I just googled DUI Idaho and found this great pdf file that you can download and print here. Although it is a little "schmaltzy" it still summarizes the Idaho DUI law. So check this out if you are now facing a DUI or interested in gettting a better handle on the law.
So you have given the nice officer the two beer story, failed the field sobriety tests and been arrested for suspicion of drunk driving. You get the quiet ride to the station (or in some locales they just do this in the field) and now comes the critical decision: Should you blow or refuse. If you refuse to take the breathalyzer, Idaho law provides for a one-year absolute suspension of your driving privileges by the Court (if you are convicted) AND the Department of Transportation. So refusing the test comes with a high price. Some folks do so, however, because they believe that the State's case will be tougher without an actual test. But is it really harder to convict someone without a breathalyzer result?
The first problem with refusing the breathalyzer is the administrative consequence - your license to drive will be seized and suspended by the Department of Transportation for a year. Compare that with 120 days for a first time offender who blows more than .08. Essentially, every person who acquires a driving license consents to a test of his or her blood, breath or urine to determine whether there are drugs or alcohol in their system while driving. And it is possible now for an officer to force you to take a blood test if you refuse the breathalyzer.
There are areas of attack for experienced criminal defense lawyers when confronted with a breathalyzer result evidencing drunk driving. The attacks generally focus on the science behind the breathalyzer, the maintenance and upgrading of the machine, the training of the officer, and the failure of the officer to follow proper procedures in administering the test.
If you do not take the breathalyzer you need to hire an experienced criminal defense lawyer at once, There are challenges that might save your license. An attorney in this area of law can explain your options and help you defend that case you never want to see - "State of Idaho v. You!"
So should you blow - taking your chances on the machine and your recollection of how much you had to drink? Or should you refuse? Generally I advise folks to blow - unless they truly believe that their result will be above .20. At that level the State has additional penalties for the "excessive DUI." If you think the result is wrong, and have been arrested for DUI, get a lawyer as soon as you can.
Driving drunk is lethal. The best solution would simply be to take the cab, but people who have been drinking seldom choose the best solution.
My week started with this call - "Hey man, I've been charged with DUI. Just how much trouble am I in?" This really seems like a great starting point to pull out the statutes and consider the DUI in Idaho. Short answer - if you are charged in Idaho with driving under the influence of alcohol or drugs you must take this seriously. The decisions you make will impact three areas of your life - your wallet, your freedom, and your reputation. I mean it - your reputation matters! Employers care about whether the guy they trust to handle their business can handle his or her own "business." And nobody wants to lose their freedom or their money! So before you make any decisions about whether to hire a lawyer or go it alone, consider the Idaho punishments for a DUI conviction. You can look at Idaho Code Section 18-8005 - the penalty section here.
First timers face 6 months in jail, a $1000 fine, 180 days drivers license suspension from the court, and a term of probation that will require an alcohol evaluation and treatment plus a visit to the Victim's Panel. Remember that under Idaho law even a first time DUI conviction will result in another drivers license suspension from the Department of Transportation for failing the alcohol test - 120 days, or for refusing to take the test - another year of absolutely no driving. That second punishment may run consecutive ("in addition to") the court's suspension. So best case - a first time conviction DUI means you will spend money on fines and court costs, lose your privileges to drive, spend time in jail (work release or community service), and have the opportunity to be evaluated for your alcohol use and then be treated or educated - depending on your own use patterns. Lost money, liberty and reputation.
Second time offenders face a longer jail term - not less than 10 days the first 48 hours of which must be served consecutively. That means at least 2 days in jail. Two days knowing that you cannot leave. Two days wondering how this happened. Two days waiting to get out and vowing to never return. The other big difference for that second conviction is the loss of all driving privileges for a year. No driving at all - not for work, or school, or to the store, or the doctor or your kid's school. And when you get your privileges back you may only drive a car with an ignition interlock device - this device will not allow you to start your car if it detects any alcohol. Imagine trying to explain that to your new boss who needs you to run her to the airport. "Love to. Now I just blow into this tube...."
