A Charlotte-Mecklenburg police officer has been charged with driving while impaired after a Union County traffic stop on New Year’s Eve. State troopers said 44-year-old Matthew Thompson was driving his Ford Explorer at around 6 p.m. Monday when he was stopped for swerving.
Read more: http://www.dailyadvance.com/ap/staten/charlotte-officer-charged-new-years-eve-dwi-1630195 2015-02-18
This is the third blog post on the former DMV Driver Safety Officer that plead guilty to bribery charges on February 3, 2015. Ms. Benavidez resigned from her position in December of 2014 after the FBI raided her home and office. Ms. Benavidez, as part of her guilty plea, admitted to inappropriately issuing temporary driver's licenses, granting suspension set asides when not warranted, and disposing of DUI driver files before they could be entered into the DMV computer system.
Please note that I learned a competitor was copying and pasting this original post. I spent years litigating and studying administrative law (that governs DMV hearings), as well as traveling all over California to hear other attorneys lecture on this topic. I maintain close relationships with attorneys in California to discuss developments in DMV APS hearings, and also discuss winning strategies.
The first part of the blog series touched the effect of the license suspension on DUI defendants and the FBI press release. The second on the environment in which the DMV driver license suspensions occur- they are in a small room with just the hearing officer, a recording system, the driver's attorney and their witnesses. This is a very close environment to cross examine a law enforcement officer- they can not run away.
In this blog post, I will discuss how to win at the DMV APS hearing. It is not easy for all the reasons listed in the previous post- the standard is low (preponderance of the evidence), the judge is also the prosecutor, there are institutional pressures for DMV driver safety officers to suspend driver's licenses, and the appeal process is lengthy and expensive.
The first key to winning DMV hearings is to know the law. The DMV hearing officer has the same roles as both a judge and prosecutor. However, DMV hearing officers are not held to uphold the law- there is no DMV hearing officer equivalent to the State of California Commission on Judicial Performance.
Second, is to cite the appropriate law. This may be intuitive, but it isn't. Many times the difference between winning and losing is showing that you can win. In legal environments, that means proper citations, or showing that the law can be utilized and accessed as a tool. This is opposed to having a general idea of what the law is. An attorney showing they can win in the later stages (DMV Departmental Review, Civil Writ) the DMV is less likely to press to the later stages.
Third, object, Object, OBJECT. Since the DMV hearing is recorded, and the only basis for a Departmental Review or civil litigation review is the audio, it is very important to preserve the record by objecting and citing the objection. Only a skilled an experienced litigator knows when to object, and when to let procedural objections pass. Ask your attorney about their litigation experience and success.
I must move to another blog entry to cover the remaining strategies. The DMV hearing process is one of the most complex and difficult aspects of specializing in DUI law. But it is the difficulty that makes it so enticing, and the victories so rewarding. Similarly, anyone who cheats or violates the system is an affront to the system as a whole- no matter what their role. Due to the severity of this violation, it will also be briefly discussed in the next post.?
“Suspect’s 40 minute detention, while awaiting drug K-9 unit was not unreasonable”.
In a case decided earlier this month, an Arizona Appeals Court ruled that an officer had enough “reasonable suspicion” to detain a suspect 40 minutes while awaiting the drug K-9 unit.
The court considered the “Totality of Circumstances” or “the whole picture”, to conclude that the detention was not unreasonable.
Case Facts
The suspect was pulled over, after the police officer observed the driver swerving and traveling at varied rates of speed.
The officer approached the vehicle, and requested the driver’s license, and registration. The driver complied as well as providing the rental car agreement.
The officer asked the driver where he was going, at which point the driver provided several answers. The officer reported that the answers were inconsistent, “confusing” and “perplexing”. The officer reported that the responses raised the officer’s suspicions.
The officer then noticed that there were no personal belongings in the vehicle. So he asked the driver if he was planning to stay in Phoenix AZ. The driver said no. The fact that the suspect was not planning to stay in Phoenix, but had no personal belongings in the vehicle, elevated the officer’s suspicions of potential criminal activity in progress.
The officer decided to do a background check on the suspect. The criminal records check revealed that the suspect had an extensive history of illegal drug trafficking and manufacturing crimes in a different state.
The officer asked for the suspect’s consent to search the rental car, and the suspect consented to the search.
