In State v. Baity, the Washington Supreme Court found the basis for HGN testing, that intoxicated people will exhibit nystagmus, to be generally accepted under Frye. Baity also addressed the admissibility of the 12-step DRE examination, of which HGN was one step, employed by police officers to detect behavior associated with certain drugs and held that it constituted novel scientific evidence. The Court also placed clear limitations on officer testimony based upon this scientific testing. Michael Baity and Edward Arnestad were each charged in separate prosecutions for driving under the influence of alcohol or drugs (DUI). In November 1997, Edward Arnestad was arrested after he rear-ended another vehicle that had been stopped at a traffic light. Arnestad had slurred speech, watery eyes and smelled like alcohol. He subsequently failed the voluntary field sobriety tests and was cited for DUI. Two months later, in January 1998, Michael Baity was arrested and cited for DUI and…
Case Summary: State of Washington v. Michael Baity and Edward Arnestad
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Roth on Marijuana and Impairment
Andrea L. Roth (University of California, Berkeley - School of Law) has posted The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness (California Law Review, Forthcoming) on SSRN. Here is the abstract: As the marijuana...
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Vanilla Ice Arrested for Home Burglary in Florida
Robert Van Winkle, better known as ‘90s rapper Vanilla Ice, was arrested Wednesday, February 18th, and charged with burglary of a residence and grand theft. Furniture, a pool heater, a bicycle, and other items were taken from a Lantana home; police believe that the burglary took place between December and February. The items were discovered when police searched a home owned by Van Winkle, and returned the items to their owner. He was released after posting a $6,000 bond, and told reporters that it was “all a misunderstanding.” Burglary In Florida, burglary involves being in a dwelling, structure, or conveyance with the intent to commit a crime inside. There are two ways to commit burglary: Unlawfully entering a dwelling, structure, or conveyance with the intent to commit an offense inside, or Lawfully entering, but then remaining in a dwelling, structure, or conveyance: Surreptitiously, with the intent to commit an offense inside, After permission to…
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Indonesia President: Religious Tolerance Best Response to Terrorism
Indonesia President Joko Widodo said this month Indonesia's approach to terrorism is one of tolerance, not security. President Joko “Jokowi” Widodo said on Wednesday that Indonesia practiced religious tolerance and was using... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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Pa. bill would mandate supervision for serious sex offenders
2-24-2015 Pennsylvania: Pennsylvania’s serious sex offenders would face three years of supervision following their prison sentences under legislation headed to the state House of Representatives. The House Judiciary Committee on Tuesday unanimously approved House Bill 446, a proposal that would require courts to impose the mandatory probation. Current law gives judges flexibility when
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Highlights From SEC Speaks 2015
Securities and Exchange Commission leadership and staff members addressed the public on February 20-21 at the annual “SEC Speaks” conference in Washington, D.C. Common themes among the numerous presentations included the Commission’s increasing use of data analytics, the Commission’s focus on gatekeepers such as accountants and attorneys, and the Commission’s still incomplete rulemakings mandated by both the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Jumpstart Our Business Startups Act. From a litigation and enforcement perspective, key takeaways from the conference include the following: SEC Chair Mary Jo White described the Commission’s significant accomplishments from 2014, including the adoption of Regulation Systems Compliance and Integrity, new rules governing money market funds, and new rules applicable to over-the-counter derivatives and credit rating agencies. Chair White also mentioned the consolidated…
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Facing Federal Charges? Research Indicates 99% of ALL Federal Defendants Will Be Sentenced!
