Boston Governor Proposes The Elimination Of Sufficient Legal Representation For Indigent Defendants- Attorney Sam’s Take

…And as we prance away from acknowledging the realities of the criminal justice system, we dance along with Governor Deval Patrick. His new proposed dance-step bows politely to law enforcement. It’s a nice dance, really. The only people likely to be hurt are the poor and disenfranchised. But then, if you follow the tune, you will realize that when they are accused of crimes, they are probably guilty anyway. So, perhaps still stinging from criticism that made him cave in the Parole Board fiasco, he is in no mood to consider them.

That's right. It’s gonna be another one of those blogs.

We discussed this issue awhile ago. Massachusetts’ prosecutors are whining that those big bad criminal defense attorneys who are hired to represent indigent criminal defendantsr, after a proper nickel and diming and receiving only a fraction of what their work is worth, are making too much money. Never mind the vastly uneven playing field in which prosecutors who do not have anywhere near the professional expenses and yet have all of the resources available to their disposal. Forget about the fact that those poor crusaders of justice are able to support families and build a nest egg while their indigent-representing-opponents can barely meet the expenses that law enforcement agencies meet for the "good guys".

Do you realize that those scourges of justice, the defense lawyers, have the temerity to believe that they ought to be able to meet expenses? Some such misanthropes even think they should earn a living!

Well, the governor has decided to solve the problem in true Shakespearean style. While he is not going so far as to "kill all the lawyers", he is taking a dramatic stand with they who seem to have the power…law enforcement. Of course, there is not enough money to give better salaries to prosecutors yet, so why not crush the other side of the aisle a bit more? Who’s going to complain? The poor who depend on those attorneys for a chance at a fair trial? Oh, come on, now. Those professional vermin the defense attorneyes? Grow up!

The governor now wants to eliminate the use of private attorneys to represent indigent defendants. Aside from the relativly few full-time defenders, hired by the Committee For Public Counsel Services (CPCS), private defense attorneys have been accepting appointments from the court to represent indigent defendants at surprisingly low hourly rates. Said attorneys are chosen by CPCS because of their abilities and, often, experience in the courtroom.

Hence, of course, part of the problem. Who wants experienced criminal defense attorneys in the trenches when defendants are fighting for their freedom?

Patrick’s suggestion , which he plans to include in his fiscal year 2012 budget, would end the practice. The state instead would hire about 1,000 full-time staff attorneys to replace the 3,000 private lawyers the state draws on to represent poor people.

The Commonwealth somehow sees this as a way to save money. One wonders what these salaried attorneys would be paid, in addition to what benefits and free office space would cost...which, of course, the private bar advocates do not get.

Of course, the math kind of works when you remember that the 3000 bar advocates (who are already over-burdened) will be replaced by only 1000 attorneys.

Well, maybe the governor figures that the 1000 new attorneys will be virtual super men and women who have such vast training and experience that they can do three times the work. Whooops! I forgot about the part that said attorneys would usually be new attorneys rather recently graduated from law school.

Hm. Well, maybe the governor is banking on the exuberance of youth. Alternatively, maybe the governor and the prosecutors realize that if the defense attorneys don't know alot, they cannot do alot!

On the more important bright side, at least the political prosecutors will be pleased. And, after all, the only ones being screwed, either than the lawyers, will be the indigent defendants.

Hell, do they even vote?

Previous to my 20+ years as a Boston criminal defense attorney, I was a prosecutor in New York. There, such a plan is in effect. The full time defense lawyers work for the Legal Aid Society. However, even they cannot handle all the indigent criminal defendants. Further, there are often conflicts of interests which prevent attorneys from the same organization representing certain clients. Therefore, private attorneys, such as those Governor Patrick seeks to eliminate, are necessary.

It is no surprise that the prosecutors are beside themselves with glee at this proposal. First of all, maybe it will free up some money to line their pockets a bit better. Second, indigent defendants will pose less of a threat in the courtroom.

Until the onslaught of successful appeals for ineffective assistance of counsel, that is.

You know, I get tired sometimes of clients who tell me that only people with money get a fair shot in the courtroom. They argue that the poor do not stand a chance..

I get tired of arguing with them.

It looks like, soon, I will not have to disagree.

I no longer do court appointed work. However, if you wish to consult me for a free initial consultation. I can be reached at t 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://mobile.boston.com/art/30/news/local/massachusetts/articles/2011/01/24/patrick_wants_to_end_use_of_private_attorneys_for_public_defense/

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Former Massachusetts Police Chief Not Guilty in Gun Homicide Of Child-Attorney Sam’s Take

Today is the first holiday in quite a while that former Pelham Police Chief Edward Fleury (hereinafter, the “Ex-Defendant”) can breathe freely. The cloud of criminal allegations which has surroundied him since 2008 has finally lifted. He was finally acquitted of homicide charges in the tragic death of the late young Christopher Bizilj.

The Ex-Defendant’s firearms training company co-sponsored an annual Machine Gun Shoot and Firearms Expo at the Westfield Sportsman's Club, about 10 miles west of Springfield. Young Christopher’s dad brought the 8-year-old to the event. In doing so, he also signed a waiver acknowledging the risks and absolving anyone else of liability should something bad occur.

