First – a disclaimer – I watched the DBSI trial in federal court here in Boise with considerable interest over the past three months and I admire the lawyers involved on both sides. I also had a client who was a witness (a key witness perhaps, after viewing a juror interview on local television).

I may not be seen as entirely neutral on this one but the case serves as such a great reminder of the difficulties defending against any federal felony charge.

Federal cases begin with the Government already way ahead – their investigations take years in cases like this one. They have more investigators and more time into the build up before indictment than you will ever have if you have to defend yourself. I watched a few years ago as a war chest of money (in the millions) was "burned" by east coast, big city, big firm lawyers who promptly got out of the case, coincidently, when the money ran out, and that was long before any indictment. The money that would be needed to fight governmental agencies and defend against a criminal indictment are now long gone, and so are the big time lawyers.

The federal government has unlimited resources, unlimited experience and the ability to out churn and burn almost any defendant. They can grind you up, and in a big case, like DBSI, that is precisely what they do. If you are under investigation, check out this post from 2010.

I think I had forgotten that as I watched the DBSI trial unfold.

By the time that case started, only the best lawyers and the best of circumstances would give the defendants a chance at avoiding conviction.

The defendants in DBSI had both, and still, jurors returned guilty verdicts within a few days deliberation on charges of securities fraud, and after a trial that lasted roughly three months. In part, the explanation for the speedy decision likely rests with the inherent advantage that comes with having spent years investigating and preparing for the trial. 

Trials are wars. Epic battles. And such adventures are won by the best prepared and equipped.

Even the greatest lawyers can’t change the facts. They can craft a defense and move the conversation toward another way of interpreting a case history, but sometimes that may not be enough. Jurors in fraud cases hear that mountain of information, and watch the story unfold, but in the end they may not be moved from what they have heard – "scam."  "Ponzi-scheme." "Millions of investor money gone." 

Moving the needle in these case is so difficult. To defend here you have to "justify" the actions of men who were argued as having "taken millions" of investor money knowing their company was losing money without fully disclosing that fact.

DBSI presented the toughest of cases to win for any defendant.

Investors have lost plenty of money investing in stocks in big companies that lost traction. Rite-Aid. AIG. Shearson Lehman Brothers. Once the money is gone, they generally cannot "blame" anyone – although the "investment gurus" who touted each in the face of obvious problems seems to me to be partially responsible. But in each case, we made the investments. We made decisions. We took risks.

DBSI provided faces and bodies in the courtroom on which to focus blame. The investor decisions didn’t really seem to count. It didn’t matter that the investors had advisors, accountants and lawyers to review their decisions. What mattered were the faces of the defendants, the claims that these "suits" had special knowledge that had not been shared with investors before they parted with their cash.

Maybe the verdict simply reflects a deeper belief, that people with special knowledge of the underlying viability in an investment will shout it from the rooftops. But that is not always possible in the face of a crisis like the market meltdown and the real estate collapse. Condos bought for $300,000  eight or nine years ago may today be worth only $150,000. Who is to blame? The realtors, appraisers and bankers who should have seen it coming but kept selling, valuing and lending?

As a lawyer, DBSI just reminds me that there are tough cases that will eat up our lives and destroy our clients, sometimes no matter how hard we work.

And it reminds me that to win any case we need to focus our cases on themes that will play well with jurors. Ultimately the jurors will have to carry our clients to the other side if we are to win.

This is no knock against the great lawyers who defended the case. They fought like warriors. But even Ragnar Lothbrok and his Vikings ultimately must battle better equipped forces and circumstances favoring their opponents.

So too the fate of the DBSI defendants and their lawyers – and anyone facing off against the federal government. 

Fighting the feds? Better get an army.

 

Continue Reading DBSI Convictions – Fraud Allegations Drive Emotions

 "Reasonable Grounds" – kind of sounds like a new coffee joint, doesn’t it? Like a place that you’d find lawyers tending to that every day habit. In the DUI defense world, reasonable grounds means so much more.

The Idaho Court of Appeals reminded us a few weeks ago that it doesn’t take much to require a driver to take an "evidentiary breath test" (Breathalyzer) in Idaho. The odor of an alcoholic beverage, an admission you’ve been drinking and red, glassy or watery eyes is probably enough! In State v. Nicolescu, officers rolled onto the scene of an accident in which Nicolescu’s car had been struck by a driver who ran a red light. On contact, they found Nicolescu with red, blood-shot and watery eyes. Nicolescu admitted he had been drinking. When officers tried to perform the Gaze Nystagmus, Nicolescu’s injuries – including a scratched cornea from the collision – prevented them from finishing the task. They produced an Alco-Sensor and had him blow. That Alco-Sensor is not an "evidentiary breath test," but it’s accuracy is arguably enough to provide "some" information about how much alcohol Nicolescu had in his system at that time he was driving.

