If You Refuse (An Evidentiary Test for Blood Alcohol/Drugs) In Idaho You’ll Lose (Your Driver’s License).

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In a prior post, I wrote about your ability to decline (politely) to participate in roadside standard field sobriety tests after being pulled over. I asked you to “stay tuned” for this post and here it is.

If you perform the field sobriety tests and “fail” them, the police officer will likely request you provide a breath sample to test for estimated alcohol content of your blood. This test can be done on the “roadside” with a hand-held machine or at the jail if the officer does not have a roadside machine. The question is: can you refuse to provide a breath sample?

As with most things in the law, the answer is “yes…but…” A breath test requires your cooperation. If you don’t blow or don’t blow properly there will be no valid result. You may think this is a good thing because without a valid result, there is no evidence for the state’s attorney to use against you at trial. Good deal!

Unfortunately, your refusal comes with other consequences. Idaho law specifically addresses your refusal to take the test. The law says that if you refuse to participate in the test (refuse) you will typically lose your driver’s license for 1 year if it is your first refusal! I say “typically” because you do have an opportunity to convince a court your refusal was justified. “Because I didn’t want to give the government evidence to use against me” is not justification to refuse the test. Additionally, the fact you refused to provide an evidentiary sample can be used at your trial to support the government’s contention you were intoxicated.

It doesn’t seem quite fair, does it? This may be the only area of the law where you are penalized for failing to provide evidence against you. Fair or not, Idaho Code § 18-8002 is the law.

There are, of course, potential challenges to the initial traffic stop or the officer’s conduct during the stop which could make refusal appropriate. That is why you need a qualified DUI attorney to help if you find yourself in this situation.

Can You Refuse To Perform Field Sobriety Tests In Idaho?

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You have been pulled over by a police officer. You provide your license, registration and insurance when asked. The police officer asks if you’ve been drinking. You admit to having “a few beers” or some such consumption. You want to cooperate with the police officer in the hope you will be sent on your way with a ticket. Then, the police officer asks you to step out of the car; she then tells you she wants you to perform field sobriety tests. Can you refuse?

Let’s remember: By performing field sobriety tests, you are giving the government evidence to use against you in its prosecution of you for DUI!

Now, back to the question: Can you refuse to perform field sobriety tests in Idaho? The short answer is: “Yes, but….” In 2008, the Idaho Court of Appeals decided State v. Buell in which it stated: “an individual who has been instructed by a police officer to perform field sobriety tests has the power to prevent the tests by refusing to cooperate, but that power does not equate to a constitutional right to refuse.” So, you can refuse, but there is no constitutional right to do so.

What does that mean to you?

  • If you are asked to get out of the car by the police, you should comply. If you do not, you could be charged with “resisting and obstructing.”
  • The fact you refused to perform the field sobriety tests is admissible and the jury can hear about it.
  • If you simply say you don’t want to perform them and wind up doing them, you won’t be able to challenge the admissibility of the results at trial.
  • If you really don’t want to do the tests, YOU DON’T HAVE TO. Stick to your guns if you don’t want to give the government evidence against you.

You should always be polite to the police officer. He is simply doing his job. Being polite, however, does not mean you have to tell the officer you’ve been drinking or how much you have had. You do not need to do the field sobriety tests – no matter how demanding the police officer is.

The next question is – do you have to submit to an evidentiary test for blood alcohol concentration? In other words, do you have to “blow” or consent to a blood draw? Stay tuned for a future post.

 

When The Presumption Of Innocence Is Difficult To Imagine Is When It Is Most Important.

Unless you’ve been living in a cave these past 3 days, you are well aware of the events in Charlottesville, Virginia. You’re aware of the “alt-right”; of the neo-nazis; of the KKK members; of the “torch-light parade”; of the counter-protesters; of young people standing peaceably by while people spew hate and bile. You’re aware of the hand-wringing that seems to naturally follow these types of events; of the “that is not America.”  It may not be the America we (most of us, at least some of us) want…but, to some to degree, it is clearly the America we have.

This post is not about the politics of the events this past weekend; although if you know me at all, you know how I feel about those as well. If you don’t know me, I’ll tell you: I have no patience for neo-nazis, members of the KKK, privileged white men who believe, somehow, “their country” has been taken away or somehow needs to be “taken back.” They and their ilk can rot. But I digress.

This post is not about all those people who, for some reason were in Charlottesville protesting the removal of a confederate monument. No, this post is about one man. His name is James Alex Fields Jr. He is the man who is accused of plowing that grey Dodge Charger with those tinted windows into a crowd of people on Saturday, injuring dozens and killing Heather Heyer.  (Please notice the bolded text…that was purposeful.) By all accounts, Ms. Heyer was a wonderful, giving human being. She will be missed by her family and friends and the world is a lesser place without her in it.

