The Colorado Supreme Court recently upheld the state’s expressed consent statute in three consolidated DUI cases in which warrantless blood draw evidence was suppressed by the trial court. The cases dealt with various elements of the expressed consent law. Colorado’s expressed consent statute states that any driver on Colorado roads automatically consents to take a breath or blood test when asked to do so by an officer with probable cause that the driver is intoxicated. In one case, the trial court ruled that an admonition informing the defendant of the expressed consent statute constituted coercion that made the defendant’s consent involuntary, requiring the suppression of the test. There, an officer observed the defendant drive his truck into a curb four times and then steer into oncoming traffic. He readily admitted he was drunk and could not even manage to climb out of the truck when the officer ordered him to do so. At the hospital,…
Colorado Supreme Court Upholds Expressed Consent Statute
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Avalos on Prosecuting Rape Victims
Lisa Avalos (University of Arkansas - School of Law) has posted Prosecuting Rape Victims While Rapists Run Free: The Consequences of Police Failure to Investigate Sex Crimes in Britain and the United States (23 Mich. J. Gender & L. 1...
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Kids and Gun Accidents: Making a Firearm Accessible to a Child in Texas
Whether for hunting, sport shooting or protection, Texans love their guns. In fact, nearly 36 percent of households in the Lone Star State contain guns. Unfortunately, every year we hear stories about children who get hold of a firearm and accidentally shoot themselves or someone else. Not only is this tragic, but it can be criminal. Gun owners can be charged with a misdemeanor in Texas if they fail to secure their firearms or leave them in a place where a child can access them. Here’s what you need to know about making a firearm accessible to a child in Texas, which is also referred to as the Child Access Prevention, or CAP, law. The Law: Making a Firearm Accessible to a Child Under Texas Penal Code 46.13, a person commits the offense of making a firearm accessible to a child if the child gains access to a readily dischargeable firearm, and the person with criminal negligence: Failed to secure the firearm; or Left the firearm in a place to which the person knew or should…
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Kids and Gun Accidents: Making a Firearm Accessible to a Child in Texas
Whether for hunting, sport shooting or protection, Texans love their guns. In fact, nearly 36 percent of households in the Lone Star State contain guns. Unfortunately, every year we hear stories about children who get hold of a firearm and accidentally shoot themselves or someone else. Not only is this tragic, but it can be criminal. Gun owners can be charged with a misdemeanor in Texas if they fail to secure their firearms or leave them in a place where a child can access them. Here’s what you need to know about making a firearm accessible to a child in Texas, which is also referred to as the Child Access Prevention, or CAP, law. The Law: Making a Firearm Accessible to a Child Under Texas Penal Code 46.13, a person commits the offense of making a firearm accessible to a child if the child gains access to a readily dischargeable firearm, and the person with criminal negligence: Failed to secure the firearm; or Left the firearm in a place to which the person knew or should…
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News Roundup
The News & Observer reports that Governor Roy Cooper filed a lawsuit against legislative leaders last Friday that, among other things, contends that the new law that reduces the number of judges on the Court of Appeals impermissibly changes the length of a judge’s term without a supporting amendment to the state constitution. The Observer report says the lawsuit is “one of a series that Cooper . . . has filed since taking office in January” and is part of an ongoing power struggle between Cooper and legislative leaders. Keep reading for more news. Prison. This week the Charlotte Observer published a series of articles about corruption and abuse in North Carolina prisons. An overview story is available here, and the full collection of articles is available at this link. The articles describe numerous instances in correctional institutions across the state where prison system employees allegedly abused inmates,…
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Do Taxes Motivate Corporate Managers?
