The Department of Justice has officially spoken about state marijuana laws. It has advised the Governors of Colorado and Washington that provided it enacts robust regulations that do not not interfere with 8 DOJ priorities, it will "defer its right...
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DOJ to Defer Challenge to New State Marijuana Laws
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Thursday Open Thread
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FEDERAL PROSECUTORS TOLD TO NO LONGER ENFORCE MARIJUANA LAWS IN STATES WHERE IT'S LEGALIZED
Your favorite Clearwater criminal defense attorney just obtained a memorandum sent today to each federal prosecutor working in every United States Attorney's office. The memorandum outlines the factors which every prosecutor must now consider before pursuing marijuana trafficking cases.Here are the six critical factors to be used by prosecutors in the future for every Department of Justice prosecution as delineated in the memorandum:Is Cannabis Legal?1. Preventing the distribution of marijuana to minors. 2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels. 3. Preventing the diversion of marijuana from states where it is legal under state law from being dispersed to states where it is not legal. 4. Preventing state-authorized marijuana activity from being used as a cover or pretext for trafficking in other illegal drugs or other illegal activity. 5. Preventing violence and firearm use. 6. Preventing DUI impairment from marijuana. Preventing the growing of marijuana on public parks or other public land or other federal property. What is most interesting is the fourth paragraph which represents a sea change of policy from Attorney General Holder's previous guidelines for his prosecutors. Now state authorized marijuana activity will be monitored to prevent its use in other illegal drugs or other illegal activity, whereas before even if a state had legalized marijuana, the federal government viewed the marijuana growing as illegal activity subject to the federal law of drug trafficking in itself. Clearly citizens in states that do not allow marijuana will not be as likely as other citizens to be subject to the harsh minimum mandatory sentences for marijuana drug trafficking cases, which should bring some disparity of sentencing arguments as well as disparity of prosecution arguments into play by enterprising defense attorneys in every jurisdiction.Here in Tampa Bay, Florida we can only hope that a new constitutional amendment legalizing medical marijuana will not only make the drug legal for medicinal purposes, but will stop at least some overzealous federal prosecutions that often result in unfair minimum mandatory prison sentences that judges do not have the discretion to go under. Because prosecutors always had more discretion under the Federal Sentencing Guidelines, this roll back of harsh sentencing by Attorney General Holder will save many people from being branded as criminal by our government.
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Race and the Juvenile Justice System: Celebrating the 50th Anniversary of the March on Washington
This post is courtesy of Acting Assistant Attorney General for the Civil Rights Division Jocelyn Samuels The Civil Rights Division is acutely aware of the impact that the criminal justice system has on communities of color. As we reflect on the 50th anniversary of the March on Washington, it remains an inescapable fact that disparities [...]
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Under Age DUI Zero Tolerance Policy
In California, you can be charged with driving under the influence of alcohol if your blood or breath results are .08 or higher. However, if you are under 21 and you drive with any measurable amount of alcohol in your blood, you can be subject to penalties under California's "Zero Tolerance Law”. You do not have to be impaired or found to be “under the influence” to be found guilty of the offense. The only issue is whether or not you had any measurable amount of alcohol in your system.
Having a blood alcohol level of .01% or higher is a civil offense and therefore the punishment is enforced by the Department of Motor Vehicles. A blood alcohol level of .05% - 07% is an infraction and .08% or higher is a misdemeanor.
The penalties if convicted of under age DUI vary according to the circumstances.
Violating California Vehicle Code 23136 (.01% or higher), a civil offense, is enforced by the Department of Motor Vehicles and penalties include the following:
1. A one-year suspension of the minor’s driving privilege;
2. A one-year delay in obtaining a driver’s license if the minor does not yet have a license; and
3. If the minor refuses to submit to a test, the consequence can be a one to three year suspension of their driving privilege.
A violation of Vehicle Code Section 23140 (.05% - .07%) is an infraction and subject to penalties according to the Zero Tolerance Law. The punishment may include the following:
1. A suspension of their driving privilege for one year;
2. A $100.00 fine;
3. Participation in a 3 month alcohol program; and
4. The minor may be required to participate in a Youth Drunk Driving Participation Program.
A violation of Vehicle Code Section 23152 (0.08% or higher), is a misdemeanor and may be subject to some or all of the following penalties:
1. A suspension of the minor’s driving privilege;
2. One year of incarceration;
3. Fines up to $1,000.00;
4. Court approved DUI class; and
5. Three to five years informal probation.
It is important to note that the penalties increase with each new conviction of driving under the influence.
