DUI Charges Dropped After Blood Results Confirm No DUI

There is an interesting case out of Livingston County where a man was arrested and charged with DUI and then the case later dismissed.  According to the article, the man was involved in an accident and asked to take a breathalyzer test at the scene.  This, after the officer at the scene said he smelled alcohol on the man’s breath.  The man refused and was arrested, taken to the police station, booked and blood drawn.  Apparently, in Livingston County, once someone is arrested and the case submitted to the District Attorney, they must go ahead and file formal charges.  This is unfortunate for the individual in this situation because, even though it was later proved that he was not DUI, he now has an arrest on his record and a history of having a DUI filed in Court.   It is the right of any individual to refuse to take a roadside breath test and to refuse to submit to a field sobriety test.  However, when someone refuses, it usually results in being arrested and taken to the station where you are then required by law to submit to blood, breath or urine testing.  So as is the case with this individual, his blood results did prove that he was not DUI, but he was then faced with having the arrest and charges on his record.

In California, and more specifically Orange County, the District Attorney will usually wait until the results of the blood test are available before deciding whether or not to file charges.  This seems to make much more sense.  For the DA to file charges just based on the police officer’s opinion that the individual was, or may have been under the influence, doesn’t seem to make much sense knowing that if they wait for the results, they will have scientific proof one way or the other.

For someone to refuse to take a roadside breath test or submit to a field sobriety test, may make the individual look guilty or give an officer a reason to doubt sobriety.  So why would someone, who knows that they are not under the influence, refuse to submit to such roadside tests?  There are some who feel that the roadside hand-held breathalyzers are unreliable and may produce false results.  There are those who may refuse to submit to field sobriety tests merely due to the fact that they have balance issues and know that they will be unable to pass the test.  So there are legitimate reasons that people refuse these roadside tests, and as mentioned above, it is their right to do so.

So, what can an individual do if they are faced with the situation we are talking about here?  Can the record/arrest record be corrected.  The answer is Yes.  It is called a Petition for Factual Innocence.  The process works this way:  The Court is Petitioned to find the individual factually innocent based upon the circumstances presented.  The Judge will review the Petition, and any supporting documentation such as the police report and test results, and then make a ruling either in favor of the Petitioner or will deny the Petition.  In basic terms, the Judge must be able to determine that there was no reasonable cause for the arrest to have occurred.  The scenario above could be problematic in that the police officer said he smelled alcohol which, if the Judge wanted to, could determine that there was good cause to arrest.  But, given the circumstances and also, based on how the police report reads, it would seem that it is in the best interests of all to grant a Petition under these circumstances.

Anytime someone is arrested and charged with driving under the influence, all of the details beginning with the initial stop, all the way to the filing by the District Attorney must be reviewed.  Law enforcement must follow strict guidelines in stopping, testing and arresting an individual for DUI.  The process of administering field sobriety tests have guidelines, as well as administering a breathalyzer at the roadside.  Having an experienced DUI defense lawyer is the only way to determine that law enforcement have followed the rules and guidelines they are required to follow and to determine that your rights have not been violated.

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DUI Charge Against Texas Judge Nora Longoria Dropped

Los Angeles DUI attorneys and pundits have been following the story of Nora Longoria, a judge for the 13th Court of Appeals in Texas, who was charged with a DUI in July 2014. Recently, prosecutors dropped her charges. McAllen police say that Longoria “begged for special treatment” when faced with sobriety tests, but Justice Rolando Cantu threw out the case based on “lack of evidence,” marking “other” as his reasoning on formal paperwork.

Longoria was originally pulled over for driving 69 MPH in a 55 MPH zone, but the arresting officer claimed she “smelled of booze and had slurred speech.” Longoria allegedly admitted she’d had five beers that evening but that she consumed her last one three hours before driving. She allegedly told the officer, “I live a couple miles away… You are going to ruin my life.” Longoria also refused to take a breath test. Social media exploded after Longoria’s DUI charge. People made comments such as, “Resign, you drunk” and “You are a disgrace to the court system, to the legal profession, and the citizens of Texas.”

Despite the angry comments and the evidence presented in court, Longoria eventually beat her DUI charge. Several people, including regular Kraut Law Group blog readers, may be wondering how and why. Our attorneys hypothesize a few possible reasons:

•    Lack of a conclusive test. A breath test and other sobriety tests are not generally as conclusive as a blood or urine draw, neither of which Longoria underwent. In fact, some experts believe traditional sobriety tests are “designed to make [people] fail.”

•    Unclear video evidence. The prosecution was able to obtain a video allegedly showing the circumstances of Longoria’s DUI arrest. However, the tape’s footage did not clearly show whether her speech had been slurred. Thus, the evidence that she “smelled of booze” essentially consisted of the arresting officer’s opinion.

•    Lack of other evidence. Besides the unclear video, the prosecution brought no conclusive evidence against Longoria.

Do you need assistance constructing an appropriate response to a DUI charge? Look to the Kraut Law Group’s Michael Kraut for insight and peace of mind. Mr. Kraut is an experience Los Angeles DUI attorney with many relevant connections in the local legal community.

If police arrested you for Los Angeles DUI, you may feel scared and confused. Contact Harvard Law School educated, ex-prosecutor Michael Kraut for assistance at (323) 464-6453 or online. We’re located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.