Something very bad did.

The boy was shooting a 9 mm micro Uzi at some pumpkins, when the gun kicked back and shot him in the head. The Ex-Defendant was not present in the area in which this took place, although the father and other personnel were.

Prosecutor William Bennett told the Springfield jury that the ExDefendant was criminally reckless in running the event because he allowed children to illegally shoot machine guns under the supervision of a firing range officer who was 15 at the time and didn't have a firearms license or certification.

The accident was shown, via graphic videotape, to the jury during the course of the trial.

The defense denied the allegations and blamed the boy's father, an emergency room physician, for allowing Christopher and his then-11-year-old brother to shoot such a dangerous weapon.

Neither the father nor the teenage range officer were charged.

The jury returned its verdict on its first full day of deliberations. They acquitted the Ex-Defendant of the involuntary manslaughter as well as three charges of furnishing machine guns to minors.

I have dealt with countless gun crimes in my quarter century experience in the criminal justice system. I have often told you that when a tragic accident happens, we always seem to need somebody to blame. Nowhere is this more true than with gun travesties like this one.

Fortunately for the Ex-Defendant, the jury was able to see beyond that need...maybe. The defense, of course, seemingly accepted that somebody may have to be to blame and pointed to the father. While perhaps distasteful to many, one would imagine that he was a more likely candidate than the Ex-Defendant.

Of course, I would not wave any victory flags for either the Ex-Defendant or the father. I doubt either is celebrating right now. A little boy is dead and you may be assured that this case has haunted and will continue to haunt the Ex-Defendant for a long time to come. As for the father...one can only imagine the turmoil he is in. I would venture to say that there is nothing any criminal justice system could do to him that is worse than what he is already doing to himself.

This case, however, may not end here. There is likely to be a civil law suit brought by the family against the Ex-Defendant and others (there are, by the way, others who were charged criminally and are awaiting trial).

“But, Sam...there was a waiver signed. How could the Ex-Defendant be charged or sued?”

First of all, a waiver cannot bar criminal prosecution. It is, if anything, an agreement between the father and the Ex-Defendant. While it is supposed to shield , in this case the Ex-Defendant and the company, that may make it hard for the father to prevail at trial, but there is alot of time and money between the initiation and trial of a civil lawsuit. In other words, it may be more expedient to settle. Further, there area are always legal arguments to make to discount the waiver.

If you are dealing with a civil lawsuit, you should get experienced civil litigation attorneys. Might I suggest the good folks at Altman & Altman, LLP?

If you are dealing with a potential criminal action, you want to have experienced counsel in that realm.

If you would like that to be me, , please feel free to call me to arrange a free initial consultation at 617-492-3000.

In the meantime, take a moment or two to think warm thoughts in the memory of a true American hero, Martin Luther King, Jr.

For the original story upon which today’s blog is based, please go to http://www.boston.com/news/local/breaking_news/2011/01/gun_fair_organi.html

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Mattapan Suspect Arraigned In Boston Superior Court For Home Invasion And Drugs But Not Murder- Attorney Sam’s Take

It may take awhile for felony prosecutions to come, but, usually, when the police painstakingly take their time in their investigation, suspects emerge. This is being played out in Boston’s Suffolk Superior Court. Kimani Washington, 35 (hereinafter the “Defendant”), has been arrested in connection with the quadruple homicide in Mattapan in September. He was charged with various charges, including armed robbery, armed carjacking, trafficking cocaine, and being an armed career criminal.

He has pleaded “Not Guilty” and was ordered held on $500,000 cash bail after arraignment in Suffolk Superior Court.

Interestingly, the Defendant was not charged in the actual murders, although the prosecutors allege that he was a mastermind behind the armed home invasion that precipitated the deadly shootings.

Apparently, during the investigation into the murders, police found over 28 grams of crack cocaine allegedly taken during the robbery, as well as two guns. They say that these were found in a location where the Defendant often stayed. The Commonwealth also claims that one of these firearms were fired during the multiple homicide.

The Defendant is not the only one charged in the case. Another man has been actually charged with the murders and are expected in Suffolk Superior Court shortly. Further, another gentleman was arraigned previously arraigned on murder charges and held without bail.

Prosecutors allege that the Defendant and one of his alleged co-perpetrators knew each other from mandatory visits to prison, and that they hatched a plan to rob the location of the homicides of drugs and cash. On the morning of September 28th, the burglary was carried out according to authorities.

The Commonwealth further claims that the Defendant left the house after the robbery, which is when the executions were carried out. Later in the morning, the three men met again to divide the proceeds from the robbery.

I have handled several gun and murder cases over the past 25+ years as attorney in the criminal justice trenches. While there are nuances in every case, fact scenarios generally fall into a few common patterns. This does not mean, however, that the Commonwealth treats them all the same.

In many cases, the Commonwealth would be charging the Defendant with Murder In The First Degree along with his alleged cohorts.

“How, Sam? He left before the shooting ever took place according to the allegations.”

First of all, we do not know how the Commonwealth came to that conclusion. I will come back to why that may be important in a moment.

