UnknownToday’s question: “What happens if you are arrested and charged with driving under the influence of drugs? Let’s say prescription drugs. What does the prosecutor have to prove to obtain a conviction?” This question comes to me more frequently today than ever before, probably because more and more people who are taking medications prescribed by their doctor seemingly intersect with police officers who insist that they are operating a motor vehicle while impaired. So here goes – let’s start with the basics.

First, the law is clear, it is illegal to drive or be in physical control of a motor vehicle while under the influence of drugs or alcohol. A person is “under the influence” pursuant to Idaho Code § 18-8004 if the person’s ability to drive is impaired in some identifiable way by alcohol, drugs or intoxicating substances.

Second, the state can prove a person is “under the influence” by the “totality of the evidence.” The judge will permit admission of all kinds of evidence the state argues proves impairment. This evidence may include failed field sobriety tests, statements made by the driver, officer observations (“his eyes were bloodshot and he looked impaired”), lab results, prior drug use, and actual driving pattern. For example, striking a road sign while driving home from the bar at 0230 is going to be “some evidence” that your driving is impaired – but was it impaired as a result of alcohol, drugs or intoxicating substances? That is the state’s burden, to prove that the drugs caused impairment. And that is a tough burden in many cases.

Third, none of this means that the state must rely on direct evidence (example – lab results showing the presence of 10 times the usual measurement for that prescription drug) to win.  The state can win its case based on circumstantial evidence of the type I described above. But from my experience, the audio and video recordings of the driving pattern and officer interview will provide a good measuring stick for likely conviction or not. In other words – if you look and sound like you are under the influence, a jury is likely to believe you are guilty.

Still, there is hope in your case if your are charged with driving while impaired by a prescription medication. The meds may not be the reason you were driving poorly. Some folks are simply poor drivers, medicated or not. And it is not always easy to convince a jury that a medication they may also take could be the basis for a DUI conviction. So if that is the basis for the impairment, you should consider taking the case to trial.

In the past few months we have seen some of these cases simply dismissed as we got closer to trial and others reduced to reckless driving. If you have been charged with DUI – call a lawyer. Get some help. These cases really do matter as that DUI conviction can result in the loss of your driving privileges, substantial fines and court costs, and time in jail. And the state will always have a lawyer in the courtroom to prosecute the case. You may be wise and knowledgable in many areas of life, but there is no substitute for experience in that battleground.

The two best words for any criminal defense lawyer and any defendant – NOT GUILTY. Heard them again to day in the case of State vs. April Rice. Ms. Rice was charged with grand theft after she received a check from the County that belonged to the estate of another person. Eight months after it was deposited into an estate account she was handling, the County Treasurer concluded the money did not belong to her. They were right about that, but wrong about it being a crime. With no inventory of what the treasurer’s office had given her, there was no way to know how the check ended up in her possession. A jury heard the State’s case and concluded no crime had occurred – after only one hour of deliberation.

That may all sound easy enough, but it was actually pretty complex. There were over 60,000 documents produced in discovery, and two judges heard the preliminary hearings. Instead of trying to put April in prison, prosecutors could have easily gotten the money back, and she would not have had to pay a lawyer to defend her. Still, I am happy that she is free today, as she should be. My take-away? The jury system still works much of the time. But if you are charged with a crime, get the best lawyer you can afford. The state had multiple lawyers, and investigators, and experts and probably spent many times over that $31,000! Now on to the next case.

OK – I get it. If you are the Prez’ and you ran on a scare platform that crime is rampant in the streets and makes it more likely you will be murdered in Chicago than you will find an empty Starbucks in Seattle, you’ve got to get tough on crime! So the Donald’s new AG is not fooling around. By Memo dated March 8, 2017 he directs the 94 United States Attorneys Offices to “partner with federal, state, local and tribal law enforcement to specifically identify the criminals responsible for significant violent crime in their districts” and then use “the substantial tools at their disposal to hold them accountable….” And those federal agencies like the FBI and other law enforcement types of both state and local varieties have lots of “tools” by which to ferret out crime. And AG Sessions reminds prosecutors to target certain federal crimes and be creative, while awaiting an “upcoming memorandum on charging for all criminal cases….”

What this means to criminal defense types is simple – expect more prosecutions and AUSAs asking for stiffer punishment. Expect to have to work harder to sort out the real criminals from the usual suspects – people who make generally bad decisions. And expect that our clients who are teetering on the verge of prosecution may sooner find themselves charged and facing federal trials.

And what if you are under federal investigation? First, I suggest you get the best lawyer you can afford. Somebody you can trust. Second, get started developing your trial or settlement strategy at once. Third, if you are going to tap out, settle soonest before this push for greater prosecutions gains traction, and limits your options.

