NY Times Says Idaho Dead Last at Protecting Juvenile Records

 Associate Attorney William Young is at it again:

There is an article today in the New York Times discussing the issue of juvenile offenders and the importance of sealing their records from the public eye. The article examines how many states fail to protect the confidentiality of juvenile records despite data showing that “95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood.” The failure of states to protect this information can follow teen offenders into adulthood; leading to them being denied jobs, housing, and admission to college. Each state deals with this issue differently but as the article explains “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to these records.”

The Juvenile Law Center, a public interest law firm in Philadelphia, rated all the states and the District of Columbia based on how well they protect confidentiality of these records. What’s the problem for Idaho? “Dead last is Idaho, because it has no confidentiality protections for juvenile records and makes very few records eligible to be sealed.” With a simple search on the Idaho Repository the public has access to nearly all-juvenile records in Idaho.

The Idaho Repository is a useful system that allows anyone to access civil and criminal state records at just the click of a button. It is one of the most transparent state systems available and, in many ways this is an important and valuable resource to many people statewide (I know I use it every day). However, in my opinion, it is a shame that most juvenile records follow Idahoans around indefinitely. I agree with the central thesis of the article: “[t]he fact that most juvenile offenders never presented a threat to public safety and have no further contact with the law after they become adults argues strongly for sealing or expunging records so that young offenders are not permanently impaired by their youthful transgressions.”

You can find the full article here: http://nyti.ms/1t0Y9pO.

If you or your child is charged with a juvenile offense it is important to hire an attorney familiar with juvenile court. With the right attorney as your advocate, you may be able to avoid the negative impacts discussed in this article.

Fight that Ticket!


Peterson Lawyers associate attorney Will Young tells us to "challenge that speeding ticket!

Speaking from experience, getting ticketed for speeding is not a fun experience. Seeing red and blue lights in your rearview mirror is not a good feeling. I realize speeding is not even close to the worst thing you can be accused of, it can still impact your life in many ways. Penalties for a speeding infraction include: steep fines, insurance rate hikes, and added points on your driving record. In the past, I have just paid the ticket and tried not to speed in the future. Recently I have discovered this may not always be the best solution.

In the past few days, I have represented two different clients on speeding ticket cases. In each one, the clients had been issued a citation for diving between 10 mph and 15 mph over the posted speed limit. After negotiating with the prosecutors, we were able to reduce the infraction from speeding to an “equipment violation.” The result: a significant reduction in the fine, no points against your driving record, and it is less likely an insurance company will increase your rates. In the end, you may save you hundreds of dollars and a huge headache by fighting that speeding ticket.

Defending a speeding infraction is a fairly quick and easy process. Both the cases mentioned above were handled in one quick hearing. This means hiring an attorney may not be as expensive as you think. Don’t be afraid to call our office to discuss the case and find out how much it would cost for you to be represented. These are common conversations that we have every day. We will happily discuss potential costs of representation and explain how we came to that number. 

"Can I be convicted of DUI if I blow less than .08?"

 This weekend I received an inquiry from someone who had been convicted after the judge instructed the jury it could find him guilty of DUI even if it did not find he had a breath alcohol level above .08%. He complained that by instructing the jury on the alternate theory - that his driving pattern established he was operating a motor vehicle while under the influence of drugs or alcohol - the Court had insured he would lose! Had it?

There are two ways to convict a person of DUI - either proof beyond a reasonable doubt that the defendant's blood alcohol concentration was higher than .08%, or that there is other circumstantial proof he was operating his motor vehicle under the influence. I have also had the experience that the State argues both, and the jury was likewise able to convict without finding a BAC above .08%. As a practical matter, cases with this kind of ambiguity often produce a settlement for a lesser crime - like inattentive driving.

This possibility is why I have told people that the field sobriety tests can seal their fate - even if they are not under the influence. More on those "tests" in another post. 

Zach Neagle is Free - Now He Must Work to Stay Free

 Back in June of 2009, I posted that Zachary Neagle had become a client. He was charged with murder - having shot his father in the head as he was asleep on a couch in their home. The case presented the ultimate challenge; convincing folks that Zach killed his father to protect his younger brother and sister from the sexual assaults he had been subjected to. Zach was charged as an adult, but the picture shows just how juvenile he was, wrapped in chains and clad in a yellow jumpsuit. He was just a kid.