Mr. Fields, however, has not been convicted of a crime. The proceedings are in the earliest stages and, yet, the accounts of various news organizations may make it impossible (or at a minimum very difficult) for him to have a fair trial. For example, in today’s San  Diego Union Tribune, there is a story bearing the headline: “Man accused of ramming car into crowd was previously accused of beating his mother.” (Please notice the bolded text…that was purposeful.)

The article goes on to recount various incidents from 2010 and 2011 where Mr. Fields allegedly committed acts of domestic violence. (Note these incidents were found in police reports, the article makes no mention of convictions for the alleged acts…which would, under the Rules of Evidence, be required for such things to be admissible at trial.) The article recounts Mr. Fields being “singled out in the 9th grade” for his “deeply held, radical” convictions on race.

It is easy to have a knee-jerk reaction when you read about Mr. Fields’ alleged past and his views. It is easy to say “screw it, he’s guilty; why is the justice system even dealing with Mr. Fields!” Indeed, that is probably how Mr. Fields felt about others who were accused of a crime.

Events such as these, where an individual as loved as Ms. Heyer loses her life are a blow to us all. This is exactly the type of case where the presumption of innocence is so very difficult to imagine but is so very necessary. Despite my personal beliefs concerning what Mr. Fields is accused of doing, or his past actions or political beliefs, I, for one, will continue to strive to presume him innocent unless and until the government proves it beyond a reasonable doubt, with admissible evidence. As a criminal defense attorney, I can do nothing less. Indeed, the United States Constitution requires I do nothing less.

The Vanishing Jury Trial Is A Real Problem…Not Just In Idaho.

A recent article in the New York Times by Benjamin Weiser highlights a critical problem with those seeking justice in the criminal courts of America:  the vanishing jury trial. I have been practicing law in the Boise, Idaho, area for eighteen years. I have been a litigator for sixteen years. I have been a criminal defense attorney for ten years. I have handled many, many, criminal defense cases and, yet, if I think hard enough, I can count the number of criminal jury trials I have had. Quite frankly, that is a shame. But it is not just here in Boise. It is not just in state court but in federal court as well. And it is not just me. My colleagues are in the same boat.

According to the article, Judge Lewis A. Kaplan, a federal district court judge in New York, thinks the vanishing jury trial is “a loss…because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”

In my view, the main reason for the lack of jury trials is the disparate power prosecutors wield in both federal and state court. The article backs me up at least as far as federal court trials are concerned: “Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.”

For example, the federal sentencing guidelines have an “acceptance of responsibility” provision which, for the most part, applies only to guilty pleas and is not available for those who exercise their right to a jury trial. The provision can result a reduction of the recommended guideline sentence of YEARS. Or, the prosecutor may agree to amend the charge so no mandator minimum sentence – some as great as twenty years – applies. Many clients would rather have a reduced sentence than take their case to trial and make the government prove their crime beyond a reasonable doubt to a jury of my client’s peers. Although, in Idaho, there are not sentencing guidelines, prosecutors routinely make plea offers to the accused which are well below what my client would face if found guilty after trial.

In order to bring charges against a person, the prosecutor need only establish their is probable cause to believe a crime has been committed and my client committed it. This is a VERY low standard. At trial, the standard is “beyond a reasonable doubt” and is VERY difficult to prove. According to one retired federal judge: “because most pleas are negotiated before a prosecutor prepares a case for trial, the ‘thin presentation” of evidence needed for indictment’ is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”

If you need advice on whether you should plead or go to trial in a case you are accused in, please do not hesitate to contact me. I am ready to assist. I do all I can to stay sharp, up-to-date on the law and the use of technology in the courtroom. I do this because, when my client chooses to put to the government to its burden, I am prepared. I am ready to fight with all that is necessary to ensure my client receives what the United States Constitution requires: their guilt proved beyond a reasonable doubt. If the government cannot meet that burden, it should never have brought the charges in the first place.

If you or a loved one has been charged with a crime, please contact me. I would be glad to help.

Jury Duty – Have You Thought About What’s At Stake Before You Have Been Called to Serve?

The other day I was sitting having lunch at a local establishment by the Ada County Courthouse in Boise, Idaho. There were three people sitting within earshot of me, one of whom was had been called for jury duty and was actually selected to hear a case. One the gentleman’s companions asked him about the case, he properly told them he could not talk about it. Kudos, young man!

What really struck me about the general conversation about jury duty that followed was how thoughtful these three people were. More than once the two who were not sitting on a jury commented how weighty it would be to be selected to sit on a jury in a criminal case and have someone’s liberty in your hands. I was both surprised and pleased by the tone and tenor of conversation.

