There is news today involving two Boise cases in which teens convicted of murdering their parents have received life sentences.  In the Ada County Courthouse yesterday, Judge Michael McLaughlin sentenced Derek Lewis to life in prison with twenty years "fixed." Under Idaho’s sentencing scheme, that "fixed" component means that Lewis will not become eligible for parole until he has served twenty years. He is eighteen years old.  Lewis pleaded guilty to killing his father by shooting him in the head. At sentencing Judge McLaughlin made much of the fact that Lewis still insists he "accidentally" killed his father, although he entered the plea earlier to a charge that requires proof of an intentional act. McLaughlin told Lewis he would never get parole until he admits his responsibility for the killing. At least Lewis will have a chance at release, such is not the case with Ethan Windhom, who killed his mother when he was 16 and was sentenced to "fixed" life by Judge Cheri Copsey.  The Idaho Court of Appeals upheld that sentence yesterday, based on the "egregious" nature of the homicide.  

All of which is a good reminder that the type and severity of sentence in any criminal case is somewhat unpredictable. Is one killing really that much different from the other in these cases? Although Lewis has apparently not accepted his responsibility for the murder of his dad, Windhom has been diagnosed as schizophrenic. If his case is more egregious, it may be the result of the mental illness. In Idaho there is no insanity defense, so the "schizophrenia card" does not buy much.

What is apparent from both decisions is the fact that the Judges in each case were looking for evidence that the defendants understood and accepted responsibility for their crimes. This is not new – in virtually every case the court is looking for proof that the defendant "gets it." That is to say that the defendant has to convince the court that there is a reason to give the defendant a chance. They need to see that the defendant "gets it." If they don’t see that, it is likely the sentence will not give the opportunity needed. If you have a sentencing question, jump into this and leave a comment.

 The feds are at it again – investigating real estate and mortgage fraud across the fruited plain and the end result is almost always the same – PRISON.  Check out this report concerning their efforts and the results – an incarceration rate of over 82% and an average sentence of 38 months.  And in Idaho there are numerous ongoing investigations in criminal cases to be brought by the State and Federal authorities. And don’t forget those civil fraud and racketeering cases – they often lead to CRIMINAL charges and then prison. Top schemes? False statements to lenders by borrowers and realtors, dual sets of closing documents and my favorite – theft of investment money by those investment advisors who got you into the "deal of a lifetime."  If you have been the victim of one of these schemes – get a lawyer to go after YOUR money.  And if you are suspected or accused of fraud? Hate to sound the same theme but an experienced lawyer may keep you out of prison. No time to play around in these cases – get some help fast.

 Springtime brings those new flowers and an increased number of calls last week inquiring about whether the caller should hire a lawyer or use the public defender. Now I have to admit that I often ask myself what extra benefit the "private" lawyer brings to a particular case. I was a public defender when I started this some twenty-eight years ago, so I know the real value and commitment many PDs bring into the courtroom. Some great lawyers have spent their careers representing folks who could not afford another lawyer. But if you decide to hire your own lawyer – choose wisely. Pick a lawyer you can trust, who will fight for you and give you the best chance at winning.

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. So grab a warrior – your freedom may very well depend on it!

 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.

 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.