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Cincinnati Enquirer: Ky. seizure laws under scrutiny by local lawmaker

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Cincinnati Enquirer: Ky. seizure laws under scrutiny by local lawmaker by James Pilcher: Kentucky law requires police and sheriff departments to report how much property and cash they seize and keep as the result of criminal investigations. But an Enquirer investigation found fewer than 30 percent of such agencies around the state actually sent in such accounts last fiscal year under a system that state officials describe as ‘sporadic’ at best.

2016.005: Conservatism in Court

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My argument in the Supreme Court of Georgia had me reflecting on three categories of conservatism: the social, the political, and the judicial. In Georgia, we were dealing with a law that forbade an adult communicating certain content (including descriptions of nudity) to a child online with the intent to arouse or satisfy the sexual desire of the adult or the child. While socially conservative libertarians can lay claim to the “political conservative” tag with just as much good faith as socially conservative authoritarian, I view political conservatism as lying closer to the authoritarian end of that axis. It may be that “politically conservative” has been used by so many disparate philosophies that it is devoid of meaning, but the political conservative would, in my view, view the suppression of perversion as a valid governmental goal. The social conservative might hear about the law and first think, “that’s outrageous; nobody needs to be…

New Jersey Court Reviews State Law Regarding Use of Drug Recognition Experts in DWI Cases

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The law of driving while intoxicated (DWI) in New Jersey gives the state multiple ways to establish that a defendant was impaired by alcohol or another drug. Blood alcohol content (BAC) is not required for prosecutors to obtain a conviction. Prosecutors can also offer testimony from an arresting officer describing a defendant’s performance on field sobriety tests, their behavior and demeanor, and other observations. Some police departments make use of drug recognition experts (DREs), officers with specialized training in identifying the effects of drugs other than alcohol. The New Jersey Appellate Division considered a defendant’s challenge to DRE testimony in late 2015 in State v. Vazquez, finding that New Jersey courts have recognized them as qualified experts. Prosecutors can use the New Jersey DWI statute to charge someone with driving under the influence of drugs (DUID), which requires proof that they were driving “while under the influence…

How Many Tests are Required Before a License is Suspended?

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The ability to drive is considered a privilege and not a right in the eyes of the law. As such, among other penalties, Maryland law allows officers the authority to suspend licenses for incidents involving driving under the influence. A recent case determined how far the state can go in requiring a driver take sobriety tests before suspending a license. Driver Passes and Refuses Tests The case arose when an officer stopped the accused for having an improperly fastened license plate. The officer, sensing the driver may have been impaired, had the driver perform the standard field sobriety tests. The officer did not smell alcohol on the accused and a BAC test came back under the legal limit. The accused then consented to a further “alcohol concentration test.” The accused took the test, which indicated zero breath alcohol concentration. Thus, the officer was confused, as he believed the driver to be intoxicated but the tests demonstrated otherwise. The officer then…

Can the Police Stop Your Car and Search it for Because the Driver Might be Texting? Federal Court of Appeals Says “No”.

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Here in Atlanta and the rest of Georgia we have a law that prohibits texting and driving.  This law says that a driver cannot operate his or her motor vehicle “…while engaging in a wireless communication using a wireless telecommunications device.”  To “engage in a wireless communication” means “talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device. ”  Indiana has a similar law, a statute that allows talking on a cell phone but which prohibits texting.  Many years ago, the United States Supreme Court said that if a police officer has probable cause to believe that a driver has violated any law while driving the officer can stop the motorist.  In many of our federal criminal cases, these traffic violations leads to a search of the vehicle, and some unfortunate motorists end up in jail when the policeman or woman finds drugs, illegal…

What is Criminal Accord and Satisfaction?

