If you are suspected of Driving Under the Influence (DUI) in Illinois, you have decisions to make. If you have been drinking and or are nervous, you may not make the wisest decisions.
This is an important time because DUI has two different consequences, although they are, somewhat confusingly, related. DUI is a crime that even for a first offense with no aggravating circumstances, is a Class-A misdemeanor, just one step below a felony charge. It is a crime because you can be sent to jail for up to 364 days and you can be fined up to $2,500.00 (625 ILCS 5/11-500)
There is another part to a DUI arrest, which involves not only efforts by the police to gather evidence against you to convict you of DUI but also to get you off the road temporarily while the DUI case is going on in court. The evidence gathering comes in three general forms.
First of all, the police officer, just like any other person, can observe behaviors that suggest intoxication. You will see these described in the police reports as bloodshot, glassy eyes, slurred speech, unsure walking, poor balance, difficult following directions (such as retrieving your driver's license, registration and insurance card) and other things we all notice about someone whom we suspect is intoxicated.
The officer will additionally have the benefit, in many cases. of observing your driving behavior. The National Highway Traffic Safety Administration (NHTSA) has developed a list of driving-related actions that are indicative of alcohol impairment. The most common is a wide turn.
The police also use specific NHTSA-approved tests that they will testify help determine if your BAC level is .08, which in Illinois is the legal limit. These tests are known as the Standardized Field Sobriety Tests (SFST). There are three of them.
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Why cooperating with the police during a DUI arrest may not be a good idea
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Garrett on Criminal Justice and the Court's Past Term
Brandon Garrett has this post at the Harvard University Press Blog: With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex...
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„Keine wünschenswerte Lebensform“
Viel ist in den letzten Wochen und Monaten über den NSU-Prozess sowie die Hauptangeklagte Beate Zschäpe zu lesen gewesen – aber bei Weitem nicht alles war auch lesenswert. Jetzt, nur wenige Tage vor der Sommerpause in München, äußert sich der hochgeschätzte Claus Roxin in der FAZ zum Strafverfahren und bekundet darin eine bemerkenswerte Einschätzung:
„Es ist sicherlich keine wünschenswerte Lebensform, mit zwei Mördern zusammenzuleben, aber das macht einen Menschen noch lange nicht selbst zum Mörder“.
In seinem Werk „Täterschaft und Tatherrschaft“, das Standardwerk in der Rechtswissenschaft für diese Problematik, vertritt Roxin die These, dass Täterschaft immer eine Beherrschung des konkreten Tatgeschehens voraussetzt. Davon könne aber bei Beate Zschäpe keine Rede sein.
Für Roxin begründen die Tatbeiträge, die Zschäpe zugeschrieben werden, nicht mehr als eine „Mitwisserschaft“ und damit einen klassischen Fall der Beihilfe. Wenn die Legendierung allein ausreichen würde, um eine Mittäterschaft begründen zu können, gäbe es für Beihilfe keinen Anwendungsbereich mehr. Eine ähnliche Auffassung vertritt wohl Osman Isfen, der allerdings auf die teils abweichende Auffassung der Rechtsprechung hinweist. Der BGH unterzieht die Gewichtung der einzelnen Tatbeiträge einer wertenden Betrachtung: Ein geringe Beteiligung im Ausführungsstadium der Tat kann durch einen „Mehrbeitrag“ im Vorbereitungsstadium ersetzt werden (eine ausführliche Prüfung der möglichen Täterschaft findet sich hier).
Derzeit ist jedoch noch nicht abschließend geklärt, ob die mutmaßlichen Täter Mundlos und Böhnhardt mit Beate Zschäpe während der Tatausführung in Kontakt standen. Eine Frau will bei einem der beiden Männer ein Mobiltelefon mit Freisprecheinrichtung entdeckt haben. In diesem Fall wäre die Angeklagte schwer belastet, denn eine „psychologische Unterstützung“ während der Tatausführung wäre geeignet, den Vorwurf einer Mittäterschaft zu erhärten.
Für eine Zwischenbilanz oder gar Prognose ist es allerdings zu früh. Das Oberlandesgericht München hat kürzlich bekanntgegeben, dass das Verfahren noch mindestens bis Ende 2014 dauern wird – mit jeweils drei Verhandlungstagen in der Woche.
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Colorado Courts Reassert Awesome Power Of Parole Board In Sex Offender Parole Revocation Matters
by Colorado Sex Crimes Criminal Defense Lawyer - H. Michael Steinberg
In the case directly addressing Parole Revocations for Colorado Sex Offenders - the Colorado Court of Appeals distinguished once again sex offender cases from all other parole revocation cases.
