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Park on Border Searches of Digital Devices

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Eunice Park (Western State University - College of Law) has posted The Elephant in the Room: What is a 'Nonroutine' Border Search, Anyway? Digital Device Searches Post-Riley (Hastings Constitutional Law Quarterly, Vol. 44, No. 3, Spring 2017, at 277) on...

A Quick Guide to Texas DWI Laws and Penalties

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DWI laws across the United States are getting more complex and detailed every year, especially when it comes to dealing with first time offenses – and Texas is no exception. While the nuances of Texas DWI laws are complex, we wanted to offer a general overview of the main laws and the major categories of […] The post A Quick Guide to Texas DWI Laws and Penalties appeared first on Scheiner Law Group, P.C..

An Astonishingly Asinine Prosecution

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PowerLine brings us the story of what is probably the most stupid federal prosecution I ever heard of.  Its account starts:A U.S. District Court in California has declared 75-year-old veteran Robert Rosebrock not guilty of violating federal law in a prosecution for allegedly displaying two four-by-six inch American flags above a Veterans Affairs fence on Memorial Day 2016. Rosebrock had been charged with hanging the two napkin-sized American flags on a section of the fence adjacent to the entrance to the VA facility in violation of a VA regulation prohibiting the displaying of "placards" or posting "materials" on VA property without authorization. This mind-blowing episode is not a case for allowing the judicial branch to intrude into charging decisions.  It is, however, a case for hiring Assistant United States Attorneys with an IQ above 60.

Driving Without a License: Notice of Suspension Required for Conviction

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In Carew v. Commonwealth, 62 Va.App. 574, 750 S.E.2d 226 (Va. App., 2013), the Virginia Court of Appeals explained that the Commonwealth has to prove that a driver had notice that his or her license had been suspended when the person was charged with driving without a valid license under Virginia Code §46.2-300. In that case, Ms. Carew was sent a letter by the DMV indicating that her license was suspended. However, the record showed that the mail sent by the DMV to Ms. Carew was returned as unclaimed. The Court noted: “Patently, Code § 46.2–300 contains no language specifically requiring the Commonwealth to prove a driver’s knowledge of his license status for a conviction under that statute. By contrast, Code § 46.2–301, which prohibits driving on a suspended or revoked license, specifically references a requirement of notice for conviction.” Yet, the court explained its determination that: “When the predicate for…

Immigration, Drug Crimes Higher Priority than White Collar Crimes

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  It should come as no surprise that the current U.S. Justice Department is giving immigration and drug crimes a higher priority for prosecution than white collar crimes. White collar crime generally involves upwardly mobile people in the financial community or those associated with the nation’s political institutions who are not considered as “criminal” as those involved in immigration/drug crimes.   White collar crimes are now officially off the Justice Department’s radar.   The Memo: What Was In It, and What Wasn’t   In early April, Attorney General Jeff Sessions sent a memo to federal prosecutors about what crimes he expected them to focus their prosecutorial attention on. Not surprisingly, immigration crimes were at the top of the DOJ’s priority list followed by violent crimes, sentencing, and human trafficking.   White collar crimes, like embezzlement or fraud, were not even mentioned in Sessions’ memo.…

Assault Charge for Cutting the Cheese and Not Passing the Crackers

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An Australian tourist from Perth was charged last week with simple assault.  The crime occurred at a strip club in Orlando, Florida.  At the time the news story broke, the Australian was being held in jail while awaiting a bail hearing.  The story involves this young man “assaulting” a female employee of the club (stripper) by blowing dirt in the dancer’s face while she was performing a lap dance.  The dancer declined to be interviewed.  Shocking, I know.  However, the club’s assistant manager did decide to opine about this event.  “We generally don’t get a lot of troublemakers at our club,” and he stressed that they had not had a patron assault a dancer in years.  Whew, that’s good to know.  “We don’t know what this Aussie guy’s problem was, but he won’t be welcome back here again.”  Right, I’m sure there is a serious vetting procedure for…