I have seen the Alco-Sensor before, but that device is not evidentiary in the sense that a court would rely use it on which to decide guilt at trial. However, Nicolescu’s failing Gaze Nystagmus (6 points before abandoning the test due to the scratched cornea), plus the eyes, admission and odor, when added to the Alco-Sensor result, were viewed by the State as enough to require Nicolescu to take the Breathalyzer. His resulting .103 and .096 were over the limit, so Nicolescu was charged with driving under the influence (DUI).

The Magistrate suppressed the Breathalyzer results on the theory that officers were not permitted to require Nicolescu to take the Alco-Sensor, and without that result, they lacked probable cause or reasonable suspicion to require him to take the evidentiary breath test. The State argued the officers had a reasonable suspicion that Nicolescu was driving impaired, and also argued Nicolescu had consented to take the test. The Magistrate found that he had not consented and no other exception to the warrant requirement existed to save the Breathalyzer result. On appeal, the district court found the preliminary breath test (Also-Sensor) was part of an investigative detention, and that the officer only needed reasonable suspicion to perform that first breath test. Magistrate reversed, state wins and now the Court of Appeals gets to weigh in (ala Judge Gratton).

On appeal the State argued that the preliminary breath test only requires reasonable suspicion to administer, and the officers had a reasonable suspicion that Nicolescu was driving while impaired, based on the totality of the circumstances (which included the Alco-Sensor). Nicolescu argued that absent the Alco-Sensor, the officers lacked facts necessary to require him to take the evidentiary breath test (Breathalyzer). 

The bottom line? The Court says that based on Idaho Code § 18-8002, a motorist implicitly consents to "evidentiary testing" if the police have "reasonable grounds" to believe the motorist is intoxicated. "Reasonable grounds" is an even lower standard than reasonable suspicion or probable cause – low enough, arguably, that an admission you have been drinking, plus "red, watery, glassy, and bloodshot" eyes, plus the odor of alcohol can be enough to make you take the Breathalyzer with or without that Alco-Sensor test.

Here’s my take away – the Court of Appeals reminds us that our consent to take the test comes from the state’s extension of the privilege to drive. We drive, therefore we consent – as our Existentialist friends might say. And that officer doesn’t need much to require us to take the Breathalyzer under Idaho Code § 18-8002. Not probable cause. Not reasonable suspicion. 

Just reasonable grounds – whatever that means!

 

 

Continue Reading “Reasonable Grounds” to administer a breathalyzer in Idaho – odor of alcohol, an admission you’ve been drinking and red eyes is probably enough!

 

   It happened again last week – a client faced the prospect of losing his driving privileges for a year from the Idaho Department of Transportation because he had refused a breathalyzer, and insisted officers conduct a blood test. His test result was .204%, a level evidencing an "excessive DUI" for which IDOT could suspend him for a year, and so could the court if he was found or pled guilty. There is also a civil penalty from IDOT and the cost of the test. Our only way out was to accept a one year suspension from both the court and the IDOT to run concurrent. 

There is this belief among some Idaho drivers that the blood draw will "prove" they did not have too much to drink before taking control. Wrong. According to a prosecutor I spoke with the opposite seems more likely.

Those former "refusals" are now turning into more "excessive" DUIs because the blood draw is more accurate and harder to defeat in court. So even if you don’t refuse, the impact is the same if the result is a more accurate test reading that happens to be above .20%.

Bottom line – insisting on that blood draw takes the uncertainty out of the result and if it is excessive, there is no room to argue that the machine has a margin of error that may create reasonable doubt.

The safest thing to do here is hail a cab. Your risk if you have been drinking is too much to drive. And if you are going to gamble, I would not suggest opting for the blood draw. The Breathalyzer has inherent risk – the machine itself is subject to error. To beat the blood draw you will likely have to show a contaminated sample or an inept analyst. Neither is very likely. And when was the last time you got a result from a physician relating to blood and then rejected the result because of the inherent unreliability? I don’t know about you but I have been on statins for five years because the doc said my blood showed cholesterol above 230. I never once thought to object to his decision because the results might have been tainted.

And neither will a jury. 

Jurors have experience with blood tests. You are pregnant or you aren’t. You have an infection or you don’t. You need medications or not. So jurors are hard pressed to reject the results. 

Not so with the breathalyzer – nobody except the cops who give it believes it is error-proof.

Again – best action: don’t drink and drive. Second best – don’t demand the blood draw.

 

Continue Reading Before You Choose A Blood Draw – think about how little margin for error there is and how it may PROVE your guilt!

 

 Once again we see that our right to be free from unreasonable search and seizure finds too few friends in the United States Supreme Court. The issue in Navarette v. California, decided this week, was whether the fourth amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate the claim of dangerous driving before stopping the car. In a decision written by Justice Thomas, the Supreme Court ruled that the stop was "reasonable" and complied with the constitutional requirement based on "the totality of the circumstances."

