DUI Cases Dismissed in Two Counties in the Last Month

 

In the past month we have finished two cases in which our clients were charged with driving under the influence of drugs or alcohol, and in both cases, prosecutors ultimately dismissed the charge of DUI and accepted pleas of guilty to inattentive driving. Not a big deal? Oh yes it is. Inattentive driving does not carry the consequences of a DUI conviction, and the difference between the charges may save you thousands of dollars and time in jail.

In a county just north of us, our client was charged with DUI as he headed home after dinner at a local restaurant and bar. He admitted he had a couple drinks. He had been stopped because he reportedly did not stop fully before exiting a private parking lot onto the street. Seriously. In fact, the local cop had simply been parked nearby "fishing" for folks to stop coming out from the club. On video our client looked great. He spoke freely with the officers, did not slur his words, and passed the field sobriety tests - except, they said, the gaze nystagmus. Serious voodoo in that one! Anyway - we called their bluff and got ready to try the case. The breathalyzer result was just over .08% and showed the level was increasing with time. So when he took the test, roughly 45 minutes after he was driving, it was going up. A smart prosecutor ultimately decided their case did not look good and he offered a plea to inattentive driving and a couple hundred dollar fine.

In a county a ways east of us, a retired professor over-corrected on the highway, rolled his car, hit his head on the steering wheel, and had to be cut from his wrecked rig. An officer at the scene told a supervisor that the driver had "seemed confused" when questioned. And then they found some prescription medication bottles in the car. Confusion plus pill bottles must mean driving under the influence - right? That was the charge. DUI. They had NO proof of any quantified amount of any drug. They had no expert to say that the pills affected the driving pattern. And importantly, the officers had not considered whether any "confusion" was the result of his injuries or some other cause. What the state had was a weak case. We filed a motion to suppress the results of the search of the car (no probable cause) and to suppress the results of the search of our client's blood (although not quantified, there was proof that one of the medications was in his bloodstream, but it had been so for every day of the five years he had taken it). The prosecutors did not respond to the motion. Instead, they offered a plea to DUI and no jail. Our client said "no way!" But before trial, when it seemed clear even to them that they were about to lose, they folded and dismissed the DUI.

Here's the lesson I learned from both cases: anyone charged with DUI has to be willing to fight. The State can't always win, and a prosecutor may eventually see what you see from the beginning - the evidence may not prove that you were guilty of any crime.

DUI is a serious charge. Make sure you get a fighter to review your case before you plead guilty.

Got a tough case? Give us a call to discuss how to win.

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Sometimes the stuff others say is better than anything you can say!

Barb Jacobson is a private investigator - and a really fine one at that. She can get answers from witnesses that others just can't get. I'm not sure how she does it but she does it well!

So one day in 1997 or so she came to see me about a guy in prison for a crime he didn't commit. Other lawyers told her that there wasn't any way to get him out. She was convinced that her guy was innocent. 

Crazy thing here - he was innocent. As in, didn't do it innocent. As in wrong man convicted. Innocent!

So we built a case on her work, her investigation and her guts. The Judge (now a Supreme Court Justice) let us put on our evidence and the prosecutor didn't back down. But in the end Barbara Jacobson's fine work saved this kid from prison.

You can read here account of the case here.

Thanks Barb for your kind words. Reputations get built on the work we do and often that work was the result of hard work by others associated with a case. 

Now the take away - we lawyers need to be good listeners. As I listened to Barb's story and realized that her client was in fact innocent, we were able to come up with a plan to win his freedom. Lawyers who can't see an opportunity to win are like that kid digging in the manure, looking for the pony. He's in there alright, but you've got to be willing to move a little dirty to find him.

And lawyers are not investigators. Often it is the investigator who breaks the case, not the lawyer. 

 

 

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Watch Your Driving Pattern - officers are standing by to stop you for no real reason!

 

The roads are slick out there these days. So slick that our "driving patterns" may provide just the "suspicion" needed to stop and check to see whether we have been drinking and driving. I have some experience with this over the past few weeks - and in two cases, charges of driving under the influence (DUI) have ultimately been reduced.