As they say, the third time is the charm, and that applies to Idaho's DUI laws. A third charged DUI with 2 priors in the last 10 years brings a felony. Felony. Think real time, prison sentence, alcohol treatment of the intense variety, and having to explain that felony conviction for the rest of your life. But if you have that felony charge you already know this stuff because you almost certainly have a serious drug or alcohol problem. You may not admit it, but you know it. And the felony DUI can put you away for ten years, result in a $5000 fine, and mean the end of all driving for five years.
Just how did you get here? What does it take to be charged with DUI? Look, if you are in physical control of a motor vehicle and have an alcohol concentration of .08 or more by breath, blood or urine, you violate Idaho law. But what if they can't prove that you are over the limit? If you drive and are under the influence of drugs or alcohol, regardless of the concentration, you can be convicted. Check out the Idaho Code here for the precise language.
How are DUI cases generally proven? Two things are almost always there - first, there is the confession that the defendant has been drinking. "Sir, have you been drinking tonight?"
"Just two beers officer (or occasionally - "occifer")."
So there it is - a reason on which the officer can ask you to do the field sobriety tests. The reports almost always say, "the defendant admitted he had been drinking and I smelled the odor of alcohol on my initial contact with the driver." By the way - if you are going to admit you have been drinking you may as well tell the officer the truth. You do not have to admit anything. You may refuse to answer that question.
And the second type of evidence in virtually every case? The field sobriety tests. Apparently no person in the history of the world has ever passed the field sobriety tests. You will likely encounter three tests - the gaze nystagmus, the walk and turn and the one-leg stand. These "tests" are supposed to give the officer a reasonable basis to ask you to take the breathalyzer test.
So do you take the test or not? To blow or not to blow - that is the question for our next post.
Charged with DUI? Here is my best advice. Hire the best lawyer you can afford. Do not think you can just go it alone. An experienced criminal defense lawyer can help you keep your liberty, your money and your reputation. More about this in the rest of this series on driving under the influence in Idaho.
I am working on my response to a motion to dismiss a civil case under Rule 12(c), which permits a judgment on the pleadings to be granted when, taking all the allegations as true, the moving party is entitled to judgment as a matter of law. This is a civil case, and the practice in civil cases is different than in criminal cases. In criminal cases I am often asked why the judge doesn't just dismiss the case. Many defendants are simply certain that the judge will read something and understand immediately that they have been unfairly charged. After that revelation it is only a short jump to certain dismissal. OK - here's the bad news - it doesn't work that way.
If you have been charged in a criminal case a court has already found that there is probable cause to believe you committed a crime. In a felony case, a grand jury has found probable cause or a magistrate judge did at the preliminary hearing. So it is pretty unlikely that the case will simply be thrown out before trial, but it actually could happen. Rule 48 of the Idaho Criminal Rules permits a judge to dismiss a case in the interests of justice (which really does mean any reason) either on motion by the defendant or on his own motion. If the case is dismissed by the judge it may be re-filed if it is a felony, but not so if a misdemeanor. If it gets dismissed as a misdemeanor, it is gone for good.
But does this happen? Not often. Judges presume that the prosecutor knows more about the case than he or she does, and that is usually the case. So the Court is more likely to let the prosecutor try to prove the case. The best hope for a "dismissal" is the motion for Judgment of Acquittal based on Criminal Rule 28. A judge can decide to dismiss after hearing the evidence and concluding that no reasonable trier of fact could conclude there is proof of guilt. Last summer I had this happen twice - two different judges - acquitted my clients in criminal cases, one a felony and the other a misdemeanor. If you go to trial you want to make certain that your criminal defense lawyer moves the court to order your acquittal at the conclusion of the State's case. Just look at your lawyer and say "Rule 28?" If he or she doesn't do it ask them why!
As reported earlier, Boise mortgage and real estate "professionals" are headed to prison as a result of a fraud scheme that cost Zion's Bank $20 Million. Check out the earlier post here and the Statesman article here. So it's not just New York, or Bernie Madoff. There are more and more cases like this coming against others in the same industries.
Twenty-nine years ago my favorite prosecutor burst forth mightily. Noisy then and today, we named you Courtney because we knew then that someday you would do what you do. Happy birthday Porkchop! Hope this last twenty-something birthday is a great one! All our love. Next up - thirty-something!