Understand that, whenever possible, the Commonwealth charges people they believe are acting together as being a conspiracy or, at least, a joint venture. Under either of these theories, each person is responsible for what the other(s) do during the course of whatever was planned.

Even if something foreseeable, if not planned, took place. For example, two guys rob a store and, as leaving, one of them turns and shoots the store owner. The shooting was foreseeable, so both would normally be charged. The applicable law does allow for someone to withdraw from a conspiracy or joint venture, but it requires a good amount of announcements by the “withdrawer” to qualify.

Further, there is apparently evidence that the group met up again after the killing. It would seem, therefore, that the joint enterprise was still in existence at that time.

I find it interesting that this Defendant is being arraigned all on his lonesome and is not charged with the killing. Also, unless there was a video camera going at the scene of the crime, how does the prosecution know who planned what when and who left when? The victims, of course, are dead. Math is not my strong point, but it seems to me that this just leaves the Defendant and company who would be able to tell the Commonwealth these things.

Could it be that the Defendant is now a Commonwealth witness in exchange for not being charged with murder? Obviously, I don’t know. I will tell you, though, that, as a trial attorney, particularly one in criminal practice, I have developed a well-toned a strong case of “professional paranoia”.

It helps. A lot.

Might I suggest that if you find yourself suddenly facing down the barrel of a criminal charge, you look for an experienced criminal defense attorney with that occupational disease? If you want to contact me to discuss such a situation, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/man_held_on_hig.html

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Massachusetts Drunk Driver Admits Guilt But Is Not Responsible For Vehicular Accident- Attorney Sam’s Take

It would appear that this Massachusetts driver thought ahead. Realizing that the coming storm would make it difficult to go out and drink, Ms. Tara Tobin (hereinafter, the “Defendant”) got in one last trip just before the snow. The result was not too pretty.

The Yarmouth police say that the Defendant admitted that she had drunk six or seven beers in Dennis before driving.

What happened? The crash took place Tuesday night around 9 p.m..

The unusual part? According to the police, the Defendant, whatever condition she was in, did not cause the accident.

Apparently, a 47-year-old emotionally disturbed man jumped into the path of a Dodge Dakota pickup truck. The truck's driver swerved to avoid the man and was then rear-ended by the Defendant’s car..

The man suffered serious, but non-life-threatening, injuries and was taken to Cape Cod Hospital, police said.

The Defendant is to be arraigned in Barnstable District Court…whenever it reopens following the storm...for drunk driving.

Let’s all hope she presents a bit better than she did in her “mug shot” which was published at the below link in the original article.

My experience, since 1984, handling drunk driving cases in Massachusetts goes back to my last year at Boston University School of Law as a student prosecutor. The cases, particularly when a breathalyzer is involved come down to issues of perception and prejudice.

I do not mean racial prejudice, but bias based upon indoctrination. Most often, if a police officer pulls you over because he or she feels you are intoxicated, or begins to suspect you are under the influence, you will most likely be charged with

This influence, by the way, can be alcohol, illegal drugs or even legal prescription drugs…to say nothing of any mixture of the three.

In my experience, once suspected of being under the influence, you should assume that the police report will say that you have glassy eyes and slurred speech. Most likely there will also be some kind of odor of alcohol listed.

That said, consider yourself under arrest. Any other descriptive is gravy for the Commonwealth. This is why it is usually a mistake to submit to any tests. Granted, if you pass the breathalyzer, for example, it will help you down the road. However, it will probably not prevent your being arrested. If you do not pass it, it will surely hurt you down the road.

Given the amount of vehicular homicides last year due to drunk driving allegations, victims sometimes being police officers, you are not likely to receive a “break” from the officer.

So don’t ask for one. Said request will simply be treated like an admission of guilt by the prosecution.

And, yes, there will be a prosecution.

The advice in these cases is to not quarrel with the officer, or try to outwit or outrun the officer.

Simply remain polite, do not make statements (except name, license, etc.), and get an experienced criminal defense attorney as soon as possible.

If you would like to discuss such a matter with me, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/by_john_r_ellem_29.html

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Ex-Massachusetts State Senator Dianne Wilkerson Sentenced to 3 1/2 Years in Prison For Accepting Bribes

Former Massachusetts State Senator Dianne Wilkerson has been sentenced to serve 3 1 years in state prison for accepting $23,500 in bribes. Wilkerson had pleaded guilty to criminal charges of eight counts of attempted extortion last year.

In 2008, she was caught inserting $100 bills in her bra as part of a kickback scam. Wilkerson was accused of taking eight cash payments between 2007 and 2008 from undercover agents and a witness who was secretly working with the FBI. The former state senator was captured on approximately 150 video and audio recordings saying she was going to use some of the money at a casino, as well as to embark upon a sticker campaign in the wake of losing the 2008 Democratic primary.

While prosecutors had pushed for Wilkerson be sentenced to four years in prison, her legal team had argued for less time. The sentence that Wilkerson received is in line with federal sentencing guidelines.

