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SCOTUS Holds Over Bernard Appeal Until December 11

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Last Friday, the United States Supreme Court held conferences on a variety of petitions for review. One of those petitions was the Bernard case (the Court was also reviewing several other cases challenging the constitutionality of DWI test refusal laws).  This morning, the Court released a list of cases that had been denied review as a result of last Friday's conference. Bernard was not on the list - the Bernard case, and all the other DWI test refusal cases, were continued on for another conference on December 11, 2015 (this upcoming Friday). Why was it continued? It is impossible to say. However, those with experience with the Supreme Court typically see their cases continued for several conferences before the Court ultimately grants review, so this development can at least be considered promising. One thing is certain - DWI test refusal appeals are still alive and pending, and none of the ones we are watching were denied review . . . so once again, it is a waiting…

Europäischer Datenschutzbeauftragter: weitere Dokumentation zu Datenschutz und Big Data veröffentlicht

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Der Europäische Datenschutzbeauftragte (EDSB) veröffentlichte am 2. Dezember 2015 eine Pressemitteilung, einen Videokommentar sowie eine weitere Stellungnahme zu Datenschutz und Big Data: „Opinion 7/2015 - Meeting the challenges of big data. A call for transparency, user control, data protection by design and accountability". Der EDSB hält darin u.a. folgendes fest: Datenschutzgesetze seien auf Big Data anwendbar; es stelle sich jedoch die Frage, wie diese „wirkungsvoll“ angewendet werden können. Aktuelle Datenbearbeitungsgrundsätze wie Transparenz bzw. Erkennbarkeit, Verhältnismässigkeit sowie Zweckbindung müssen durch „neue Grundsätze“ wie Accountability, privacy by design und by default ergänzt werden. Konkret müsse eine verantwortungsvolle sowie nachhaltige Entwicklung von Big Data auf den vier nachfolgenden „zentralen Elementen“ beruhen: Transparenz: Den…

Skiing, Snowboarding and Sledding DUIs

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Winter is here in Minnesota, and the presence of snow means it’s time to break out our favorite seasonal toys and enjoy some winter activities. For some, their favorite activity involves lighting a fire and staying warm inside, but many Minnesotans like to get outside and enjoy some winter sports. Whether it’s skating, ice fishing or hitting the slopes, there are plenty of ways to stay entertained during the cold winter months. The problem occurs when you mix winter activities and alcohol. We’ve already discussed how you can get a DUI on a snowmobile on our site, but what about other winter activities? Can you get a DUI on or snowboard? While you’re on skis? Or when you’re sledding down the hill with friends? Snowboarding and Skiing DUI The straightforward answer to the question is no, you can’t get a DUI on a snowboard. Under Minnesota law, a person needs to be operating a motor vehicle in order to be charged with a DUI.…

Probable Cause When Investigating Theft Crimes in Massachusetts

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In Commonwealth v. Fasanelli, a Massachusetts defendant appealed after convictions for breaking and entering and larceny. The case arose in 2012 when a police officer sitting in an unmarked car was monitoring a residential area of Malden for suspicious activities and break-ins. He saw two men approaching from behind the car and witnessed them walk past a particular house before turning back and entering the porch. A minute later, they left the porch and returned the way they came. The officer drove around, trying to find them, and contacted other officers to watch out for the men. He came back to the home where the men had entered the porch to talk to the homeowner. She later testified that she was preparing for the day when someone rang the doorbell. The doorknob jiggled. She opened the door and did not recognize the two men standing there. They asked for someone. and she didn’t recognize the name. They left. A second officer identified the two men who fit the…

How a Violent Crime Conviction Could Affect You for the Rest of Your Life

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The term “violent crime” is thrown around a lot, but few people understand that it does not simply refer to any crime that involves violence. A violent crime in California refers to crimes defined under Penal Code 667.5(c).1 Some of the more common violent crimes include murder, voluntary manslaughter, and rape. But you may be surprised to hear that robbery, carjacking, and extortion are also considered violent offenses. A violent crime is serious, and the penalties—both immediate and long-term—are harsh and potentially life shattering. If you are being charged with a violent crime in California, immediately contact a criminal defense attorney who can begin helping you with your case. The Punishments Associated with Violent Crimes Separate from the prison sentence and fines that you face for the crime itself, a violent crime carries with it a number of additional potential penalties. First, depending on the underlying crime, your sentence could be…

Top-Ten Recent SSRN Downloads

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in criminal law and procedure ejournals are here. The usual disclaimers apply. A list for the ejournal focused solely on criminal procedure is here, and for the ejournal focused solely on criminal law is here. Rank Downloads Paper Title 1...