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Criminal Accord and Satisfaction There are a handful of minor crimes that can be dismissed at a judge’s discretion when the victim requests that the charges be dropped in Massachusetts. Specifically, certain misdemeanors, such as assault and battery and domestic dispute charges, which the defendant could also be liable for in a civil action, are eligible for what is referred to in Massachusetts as a criminal accord and satisfaction under M. G. L. Chapter 276 Section 55. An accord and satisfaction is not an admission of guilt, but rather it is a form of resolution that can get criminal charges dismissed. When a crime is eligible for accord and satisfaction, the criminal defendant has the opportunity to pay, or provide something else to the victim, in exchange for the dismissal of the criminal charges. The victim must agree to the accord and satisfaction, a judge must approve it, and the accord and satisfaction must be prepared in writing. The judge does not have to approve…

Police Make iPhone Public Enemy No. 1

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FBI Director James Comey took a rare break from the posturing typical of investigators and prosecutors in the current showdown between Apple and the FBI.  While prosecutors argue that Apple’s privacy concerns are a smokescreen to avoid “assist[ing] the effort to fully investigate a deadly terrorist attack,” Comey posted a statement over the weekend in which he took the position that the tension between security and privacy “should not be resolved by corporations that sell stuff for a living.  It also should not be resolved by the FBI, which investigates for a living.  It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.” Comey’s statement highlights a crucial problem with the development of privacy law: it often is developed in the context of important criminal cases.  This comes at a real cost.  We all know that Syed Farook committed a horrific…

Dozens of Georgia correction officers face criminal charges

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Cell phones are the center of years-long federal investigation into possible illegal behavior in some of Georgia's state prisons. Approximately 50 prison correction officers were arrested on criminal charges of accepting bribes and participating in drug trafficking activities. Most recently, a number of corrections officers and inmates were indicted on these allegations. The investigation was launched two years ago by the FBI due to rising suspicions that inmates were somehow organizing criminal activities while still incarcerated. Although the investigation apparently uncovered tobacco and alcohol smuggling by some of the correction officers and other prison staff, one of the Bureau's main focuses was on contraband cell phones. Investigators suspected that cell phone access was what enabled some of the incarcerated individuals to contact other people outside of the facility. Charges for drug trafficking pertained primarily to the most recent round of arrests, in…

The Unforeseen Consequences of a DUI in California

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  Many people don’t know that a DUI conviction may have other consequences beyond the driver’s license suspension, probation, and mandatory DUI classes. In California, there is a huge body of administrative law, much of it quasi-criminal. The immediate administrative per se suspension of a DUI arrestee’s driver license is an example of an administrative law. Although the courts have ruled that most administrative laws that sanction an individual are constitutional, many, if not most, of the quasi-criminal administrative laws do not afford the individual the same due process protections that the United States and California Constitutions guarantee in a criminal prosecution. Many who are arrested for DUI in California will only experience the administrative consequences of a per se suspension of his or her driver’s license and DMV sanctions. However, what many don’t understand is that a DUI goes on the person’s criminal record and that can…

King County’s Parenting Seminar

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In King County, Local Rule 13 requires parents of minor children (kids under 18) involved in many types of family law cases to attend a parenting seminar during the sixty days following the filing of a petition.  As this is a part of many of the cases we handle at Blair & Kim, we hope to provide some information related to this seminar. King County Local Rule 13, requires that both parents attend the seminar with in the first sixty days after a petition is filed.  Many parents get anxious about attending this seminar as they are unsure about the purpose and how it will impact their case.  The reality is, most parents find the seminar useful and not an unpleasant way to spend a few hours.  If parents do attend during the first sixty days, the parenting seminar is unlikely to affect their case at all. For some parents, a big concern is whether they have to attend the seminar together.  Fortunately, the rule specifically states that opposing…

Testifying in a NY Grand Jury: Who Makes the Call? Attorney or Client?

