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

 I am working on a case in which a private citizen reported to the police that his neighbor had been drinking, got in an argument and left in his car. The tipster reported that the neighbor was drunk and driving. He gave the likely direction of travel and type of car. Cops notified by dispatch saw a car that matched the potential offender's vehicle and stopped it to investigate. Sure enough they smelled the odor of alcohol, recognized the glassy eyed stare of too many beers and concluded that the occupant should submit to field sobriety tests. End result - DUI. 

So is the BAC that was derived from the failed field sobriety tests and the officer's observations admissible at trial? There was no warrant for arrest or to search. They only had an anonymous tip by a neighbor that the occupant had been drinking and was driving to town.

Survey says: probably.

The Fourth Amendment to the US Constitution protects against unreasonable searches and seizures. When you challenge the validity of a vehicle stop or other seizure the burden is on the State to prove the stop was justified. The stop is either reasonable or not depending on the totality of the circumstances. The police must have had a particularized and objective basis for suspecting that the person they stopped was engaged in a crime - like drunk driving. That suspicion may be supplied by an informant's tip or a citizens' report, and it all comes down to the content provided and the reliability of the informant.

In Idaho there is a case (State v. Etherington) that says an anonymous tip alone, without sufficient indicia of knowledge and veracity is insufficient to justify a stop. However, a later case (Wilson v IDOT) held that the opinion of the tipster that the driver was drunk, based on her observations, was enough to validate the stop.

So be careful out there. Do not drink and drive. Call a cab or a friend or use the feet attached to your legs. If you drive and are drunk and get reported and arrested you will spend a lot of time and money trying to get your driving privileges back.

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 The problem with the breath test is it's assumed accuracy. Ask any lawyer who has tried a DUI (driving under the influence) case and tried to convince a jury that the test may not be providing an accurate result. Ask any person who has ever been convicted of DUI and wondered - most of the time out loud - whether that BAC result was skewed. Don't bother asking most jurors - they operate in a bubble. BAC of .08 or greater and most jurors listen to that nice officer and the laboratory scientist who confirms that the Defendant's concentration of alcohol was criminal. 

The breathalyzer is tough to beat in court. I am not suggesting it can't be done. It can - but is is tough.

So the news this morning that in Washington DC, four hundred folks were wrongly convicted and half of those went to jail, because the BAC was inaccurate, may give us all pause.  

The story from the Washington Post exposes the failures of the machine and it's guardians - city police officers who were tasked with adjusting the machine to assist with it's presumed accuracy. They got it wrong and people were wrongly convicted. Could that happen in Boise, Idaho? Absolutely.

If you have been charged with driving under the influence of any intoxicating substance remember that the state's case depends on their having PROOF that you violated the law. With the breathalyzer there are plenty of areas for a failure of proof. The machine has limits, and so do the folks tasked with ensuring its accuracy. Find a good lawyer and have your DUI case reviewed before you simply accept the "evidence" of your guilt. 

And if you drink - don't drive. That life you save might by your own - or someone you love. A DUI is a very expensive lesson in the obvious.

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 A recent Idaho Court of Appeals decision follows recent United States Supreme Court precedent, allowing a search of a car incident to arrest, even if the defendant is in custody at the time of the search, and unable to reach into the vehicle at the time of the search. The Idaho case is State v. Cantrell, decided by Judge Gratton and joined by Judges Lansing and Gutierrez. The facts in the case are fairly simple: driver of a car is stopped for going the wrong way down a one-way street in Boise. As my pal Merris says - "it was dark, he was drunk, and he was driving downtown." Probable cause to stop? Sure. Officers approach and the driver admits he was drinking, has the "glassy" eyes (aren't all of our eyes glassy) that happen to also be bloodshot, and the "thick" speech. He says he has been drinking and he "knows where this is going." Failed gaze nystagmus added to the equation equals arrest for driving while intoxicated (DUI). Cuffed and placed into the cruiser, the officers call for a tow and proceed with a search incident to arrest. Under the seat they find some marijuana and read the defendant his rights. Does he remain silent? 

NOT ON YOUR LIFE - but that is the usual way of doing business. He admits that the pot is his and a bong will be found in the trunk. The officers find the bong, and a duffel bag loaded with mary-jane. He is charged with trafficking - for which there are mandatory minimum sentences in Idaho. 

