July 2011

Courtney Peterson is back with more info on expungement:

Expungement in Idaho isn’t really a complete expungement of all the records in a case. I suppose it’s a bit misleading to use the term “expungement.” In Idaho, you can have your case dismissed based on Idaho Code 19-2604, but the record that you have been charged is still there. A search for your case on the Idaho State Repository will show that you were charged, even if the case has been dismissed or you’ve been granted a Withheld Judgment. The record will reflect the disposition of the case; for example, “Dismissed By Court” or simply “Dismissed.” Evidence that you were charged and perhaps convicted of a crime in Idaho will never fully be erased. There will always be a record of what violation you were charged with, whether you were convicted, acquitted at trial, given a withheld judgment, or the charges dismissed. The only exception to this rule is if the court has sealed the case, which generally only occurs in juvenile or certain domestic relations cases.

Most people who call about expungement tell us they want their conviction “completely off” their record so that no one in the world will ever have access to it again. Sorry – that is just not going to happen. Once you have been charged, absent a court miracle or clerical mistake, the fact that you were a suspect in a criminal case will show up on the Idaho State Repository. Additionally, there will always be a record on the FBI’s National Crime Information Center (NCIC for short). This is a national database that only law enforcement personnel have access to, but that record lists every arrest and every charge in your history. There is no real procedure to get these records expunged or erased.

Now, the good news. In Idaho, you get one Withheld Judgment. ONE. If you plead guilty to a charge, whether misdemeanor or felony, you can ask the court to grant you a Withheld Judgment. If you are eligible, the court will hold off on entering a formal judgment of conviction against you when you plead guilty. The judge will instead withhold judgment and after you have successfully completed probation, you can petition the court to dismiss your case. The beauty of a withheld judgment is that it allows you to honestly say that you have not been “convicted” of the specific crime you were charged with. If you’re successful on probation, you can have the case dismissed and there will never be a judgment of conviction against you. Keep in mind, however, that there will still be a record of the charge and your guilty plea on the Idaho State Repository.

Don’t let the fact that you’re only afforded one Withheld Judgment deter you from attempting to get a case dismissed after probation. Even if the judge has entered a judgment of conviction in your case, you can still petition the court under Idaho Code 19-2604 if you’ve successfully completed your probation.

Want more information about getting a case dismissed even without a Withheld Judgment? Give us a call.

 

Continue Reading Expungement Isn’t Really Expungement In Idaho

Courtney has today’s blog entry – and she looks at probable cause.

I just found out I’ve been driving around with only one working tail light and it got me thinking about reasonable suspicion and DUI. The only thing a police officer needs to pull you over is reasonable suspicion that a crime has been or is being committed. One of the most common complaints we hear when a person has been charged with driving under the influence is that their driving was fine, they can’t imagine why the officer had reason to pull them over, and it must be entrapment. Reasonable suspicion is easy. It can be as obvious as my burned out tail light or as minute as not having a turn signal on for at least five seconds after a stop sign (which is the law in Idaho, by the way). Most DUI stops occur early in the morning after the bars have closed. People cry entrapment because an officer parked near the bar and followed them after leaving. That’s not entrapment. Just leaving the parking lot of a bar is not generally enough for an officer to pull you over. They’ll just follow you for a bit and wait until you do something that gives them the right to pull you over. There’s your reasonable suspicion. Once you’re pulled over for "weaving inside the lane" or going one mile over the speed limit, they’ve got a chance to see if you’re under the influence. Stop leads to field sobriety tests, a breathalyzer demand and maybe – a DUI.

Here’s one more thought:  When a police officer pulls you over, what is the first thing he or she always asks? Even before you’re asked for your license and registration, it’s the same question every time.

“Do you know why I pulled you over?”

And do you know what you should say every time they ask you? NOTHING. Absolutely nothing. The officers are looking for an admission. They want you to tell them why they should have pulled you over. If they’ve got you for failing to use your blinker and you tell them you were speeding, how many tickets do you suppose you’ll get? My guess is two.

Have a question relating to a traffic stop?  DUI?  Reckless or inattentive driving?  Give us a call.

Charged with a DUI and wonder if the stop was legit? Give us a call.

 

Continue Reading Courtney Peterson: When Can I Be Stopped While Driving?

I heard again yesterday the old story about Oliver Wendell Holmes’ reminder to his law clerk, who questioned whether a decision was "just" or not. Holmes is reported to have told the clerk, "we’re not in the justice business; we’re in the law business." Indeed we are. There are unjust results that flow from our system, and you may judge yesterdays decision as unjust. The system worked fine – and the jury did it’s job. Their decision is simply that, their decision. Just or unjust, each side had their day in court and now we all move on.

While the country debates the jury verdict in the Casey Anthony trial, I thought it might be good to take a minute to consider how any criminal case can be destroyed by the DEFENDANT – not the lawyer – who thinks he or she can talk their way out of trouble. Consider the following three things you can do to destroy your criminal case, some of which are illustrated by the Anthony case.

First – lie to the police or investigators. Why can’t defendants simply not talk to the police? Every 5 year-old in this country has heard that he or she "has the right to remain silent," but nobody ever does. Instead of simply refusing to answer questions, most defendants tell the investigators some story that they think will get them out of trouble, but rather, sinks their ship. If you tell lies to the police, then expect the prosecutor to reveal you as a liar. Silence is better than lying and even telling the truth to the police without first talking to a lawyer is dangerous. Remember that Casey Anthony’s lawyer had to admit in opening statements that she was a liar. That is not the way you want any case to start.

Second – tell the lies to your friends and family. Investigators and police call your friends and family members "witnesses." What you tell them will almost certainly be used at trial to impeach you – that is a nice way of saying that your lies to your friends will also be used to reveal you as a liar. Again – the truth may set you free but those little lies to friends can convict you. Don’t be tempted to tell friends and family about your situation, just sit tight and let time take its course. You don’t need your brother’s best friend’s former girl friend to show up at trial and testify that you told her a different story than the one you told the jury! 

Third – insist on taking the stand at trial. Smart clients listen to their lawyers. Some clients never listen and insist on doing it their way (mostly these are lawyer-clients, or clients who think they know more than their lawyer). The Defendant in a criminal trial always has the right to take the stand and frequently I advise my clients to do so. The jury trial is all about the story of the case. Usually the Defendant will have to tell the story, but not always. Many cases are won by lawyers who are brave enough to keep their clients off the stand. It depends on the case, and the defense offered. And it depends on the ability of the defendant to stay out of trouble on cross-examination. My point is this – listen to the lawyer who is trying your case. No matter what those talking heads and vigilante former prosecutor turned millionaire TV talk show hostess insist – the person who knows you and the case is YOUR lawyer.

Getting ready for trial? Think you may have blown it by talking to the police or lying to a friend? You may have, but that verdict in the Anthony trial reminds us that juries usually take the instructions to heart and insist that the prosecutor prove its case beyond a reasonable doubt. Trust your lawyer and the jury and play it smart.

 

Continue Reading Three Ways To Destroy Your Criminal Case