As discussed above, the Department of Motor Vehicles has it's own punishments/consequences for minor's drinking and driving. The only way to fight the suspension of a license is to request an “Administrative Per Se” or APS hearing, which allows any defense to be brought to the hearing officer’s attention. This hearing must be requested within 10 days of the date of the arrest.
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Maryland’s De Novo System
What is Maryland’s de novo system? It is a system that allows review of decisions rendered in courts of limited jurisdiction by a trial court of general jurisdiction. A defendant who is convicted in a District Court of Maryland can appeal the conviction de novo to a circuit court. The reason de novo appeals were […]
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MD - Baltimore Officer (Frederick Allen) Charged With 2 Counts Of Child Sex Abuse
Original Article
08/29/2013
BALTIMORE (WJZ) - A grand jury has indicted a Baltimore City police officer for child sex abuse.
Frederick Allen is being charged with two counts of sexual child abuse of a minor and third-degree sex offense for allegedly having a sexual relationship with an under-age female victim between June 2005 and September 2006.
“We are dedicated to investigating and prosecuting officers who breach the public trust by violating the law,” State’s Attorney Gregg L....
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CA - Judge orders prison diagnostic for ex-deputy (Earl William Klapperich) convicted of soliciting minor
Earl William Klapperich
Original Article
08/29/2013
OROVILLE - Sentencing was delayed Wednesday for a former Butte County sheriff's deputy convicted of soliciting a minor for sex.
The Butte County Superior Court judge ordered defendant Earl William Klapperich, 28, to undergo a diagnostic and evaluation in state prison, deputy district attorney Stacy Edwards said.
Sentencing will resume when the state prison returns its results, which can take up to 90 days.
Edwards noted outside...
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Vandervort on HIV, Fraud, Non-Disclosure, and Consent
Lucinda Vandervort (University of Saskatchewan) has posted HIV, Fraud, Non-Disclosure, Consent and a Stark Choice: Mabior or Sexual Autonomy? (Criminal Law Quarterly, Forthcoming) on SSRN. Here is the abstract: The reasons for judgment by the Supreme Court of Canada on...
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Arizona Expungement under ARS 13-4051 and Set Aside of Convictions under ARS 13-907
One question that I get frequently is “expunging” a criminal conviction. Unfortunately, Arizona does not expunge criminal convictions. If someone has been convicted of a crime, the best one can do is “set aside” the conviction under A.R.S. 13-907.
13-907. Setting aside judgment of convicted person on discharge
A. Except as provided in subsection D of this section, every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge, justice of the peace or magistrate's successor in office to have the judgment of guilt set aside…
D. This section does not apply to a person who was convicted of a criminal offense:
1. Involving a dangerous offense.
2. For which the person is required or ordered by the court to register pursuant to section 13-3821.
3. For which there has been a finding of sexual motivation pursuant to section 13-118.
4. In which the victim is a minor under fifteen years of age.
5. In violation of section 28-3473, any local ordinance relating to stopping, standing or operation of a vehicle or title 28, chapter 3, except a violation of section 28-693 or any local ordinance relating to the same subject matter as section 28-693.
If the judge grants the motion to set aside, the defendant can write on any non-governmental application or form the conviction has been set aside or dismissed. The set aside provision has no benefit when applying for government jobs or permits, licenses, or applications. And even if a conviction has been set aside, it will still count as a prior conviction under sentencing laws.
Arizona does, however, have an expungement statute when someone has not been convicted. That statute is ARS 13-4051 and it applies when someone has been arrested but not convicted. The benefit of this statute is that it eliminates essentially all official records of the arrest.
13-4051.
A. Any person who is wrongfully arrested, indicted or otherwise charged for any crime may petition the superior court for entry on all court records, police records and any other records of any other agency relating to such arrest or indictment a notation that the person has been cleared.
