The roads are slick out there these days. So slick that our "driving patterns" may provide just the "suspicion" needed to stop and check to see whether we have been drinking and driving. I have some experience with this over the past few weeks – and in two cases, charges of driving under the influence (DUI) have ultimately been reduced.

In the first case, officers at a one-car rollover accident found a prescription medication in the crumpled skeleton of a small sedan and concluded that the driver must have "over-corrected, gone out of control and rolled into the median" because he was under the influence of a prescribed medication. They came to this conclusion without the benefit of any test, and charged him with DUI.

Their real "proof" of impairment was his speech. After rolling his car and having been taken by ambulance to a hospital, he "seemed confused." Did they consider the fact that he had suffered a concussion and serious injuries? No. Was there any proof that he had taken the meds recently, or in an amount that would interfere with his ability to drive? No. But charge him they did, and now his record will forever reflect that he was a defendant in a criminal case charging him with DUI.

Come on – let’s use a little common sense. How about not presuming that everyone who rolls his car on slick roads must be drunk or using some medication to excess. Cops and prosecutors should be able to apply their own life experiences to situations such as this one and admit that sometimes a roll-over is just a roll-over.

In the end a prosecutor decided to reduce the charge to careless driving.  Had we gone to trial, my client was was headed for an acquittal. After all – there was absolutely no proof that the driver had been under the influence of any medication. The driver was out the time and expense of dealing with the baseless charges, but that did not really seem to matter to the officer or the prosecutor. 

Here’s the bottom line: any "driving pattern" that looks careless – like sliding around a frozen corner, or not fully stopping before entering a road from a parking lot – can be the basis to stop you, and "check" on your sobriety.

And even if officers do not find evidence that alcohol has impaired your driving, beware that lack of common sense. 

Consider the facts of a local case related to me yesterday: an employee who is sick and headed home for some couch time drives out of a parking lot to be stopped for "swerving." This happens in the afternoon – so the automatic probable cause for driving after midnight will not apply. Employee has not been drinking and is not under the influence of anything more than influenza. Officer says employee must be on some medication. Employee insists he is sick and asks to go to the ER. Cop insists on a blood draw – to "prove" that he is right and this driving fool must be intoxicated and on something. Officer performs field sobriety tests and arrests employee, who is booked and has to bond out and hire a lawyer.

And all of this without so much as any evidence that employee is operating his car under the influence of anything. Employee will spend hours of time and a thousand bucks or more to prove his innocence.

This is not the way the law is intended to work.

Police officers should not stop you "just because." They should not be trained to assume anyone who swerves is under the influence. And we should not have to prove our innocence. They should treat us like they would want to be treated if stopped for no real reason.

So be careful out there. Watch your driving pattern. Be patient with officers who insist you are wrong because your day will come. But if you are innocent – insist on preserving your rights. 

 


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The National Highway Transportation Safety Administration (NHTSA) has a publication that lists the "symptoms" of drunk driving officers are trained to watch for in "driving pattern." Each "symptom" has been given a value NHTSA says represents the likelihood a driver exhibiting that driving pattern is under the influence of alcohol or drugs.

Here is the list from the Department


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I had a call today from a client we are defending who is charged with driving under the influence of alcohol or drugs (DUI). This case is a little different than the usual DUI because the intoxicating substances charged include several commonly prescribed medications and an over-the-counter antihistamine (containing diphenhydramine). The State has laboratory reports showing these medications were


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 So I took a little break from blogging about criminal defense, DUI defense, civil trials and matters of wrongful death. And then things just started "popping up." A new case or twelve. A kid in jail who just could not get it together. A former Marine facing life changing decisions. The mentally ill – fearing life and death as they


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Just how serious is the State of Idaho when it comes to driving under the influence (DUI)? Ask any experienced criminal defense attorney who practices in this state and the answer will undoubtedly be "very serious!"

Exhibit A in that regard is the life sentence handed down yesterday in Ada County District Court to a 14 time offender. I can’t recall anyone appearing for sentencing in Boise on his or her 14th DUI conviction. But 14 is just a number.

Even a single DUI conviction can make your life miserable!

Here are three things to take away from that DUI sentence:

First – in every criminal case the Court’s focus at sentencing is on public safety. A judge is tasked with the job of protecting society ("us") from others ("them") who place us at risk. Safety is job 1, at least after a finding of guilt. It would be hard to argue with the notion that someone who has more DUI convictions than toes may injure someone if left in society at large. So to protect society the Court acted to end that risk, at least for the next 15 years and perhaps for the life of the defendant.

