Rules Of The Road “Tidbit” 2 – Signal For A Minimum Of Five Seconds Before Changing Lanes On The Highway

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In my last post, I told you about a rule of the road concerning turning at an intersection (you must turn into the lane of travel closest to you). If you don’t follow this rule, law enforcement can pull you over. No one wants that! You need to also know Idaho’s “5-second rule”!

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You must signal for a minimum of 5 seconds before changing lanes on highways in Idaho. The law, Idaho Code § 49-808(2) states: “A signal of intention to turn or move right or left when required shall be given continuously to warn other traffic. On controlled-access highways and before turning from a parked position, the signal shall be given continuously for not less than five (5) seconds and, in all other instances, for not less than the last one hundred (100) feet traveled by the vehicle before turning.”

There are several cases involving the “5-second rule” and all have held that a traffic stop based on a driver’s failure to adhere to this rule is sufficient and adequate cause for law enforcement to pull a driver in Idaho over. If you want to avoid an encounter with law enforcement, you must follow this rule as well.

Being pulled over for a traffic infraction takes up your valuable time and is stressful. Not only that, it opens up the possibility of police developing further evidence that could lead to your arrest for DUI. Follow the rules of the road; you cannot be pulled over if you do!

A “Rules Of The Road” Tidbit That Could Save You From An Encounter With The Police

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In my work guiding people accused of DUI in Idaho through the legal process, I am often asked about whether the legal basis for a traffic stop was proper. A traffic stop is a “seizure” for the purposes of the 4th Amendment, so police need probable cause of a law violation prior to stopping you. If there is no legal basis for a traffic stop, the evidence obtained following that stop is subject to suppression. Meaning, the results of the FSTs, the breathalyzer results, and any incriminating statements made cannot be used in a trial.

A violation of the traffic laws provides probable cause to believe an infraction has been committed and the driver of the vehicle committed it. In other words, violating a traffic law is a basis for a traffic stop.

I was scrolling through my Twitter feed the other day and came across this image:

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This diagram is spot-on and represents one driving law I see violated daily.

When making a turn, you must turn into the lane closest to you. Meaning, if you turn right onto a 2-lane road, you must turn from the right-most lane (or designated turn lane) into the right-most lane. If you turn left, you must turn from the left-most lane (or designated turn lane) into the left-most lane. If you don’t do this, you provide law enforcement with probable cause to stop you.

Following the traffic laws will save you a potential “visit” by law enforcement in the form of being pulled over. It will take your time, expose you to stress, and, potentially to further testing for impairment. Knowing and following the rules of the road not only keeps you from being pulled over, it also keeps our roads and highways safe.

Just Because You’re On Probation Doesn’t Mean You Give Up All Your Fourth Amendment Rights.

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In a recent Idaho Supreme Court opinion, a probationer won his challenge to a search of his car. I know, to anyone on probation this seems like a unbelievable outcome. As with most things in the law, however, when you get down to the documents governing the relationship between the parties to the agreement – the probationer and the State of Idaho – the result was actually predetermined.

On October 29, 2014, Brody Jaskowski pled guilt to misdemeanor DUI and was place on supervised probation for 18 months. (That means, for a misdemeanor, Mr. Jaskowski would be under supervision for 1.5 years or 578 days!) The written supervision contract between Mr. Jaskowski and the State permitted the warrantless search of his “person, personal property, electronic devices, automobiles, residence, and outbuildings at the request of my Probation Officer, by the Probation Officer, Peace Officer, and/or his designee….”

Brody was pulled over by a Montpelier, Idaho, police officer on April 15, 2016. (Note, this is 534 days after his guilty plea!) The probation officer searched the car and, shockingly, discovered contraband. Brody’s lawyer challenged the search arguing it was conducted contrary to the terms of the probation agreement. The Idaho Supreme Court agreed and held: “The common guiding principle underlying our decisions … is that courts evaluating the scope of the Fourth Amendment waiver must look to the language used in the condition of probation in order to determine whether the search was objectively reasonable.” Therefore, in Brody’s case, the probation officer had to ask Mr. Jaskowski if he could search the car. *Note, Mr. Jaskowski couldn’t say no…but the probation officer still needed to ask!*

Most attorneys believe that when someone is on probation, a search like the one in the Jaskowski case cannot be argued against. This just ain’t so! Kudos to Mr. Jaskowski’s trial attorney for making the argument and winning it. The State needs to be held to its agreement with probationers. Just because you’re on probation doesn’t mean you give up  all of your Fourth Amendment rights.

 

 

 

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.