The district court denied the motion to suppress the evidence because it was either incident to arrest or because of the inevitable discovery exception. On appeal the question is whether that ruling stands in view of the United States Supreme Court decision in Arizona v. Gant, where the Court held that the automobile exception to the warrant requirement authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, OR when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‟ 

The Idaho Court of Appeals finds that the search of Cantrell's vehicle is permitted here because it was reasonable for officers to believe that evidence of the DUI might be found in the car. The search is good, conviction stands. 

So what do we learn from this case? 

First - when you drink, do not drive. It really is that simple; isn't it? If Cantrell had not been drinking and driving the wrong way down a one-way street, he and his pot would not have been found that night.

Second - stop trafficking in marijuana. I know it is legal in California, but this is Idaho. Stop already. Prison is not that interesting as you will discover if you are convicted of trafficking. Mandatory sentences mean mandatory time in the can.

Third - when they say you don't have to talk; don't. Silence is a good thing, especially if you have been violating the law. The police do not need your help to convict you. In fairness, they likely would have gotten to the same place even if Cantrell had remained silent. But that just takes us back to points one and two.

Finally - we learn that although a warrantless search of your car is per-se unreasonable, and arguably a constitutional violation if you could reach into the car at the time it is searched, or if the police believe you may have left evidence of your crimes in that rig, they get to search without a warrant. 

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 When I was at the Trial Lawyers College I met Daniel Rodriguez - a mild mannered civil rights lawyer from Bakersfield CA. He showed me there that he was simply one of the greatest story tellers in the class and undoubtedly one of the great trial lawyers in the country. He has a home town style that quickly captivates those around him. 

He also just won the biggest verdict in California history for a drunk driving case - $31 million. 

So how did he do it? Here are a couple things that made his case so compelling: 

First - his clients had real damages. His primary client had brain damage and will need constant care for the rest of her life. So there were huge sums of money that will be needed to keep 19-year old Rosie Landros alive. Real damages make a real difference. So often we have potential cases where people are hurt, but seldom are they as severely hurt as the victim here.

Second - there was real liability. The driver of the other car had pled guilty to driving under the influence of alcohol (DUI). When liability is established, the only question is how much the victim is entitled to for damages and there is no issue of contributory negligence. 

Third - THERE ARE NO LIMITS FOR NONECONOMIC DAMAGES IN CALIFORNIA - or Wyoming, or Montana, or Texas or a whole bunch of other states. So pain and suffering has real value in those states. In Idaho the insurance companies convinced our state legislature that juries award too much money for pain and suffering, so WE HAVE A $250,000 limit or cap on noneconomic loss. Our pain is not worth as much as the pain suffered in neighboring states. 

And those same legislators clamor for tort reform while taking money from those insurance companies and their lackies.  

Here's an idea - let's throw them all out of office and start over. Then we the people can restore to us the same rights we would have if we were injured in a neighboring state.

Want to read more about this case? Check out the newspaper account here. And congrats Daniel. From a class of pretty good lawyers at Trial Lawyers College, you again showed us that you are the King!

 

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 I had a call this week from someone who wondered if the court would require him to have an ignition interlock placed on his car as a result of his plea of guilty to a second DUI.  The answer is - probably.

The law provides for the use of the interlock - which is an electronic device that prevents the driver from starting a car if there is alcohol present in his/her breath - as an option in any DUI conviction.  Idaho allows the Court to impose this as a condition of probation.  Additionally, the Idaho statute provides that the drivers license for such a person shall reflect the condition.  So - if you have to use an interlock device - it would be virtually impossible to rent a car if on a trip outside the state.

The other thing to remember about the interlock device is that it will cost you, as the driver, an additional amount of money each month for the use of the device.  The only real good news is that the requirement will end when your probation ends.  If you are in this situation you are likely on supervised probation - another revenue generator for the state and another source of accountability for anyone convicted of driving under the influence of drugs or alcohol.

I heard yesterday that another person dies as a result of drinking and driving every thirty seconds. That is a lot of needless death and suffering.  Make a decision today to not drink and drive.  And if you can't seem to quit drinking, maybe it is time to get some help for your problem drinking.  

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 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.

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 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.  

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 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.