Picking a lawyer is about as tough a decision as anyone ever has to make, so imagine if you are charged with a crime and you have to choose a lawyer to represent YOU! This past week another lawyer sent me a potential client who is charged with a felony. "Why me?" "Because Bob says that you have more experience making something out of nothing than anyone else he knows!"
Guilty. I have to admit it - there is something to experience. Something to having been there and seen it and dealt with it before. Sometimes you don't have much to use so knowing how to use it can be an advantage.
There is a thing about experience that matters if YOU are the client! Legendary Texas trial lawyer Richard "Racehorse" Haynes says it this way: "If you go in for heart surgery, you want a surgeon who has done it a few times before." And that is why you need to ask any lawyer you are thinking of hiring to represent YOU in a case that looks like it is going to trial HOW MANY TIMES HAVE YOU BEEN TO COURT? This year? Last year? In the history of the world how many cases have you won? Lost? Are you willing to fight for ME?
Get the answers to these questions and ask one more: What is the most important trial you have ever been in?
Braggin' about numbers is one thing, but that last question will tell you about the person. What does he or she care about? Is it money or freedom? If you know what matters to you and it matters to the person who will walk YOU through the valley of death, you may have found YOUR lawyer. If you're in for a fight, choose a fighter, not a banker in a velvet suit. The courts are full of those guys. Pick someone with more on his or her mind than how to pay for the Lexus.
A federal judge I admire says it this way - "You can't fake it - either you've got the fire in your belly or you don't. Judges know it and so do juries. You can't fake that stuff." Pick that lawyer - the one who cares about you and your case. The one who has been there before. The fighter.
For all those times I have watched people throw cigarette butts on the ground, I never really thought I would see anyone charged with littering by cigarette butt - but now I have. In State v. DP - name changed to protect the presumed innocent - the Boise City Attorney's Office has charged DP with the misdemeanor for doing just that. When those Boise City employees do the same thing down at City Hall will Boise City Attorney Colaianni charge them too? Will Assistant Boise City Attorney Andrea Carroll rush to court to charge members of the Boise Police force with the same crime? Will Detective Ryan L. Jones of the Boise Police Department now spend his valuable taxpayer time hunting down the thousands of offenders who pay his salary?
I kind of hope so - because there are probably enough offenders out there to pay for a new "Cigarette Butt Court." Then we could have a new Judge and perhaps another Misdemeanor Probation officer to monitor the butt dropping habits of these offenders.
For our part - we are getting ready for trial!
In a real estate and mortgage fraud case, a former Boise mortgage loan processor for Zion's Bank is headed to prison for 18 months following her entry of a guilty plea in federal court. Barbara Cobos pleaded guilty to defrauding lenders and borrowers both, by a scheme in which the true ownership of real property was disguised and construction advances were made without work having been completed. Another Defendant - Chris Upchurch - who was a local Boise builder and developer has also pled guilty and will be sentenced next week. Sources close to the case say he too will go to prison - likely for more time than Cobos received. How much time? Could be twice that amount or more. Two other defendants also were charged and have plead guilty to fraud related crimes.
This may just be the beginning of the real estate and banking fraud cases in our part of the state. Like Bernie Madoff, there were apparently plenty of folks who lied and cheated their way to fortunes. There will also be some folks caught up in these investigations who are INNOCENT! If you find yourself in that situation - get an attorney BEFORE you talk to the investigator. An experienced criminal defense attorney can help guide you to safety and perhaps avoid criminal charges.
Let's say that you invest a cool hundred thousand or so into a real estate project and the developer who takes your check deposits that check into his or her personal bank account. The money is not spent to develop anything - but rather to buy a new boat or pay the developer's mortgage or car payment. Is that fraud? Survey says - maybe. This is more common than you might imagine and I had this call just last week. Did the developer have a duty to tell the investors that the money was going into his or her pockets, and not to build the condos in question? In Idaho and most states, a false statement made to induce a person into taking action - investing money - may be the basis for criminal charges of fraud and a civil fraud case. Every set of circumstances is different, and the answer probably lies in the writings of the parties, but if you have been the victim of this type of scheme, check out your possibilities. Fraud is a crime - as in the "go directly to prison" type - and fraud can also be the basis for a civil remedy.