Lily Batchelder, Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing (Feb. 5, 2017), available at SSRN. Andrew Hayashi Tax scholarship is interdisciplinary. To evaluate tax policy it helps to know at least a little about economics, a little about philosophy, something about budget processes, and a lot about the dizzying creativity of the marketplace in exploiting loopholes and facilitating tax-advantaged transactions. In her recent article Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing, Lily Batchelder shows us that we must add financial accounting and firm (and corporate managers’) behavioral considerations to the mix. The article evaluates which of three policies, adopted on a revenue neutral basis to replace our current regime of accelerated depreciation, would cause the largest increase in new investment by the corporate sector. The three policies are: expensing of new investments…
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What motivates your potential criminal defense lawyer to do the work s/he does?
Every once in awhile, a lawyer colleague will tell me about how our work is all about making money, or a variation on that theme. Horsesh*t. Too much is on the line for criminal defendants for money rather than the client’s liberty to be the main motivating factor in the fight for clients. Yes, the lawyer should set a fee that justifies the lawyer’s opportunity cost and work, but once that fee is set, all that matters is defending the client to the hilt. From time to time, a criminal defense lawyer will tell me that s/he does not want further to liberalize marijuana laws, because that will result in fewer clients and less income for the lawyer. Another criminal defense lawyer told me he supported increasing funding for police, opining that this will lead to more reckless driving arrests and therefore more reckless driving cases for criminal defense lawyers to defend. We live in too much of a police state. Who better than criminal defense lawyers — who should…
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EFF: Montana Protects Communications Privacy, But Allows Gag Orders
EFF: Montana Protects Communications Privacy, But Allows Gag Orders by Andrew Crocker and Adam Schwartz (which EFF says violate the First Amendment).
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MI: Unreasonable mistake of law voids search
Defendant’s arrest was without probable cause for violating a no trespassing ordinance. It was a public place, open for business, defendant briefly entered and did nothing wrong. The search incident to the arrest thus fails too. Mistake of law as … Continue reading →
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TX4: Juvenile consented to search of room but parent objects; it’s the parent’s call
A juvenile was detained on suspicion of burglary, and the officers went back to his house. The juvenile consented, but the parent objected, and that was binding on the officers because of the control a parent has over a child. … Continue reading →
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The Attack on the “Resistance Police”
There was once a time when these two things could be true: You could disagree with a policy You were unwilling to lie about the law to achieve your goal Good times, but they are gone, as the newly formed law prof anti-Trump blog takes a dive down the rabbit hole to counter those academics who, while disagreeing with policies, refuse to use their scholarly cred to achieve their goal at the expense of academic integrity. Interestingly, the few academics willing to call out intellectual dishonesty, compared to the many empowered to spew whatever nonsense serves their ends, appear to be making significant headway. Not because they appeal to an audience of Trump fans and supporters, but because those people who refuse to forfeit their integrity for the cause appreciate their honesty. This is apparently driving the intellectual dishonest to abstraction. Some members of the legal right have taken to complaining loudly about claims that the Trump administration’s policies are…
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PA: Once SW issues for clothes and DNA removed, no further warrant needed for DNA testing
DNA lawfully seized from defendant’s clothes did not require a separate warrant to test it. Defendant doesn’t have a reasonable expectation of privacy in his victim’s DNA on him. Once DNA is lawfully taken, there is no longer any reasonable … Continue reading →
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TN: TN SCt has to adopt Herring under exclusionary rule; Ct.Crim.App. can’t
Despite the Tennessee Supreme Court’s recent changes in exclusionary rule jurisprudence, the court has not yet adopted Herring on good faith reliance on an out of date list. This court will not do it–that court has to. State v. McElrath, … Continue reading →
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TX14: Use of a spotlight on a boat was not a seizure