I was surprised because I simply did not expect the speaker who was not sitting on a jury to have spent much, if any, time actually thinking about the issue. In my mind, I didn’t believe anyone would think about such things before actually being called for jury duty. I was wrong (at least in this instance).

I was pleased because, as a criminal defense attorney it is important for the people who actually sit on any jury in a case I am in to think of the weight of the decision that person needs to make regarding my client.

Although I did not approach these folks before they left to thank them for their thoughtfulness, I will carry it with me into my next jury trial and, hopefully, each and every jury trial after that. I may even craft a question to prospective jurors who have been called to potentially hear a case I am trying to gain more insight into whether they have thought of how their service and, more specifically their decision, could effect someone’s life…before they received their summons for jury duty.

 

Don’t Get a DUI in Idaho this 4th of July!

The Fourth of July is here. Some of us are making it an extended weekend; some have to work on Monday, July 3; some of us are even working on the 4th. Regardless of what category you fall into, there has never been an easier time to avoid getting a DUI over this holiday.

With the ease of getting around via personally-powered transportation (walking, biking) in Boise, Idaho, the seemingly increased availability of cabs in the Nampa and Caldwell, Idaho, area, the advent of bars posting advertisements for “free rides” in McCall, Idaho, and the advent of Uber and Lyft, there is simply no excuse for getting a DUI this holiday weekend.

We all have seen the Idaho State Police commercials about the “100 days of summer” and how deadly those days are on Idaho’s roads. We all know police will be on high alert for impaired drivers over the holiday.

Make a transportation plan BEFORE you start drinking. After all, when you have a few drinks in you your judgment becomes impaired and your decision making won’t be at its best. Plan to arrive home safely; plan to avoid the danger – to you and to the public – of driving while impaired.

If you fail to heed this advice and are charged and arrested for DUI, know you can contact Kormanik & Sneed LLP and we’ll do our best to ensure your rights are protected and the government is put to its burden of proof, by admissible evidence, beyond a reasonable doubt. You can also check out the “What to Know When: You’ve Been Charged with DUI in Idaho” under the “Free Resources” tab at the top of the page.

Have a wonderful and safe 4th of July!

 

Your Cell Phone Is Special…Don’t Give Up Your Fourth Amendment Rights To It!

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I follow Professor Jessica Smith on Twitter. She is the W.R. Kenan Jr. Distinguished Professor at the University of North Carolina School of Government. A post from her today about cellular phones is timely; I’m currently involved in a case where my client’s cell phone was searched by law enforcement, without a warrant.

There is a line of cases which hold certain things may be searched, without a warrant, incident to a person’s arrest. Those items include: (1) the person arrested and the area within his immediate control; (2) a vehicle when the person arrested is unrestrained and within reach of the passenger compartment; and (3) a vehicle when it is reasonable to believe evidence relevant to the crime of arrest might be found therein. The touchstone of any search incident arrest is “reasonableness.”

In 2014, in a case called Riley v. California the United States Supreme Court tackled the issue of whether the search of a cell phone incident to arrest fell within the exception to the warrant requirement of the  Fourth Amendment. The Riley Court explored several things which set cell phones apart from other items found on people when they are arrested. For example, the Supreme Court noted “modern cell phones…are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” The Supreme Court also was wary of extending the search-incident-to-arrest doctrine to cell phones because those devices:

differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras,video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

The Supreme Court also commented on the “immense storage capacity” of cell phones, noting:

Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. … Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant.

The Riley Court determined the Fourth Amendment required the government to obtain a warrant to search the contents of a cellular phone.

Unfortunately, my client likely did not know of the Riley decision. In my case, my client was arrested. Law enforcement seized her telephone. Before seeking a warrant to search it, the police officers  asked my client if they could perform a search of her cellular phone. Instead of insisting they “get a warrant,” my client consented to the search, thus waiving her Fourth Amendment right concerning that phone. Incriminating evidence was discovered and, unless I can find a way to challenge my client’s waiver of her rights, that evidence is fully admissible at any trial.

Sometimes Your Client Loses…

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I just returned from a two-day jury trial in Mountain Home, Idaho. My client was charged with burglary. She was brave and, because she believed in her innocence, did not plead guilty. She left her fate in the capable hands of twelve of her fellow citizens. Unfortunately, after 3+ hours of deliberations, the jury returned a guilty verdict  on the single count of burglary she was charged with. I take these loses hard.

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We were awaiting the jury’s verdict, in the hallway of this courthouse, discussing why she had spoken with law enforcement. She indicated to me (not for the first time) that, if she didn’t, she would be admitting her guilt. I understand why she felt that way but THAT IS NOT THE LAW!