The former state senator, who has been ordered to turn herself in on March 11 so she can start serving her federal prison term, said today that the believes that she was pursued by corrupt federal prosecutors who didn’t like the fact that she was among the politicians that challenged the status quo. Originally, Wilkerson had faced 32 charges of allegedly taking bribes, but the government agreed to drop 24 of the criminal charges. Mail fraud and wire fraud and conspiring to extort cash were among the charges.

Wilkerson sentenced to 3 1/2 years in corruption case, Boston.com, January 6, 2011

Wilkerson guilty of attempted extortion; prosecutors recommend up to 4 years, Boston.com, June 3, 2010

Related Web Resources:
White-Collar Crime, Federal Bureau of Investigation

White-Collar Crime: an overview, Cornell University Law School

Having an experienced Boston white-collar crime lawyer representing you can greatly affect the outcome of your criminal case for the better. Your Massachusetts criminal defense attorney can help win a not guilty verdict or negotiate a successful plea agreement for you. He or she may also be able to get the charges against you dropped or your sentence reduced.

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Felony Drug Charges May Be Dropped Against Mom Who Grew Marijuana For Son’s Use- Attorney Sam’s Take

We haven’t talked about drug cases for awhile. As you know, possession of a small amount of marijuana has been decriminalized. However, that does not mean that having it is now problem free.

Confused?

Well, it depends on the circumstances in which you possessed it. For example, if there is even the hint that you might be sharing or otherwise distributing pot you are going to be charged with possession with intent to distribute.

And then there was the case of Ms. Sue Thayer, 65 (hereinafter, the “Defendant”) She was charged with felony drug charges when it was discovered that she was growing marijuana. Apparently, she was growing it for her son.

In 2007, the Defendant was charged with possessing more than 25 pot plants. She said she grew the plants out of necessity because the marijuana improved the appetite and general condition of her son, who suffered from chronic wasting.

She tried a defense of "necessity". It did not fly.

Fortunately for the Defendant, however, prosecutors, and the court of course, had a heart. They have now agreed to refer her to court diversion. If she completes it, the charges against her will be dismissed.

I have handled drug cases of all sorts in my 25+ years as attorney in the criminal justice trenches. The realization that drug crimes are often a result of illness and addiction is an area in which many courts have begun to react to reality and try to actually do some good. Unfortunately, it seems that the more this happens, the more politicians change laws to prohibit anything but long term prison sentences for nonviolent drug crimes.

Which way is the pendulum really swinging? I’m not sure…what day is it today?

Usually, at least in Massachusetts, diversion programs like the one here is reserved for kids who have “strayed off the path” and are considered redeemable. Additionally, many states have eased the handling of “medical marihuana” cases. However, those are usually cases in which the pot is actually prescribed by a physician.

This is an interesting case in that the marihuana plants are not being grown by the user. They are being grown by the Defendant to then give to her son. That “giving” is technically a sale and could be prosecuted as such.

One would hope that the government has become involved in some other kind of treatment for the son, assuming that this avenue of treatment has now been closed.

Generally, though, it is a mistake to rely upon goodwill of the prosecution when facing drug charges. Get an experienced criminal defense attorney. Such an attorneysshould have the experience to get whatever kind of goodwill is out there…and, maybe, create some that isn’t there at first.

If you want to contact me to discuss such a case, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://mobile.boston.com/art/30/news/local/vermont/articles/2011/01/18/mother_avoids_trial_on_marijuana_charges/

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Medford Man Is Sentenced In Federal Court For, Among Other Things, Lying To Police-Attorney Sam’s Take

Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call 617-492-3000.

Posted On: January 11, 2011 by Samuel Goldberg

Gerard Sasso, 52, of Medford, (hereinafter, the “Defendant”) has made Massachusetts history. In fact, he is not only a “first” in the Commonwealth, but is a “second” in the country! Unfortunately, he will be “celebrating” in a federal prison.

Yesterday, the Defendant became the first person in the state -- and the second in the nation -- to be convicted for lasering an aircraft. He was convicted of charges of willfully interfering with an aircraft operator with reckless disregard for human life, and of making false statements, the US attorney's office said in a statement.

The Defendant received the award of three years in prison for shining a laser at a State Police helicopter that was escorting a tanker through Boston Harbor, federal prosecutors said.

Apparently, the Defendant shined a powerful green laser on the helicopter on December 8, 2007. Prosecutors said the pilots were able to determine the light was likely coming from his apartment. When the police went to his apartment to investigate, he initially denied having the lasers but later confessed, prosecutors said. The green laser was recovered, along with 10 other lasers, from the apartment.

"This sentence should send a strong message that interfering with an aircraft in any way will result in aggressive prosecution and stiff sentences. Such actions endanger lives and disrupt air travel, and will not be tolerated," quota the government.

My experience as a Boston criminal law attorney has made me somewhat overly cautious. At least, that is what my kids say. I remember when my son got his hands on a laser pointer and thought it was hysterical to annoy people with it. I not only thought it was not funny, but was worried if there could be some kind of criminal proceeding against someone playing with these things.

I admit that it never occurred to me that, if you pointed it skyward, it could actually interfere with planes or helicopters!

As you may know, though, ignorance of the law is not a defense. Further, prosecutors seem to be almost falling over themselves to fit everyday actions into criminal cases, if only to keep up with technology. This is why, for example, cyber crime is particularly popular among law enforcement.

