As New Jersey drunk driving defense attorneys and experienced trial lawyers, my legal team knows quite a lot about the penalties that convicted drunk drivers face based on our state's DWI laws. Aside from monetary penalties that can total upward of thousands of dollars in fines, fees and auto insurance premium assessments, license suspensions are quite common and jail time is sometimes attached, depending on the particular circumstances. Suffice it to say that New Jersey is not very easy on drivers convicted of operating a motor vehicle while intoxicated.
When it comes to a potential license suspension following a DWI guilty verdict, the current laws are rather strict, which anybody who has been found guilty of driving under the influence would likely attest. Still, there is a bill making its way through the legislature in Trenton that may seem bit more onerous, but which may make more sense to the many motorists who will be convicted of alcohol-related DWI in the future. We'll add that some have already said the bill as it is currently written is flawed.
These days, as any qualified drunk driving attorney will tell you, the minimum license suspension for a convicted first-time offender is three months, and that's if the defendant's blood-alcohol content (BAC) as measured by police is between 0.08 and 0.10 percent. If the measured BAC is 0.10 percent or above, then even a first offense will net a driver a minimum of seven months' loss of driving privileges. Depending on the situation (such as offenses that occur within 1,000 feet of a school zone), that suspension period can be as long as 12 months.
Pending New Jersey DWI Legislation Calls for Mandatory Ignition Interlock Devices, Reduced License Suspension Terms
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Is Reckless Driving a Felony?
No. Reckless driving in Virginia is a misdemeanor offense. It is a charge where you’re facing the maximum of one year in jail, up to a $2,500.00 fine and up to six months loss of your driver’s license. The difference between a misdemeanor and a felony is that a misdemeanor’s maximum punishment is up to […]
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Missouri Corrections Chief Testifies at Legislative Hearing
"Corrections chief defends Missouri's execution process," is by Jordan Shapiro of Associated Press, via the Springfield News-Leader. It's also available via the Daily Record. Missouri’s top corrections official defended the state’s execution procedures while telling lawmakers Monday the state could...
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Former Mayor Arrested on Mortgage Fraud, Identity Theft, and Obstruction of Justice
Andrew Lucas, 36, the former mayor of Manalapan, New Jersey, was arrested on charges that he submitted falsified 2007 and 2008 tax returns in order to purchase a farm property in Manalapan and that he provided federal investigators and a federal grand jury with a fabricated document in 2013. The defendant was arrested as a […]
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D.Kan.: USMJ in Kansas couldn't issue SW for property moved to Oklahoma; complete jurisdictional failure
Officers obtained a search warrant for defendant’s computer in Kansas for child pornography. When they got to the house, defendant was gone, visiting in Oklahoma, his roommate said, with the computer. Officers went back to the magistrate and got another search warrant for the house in Oklahoma where defendant was staying, but they were to search only for defendant’s computer. The search warrant was issued without authority, and even the good faith exception won’t save it even though this was all clearly done in good faith. United States v. Krueger, 2014 U.S. Dist. LEXIS 15495 (D. Kan. February 7, 2014):
=> Read more!
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McGregor Passes New Sex Offender Ordinance
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If you like paternalism and hate big business...
then you are on the same page as Patrick Kennedy and Project SAM as well explained in this amusing and telling segment from last night's Colbert Report.
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D.Minn.: Synthetic Drug Abuse Prevention Act was effective July 9, 2012, so SW issued July 20th was valid
The Synthetic Drug Abuse Prevention Act was effective July 9, 2012, not October 1st as defendants contend. Therefore, the search warrant for synthetic drugs was properly issued on July 20, 2012. United States v. Riley, 2014 U.S. Dist. LEXIS 15588 (D. Nev. February 7, 2014), following United States v. Carlson, No. 12-cr-305-DSD-LIB, 2013 U.S. Dist. LEXIS 130253, 2013 WL 5125434, at *21 (D. Minn. Sept. 12, 2013).