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In New York State, when one is charged with a felony, the State can only bring one to trial on the felony charge if it can obtain an indictment by a grand jury.  To indict someone, the state must present evidence to a grand jury that demonstrates there is reasonable cause to believe a felony occurred and the defendant is responsible for it.  It is a secret proceeding, and the defendant cannot cross-examine any witnesses. However, under NY Criminal Procedure Law Section 190.50, the defendant does have a statutory right to testify in the grand jury.  That is, he can try and avoid or seek lesser charges by telling his side of the story.  Doing so has risks, but it could result in a dismissal of the case. Defense lawyers and their clients often have different opinions on whether the client testifying in the grand jury is a good idea.  As a result, there is often a healthy conflict between the parties as to what is the best course of…

News Scan

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Ruling Blocks CA Gov's Prison Parole Initiative:  The Sacramento County Superior Court blocked California Gov. Jerry Brown's proposed November ballot initiative Thursday.  As written, the initiative would allow non-violent felons with multiple violent priors to be eligible for parole with good behavior after serving the base term for the current crime.  Keith Carls of KEYT reports that the judge ruled that California Attorney General Kamala Harris did not comply with state law and "abused her discretion" when she approved the filing of Brown's initiative as an amendment to a different measure, but that "the changes are so dramatic they, in effect, create a new proposal."  Opponents of the initiative, including the California District Attorney's Association, have applauded the court's decision for not only stopping a bad policy but also calling out the manipulation of the initiative system.  The proponents of…

Alcohol, Drugs and Legal Problems - Part 2

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In part 1 of this article, we began our examination of drinking (and drug use; the lessons here apply equally) and that uneasy feeling some people get when they get caught up in something like a DUI or criminal charge and they realize that something about their partying behavior (like facing a drinking and driving charge) just isn't working out the way they want. Many of my clients are people who have found the true joy of getting clean and sober and are now moving ahead toward a driver's license restoration. On the flip side, many of my clients are people who are a million miles from having any kind of problem and just make a mistake in judgment and get a drunk driving. Others may indulge in the occasional joint and simply get caught being in possession of marijuana. Still plenty of people that I see are dealing with the consequences of alcohol (or drug) use that has gotten out of hand. While I hope a lot of people find something of use in this article, my…

New Program For High-Risk Juveniles

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OFFERING A CARROT INSTEAD OF A STICK TO FIGHT CRIME Richmond California has been running an experimental anti-crime program for nine years that defies the traditional responses to crime and may offer a creative way to save a young person from a life in the criminal justice system before it’s too late. The program pays high-risk youth to stay away from crime. That’s right, young people get paid to stay out of trouble. And the carrot might just work better than the stick. The program, Richmond Office of Neighborhood Safety (ONS), is a public-private partnership administered under the auspices of the City of Richmond. The program employs street outreach staff to identify young people most likely to be involved in gun violence. Those so identified are typically unresponsive to “official” help and guidance. So the program offers credible, customized and responsive opportunities to these individuals as a desirable alternative to a life of crime. Using crime…

San Diego Court Waiver Allows Police to Search Cellphones Without a Warrant

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In response to the passing and enactment of SB 178 (the Electronic Communications Privacy Act) for the new year, San Diego Superior Court judges have started using waiver days after the new state law took effect. SB 178 would require police and probation officers to get a warrant signed by a judge before searching through a suspect’s electronic communications, cell phones, emails, etc. To the surprise of many criminal defense lawyers in the area, their clients were being asked to sign a newly drafted waiver which would allow police to search cell phones, computers, and other types of electronics without first obtaining a warrant. The one-page waiver spells out the types of items that would be subject to search: call logs, emails, text messages, and social media accounts accessed through a variety of devices — everything from an iPhone to an Xbox.  Perhaps more concerning is the fact that some attorneys claim their clients were being required to sign these…

Alligator Drive-Thru Assault: “It Was a Prank”