B. After a hearing on the petition, if the judge believes that justice will be served by such entry, the judge shall issue the order requiring the entry that the person has been cleared on such records, with accompanying justification therefor, and shall cause a copy of such order to be delivered to all law enforcement agencies and courts. The order shall further require that all law enforcement agencies and courts shall not release copies of or provide access to such records to any person except on order of the court.
There are a couple of issue with this statute. There is not much case law explaining under what circumstances the statute applies and how a court should rule. For example, the statute says specifically “any crime”, but then it requires filing a petition in “superior court.” What if a crime is a misdemeanor and not in Superior Court? Does this statute still apply?
Second, does someone get an expungement just as long as the charge was dismissed, or is more required? In State v. Hesam Mohajerin, the court of appeals held:
to obtain relief, a petitioner must demonstrate both that his arrest or charge was "wrongful" and that justice requires the entry of a notation of clearance, and one of the ways he may do so is by showing the allegations against him are false.
In that decision, the court of appeals clarified the earlier decision in State v. Franco, in which the court had required the defendant to prove a "wrongful conviction" to get the record expunged under ARS 13-4051. As things seem to stand now, proving the allegations were false is sufficient, but not necessary to get relief under ARS 13-4051.
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2013 Labor Day DUI Task Force
David Cantor explains what to do if pulled over for DUI this Labor Day Weekend: “What to do if pulled over for DUI this Labor Day Weekend?” Labor Day is coming up this Monday September 2nd 2013 and like always, DUI task forces will be out looking for impaired drivers starting Friday August 30th. The East Valley Task Force is...read more →The post 2013 Labor Day DUI Task Force appeared first on Arizona Criminal Law & Defense Blog.
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Is "Stop and Frisk" On The Way Out?
In the wake of a recent decision by a federal district court judge in New York holding that the state's "stop and frisk" policy violates the United States Constitution, the country is abuzz with discussion of the concept of "stop and frisk." This post will briefly discuss the history behind the policy, explain the concept, and analyze what the future may hold for the forty-five-year-old legal doctrine.
The "stop and frisk" policy first came about in a 1968 Supreme Court case, Terry v. Ohio. Up until that point, under the Fourth Amendment, an officer needed probable cause to detain someone to ask them questions or search their belongings. However, the Terry decision created a new rule that only required "reasonable suspicion" of criminal activity before an officer could briefly stop a person and ask him questions. Along with this "stop," the Court held that the officer could also perform a limited pat-down of the person, to ensure that they didn't have any weapons on them. Thus the term "stop and frisk."
Reasonable suspicion is a much easier legal standard to meet than probable cause. So under the "stop and frisk" policy, police are able to stop people for less obvious reasons, allowing for a more subjective determination of wrongdoing.
The New York court held that the "stop and frisk" policy was being enforced in a racially discriminatory manner, disproportionately affecting Black and Hispanic people. Intuitively, this makes sense if you can believe that police suspect Blacks and Hispanics more than other races. This is because police can selectively choose who looks "suspicious" and, given the lower threshold required to stop that person, police can almost always cite some fact or set of facts that give rise to a "reasonable suspicion." The result is that the "stop and frisk" policy ends up being applied against Blacks and Hispanics more than other racial groups.
It seems obvious that the Court, back in 1968, felt that "stop and frisk" was a good balance between individual rights and the need to deter crime. However, the policy has recently come under attack being less of a deterrent than originally thought. Social scientists point to a lack of hard evidence suggesting that less crimes are committed because officers are able to conduct "stop and frisk" stops. Even though crime has decreased over the decades since "stop and frisk" was implemented, there could be numerous causes.
The fact that the science does not support the policy's effectiveness combined with the recent finding that the policy is applied in a racially discriminatory manner, might signal that the tide is turning on the stop and frisk doctrine.
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David Oshinsky Reviews A Wild Justice
"Stay of Execution," is the title of David Oshinsky's review in the Sunday New York Times Book Review. More onEvan Mandery's A Wild Justice: The Death and Resurrection of Capital Punishment in America, from the publisher - W.W. Norton -...
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I was framed
Hi my name is Lydia and I was framed i use to work @ a doctors office and one of the doctors patient stolded a prescrition book and started to write scrips and was caught,he blamed me and told all the [...]The post I was framed appeared first on Free Criminal Record Clearing and Expungement Information.