Defendant’s stop was based on whether the court believes the officers that the tag light was out, and it does. United States v. Broadwell, 2014 U.S. Dist. LEXIS 15215 (M.D. Ga. February 6, 2014).*
Defendant’s consent to search is found voluntary. United States v. Watkins, 2014 U.S. Dist. LEXIS 15792 (W.D. N.Y. February 7, 2014).*
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Rare self defense finding by grand jury in no-knock raid resulting in deputy's death
A Burleson County grand jury ruled Henry Magee acted in self defense when he shot and killed a Sheriff's deputy during a SWAT raid on his home based on an informant's misinformed testimony. Turned out, he had a pair of six-inch pot plants in the house, not the large-scale grow the informant had claimed. He will still be prosecuted on drug and weapons charges, says the local DA. See Radley Balko for more.The episode may portend changes both in public perceptions about personal use levels of marijuana as well as unjustified deployment of no-knock raids. The Bryan College Station Eagle's editorial board called the grand jury "courageous" for their decision, opining that "there was no reason to employ a no-knock warrant on the home of Hank Magee. Officers could have knocked and waited for him to answer. They could have waited until he left his home. There was no advantage in not waiting, in not knocking."
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Oklahoma Senate bill makes it harder for sex offenders to hide past
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Vandalia DUI Attorney Charles M. Rowland II
Vandalia DUI Attorney Charles M. Rowland II has represented clients in the Vandalia Municipal Court since 1995. He limits his practice to OVI defense and stays on the cutting edge of OVI forensic science and the tactics necessary to defend your case.
Vandalia Municipal Court’s jurisdiction serves approximately 83.5 square miles, which includes the Cities of Vandalia, Englewood, Clayton, Union and the Townships of Harrison and Butler, located in the Montgomery County, Ohio. The Court is located [Read the full post. . .]
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Petition Aims to Decriminalize Marijuana and Change Alabama Sentencing
Marijuana legalization in Washington and Colorado has incited debate throughout the country. Can a distributor be arrested and charged under federal law? How does the legal sale of marijuana implicate national banks and business owners? What are the social ramifications of legalization? While everyone seems to take a position on this issue, whether for medical … Continue Reading
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Wild, Wild West: The Legalization of Marijuana Brings Lots Of Regulatory Concerns
The beginning of 2014 has brought many new laws into effect and we have written on a number of them. But few laws have received more mainstream media exposure than Colorado’s legalization of recreational marijuana. Of more importance to us, the legalization of recreational marijuana has posed some interesting problems for regulators. The most obvious […]
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Will I be Able to Travel With Shoplifting Charges?
If you’re charged with shoplifting in Virginia, you may be wondering whether or not you can travel while your case is pending. The short answer is that it depends. This is an important reason to consult an attorney. Give me a call early on so we can look at your case and answer this question […]
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Criminal Email Harassment in Maryland
Criminal harassment charges in Maryland are not limited to instances in which someone harasses another person in person by following them or committing physical acts against his or her body. In a recent complicated criminal case, the Maryland Court of Special Appeals considered an email harassment case. The defendant in the case had tried to […]
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The Locked iPhones, Search Incident and the 4th Amendment
After he was “charged in a one count indictment with knowingly and intentionally distributing heroin in violation of 21 U.S. Code § 841(a)(1)”, Christopher Williams filed a motion to suppress “all evidence discovered after police seized and searched his cell phones following a traffic stop of a vehicle in which [he] was a passenger.” U.S. v. Williams, 2014 WL 412526 (U.S. District Court for the District of Vermont 2014). According to the opinion, this is how Williams came to be prosecuted: On . . . February 7, 2013, Vermont State Police (`VSP’) Trooper Michael Studin was travelling northbound on Interstate 91 in Vermont when he stopped a motorist for an alleged violation of 23 [Vermont Statutes Annotated] § 1038, which requires that vehicles remain entirely in a single lane `as nearly as practicable.’ In the location of the traffic stop, I–91 is a two-laned highway which is separated from two lanes of southbound traffic by a large median. There was light traffic on the day in question and the weather and pavement were clear. Studin was driving in the passing lane when he approached a vehicle with out-of-state plates which he recognized as a rental car by the placard in its rear window and because the make and model . . . were typical for a rental car. He observed the vehicle `coming close to the dotted center line,’ . . . and maneuvered his cruiser behind [it]. Shortly thereafter, he purportedly observed the vehicle cross the passing lane demarcation and initiated a traffic stop on that basis. At the time, there was no other traffic with which the target vehicle could potentially collide. . . . After effecting the stop, Studin exited his cruiser, approached the passenger side of the vehicle, and observed [it] was occupied by two males. [Williams] was the passenger and was seated in the front of the vehicle with the driver. Studin asked the driver for his identification and asked to whom the vehicle was registered. The driver provided a New York driver's license and [said] the vehicle was rented by his passenger's girlfriend. . . . Studin noticed `an overwhelming odor of burnt marijuana coming from the car’ and observed `flakes of marijuana’ on [Williams’] clothing and on the floor. . . . Studin asked whether they had been smoking marijuana in the car, and [he] stated they had `rolled a blunt’ and smoked it as they were traveling north. Studin asked about the purpose of their trip. [Williams said] he was confined to a wheelchair and they were traveling to Saint Albans . . . to retrieve a wheelchair for his use. Studin asked for identification from the [Williams], who denied having photo identification but [said] his name was `Christian Wilson.’ Studin then explained to the men that he stopped the vehicle because it had `drifted into the other lane.’ . . . The driver explained that he was considering changing lanes but decided not to. U.S. v. Williams, supra. Studin then “ordered” the driver to get out of the vehicle, after which the driver consented to a search of his person and was placed in the front seat of the cruiser. In response to questions, the driver [said they] were from New York and . . . the trip was . . . to pick up a wheelchair. The driver further advised that the marijuana belonged to [Williams]. Studin asked for the driver's consent to search the vehicle. [He] consented . . .but [said] Studin should request [Williams’] consent as well because [his] girlfriend rented it. VSP Sergeant Eric Albright arrived to assist. . . . After Studin advised him of the situation . . . Albright stated he had received an email describing an individual `from the New York City area that was traveling to the St. Albans area who was confined to a wheelchair.’ . . . He retrieved the email, which provided a description that matched the passenger and identified the person as Christopher Williams. As a result of these facts, Studin determined that the passenger had provided a false name and was actually [Williams]. At approximately 4:15 p.m., Studin went back to the vehicle and obtained [Williams’] written consent for a search of [it]. [He] signed the consent form as `Christian Wilson’ and [said] the marijuana belonged to the driver. Studin helped [Williams] exit and instructed him to leave his cell phone in the vehicle. Thereafter, law enforcement searched the vehicle's interior and discovered three cell phones: two iPhones and a flip phone. [Williams] claimed ownership of all three phones and did not consent to a search of them at that time. U.S. v. Williams, supra. After the officers searched the vehicle, Studin confronted [Williams] with the information obtained from the email and [he] admitted his true identity. The driver was given a written warning for violating 23 Vermont Statutes Annotated § 1038. [Williams] and the driver were detained and transported to VSP's Brattleboro barracks. U.S. v. Williams, supra. Williams was searched at the barracks and the officers discovered marijuana on his person. Studin processed [his] cell phones and observed multiple incriminating text messages stored therein. Studin [said] he did not manipulate the cell phones in order to access the messages as they were `clearly visible on the screen . . . without having to do anything to them.’ . . . This was a result of a notification system built into the iPhones that automatically displays missed calls and text messages on the main screen even when the phone is password protected and locked. Studin testified [at the hearing on the motion to suppress] that the iPhone screens should have been dark because they had not been in use for an extended period of time and he was unsure how [they] became illuminated such that the messages were visible. As for the flip phone, Studin opened [it] to determine whether it was on, at which point he observed additional messages. Studin did not take photographs of the text messages, but took notes and incorporated them into his report. U.S. v. Williams, supra. Officers also contacted Detective Matthew Plunkett with the Northern Vermont Drug Task Force who reported that he had conducted a controlled purchase of heroin from [Williams] approximately nine months prior to the traffic stop as part of a federal investigation. Thereafter, a decision was made to charge [him] for the prior sale of heroin. [Williams] was formally arrested for that crime within an hour or two of the traffic stop. U.S. v. Williams, supra. After he was arrested, Williams was taken to a correctional facility where Detective Plunkett took custody of his three cell phones. Plunkett pressed the power button on the iPhones to illuminate the screens and photographed the incriminating messages, but was unable to search the iPhones further as they were password protected. Plunkett also searched the flip phone, which was not password protected, and reviewed its text messages and call log. The messages . . . `had [evidentiary] value where people were talking about stuff [Plunkett] believed to be drugs.’ U.S. v. Williams, supra. On February 8, 2013, Williams was “charged federally with the May 29, 2012 distribution of heroin.” U.S. v. Williams, supra. Because the federal authorities thought Williams may have concealed narcotics in his anal cavity, [they] obtained a search warrant to examine [his] body, using evidence obtained from [the] initial searches of [his] cell phones in [their] warrant application. Following [Williams’] initial appearance, the magistrate judge authorized agents from the Drug Enforcement Agency to take [him] into custody for the execution of the search warrant at a local hospital. . . . No further contraband was ultimately recovered from [Williams] as a result of the search warrant. U.S. v. Williams, supra. (For a similar warrant and search, check out this news story.) While he was at the hospital, “`expressed interest in cooperating’” with law enforcement, which led a federal prosecutor to contact his lawyer, who said Williams “might be” interested in cooperating. U.S. v. Williams, supra. Discussions between them led to the prosecutor’s asking if Williams would consent to a search of his cell phones, and he agreed, providing “the passwords for his two iPhones, which were searched and” later returned to him. U.S. v. Williams, supra. In his motion to suppress, Williams claimed the stop violated Vermont law because “touching the passing lane on a public highway does not constitute a motor vehicle violation under Vermont law.” U.S. v. Williams, supra. The prosecution claimed the “stop was justified because Studin had reasonable suspicion that the vehicle crossed the line in violation of 23 Vermont Statutes Annotated § 1038”, but the District Court Judge who has the case disagreed. U.S. v. Williams, supra. She found the vehicle “momentarily” touched a “passing lane demarcation”, which did not produce a failure to “remain entirely” in the proper lane. U.S. v. Williams, supra. So, she found the stop violated the 4th Amendment which meant Williams was illegally seized. U.S. v. Williams, supra. Williams consented to the search of the vehicle after being illegally seized, so he argued his consent was the product of the illegal seizure and the evidence discovered should be suppressed as a “fruit of the poisonous tree.” U.S. v. Williams, supra. The prosecution claimed his “detention was proper because he twice provided a false name to authorities in an effort to deflect an investigation of his activities.” U.S. v. Williams, supra. The judge agreed, noting that during the traffic stop, Studin had probable cause to arrest [Williams] for providing false information to a police officer based upon [his] identification of himself as `Christian Wilson’ and an email identifying a man who matched [his] description and travel plans as `Christopher Williams.’ . . . Searching the vehicle was thus proper . . . because it was objectively reasonable to believethat evidence of [Williams’] true identity may be discovered in the vehicle from items such as luggage tags, hotel invoices, credit cards, mail, or other documents bearing [his] name, even if law enforcement was more interested in evidence of other crimes. U.S. v. Williams, supra. That brings us to Williams’ argument that the officers’ post-arrest manipulation and inspection of his cell phones cannot be justified as part of a search incident to arrestbecause those searches lack a temporal proximity to his arrest and were not necessary for officer safety or to preserve evidence. He further argues that his subsequent consent to a search of his phones was tainted by the initial warrantless searches as well as by the use of evidence derived from the phones to obtain an intrusive search warrant of his body's cavities. U.S. v. Williams, supra. The prosecution argued, in response, that the officers’ initial searches of the cell phones' content were constitutional under [the Supreme Court’s decision in Arizona v. Gant], or, in the alternative, [Williams’] consent to a search of his phones five days after the initial search purged any conceivable taint. U.S. v. Williams, supra. As Wikipedia notes, search incident to arrest is an exception to the 4th Amendment’s default requirement that officers obtain a warrant before searching a place, a thing or a person. It allows an officer who has arrested someone to search the person and the area around the person; the justification is to find evidence to prevent it from being destroyed and/or to find weapons that could be used against the officer. You can read more about the exception in this prior post. In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court narrowed the exception somewhat, holding that police can search the passenger compartment of a vehicle, incident to a recent occupant's arrest (and therefore without a warrant) only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest. Arizona v. Gant, supra. The judge in this case did not address the search incident issue, as such. Instead, she found that [a]ssuming arguendo that law enforcement's initial searches of [Williams’] cell phones were unlawful, [his] subsequent consent to the search of the cell phones was voluntary and purged of any arguable taint. Upon his lodging at a correctional facility, [Williams] expressed to law enforcement his desire to cooperate. In the five days that followed his arrest, [he] appeared before a magistrate judge, was appointed experienced counsel, and was advised of his rights. . . . [He] was accompanied by counsel and presented with the option of providing consent under specific terms to which he and his counsel agreed. He was not forced to consent to the search or to provide the passwords that would permit it to take place. Instead, his decision to cooperate was a tactical one that he initiated. U.S. v. Williams, supra. So she held that “[b]ecause [Williams’] consent to search his cell phones was an act of free will untainted by the prior search, the exclusionary rule does not apply.” The judge therefore denied his motion to suppress. U.S. v. Williams, supra.