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A 24-year-old South Florida man stands accused of assault with a deadly weapon for throwing a live alligator into a fast-food restaurant drive-thru window. His father recently spoke out, saying his son is a “nature lover” with a “good heart,” and the ordeal was simply, “a prank.” Unfortunately, intent in these matters is of little consequence in the eyes of the criminal justice system. He allegedly willfully tossed the 3.5-foot creature at the unsuspecting fast food workers would, if proven, render his reported lack of harmful intention meaningless. In fact, it has been our experience that most people accused of criminal conduct had failed to fully grasp the seriousness of their actions under the law. Sometimes this, along with a lack of prior criminal record and other factors, can be asserted as mitigating circumstances to justify a lesser penalty. However, it cannot on its own be grounds to drop the charges entirely.  The charge…

New Bill Prohibits Smoking Pot While Driving…Or Parked

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The 2016 Maryland legislative session is officially heating up, and numerous new criminal law bills are being discussed in the House and the Senate each day. There are a handful of criminal law bills that are slowly advancing, while many others have already received unfavorable reports by the Judiciary and have been withdrawn. But one bill that seems destined for the governor’s desk is a proposal that smoking marijuana in a car officially be declared illegal. Regular readers will remember the ongoing saga where the governor vetoed a necessary marijuana paraphernalia decriminalization bill because is contained no provision allowing officers to stop a car after observing the occupants smoking pot. Giving officers this power may have been totally reasonable, but it had absolutely nothing to do curing the immense confusion in the state’s marijuana policy by decriminalizing paraphernalia. The governor was simply trying to flex is legislative muscle, though luckily the…

Overview of Speeding Tickets in Illinois

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Even though a new Illinois law, effective January 1, 2016, will now provide protections to first time aggravated speeding offenders, punishments for driving over the speed limit may still carry harsh sentences and require the assistance of effective, experienced legal counsel. Illinois law has been historically unforgiving when it comes to speeding offenses. While most of us consider going over the speed limit a minor infraction, excessive and repeated speeding can lead to extensive fines, license suspension, or even jail time. Luckily for first time offenders, a new law may help minimize the impact of one misstep on your future. “Speeding,” generally, means driving a vehicle over the prescribed limit. Going a few miles over the speed limit will generally result in a monetary fine and/or a requirement to attend traffic school or submit to court supervision. “Aggravated speeding” was previously defined as going more than 40 miles over the speed limit;…

Si los ciudadanos NO piensan las naciones NO progresan

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Una Nación es o debiera ser el conjunto de individuos unidos por  territorio, lengua, costumbres, tradiciones, geografía y características étnicas cuyo crecimiento y desarrollo esté determinado por el acuerdo mayoritario de sus miembros, en consecuencia su avance se sustenta principalmente en la capacidad de pensar y la razonabilidad de los planteamientos mayoritariamente aceptados. En  el caso del Perú la profunda desigualdad existente entre sus ciudadanos torna muy difícil el entendimiento antes referido. Una  “elección democrática” decidirá el 10 de abril del 2016 y por cinco años a los nuevos conductores, administradores o gobernantes del País, conviene analizar la conducta previa de los ciudadanos, candidatos o no a dirigir el Perú. Nada aportaría al debate existente si continúo agrediendo a mis compatriotas por su falta de…

The Math Is Simple: DUI + Cell Phone = Bad Accident

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Although the penalties for a Los Angeles DUI can be fairly severe–first time offenders can spend up to a year in jail under California Vehicle Code 23152 (a)–the punishment for talking on a hand-held cell phone isn’t nearly as severe. (No points, and a fine of just $76 for a first offense.) But even if the court doesn’t punish offenders for cell phone usage, the combination of DUI and talking on a hand-held may have some fairly serious consequences. In Greenville, South Carolina, a woman ran into a stopped tractor trailer–halted by the side of the road on I-85 because of a previous accident–around 8:45 on February 21st. Police believe that the woman was trying to make a phone call on her hand held cell phone when she hit the vehicle. The unnamed woman suffered serious injuries and doctors had her airlifted to Carolinas Medical Center in Charlotte. The DUI is connected with the accident that started it all. A Honda Pilot had attempted to merge…
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