Second – every DUI conviction leads to more serious consequences with the courts. The law makes a second DUI conviction more serious than a first. If you get a second DUI for example, you lose your drivers license for a year. That hurts more than for the first DUI, but less than for a third. The point here is simple – every conviction is more grief than the last, leading potentially to a felony DUI charge.

Third – every DUI charge is an opportunity to ask the bigger question in a defendant’s life: "Why am I in this mess?"

The law does not forbid drinking and driving. It forbids drinking too much and driving. But how much is too much? That sticky wicket has been the downfall of too many. The safest course is to honestly answer the question of why – in particular – do you have a drinking problem? If so, you need to get help at once. If this was simply the "one too many and never again" situation, you must take steps to mitigate against the effect of the DUI conviction at once. Get a good lawyer now.

If you have been charged with DUI, check out some of the posts on this blog relating to the subject by clicking the Topic "DUI" to the right of this page. There is a ton of useful info available here to help you learn about Idaho’s DUI law.

 
 


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"ACT IMMEDIATELY TO PROTECT YOUR DRIVING PRIVILEGES"

In Boise, Idaho, if you are charged with driving under the influence of alcohol or drugs, two things are certain: First – your mugshot photo will show-up online for all to see, and second – you will receive a "letter" advertising the services of a lawyer who wants to represent you.

I am writing this today after meeting with a potential DUI client who told me that he had been "scared" into hiring a young, inexperienced lawyer with a slick website and an even slicker solicitation letter. After a couple weeks of trying to get a return call, he was ready to change lawyers. His initial fear – the main factor that had driven the client to hire his lawyer – had been replaced by a feeling of dissatisfaction over how the case was being handled.

I have written about this before, but I had not recently seen the letters some lawyers are sending to potential clients. Some of the solicitations I have seen are overly frightening and deceptive. At a recent DUI seminar the speaker said that one of her clients had received over 25 of these solicitations.

Here’s what I hate about these solicitations – they are solely intended to convert you from "charged" to CLIENT. The lawyers behind them prey on the fear that is inherent within the legal system – fear of big fines, jail time, lost driving privileges and lost jobs.

All of these ARE potential consequences of a DUI, but the idea that you should "decide now" to call a direct mail lawyer because "your time is running out and you must act immediately" is erroneous.

Stop. Breathe deep and get the facts about DUI before you jump at that "mailbox lawyer."

Yes, DUI is a very serious charge. The penalties are enough to keep most of us sleepless for nights if charged with this crime. The answer to the fear caused by your arrest, is information.  You do not have to choose a lawyer without first learning as much as you can about the charges you face.

Do not have to be scared into hiring a lawyer who sent you a "legal" looking come-on by mail.

Take some time.

Talk to some friends and get lawyer referrals.

Talk to some lawyers.

Then make an informed decision, not a decision based on fear!

Start your research on driving under the influence of drugs or alcohol by checking out the DUI posts in this blog under the Topics section to the right of this post. There, you will find information about drunk driving arrests, physical control of the vehicle, the politics of a DUI charge and why winning is so difficult, 5 questions you must ask before hiring a DUI lawyer, the truth about penalties for DUI in Idaho, whether you should take the breathalyzer in Idaho and a follow-up on that same issue, whether you should take the field sobriety tests in Idaho, and when your car can be stopped by an Idaho law enforcement officer. And there is so much more – under the DUI topic in this blog. 

So get informed BEFORE you choose a lawyer.

And if you want to learn more about your case, simply give us a call.

 


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 Looking back to the first of this year, we have found an edge in each case and used it to gain reduced charges for our clients in the following cases:

In Jerome County, our client BG was charged with felony vehicular manslaughter. A vehicular manslaughter case may take the form of a felony charge if the State relies upon "willful and wanton misconduct" or intoxication as a significant cause of the death of another person. In this case, the State alleged that BG’s reckless operation of his commercial truck resulted in the death of a Sun Valley woman. After considerable investigation and relying on the opinion of other operators, we were able to gain a reduction of the charge to a misdemeanor. The end result meant that our client would not face the possible 15 years in prison authorized under Idaho law.

In Valley County, our client PR was charged with a second driving under the influence of alcohol (DUI) as the result of his vehicle having slid off the road last winter. In discovery, we obtained a report of a test of the machine that seemed to indicate the reliability of that test was suspect. The case was reduced to a first DUI and our client permitted the opportunity to complete his sentence by work release.

In Canyon County, our client TB was charged with insurance fraud. He had repaid the questionable money he possessed and we used his admission and restitution to gain a probationary sentence. No conviction (TB took a withheld judgment that will permit dismissal if he successfully completes probation), no jail, no prison.