The Idaho Department of Finance has most recently sued a company that sold investors in Idaho on the development of the Juan Dolio Resort in the Dominican Republic. Forty Idahoans fell for the "investment" which promised fixed rate return on their money, but of course that return and their money went into someone's pockets. If you invest money into the building of a condo shouldn't you be able to expect - or insist - that the money actually is used to construct the condo? Absolutely! Anything less - like your money going into the pockets of the developer - is fraud.
In my practice I have clients in criminal and civil cases who are alleged to have committed fraud, and I have clients who are suing other persons in civil cases for fraud. In the criminal setting, fraud is tough to distinguish from other failed business ventures. The cases usually turn on the question of what the person intended.
If you have a civil case alleging fraud you may be able to recover your losses. So if that stock broker did not tell you the truth about the investment, or the real estate developer lied about where that money you invested was going, you may have a case. Give us a call to discuss the facts.
Congrats to my brothers and TLC Warriors on their victory in Houston in a civil rights case that pitted Kent Spence and Rafe Foreman against Harris County Sheriff's Office and its deputies. After just four hours deliberations, the jury awarded the estate of Joel Casy $600,000 and $2.4 million to his mother. The Houston Chronicle reported:
Casey’s death was ruled a homicide. An autopsy found the 52-year-old man died of psychotic delirium with physical restraint associated with heart disease.
He also suffered fractures to his seventh cervical vertebrae and the left horn of his thyroid cartilage, believed to have occurred when one deputy dropped a knee on Casey’s neck and pulled Casey’s head back, said the dead man’s attorney, Kent Spence.
You can read more about this case here . Sometimes juries get it right. Casey had complied with officers who showed up at his house to arrest him on a mental health warrant. When he complained about the pain one of the handcuffs was causing him, Mr. Casey (a 52 year old man who suffered from schizophrenia) was taken to the ground and an officer put a knee in his back while pulling his head by the hair.
Look folks - this stuff ain't rocket science. Simply treat others like you would expect to be treated. There was no need for Mr. Casey to have died here, and a jury said so. Police misconduct cases are tough, and I cannot think of any local cases in recent times that have resulted in a favorable verdict, but it can happen (remember Ruby Ridge!). If you think you have a case - consult an attorney who can help you level the playing field.
So here is a post about being a lawyer - not about crimes.
This weekend I will be serving as a mentor for the United States District Court trial skills program. Basically I will help provide whatever benefit I may have gained over the past twenty-seven years in the courtroom to lawyers who have less time there. Some will not have any real time in court, and many will never have picked a jury. So tell me about picking a jury - my own daughter / prosecutor asked me recently. Jury picking is a tricky thing. Last summer at the Trial Lawyer's College we spent a fair amount of time with Gerry Spence learning his "method" of sorting out who stays and who leaves. At the simplest level, nobody picks a jury. You pick the people you do not trust - cannot trust, and pick them to leave. The first step is to remember that you want to include the jurors on your "team." The key is to identify open minded jurors, and get them to gain confidence in you. If they associate with you and your case and your client, they are more likely to reject the other side in the case. So we start out by being honest with potential jurors about the case. We tell them about the warts (problems) - and as Gerry says - show them are own warts.
I gave an example of this last summer from a case I won in which my client, an Iranian woman, was accused of defrauding the government's medicaid system. You can read about that case here. I told the jurors that I was afraid I harbored prejudices against Iranians and that might hurt my own client's case. My own prejudices likely go back to the capture of Americans by the Shah's supporters. I remember seeing them paraded through the streets and thinking how unfair it was that these Americans were held by terrorists while my government did nothing. My feelings were real, so I told the jury about them. They then talked to me about their own prejudices - many were willing to discuss this because I had. You know the drill - you show me yours and I'll show you mine. Nothing brings jurors closer than that kind of "sharing." Bottom line - jury picking is tricky stuff, and almost nobody (including me most days) does a very good job of it. But if you need to do this and are worried about how to - call me - I love to help other lawyers with this stuff. And pick up a copy of Spence's "Win Your Case." Truthfully, the stuff in that book can help you win your case.
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