Idaho law provided that if Zach went to trial and lost - a jury not believing he had to kill to protect his siblings - he would serve a life sentence in an adult prison. Ultimately we settled the case for a blended sentence that placed Zach with Idaho Juvenile Corrections. He plead guilty to manslaughter. If he did well in Juvenile Corrections, he had a chance to avoid adult prison and could be placed on adult probation.

As I noted in January of 2011, Zach was working hard in the Juvenile Corrections world to build a life. He was going to school, and working on the skills he would need to re-enter the world. I hoped someday he would leave confinement and be free - at least free of jails, prisons or corrections centers.

August 1st was my birthday, and it was the day Zach ended his time in juvenile corrections and began adult probation as part of his sentence. I would like to report that the transition to real life (albeit on probation) has been seamless, but it has not. It may take some time. He has a good job, has supporters who care and love him, and he has a chance. But he has to work at this. Any mistake could land him in jail or worse, adult prison, the very place we have been trying to avoid since Charles Crafts called me that June day more than five years ago. 

Since so many of you call, ask and write, I wanted to report that he is making it. So far. 

Now he needs to work at staying free. He needs to fly right and stay out of any trouble.

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THERE ARE NO SMALL CASES! Hire a lawyer for that misdemeanor charge and go to trial!

 Attorney Will Young, an associate at Peterson Lawyers writes todays post on misdemeanor cases.

So, you have been charged with a misdemeanor. You are probably feeling overwhelmed, nervous, and at least a little bit confused about the process ahead of you.

What Is A Misdemeanor?

A misdemeanor is defined as any “lesser criminal act.” Misdemeanors are punished less severely than a felony, generally including any crime punishable with jail time for one year or less (with some exceptions). This includes: petty theft, simple assault, disturbing the peace, trespass, vandalism, reckless driving, DUI (first or second offense), and many others.

Just because you charged with a misdemeanor does not mean you should go to court without a lawyer. A misdemeanor conviction can have serous consequences for your life, now and in the future.

Do I Need An Attorney?

Even in small cases you may need a lawyer. Your case matters and you should get the best legal advice you can. Even a simple DUI can have a huge impact on your life; you need an attorney that cares about you and your future.

If you are debating whether or not to hire an attorney I would suggest you take the time to carefully consider a couple of things:

1.     The Process

A criminal case is a winding, confusing process filled with red tape and potential pitfalls. Your case may involve motions, court orders, hearings, pleas, or even a jury trial. In order to navigate this process it is important to have a guide. An attorney will be able to explain what is happening, as well as take necessary action on your behalf.

Even if all you want to do is plead guilty, an attorney will help negotiate a punishment that is agreeable to both you and the state. Having an attorney in your corner can make all the difference in the severity of any punishment you receive.

2.     The Consequences

If you are convicted of a misdemeanor, the penalties can have a substantial impact on your life. Direct penalties for a misdemeanor can include: jail time, probation, fines and court cost, certain license suspensions or revocations (drivers license, hunting license, etc.), alcohol/drug counseling, expensive rehabilitation classes, and more. Unfortunately, many of these penalties are time consuming and cost significant amounts of money. For example - if you are convicted of domestic battery, you may have to spend 52 weeks in a specialized court, that requires participation in counseling and treatment. All that costs money! A fine in a misdemeanor case can be $1000 or more. Small case? Not if you have a big fine, mandatory classes and the loss of a privilege (like a hunting license).

There are also many indirect penalties associated with a misdemeanor conviction. The conviction will be reported to a criminal database that is accessible to the public. This means that anyone who performs a background check on you, including potential employers, leasing agents, and school admissions administrators, will know about your conviction. This can have a significant impact on your present and future employment opportunities, educational opportunities, federal student loans, immigration status, standing in the community, and relationships with family and friends.