On August 1, 2013 - in the case of People v. Back - Jason Back appealed the denial of his Colorado Criminal Rule of Procedure 35 C motion which he filed to challenge the Colorado parole board's decision to revoke his parole and send him back to prison for the rest of his life.
The two laws that are addressed in the Back decision are sections 17-2-103(11)(b) and 17-22.5-403(8)(b), of the Colorado Revised Statutes (C.R.S.)
Simply put - for technical violations of Colorado Parole ( that is - no new crimes have been committed while on parole) under section 17-2-103(11)(b)(IV), C.R.S. (which applies to parole revocations),Back argued that the parole board was only authorized send him back to prison for a maximum of 180 days... not life in prison.
The Court decided that - section 17-22.5-403(8)(b) "trumps" the general statute in cases that fall within the Colorado Sex Offender Lifetime Supervision Act (SOLSA).
The Facts Of Back
Back had been on lifetime probation after pleading guilty to sexual assault on a child, a class four felony. He violated his probation and was sentenced to prison for 10 years to life which had a so called "tail" of parole that added - should he ever parole - of 10 years to life.
Eventually - after working very hard - Back was one of the very few Colorado Sex Offender inmates to make parole early and he was released on parole. While on parole - the sex offender treatment program he was asigned to - terminated him for "noncompliance." Thereafter the Colorado Parole Board decided that they would return Back to prison for life for the technical violation of failure in a sex offender treatment program.
How To Get There
He appealed that decision - after the Colorado Parole Board a person's parole, that decision can be appealed under the Colorado Parole Board's own appellate body under § 17-2-103(2)(b), C.R.S. 2012. If you lose there - THEN that order can be appealed again to the district court and then the Colorado Court's of Appeal.
The Issue
The Defendant filed a Crim. P. 35(c) motion and in his appeal he asserted that the parole board had to treat him like all other parolees in this situation - and return him to prison for only 6 months - 180 days.
The Decision
Finding - after much analysis that the two laws directly CONFLICT - decision came down to this - the "general" parole revocation law - section 17-2- 103(11)(b)(IV) does not apply to Colorado Sex Offender Parole (the parole board to revoke his parole for a maximum of 180 days), while the more "specific" law 17-22.5-403(8)(b) does.
Here is the relevant law:
Upon a determination in a parole revocation proceeding that the sex offender has violated the conditions of parole, the state board of parole shall continue the parole in effect, modify the conditions of parole . . ., or revoke the parole and order the return of the sex offender to a place of confinement designated by the executive director for any period of time up to the remainder of the sex offender's natural life.
H. Michael's Take
No surprise here - the Colorado Court of Appeals decision to treat Colorado Sex Offenders differently under SOLSA is consistent with the harsh tone of the whole statutory scheme. The irony in the Back case - is that Back did such a great job in prison after he was returned... the "back" story (forgive me) was that - while the appeal was pending - he was re- granted discretionary parole under the provisions just discussed.
The good news in this scenario is - in my opinion - there has been a palpable "loosening" of the hysteria surrounding these cases that has given some hope to the hundreds of Colorado sex offenders serving life sentences and trying to make parole - as did Mr. Back - TWICE.
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Two Wisconsin Legislators Push For Harsh New Drunk Driving Laws
Two members of the Wisconsin legislature have moved to introduce sweeping legislation that would drastically stiffen penalties for those accused of drunk driving in the state. The three new measures would include far tougher penalties for those convicted of drunk driving in a state that has long been known for its lax laws. State Representative [...]
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D.Minn.: “The knowing use of a file-sharing program defeats any claim of a reasonable expectation of privacy in the files shared on that network.”