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 Got a call today from a nice lady whose son (21 years old) is charged with Felony DUI.  What might someone expect from a felony DUI?  IF guilty, a typical sentence in Ada County would likely include 120 to 150 days in jail - real time - not community service or SILD.  Add to that a $2000 fine (some likely suspended), 5 years of not driving, alcohol treatment (usually outpatient) and a real live, honest to God, FELONY conviction.  Oh - and add 5 years of felony probation. Someone is going to have to be called every time that kid wants to leave Ada, Elmore or Valley County.  And he will not be drinking anymore - that is always a condition of probation.  

The third felony gets you the habitual offender (add five more years) so every felony is a serious event.  How about getting junior out of jail?  Can do - but the bond is usually between $5000 and $25000.  And attorneys fees?  Add another $5000.  So that third DUI is a killer - best bet is to just not drive.  There is not a cab in town that costs as much as that FELONY DUI!

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 Just how busy are Idaho's law enforcement officers this time of the year?  As my Dad used to say, "busier than a one-legged man at a butt kickin' contest." The Idaho Statesman reports that Idaho DUI arrests have doubled over the past five years, the average number of arrests has risen to around 600 per year, and of those, half will be repeat offenders. So let's talk about what you should do if you are stopped and asked to take the breathalyzer. If you refuse the breath test there will not be a "record" of your BAC level, which might make it more difficult to convict you in a criminal trial, but it will also result in the Department of Transportation suspending your license, absolutely (as in no driving at all) for a year. That year runs in addition (or consecutive) to any suspension imposed by the court in a criminal case, if one is brought. And then there is the mindset that anyone who refuses is likely guilty. Jurors always consider your refusal, even if they tell your lawyer they will not. If you do take the breathalyzer test, there are consequences too - most importantly - there will be some record that can be used as evidence against you at trial - no matter what the BAC level actually is. If you blow above .08 DOT will suspend your license for 90 days, the first 30 absolute. And of course at trial the prosecutor will have a "per se" case, that is a case in which the proof of a BAC above .08 violates the law, leaving you to attack the BAC, the Breathalyzer and perhaps the way the sample was collected. If the level is above .20, the enhanced DUI provisions of the law apply, likely making your punishment greater if you are convicted.  So should you take the test? My general answer is yes - unless you are so incredibly drunk that you will certainly blow above the .20. But if you are that drunk, you probably won't be sufficiently aware enough to refuse the test.  

The key here is simple - there must be proof that you were driving under the influence or driving above .08 - and if you blow above .08 - well that case is easier to prove than a "no blow." If you blow below the .08, you won't get charged, but you will not know your BAC level unless you blow. Then there is the problem of the blood draw - if you refuse to blow there may be circumstances that entitle the officer to require you to submit to a blood draw. So there is no easy answer here.

If you blow or don't blow and get arrested, pull out the wallet and hire the best Idaho criminal defense lawyer you can afford. There is just too much riding on this to do it yourself. And BEFORE you hire any lawyer, check out my article here on what to ask that lawyer who wants to handle your case.

Remember - that nice prosecutor wants to take away your driving privileges and send you to jail. DUI cases are not easy to win as a defendant, so the best advice is to NEVER DRINK AND DRIVE. Failing that advice, check out my prior report on how the deck is stacked against you if you are charged with driving under the influence of alcohol or drugs (click here).  

Got a question about DUI? Send me a comment OR CALL NOW TO DISCUSS YOUR CASE.

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 In an article today in the Idaho Statesman, a federal agency the investigates transportation accidents says Idaho could do better fighting drunk drivers if it would adopt its eleven (11) "best practices."  The bottom line - the law and its enforcement would get tougher making the crime even more - well - criminal. DUI laws in Idaho are tough, and prosecutors have the upper hand in plea negotiations, evidence that is permitted to be offered at trial and available expert witnesses. As I have written here before, you are at a huge disadvantage if charged because the deck is already stacked against you!  Idaho already uses many of the "best practices" it says make for tougher enforcement. Could Idaho get tougher? Sure. If the state wanted to make it illegal to ever drink and drive it likely could pass a law to ban any level of alcohol in the blood of drivers. So what do you do as a driver - simple - DON'T DRINK AND DRIVE. What if you are charged with DUI? Isn't everyone charged guilty? Of course not! Regardless of their zeal to get every drunk driver off the road, not everyone arrested is over the limit (.08). The field sobriety tests relied on by the police are NOT necessarily evidence that you are over the limit. The Breathalizer 5000 is not fool proof either - it does not measure breath alcohol at all. It measures the passage of light through a sample of breath that may contain alcohol and then converts the data (speed) into a breath alcohol level. Bottom line - Idaho may get even tougher on persons charged with driving under the influence of alcohol or drugs, making it more difficult for the innocent person to get his or her day in court. Just remember - you are presumed innocent unless and until there is proof beyond a reasonable doubt of your guilt. So don't go this one alone - find a good lawyer to help you through the process.