Attorney Alan Ellis writes a monthly newsletter that includes information and tips on federal sentencing and post-conviction matters. I just read the following from his February edition: - Approximately 97% of all federal criminal defendants plead guilty. - Of those who proceed to trial, 75% are convicted. - Almost 99% will ultimately be sentenced. - Over 87% will be sentenced to prison. Yikes! Virtually every defendant in a federal criminal case will be sentenced? Is that really our experience in federal court? He is probably close. I think that 97% of all federal defendants likely do plead guilty. Why? Because they are guilty. The feds play a very different game than all other criminal prosecutors. They have unlimited investigative resources (translation - money). They can "hire" folks to act as undercover informants, who record every word you speak in their house, apartment or car. Or worse - in your house, apartment or car! And…
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ACI sex offenders may have had computer access
2-24-15 Rhode Island: CRANSTON, (RI) – The Rhode Island Department of Corrections suspended a long-running sex offender treatment program, and is conducting an internal investigation to determine if sex offenders or other inmates in medium security were given access to computers. Inmates are not allowed to use computers while incarcerated, and sex offenders getting on the internet would be
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The Curse of the In-Person Litigant
I guess I’ve been lucky because I have never had to do a trial where the opposing party acted in person, “pro se”, as they call it in the United States. Why lucky? Because some of the worst trial horror stories involve litigants acting for themselves while their spouse has to pay a lawyer hundreds of dollars an hour to respond to often marginally relevant or unreasonable litigation tactics. A good example is the case of G.T. v A.T. 2014 NY Slip Op 24035 where Mr. T., a well-educated engineer, just short a few credits for his doctorate degree, turned what should have been a three-day trial into a 12-day debacle. Judge H. Patrick Leis III of the New York Supreme Court described Mr. T.’s behaviour in the opening paragraph of his Reasons: “This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never…
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FBI Announces San Diego DMV Hearing Officer Pleads Guilty to Bribery in Federal Court, part 3- How to Win DMV APS Hearings Fair and Square
This is the third blog post on the former DMV Driver Safety Officer that plead guilty to bribery charges on February 3, 2015. Ms. Benavidez resigned from her position in December of 2014 after the FBI raided her home and office. Ms. Benavidez, as part of her guilty plea, admitted to inappropriately issuing temporary driver's licenses, granting suspension set asides when not warranted, and disposing of DUI driver files before they could be entered into the DMV computer system. Please note that I learned a competitor was copying and pasting this original post. I spent years litigating and studying administrative law (that governs DMV hearings), as well as traveling all over California to hear other attorneys lecture on this topic. I maintain close relationships with attorneys in California to discuss developments in DMV APS hearings, and also discuss winning strategies. The first part of the blog series touched the effect of the license suspension on…
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Be Nice: the NYPD Gets Transcendent
The NYPD has instituted a new "be nice" retraining program. According to the NY Post, the City has started a mandatory three-day retraining program for 22,000 police officers in the wake of the Eric Garner killing, designed to teach officers how to deal with angry civilians. Apparently, the original course was so stultifyingly dull that officers were falling asleep. In an attempt to juice it up, the NYPD is now showing inspirational clips, such as the following two minute bit from the classic Patrick Swayze film, Roadhouse.To be fair, the story did run in the Post; a daily paper not exactly renowned for its dedication to accuracy or objectivity. Politically speaking, the paper tends to be a big supporter of the rank and file, and is quick to denigrate Mayor de Blasio whenever the opportunity presents itself. Thus, the story may well be true, but then again it may not.What is certainly true, as I've learned over the years in deposing police officers, is that the…
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Jefferson-Bullock on Excessively Long Sentences
Jalila Jefferson-Bullock (Arizona Summit Law School) has posted The Time is Ripe to Include Considerations of the Effects on Families and Communities of Excessively Long Sentences on SSRN. Here is the abstract: It is well established that the United States...
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Tuesday Night Open Thread
The Voice is on fire this season. Incredible performers, and I'm glad to see Christina Aguilera back -- it's not really The Voice without her. This is an open thread, all topics welcome. [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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Massachusetts Supreme Judicial Court Affirms Chelsea Car Passenger’s Drug Conviction
The Massachusetts Supreme Judicial Court today affirmed the drug conviction of a man who was a passenger in a car that contained a bag of PCP. The name of the case is Commonwealth v. Cullity. After waiving his right to a jury trial, the defendant was convicted by a district court judge of possession of a class B substance (PCP). The Appeals Court reversed, holding that the evidence at trial was insufficient as a matter of law to sustain the conviction. The Commonwealth then appealed to the Supreme Judicial Court. A Massachusetts state trooper was on patrol in Chelsea in 2010 when he saw a car being driven with a broken headlight. The trooper stopped the car and approached the driver’s side window. He detected a strong odor of a freshly burned substance and observed the defendant sitting in the front passenger seat. The defendant was not wearing his seatbelt, he had watery and bloodshot eyes, and he appeared to be lethargic. …
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"Can prisons predict which inmates will commit more crimes?"