In the first case, officers at a one-car rollover accident found a prescription medication in the crumpled skeleton of a small sedan and concluded that the driver must have "over-corrected, gone out of control and rolled into the median" because he was under the influence of a prescribed medication. They came to this conclusion without the benefit of any test, and charged him with DUI.

Their real "proof" of impairment was his speech. After rolling his car and having been taken by ambulance to a hospital, he "seemed confused." Did they consider the fact that he had suffered a concussion and serious injuries? No. Was there any proof that he had taken the meds recently, or in an amount that would interfere with his ability to drive? No. But charge him they did, and now his record will forever reflect that he was a defendant in a criminal case charging him with DUI.

Come on - let's use a little common sense. How about not presuming that everyone who rolls his car on slick roads must be drunk or using some medication to excess. Cops and prosecutors should be able to apply their own life experiences to situations such as this one and admit that sometimes a roll-over is just a roll-over.

In the end a prosecutor decided to reduce the charge to careless driving.  Had we gone to trial, my client was was headed for an acquittal. After all - there was absolutely no proof that the driver had been under the influence of any medication. The driver was out the time and expense of dealing with the baseless charges, but that did not really seem to matter to the officer or the prosecutor. 

Here's the bottom line: any "driving pattern" that looks careless - like sliding around a frozen corner, or not fully stopping before entering a road from a parking lot - can be the basis to stop you, and "check" on your sobriety.

And even if officers do not find evidence that alcohol has impaired your driving, beware that lack of common sense. 

Consider the facts of a local case related to me yesterday: an employee who is sick and headed home for some couch time drives out of a parking lot to be stopped for "swerving." This happens in the afternoon - so the automatic probable cause for driving after midnight will not apply. Employee has not been drinking and is not under the influence of anything more than influenza. Officer says employee must be on some medication. Employee insists he is sick and asks to go to the ER. Cop insists on a blood draw - to "prove" that he is right and this driving fool must be intoxicated and on something. Officer performs field sobriety tests and arrests employee, who is booked and has to bond out and hire a lawyer.

And all of this without so much as any evidence that employee is operating his car under the influence of anything. Employee will spend hours of time and a thousand bucks or more to prove his innocence.

This is not the way the law is intended to work.

Police officers should not stop you "just because." They should not be trained to assume anyone who swerves is under the influence. And we should not have to prove our innocence. They should treat us like they would want to be treated if stopped for no real reason.

So be careful out there. Watch your driving pattern. Be patient with officers who insist you are wrong because your day will come. But if you are innocent - insist on preserving your rights. 

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Beware the Feds and Fraud - prison time and big fines remain the norm!

 

Back at it for the new year and I couldn't help but pass along a link to a news article today concerning wire fraud and the sentence imposed by Judge Winmill. Check the story here.

Apparently the defendant in the case had wired money from his employer's bank account to pay his personal mortgage and other stuff. Taking money from someone else to pay your debts never works out well in the long run. While we may diverge on some questions of law - there is universal agreement that theft is morally wrong - and the law makes it a felony. The Feds take a very dim view of this!

The defendant in the case was sentenced to three years in federal prison and ordered to pay $607K in restitution. That sounds like a lot of mortgage payments and personal stuff that he must now account for! But my point here is simple - any federal felony is likely to result in serious consequences, including federal prison and big fines or restitution. And there is no parole in the federal system - if you get a three year sentence you serve three years, less any "good time" credit you earn.

So get help immediately if you are contacted by authorities about any claim you have taken money that does not belong to you. AND DO NOT TALK TO INVESTIGATORS without FIRST having talked to a lawyer. Whatever you tell the investigators will limit your options going forward. We frequently have folks who contact us and claim that they did not steal anything, but they have said things to investigators that make their claim of innocence look like a lie. You can't outsmart or outplay the investigator - so wait to explain your side until you have a lawyer.

And then there is the obvious: do not steal!

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IN THE FIGHT OF YOUR LIFE? Ask these 5 questions before you hire a lawyer!