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 Tis the season for increased traffic patrols - and DUI arrests in Boise, Idaho.  The Statesman reports that between Friday night and Sunday afternoon forty-nine persons were arrested and charged with driving under the influence of alcohol or drugs. Suppose for a minute that you are one of those forty-nine. Any criminal charge is expensive and the outcome important enough to give serious consideration. Pick the wrong lawyer and you become a statistic. Miss an opportunity to defend yourself and you lose - your case and the money that such a conviction costs in fines, time lost to court hearings and jail, alcohol education classes, alcohol evaluation fees, drivers license reinstatement fees, court costs (those judges have got to be able to retire and you get to pay for this with your court cost check) and that lost job opportunity. Need a ride to work? Hire a cab or have a friend drive you, even if you are innocent.  That's right - innocent. The myth is that everybody charged with a crime (whether DUI or racketeering) is guilty, regardless of the presumption of innocence.  So as you think about who you will hire to keep you free - let me give you FIVE QUICK QUESTIONS TO ASK EVERY  LAWYER YOU THINK YOU MAY HIRE:

FIRST - how many years have you been in practice.  New lawyers know almost nothing about practicing law (sorry, but its true). If it was your MOM who was charged with a crime, would you want an inexperienced lawyer who just passed the bar to handle the case? No way!  There is no substitute for experience.

SECOND - how many criminal trials have you done and with what results?  Your case may not go to trial, but ask this question.  Has the lawyer WON a criminal trial this year?  Ever?  And by WON, I mean heard those two magic words: "NOT GUILTY!"  If the lawyer has not won a case this year - ask for an explanation. And ask the lawyer if HE OR SHE was the responsible or lead lawyer on the case.  Some lawyers have never been the lead counsel in a case and WON it on their own, they have only done so with someone else at the helm. You only want the lawyer who has actually stood up and argued the case as THE lawyer, not the second. If the lawyer you are talking to has never personally had an acquittal as the lead lawyer - MOVE ALONG TO THE NEXT LAWYER.

THIRD - who in your office will actually handle my case? Your freedom is too valuable to trust your case to some rookie associate who has not been there before. Can that young associate help and make your case more likely to be a winner? ABSOLUTELY! Young lawyers have brains and recent case information that will help to build a winning strategy, but that young, inexperienced lawyer needs time in court to become a winner. So if the lawyer you are hiring is not going to be personally responsible - MOVE ALONG!

FOURTH - how will you keep me informed about my case? You are buying advice and you are paying for someone to keep you informed about how the case is going and where it is going, so how will you get information? I have seen lawyers who were "not in" more than they were, at least when it came to talking to them. Get a lawyer who is going to take your calls and be around to talk when you need to talk. In our office we use Basecamp to keep our clients up to date - actually building a private website for the client where his or her case documents and calendar are always available. Just how will that lawyer get information to you?

FIFTH - how much will this really cost? Let me be honest here, a simple DUI case might cost you $1000 or $10,000 depending on how the case is handled. Will you be charged a "flat fee" covering all the work or will you pay by the hour? There are options that you should decide. Deciding how the case will be handled will also help you decide how much it will cost. Having money to defend a criminal case is like that "Rainy Day" fund the State has been building up, "just in case."  If you have been charged with a crime, follow this one rule above all others: HIRE THE BEST LAWYER YOU CAN AFFORD. Period. Your life and liberty depend on that decision.

Hope this helps - now get out there and find someone who can fight for you. Every criminal case is a war, every motion a battle.

