Idaho Criminal Defense Blog : Boise Idaho Criminal Lawyer & Attorney : Chuck Peterson Law Firm : Civil Rights, Trial, Felonies, Assaut, DUI : Boise, Idaho Falls, Pocatello, Idaho

 Usually when I get this question, the person asking has already either taken or refused. Monday morning quarterback time: "should I have blown?" The answer depends on you and whether you hope to keep your license. 

First - a few words about drinking and driving. In 1999 the government reports there were 42,000 traffic deaths. Of those, thirty-eight percent (38%) were alcohol related.  That means that roughly 16,000 people lost their lives due to drinking and driving, and that number is nothing compared to the countless injuries resulting from the same cause. So the breathalyzer is the most common test for determining whether you have an alcohol concentration that evidences driving under the influence. In Idaho (and every other state) it is illegal to be in physical control of a motor vehicle with an alcohol concentration of .08%.  So should you take the test if you have been stopped while driving and are suspected of driving impaired?

Unless you will be well over the limit, my opinion is that you should take the test. If you refuse, the penalties increase both with the court system and through the Idaho Department of Transportation. On a first refusal you can generally kiss your privilege to drive in Idaho "good-by" for a year. And that means no driving at all - not to the store, to see your kid's play at school, to church, to work or anywhere else. So you should only even consider refusing the test if you will be many times over the limit and you know it.

Of course if you are many times over the limit and you know it, you likely have a bigger problem. 

But back on the topic - your actual level of intoxication may be different than the reading on the breathalyzer. It is not fool-proof and it is subject to attack at trial. A blood test is more accurate and I think that evidence is far more reliable so if your level is close and you can get a blood test, do so.

If you refused the test, your case at trial and before the Idaho Department of Transportation is likely more difficult and your options fewer than had you blown. So do not blow it again - get a lawyer. There are actions that you should take to protect your future, because the inability to drive for a year or more can seriously impact on employment and family relationships. 

My best advice is to call a cab or let someone who has not been drinking take you home AFTER JUST ONE DRINK. You may think you are fine to drive, but that is the power of alcohol, it lets us believe we are just fine when the evidence tells everyone around us that we are drunk. Don't get fooled by yourself into believing you are sober. Call a cab.

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 I went to get a bagel this morning after a hearing and ran into a guy with a story about "his lawyer." He had hired a friend of mine for a case in a practice area that I do not usually handle and he wanted to tell me about the great job his lawyer (and my friend) had done. 

"He was great! He was not cheap but I got more than my money's worth."

Just what had he done to inspire this testimonial? Here are the three things the client identified.

First - his lawyer really gained a complete understanding of the facts. This is always critical, and frankly, we sometimes fall down a little here. Lawyers get all wrapped up in "solving the problem" to the exclusion of really understanding the problem. Learn the facts first -  then work on solving the legal problem.

Second - his lawyer interviewed each and every witness. Again, this was critical to the client because he wanted to know that his lawyer had actually talked to the people he had identified as witnesses. "And he did it himself," he told me. "He did not hire a private investigator." Much of the time lawyers balk at this "do it yourself" approach because we do not want to be a witness if the conversation is different than what we have been told, but still, this simple practice greatly impressed the client. 

Finally - his lawyer worked with the client to lessen his fear of testifying at trial. This, he said, made it easy to tell the story to the court.

So there it is - stuff that every lawyer should do - but stuff that sometimes gets short shrift in practice. Was your experience like this? Did you leave feeling that the bill was worth the effort you received from your attorney? I hope so - and would love to hear about your experiences.

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 We lawyers tend to think of ourselves as indispensable when it comes to protecting your rights. That is not always the case and you may be able to handle your case on your own without any lawyer. It's true. Not every case requires that you spend money to hire a criminal defense lawyer - whether you are in Boise, Idaho or Los Angeles, California. Charged with allowing your dog to run at large? You can probably handle that. Speeding down the highway and pulled over by ISP? May be less difficult to just pay the fine and move on.  

Still - in these money-crunched times, getting a lawyer to help you through the criminal process will likely lead to a better result. 

 I have told the story before of a call from a man whose son was facing serious criminal charges, and like each of us, he was worried about the economic crisis. "I might just let him use the public defender this time" he said. "Money is awfully tight!  Can you give me one reason why I should hire you?"

Here are three reasons to hire the very best lawyer you can if you or someone you know is ever facing criminal charges. But first, let me tell you proudly I was a public defender, that's where I learned the ropes. And there are some great lawyers serving as public defenders, many of them top notch trial lawyers. In the Ada County Public Defenders Office, some of the "old dogs" have tried more murder cases than the average lawyer has tried DUIs, and even the "young guns" spend many more hours in court than other defense lawyers. The Federal Defenders Office here in Boise is likewise well equipped with great, caring counsel. So why hire any private counsel?