This case started with an anonymous 911 call from a driver who claimed to have just been driven off the road by a specific truck. Officers stopped the truck, and said they smelled marijuana as they approached it. The tip was said to have created a reasonable suspicion of drunk driving, so the stop could be justified as a "brief investigative stop."

Not everyone agreed. The decision was 5-4, with Justices Ginsburg, Sotomayor, Kagan and Scalia (writing in dissent) joining to warn of the potential implications of such a decision. To be sure, there was more than an anonymous tip by the time the Patrolmen found the 30 lbs of marijuana in the truck. There was the smell of marijuana when they had approached, as well as the assumed reliability of the 911 call and the specific details of the vehicle. But as Justice Scalia writes, the majority opinion"purports to adhere to our prior cases" and "does not explicitly adopt… a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated."

But, he warns: "Be not deceived."  "The Court’s opinion serves up a freedom-destroying cocktail."  He explains: "Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures."

So there we have it – the Supreme Court continues to make it easier for the police to stop us in our cars based on nothing more than an anonymous claim to a 911 dispatcher. The investigative stop originally required that police officers have articulable facts supporting a "reasonable belief that criminal activity was afoot." If I call dispatch and claim that a silver Ford pickup truck just forced me from the road, should officers be able to stop any and every silver Ford pickup truck they see? Apparently five members of the court believe that to be the case.

The framers of the constitution feared that this country might, without adequate safeguards, permit authorities to search their homes without any cause. Their answer was to require that any search or seizure require probable cause to believe a crime had been committed. Admittedly, probable cause is not a high standard, but it is something. I’d have thought it was something more than an unsworn claim over a cell phone to a 911 dispatcher.

 

In the past month we have finished two cases in which our clients were charged with driving under the influence of drugs or alcohol, and in both cases, prosecutors ultimately dismissed the charge of DUI and accepted pleas of guilty to inattentive driving. Not a big deal? Oh yes it is. Inattentive driving does not carry the consequences of a DUI conviction, and the difference between the charges may save you thousands of dollars and time in jail.

In a county just north of us, our client was charged with DUI as he headed home after dinner at a local restaurant and bar. He admitted he had a couple drinks. He had been stopped because he reportedly did not stop fully before exiting a private parking lot onto the street. Seriously. In fact, the local cop had simply been parked nearby "fishing" for folks to stop coming out from the club. On video our client looked great. He spoke freely with the officers, did not slur his words, and passed the field sobriety tests – except, they said, the gaze nystagmus. Serious voodoo in that one! Anyway – we called their bluff and got ready to try the case. The breathalyzer result was just over .08% and showed the level was increasing with time. So when he took the test, roughly 45 minutes after he was driving, it was going up. A smart prosecutor ultimately decided their case did not look good and he offered a plea to inattentive driving and a couple hundred dollar fine.

In a county a ways east of us, a retired professor over-corrected on the highway, rolled his car, hit his head on the steering wheel, and had to be cut from his wrecked rig. An officer at the scene told a supervisor that the driver had "seemed confused" when questioned. And then they found some prescription medication bottles in the car. Confusion plus pill bottles must mean driving under the influence – right? That was the charge. DUI. They had NO proof of any quantified amount of any drug. They had no expert to say that the pills affected the driving pattern. And importantly, the officers had not considered whether any "confusion" was the result of his injuries or some other cause. What the state had was a weak case. We filed a motion to suppress the results of the search of the car (no probable cause) and to suppress the results of the search of our client’s blood (although not quantified, there was proof that one of the medications was in his bloodstream, but it had been so for every day of the five years he had taken it). The prosecutors did not respond to the motion. Instead, they offered a plea to DUI and no jail. Our client said "no way!" But before trial, when it seemed clear even to them that they were about to lose, they folded and dismissed the DUI.

Here’s the lesson I learned from both cases: anyone charged with DUI has to be willing to fight. The State can’t always win, and a prosecutor may eventually see what you see from the beginning – the evidence may not prove that you were guilty of any crime.

DUI is a serious charge. Make sure you get a fighter to review your case before you plead guilty.

Got a tough case? Give us a call to discuss how to win.

 

Continue Reading DUI Cases Dismissed in Two Counties in the Last Month

Barb Jacobson is a private investigator – and a really fine one at that. She can get answers from witnesses that others just can’t get. I’m not sure how she does it but she does it well!

So one day in 1997 or so she came to see me about a guy in prison for a crime he didn’t commit. Other lawyers told her that there wasn’t any way to get him out. She was convinced that her guy was innocent. 

Crazy thing here – he was innocent. As in, didn’t do it innocent. As in wrong man convicted. Innocent!