Until next time…

Oh man, has it really been that long since I last posted on this blog? I feel like I need to go to confession – “Forgive me father for I have sinned, it has been eight months since my last blog post….” But enough about that, instead, let’s start with some success – in the Air Force. Last summer I had a client charged with rape in Twin Falls, but he wasn’t guilty and the prosecutor eventually DISMISSED the case and publicly proclaimed his innocence. Not a bad result considering how difficult it is to get anyone to believe a “victim” would never make up such a story. The truth is they sometimes do make it up. So off we go to an Air Force case in which three women claim to have been sexually assaulted by our client. As we prepared to go to trial last September, we discovered that there might have been video recorded evidence on a phone the Government lab had not been able to fully process. That caused a big time out, and reset the case for trial into February. Another forensic lab located the video and audio that PROVED our client was telling the truth – the sexual contact with V1 was in fact consensual. That charge was dismissed, but we still faced trial on two other “victims.” Over the course of a week long trial, V2 testified in a way that made admission of prior sexual acts with other unit members admissible. This contradicted her testimony and made her look dishonest. V3 had prior sexual encounters with our client, and her testimony that this time was not consented was countered by other witness testimony substantiating our client’s claims. Result? Not guilty on all counts.

But more important than results, here’s what I learned:

First – sometimes, you have to be willing to just keep digging into the discovery for some gold nugget that will save your client’s bacon. That video on the cell phone was just the thing to prove our client had told the truth about V1, and it made an impact on the prosecutor and the judge.

Second – I actually like to put my client on the stand in sex cases because no matter what the judge instructs, the failure to testify usually is seen as “proof” of guilt by jurors. They say “if I had been charged, I would have testified….” Of course, there are many reasons for a person to remain silent, but most of the time in cases like this, your client needs to tell the jurors his or her story.

Third – Fear not the courts-martial! Military justice works a bit differently but the people involved – trial counsel and judges – are well trained and experienced. Mostly. In truth, the local JAGs do not always have great experience in the Air Force system because they have so few cases. Instead, they rely on more experienced trial and defense counsel who fly in and try their cases. The judges are well educated, know and understand the law, and are equal in every way to their civilian counterparts.

More later. Phone is ringing and I need to prepare for the next trial – featuring the National Forest Service, an Assistant United States Attorney, and a professional snowmobile instructor who has run afoul of those governmental regulations that seemingly keep Americans off the very lands we all hold as owners.

I am packing for the weekend and watching a little TV news this morning, and from that box a witness to a fatal shooting in Louisiana offered this explanation for the dramatic killing of a black man by a police officer there: “Officers threw him to the ground, got on top of him and shot him dead.” So it would seem from the video now readily available online. Then this morning’s newest shooting – it happened again last night, in St. Paul, Minnesota. You can even get a link to the “live stream” and watch an officer kill another black man. This time the officer had stopped the car he was riding in for a broken tail light. His girlfriend says that Philando Castile told officers he had a concealed weapon and a permit to carry. Check out the NY Times article describing how an officer shot Castile while seated in the car, after asking him to retrieve his identification. This victim was not even driving the car!

This is every persons nightmare, but it is every black person’s reality.

It must stop. Prosecutors must get brave. They must prosecute officers who needlessly and unlawfully shoot and kill persons who have done nothing to justify the use of deadly force. Prosecutors must act – if only to show us that all lives matter. These killings may have been racism but it is not just racist cops who have kill civilians “just because.”

Law enforcement officers are entitled to use reasonable force, but not deadly force in every situation. Deadly force is the last choice. It seems to be the first response, too often. Citizens must be able to trust the police to enforce the law, not to take it into their own hands. And there is no excuse for shooting unarmed people who do not pose a risk of serious injury or death to the officer. All lives matter. That’s why officers are called on to protect, serve and lead.

And it is not just urban areas where officers shoot first and lie later.

In rural Idaho, Jack Yantis’s life mattered. It mattered enough that local law enforcement officers should have been better trained and better educated on the law. They should have been better supervised. They should not have killed a man called by the Sheriff to help them. They should never have shot Jack Yantis. They should have known that he was there, with his rifle, to do what he had been asked to do – take down his bull – the same bull that officers had shot and wounded after it had been hit by a car on the highway.

The folks who enforce the law; Idaho’s Attorney General, and the United States Attorney should act. Act. Now.

Eight months later neither office has been willing to let Idaho jurors decide whether officers in Council, Idaho acted within the narrow confines that are required to justify their having killed Jack Yantis. Deadly force must be the last choice, not the first.