“The knowing use of a file-sharing program defeats any claim of a reasonable expectation of privacy in the files shared on that network.” United States v. Hoffman, 2013 U.S. Dist. LEXIS 108076 (D. Minn. August 1, 2013).*
The seizure of defendant’s Express Mail package implicated the Fourth Amendment, but it was reasonable. [This case is unnecessarily loonng and goes on for ten pages when it could have been done in two: Dog sniff in transit is no interference with package; sniff is PC for warrant; slight delay for warrant is de minimus. (It's a rookie judge.)] United States v. Hoyt, 2013 U.S. Dist. LEXIS 108135 (E.D. Ark. August 1, 2013).*
Defendant’s racial profiling claim, if that’s what it is, isn’t cognizable on habeas. Alvardo v. United States, 2013 U.S. Dist. LEXIS 108152 (M.D. Pa. August 1, 2013).*
To win on a Fourth Amendment IAC claim, the habeas petitioner has to show that he’d have prevailed, and here he can’t. Ray v. United States, 2013 U.S. App. LEXIS 15808, 2013 FED App. 0202P (6th Cir. August 1, 2013).*
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INVOKING THE FIFTH IN CONGRESSIONAL HEARINGS: Lois Learner Plays it Smart in Face of Political Witch Hunt
As criminal defense lawyers we often advise innocent clients to invoke the Fifth Amendment in situations where they might face exposure to criminal allegations. This is especially so when the… read more →
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CA2: NYPD could run DLs during DL checkpoint
A driver’s license checkpoint in the Bronx was reasonably conducted, and the NYPD did not violate any Fourth Amendment right by running the DL information through computers to see if the license was valid. A warrant showed for defendant, and he was arrested. United States v. Bernacet, 2013 U.S. App. LEXIS 15822 (2d Cir. August 1, 2013):
[...] Read more!
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OR: "I need to talk to the person that just ran in" led to consent
An officer had a tip of a DUI driving on a resort parking lot, and he saw the driver go into a condo. He went to the door and said "I need to talk to the person that just ran in." The entry was by consent. State v. Briggs, 2013 Ore. App. LEXIS 911 (July 31, 2013):
[...] Read more!
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Orange County Sheriff's Deputy Charged with Assault
Orange County Sheriff's Deputy, Juan Tavera, 30, is being charged with one misdemeanor count of assault after allegedly spraying a pizza with pepper spray. On September 23, 2012, Tavera was on patrol and stopped a 19 year old teenager for a traffic violation. The teen had a pizza in the back of his vehicle and authorities allege Tavera sprayed the pizza with pepper spray, unbeknownst to the driver.
After the traffic stop, the teen returned home and shared the pizza with four friends. All five of the friends became sick after eating the pizza. The teen notified the OCSD of his suspicions and an investigation ensued.
Tavera is set to be arraigned in Harbor Justice Center in Newport Beach on Monday. Currently, Tavera is on PAID administrative leave. If convicted, Tavera faces up to one year in county jail and the likely loss of his job.
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The pitiful state of forensics in Texas
I recently tried a murder case. Forensics were not a huge issue, but they were important. While I shouldn't be surprised, I was reminded about just how qualified (or unqualified) most of the people are who testify for the state.
The worst was the supervisor of the crime scene, who also claimed to be an expert in bloodstain pattern interpretation. His qualifications were similar to most such experts - he had attended a 40 hour bloodstain school. Most of those are conducted by, or in conjunction with law enforcement agencies. Since his training years ago he had never attended a training program directly solely at bloodstain interpretation. He had brought in others to train his people - and participated in the training.
What absolutely floored me was when he was asked what SWIGSTAIN was. For those who don't know, there are scientific working groups in a number of disciplines, made up from experts from across the country - and the world. Their goal is to develop standards that will be applied everywhere - including terminology. The idea is that when an expert mentions a term, it will have a certain meaning that all experts will understand. In other words, they will talk the same language. SWIGSTAIN came up with their guidelines in 2005 - 2006; He had never heard of it! So much for training and continuing education.
The other expert was a DNA analyst. She had the standard university degree, and worked at a county Crime Lab. When asked what professional organizations she was a member of she replied none. Seriously - how can you be a scientist and not be a member of any professional organization. Most experts are members of numerous organizations - the most common being the American Academy of Forensic Sciences. How can anyone stay current and know what is going on with your field without keeping in touch with other?
With the training possessed by many of the people at State crime labs its no wonder mistakes are made. We should expect more - they are providing testimony that can take away someone's freedom - and even their life. Instead of being the least qualified, they should be the most qualified experts in their fields.
The sad fact is that the most qualified experts are often consultants, who defendants may hire to assist in the defense. When they do, their testimony is discounted and discredited because they are being paid to come testify - as if the State experts are doing it for free. If they question what was being done they are attacked and discredited. I understand that's the function of a trial, but jurors too often are willing to blindly accept the testimony offered by the State.
We've made a lot of progress over the last few years - especially in educating lawyers about forensics. It's obvious we still have a lot more to do.![]()
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Signs and Portents
“It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ ” the attorney general, … Continue reading →
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The Court reversed the decision issued earlier.
In a criminal case, defendant was convicted of two counts of grand larceny in the second degree, 17 counts of grand larceny in the third degree and one count of grand larceny in the fourth degree. County Court sentenced him...