So we built a case on her work, her investigation and her guts. The Judge (now a Supreme Court Justice) let us put on our evidence and the prosecutor didn’t back down. But in the end Barbara Jacobson’s fine work saved this kid from prison.

You can read here account of the case here.

Thanks Barb for your kind words. Reputations get built on the work we do and often that work was the result of hard work by others associated with a case. 

Now the take away – we lawyers need to be good listeners. As I listened to Barb’s story and realized that her client was in fact innocent, we were able to come up with a plan to win his freedom. Lawyers who can’t see an opportunity to win are like that kid digging in the manure, looking for the pony. He’s in there alright, but you’ve got to be willing to move a little dirty to find him.

And lawyers are not investigators. Often it is the investigator who breaks the case, not the lawyer. 

 

 

Continue Reading Sometimes the stuff others say is better than anything you can say!

 

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. 

 

Continue Reading Watch Your Driving Pattern – officers are standing by to stop you for no real reason!

 

Back at it for the new year and I couldn’t help but pass along a link to a news article today concerning wire fraud and the sentence imposed by Judge Winmill. Check the story here.

Apparently the defendant in the case had wired money from his employer’s bank account to pay his personal mortgage and other stuff. Taking money from someone else to pay your debts never works out well in the long run. While we may diverge on some questions of law – there is universal agreement that theft is morally wrong – and the law makes it a felony. The Feds take a very dim view of this!

The defendant in the case was sentenced to three years in federal prison and ordered to pay $607K in restitution. That sounds like a lot of mortgage payments and personal stuff that he must now account for! But my point here is simple – any federal felony is likely to result in serious consequences, including federal prison and big fines or restitution. And there is no parole in the federal system – if you get a three year sentence you serve three years, less any "good time" credit you earn.

So get help immediately if you are contacted by authorities about any claim you have taken money that does not belong to you. AND DO NOT TALK TO INVESTIGATORS without FIRST having talked to a lawyer. Whatever you tell the investigators will limit your options going forward. We frequently have folks who contact us and claim that they did not steal anything, but they have said things to investigators that make their claim of innocence look like a lie. You can’t outsmart or outplay the investigator – so wait to explain your side until you have a lawyer.

And then there is the obvious: do not steal!

 

Continue Reading Beware the Feds and Fraud – prison time and big fines remain the norm!

 

In the fight of your life?

Five years ago I started this blog with a post about hiring a lawyer. What should you ask before you pay? Over the years, this post has stood the test of time. Read it and you will be a better informed consumer!

Forget those crazy lawyer TV advertisements, websites that promise you a win, and "former prosecutor can get you better results" come-ons.

Read this post I wrote in 2009 and then find your fighter!

 

Continue Reading IN THE FIGHT OF YOUR LIFE? Ask these 5 questions before you hire a lawyer!

 Here’s a guest post by my partner – and daughter – Courtney Peterson

I was reminded this week how the impact of hiring an attorney can last long after a jury has reached a verdict, a settlement has been made, or a case has been dismissed.  So many attorneys focus on the “big” cases – serious felonies, federal charges, large civil suits – they forget how important a “little” case can be.  My practice consists of both big and little cases and I like it that way.

I love those cases other attorneys scoff at, like juvenile offenses and minor misdemeanor charges. 

Charged with petty theft? Malicious injury? Driving without privileges or a juvenile case?

Of course you deserve the best legal help you can get, and you need a lawyer who cares about you, and about your case and more importantly, about your future.

Why don’t I focus all of my attention on catching the big one?  Because the little cases matter.  Sometimes, they matter even more.  A minor misdemeanor charge for a person who has no legal status in the country is often a huge deal, even if it’s a simple driving offense.  People can lose their right to remain here with loved ones over simple driving offenses.  Little cases matter big time.

Juvenile offenses aren’t always about a kid who wants to run away or is skipping class.  On a daily basis, juveniles are charged with misdemeanors and felonies that have the potential to completely change their lives at such an early age.  The juvenile system is focused on ensuring that a child does not end up in the adult criminal system years later.  They courts work with juveniles and their parents, as well as teachers, counselors, and probation officers to get these kids on the right track for their future.  These are not just “little” cases. Juvenile case matter big time, too!

A former juvenile client contacted me a couple weeks ago with what she described as a huge favor – would I be her mentor for her senior project this year? 

This client, by the way, had a case that included both a big and little charge. The felony charge was ultimately dismissed and she plead guilty to the misdemeanor.  With the help of the court and the prosecutor, my client and her family had a positive experience and she now thinks she’d like to go to law school. 

Being her mentor for a semester is not a huge favor, it’s an honor.  An honor that I might not have gotten to experience if I focused only on catching the big case. 

So call us or drop a comment here if you have a big little case. Maybe I can help.