Had the Defendant been playing with the laser and had no idea it could interfere with pilots, he might have had a defense. Maybe the court would have felt bad for him. However, he made one mistake. A big one.

He lied to law enforcement.

As you know, you may refuse to answer questions of the investigating officers. However, you may not try to mislead them in their investigation.

That, believe it or not, is a felony called “intimidation of a witness”.

Not only is it an additional crime, but the prosecution will normally use the deception as “consciousness of guilt” to help prove that you knew you had committed a criminal act.

So, when the blue arm of the law comes a-calling, do not lie. Call. Call an experienced criminal defense attorney who can best advise you on what to do.

If you would like to discuss a criminal matter with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

To view the original story in which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/medford_man_con_1.html?p1=Well_MostPop_Emailed7_HP

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Mattapan Man Seeks Driving License After Six OUI and One Vehicular Homicide Convictions- Attorney Sam’s Take

We take today’s blog from the “You’ve Gotta Be Kidding Me” section of the news. It involves a man who clearly picked the wrong time to attempt to get back his Massachusetts driver’s license.

One would imagine that even without the pending Parole debacle claiming the front page every day , that Algary Horton, 53, of Mattapan (hereinafter, the “Nondriver”) would still be refused.

You see, the Nondriver does not have the greatest driving record. He has been convicted six times for drunk driving for example. Oh yes, and there was that time, in 1993, when he killed a woman on one of those allegedly drunken drivers and then fled the scene.

The Nondriver does get points for consistency, however. He was convicted of OUI in 1979, 1987, 1989, 1993, 1998 and 2004, authorities said.

In the 1993 case, interestingly not his last, the Nondriver was also found guilty of vehicular homicide when his vehicle veered off Park Street in Dorchester, plowing into a 38-year-old woman. She, a mother of three, was sent flying into the air while her children and friends looked on in horror. The Nondriver drove on.

In that case, he was sentenced to 12 to 15 years in prison. Somehow, however, he was back behind the wheel and driving (although without a valid license) for the occasions of his 1998, 2003 and 2004 arrests, authorities said.

Meanwhile, not to be deterred, the Nondriver continues to appeal and fight for his privilege to drive to be returned to him.

Don’t think he hasn’t been busy while carless, mind you. Apparently, he also has three pending assault cases in Dorchester District Court, court officials confirmed

He’s probably no longer a threat.

As a Boston-based drunk driving defense attorney of many years, I have seen some very odd results of cases…and their aftermaths.

The pending plight of the Nondriver and his nonlicense is not as shocking to me as it probably is to you. For anyone in this man’s position to try to get his license back, particularly when the recent Parole Board fiasco is still playing out is to be living in another universe. Had he given the situation some more thought, perhaps he would realize that if, at this time, he was given his license back, whoever made such a decision would likely be drawn and quartered.

However, there is an interesting question here. How many of these convictions were plea bargains and how many were trials?

“Sam, why on Earth should that matter?”

Sometimes there is a snowball effect. Sometimes, when one is facing trial and potential jail time, one pleads guilty in order to avoid the risk. Believe it or not, innocent people do this as well as guilty people.

Why might they do this? Well, for many, jail is a pretty scary possibility. Further, they might find themselves with an attorney in whom they have little faith. Perhaps the attorney is exuding the vibes of “Omigod, we’re gonna lose! We’re gonna lose!”

And so, in panic, they plead guilty.

Pleading guilty sometimes makes sense under such circumstances. Sometimes, however, it does not. Particularly in certain cases, where one’s future in job potential, immigration consequences or ability to drive may be in jeopardy.

Then, at the next case, the prior conviction-by-way-of-plea is considered and the odds for either acquittal or more consideration become worse.

How best to avoid such a catastrophe? Retain and experienced criminal defense attorney who has handled matters like yours. Also, make sure it is someone in whom you have faith. That way, you know whether you can believe what he or she is telling you.

Before the moment of panic.

If you want to contact me to discuss such a case, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://news.bostonherald.com/news/regional/view/20110115man_in_fatal_oui_loses_bid_to_regain_license/ and http://news.bostonherald.com/news/regional/view/20110114despite_6_ouis_including_one_fatal_man_wants_license_back/

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Driving Under the Influence of…Binaca?

So you’re driving along and suddenly there are flashing red lights in your rear view mirror. You recall that glass of wine with dinner: not nearly enough to be over .08%, of course, but enough to cause an odor of alcohol on the breath. As you pull over, you grab the breath freshener and quickly spray it into your mouth. The officer asks you to step out of the car, holds out a portable breath testing device and asks you to blow into it. A moment later you are being handcuffed.

What happened? One of the many problems with breath machines is that they cannot tell the difference between alcohol coming from the lungs and alcohol which is already in the mouth or throat. This problem is referred to as mouth alcohol, and is particularly troublesome because, believing it to be alcohol from the lungs, the breath machines will incorrectly multiply the detected alcohol by 2100 times (see my earlier post, Breathalyzers — and Why They Don’t Work).