3.     Going To Trial: It May Be Worth The Risk

Often in misdemeanor cases, the difference between the prosecutor’s settlement offer and the penalty a defendant would receive if convicted at trial is small. The only difference may be in the amount of a fine or the number of community service days. Because of this it may be worth the risk to take the case to trial.

While going to trial is just one of many avenues you can choose in a misdemeanor case, it may be the right choice for you. Many people are bullied into taking plea deals because they have an unrealistic expectation as to what penalties would be if they lost their case at trial. Prosecutors often scare people by reciting the maximum penalty available under the law. An attorney can use their experience with cases similar to yours to provide you with a realistic approximation of what the penalties would likely be if you were convicted at trial. This information will give you a better idea of what you would actually be risking if you went to trial. In the end, trial may be worth the risk.

4.     It May Not Be As Expensive As You Think

The number one reason criminal defendants do not hire an attorney is their mistaken belief that they cannot afford one.

Defending a misdemeanor charge does not involve as many hearings, as much evidence, or, quite simply, as much time as defending a felony charge. This means that hiring an attorney could cost you considerably less in a misdemeanor case than it would in a felony case.

Don’t be afraid to call our office, discuss the case, and ask us how much it would cost for you to be represented by Peterson Lawyers. These are common conversations that we have every day. We will happily discuss potential costs of representation and explain how we came to that number. 

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Our New DUI Website is up - DUI in Idaho

 We have been working on a new site specifically designed to provide more information for folks charged with driving under the influence of drugs or alcohol - DUI. Click here to visit the site and learn even more about DUI in Idaho. The site is a work in progress, but it may help answer your questions with respect to this serious charge. 

And if you need to talk - give us a call.

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Idaho State Police stop to check on temporary license gets tossed!

 Ever wonder why every drug arrest begins with a traffic stop? Because all too often the police stop first and provide some reason later! If the drug task force decides to effect an arrest, they call the ISP or locals and have them do a traffic stop. Then, they give a "reason" for the stop - a reason that is simply a pretext. They didn't stop that car because it was "weaving," they stopped it because a drug task force officer wanted it stopped. 

Occasionally the same is true of those "after 2:00 am" stops of cars leaving the downtown corridor. Bars, plus early morning hours do not necessarily add up to probable cause.

So it was commendable that 4th District Magistrate Judge Theresa Gardunia ruled this week that the stop of a car driven by John Long was not reasonable, and therefore not supported by the law that the ISP officer had sworn to uphold. In case you think Judge Gardunia was out there on the edge in her ruling, she based her decision on an Idaho Court of Appeals decision seven years ago that held the placement of the temporary license was not a reason for a stop unless it was obvious from the officer's view that there was an alteration or other problem with the license.

Credit defense lawyer Charles Crafts for filing the motion to suppress evidence illegally obtained by the police based on the stop. Read the Statesman story here. The basics: early morning hours, ISP Officer Janet Murakami pulls over John Long to "check" the temporary license displayed in his window. 

Now in the officer's defense - she claims she saw Long stumble and trip as he approached his car after leaving a Boise bar. She stopped the car, then had Long perform field sobriety tests (which she claims he failed) and then arrested him for DUI. The problem here is that the Judge found the reason for the stop given by the officer (uncertain if temporary license in window was real) was a pretext for the stop. The officer said she could not tell if the temporary license was valid, so she had to stop the car. An officer video apparently convinced Judge Gardunia that the stop was not based on the officer's need to check the validity of the license. 

How about just stopping the guy as he sat in his car - "in physical control" prior to letting him drive? The officer might have had a better argument for approaching the car based on observing the defendant trip or stumble, to check on Mr. Long's condition, as an investigative stop before he started driving. That seems to have been the real reason for the stop. 

I don't want people to drive drunk. I am worried about my own safety and that of my family and friends. Drunk drivers kill. But look - if you believe you need to stop someone to keep the public safe, do it as the law permits. 

There are lots of great law enforcement officers in Idaho, and for the most part they do "protect and serve."

But a couple weeks ago I noticed that the motto had been changed a bit - now it says "protect, serve, lead."

Lead! Please! Don't pretend you see a violation just so you can see if the person driving that car is over the limit or violating some other law. 