Upon search of the trunk, the officer discovered two cardboard shipping boxes of “very solid weight” that were unlabeled, and taped closed. The officer asked the suspect to open the boxes, but the suspect refused.
At that point the officer requested the police department’s narcotics K-9 unit to be brought to the scene and check out the boxes. The K-unit arrived approximately 40 minutes later.
The police dog “bit one of the boxes” in the trunk, signaling to the officer that the K-9 detected drugs in the boxes. The police officer opened the boxes and found the Marijuana.
Court Summaries
The Superior Court of Arizona initially granted the defendant’s motion to suppress evidence of Marijuana discovered in the trunk of the rental car the defendant was driving. The Superior Court’s decision was made on the basis that the officer did not have reasonable suspicion to detain the suspect while the police officer waited for a narcotics dog to in check boxes found in the trunk of the vehicle.
The State appealed the Superior Court’s decision to suppress the Marijuana evidence. The state argued that the lower court erred by ruling that the police officer did not have reasonable suspicion to detain the suspect in order to wait for the drug K-9 unit to arrive.
Case Analysis
The Arizona Appeals Court identified the need to evaluate the “Totality of the Circumstances” or the big picture, in its decision as to whether or not the officer had a “particularized and objective basis for suspecting that the person was engaging in criminal activity” citing “O’Meara, 198 Ariz. at 295 ¶ 7, 9 P.3d @ 326.
The Appeals Court recognized that while a police officer must have more than a hunch or non-particularized suspicion, “reasonable suspicion” does require a minimal level of objective justification, .though considerably less than a preponderance of the evidence citing Teagle, 217 Ariz. at 24 ¶¶ 25–26, 170 P.3d @ 273.
In this case, neither the reason for the stop, or the facts surrounding the case were in dispute. So the question for the Appeals court was “What exactly did those facts and circumstances mean?”.
The court ruled that the detention was reasonable based on the Totality of the Circumstances in which they considered the following set of factors:
Circumstances that led to the initial stop;Defendant driving rental car, traveling, with no personal belonging inside the vehicle;Inconsistent Statements by suspect about where he was going:Extensive criminal history of illegal drug transport and manufacturing, out of state;Unlabeled, taped boxes found in trunk of car with weight and density consistent with illegal drug packages;The police officer’s high level of expertise, skills and experience in detecting illegal drug transportation activity.Of those factors, the two that seemed to carry the most weight with the court were the defendant’s significant drug transportation crimes history; and the police officers extensive drug trafficking detection experience and skills.
The court cited a number of cases to support the opinion that a suspect’s criminal history is considered part of the totality of circumstances; in that, the criminal history may cast suspicious light on seemingly innocent behavior (United States v. Simson).
The court concluded that criminal history in conjunction with other factors contributed powerfully to the reasonable suspicion determination for the officer, (United States v. White). At the same time, however, the court emphasized that criminal history cannot be used as the sole factor in deciding if reasonable suspicion exists. Criminal history is part of the equation that can impact the officer’s judgment about whether criminal activity may be in process or occurred. It may serve to cast suspicious light on what might otherwise be considered seemingly innocent behavior.(United States v. Simpson; United States v. Chamberlin; State v. Lee; United States v. Cotterman).
With regard to the training and expertise of this particular officer, the court cited that these attributes would allow a highly skilled officer to distinguish innocent from suspicious actions. (Teagle, 217 Ariz. at 24 ¶ 26, 170 P.3d at 273). In that, some inferences of drug trafficking activity might well have eluded in the eye of an untrained observer. (United States v. Arvizu).
Criminal Defense Attorney Phoenix AZ
Marijuana, or any illegal drug trafficking or sales in Marijuana are serious and carry some of the most severe penalties called for under Arizona law. In fact, its quite possible that a drug trafficking conviction can send a person to prison for the rest of their life.
In this case study above focused on one issue of challenge in a criminal defense case. But a number of arguments may exist in which a criminal case and its evidence may be challenged. Every case holds its own unique set of circumstances. For this reason, an effective defense strategy should be tailored to the facts and circumstances of the case. Challenges may include constitutional rights violations such as unlawful stop, search or seizure; weaknesses in evidence; affirmative defenses; violations of police procedure and protocol; and others. We will discuss these defenses in depth, in Part II of this series. .