One common source of breath alcohol is breath spray, as well as mouthwash — both of which contain significant amounts of alcohol. Listerine, for example, contains 27% alcohol, Scope 19% and Astring-O-Sol 76%. Even a tiny amount of this on the breath or in the throat, if multiplied by the machine 2100 times, can result in high breathalyzer readings.

This was clearly illustrated in a study conducted with Listerine mouthwash on a breath machine and reported in an article entitled "Field Sobriety Testing: Intoxilyzers and Listerine Antiseptic", published in the July 1985 issue of The Police Chief . Seven alcohol-free individuals were tested at a police station, with readings of .00%. Each then rinsed his mouth with 20 milliliters of Listerine mouthwash for 30 seconds in accordance with directions on the label. All seven were then tested on the machine at intervals of one, three, five and ten minutes.

The results indicated an average reading of .43% blood-alcohol concentration — indicating a level that, if accurate, approached lethal proportions. After three minutes, the average level was still .20%, despite the absence of any alcohol in the system. Even after five minutes, the average level was .11% — well over the legal limit.

In another study, reported in 8(22) Drinking/Driving Law Letter 1, a scientist tested the effects of Binaca breath spray on an Intoxilyzer 5000. He performed 23 tests with subjects who sprayed their throats, and obtained readings as high as .81% — far beyond lethal levels. The scientist also noted that the effects of the spray did not fall below detectable levels until after 18 minutes.

Don’t spray and drive.

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What is a Standard Alcohol Drink

Always go for having a standard alcohol drink. Never consume unfamiliar drinks which has unknown or undetectable alcohol content. Always have a drink when you actually want, otherwise you are certain to mess up with yourself. Know your limits always remember that.

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The Crackdown on Alcoholic Energy Drinks

It is really important to refrain yourself from such drinks that contain caffeine and are low standard. They can cause hazardous effects. They are also toxic and dangerous to health.

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4000 Wrongful Drunk Driving Convictions

There are many cases ruled out for wrongful drunk driving offense. For an accurate breath test, there are some prescribed parameters. Any fraudulent DUI offense can be challenged using the available options for its recovery.

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Arrested for DUI in Georgia

Like all other states, the state of Georgia has also got its own rules and regulations regarding the punishments and charges in DUI crimes. The ultimate thing that they go for, immediately after the person is suspected of being drunk, is the fine and suspension of the driving license.

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How to Defend a DUI Case

Driving under the influence (DUI) or drunk driving is considered as a serious offense. An offender of drunk driving can have different punishments. However, a skilled and competent attorney can help the offender by launching a suitable defense for him.

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Binge Drinking Facts and Statistics

“Binge drinking” is thought to be quite common among the youth and college students. But contrary to this notion, the researches and the surveys have proven that the proportion of the binge drinkers in the colleges and universities has greatly reduced and it is still coming towards decline. It is the need of the hour, not to exaggerate the issue, but to work for solving it.

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First Time Drunk Driving Offense

Most of the drivers are charged for first time with offence of driving under the influence (DWI). Some hard penalties might be sentenced against one’s expectation for DUI first offence. However, an experienced and skilled DUI lawyer might protect the offender’s right.

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380th Grand Jury Letter

Recently, a letter was sent to the press criticizing the outgoing District Attorney and reporting their findings.  This letter made it to the Dallas Morning News, where it was reported by Ed Housewright.  The DMN did not publish the letter and I personally had been curious to see it.  I now have a copy, and I am publishing it here.

The letter came to me in a cryptic, no return addressed envelope.  As I opened it up (expecting white powder to fly out at me), I saw the contents containing documents regarding the 380th Grand Jury.

Contained in the letter was a request to clarify the inaccurate reporting of the impaneling of the Grand Jury. I had written about this before.  In some reports, it seemed as if this grand jury was empaneled by Judge Wooten in order to investigate the District Attorney’s Office.

This was not the case.

This Grand Jury was empaneled in the normal rotation, just like every other Grand Jury.  Once a Judge picks the commissioners, they select the array of potential Grand Jurors.  The select between 15 and 40 people.

Once that array is selected, objections can be made.  The elected District Attorney can object.  In this case, The district attorney had an opportunity to object on June, 11, 2010.  The District Attorney in this case stated, "… we have no challenge to the array, Your Honor."

Among the letter were documents including:

a) The letter sent reporting the Grand Jury Findings
b) A reporters record showing the selection of the Grand Jury
c) 2 Letters from John Schulte and his wife where John resigned from service due to health issues.
d) Emails from the DA’s office to and from Judge Wooten, discussing the process of empaneling the Grand Jury
e) Orders dismissing one Grand Juror (on June 22, 2010) due to a prior conviction in 1977.
f) Transcript of Judge Wooten appointing the Grand Jury Commissioners (May 14th, 2010)
g) Transcript of John Roach not objecting to the makeup of the Grand Jury.

The letter of resignation from John Schulte’s wife had some harsh language for Mr. Roach:

"My husband is an honest, honorable man with the utmost integrity.  My family has been reading the "press releases" you sent out the last couple of weeks obviously questioning these qualities.  These press releases have done nothing but add to our stress over the last few weeks.  You should know that my husband has not been attending grand jury sessions over the last few weeks and therefore would obviously not be involved with the "investigation" of your office discussed in your press releases.