In Canyon County, our client KH was charged with fish and game violations that would have destroyed his related business. After completing the first day of trial, the State moved to dismiss the case after we showed that fish and game officers had not turned over all the evidence required. A "mystery CD" suddenly surfaced with text messages and emails and photos that would clearly have been relevant.

In Federal Court, our client RBH was charged with violating certain food and drug act prohibitions. The company and its owner faced possible felony charges, huge fines, and prison for its owners. We worked with co-counsel from NY to obtain a misdemeanor corporate plea, and the business paid a fine.

In Power County, our client was charged with possession of controlled substances, a felony. We negotiated a misdemeanor possession charge and probation for TS. A similar situation occurred only a few weeks ago in Adams County, with a resulting dismissal of the felony charges in exchange for a plea to a misdemeanor paraphernalia charge for our client KN.

In Federal Court, our client ST pleaded guilty to one count of distribution of controlled substances instead of the conspiracy to engage in racketeering that would have subjected him to a mandatory minimum 10 years. 

In Ada County, our client RP’s felony trafficking in drugs was reduced to a misdemeanor possession, and he avoided an almost certain lengthy confinement.

In Federal Court in Wyoming, our wrongful death case against Grand Targhee Ski Resort, and Teton County Idaho and Wyoming has been settled for an amount agreed to be confidential. We were only weeks away from trial when a mediation in Casper allowed us to help EF’s heirs. Wrongful death cases against ski areas are tough to win in view of the recreational safety act in both Wyoming and Idaho, as we found out when we tried our last ski death case. Our pal Skip Jacobsen, who is now "of counsel" to the Spence Law Firm out of Jackson, Wyoming served as lead counsel.

Big trials in federal court in August (fraud), Wyoming federal court in September (wrongful death) and securities fraud (federal court October) all washed out – and were either settled or continued. These bigger cases took much of our time over the year, so settlements and continuances have kept us out of court. That, however, is the new norm – with increasing costs to try cases and increased risk of losing at trial, most cases are settled. By preparing for trial, we are able to gain the leverage we need to obtain the best result for our clients.

Here is my "take away" looking back over the first eight months of 2012:

First, our more complex cases have caused us to reject many cases that we simply did not have have time for.

Second, sometimes the best resolution is the certainty achieved by a negotiated settlement. This is particularly true in view of the application of the federal sentencing guidelines.

Third, spending time investigating your case gives us the best chance of helping you succeed at trial, or at the settlement table.

 

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 We still give free consultations on any criminal defense matter for one simple reason: it’s the right thing to do. If you have been charged with a crime, you are likely worried and afraid. You may want to just "get it all behind you and plead guilty." Before you do, call us. Take some time and meet to discuss your case. The true cost of a DUI (or any criminal charge) is not just what it takes to hire a lawyer; the true cost is much, much more.

First, there are the costs associated with fines, court costs, and bail. In Ada County, the court costs for a simple charge of driving under the influence of drugs or alcohol will run over $175, just for the privilege of showing up to plead guilty! Fines for a first time DUI can be $1,000 and if you blew a .2 or higher you can double that amount. An alcohol evaluation can run another $100 and the cost of "alcohol education" hundreds of dollars more. And then there is the cost of re-instating your license with the Idaho Department of Transportation – another $88.

But wait, there’s more. The real cost of that DUI includes the impact that plea of guilty can have on future employment. The conviction will be there forever, regardless of whether the judgment is "withheld" an employer can find out that you pled guilty. Add in the cost of increased SR-22 insurance, payments for "supervised" probation, the cost of finding a ride or public transportation to work, and the inconvenience of having to go to court ordered treatment and what you have is a very expensive "get it over" guilty plea.

How much does a DUI or criminal charge cost? It’s not just the money – get ready to hand over the keys to your freedom if you plead guilty. Even a first time DUI can land you in the clink for five days or so.

So stop and take a deep breath before you go in and plead guilty.

Let us take a look at your case and see if there is another way. The consultation is free. Let us take the time to explain the system and process the courts use to deal with criminal charges. Then you can make a reasoned decision about how to proceed.

The cost of a DUI? It can be very expensive. It can cost $5,000 or more to "just plead guilty" when you add up the real expense.

Take some time and get a professional opinion first.  

 

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 If you are stopped by a law enforcement officer who suspects that you are driving under the influence of drugs or alcohol, you will likely face the prospect of deciding whether to take the breathalyzer test. The question of whether the officer has legal cause to believe you have violated the law, thereby entitling him to request a test


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