You should always consult a highly skilled and experienced criminal defense attorney if you face illegal drug trafficking, sales, or intent to sell charges. A qualified and effective criminal defense attorney will protect your rights, and defend your charges through due process in the criminal justices system. James Novak, Drug Defense Attorney is a former prosecutor with a vast amount of litigation experience in handling drug cases of all types. He will make sure you are treated fairly, protect your rights, and fight to get the most favorable outcome in your case. The Law Office of James Novak, PLLC defends criminal and DUI charges in Phoenix, Mesa, Tempe, Chandler, Scottsdale, and Gilbert AZ. Experienced Attorney, James Novak provides a free consultation for active charges within his serving areas.
We hope you will stay with us to read part II of II as we examine continue our discussion. Part II outlines Criminal Rights at a Stop; 10 Common Drug Defenses; Mitigating Sentencing; Drug Trafficking Laws; Penalties for conviction; Felony Drug Defense Representation in Phoenix AZ.
Additional Resources:
Related Articles of Interest:
California Department of Motor Vehicles- Driving ChangeOn February 3, 2015, the FBI issued a press release that a former DMV Driver Safety Officer pled guilty to bribery charges in federal court. The hearing officer, Ms. Benavidez, admitted that from 2005 to 2014 she accepted over $5,000 in bribes, including $250- $750 in checks, Ray Ban sunglasses, Juicy Couture handbag, and Cheesecake Factory gift certificate.
This is disturbing for a number of reasons, but it is not completely unfathomable. Practicing criminal defense with a specialty in DUIs, I pride myself on my diligent DMV representation. My DMV hearings are always in person. The DMV hearing is also an excellent opportunity to learn more about the case.
The DMV hearing is not like any other administrative hearing. First, the hearing officer is the prosecutor and the judge. Many hearing officers are excellent in this capacity, with knowledge in the Evidence Code and applicable case law allowing the defense attorney to present their case and make a record. Bad hearing officers do not know the Evidence Code and believe that confrontation with an attorney is as good as being an attorney. Good DMV hearing officers are also familiar with the applicable legal standards- the elements need only be a preponderance of the evidence, as opposed to beyond a reasonable doubt in a court of law.
The DMV hearings are also reviewed by their supervisors- no “set aside” (when the suspension is ended, and the driving privilege is resumed) is found without a supervisor Making Sure that it is the only, just result. Finally, DMV hearings have the very strong appearance that it is not only important to be right, but to be right for the correct reasons. I call this the algebra factor- it's not the answer, but how you got to the answer. It is a culture in the driver safety offices that it is their job to suspend licenses, and they are encouraged to do so.
The last factor is the remedy for a poorly decided hearing. First, there is a “departmental review.” In this scenario, a recording of the hearing, and all documentation, is sent to a DMV office in Sacramento. The DMV charges $125 for this review, not including what your attorney may charge. I've learned how to maximize the departmental review based on discussions with other defense attorneys comparing tactics and results. During the review, the driver's license is still suspended.
Or, the driver can appeal the case to the Civil Division of Superior Court. It is not a criminal case (recall, driving is a privilege, not a right). So the filing fee is about $365. The court assumes the finding of fact are correct, and it is the legal standard that is reviewed. Prior to the decision, any DUI attorney worth his salt will motion the court for interim relief- that the client be allowed to drive pending the decision. If not granted, the appeal can take months.
Meanwhile, the driver's suspension for a standard first time, no injury, DUI can be as low as one month with a five month restricted driver's license (restricted- can only drive to school, work, or other necessary events). After the one month hard suspension, most clients are not interested in paying more money for a court review. Either it is a very good case, DUI while on DUI probation (one year suspension), or there is little practicality in challenging the DMV's decision. Long story short, there is little court review of DMV decisions.
So, you have a class of people that are generally vilified, an administrative structure built on suspending licenses, and little oversight for bad decisions. Also, DMV hearing officers are not lawyers, and need not have a bachelor's degree to qualify. Not that lawyers are a separate class, but we are licensed by the state and are sworn to uphold both the body and spirit of the law. We are sworn to do our best to do the right thing, whereas DMV hearing officers are not. They are also paid well, but not great. *A review of a DMV driver safety officer job announcement has their maximum pay at around $60,000.
It creates a perfect environment for abuse. The pressures and stresses on lawyers can also be significant, and will be discussed in the next blog entry. These are lawyers that San Diego US Attorney Laura Duffy called, “co-conspirators."