Lead! Show us that you will enforce the law, not get around it by making something up. We expect professional law enforcement.

Thankfully, there are judges who still call a strike a strike.


Cops Can't Search Cell Phone Without Warrant

           Will Young is an associate attorney with Peterson Lawyers. He writes today's post:

           The Supreme Court unanimously ruled yesterday that the police must acquire a warrant before searching a cell phone seized from someone they arrest. Chief Justice John Roberts, writing the opinion on behalf of the Court, acknowledged both the individual’s right to privacy and the State’s need to investigate crime, but the decision came down strongly on the side of privacy rights.

            Roberts pointed out “[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cellphone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.”

            This is a fact that many people don’t consider until it is too late. Think about all the information someone would have access to if they were to search through your cellphone. Your email? Pictures? Calendar? Text-messages? This is information that can be found on a device in nearly every pocket in the United States. Roberts went so far as to acknowledge how even the term “cellphone” is itself misleading; “many of these devices are in fact minicomputers…[t]hey could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

           Three years ago we noted that this issue was headed for the Supremes. See that post here.

            In addition to broad range of information stored on your cellphone, the Court also took into account the information that can be accessed from a cell but is stored in “the cloud.” Searching this data is “like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house,” wrote Roberts.

            While this decision may defend against an unwanted police search of your cellphone, the real lesson of today’s ruling is password lock your phone. While technology gives us easy access to vast amounts of personal and public information, these devices are too easily lost, stolen, or searched for you not to protect yourself.

            Now what do you suppose would happen if the police seized your phone and then could not break your password? Would there be any way for that information to be retrieved? Is your password information held anywhere besides your phone?

            And just what will it take to get a warrant to search the phone those officers grabbed when you were arrested? Will a generic “based on my training and experience I know that information relating to the commission of crimes is often found on cellphones” type affidavit from a cop be enough?


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When it comes to SGT Bowe Bergdahl, let's be happy he is back in the US

 SGT Bowe Bergdahl’s “disappearance” is not necessarily desertion.

Once upon a time I served as an Army JAG officer - a Trial Defense Services lawyer - defending the men and women of the 4th Infantry Division at Ft. Carson against criminal charges. Viet Nam was over, but there were traces of its wrath daily in the halls of the building in which we were housed. A service member who had served honorably in Viet Nam, but “left” a little early on arrival to the States without having “processed out.” Or the occasional soldier who had never reported for that flight to "Namland," and somehow evaded detection for a dozen years or so.

The first question for the Staff Judge Advocate in each case was whether a crime had been committed and if so, which crime?.

Did the soldier go AWOL (absent without leave) or was he or she a deserter? Does it really matter?

The Convening Authority (a General who serves as the grand decision maker in these matters) in Bowe Bergdahl’s case will have much to weigh when it comes to making that call. He may decide that SGT Bergdahl deserves the benefit of the doubt, and simply permit him to be discharged.

From my experience as a military lawyer, such decisions are generally made after carefully considering the soldier’s service, as well as the circumstances surrounding his or her “disappearance” from the unit. Add to that the fact that SGT Bergdahl’s release was negotiated on behalf of the United States with full knowledge that he was reported to have walked away from his unit.

Even so, not every person who walks away is a deserter. Desertion is a separate offense that requires proof of an intention to permanently remain away or avoid hazardous duty. The military treats desertion very seriously - and it can result in the death penalty during wartime. AWOL is not nearly as serious, and there are administrative, non-judicial means of punishing that conduct which might be more appropriate here.

But did SGT Bergdahl intend to remain away? That question is more difficult to answer, and the process used by the military to investigate such a case is similar to a grand jury proceeding, but better. SGT Bergdahl and his lawyers will be present to hear the evidence to be considered by the investigating officer and they can cross-examine the witnesses. He can have and needs the best lawyers he can get. And those lawyers should ideally include both military and civilian counsel. After all - at some level this is a political case that may be pursued more out of a feeling we traded away five really bad guys for one possible deserter than because we believe SGT Bergdahl committed a crime.