And yes, I have skin in the game. I am one of the lawyers representing Jack’s survivors, including his wife Donna Yantis, and his nephew Rowdy Paradis.

Police officers need to get back to being our protectors, our friends, part of our lives. A traffic stop should not result in the death of a passenger asked to produce identification.

The decision whether to waive a preliminary hearing, and give up a review of the probable cause determination, can often be a tough one for clients to make. Every client hopes a win at preliminary hearing means the whole case goes away before it really ever started. Unfortunately, the truth is the State’s burden at a preliminary hearing is so low that this is very rarely ever the case. For this reason , a preliminary hearing is waived in many cases; the likelihood of winning is so low that it is not worth the time, effort, money, and sacrificed bargaining position to go through the process.

In a recent case we had, one of the primary witnesses against our client became unavailable for trial when she moved out of the country. He was charged with attempted strangulation, a very serious felony that could land the client in prison. Now, you may think: Isn’t the fact that a witness has moved a good thing for the defendant at trial? Wont this keep her testimony from being used against the client? Normally you would be right, a witnesses unavailability to appear at trial might prevent their testimony from being presented to a jury. However, at the beginning of this case we went through a preliminary hearing and the witness appeared and testified about the charges. Under the law, because this witness had already testified under oath and the defense had the opportunity to cross-examine the witness, a transcript of the testimony could be read to the jury at trial  if she was unavailable.

Knowing that the witness might be unavailable for trial, our one chance to cross-examine her was at the preliminary hearing. Had we not done so, we would likely have been deemed to waive cross-examination and the jury never would have heard her answer the tough questions. The end result was the reduction of the charge to a misdemeanor battery, because we held that preliminary hearing and cross-examined. On the other hand, if we had waived the preliminary hearing she might have gone away and never testified. This might have caused more problems for the prosecutor, but in our case, the defendant had made statements to the police that would be used against him. We opted to get her testimony in the hope she would not be available to explain further the inconsistencies we could develop at the prelim.

Choosing to have the preliminary hearing can have serious consequences for trial, as can waiving the right. Your decision likely depends on whether you think the case will go to trial, or you are looking for a reasonable settlement. Choose wisely.

After a fully contested prelim by which the State barely had enough evidence to establish probable cause, and after we found witnesses to contest the basic premise of the State’s case against Jack Holland, a weather man for a Twin Falls television station, the State today filed its motion to dismiss. Included within that motion is this proclamation:

“As part of its continuing duty to investigate this case, the State has interviewed additional witnesses who have come forward since the preliminary hearing, and thoroughly reviewed their statements and other evidence as it relates to the testimony presented at preliminary hearing. It is the State’s conclusion based upon a close analysis of all the facts now available about this incident that Mr. Holland did not commit the crime of Rape as defined in I.C. § 18-6101. Accordingly the State moves to dismiss the charge against the Defendant.”


And the truth is confirmed – Jack Holland is innocent. That “new evidence” included information from a third party concerning a similar encounter with the complaining person.

That is simply the strongest statement of innocence I have seen from a prosecutor’s office in 35 years of practice. But the cost to Jack remains enormous.

He lost his job and likely his career.

He was jailed and had to pay a bond to gain his release.

He had to hire counsel to defend the case.

And his life was derailed in the worst possible way.

And all that based on the word of a woman who knew exactly what her words might do.

Jack Holland did not commit the crime of Rape, and he should never have been charged.

Remember the first year of Serial – the great podcast that highlighted the conviction of Adnan Syed? For murder? Millions listened weekly as the tale unfolded, leaving me wondering if Adnan was in fact guilty. More importantly – was he proved guilty beyond a reasonable doubt? You can read more about the case and the podcast here, here, and here. In fact, the whole series is likely still up on the internet.

But the news today is that Adnan gets a new trial. More later – but for now – check out the NY Times article.

A retrial. Imagine how that must feel if you are in prison. And innocent.

Strong sentencing arguments are critical in every case. Every single case. Regardless of how you find yourself in a sentencing hearing – after a conviction by a jury or a judge, or through a plea agreement – your chances at being placed on probation or being locked up will often hinge on your attorney’s ability to advocate effectively and convincingly.

Earlier this month, a U.S. District Court Judge from New York shocked everyone when he chose to sentence a woman to probation rather than prison after she was convicted of serious federal drug offenses.  Judge Frederic Block of the Eastern District of New York based his non-prison sentence on the severe collateral consequences that the defendant faced as a convicted felon; immediately and in the future. The consequences were especially harsh for the defendant, a college student studying to be a teacher, who had no previous criminal record. Her conviction made her ineligible for federal student loans and grants and she would have to change her major – convicted felons don’t often get jobs as educators. In fact, convicted felons have an often impossible time finding any employment, which was a major consideration for the court. The defendant in this case will not able to apply for a passport while on probation, which will make visiting her immediate family outside of the country impossible. These were just a few of the collateral consequences noted in the judge’s decision. There may be even more consequences for you.