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California to Release 10,000 Prisoners
Controversy continues over California prison overcrowding. The criminal defense attorneys at Wallin & Klarich explain the impact of a recent court order to release 10,000 prison inmates.
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**** Update**** Fatal Crash NW Blvd /River Ave CDA
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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Idaho State Police
Regional Communication Center - North
615 W Wilbur Ave
Suite A
Coeur d Alene, Idaho 83815
Please direct questions to the appropriate District Offices
District 1 (208) 209-8620 Fax (208) 209- 8618
District 2 (208) 799-5150
CASE # C13001768
--------------------- PRESS RELEASE -----------------------------
DATE: 08/27/2013 TIME: 4:21 PM LOCATION: SB NW Blvd / River Ave CDA
VEHICLE #1
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DRIVER: Joseph M Rupeka AGE: 62
ADDRESS: East Freedom, PA
INJURIES: Yes
HOSPITAL/LOCATION TAKEN: Kootenai Medical Center
VEHICLE: 2001 Chrysler Sedan
WRECKER: Schaffers Towing
SEATBELTS/HELMET WORN: No
VEHICLE #2
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DRIVER: Coralynn C Mckasty AGE: 19
ADDRESS: Post Falls, ID
INJURIES: Yes
HOSPITAL/LOCATION TAKEN: Kootenai Medical Center
VEHICLE: 1996 Chevy Lumina
WRECKER: Schaffers
SEATBELTS/HELMETS: Yes
PASSENGER: Quinn J McKasty
AGE: 16
ADDRESS: Post Falls, ID
INJURIES?: Fatal
LOCATION TAKEN?: Kootenai Medical Center
VEHICLE #3
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DRIVER: Carl George AGE: 57
ADDRESS: Coeur d Alene ID
INJURIES: Yes
HOSPITAL/LOCATION TAKEN: Kootenai Medical Center
VEHICLE: 2013 Subaru Forester
WRECKER: Schaffers
SEATBELT/HELMET WORN: Yes
INCIDENT NARRATIVE: ****Update**** The passenger in vehicle #2, Quinn McKasty, has succombed to his injuries he sustained from the crash. **** Rupeka was traveling Southbound on NW Blvd when he rear ended Mckastys vehicle who was stopped at the NW Blvd & River Ave red light. Her vehicle was pushed into the intersection and was struck by Georges vehicle who was turning Northbound onto NW Blvd from River Ave. All parties involved were transported to Kootenai Medical Center including a passenger in Mckastys vehicle. This crash is still under investigation.
DSP INITIALS DM
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Borchert, Pinguelo & Thaw on the Stored Communications Act and Social Media
Christopher J. Borchert , Fernando M. Pinguelo and David Thaw (University of Connecticut - School of Law , SCARINCI HOLLENBECK, LLC and University of Connecticut School of Law) have posted Reasonable Expectations of Privacy Settings: Contemplating the Stored Communications Act...
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How does the sex offender registry make us safer?