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Columbus, Georgia, Dentist Pleads Guilty to Tax Evasion
Last Thursday, Dayo Obebe of Columbus, Georgia, entered a plea of guilty to tax evasion in the U.S. District Court for the Middle District of Georgia. Obebe, a dentist practicing in Georgia and Alabama, operated Moon Road Cosmetic and Family Dentistry in Columbus and Brent Dental in Bibb County, Alabama, as noted in SF Gate. Obebe... Continue Reading
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Short Wins - We Aren't Dead Edition
Gentle readers,
The Courts of Appeal have been more diligent in issuing opinions than we've been in posting them. Apologies. As those of you who do trial work can understand, sometimes it's really hard to do anything other than eat and sleep when there are witnesses to prepare for and arguments to make. Alas.
That said, wow, these are a bunch of cases that a scholar of sentencing and supervised release law would love. Enjoy!
To the victories!
1. United States v. Pena, First Circuit: Appellant pled guilty to conspiracy to distribute and also to possession with intent to distribute a drug and was sentenced to 12 years' imprisonment. Because the plea proffer did not contain an admission that Appellant's actions resulted in the death of a person, and the government did not prove that element beyond a reasonable doubt, the sentence was vacated and the case remanded for resentencing.
Defense Attorney: Robert L. Sheketoff
2. United States v. Rodriguez-Santana, First Circuit: Appellant challenged the special sex-offender conditions of his supervised release. The First Circuit vacated the special condition that Appellant permit monitoring of any device with internet access or data or video storage or sharing capabilities because the government conceded that this condition may not be justified.
Defense Attorneys: Thomas J. Trebilcock-Horan, Hector E. Guzman, Jr., Liza L. Rosado-Rodriguez
3. United States v. Williams, Seventh Circuit: Appellant pled guilty to identity theft-related crimes and was sentenced to 56 months' imprisonment. That sentence was calculated using sentencing guidelines in effect at the time of sentencing, rather than at the time the crimes were committed. Because this resulted in higher sentencing guidelines, the sentence was vacated and the case remanded for resentencing.
4. United States v. Maynard Williams, Ninth Circuit: The Ninth Circuit reversed and vacated the district court's order revoking Appellant's supervised release. Appellant had entered an Alford plea. The Ninth Circuit held that such a plea is insufficient to prove commission of a state crime for purposes of a federal supervised release violation because the state itself does not treat such a plea as probative of the Appellant's guilt.
Defense Attorney: Alison K. Guernsey
5. U.S. v. Benns, Fifth Circuit: Appellant was convicted of making false statements on a credit card application. His sentence was reversed and the case remanded for resentencing because the district court improperly calculated the loss amount attributable to him.
6. U.S. v. Robinson, Fifth Circuit: Appellant was convicted of child pornography charges and sentenced to 720 months in prison. On appeal, the sentence was vacated and remanded because the trial court did not appreciate its authority to consider evidence of the Appellant's cooperation during sentencing.
7. U.S. v. Wooley, Fifth Circuit: Appellant was sentenced to 30 months imprisonment during a probation violation hearing. The trial court stated that it imposed that sentence because of the court's belief that Appellant had an untreated drug problem. The sentence was reversed because a sentencing court is prohibited from increasing or lengthening a prison sentence to promote rehabilitation.
8. U.S. v. Whitlow, Seventh Circuit: Appellant was convicted and sentenced for drug-related offenses. The Seventh Circuit remanded to allow the trial court to exercise discretion on whether to give credit for eight months Appellant spent in in pretrial custody.