I trust the military justice system. I like the checks and balances within the system and I like the way it tries to avoid politics. Still, SGT Bergdahl's case is political. Remember that Rose Garden press conference with the President and Bowe's parents? Politics. 

We always say nobody is guilty until proven so, but the popular presumption echoed by talking heads across the cable news outlets is that he ran away from his unit. The presumption of innocence will have to fight for space, and that will take help. 

Let’s just try to reserve judgment for now and find joy that he is back in the states.


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DBSI Convictions - Fraud Allegations Drive Emotions

 First - a disclaimer - I watched the DBSI trial in federal court here in Boise with considerable interest over the past three months and I admire the lawyers involved on both sides. I also had a client who was a witness (a key witness perhaps, after viewing a juror interview on local television).

I may not be seen as entirely neutral on this one but the case serves as such a great reminder of the difficulties defending against any federal felony charge.

Federal cases begin with the Government already way ahead - their investigations take years in cases like this one. They have more investigators and more time into the build up before indictment than you will ever have if you have to defend yourself. I watched a few years ago as a war chest of money (in the millions) was "burned" by east coast, big city, big firm lawyers who promptly got out of the case, coincidently, when the money ran out, and that was long before any indictment. The money that would be needed to fight governmental agencies and defend against a criminal indictment are now long gone, and so are the big time lawyers.

The federal government has unlimited resources, unlimited experience and the ability to out churn and burn almost any defendant. They can grind you up, and in a big case, like DBSI, that is precisely what they do. If you are under investigation, check out this post from 2010.

I think I had forgotten that as I watched the DBSI trial unfold.

By the time that case started, only the best lawyers and the best of circumstances would give the defendants a chance at avoiding conviction.

The defendants in DBSI had both, and still, jurors returned guilty verdicts within a few days deliberation on charges of securities fraud, and after a trial that lasted roughly three months. In part, the explanation for the speedy decision likely rests with the inherent advantage that comes with having spent years investigating and preparing for the trial. 

Trials are wars. Epic battles. And such adventures are won by the best prepared and equipped.

Even the greatest lawyers can't change the facts. They can craft a defense and move the conversation toward another way of interpreting a case history, but sometimes that may not be enough. Jurors in fraud cases hear that mountain of information, and watch the story unfold, but in the end they may not be moved from what they have heard - "scam."  "Ponzi-scheme." "Millions of investor money gone." 

Moving the needle in these case is so difficult. To defend here you have to "justify" the actions of men who were argued as having "taken millions" of investor money knowing their company was losing money without fully disclosing that fact.

DBSI presented the toughest of cases to win for any defendant.

Investors have lost plenty of money investing in stocks in big companies that lost traction. Rite-Aid. AIG. Shearson Lehman Brothers. Once the money is gone, they generally cannot "blame" anyone - although the "investment gurus" who touted each in the face of obvious problems seems to me to be partially responsible. But in each case, we made the investments. We made decisions. We took risks.

DBSI provided faces and bodies in the courtroom on which to focus blame. The investor decisions didn't really seem to count. It didn't matter that the investors had advisors, accountants and lawyers to review their decisions. What mattered were the faces of the defendants, the claims that these "suits" had special knowledge that had not been shared with investors before they parted with their cash.

Maybe the verdict simply reflects a deeper belief, that people with special knowledge of the underlying viability in an investment will shout it from the rooftops. But that is not always possible in the face of a crisis like the market meltdown and the real estate collapse. Condos bought for $300,000  eight or nine years ago may today be worth only $150,000. Who is to blame? The realtors, appraisers and bankers who should have seen it coming but kept selling, valuing and lending?

As a lawyer, DBSI just reminds me that there are tough cases that will eat up our lives and destroy our clients, sometimes no matter how hard we work.

And it reminds me that to win any case we need to focus our cases on themes that will play well with jurors. Ultimately the jurors will have to carry our clients to the other side if we are to win.

This is no knock against the great lawyers who defended the case. They fought like warriors. But even Ragnar Lothbrok and his Vikings ultimately must battle better equipped forces and circumstances favoring their opponents.

So too the fate of the DBSI defendants and their lawyers - and anyone facing off against the federal government. 

Fighting the feds? Better get an army.


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