This letter also is notice to you that my husband is resigning from his service on the grand jury effective immediately due to his  terminal illness.  I thought a letter to you explaining the circumstances surrounding his resignation was appropriate to stop you from issuing another "press release" claiming you had anything to do with his departure.  You did not."

Below this post is the full Text of the Grand Jury letter.

Editor’s Note: John Schulte was a friend and helped my wife and I find our first house.  He was our Realtor and he will be missed.  Part of the reason for my article is to help clear the air of any wrongful implications that may have been levied against him — either purposefully or otherwise.

————————————-

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How to Convict an Average Man

One of the greatest sources of error in breath-alcohol testing is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading in a DUI case is completely dependent on the validity of a number of assumptions.

Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely “average” in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. Yet, the actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. So a DUI suspect with a true blood-alcohol level of .07% but a breath-to-blood ratio of, say, 1:1500 would have a .10% reading on an “accurate” breath testing instrument.  In other words, the machine would show an innocent subject to be guilty.

Put simply, these machines do not test individuals. Rather, they test the same “average suspect” over and over again, but using the individual subject’s breath.

Another example of the assumption of “averageness” can be found in urinalysis. When a DUI suspect’s urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder’s urine for every 1 part of alcohol in the blood. This 1:1.3 ratio is as fallacious as the 1:2100 ratio– that is, it is based entirely on the ratio found in the average person. In fact, however, the actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

Yet another example of this constant reliance on averages shows itself when the prosecutor in a DUI trial offers evidence of so-called retrograde extrapolation — a fancy word for guessing backwards. The blood-alcohol level at the time of testing is not relevant to the charge, of course, and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by “extrapolating” backward — that is, computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or “burned off” in the period between driving and testing.

But this requires two assumptions: (1) the blood-alcohol level was declining, and (2) the rate of elimination is known. This second assumption involves the further assumption that the “burn-off” rate was .015% per hour (sometimes the assumed rate is .02%). How does the prosecution know that the defendant was eliminating at that rate (assuming he was eliminating rather than absorbing) and not at .005% or .30%?

Quite simply, the prosecution does not know: It merely assumes that the defendant eliminates at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.

This ever-present “average person” in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the nystagmus test (“follow my finger with your eyes”) as part of the battery of field sobriety tests, he operates on the assumption that the suspect is “Mr. Average.” The officer has been trained to “read” at what angle the suspect’s eyes begin jerking. If it begins before 45 degrees, the suspect fails. And where does the magic figure of 45 come from? The average person.

Don Nichols, a pioneer among DUI defense attorneys, would point out to juries that his client is female, Chinese and deceased — despite obvious evidence to the contrary. He then explains that statistically there are more women than men in the world, more Chinese than any other nationality and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased — and so, according to the prosecution, must be his client. He also asks the jury how many of them have 2.3 children – the average in the United States.

So why does the state presume facts that are clearly untrue? Simple: Since the prosecution doesn’t know anything about the defendant’s physiology, legally assuming the critical facts makes prosecution and conviction much easier.  

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Crackdown on…Bicycling Under the Influence?

The latest in MADD’s "War on Drunk Driving"….

5 Bicyclists Arrested on Suspicion of DUI in L.A.

Los Angeles, CA.  Jan. 13 – Five bicycle riders have been arrested on suspicion of riding under the influence in South Los Angeles after officers gave sobriety tests to a pack of pre-dawn bikers.

California Highway Patrol Officer Travis Ruiz says officers were called to the Baldwin Hills area at around 1:30 a.m. Thursday after a bicycle lost control and crashed to the pavement.

Ruiz says while officers were there, 15 bicyclists came up to check on their friend. Ruiz says they were riding on both sides of the street without helmets and were barely visible to motorists.

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Tougher Tennessee DUI Laws Take Effect in 2011

Several new laws in Tennessee DUI laws will make penalties for drunk driving, and repeated and excessive drunk driving harsher.

One new DUI law that has gone into effect will call for those DUI offenders who register a blood alcohol content higher than .15 percent to install and pay for an ignition interlock device if they want to drive at all.

Another DUI law will require state judges to determine if a DUI suspect is a danger to the community, and therefore be able to deny them bond. This caveat would typically impact repeat DUI offenders.

The Chattanooga Free Press reports that the new laws are part of a stronger package of drunk driving legislation which lawmakers hope will scare some DUI offenders out of breaking the law again. The trend towards stronger DUI law is certainly a national one, and this latest package only strengthens this trend.

Assistant District Attorney in Hamilton County Kate Lavery is one strong supporter of the new legislation. She said in statements that her hope is that the new laws will decrease the number of DUI offenses.

“We currently have people out on bond that commit vehicular homicide or other DUIs,” she said, referring to the bill that would make it easier to prevent DUI suspects deemed especially dangerous from getting out on bail.

“This will strike right at the heart of our issue,” she said of the new laws.

The ignition interlock devices, which force a driver to take a blood alcohol breath test before they can start a car, will cost offenders about $60 per month. This cost will be mandatory upon conviction.