9. U.S. v. Rouillard, Eighth Circuit: Appellants conviction for sexual abuse of an incapacitated person under 18 U.S.C. § 2242(2) was reversed and remanded. The Eighth Circuit, en banc, recently clarified the mens rea requirement of 18 U.S.C. §2242(2) and this development requires remand in this case because the Appellant's request for a jury instruction on his knowledge of the incapacity of the person was denied.
10. U.S. v. Mathauda, Eleventh Circuit: Appellant was convicted of various mail and wire fraud charges and sentenced to 252 months' imprisonment. The sentence was vacated and remanded for resentencing because the district court erred in adding a sentence enhancement for Appellant's alleged violation of a prior court order.
11. U.S. v. Hagman, Fifth Circuit: After pleading guilty to two firearms charged, Appellant challenged a four point sentencing enhancement for bartering 8 to 24 firearms. The Fifth Circuit vacated the sentence and remanded because the government failed to prove by a preponderance of the evidence that Appellant had possessed or unlawfully sought to obtain that many firearms.
12. U.S. v. Adkins, Seventh Circuit: Appellant pled guilty to receipt of child pornography and was sentenced to 210 months in prison and a number of special conditions. The Seventh Circuit vacated Appellant's sentence and remanded the case because one special condition - to not view or listen to any pornography or sexually stimulating material or sexually oriented material or patronize locations where such material is available - was unconstitutionally vague and overbroad.
13. U.S. v. Jordan, Seventh Circuit: Appellant was sentenced to 24 months in prison for violating terms of his supervised release. On appeal, he challenged the revocation of his supervised release arguing that the district court erred by considering hearsay evidence without first making the "interest of justice' finding required when the defendant was denied the right to question an adverse witness under the Federal Rules of Criminal Procedure. The Seventh Circuit agreed, and reversed and remanded.
14. U.S. v. Tucker, Eight Circuit: Appellant's sentence was vacated and remanded for resentencing because the elements under the Nebraska statute, under which Appellant was convicted, do not ordinarily encompass conduct that presents a serious potential risk of physical injury to another. Therefore Appellant inappropriately received an enhanced sentence under the Armed Career Criminal Act.
15. U.S. v. Ransfer, Eleventh Circuit: After a jury trial, Appellants were convicted of sixteen counts involving robbery, conspiracy, and using and carrying firearms. The Eleventh Circuit found that there was no evidence that one appellant, Lowe, took any action in furtherance of one of the robberies. His conviction was vacated on those related counts and the case remanded for sentencing.
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Florida Physician and Pharmacist Acquitted on 44 Counts Relating to Alleged Steroid Ring
As reported in the Palm Beach Post, this past Thursday, a jury in the U.S. District Court for the Southern District of Florida acquitted Dr. Timothy Sigman, an internist, and pharmacist Peter Del Toro on 44 counts of drug dealing for allegedly operating a steroid ring. The jury deliberated for over six days before returning... Continue Reading
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'Closing a troubled symbol of Texas juvenile justice'
Check out this excellent story by Maurice Chammah from the Center for Public Integrity examining the closure of the Texas Juvenile Justice Department's Corsicana facility, formerly the "Texas Orphan Asylum," examining the history of the facility and the problems that led to the Legislature finally closing it. The article opened:When the Texas Juvenile Justice Department released a report in June 2013 recommending the closure of the Corsicana Residential Treatment Facility, the authors presented an arresting image. The campus in Corsicana, Texas, they wrote, “continues to pose a risk to the vulnerable youth population it serves as hazardous debris and glass are continually unearthed after rain or strong winds.” The roughly 90 youths at the facility, most of whom had been diagnosed with severe mental illnesses and who had committed crimes, were using the glass and debris to "harm themselves." Many of the buildings, the authors noted, "warrant complete replacement." When Corsicana was finally emptied by the Texas Legislature in December 2013, many in the world of juvenile justice reform already viewed the facility as dangerous and unsalvageable. A federal Bureau of Justice Statistics report found that in 2008, 23 percent of Corsicana inmates reported having had sexual relations with staff. Violence was up as well; in 2012, the facility was responsible for 32 percent of all violent incidents in the juvenile justice agency, despite housing only 10 percent of the agency’s youths. It hadn't always been this way.
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More Pages to Explore .....