You are under NO OBLIGATION to speak to the police to aid in any criminal investigation. Law enforcement knew that in this case and had my client sign a “Waiver of Rights Form,” which she signed.

Failing to speak to law enforcement concerning a crime they are investigating is not an admission of guilty. In fact, as discussed in a previous post, the fact you refuse to speak with law enforcement cannot be considered by any jury in determining your guilt. YOU HAVE A RIGHT TO REMAIN SILENT; the Fifth Amendment to the United State’s Constitution that says that.

Monday morning (or in this case, Thursday afternoon) quarterbacking is always a risky business when it comes to trials and their outcomes. What I will say is this: the jury saw snippets of her interview; what she said did not help her case. Would she have been convicted without the interview, I have no idea because we were not presented with those facts.

On the positive side: the judge could have taken her into custody immediately following the verdict. He did not indicate any desire to do so. She remains free pending sentencing, which is set for September 8, 2017.

She lost this battle, but the war continues and I will continue fighting on her behalf. As I have written previously, sentencing is a critical phase of the proceedings; I will fight to ensure my client receives the best sentence possible for this conviction.

Objecting To A Federal Presentence Investigation Report Is Critical To Help Insure The Lowest Possible Sentence

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In a previous post, I wrote about how sentencing is “where it’s at” in federal court. Well, before my clients ever get to the sentencing hearing, I do a lot – I mean A LOT – of work to ensure my client receives the lowest possible sentence.

In Idaho federal court, when my client is found guilty – either because they pled guilty, or following a trial where a jury finds them guilty – the judge orders a “Presentence Investigation Report.” The “PSR” contains information to assist the judge in determining what sentence is “sufficient but not greater than necessary” to achieve the goals of sentencing. An initial PSR is provided to both me and the attorney for the government. Each of us has the ability to make written objections, which the United States Probation Officer considers. Sometimes the Probation Officer agrees with the objection and changes the PSR; sometimes not.

Recently, a Probation Officer agreed with my objection and amended the PSR to reflect a new recommended sentence under the United States Sentencing Guidelines. What’ the big deal, you may ask? My answer: MONTHS of potential incarceration for my client.

I strive to achieve the best possible outcome for my clients. Objecting to the PSR is a critical step in helping me reach this goal for my clients.

Oral Argument Before The Ninth Circuit Court of Appeals – You Better Keep an Eye on the Clock!

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In 2013, it was my honor to represent David Swenson in a 44-day jury trial in which he was accused of money laundering, conspiracy, wire fraud and securities fraud for his involvement in a company known as DBSI. During the proceedings, the federal government referred to the DBSI case as “the biggest fraud prosecution in the history of the state of Idaho.” Thousands of people lost millions of dollars when DBSI was forced to cease operations due to the “Great Recession” in 2008 and the freezing of the credit and real estate markets. As I said in my closing argument – that was a shame. Although David was acquitted of the money laundering, conspiracy and wire fraud counts, he was unfortunately convicted of the securities fraud counts and received a 36-month prison sentence and was ordered to pay restitution in the millions of dollars.

“Fast” forward to June 5, 2017. (Thankfully, David and his co-defendants are on release pending appeal at this time.) Oral argument on David’s and the three co-defendants’ appeal was heard before a 3-judge panel of the Ninth Circuit Court of Appeals in Seattle, Washington. The case took, literally, thousands of hours to prepare for trial. As I said above, the trial took 44 days. There were many unique and significant legal issues which could lead to reversal of David’s and the others’ convictions and, potentially, their freedom. There were literally thousands of pages of transcript and record materials. There were literally hundreds of written arguments in the briefing submitted to the Ninth Circuit.

Now to the crux of this post and the reason for the title. All 4 people convicted – known as “appellants” in legal jargon, were granted a total of 20 minutes for argument. That breaks down to 5 minutes per individual if all counsel had decided to present argument. As a team, we thought it was best to utilize our time by having two attorneys argue. This way the clock wouldn’t keep running when counsel changed and time wasn’t wasted giving introductions 4 times. I will tell you – 20 minutes flew by. It really was quite unbelievable how quickly those 20-odd minutes passed. At the end, you always wish for more time, but hope you did the job with the time you had. (I guess it’s a lot like life that way!) You have to make your time count by: (1) submitting well-written briefs; (2) being prepared for any possible question by reviewing the law and the briefs; and (3) narrow the issues to present at oral argument to those that either will make the most difference or in which the judges take the most interest.

In any event, if you are interested in listening to the oral argument, simply click on this link. It will take you to the audio recording. I expect we won’t be getting an opinion in this case for 4-6 months. When it comes out, I’ll be sure to let you know my thoughts.