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Ginning Up the Base
Courtesy of Huffington PostI have always loved the NY Post. Not because of it's great writing or enlightening reporting. And no, not for the gossip, although it's certainly salacious. Rather, I am a long-time fan of the paper's headlines. Eschewing any sense of "integrity," the Post abandons any pretense that it exists for any reason other than to sell papers and agendas. Towards that end, they have some great headlines.Their stories often follow suit. For instance, on January 29, 2015, the NY Post ran a story about Ruhim Ullah, the machete man, if you will. According to the Post, Ullah menaced a police officer with a machete, causing the officer to shoot him in self-defense. Ullah then sued the officer for shooting him, and ultimately settled for $5,000. The author of the article, Selim Algar, wrote that Ullah's own lawyer had admitted the shooting was justified; a statement that made the already seemingly ridiculous lawsuit even more absurd.…
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News Scan
Crime Victims to Testify Against Obama Immigration Policies: Family members of those killed by illegal immigrants released under President Obama's immigration policies will testify at a Congressional hearing Wednesday morning. Joel Gehrke of the National Review reports that of the 36,000 convicted illegals released by the Department of Homeland Security since 2013, 1,000 of them have been arrested and convicted of crimes. The crime victims' families are hopeful that their testimony will encourage sensible immigration reform.Bills Require Lifetime Tracking Of Sex Offenders: A group of Florida lawmakers have introduced a pair of bills that would require convicted sex offenders to wear or carry an electronic monitoring device for the rest of their lives. Anneliese Delgado of WOKV News reports that under the legislation, sex offenders would wear the GPS device even after they have completed their court-ordered probation, and would also be…
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Las Vegas "Road Rage" Killing Actually Self Defense?
People all across the country have been shocked by a seemingly senseless fatal shooting in Las Vegas, NV, one which apparently stemmed from an earlier road rage incident. As our Palm Beach and Broward County criminal defense lawyers know, no case is straight-forward; one must consider all possibilities and angles when analyzing a criminal case, especially one involving charges of murder. While first reported as a clear-cut road rage-fueled shooting, the defense attorney for the 19-year-old defendant is now saying that the shooting was in fact carried-out in self defense.
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Report Shows Lake County Leads State in DUI Arrests
According to the Alliance Against Intoxicated Motorists ("AAIM"), a non-profit citizens action group that has tracked Illinois DUI arrests since 1982, Lake County made the most DUI arrests in the state in 2013. The 233 officers averaged 1.49 arrests per officer, bringing the total number of arrests to 348. Right behind Lake County was Cook County. However, Cook County has more officers in their force. The statistics state that Cook County's 487 officers made 306 arrests, which is an average of .63 arrests per officer. AAIM determined that the Chicago Police Department, with roughly 12,000 officers, made approximately 3,400 DUI arrests. The rate of .28 arrests per officer pales in comparison to Lake County. DUI fatalities in Illinois were down 38% from the last decade. However, the seemingly sharp decline in drunk driving may be due to the lack of arrests by some police departments. Although there is a decrease in DUI fatalities, drunk driving is still a major…
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CPLR §2221 and 4404(a) ...cont
The jury's failure to award damages for past pain and suffering that adequately compensates plaintiff for the pain and suffering and loss of enjoyment of life she experienced from the date of the accident to the date when the jury rendered its verdict, which covered a period of approximately six years, constitutes substantial injustice. In addition, the evidence presented by him regarding the permanency of her medical condition was not challenged by medical testimony offered by defendant disputing the permanency of her condition. Therefore, this court also finds that the failure to award damages for future pain and suffering, future loss of earnings, and loss of consortium is against the weight of credible evidence. The determination that a jury's award deviates materially from what would be reasonable compensation requires an evaluation of prior awards in similar personal injury cases which is utilized to provide guidance to the court in resolving disputed…
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