A First-Time DUI Can Have Serious Professional Consequences

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Driving under the influence of alcohol or drugs is a serious offense in Maryland. Maryland is known to have very strict judges who do not provide drunk drivers, even first-time offenders, with leniency. For this reason, it is critical for anyone who has been accused of drunk driving to retain legal counsel as soon as he or she can. Maryland DUI Laws Under Maryland law, it is illegal to operate a motor vehicle while driving with a blood-alcohol concentration (BAC) of .08 percent or higher.  If found guilty of a DUI, a first-time offender faces up to a year in jail and fines of up to $1,000.  If the individual does not have his or her license suspended by the Motor Vehicle Administration, then it is very likely that he or she will receive a restriction on it.  There is a zero-tolerance policy for underage drinking and driving, meaning an underage driver will be found guilty of a DUI if he or she has a BAC of .02 percent or higher.  Finally, a commercial driver…

News Scan

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More Fatal Car Crashes From Drugs Than Alcohol:   While this should not come as a surprise to anyone paying attention, more U.S. drivers in fatal car crashes tested positive for drugs than alcohol in 2015.  Ashley Halsey III, of the Washington Post reports that data released by the Governors Highway Safety Association found that 43% of drivers in fatal accidents had been under the influence of legal or illegal drugs, while 37% were drunk.  The story also notes that the number of drivers who died in car crashes who tested positive for drugs went from 28% in 2005 to 43% in 2015.  In Colorado the number of marijuana-related traffic deaths increased by 48% after the state legalized recreational use of the drug.  No worries, the state is reportedly getting lots of tax revenue from pot sales.  DHS to Help Victims of Alien Criminals:  The Office of Homeland Security has announced that it will begin offering services to American crime victims who were…

How Many Lies Can You Spot?

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The ACLU put out a press release today that contains the following paragraph:Although the mandate of prosecutors is to advance justice, many district attorneys have focused on punishment at any cost.  This approach has increased the jail and prison population; led to sentences that are too severe for the offenses; produced more wrongful convictions and more death sentences; and sent people with addictions, disabilities, and mental health conditions into jails and prisons who should receive treatment or other social services instead. These consequences of unchecked prosecutorial power burden people of color and the poor disproportionately.Hence the title of this entry:  How many lies can you spot? Let's take it from the top.--  "Although the mandate of prosecutors is to advance justice, many district attorneys have focused on punishment at any cost."The premise here is misleading and the conclusion is false.  The premise is that…

Pennsylvania receives "flood of applications" seeking one of a few dozen medicial marijuana licenses

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This local report from Pennsylvania highlights the large number of applications received by state officials from businesses looking to get in on the ground floor of the state's medical marijuana industry. Here are the basic details: Hundreds of applicants have asked for licenses to grow or sell medical marijuana in...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/K2xlpINEjVQ" height="1" width="1" alt=""/>

The Basics of Felony-Murder

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I can’t be the only person who was surprised to learn in my first year of law school that a person who never intended to kill someone else could be convicted of first degree murder. Even an accidental killing can result in first-degree murder charges if it occurs during the commission of a dangerous felony. The classic example of this theory of murder, known as felony-murder, is the defendant who agrees to serve as get-away driver while his friends rob a business. Once inside the business, one of the robbers brandishes a gun. The owner of the business, who is confronted by one of the robbers, suffers a heart attack and dies. The defendant and his co-conspirators all are prosecuted for and convicted of first-degree murder based on the felony-murder rule. See People v. Stamp, 82 Cal. Rptr. 598 (Cal. Ct. App. 1969). Today’s post will review the basics of North Carolina’s felony-murder rule. Next week’s post will explore recent developments regarding when…

Changing Residence Without Permission Leads to VOP

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(I know, the title of this article couldn’t be more exciting, sorry, my creative title juices are not flowing at the moment.) How hard is it to prove a negative?  Urban myth claims that “you can’t prove a negative”.  Take the rather cliched statement notion that we can never prove that “God does not exist”–because we can’t prove a negative.  This is intellectually lazy nonsense, as there are good arguments both for, and against, a Creator.  That being said, the word “God” creates friction between myself and my web optimizer people, as they deem such discussions “difficult to optimize for search engines.”  Hum, what do these SEO people do, anyway?  Ok, I’ll stop. Still, it’s easy to prove a negative.  Take the following statement: No Ferrari’s exist in John’s garage. Can we prove this negative?  Sure.  Open my garage door, and…