Last week I wrote a blog post about the former San Diego Safety Officer (DSO, Hearing Officer) pleading guilty to bribery charges in federal court. Also, there was a brief discussion of the environment in which the DMV APS hearing takes place. APS stands for Administrative Per Se- which refers to the .08% BAC DUI license suspension. Because hearing officers are not lawyers, they are not regulated by the state. The appellate review process is extensive and expensive, so there is not a large body of law to guide hearing officers towards the right decision. By default, the right decision is to suspend the driver's license.
From the point of view of the lawyer, it can be very frustrating. In this blog post, some of those frustrations will be discussed.
In a DMV driver license hearing, all the hearing officer needs to prove is that three elements were met: that the driver was “driving” (put behind the wheel); that the driver was found to be greater than .08%; and that there was probable cause to stop the driver. The standard, because it is an administrative hearing, is a mere preponderance of the evidence- which is sometimes equated to 50%.
In a typical new client consultation for a DUI, the license can be their biggest concern. Particularly if a person is a salesperson, executive, single parent, or a number of other unique circumstances. I had one client that was a process server. And everyone, across the entire socio-economic spectrum, gets DUIs. When I tell a client their case can be dismissed and they still get their license taken away, they are crushed. And this can lead to temptation.
DUI hearings are very difficult for the reasons stated above and in the last post. From a lawyering perspective, we are taught the difference between what we know, and what we think. Even if what we “think” is the most likely scenario, it is essentially useless because it is not certain. Certain is what we know. The DMV has little incentive to follow the cold, hard evidentiary rules, as well as common sense differences between know and think, when, from their perspective, they are pulling the license of a drunk driver. In other words, who cares, or why should they care?
So a lawyer defending a driver in a DMV APS hearing can be right, and still lose. A better explanation may be that if the driver's case was a law school exam, he would win- the precise execution of evidentiary rules, and excluding all assumptions, there is no case. But in the real world, in the real DMV world, a driver's license can be suspended with a dare- if you think we're wrong, appeal it.
It falls on the lawyer to tell the bad news to the prospective driver- to be the voice of the system. It may be unfair, but there is societal pressure that supports the system- fair or not. For instance, the Union Tribune articles don't state, “single mother paid DMV employee to keep her license to keep her job and stay off welfare,” or “license suspension avoided so father can keep joint custody of his son.” But these are real world scenarios we see all the time. Instead, the San Diego Union Tribune perceives the story as a conspiracy to keep DUI drivers on the road.
Which is the lead in to the last and final blog post in this series- how a successful San Diego DUI attorney handles- and wins- DMV APS hearings honestly and ethically.
Sonoma County CHP Officer Mike Phennecie arrested two drivers within a matter of hours on Highway 101 on Monday.
Shortly before 6 a.m. Officer Phennecie stopped a Honda Civic traveling northbound for speeding, allegedly at 92 mph. The driver of that vehicle, a Petaluma man, displayed signs of intoxication, and was arrested on suspicion of drunk driving.
After Officer Phennecie finished writing his police report he got back out on the streets around 1p.m. and as he was driving on Rohnert Park Expressway, he received a CHP dispatch concerning a possible DUI driver. A concerned motorist had called 911 to report a Dodge Sprinter swerving on the highway.
Officer Phennecie stopped on the shoulder of Highway 101 to wait for the suspect vehicle. When the Dodge drove by the officer observed it to be swerving in a manner that forced other cars to avoid a collision. At that point the officer stopped the Dodge and arrested the driver, a Cotati man, for driving under the influence.
Drivers arrested for a DUI face the possibility of jail time, the loss of their driving privilege, fines and mandatory attendance at a DUI school if convicted. The costs of defending a drunk driving case can sometimes exceed $10,000.
If you are arrested for drunk driving, in Novato, San Rafael, Sausalito, Mill Valley, or anywhere in Marin County call an experienced aggressive traffic ticket and DUI defense attorney for help.
For more information about driving under the influence, traffic or criminal charges in Marin County, San Francisco and throughout the Bay Area, or for a free consultation, call attorney John Stanko at 415-755-8899, or toll free at 1-877-204-8900.
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Jan 31, 15 04:32 PMSonoma County DUI Enforcement Increased for Super Bowl Sonoma County law enforcement agencies will be sending out extra patrols to look for intoxicated...