 

In the fight of your life?

Five years ago I started this blog with a post about hiring a lawyer. What should you ask before you pay? Over the years, this post has stood the test of time. Read it and you will be a better informed consumer!

Forget those crazy lawyer TV advertisements, websites that promise you a win, and "former prosecutor can get you better results" come-ons.

Read this post I wrote in 2009 and then find your fighter!

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Your Misdemeanor Case Matters - Juvenile Cases Matter Too!

 Here's a guest post by my partner - and daughter - Courtney Peterson

I was reminded this week how the impact of hiring an attorney can last long after a jury has reached a verdict, a settlement has been made, or a case has been dismissed.  So many attorneys focus on the “big” cases – serious felonies, federal charges, large civil suits – they forget how important a “little” case can be.  My practice consists of both big and little cases and I like it that way.

I love those cases other attorneys scoff at, like juvenile offenses and minor misdemeanor charges. 

Charged with petty theft? Malicious injury? Driving without privileges or a juvenile case?

Of course you deserve the best legal help you can get, and you need a lawyer who cares about you, and about your case and more importantly, about your future.

Why don't I focus all of my attention on catching the big one?  Because the little cases matter.  Sometimes, they matter even more.  A minor misdemeanor charge for a person who has no legal status in the country is often a huge deal, even if it’s a simple driving offense.  People can lose their right to remain here with loved ones over simple driving offenses.  Little cases matter big time.

Juvenile offenses aren't always about a kid who wants to run away or is skipping class.  On a daily basis, juveniles are charged with misdemeanors and felonies that have the potential to completely change their lives at such an early age.  The juvenile system is focused on ensuring that a child does not end up in the adult criminal system years later.  They courts work with juveniles and their parents, as well as teachers, counselors, and probation officers to get these kids on the right track for their future.  These are not just “little” cases. Juvenile case matter big time, too!

A former juvenile client contacted me a couple weeks ago with what she described as a huge favor – would I be her mentor for her senior project this year? 

This client, by the way, had a case that included both a big and little charge. The felony charge was ultimately dismissed and she plead guilty to the misdemeanor.  With the help of the court and the prosecutor, my client and her family had a positive experience and she now thinks she’d like to go to law school. 

Being her mentor for a semester is not a huge favor, it’s an honor.  An honor that I might not have gotten to experience if I focused only on catching the big case. 

So call us or drop a comment here if you have a big little case. Maybe I can help.

 

            

"Have you ever been a defendant in a criminal case?" Jurors can't seem to answer truthfully!

A couple weeks ago I tried a criminal case that alleged my client had unlawfully taken a trophy deer (by hunting with an unlicensed guide) and had aided a thirteen-year-old girl unlawfully take an elk by using his tag on an elk the State said she killed. The jury found my client NOT GUILTY on both counts, but what amazed me was the fact potential jurors had lied about their own criminal charges.

A questionnaire sent to persons called for jury service were asked a very simple question: Have you ever been a defendant in a criminal case? Three of the 24 persons who answered "no" actually had been charged with crimes. I had their records. One other juror admitted he had been a criminal defendant but said it involved only a "bar fight." This guy had several other charges in other cases - none of which he disclosed.

Jurors lie. 

They do the same stuff we all do when confronted with our failures. They minimize their own misbehavior.

Knowing this can be an important guide when making peremptory challenges. Those are the challenges for no particular cause that has to be disclosed. My thinking at the time was that a man who did not want to disclose his DUI charges would probably line up more with my client than the State's Fish and Game "detective." In the end, I left one of those "non-disclosers" on the jury, and I think it was a good call. People who have had a run in with the law are less likely (I think) to believe the Defendant got a fair shake by those investigating his case. If a juror thinks the defendant was not treated fairly, the state's case will suffer. When that happens, the defense has a chance. And when you have a chance you need to exploit that opportunity to hear the magical words, "not guilty."

By the way - those Fish and Game officers tend to wander a ways from the truth too.

