

NACDL Press Release: Nation’s Criminal Defense Bar Welcomes Passage by House of Representatives of the Email Privacy Act

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NACDL Press Release: Nation’s Criminal Defense Bar Welcomes Passage by House of Representatives of the Email Privacy Act Washington, DC (Feb. 6, 2017) – Today, the House of Representatives passed the Email Privacy Act (H.R. 387). This bill is a … Continue reading →

Utah Police Find Five Pounds of Marijuana Candy after Responding to a Reported Theft

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Police officers in Vineyard, Utah were responding to a report of a theft and ended up finding five pounds of marijuana candy instead. Think before you call 20 year old Taylor Sauers of Vineyard, Utah called police to file a report regarding a theft of a handgun, cash, and other valuables from his apartment. When […] The post Utah Police Find Five Pounds of Marijuana Candy after Responding to a Reported Theft appeared first on Salt Lake Criminal Defense Attorney.
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