Jan 30, 15 04:41 PMExtra DUI Patrols In Marin For Super Bowl Weekend The multi police agency DUI enforcement team, "Avoid the Marin 13" will be putting extra...
Dec 16, 14 10:22 AMHoliday DUI Checkpoints Planed in San Rafael The City of San Rafael Police Department will be conducting drunk driving checkpoints and special...
Dec 14, 14 09:56 AMNovember 2014 Bay Area Traffic Court Results LAW OFFICE OF JOHN STANKO, Inc. ________________________________________ TRAFFIC COURT RESULTS October 2014 COURT CHARGE RESULT...
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If an officer’s testimony about a traffic stop is not corroborated by the officer’s cruiser video, how do judges rule on the justification for a traffic stop? Once a judge makes a ruling, under what circumstances might that ruling be overturned by an appellate court? A recent case decided by the Tenth District Court of Appeals in Columbus, Ohio illustrates the discretion judges are given regarding evidentiary issues in OVI motion hearings.
The case of State v. Comer was decided in December of 2014. In Comer, the defendant was charged with OVI and filed a motion to suppress evidence. The motion claimed all evidence obtained after the stop of the defendant’s vehicle should be suppressed because the traffic stop was unconstitutional. At the motion hearing, the officer testified she observed the defendant’s vehicle “weaving and crossing the lines” and “almost hit the concrete divider”.
The video from the officer’s cruiser did not clearly show the defendant’s vehicle crossing the lane line. The defendant argued the video undermined the credibility of the officer, so the judge should find there was no marked lanes violation and therefore no justification for the stop. The prosecution argued the video was inconclusive regarding the marked lanes violation (due to the glare from streetlights and the distance between the cruiser and the defendant’s vehicle), and the officer’s testimony alone was sufficient evidence the defendant crossed the lane line.
The trial judge found, based on the officer’s testimony, there was a marked lanes violation justifying the traffic stop. The defendant plead No Contest and appealed the trial court’s decision to the Tenth District Court of Appeals.
The Court of Appeals affirmed the decision of the trial court. The Court’s written opinion characterizes the video as unclear and inconclusive as to whether the defendant’s vehicle crossed the lane line. The opinion then cites previous cases in which trial court decisions were affirmed when traffic violations reportedly observed by officers were not visible on cruiser videos. The opinion explains the trial court was in the best position to determine the officer’s credibility, and the trial court found “no evidence submitted to call into question the truthfulness of the trooper”.
Other appellate courts have reached different conclusions in similar cases in the past few years. In State v. Jarosz, the court of appeals concluded the traffic stop was not justified when the cruiser video disputed the officer’s testimony about pacing the defendant’s vehicle to measure its speed. In State v. Ali, the appellate court concluded the defendant’s motion to suppress was properly granted when the cruiser video showed no marked lanes violation. In State v. Larrick, the court of appeals overturned the defendant’s conviction for OVI because the cruiser video contradicted the officer’s claims regarding marked lanes violations.
Why are the outcomes different in these cases which appear to be very similar? First, the outcome often depends on which party is appealing. On appeal, the appellate court accepts the trial court’s factual findings so long as they are supported by competent, credible evidence. In Jarosz and Ali, the prosecution was appealing the trial judge’s decision, and the appellate courts simply concluded the trial judge’s findings (no marked lanes or speeding) were supported by some evidence. In Comer and the cases its opinion cites, the defendant was appealing, and the appellate courts simply concluded the trial court’s factual finding (there was a traffic violation) was supported by some evidence (the officer’s testimony).
Second, the outcome may depend on whether the cruiser video actually contradicts the officer’s testimony or merely fails to corroborate the officer’s testimony. In most of the cases addressing this issue, including Comer, the video was inconclusive. Larrick is the rare case where the video actually contradicted the officer’s testimony. As a result, the appellate court in Larrick reached the unusual conclusion that the trial court’s findings were not supported by competent, credible evidence.
As these cases demonstrate, trial judges have a great deal of discretion when making findings of fact in OVI motion hearings. Their rulings in this regard will only be disturbed if they abuse that discretion by making findings that have essentially no evidentiary support.
I remember as a kid being told to find a police officer if I was ever in trouble, the idea being that we, as citizens, should be able to trust that law enforcement will protect and serve our best interests. As a child, I had no reason to question my parent’s advice. However, as an adult, I find it increasingly difficult to follow my parents’ words of wisdom.