In this case, the investigator swore he had NOT threatened to go and arrest the thirteen-year-old girl who allegedly shot the elk. When I asked him, under oath, he protested he did not tell her father he would charge her with the crime - a fact that her father (who was not a defendant in the case at trial) testified was false. He said the Fish and Game officer had done exactly what he swore he had not. He was telling that jury they could not believe the officer.

When it was all over, the jurors did not believe the Fish and Game guy. They believed he had lied about the threat. They chose my client's version over his. When that happens the State loses. In a sense the case was more about the F&G officer's testimony than it was about who shot the elk - by the way, it wasn't the girl. 

Here's my take away - the best defense at trial is preparation. Be ready for the jurors who can't recall having been defendants, and be ready for investigators who have threatened their prey with arrest or worse if they don't cooperate. 

Be ready for trial. Know all the facts. Know the law, and figure out how the facts of your case and the law collide. Then get ready to win your case.

 

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Criminal Cases Require Lawyers with "attention to detail, an energetic investigation and a coherent plan of defense"

 The news tonight declares that Kennedy cousin Michael Skakel has won a new trial because his criminal defense lawyer did not do enough to provide an effective defense. Robert F. Kennedy was his uncle. Mr. Skakel was convicted of the murder of Martha Moxley in 1975. She was beaten to death with a golf club after she and friends attended a Halloween party at the Skakel home.

Mr. Skakel was convicted in 2002. I actually met Michael Skakel in the fall of 2000 at a reception for incoming students at a New Hampshire school my son and his daughter attended. The word on the street then was that he would be charged, and the word became truth sometime later. He was convicted and sentenced to 20 years to life. Martha Moxley's death remained "unsolved" until the conviction some 27 years later. 

But now about that conviction - you see a criminal defense lawyer has a duty to provide the "effective assistance of counsel" as he represents his or her client. That means more than just going through the motions (forgive the pun). It means the defense lawyer has to work his or her butt off to learn the facts, learn the law and figure out how the two marry-up. It means the lawyer needs, in the words of the Judge ordering a new trial, "attention to detail, an energetic investigation and a coherent plan of defense."

If you are charged with a crime, you don't need a celebrity, you need a fighter. Someone who will turn over the rocks and figure out how to save your bacon. You need a committed advocate. A beast. Someone who can take a body blow or two and keep advancing. You need a soldier.

And the court in Skakel's case said Michael did not have that. His lawyer didn't do that according to the judge. Did he? Can't say. I wasn't there. 

But you know what this means? Skakel has another chance to find his fighter. He has another chance at convincing a jury he is innocent. I know - he doesn't have to prove anything as the defendant, but don't kid yourself. He's got "some 'splainin' to do." 

Unless of course, the next appellate court says otherwise. He is still in prison, awaiting the State's next move and a potential decision on bond reduction.

What should you take away from this news? Two things:

First, choose your lawyer carefully. Insist on someone who will do battle for you, who would lead a party of warriors into Hell to find you. Anything less will not give you the edge you need to stay in the game.

Second, in the words of General Eisenhower, "Never, ever quit."

Skakel has maintained his innocence the entire time. He didn't get parole at ten years, in part because he would not admit any involvement in Ms. Moxley's death. He never quit believing and trying to clear his name.

Honestly, most criminal defense lawyers work their cases and try to win. The biggest impediment to being fully prepared is money. You buy time when you buy that lawyer, and the more time you can afford the better your chances of winning. 

Got a case? Want to talk? Call us? We focus on building a winning case.

DUI Cops Are Watching for These Signs You Are Driving Under the Influence

 

The National Highway Transportation Safety Administration (NHTSA) has a publication that lists the "symptoms" of drunk driving officers are trained to watch for in "driving pattern." Each "symptom" has been given a value NHTSA says represents the likelihood a driver exhibiting that driving pattern is under the influence of alcohol or drugs.