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If you have been arrested and charged with DUI (driving under the influence), you may think your chances of winning your case are good.  You are presumed innocent.  The prosecutor must prove his or her case by legal and competent evidence establishing guilt beyond a reasonable doubt. You can remain silent and rely on your lawyer to ask great questions until that cop who arrested you cracks like an egg under the pressure and proclaims your innocence - right? Not a chance!  The deck is stacked against you in a DUI trial whether you are in Boise, Idaho or Honolulu, Hawaii.  Here's why - 

First - the politicians who passed those tough DUI laws are against you. They know that being tough on crime gets them re-elected, and they want to be re-elected. So being tough on drunk drivers is a "no-brainer."  Who will complain if they make it more expensive and more difficult for drunks to drive!  The few folks who will complain only do so AFTER they have been convicted. Their answer is to keep lowering that BAC limit, and increasing the punishment. You can't expect a break from politicians!

What about judges? Not a chance! Go to court and watch how that all works out if you are convicted. You will be fined - around $1000 for a first time DUI.  You will lose your driver's license. The judge doesn't have a choice here as the politicians have made suspending your license mandatory. And just how will you work with that restricted license? Your problem - not theirs. And then there is jail time. Usually the sentence includes 180 days in jail with 170 days or so SUSPENDED. You may be able to avoid actually serving the jail time by doing community service (like 40 hours or so) or by picking up trash along the road on a "work crew." But that suspended time is hanging over your head like an axe ready to fall if you make another mistake. Violate the law while on probation and you can expect to serve part or all of that suspended time. And you will have to go to an alcohol evaluation, and the classes they recommend, and the victims panel, and pay the increased costs of insurance and re-instating your drivers license.  Help from the judge? Right!

What about the "$500 to get you through this" lawyers who "used to be a prosecutor" and got your name from the jail records.  You know - the guys who send you that "Dear DUI Defendant" letter. They want you to be afraid to do anything except plead guilty. Help? Some - but  only if that is the best you can do. 

What then, is the answer? More about that after this weekend is over and I have time to write again. Today I am off to prepare for a TRIAL. You know, where defendants actually make the state prove their guilt.

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I had a question this week about driving under the influence of alcohol or drugs: "Do I have to be driving to be guilty?"  Survey says - NO!  Idaho, like virtually every other state makes it a crime to be under the influence and to drive or be in actual physical control of a motor vehicle.  The statute - Idaho Code § 18-8004 does not require that you be driving, or that the car's engine even be started.  If you are in the car and intoxicated and sleeping it off with the ability to physically control the car - like having the keys - you can be convicted. 

In a study released last April, the US Department of Health and Human Services estimated that last year 30 million Americans drove while intoxicated.  Thirty million.  That's a serious road hazard if it is true.  And the mere fact that the government has the statistic shows us why a DUI charge is so serious. If you are convicted of driving under the influence you will lose your drivers license, be fined, face time in jail, have to undergo an alcohol evaluation and go to alcohol classes and treatment if ordered.  You will also have to figure out how to get to and from work without privileges and pay the costs of a fine and increased insurance.  It may not be a felony (assuming you don't have priors) but it will be expensive and a serious impediment to your future.  So treat it seriously if you are charged with DUI.  And avoid it - a night of drinking and driving can leave you with a serious "hangover" for a long time.  Simple rule - do not drink and drive - grab a cab! 

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I was just looking at Virginia Attorney Bob Battle's website, and his advice on choosing a lawyer to represent you if you are charged with driving under the influence.  The advice makes sense whether you are headed to court in the great South or the Northwest.  Survey says:  choose wisely!  As a client in a criminal case in Idaho, you want to hire an experienced lawyer.  Some Boise lawyers send out letters everyday to anyone charged with a crime.  They get that list of potential clients at the courthouse and then send off a FORM letter that may scare you into jumping into their caseload.  Don't jump. Think! Why are those lawyers "fishing" for clients anyway?  Successful and experienced lawyers (criminal and otherwise) get clients from their reputations and by referral.  Just how many TRIALS have they had this year?  What were the results?  And will they be handling the case or passing it off to an associate?  Look, it's your case, and your life.  Why would you entrust it to any lawyer who could not give you the answers you deserve?  Here's our pitch:  Hire me for the experience and you get just that; me and twenty-seven years in the courtroom. 