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Can Police Paralyze Me and Probe my Ass for Drugs? 6th Circuit Says No
I'm sure many of you have asked this same question. Up until Monday, the answer, at least in the Sixth Circuit, was "yeah." But in what can only described a victory for those who oppose non-consensual anal penetration, the Sixth Circuit Court of Appeals has vacated the conviction of a man who was involuntarily paralyzed, intubated, attached to a breathing machine and anally probed for drugs. The case is United State v. Felix Booker. The fact that it ever went to trial demonstrates just how egregious police conduct must be before it will violate constitutional protects against unreasonable search and seizure.U.S. v. Felix Booker: Facts of the CaseIn August, 2010 Oak Ridge Tennessee police stopped a car containing Felix Booker and his brother William who was driving. Officers smelled marijuana, the occupants denied having illegal drugs and gave police permission to search. The search discovered .06 grams of marijuana. Possession of that amount is a misdemeanor under Tennessee law and, only a citation, not arrest, is authorized for such offenses. Still, officers arrested Felix for felony marijuana possession even though they never found the 14 grams needed to support the charge.After his arrest, officers observed Booker fidgeting around his buttocks and, during a strip search, one officer thought he saw something protruding from his anus. It was reasonable then for officers to suspect that Booker was concealing something, what was unreasonable is what they did next: They transported him to a medical facility where they met Dr. LaPaglia. It turns out that this doctor had assisted these police with involuntary rectal examinations in the past. With the officers standing by, he LaPaglia went to work once again. As the Sixth Circuit puts it:LaPaglia first performed the rectal examination on Booker without medication. But Booker contracted his anal and rectal muscles while LaPaglia was attempting to examine him, preventing LaPaglia from inserting a finger in Booker’s anus. As LaPaglia said, “If an individual does not want you to enter their rectum, you are not going to.”.... LaPaglia ordered a nurse to inject muscle relaxants into Booker’s left buttock. On the second attempt, Booker remained uncooperative and LaPaglia could not complete the examination, but he could feel a foreign object inside Booker’s rectum, convincing LaPaglia that completion of the rectal examination was imperative. Finally, LaPaglia directed an emergency room nurse, Tammy Jones, to administer a sedative and a paralytic agent to Booker intravenously, and had him intubated to control his breathing. At 4:12 p.m., Booker was intubated. He remained intubated for about an hour, unconscious for twenty to thirty minutes, and paralyzed for seven to eight minutes. While Booker was paralyzed, LaPaglia removed a rock of crack cocaine, greater than five grams, from Booker’s rectum. LaPaglia then turned over the crack rock to Officer Steakley, who took it for evidence.Sixth Circuit Rejects the District Court's RulingBooker was charged with possession with intent to distribute more than 5 grams of crack cocaine. He moved to Suppress the evidence but the District Court Judge denied the motion. That Judge bought the prosecution argument that removing the drugs was not a search, but was a medical procedure required to protect Booker's safety. The reasoning was that, if there was something hidden in there, and it did contain drugs, and the package ruptured, there was a possibility that Booker's health could be endangered. The prosecution also argued that the Doctor was not a state actor and so proceeds of his fingerbang proceedure were not subject to exclusion under the fourth amendment. With suppression denied, Booker was convicted.The Sixth Circuit disagreed:Even though the doctor may have acted for entirely medical reasons, the unconsented procedure while Booker was under the control of the police officers must, in the circumstances of this case, be attributed to the state for Fourth Amendment purposes...When police officers bring a suspect in custody to a purportedly independent actor, and stand by without interfering while the actor unlawfully batters the subject in a way that the police clearly could not, it can hardly be argued that resulting evidence is admissible.Even if the acts of the doctor are imputed to the state, the evidence doesn't need to be excluded if the actions were reasonable under the circumstances. The court considered previous cases where involuntary stomach pumping, or forced surgery were deemed unconstitutional, and found that this conduct was just as bad:The unconsented procedure, moreover, shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process...Supreme Court precedent thus shows that the unconsented paralysis, intubation, and rectal examination amounted to an unreasonable search, which violated Booker’s Fourth Amendment rights. So the Rectum is a Perfect Hiding Place?Well, not really. There are lots of ways to find out what's in there, it's just that the police here did it super wrong. As the Sixth Circuit opinion notes, other agencies have procedures for this sort of thing:For example, the established policy of the United States Customs and Border Protection is first to attempt an x-ray to confirm the presence of contraband. If further medical examination is necessary, officers consider whether to engage in a monitored bowel movement, and only engage in an involuntary body cavity search after obtaining a court order.In Maine, as in other jurisdictions, body cavity drug smuggling is not rare. Here, the police prefer to let nature take it's course and put such prisoners in a "dry cell" where they can't use a sink or toilet to dispose of drugs. That stuff is coming out one way or another. These cops did not have the decency to wait, the sense to do an x-ray, or think get a warrant. In the words of the Sixth Circuit Judge John Rogers:When less intrusive means to investigate were available but not used and when the prosecution has other ways to establish guilt, this diminishes the weight that should be given to using an involuntary and invasive medical procedure to further society’s interest in fairly and accurately determining guilt or innocence.
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Court must consider the nature of the prior forum
Intervenor moves pursuant to CPLR § 3212 for summary judgment dismissing Plaintiff's complaint seeking foreclosure of a mortgage against her home which was fraudulently given by movant's son, Defendant, and declaring that such fraudulently obtained mortgage and the fraudulent deed...
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