So what is the latest transgression in, what seems like, an ever-increasing upsurge of law enforcement transgressions?
According to court documents obtained by the Contra Costa Times, a California Highway Patrol officer is alleged to have gone into the phone of a DUI suspect whom he pulled over and sent nude images to himself of the DUI suspect.
Sean Harrinton, a five-year veteran of the California Highway Patrol, and his partner pulled over a woman on August 29th of this year for making an unsafe lane change in Northern California. The woman allegedly failed field sobriety tests and was determined to have a blood alcohol content of 0.29 percent. She was subsequently arrested and taken to the local county jail for booking.
While at the county jail, Harrington secretly went into the woman’s phone and sent himself images of the woman, both nude and in a bikini.
Although the District Attorney’s office and the CHP declined to comment on the case, the Contra Costa Times has reported that a Contra Costa District Attorney investigator has recommended felony computer theft charges against Harrington.
Harrington has been assigned to desk duties pending the investigation.
"We think it’s a horrendous breach of the public trust," said Rick Madsen, a private Danville attorney representing the woman. "We believe Officer Harrington committed a clandestine and illegal intrusion into her privacy which is unspeakable considering his sworn duty to protect the public. My client remains understandably distraught as we await further information about who else may possess the photos and what further investigation may uncover."
Although Harrington’s search of the phone may not have been for the purpose of obtaining evidence against the woman, the breach of privacy is nonetheless disturbingly illegal.
The United States Supreme Court recently unanimously held in Riley v. California, 573 U.S. ___ (2014), that warrantless searches and seizures of digital contents of a cellphones during an arrest are unconstitutional.
“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ wrote the Court. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”
The woman apparently had given Harrington the password to her phone for the purpose of obtaining a number from the phone. The scope of her consent was to the phone number and only the phone number, nothing more.
According to court records, the woman’s DUI case has since been dismissed as a result of the investigation into Harrington’s actions. And rightly so. If Harrington was willing to violate the woman’s privacy rights, what else was he willing to do to taint the DUI investigation?
This entry was posted on Monday, October 27th, 2014 at 7:48 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.
A wild DUI arrest occurred this week in Orland when a doctor allegedly bashed his head against the back seat of a police cruiser and spat blood in an officer’s face, according to an alarming report from the Palm Beach Post.
Sources say that video footage from inside a police cruiser capture Zach Bird losing his temper after officers from the Florida Highway Patrol threw him into the back of their car.
Bird, who works as an anesthesiologist in central Florida, reportedly had $40,000 in cash that police officers found after searching him. The police also found “unknown” pills and two handguns in Bird’s car when they conducted their search after his arrest.
In the video recording, Bird can be heard yelling, “[a]ll the officers are stealing my money!” After making this announcement, Bird started kicking and screaming, and eventually began beating his head against the Plexiglas divider in the police cruiser.
After several bashes against the divider, the video shows blood running down Bird’s face as he continued to accuse the police of stealing his money.
The arresting officers, quite naturally, were worried that Bird would injure himself, so they pulled him out of the cruiser and back onto the road.
According to the police report, when Bird was escorted out of the cruiser, “he swallowed, took a deep breath” and “spit blood all over” one of the arresting officer’s faces. Needless to say, this was not a wise decision.
Sources say that, in addition to his DUI charge, Bird now faces an additional charge of resisting arrest with violence, as well as a charge of property damage, due to the damage he inflicted on the glass in the police car.
The price tag on the damage to the car alone may be very steep, as the Florida Highway Patrol had to hire a team of biohazard specialists to clean the interior of the car.
And Bird’s odd behavior did not start after his arrest. According to sources, Bird was initially pulled over by police after he almost ran a state trooper off a local highway. When he was pulled over, Bird immediately failed a sobriety test, which is when police took him into custody.
Interesting, police also found an extra $14,000 in Bird’s car, which was separate from the $40,000 he had in his pockets. It can fairly be said that Bird may have to answer for the gun, cash, and drugs in his car, as well as his behavior after the arrest.
We all want to trust the police and see them as upright protectors of justice. While many police officers are very professional and take their responsibility very seriously, there are others who are corrupt and use unscrupulous tactics that harm the common citizen.