The Texas Online Impersonation Statute May be Unconstitutional

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  Texas Penal Code 33.07  potentially criminalizes speech that is protected under the First Amendment.  Furthermore, it is overbroad.  The statute is so sweeping it would appear on its face to potentially criminalize satirical websites, Twitter or Facebook accounts aimed at politicians or other public figures. 33.07 was adopted in 2011 and higher courts have not yet ruled upon its constitutionality.  The Fourteenth and Fifth Courts of Appeals have avoided addressing the First Amendment claim on jurisdictional or other procedural grounds. The Statute ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to: (1) create a web page on a commercial social networking site or other Internet website ; or (2) post or send one or more messages on or through a commercial social…

News Scan

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ISIS Targeted Refugee Program in Enter US:  The head of the House Homeland Security Committee said Monday that the U.S. government has information indicating that individuals tied to Syrian terrorist groups gave attempted to exploit the refugee program to gain access to the United States.  Julian Hattem of The Hill reports that Rep. Michael McCaul (R-Texas), speaking at the National Defense University, did not go into details nor did he reveal who specifically provided the information, describing sources only as "elements of the intelligence community."  The debate surrounding Syrian and Iraqi refugees intensified following the terror attacks in Paris last month and in San Bernardino last week, with critics warning that the program is vulnerable to infiltration by Islamic State adherents.  President Obama is determined to bring in 10,000 Syrian refugees over the next year, and Republicans and Democrats alike are "wary of the president's…

Man Charged with DUI in Connecticut Following Police Chase that Results in Rollover Accident

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On Saturday evening December 4, a man was arrested in Waterford following a police chase that led to a rollover accident. Dylon M. Goss, 22, of New London reportedly fled police after he was spotted driving in an erratic manner on Route 1 near Clark Lane. News reports state the incident occurred at about 10 p.m. Goss allegedly accelerated when Waterford police pulled behind his vehicle in the area of Willetts Avenue. As the chase continued, the vehicle eventually rolled over onto its side. There were four passengers in the vehicle according to news articles, one of whom sustained minor injuries and was transported to a local hospital. Dylon Goss has been charged with driving under the influence of alcohol and/or drugs, engaging an officer in pursuit, risk of injury to a minor, reckless endangerment, improper turn, operating without a license, and more. He is scheduled to appear in court on December 14th after posting a $500 bond. In the state of Michigan, driving while under…

HOW THAT FOOL JUDGE HOLDER AIMS FOR JUSTICE BY TRUMPING THE CRIMINAL SENTENCING GUIDELINES

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Judges - some are good, some are bad, some are smart and still others are just fools. Let's take a look at Circuit Judge Holder, a fool if there ever was one. For most criminal judges in Florida finding justice for criminal defendants is quick and easy, it's all about calculating the guideline ranges and like a machine spitting out the highest prison sentence possible. Smart judges know you can never give too much prison time to a defendant as it never pays in the end to show too much compassion or to look too deep into the facts and circumstances of a case. Real justice practiced by smart judges in Florida is all about being re-elected preferably without any opposition. The best way to do that is not to take any undo risks with those damned defendants who'd enjoy nothing more than spoiling their breakfast newspaper time with some new sordid crime followed in section B.Donkey Wonder Fortune Teller Calculating Machine Used By Florida Judges to Calculate…

My Spouse Has Been Arrested in Las Vegas. What Are Their Rights?

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When Las Vegas law enforcement takes your husband, wife or underage child into custody, it may seem that along with the arrest comes an automatic loss of all freedoms. However, this is a misconception. Any detainee, young or old, will enjoy certain protections and civil rights while they are in police custody. Here are some things that any spouse or parent will need to know. An Adult’s Arrest in Las Vegas Immediately following a Las Vegas arrest, the police will transport the alleged offender to the Clark County Detention Center for booking. There, during an extended and frequently tedious process, they will assign a booking number. They will also take fingerprints and photographs while experts comb databases in search of outstanding warrants in the detainee’s name. At the conclusion of this procedure, they will send the defendant to a holding cell to await arraignment. If the booking takes place on a weekend or holiday, the initial court appearance will not occur…

Social Media & Criminal Proceedings: What Is Evidence?

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Today’s technology can be both a blessing and a curse. Most Americans use social media to some extent, but many are unaware that nothing they post is ever entirely private. While information may be hidden from their family and friends,…Read more ›

U.S. Supreme Court agrees to hear False Claims Act Case

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The Supreme Court agreed to hear a case involving Universal Health Services who is accused of violating the False Claims Act.  The Court agreed to decide whether an implied certification theory is viable cause of action under the FCA. The Seventh Circuit Court of Appeal, which reviews district court cases including those out of the Northern District of Illinois, which includes Chicago, has found that a theory of implied certification is not a viable theory under the False Claims Act, even though other circuits such as the First Circuit have permitted such theories.  The Supreme Court also agreed to decide, if an implied certification theory is viable, if claim can be false if the defendant failed to comply with a rule or regulation even if that rule or regulation does not state that compliance with it is a condition of payment. The Seventh Circuit in United States v. Sanford-Brown found that an implied certification theory cannot be pursued under the False Claims Act…