2016 Could Be Peak SEC

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2016 was a high-water mark for SEC enforcement activity; however, with the uncertainties associated with the new administration’s enforcement regime, we could be seeing a downturn going forward. According to a recent report issued by the NYU Pollack Center for Law & Business and Cornerstone Research, the SEC’s 2016 fiscal year (spanning October 1, 2015 – September 30, 2016) saw the highest number of enforcement actions brought against public companies and their subsidiaries since 2009, the year the Pollack Center and Cornerstone Research first began tracking information on such actions.  The 92 actions brought against public companies and their subsidiaries last year is more than double the level of enforcement activity from just three years ago and represents the latest in a continuing upward trend of enforcement actions.  Also consistent with recent trends, the vast majority of these actions have been brought as administrative enforcement…

Aggravated Sexual Assault, Due Process and the Social-networking Websites

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This post examines a recent opinion from the Court of Appeals of Texas – Houston: Whitfield v. State, 2017 WL 946757 (2017). The court begins the opinion by explaining thatHerman Ray Whitfield was convicted by a jury of aggravated sexual assault. See Tex. Pen. Code § 22.021(a)(2)(A)(iv) (West 2015). Appellant elected to have the trial court assess his punishment and pleaded true to the two felony enhancements alleged in his indictment. The trial court sentenced him to confinement for life. Appellant filed a motion for new trial, which the trial court denied after a hearing.Whitfield v. State, supra.Whitfield raised two issues in his appeal, but this post only examines one of them. The other issue was that the trial court judge should have sustained his objections based on his Sixth Amendment right to confrontation and Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), under circumstances where the State…

Does the Petty Crime Exception Apply to Retail Fraud Convictions?

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For any immigration related issue your best bet is to hire an experienced immigration lawyer.  The information in this blog is subject to change at any time.  Reading a blog is not a substitute for seeking the services of an experienced immigration or criminal defense lawyer. Retail Fraud is considered to be a crime of moral turpitude (CIMT).  A conviction for retail fraud may or may not disqualify you for a visa in the United States.  The issue becomes whether or not the conviction is classified as a petty offense pursuant to INA section 212(a)(2)(A)(ii)(II). There is a 2 part test to determine if the conviction is for a petty offense: Continue reading

National District Attorneys Association releases report on "Marijuana Policy: The State and Local Prosecutors' Perspective"

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In this post a few months ago, I praised the National District Attorneys Association for forming a diverse working group to address modern marijuana laws and polices. As detailed in this local article, though, it does not seem all the diverse perspectives reflected in the working group resulted in a...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/FD3xRuaMspE" height="1" width="1" alt=""/>

Eidgenössischer Datenschutz- und Öffentlichkeitsbeauftragter (EDÖB) veröffentlicht Erläuterungen zu Stimmerkennungsverfahren

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Der Eidgenössische Datenschutz- und Öffentlichkeitsbeauftragte (EDÖB) veröffentlichte auf seiner Webseite Erläuterungen zu Stimmerkennungsverfahren. In diesem Zusammenhang hält der EDÖB u.a. folgendes fest:Die Verwendung von Stimmerkennungsverfahren zur Überprüfung der Identität von Kunden sei grundsätzlich zulässig. Allerdings müssen die betroffenen Personen (Kunden) über eine solche Datenbearbeitung transparent informiert werden. Ferner müssen sie in die Verwendung ihres Stimmabdrucks ausdrücklich einwilligen. Des Weiteren muss den Grundsätzen der Verhältnismässigkeit sowie Datensicherheit ausreichend Rechnung getragen werden.Ausserdem bestehen im Zusammenhang mit dem "Schutz von geheimnisgeschützten Daten" (wie z.B. "im Fernmelde- oder Bankbereich") für "den Einsatz biometrischer Verfahren zur Verifikation der berechtigten Person stärkere…

The Sanctuary City Case

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Within days of his inauguration, President Trump signed Executive Order 13768.  Section 9 of that order addressed so-called "sanctuary cities."  The header paragraph and subdivision (a) read (emphasis added):Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The…

Sixth Circuit to review en banc Ohio's execution protocol ... on a pace likely to preclude executions for at least a few more months

"Osbeck and Bromberg's Marijuana Law in a Nutshell"

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The title of this post is how West Academic Publishing is promoting its latest notable nutshell publication authored by Mark Osbeck and Howard Bromberg. In part because I think it is near impossible to summarize modern marijuana law in short form, I view this nutshell effort as extraordinary in various...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/ZUA6c82h-EI" height="1" width="1" alt=""/>
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