Bad cops exist everywhere and there is no shortage of them in Pennsylvania. Some of them will even go as far as to lie under oath:
Pennsylvania Police Officer Admits to Lying Under Oath in DUI CaseHERMITAGE — As a citizen, Raymond Bogaty wants to believe the police.
“We all want to believe the police,” he said.
But, as Mercer County Public Defender, Bogaty has occasionally suspected that a story told by a policeman has not been the whole truth.
“I’ve been doing this for 37 years,” he said. “You always have concerns about truthfulness. You, at times, suspect the truth is not being told.”
Still, it’s rare to catch a policeman in a lie, or to get an admission that someone has lied, he said.
That unusual event occurred Tuesday when Mercer County District Attorney Robert G. Kochems and Hermitage Police Chief Patrick B. McElhinny released statements saying that Hermitage patrolman Dennis Best had admitted lying under oath in a 2008 case.
Criminal justice is intrinsically a human endeavor and due to the lack of transparency and oversight when it comes to the police, the situation is ripe for honest mistakes, purposeful and conscious misleading actions (lies) and even corruption. This can lead to false conviction if we do not successfully expose the lies and mistakes in the police officer’s account. This is why it is important to have an attorney who had trial experience in DUI cases and who has the guts to cross-examine the police.
If you feel the police have violated your rights call The McShane Firm to protect your freedom and liberty. Call 1-866-MCSHANE.
When people face the indignity of a DUI arrest, they are best advised to refrain from attacking their arresting officers. This advice, unfortunately, has not reached all drivers, as proven by the recent antics of a man in Lehigh Valley, Pennsylvania.
The man, 46-year-old Eric J. Gross, allegedly kicked a state trooper in a police cruiser while they were traveling to the police station after Gross had been arrested under suspicion of driving under the influence of alcohol, according to a report from The Morning Call.
After Gross kicked the trooper, Joseph Wasylyk, the injured officer was able to pull his car over, force Gross outside of the car, and physically restrain the arrestee to prevent future kicking.
The trooper drove Gross to the station, and then retreated to the Lehigh Valley Hospital, where he was treated and released.
Sources indicate that the bizarre incident started at roughly 6:00 p.m. when Wasylyk responded to a report of someone driving recklessly in Washington Township, Pennsylvania. Shortly thereafter, Gross abandoned his vehicle and started walking down a local highway.
When he responded to the scene, the trooper eventually spotted Gross and arrested him for suspicion of drunk driving. It should be noted here that, even though Gross wasn’t driving at the time, his driving earlier that night still made him eligible for a DUI offense.
After the initial arrest, the trooper placed handcuffs on Gross behind his back, and secured Gross in the back seat of his cruiser with a seat belt. His job seemingly done, Wasylyk started to drive towards the DUI Center in Allentown, where Gross would be charged and booked.
While they were driving to the DUI Center, however, Gross started cursing and moving around in the back of the cruiser. To get a better look at the anxious offender, the trooper turned on his interior lights.
Soon, Gross began kicking the armrest and computer printer located inside the cruiser, though when the trooper asked Gross to kindly refrain from harming the equipment, Gross quickly obliged.
This stern warning, however, did not prevent Gross from taking much more aggressive action later in the drive. Sources indicate that Gross lifted his legs and started kicking Gross repeatedly on the right side of his body.
In a feat of physical coordination, the trooper was somehow able to pin the man’s legs against the seat, pull the car over, and restrain Gross before driving him to the DUI Center in one piece.
For his acts of violence, Gross now faces charges of aggravated assault, simple assault, reckless endangerment, criminal mischief, and harassment.
He was held on $20,000 bail and immediately sent to Lehigh County Prison, where the guards will be best advised to watch out for his flailing legs.
If you heard a cacophony of crashing noises yesterday from the direction of Boston’s Beacon Hill, it was the sound of Massachusetts governor Deval Patrick , along with a certain Parole Board, caving in to public ridicule and political pressure.
As you have heard time and time again, the now-infamous Massachusetts Parole Board released a repeat violent offender in 2008. Of course, it was not the first time that this has happened. However, this time, said offender , in 2010, was involved in a robbery to which the late police officer John Maguire responded. There was a gunfight and the officer, as well as the offender, were killed. Since that time, amongst various reports of unexplained police shootings of suspects and non-suspects, a state-wide hand-wringing has been occurring.
Naturally, in 2011, tragedy must be someone’s fault. Someone living’s fault. Thus, it was the Parole Board’s fault.