Here is the list from the Department of Transportation Publication (DOT HS-805-711) used to train law enforcement officers to identify intoxicated drivers:

Turning with wide radius     65
Straddling center or lane marker     65
Appearing to be drunk     60
Almost striking object or vehicle     60
Weaving     60
Driving on other than designated roadway     55
Swerving     55
Slow speed (more than 10mph below limit)     50
Stopping (without cause) in traffic lane     50
Drifting     50
Following too closely     45
Tires on center or land marker     45
Braking erratically     45
Driving into opposing or crossing traffic     45
Signalling inconsistent with driving actions     40
Stopping inappropriately (other than in lane)     35
Turning abruptly or illegally     35
Accelerating or decelerating rapidly     30
Headlights off     30

 

So here is how this works - if an officer sees you driving into opposing or crossing traffic, NHTSA educates officers that 45 times out of 100, the driver (you or me) is operating under the influence. It doesn't matter the time of day, or the day of the week, NHTSA trains officers to believe that this stuff is "science.

Bull!
 
In Boise, it seems like the most relied upon reason to stop a person for suspected DUI is driving after midnight. This is really the case if the driver is in the downtown corridor or near Boise State University. 
 
I watched a Boise cop make a wide turn the other morning on the way to work. It was around 6:15 am, but I gave him or her the benefit of the doubt. I never once thought "65 times out of 100 that officer is operating his cruiser under the influence of alcohol." According to NHTSA science, I should have.
 
Here's the topper - NHTSA says that if you see two of the "symptoms" you take the higher of the two and add 10 points. So if that same officer was "drifting" as he made the wide turn, his likelihood of being a drunk driver would be 75 percent. 
 
More bull!
 
When I hear judges, prosecutors or cops talk about junk science, I want to direct them to NHTSA! 
 
So be careful out there. Not every law enforcement officer will suspect you are a drunk driver just because you "stop inappropriately" (whatever that is), but some of those with NHTSA training might.
 
A drunk driving conviction is a costly misadventure. Don't drink and drive. 
 
If you have questions about a charge of driving under the influence in Idaho, give us a call. We can help you sort out the fact from fiction.
 
 

 

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Working With Experts in Your DUI Case

 

I had a call today from a client we are defending who is charged with driving under the influence of alcohol or drugs (DUI). This case is a little different than the usual DUI because the intoxicating substances charged include several commonly prescribed medications and an over-the-counter antihistamine (containing diphenhydramine). The State has laboratory reports showing these medications were present in the client's blood, but present in what amount? In an amount that would produce intoxication?

I bet that they don't have an expert to establish the amount of any of the medications found in our client's bloodstream would cause intoxication, but we can't simply wait to find out. We have already filed requests for discovery that should require the prosecutors to tell us the information we need, but our next step seems certain: Enter the expert. 

In this case we will need a toxicologist or pharmacologist to testify about the levels of such drugs likely in my client's blood stream at the time of his accident (did I mention he was involved in an accident). Without an expert to testify for the State or for the Defendant - there is no way for a jury to decide the question of whether the levels detected would have caused intoxication and affected driving.

Here are three reasons to hire an expert in your DUI case:

First - your lawyer cannot testify, and it is testimony that you need to win. Proof. While there is no requirement that a defendant ever prove anything at trial, don't kid yourself. If you are on trial you need a defense. You need the best defense you can afford, so hire a great lawyer and be ready to hire a great expert to make your case.

Second - an expert offers opinion evidence that most jurors take to be fact. Based on his or her special training, education and experience an expert can explain to jurors why the state is wrong and why you are not guilty. The judge will tell them that the testimony is an opinion, and it is, but that opinion is often the difference between winning and losing.

Third - just hiring and disclosing an expert witness to the State may be enough for them to offer you a way out, short of the DUI. Think of it this way - prosecutors have lots of cases and they don't have the time nor resources to try even a tenth of those cases. At some point they just see a case, not a defendant. If the case goes away, their is another one to move up the ladder and "be resolved."

And that's your advantage in hiring an attorney who will fight for you. We represent you. We will take the steps necessary to build a defense, and if that means we hire an expert witness than that is what we do. 

If you are charged with a DUI, Inattentive Driving, Driving without privileges or some other criminal charge, call us at 208-342-4633 and let our years of experience work for you!

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