If You Have A CDL The List Of Drugs You Will Be Tested For Is About To Grow.

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Many people are subject to testing because they hold a Commercial Driver’s License (CDL). Beginning in January 2018, the list of drugs tested for is expanding by including additional Schedule II drugs such as hydrocodone, hydromorphone, oxymorphone, and oxycodone. What does this mean? It means if you are tested, for example if you have been in an accident, the drug panel you’ll have to pass is larger on January 1, 2018.

If you think you need an attorney, you probably do. Contact someone who knows what he or she is talking about. Your CDL is your livelihood.

Is The Breathalyzer Broken? If Your DUI Defense Attorney Doesn’t Know What To Look For, You Might Never Know.

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In a recent article by Jeremiah Dobruck in the Press-Telegram, a breathalyzer used in Long Beach, California, which had been found by police to be “faulty,” was kept in service. According to the article: “Because of an oversight earlier this year, Long Beach police officers were allowed to keep using a malfunctioning DUI screening device for more than a month after a technician determined it was unreliable, according to the department.”

Unbelievably, the breathalyzer was “used  twice in roadside investigations after it should have been decommissioned.” One of the people it was used on pled guilty to DUI. The other, a city council woman, tested below the legal limit on the device and the State declined to press charges because the device should not have been in service.

The most disturbing statement by law enforcement in the article is this: “Police said they don’t believe either case would’ve turned out differently if the screening device were functioning properly.” What?! Are you SERIOUS?! You’re telling me the person who pled guilty based, in part, on the “results” spit out by the machine still would have done so if he or she or their attorney would have known it shouldn’t have been being used? That is outrageous.

Apparently, the woman who pled guilty also had a blood test to measure her blood alcohol content (BAC) based on California law.. If you “blow” in Idaho, there is no requirement for a confirmatory blood test. The woman’s attorney said he doubted the case would have turned out differently because of the blood test. If it happened in Idaho, I can’t say the same; in other words, the outcome may have been very different.

A DUI is a serious charge that comes with serious consequences. The police should be held to a standard consummate with the charges. Your attorney also needs to know what he or she is doing. It shouldn’t have been left up to law enforcement to discover their “error.”

Collateral Consequences To A Criminal Conviction: They Are Real And They Hurt

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One of the biggest parts of my criminal defense practice is advising Idaho clients about the potential “collateral consequences” of a conviction. Collateral consequences are different from direct consequences like jail, prison, probation, etc. They include being precluded from voting in national or state elections, not being able to possess a firearm, or losing your professional license.

Recently, the New York Times ran a  story by Nirja Chokshi about another collateral consequence for people convicted of sex offenses against children. If you have such a conviction, the Department of Homeland Security will revoke your passport and issue a new one with specific language indicating the holder has a criminal conviction for a sex crime involving a child. Whenever you travel, you will be identified as a sex offender.

The article contains some arguments against such a policy by Janice Bellucci, a California lawyer and founder and executive director of the Alliance for Constitutional Sex Offense Laws.  These concerns include the fear the law will simply be the beginning of a slippery slope: “Today, it’s people convicted of sex offenses involving minors, but, given the current political environment, perhaps next it will be Muslims,…. Or maybe it will be people who are gay.”

Whether you agree with the new policy or not, if your criminal defense attorney isn’t telling you about the collateral consequences of a criminal conviction, he or she isn’t doing their job. You need a new attorney. Collateral consequences to a criminal conviction are real and they hurt.

You Should Not Voluntarily Talk To The Police. Everything You Say WILL Be Used Against You.

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I cannot tell you how many times I sit down to speak with prospective clients and learn they have already, without the benefit of an attorney, spoken with the police. As a criminal defense attorney, I can tell you this: nothing sinks a case faster than a “voluntary” confession by one of my clients.

Police officers are trained “experts” in interrogations. They go to school for hours or days to learn techniques aimed at getting people to talk to them. Courts have ruled that police can lie to people they are talking with in order to get information. Why in the world would anyone suspected of a crime speak to police? The answer is simple: People think they can help themselves! I’m here to tell you: It ain’t so.

After voluntarily talking to the police, potential clients sometimes come to me and say: “I wasn’t given my Miranda rights, so my statements can’t be used against me, right? Well…no, not right. If you voluntarily speak with the police, you are likely not “in custody” for the purposes of Miranda and the police don’t even need to warn you what you say can be used against you!

In future posts, I’ll be discussing what it means, legally, to be “in custody” for the purposes of Miranda as well as the 3 levels of police citizen encounters. The take away for today is: You will not help yourself by speaking with law enforcement; you will only hurt your chances down the line.

If the police say they want to talk with you, you need to contact an attorney before making the oftentimes life-altering, case-destroying, decision to talk! Remember: Everything you say WILL be  used against you!

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!