60 Minutes: The Dangers of Law Enforcement’s Use of Confidential Informants

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The criminal justice system’s dependence on informants—supposed witnesses who work or testify for law enforcement or prosecutors in exchange for favors, such as reduced sentences in their own criminal cases—is a real problem with sometimes devastating effects. Certainly, informants have contributed to innocent people being wrongfully convicted. According to Innocence Project data, informants play a role in 15% of the 334 cases eventually overturned by post-conviction DNA evidence in the United States. In all of these cases, the informant system served only to compromise the integrity of the justice system and to ruin lives.  Sunday’s episode of 60 Minutes reported that the U.S. criminal justice system continues to enforce an informant-based system despite the widespread damage that it’s caused. According to the story, police departments and drug tasks forces are pressuring young people charged with minor drug infractions into either becoming…

The “Cannibal Cop” Case: A Study in the Sweep of the Computer Fraud and Abuse Act

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On December 3, 2015, a divided panel of the Second Circuit Court of Appeals cleared Gilberto Valle, sensationally dubbed the “Cannibal Cop” by some in the media, of the two charges against him, conspiracy to commit kidnapping and a violation of the Computer Fraud and Abuse Act (CFAA). Although the kidnapping charge is certainly more lurid, the CFAA charge has wider implications for online freedom of speech and action, and highlights a division in the courts between those that interpret the law as making many if not most Internet users into federal criminals, and those that take a narrower view of the CFAA. According to the court’s opinion, Valle was a New York City police officer with a penchant for spending time late at night in unusual corners of the Internet. Specifically, he was constructing elaborate fantasies with other users on a fetish forum in which they would kidnap, assault, kill, and eat various women with whom Valle was acquainted. These fantasies…

Three Texas counties make the list of America's deadliest counties for police killings

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Texas has the dubious distinction of being the second-most represented state (after California) on the Guardian’s listof “America’s deadliest counties for police killings this year.”  The three Texas counties that made the 14-county list of counties with 10 or more deaths are Dallas County (.5 deaths per 100,000 residents), Tarrant County (.5) and Harris County (.4).These three counties also account for just less than half of the officer-involved shootings I’ve been tracking since the new reporting law went live in September.  Since reporting began, 43 incidents have been reported, with ten of those out of Harris County, six out of Dallas County and three out of Tarrant County.  As a point of comparison, I looked at the listof the most dangerous cities in Texas, which was compiled from the FBI’s 2013 Uniform Crime Reports.  Houston-The Woodlands-Sugar Land (which Harris County is part of) comes in at number 3 on that list,…

Two vehicle crash near Kimberly.

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IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000 Fax (208) 324-7897 For Immediate Release: December 8, 2015 - 10:00 a.m. Please direct questions to the District Office On Tuesday, December 8, 2015, at approximately 6:52 a.m., the Idaho State Police investigated a two-vehicle, injury crash at Red Cap Corner near Kimberly. Robert Gaudette, 60, of Twin Falls, was driving a 2000 Cadillac Deville southbound on North 3500 East Road approaching the intersection of Kimberly Road. Samuel Draper, 27, of Kimberly, was driving a 1997 Subaru Outback northbound and attempted to make a left turn onto westbound Kimberly Road when his vehicle was struck by Gaudette's. Gaudette was transported via ground ambulance to Saint Luke's Magic Valley Medical Center in Twin…

"The Path to Exoneration"

Which States Have The Strictest Speeding Laws?

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The most commonly committed crime in the United States is speeding. In fact, the majority of Americans fully admit that they break the posted speed limit on a regular basis. If you’re a regular driver, you probably know certain areas or towns where speed traps are common. You’ll slow down and be extra careful when driving through these areas, but what about the United States as a whole? Which states are the strictest and most lenient when it comes to speeding? We explain in today’s blog. The Best and Worst State For Speeders To determine which states are the hardest on speeders, WalletHub.com looked at the driving laws, fine amounts, reckless driving penalties and overall speed enforcement for all 50 states and the District of Columbia. Here’s a look at the top ten strictest states on speeders. The sub rank of “Reckless Driving Penalties” and “Speed Enforcement” made up the overall score: 1. Colorado – Tied for 2nd…

Hawaii Decriminalized DUI Chemical Test Refusal

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According to the Hawaii Supreme Court, a person can no longer be subject to criminal action for refusing a chemical test under Hawaii’s implied consent law. In 2011, Yong Shik Won was arrested for driving under the influence. After being transported to the police station, he was provided a form which explained that, by virtue of having a driver’s license and operating a vehicle, he had impliedly consented to giving a chemical test following a DUI stop. The form also stated that Won was not entitled to an attorney prior to providing the chemical sample and that refusal to submit to a chemical test could subject him to criminal punishment. Unlike many states, including California, Hawaii’s legislature in 2011 made it a petty misdemeanor to refuse a chemical test following a DUI stop. The penalties for a petty misdemeanor are 30 days in jail and/or a $1,000 fine. Won was convicted and his appeal made it all the way up to Hawaii’s Supreme Court. "This…
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