First - you may not have a choice. Public defenders are tasked to represent indigent folks facing criminal charges.  Have a job?  Get your own lawyer - usually.  But don't jump at that first letter in your post box advising you to "act now to protect your rights."  Direct mail is no way to pick your lawyer, especially when the come on is fear. Breathe deep and take some time to investigate the lawyer who wants your business.  How much experience does he or she have?  Ask how many times the lawyer has faced a case like yours. The right lawyer may actually save you money. An experienced lawyer will likely have faced the same legal issues before, so he or she will spend less time looking for answers, and you may spend less money. 

Second - you want a lawyer who will stand up to the prosecutors.  Those folks play for keeps. The state (or federal government if you are in United States District Court) is tasked with proving guilt beyond a reasonable doubt, so they use every tool they have to make their case. They have unlimited money and resources, and they are not afraid to spend those taxpayer dollars to develop their case.  They have detectives and experts who can find and analyze every detail.  So get someone on your side who knows and respects the other side, but who is not going to run from them.  Sometimes you have to stand and fight. An experienced criminal defense lawyer will do just that - fight for you.

Finally - your future may very well depend on how you handle the criminal charges you're facing. A private lawyer simply offers more available time for your case than a public defender can ordinarily provide. Having time to spend with you, and your witnesses, and your evidence may make the difference between winning and losing. Innocent people are occasionally convicted of crimes they did not commit - and time spent now on your case will provide you the best chance of clearing your name, or limiting punishment if you are guilty. In the last year or so, we had three potential cases simply "not pursued" or "DISMISSED" because we had the time to fully investigate the charges and show the prosecutor that the evidence did not prove guilt.  Without that time spent to fill in the details, those cases might have had very different results, and the clients - very different futures.

Your future is valuable enough to invest in if you are facing criminal charges.  Hire the best qualified lawyer you can get, then dig in for the fight!  Likely it will be the fight of your life.  

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 Let's say that you have entered a guilty plea to a felony and the case is headed toward a sentencing proceeding. Under Idaho law, the trial court will order a presentence investigation be completed and a report of that investigation will be sent to your criminal defense lawyer, the court, and the prosecutor. What happens if you change your mind? Suppose that you never committed the crime and only entered the plea to protect someone else? Can you withdraw the guilty plea?

Ordinarily, a guilty plea that has been entered is tough to withdraw, but it can happen. Whether you are permitted to do so will depend on the facts surrounding the entry of the plea. You will likely have to show the court a reason for withdrawal of the plea that implicates a right that was compromised by the entry of the plea. Withdrawal of the plea before the sentencing proceeding requires that you show a "just reason." There is no withdrawal as a matter of right, and the state may defeat your withdrawal by showing prejudice to its case.  In simplest of terms, withdrawal is a matter within the discretion of the court. After sentencing it is even more difficult to withdraw the guilty plea and almost never happens.

So if you want to withdraw a guilty plea you must act quickly and you must demonstrate a just reason for doing so, although that reason does not have to establish the denial of a constitutional right. Call an Idaho criminal defense attorney to get a better handle on this tricky area of the law. 

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 Is a convenience store that sells alcohol to a minor liable for injuries caused when the minor, drunk and driving, injures or kills another? The answer is likely "yes."  I had an interesting call about such a fact pattern and did a little research to find a similar fact pattern, and there are plenty of them out there.

Generally, a store that sells alcohol has a duty to check identification of the buyer. If the store breaches that duty by failing to check, and sells alcohol to a minor, there is potential liability for the seller. If the seller routinely fails to check identification that liability could include additional damages to someone injured by the purchaser. 

In one case I know of, a minor who purchased alcohol from a convenience store collided with another car, resulting in his death.  His survivors brought a lawsuit against the store, and showed that the store (which videotaped sales) had a practice of selling beer to minors without checking for identification. The case settled because it was clear that the duty owed to the public had been breached, resulting in the wrongful death of the minor. 

The answer to this problem should be simple enough - store employees simply need to insure that they sell alcohol only to adults.

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 There is this practice in Idaho of allowing County prosecutors to handle City cases on a contract basis. So small town hires County PA to prosecute misdemeanor cases, rather than have their own City prosecutor or some private law firm that functions as the City's lawyer. County Prosecutors have been doing this across the state forever, and it likely works fine in most cases. Still - how is it that County employees, being paid by the County to conduct the County's business, do the City's work while on the County's clock? I have never understood how this does not violate the basic premise that a full-time County employee should be doing the County's work full-time.