The potential for collateral consequences of a conviction in any case, large or small, misdemeanor or felony, is exactly why you need to hire someone who will do more than just recite the facts at sentencing. Memos to the court prior to sentencing should be filed to really explain to the judge why your case is different – why you are different. A life history and interviews of family members can help a court to understand you as a person, not just as a defendant. Your attorney needs to identify these collateral consequences for the judge and fight hard to minimize the damage. Felony convictions are tough to overcome – give us a call if you’re looking for an attorney who will do more at sentencing.

In my split brained world a month or so ago, I had just finished watching another episode of The People vs. O. J. Simpson and reading an article in the New York Times describing the Supreme Court decision overturning a 1987 death penalty case in which prosecutors had, according to every Justice except Clarence Thomas, excluded potential jurors who were black, in the trial of a black defendant charged with murdering an elderly white man. Johnnie Cochran said it best – “I’m trying to win!” So, apparently, were the prosecutors in the Supreme Court case who chose white jurors but excluded African Americans. They likely did so because they believed that African American jurors might begin the trial with a bias in favor of the black defendant. And after you watch The People vs. O. J. Simpson, you might be inclined to agree. I actually think the bigger tragedy might be that the court system took 29 years to address the notion that prosecutors so obviously eliminated jurors based on race.

In our desire to win every case, we cannot ever choose to exclude potential jurors simply because of race, religion or sex. The temptation is always there, because every trial lawyer understands that his or her case will play better to certain people. Get those people on the jury and you have a better chance of winning. For example, in a domestic battery case, the lawyer for a male defendant may logically believe that female jurors would not tend to believe the defendant. The temptation will be to try and eliminate potential female jurors because we think they will not fairly judge the case on the evidence and give our client fair trial.

The Supreme Court has made it clear again that the system requires blinders – sort of – when it comes to race, religion and sex. But my clients do not pay me to play, they pay me to win. So, as Johnnie  said, “I’m trying to win.” Always. What this really means is that we have to educate every juror in our case and try to make them a member of our team, or at least get them to wait long enough for us to tell our story BEFORE they decide guilt or innocence.

If you have that domestic battery case, the tendency to believe that women will not fairly judge a man charged with striking his wife gets balanced against the rule prohibiting us from excluding every female from the jury pool. We have to be confident enough with our client, his story, and the provable facts to include jurors, men and women, in the process. Here are three things I try to do in every case when picking the jury.

First – I remind myself that I am not really “picking” a jury. At best, we are trying to exclude the folks we feel are least likely to accept our client’s version. Even though I like to use jury consultants, this is not magic. We do not get to “pick” anyone, for the prosecutor will just as likely “unpick” the person we want on the panel. There is little or no science to this stuff, and experience with jury selection is likely the best help in getting this right. So the more times a lawyer has been before a jury, the more likely that lawyer will wisely use his or her challenges to disqualify potential problem jurors.

Second – be honest and watch the panel. Be brutally honest. Tell them the stuff that makes you cringe. “Ladies and gentlemen, you already know that this case is about a argument, and my Bob’s wife claims he hit her. And they have some pictures showing a big bruise under her right eye.” For some potential jurors the fact that there was an argument and a bruise may mean you have no chance. Put down the notes and look at their reactions. Do they watch you or turn toward the client? Is anyone shaking his or her head? What to you feel they are thinking about your client?

Third – now tell your story. “But Bob didn’t touch his wife except to stop her from attacking him. Scratching him. Biting him, and hitting him. You will see pictures of Bob that tell the story better than I can. But can you agree to keep an open mind as we start this trial and wait for Bob’s explanation?” OK – now you start to see some heads nodding. And maybe some of them are the women you fear as jurors. So you talk with them, both men and women, about your fear that they cannot give Bob a fair trial. I mean you say it. “I am worried that you might not be able to give Bob a fair trial. Should I be worried about this?” And then, if you can’t quite make it happen, and you know that in your gut, you challenge them for cause, or use a peremptory, and hope that the panel includes folks who can fairly decide the case, in your favor. But you do so understanding that you cannot make these decisions based solely on sex, race or religion.

Being respectful to jurors is important (Cochran was actually talking to another lawyer), so we have the discussion with the ones we fear, but in the end we are there to win for our clients. That is the role of the advocate. Trying to win by honestly telling your story is the most likely way to win your case.

Have a trial coming up? Want to talk about jury selection? Need some help? Call me.