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DUI charges against Lambertville Mayor dropped

According to court records, charges against the Lambertville Mayor accusing him of driving under the influence were dismissed on Dec. 11 in Mansfield Municipal Court. In exchange for the dismissal, the mayor reportedly pleaded guilty to charges of reckless driving and failing to maintain a lane for the Nov. 9 incident.

The original incident occurred on Route 130 around 1 a.m. when he was stopped by Mansfield Police. Officers reported that the mayor failed roadside sobriety tests. He had reportedly been swerving on the roadway. Despite his apparent failure and his swerving, two breath tests performed after his arrest showed no trace of alcohol in his blood.

The mayor was reportedly polite and cooperative during his arrest. He apparently told officers he had been drinking earlier in the day but that his drinks had been spread apart by a number of hours. Upon entering his plea to the traffic infractions, the court assessed traffic fines totaling $206 as well as $32 in court costs. The mayor reportedly paid the fines in full prior to leaving the municipal court building.

The Lambertville Mayor's case demonstrates that just because someone is arrested and charged with DUI does not necessarily mean he or she is guilty of the offense. The facts of his case also show that failing roadside sobriety tests does not always mean the person who does so is drunk. Many things can cause a person to fail a roadside sobriety test in addition to and separately from intoxication. Like the mayor, further analysis may demonstrate that the person has no alcohol in his or her system. People who are accused of drunk driving may benefit by retaining a criminal defense attorney for help in fighting the charges. By doing so, he or she may be able to plead to a lesser offense or fight the charges through trial.

Source: NJ.com, "Lambertville Mayor David DelVecchio has DWI charge dismissed, admists reckless driving", Keith Brown, December 11, 2014

Tags: fines

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Boston Robbery Suspect Gets Robbery Charges Dropped Yet Held On Parole Violation- Attorney Sam’s Take

Well, Gerald M. Hill, 48, (hereinafter, the “Defendant”) got good news and bad news yesterday at Boston’s Suffolk Superior Court. The good news? The robbery charges against him have been dropped. The bad news? He’s going back to jail, perhaps for life, anyway.

You see, the Defendant was on parole when he was accused of robbing a taxi company at gunpoint in 2009. His prior case, on which he was out on parole, involved the participation in two 1977 killings. I don’t know much about that case, but can tell you that he had not been found guilty of Murder in the First Degree because, if he had been, he would not have been eligible for parole.

The new charges were dismissed yesterday because the evidence against him were suppressed by the court because the court found that critical evidence against him had to be suppressed because of the police’ failure to follow “the rules” of search and seizure. Because the evidence was suppressed, prosecutors said, they no longer had enough of a case to prosecute the Defendant.

Because the evidence could not be used, in other words, there would be no trial against the Defendant. Therefore, the Defendant, heretofore presumed innocent under the law, could never be found guilty. Therefore, he remains presumed innocent and goes home free....right?

Wrong.

After all, the Defendant did get arrested.

As we have discussed in the past, merely getting arrested is a violation of either probation or parole.

I have been handling matters involving homicides, robberies, probation and parole as a Boston-criminal defense attorney of many years, as you have probably gathered over the years, there are certain issues that really light a fire in my gut.

This is one of them.

It is very easy to get arrested in this day and age, as I have often described to you. You could be at the wrong place and wrong time. You could have angered someone who has the ever-increasing knowledge of how to “work the system” and is trying to get revenge on you. You might also be stuck facing an accusation that everyone knows is extremely unlikely, but, out of fear of tomorrow’s newspapers, are afraid not to take action because of the fear that you might “go out and kill somebody”.

We know, of course, that sometimes innocent people are sent to jail. Many will say that simply cannot be helped. But what about here, when someone has been out on parole (or it could be probation) and they will never have their “day in court” because of how the Commonwealth handled the investigation? Is it right that the accused be sent back to prison anyway because there was, after all, an accusation and the person did, after all get accused in the first place?

The arrest,we all know, is simply an accusation. The suspect is still allegedly presumed innocent.

But, because they were accused in the first place, that presumed innocent person goes back behind bars to either wait to have a day in court or, here, where said day will never come, simply be locked back up by the Commonwealth. Yes, that would be the same Commonwealth who screwed up the investigation in the first place.

Makes you feel real confident that we give much credence to that old document they call the Constitution, doesn’t it?

Of course, many of you will disagree with me. You will argue, “Well, it’s more complicated than that!”

It shouldn’t be.

“We all knowthe guy is a bad guy…!”

In that case, why was he even brought to court? Why have a trial, much less evidentiary hearings?

In short, let’s cut the hypocrisy. Is he an already established “bad buy” so that we do not have to waste court’s time with him and we can just lock him away or shoot him because he was, after all, arrested…..or do we really care about a presumption of innocence?

Well, you decide what you want. I will wager this, though. If it were you or a loved one who were accused, you would likely care about that presumption of innocence stuff.

Why don’t you give me a call when that happens…particularly if you want a free initial consultation. I can be reached at t 617-492-3000.

In the meantime, be careful of the snow and have a great, safe and law-abiding weekend!

(if not, you might get arrested.)

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/massachusetts/articles/2011/01/21/convicted_killer_gets_2009_taxi_robbery_charges_dropped/?p1=Local_Links

View the original article here

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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/

View the original article here

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