The use of a spotlight on a boat at night was not a seizure. Neale v. State, 2017 Tex. App. LEXIS 5008 (Tex. App. – Houston (14th Dist.) June 1, 2017): In evaluating whether Vannoy’s use of her flashlight on … Continue reading →
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Stop and frisk created by SCOTUS 49 years ago today
Terry v. Ohio, 392 U.S. 1 (1968), was decided 49 years ago today, June 2d. The stop and frisk occurred on October 31, 1963. The Ohio Court of Appeals Eighth District opinion is interesting for its historical value: State v. … Continue reading →
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Short Take: Evergreen’s “Direct Threat” Unspoken
When news broke that Evergreen State College was shut down by police because of a “direct threat,” obvious questions went unanswered. A direct threat of what? By whom? Why? Surely there would be answers coming soon enough. The media reports said nothing. A day later and they still say nothing. Evergreen State College, which has been in the national spotlight after protests over race boiled over last week, closed Thursday after receiving a direct threat. The school of about 4,500 students in Washington state posted this warning: “College closing immediately. In response to a direct threat to campus safety, the college is closing immediately for the day. All are asked to leave campus or return to residence halls for instructions.” A spokeswoman for the school wrote in a text message Thursday afternoon that a threat had been called in to local law enforcement and that the president decided to close the school temporarily out of an abundance of caution. …
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DEMOCRACIA versus REVOLUCIÓN
http://elcomercio.pe/opinion/mirada-de-fondo/peligros-distrito-uninominal-ivan-alonso-427969 Hoy 02 de junio la sección de opinión de “El Comercio” deja muchísimo que desear, un escritor opinando sobre el negocio del fútbol, tema absolutamente intrascendente, el señor Alonso y el japonés Kenyi Fujimori hablan de la reforma electoral sin mencionar por un instante a los homosexuales que con tanto empeño defiende el último de los nombrados y seguramente el señor Alonso pues es la clase social a la que debe pertenecer y donde se cobijan la mayoría de homosexuales, para que se les reconozca derechos contra la naturaleza pero guardan silencio cuando esos supuestos y negados derechos afectan directamente su cuota de poder, ¿Por qué evaden pronunciarse en cuanto a la lista de parlamentarios para que estén constituidas alternadamente por un hombre, una mujer y un homosexual,…
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Short Take: History, Empowered
In the scheme of historical novelists, Dame Hilary Mantel is kind of a big deal, so when she says something, people listen. And what she has to say isn’t going to endear her to those who prefer to rewrite history. Women writers must stop rewriting history to make their female characters falsely “empowered”, Dame Hilary Mantel has said. Mantel, the Man Booker Prize-winning novelist, said writing about women in history was a “persistent difficulties” for her contemporaries, who “can’t resist” retrospectively making them strong and independent. The genre of historical novels is a fascinating one, the intersection of historical accuracy and an interesting, if wholly fictional, story. Mantel said: “Many writers of historical fiction feel drawn to the untold tale. “They want to give a voice to those who have been silenced. “Fiction can do that, because it concentrates on what is not on the record. But we must be…
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Actual Physical Control of a Car in Broward Co. DUI Cases
The drunk driving statute (Title XXIII, Ch. 316 Section 193) states that a defendant must be in actual physical control of a vehicle to be convicted of driving under the influence. While we will get to a more specific explanation of what that means later in this post, keep in mind that actual physical control, or “APC” as it is often called by DUI defense lawyers, does not necessarily mean driving the car. By now, most people have probably heard that world famous golfer Tiger Woods was arrested in Jupiter, Florida for driving under the influence. We have all seen the mug shot of him that was taken at 3.a.m. in which he looks less than his best. However, in this particular case, it should be noted that he was given a breath test and blew 0.000, as discussed in a recent news article from CNN. This reading, coupled with his own alleged admissions about taking prescription drugs, means this is what is known as a DUI drugs case.When officers first…
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What You Should Know About Boating While Intoxicated
The summer is here, and that means it is time to take the boat out on the water. If you’re heading out on the lake this weekend or in the near future, read up on some of our past blogs on boating while intoxicated and check out this helpful infographic below. And if you end up in trouble on the water, be sure to give Appelman Law Firm a call at (952) 224-2277!
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