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S.D.Ohio: PO had PC defendant was staying elsewhere to enter without warrant
Parole officers had probable cause to believe that defendant was living at an unauthorized address after staking it out and seeing her there. They took her inside, and the entry was valid under the Fourth Amendment as a parole search. United States v. Payne, 2013 U.S. Dist. LEXIS 108256 (S.D. Ohio August 1, 2013).
“Luedtke and Goodwin originally moved to suppress any evidence seized pursuant to a search warrant or warrantless search. However, Luedtke and Goodwin never identified any seized evidence, search warrants, or warrantless searches, nor did Luedtke or Goodwin submit any legal argument for suppression. The Court therefore recommends that the motions to suppress evidence be denied as moot.” United States v. Luedtke, 2013 U.S. Dist. LEXIS 107499 (D. Minn. June 5, 2013).*
The smell of burning marijuana coming from defendant’s car made it reasonable to slightly extend the stop and then ask for consent to search. Rogers v. State, 2013 Ga. App. LEXIS 698 (July 31, 2013).*
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E.D.La.: No standing shown in neighbor’s backyard
Defendant showed no standing in his neighbor’s backyard. United States v. Casby, 2013 U.S. Dist. LEXIS 108266 (E.D. La. August 1, 2013).*
Defense counsel was not ineffective for not moving to dismiss his state indictment for lack of probable cause where there was probable cause. United States v. Waters, 2013 U.S. Dist. LEXIS 107771 (E.D. Pa. July 31, 2013).*
Defendant’s traffic stop for a defective headlight in daylight, a “gloomy day,” was valid under Michigan law. United States v. Dent, 2013 U.S. Dist. LEXIS 108379 (E.D. Mich. August 2, 2013).*
A night employee if Wal-Mart found a cell phone in a shopping cart, and she turned it on to try to ascertain the owner. Looking through pictures she found apparent child pornography. She took the phone to the police and showed them. They took the phone and got a search warrant based on what they were shown. It was all reasonable as coming from the private search. United States v. Sparks, 2013 U.S. Dist. LEXIS 108850 (M.D. Fla. August 2, 2013).*
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Top-Ten Recent SSRN Downloads
in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 847 Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion Elizabeth E. Joh, U.C. Davis School of Law, Date posted to database: June 26, 2013 2...
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Sex-offender legislation is proposed
As usual, a proposed law for which there are no stats showing it was ever a problem. False beliefs to further political ladder climbing. 8-4-2013 Ohio:
Changes being discussed for current Marion...
[[This,an article summary.Please visit my website for complete article, and more.]]
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Beware the Defective Equipment Traffic Stop: Saving a Few Dollars Now Could Cost Thousands Later On
How many times have you seen a driver ahead of you in traffic with a burned-out taillight? While it may seem insignificant to some, a simple $10 light bulb could cause big trouble down the road. Never mind the accident potential of a non-working brake lamp or a faulty turn signal, just consider the cost of a defective equipment ticket. Oh, you say, a couple hundred bucks or so, I'm too busy. And, really, what are the odds? Well, in our experience, the odds are pretty good that something may happen before that bulb gets replaced.
But what if a driver, who happens to have avoided fixing that turn signal or brake light bulb finds out the hard way that he had maybe just a little too much to drink with his buddies at the bar? That burned-out bulb is now one big red flag for a municipal patrolman or state trooper. Unfortunately, by the time this scenario plays out, the cost of that little bulb may have gone up quite a bit depending on the circumstances. In any case, it's safe to that driver will be into the state for more than the $10 or $20 it would have cost to fix that light in the first place.
As New Jersey drunken driving defense attorneys, we understand that human nature can get in the way of doing the right thing from time to time. We've represented numerous drivers over the years who may have indulged themselves a bit too much when they should have eased off. It's difficult to know exactly how much alcohol is in one's bloodstream or whether a person has consumed enough food at lunch or dinner offset the wine he or she drank.
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Convicted Sex Offender Found Not Guilty of ...
8-4-2013 Maryland:
A man once called a serial rapist has been found innocent in the eyes of the court not once, not twice, but three times in the past three years! FOX45’s Janice Park explored...
[[This,an article summary.Please visit my website for complete article, and more.]]
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GOVERNMENT WANTS YOUR EMAIL: Courts Still Debate Expectation of Privacy in E-Mail Correspondence
If you live long enough, you will find a subject upon which you can agree with your worst adversary. We are really not that political. We represent, or at least… read more →
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