Enter the Canyon County Prosecutor's contract with the City of Nampa. John Bujak - a lawyer and prosecutor for whom I have great respect - has resigned after paying $70K of some $350K he is supposed to owe to Canyon County on the Nampa City prosecutor's contact. Canyon County employees have been prosecuting Nampa City misdemeanor cases for the past year after the City turned over the contract to the County.  Apparently John received the monthly checks, said he would use the money to pay the increased cost of prosecuting the cases to Canyon County, but did not turn over the money or account for it.  The Idaho Statesman has reported as much today, and John Bujak has resigned.

So how did this happen? Time will sort it all out but these things seem obvious to me:

First, the County was asleep at the wheel. If Mr. Bujak obtained the contract for the county, the county had a duty to oversee its performance. County employees were performing City business. That is fine but the County ultimately has to make sure that it, and not John Bujak, is receiving the money that was intended to reimburse the County.

Second, John Bujak repeatedly said that he was not going to benefit personally from the contract. It starts to look like he may have. Time will tell. 

Third, the duty of the lawyer holding money for a client is to do just that - HOLD IT - not use it as his or her own. The contract may have been in his name but the contract called for the County to perform, not John Bujak. I do not know whether John used some of that money for his personal needs, but the duty of the lawyer is to safeguard the client's funds. 

Finally, I hope the appearance of impropriety is simply that. John Bujak has been a fair and reasoned prosecutor. I hope that there is some innocent explanation for this situation. I hope that the County is reimbursed the money it is owed - whether that amount is $1 or $300K. The appearance of impropriety hurts all of us as lawyers.

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 This week I had to write that "sorry, but I cannot take your civil rights case" letter to a man who had been badly assaulted in prison.  In Idaho over the past year there have been a number of lawsuits filed by prisoners and lawyers on their behalf for damages they received when the prison failed to protect them from other inmates.  Many of the cases have value - and for lawyers representing folks in this setting, value is a critical part of decision-making process.  How do we place a "value" - money value - on someone's case?

First, I look at the circumstances that lead to the injury. In Idaho a person may recover for specific economic and medical losses as well as "general damages." The general damages component refers to the sum of money that will compensate you for your pain and suffering - that is in addition to out of pocket lost earnings or medical expenses. A person in prison will likely have very limited economic loss when compared to a non-prisoner plaintiff in a personal injury or wrongful death lawsuit. They may have the loss of future earnings, but those prison jobs do not pay much while an inmate is serving time. The same is usually true of the medical damages. Medical treatment may have been provided by the State as part of its duties to an inmate.  

General damages are limited by Idaho law. The number today is approximately $270,000 (adjusted for inflation).  Our legislators apparently do not trust Idaho juries enough to let them decide how much money to award in a damages case. They have artificially set a cap or limit, in the wild eyed hope that our insurance premiums would go down.  Check out your last three years insurance cost - has it gone down? I don't think so!  

Next, I assess the likelihood that the case can be settled without a trial. Most cases do not get tried, but they often settle on the courthouse steps. That means that the lawyer has to spend the time to get ready and pay the costs of hiring expert witnesses, conducting discovery and investigating the clients' claims. 

Finally, I get real. You need to do the same thing with your case.  

Ask yourself what you would award if you were a juror. A case I recently rejected contained this assessment by the person who wanted me to be his lawyer:

"There is a similar case filed in Boise in which there are 30 plaintiffs who have sued for $120 million, so my share should be $4 million."

Probably not. It is a mistake to assume that your case will have a particular value based on what others have received, or more importantly - what others have sued for. That $120 million number in my example is meaningless.  If each of the 30 plaintiffs received the maximum $270,000 for general damages, the total value of the 30 cases excluding special damages (lost earnings, medical costs, future lost earnings and medical costs) would be $8.1 million. And that assumes everyone's case gets the same amount, which is also not likely. 

The real value of your case is seldom as high as you want to believe. Thirty years of doing this has taught me that it is usually less than I expect it to be. 

Trying to evaluate what your damages are in a potential civil case? Whether the case is for personal injury, wrongful death, civil rights violations or fraud, your damages are very individual and the value of the case will likely be difficult to predict.  You need to take into consideration a lot of individual factors - including where the case will be tried (Boise or Bonners Ferry) and who will be trying it. 

Don't get swayed by TV lawyers who proudly claim that they got "$300,000 for John's auto accident injuries."  Your case may be nothing like "John's" and that lawyer may have taken $300,000 for a $3,000,000 case.  

Most importantly - shop around. You have time. Don't be afraid to make more than "one call," and do not hesitate to talk to many lawyers about the facts of your case.  Finding the right lawyer is too important to do otherwise.

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