So what kind of cases have I handled?  In the past five years the cases have included murder, manslaughter, racketeering, drug possession and trafficking, fraud, medicaid fraud, illegal possession of guns and ammunition, sex offenses, DUI, domestic battery, assault, aggravated assault, and other misdemeanors.  Civil case?  Wrongful death, ski injuries, defective design of Ford Expedition, personal injury automobile accident, truck accidents, defamation, malpractice, breach of contract, fraud, and defective products.  Need a lawyer?  Like Bob Battle says, choose wisely.   

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I had this issue again, yesterday, in a Boise DUI (driving under influence) case before an Ada County Magistrate Judge.  The answer may not be as simple as the City of Boise would argue.  They contend that an arrest does not occur until the handcuffs are on the defendant - and that usually does not occur until after the field sobriety tests.  Accordingly, the defendant is not in "custody" and there is no obligation to provide Miranda warnings.  My case involved a defendant who had been arrested going the wrong way down a one way street in Boise, after 2:00 a.m.  With the bars closing and his driving pattern, the officer made a stop with his lights flashing and approached the car.  He testified that he smelled the odor of alcohol, and that he observed the bloodshot and glassy eyes of my client.  His next question:  Have you been drinking tonight?  Was there a duty to advise the defendant of his right to remain silent?  Answer:  not yet.  The judge ruled that there was no arrest for Miranda purposes until further investigation had occurred.  That "investigation" was the officer administered field sobriety tests.  Statements made by my client during those tests are admissible, as is the breathalizer result.  The message here - you are not going to hear the officer tell you that you may remain silent until after you have taken the field sobriety tests.  Of course the case has not been tried yet, and the breathalizer results are not 100% accurate.  Still at issue - whether the state must provide the source code for the Intoxalizer 5000, and whether the defendant's BAC is admissable and enough to prove that he was operating the car while intoxicated.  Don't drink and drive.  The cost is simply too high.  Have a question about drinking and driving in Boise Idaho?  Comment or send me an email.

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The Idaho Court of Appeals has ruled that a police officer must give Miranda warnings to the driver of a car after finding drugs in the car, when he has been sufficiently treated like he is in custody, and not simply the subject of a traffic stop.  In State v. James, a divided Court held that the appellant was entitled to have been warned under the circumstances presented.  James had been stopped late at night, his car searched (with his consent), and he and his passengers had been removed from the car and frisked.  Officers under such circumstances who ask the magic “who owns the dope” question must first advise the detainees that they have the right to remain silent, per Miranda.

James is not an earth shattering decision, although it is seemingly  inconsistent with the United States Supreme Court decision in Berkemer v. McCarty, 468 U.S. 420 (1984), and the Court’s earlier decision in State v. Medrano, 123 Idaho 114, 844 P.2d 1364 (Ct. App. 1992). In those cases the decisions involved more routine traffic stops.  The test of whether a person is “in custody” is still objective -  “how would a reasonable man in the defendant’s circumstances have understood his situation?”  With the usual traffic stop falling far short of “detention,” defendants have typically not received the protection of Miranda. In Idaho, a traffic stop – involving a brief stop and questioning by the officer – without such warnings, has not been the basis for suppression. The Court here distinguished the facts, finding it looked more like an arrest than a traffic stop. In particular, the deputy threatened to arrest everyone unless someone admitted possession of the drugs. The driver got the message – he confessed to save his friends from arrest.  Judge Perry (dissenting) did not agree that the circumstances added up restraint that was akin to a formal arrest under the totality of the circumstances.  In particular, he did not think the officer's threat to arrest everyone in the car was enough to elevate the investigative detention into custody. 

So what do we take away from this decision? Miranda warnings are required when the circumstances would cause a person to believe he or she is under arrest, particularly when an officer is treating the situation like an arrest. If you have been taken out of the car, separated from other passengers, frisked, had the dogs called in to search your vehicle and the cops are telling you somebody is going to jail, you probably get that all too famous warning: “you have the right to remain silent….”  Now, will you remain silent?  All too often persons stopped by the police give them all they need to produce a later conviction.  Not every stop will result in Miranda warnings, but this case gives greater clarity as to the circumstances that may lead there.  But what about the typical DUI traffic stop and questioning by the officer?  "Have you been drinking?"  In custody or not?  Likely not if it is the usual sort of case, but James may give us a better argument that statements thereafter are subject to suppression.

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