At first, Governor Patrick had the gall to be a leader and indicate before rushing to judgment and demanding the Parole Board’s heads on a stick, that perhaps we should concentrate on the victims, then gather all the evidence and then decide fault.
Well, so much for that kind of nonsense.
Governor Patrick has now announced “sweeping changes” at the Massachusetts Parole Board. The political broomstick has swept out, for example, the five Parole Board members at issue (through their own resignations, of course).
Said sweeping also includes a moratorium to remain in place on executive sessions for high-risk offenders, he said. The governor also promised to file legislation calling, among other things, for tougher sentencing for repeat offenders and greater truth in sentencing. According to press accounts, Governor Patrick wants paroles of repeat violent offenders to stop until the Parole Board can demonstrate an ability to oversee their release.
Patrick also said at the news conference he was appointing Josh Wall, first assistant district attorney in Suffolk County, as the interim executive director of the board. He also said he had nominated Wall to the board and intended to appoint him chairman.
During my many years as an experienced Boston criminal defense attorney , I have had many dealings with assistant district attorney Wall. He is an experienced prosecutor and, as the late Jerry Williams would say, “Not a bad guy”.
He is, of course a seasoned prosecutor which means he is well indoctrinated to that point of view. I suppose that’s ok…the assumption at parole is, after all, that the potential parolee “did it”.
The problem is when the governor, who should know better, succumbs to the weight of political expediency. Statements like no paroles should be allowed until the Parole Board can guarantee that it can oversee all parolees is a command not rooted in reality and he knows it.
Parole cannot guarantee that. Not enough resources.
One might as well say that nobody will be placed on probation any longer because the Department of Probation cannot guarantee adequate oversight. Anyone in the system will tell you that, actually, they can’t if they are honest.
I wonder if, given the above-referenced police shootings and beatings, whether we should hold off on giving police officers weapons until we can guarantee that they are all fit and properly supervised. Ahh, but now I am talking crazy...!
Again, in a system where we try to cure everything by criminal sentences and prison terms, it is not possible. There are not enough resources and there will be less tomorrow. Raise taxes for it? Come on…you know better than that.
On the other hand, the governor claims he wants better “truth in sentencing”:. Actually, we have that. A sentence of 10 years, for example, means that you will basically serve 10 years. However, “life sentences” which sound so good ‘n tough cannot actually always mean life. First of all, it would not be appropriate for all those who receive such sentences. Further, again, we would not have the resources to keep all of them in for life. Finally, take away all hope of freedom and all such prisoners would have nothing to lose by their conduct. In short, an already inadequate and, n my view dangerous, correctional system will become more out of control.
On the other hand, such “tough talk sounds mighty good when you say it fast, doesn’t it? True, it might trample on a few felons’’ rights, but, after all, they are criminals, so we don’t really care about their rights.
Nor the problems the resulting anger, bitterness and realization that the “Justice System” is anything but that in the “big house” will bring.
At least, for now.
Until the whole system shuts down.
But we can continue to play our word games until then, can’t we?
In the meantime, if you want to cut down on the odds of your becoming one of these “human beings turned statistics” after being accused of a crime, you want a criminal defense attorney with experience. If you want that attorney to be me, If you would like that attorney to be me, please feel to call me to arrange a free initial consultation at 617-492-3000.
Have a great, safe and law-abiding weekend!
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/governor_announ_2.html?p1=News_links
One of New York’s finest finds himself on the wrong side of the law. Roniel Dilone, 26, is a four year veteran of the police force and his career is in sereious jeopardy.
Dilone struck a parked car early on January 21 while off-duty. He managed to escape the collision without any injuries, but his passenger was not so lucky. Dilone’s passenger fractured his leg and shoulder.
Dilone was arrested for drunk driving, vehicular assault and for refusing to submit to a breath test. The police department suspended Dilone without pay.
One of New York’s finest finds himself on the wrong side of the law. Roniel Dilone, 26, is a four year veteran of the police force and his career is in sereious jeopardy.
Dilone struck a parked car early on January 21 while off-duty. He managed to escape the collision without any injuries, but his passenger was not so lucky. Dilone’s passenger fractured his leg and shoulder.
Dilone was arrested for drunk driving, vehicular assault and for refusing to submit to a breath test. The police department suspended Dilone without pay.