Under the new legislation, such in-car breath testers will even be possible for first-time DUI offenders. Such a device could be the requirement for some in order to get their license back after a license suspension period or a restricted driving period.

If someone who is convicted of driving with a blood alcohol content over .08 while also having a passenger under the age of 18 will have to have an ignition interlock device installed, even if it is their first offense.

Ignition interlock devices will also be required for cases including an accident resulting in injury, property damage over $400, or if they refuse to take a breath or blood test following a DUI arrest. Again, the in-car breath test could be installed in these cases even if it is a first DUI offense.

Tennessee joins several other states in terms of the strictness of DUI penalties. Eleven other states require an ignition interlock device with a BAC over .15, and 13 state require it it for first-time DUI offenders, according to the Free Press. Other states require the device upon multiple drunk driving convictions.

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“I observed the defendant weaving within his lane”

Undoubtedly the most common observation of impaired driving that officers make — and the one most commonly used to justify stopping the driver — is that the suspect was "weaving within the traffic lane", sometimes combined with "erratic driving".  At the same time, e xperienced traffic patrol officers are familiar with a phenomenon which is sometimes referred to as "black-and-white fever"?…

That phenomenon is simply the normal reaction of most drivers to being followed by a marked police car (painted black and white in many jurisdictions). As soon as the motorist becomes aware that a police car is following him, he becomes understandably apprehensive and focuses his attention increasingly on the rear view mirror. As the officer continues to follow, the driver becomes tense, worried, and his concentration on driving is broken: He keeps his eyes more on the mirror and less on the road ahead. Each time the driver brings his eyes back to the road, he finds that he has drifted and must correct the course of the car back to the center of the lane.

The result: weaving and, possibly, erratic movements such as sudden increases or decreases in speed (tension can cause the foot to depress the accelerator).  And, of course, these are the most commonly encountered symptoms of a drunk driver on the highway.

In other words, it is the very presence of the officer which tends to create the probable cause for suspecting a DUI. And after the officer pulls the driver over, he gets out and approaches the car with the very human preconception that the driver is probably intoxicated. And, as we know from psychological studies, we all tend to see what we expect to see: normally veined eyes appear "bloodshot"?, normal but nervous speech sounds "slurred"?, normal pink complexion appears "flushed"?, etc.

These observations are quickly followed by the notoriously subjective and inaccurate field sobriety tests, difficult to perform under the best of conditions (see my earlier post, “Field Sobriety Tests: Designed for Failure?”)….followed predictably by an arrest for drunk driving.

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A Fading Constitution?

I believe in the Constitution.  And I have railed long and hard in books, lectures and this blogsite about the damage being done to that great document in the name of fine-sounding schemes like "homeland security" and the so-called "war on drunk driving".  

Our Constitution is a marvelous document, the cornerstone of a great nation, and one which is admired and emulated around the world.  But it is only a document; it has no magic.  The Constitution gives the people no more than what is already within them.  When the Supreme Court approves warrentless stops and searches of citizens at DUI roadblocks and there is no outcry, the people are getting what they deserve; the document will not save them.

My blog’s banner above says that our Constitution is "fading".  That is, of course, inaccurate. The document is quite clear; it is the will and courage of the people that is fading.

The following is from a speech given by the renowned Judge Learned Hand in New York’s Central Park on May 21, 1944:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women.  When it dies there, no constitution, no law, no court can save it.  No constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.

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Are DUI Roadblocks Constitutional?

The Constitution of the United States pretty clearly says that police can’t just stop someone and conduct an investigation unless there are “articulable facts” indicating possible criminal activity. So how can they do exactly that with DUI roadblocks?

Good question. And it was raised in the case of Michigan v. Sitz (496 U.S. 444), in which the U.S. Supreme Court reviewed a decision of the Michigan Supreme Court striking down drunk driving roadblocks as unconstitutional. In a 6-3 decision, the Court reversed the Michigan court, holding that roadblocks were constitutionally permissible.

Chief Justice Rehnquist began his majority opinion by admitting that DUI roadblocks (aka “sobriety checkpoints”) do, in fact, constitute a “seizure” within the language of the 4th Amendment. In other words, yes, it’s a blatant violation of the Constitution. However….

However, it’s only a "minor violation", and there’s all this “carnage” on the highways MADD tells us we’ve got to do something about. The “minimal intrusion on individual liberties”, Rehnquist wrote, must be “weighed” against the need for and effectiveness of roadblocks. In other words, the ends justify the (illegal) means….aka, “the DUI exception to the Constitution”.

The dissenting justices pointed out that the Constitution doesn’t make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, “That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.” Brennan concluded by noting that “The most disturbing aspect of the Court’s decision today is that it appears to give no weight to the citizen’s interest in freedom from suspicionless investigatory seizures”.

Rehnquist’s justification for ignoring the Constitution rested on the assumption that DUI roadblocks were “necessary” and “effective”.  Are they?  As Justice Stevens wrote in his own dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks:

“The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative”.

p.s. The case was sent back to the Michigan Supreme Court to change its previous decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, if now permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution!  TheCourt ruled again in favor of the defendant — in effect saying to Rehnquist, “If you won’t protect our citizens, we will”. 

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