Category Archives: Criminal Law

Cruel and All-Too-Usual

Last week Oklahoma executed condemned defendant Clayton Lockett. The trending headline was that the state “botched” the execution because the new mix of drugs it caused it to take 45 minutes and inflict great pain before death. The execution wasn’t botched–the state attempted to kill a man and succeeded. The state really wanted to do it too. When the Oklahoma Supreme Court stayed the execution, Gov. Mary Fallin ignored the stay and ordered the state to proceed. A state legislator prepared impeachment proceedings against the justices who issued the stay which led to those justices to reverse themselves and allow the execution. Note that supreme court justices in Oklahoma face state elections.

The issue the now deceased Mr. Lockett’s attorneys argued was the secrecy and safety of the drugs of death. States that use lethal injection have been having difficulty obtaining the standard drugs because the European companies that produce them won’t allow them to be used in executions and American companies do not want to start making them. As a result, states desperate to kill have been trying new things. A three-drug protocol was developed in the 1970s to make executions quick without being cruel and painful. Unable to obtain these drugs, Ohio and Oklahoma both used new concoctions this which were untested and not as smooth to say the least.

There were two reactions after the execution was revealed to be less than optimal: 1. That it was terrible, unjust, cruel, etc., and 2. So what? If anything, he didn’t suffer enough! Both reactions are ridiculous. I’ve written about the death penalty in this blog here, here, here and here. I’m against it. Complaining about the method of execution obfuscates the fact that it’s the process–from arraignment through trial and execution–that is unjust and should be eliminated. If a state’s method of execution were for a condemned person to eat, drink and have sex until he or she died of a heart attack, I’d still be against it because the death process is legally unfair and convicts the innocent without being effective in reducing crime.

Connecticut’s upright jerker (patented as the “automatic gallows”). Invented by the Warden of the old State Prison in Wethersfield in 1895, it hung a person by yanking upward on his neck.

The “just shoot him and bill the family for the bullet” argument might get you cheers at a Republican debate but is also a perversion of the criminal justice system because we have the Eighth Amendment which prohibits “cruel and unusual” punishment. That is why we don’t have floggings as punishments for crimes anymore. It’s why death can no longer be a punishment for a non-murder crime against individuals. Executions for rape and robbery–when the victim survived–occurred until the 1960′s. What is cruel and unusual is judged on the “evolving standards of decency” in our society. Strangely it would be cruel and unusual for a state to beat a defendant half to death as punishment for a crime yet it is not cruel and unusual to inject or electrocute him all the way to death. There’s a good argument now that drug manufacturers–not exactly philanthropists–won’t produce execution drugs that society is evolving out of execution. Europe, Australia, Canada, Mexico and South America have already reached this point. The United States, much of the Middle East, Russia, China, North Korea and Vietnam are not there yet.

How do we know that there has been some evolution of decency in the death penalty? Just look at the states that do it. All states have lethal injection even if some still allow defendants to choose a previous method (hanging, firing squad, electrocution, lethal gas, upright jerker). The states that are against the death penalty repealed it. The states that upgraded to lethal injection were clearly ones that supported it. Injection is much more costly than hanging, electrocution or firing squad, so it isn’t cost. There aren’t any Constitutional issues because the Supreme Court has not banned any individual method (although if a state brought back stoning or dismemberment, a 5-4 majority might rule it unconstitutional). States switched to lethal injection because some lawmakers believed that people executed should retain some sort of dignity. Or it could be even more self-serving: they did not want to be perceived as cruel or barbaric. Killing isn’t and shouldn’t be an easy thing for any person to do and even the executioners know that.

“The Constitution is next.”

Here’s a proposal: for an execution to proceed, the governor of the state must carry out the sentence. Not just attend the execution, but throw the switch. Someone else can do the prep work. See how many death warrants are signed then. Rick Perry is a man of faith and justice, surely he can personally push the plunger. Or to save money, he can use a firearm of his choice. There’s a good chance he had an innocent person executed so the guilty shouldn’t be too hard. Gov. Fallin wanted to kill Mr. Lockett so badly, she should jump at the opportunity to see justice done. The legislator who tried to impeach the state supreme court could join her. There’s always “eye for an eye” and justice for the victims talk on the topic of capital punishment. Then why not borrow a page from the past and grant them the legal authority to kill the offender in any method of their choosing? How many would actually go through with it? If that prospect isn’t as appealing for most people as it was in Biblical times or even the early 1900′s, it could be because standards of decency really are evolving.

The Fourth Amendment Up in Smoke — Navarette v. California

Legal research often takes me back to the 1960′s and 70′s. The Supreme Court, first under Chief Justice Earl Warren, defined many Constitutional rights. Many cases involved the rights of the accused, such as Mapp v. Ohio (exclusionary rule), Gideon v. Wainwright (indigent right to appointed counsel), Miranda v. Arizona (no description necessary). Warren Burger succeeded Warren as Chief Justice in 1969 and the Burger court, while not as progressive as the Warren court, continued or at the very least did not reverse the criminal jurisprudence of the preceding decade. The decline began with the Rehnquist court in the 1980′s and 90′s and continues in the present with the Roberts court.

Today, the Supreme Court issued the decision of Navarette v. California with a majority of Justices Thomas (the author), Roberts, Breyer, Alito and Kennedy. Justice Scalia (Warning: I agree with Justice Scalia) sharply dissented, joined by Justices Sotomayor, Kagan and Ginsburg. Navarette was a Fourth Amendment case and while today’s decision does not carve out a new exception to the warrant requirement, it does make it easier for the police to stop vehicles.

The defendant Navarette was stopped on the highway in California after a 911 caller said that his truck ran him or her off the road. The police, suspecting drunk driving, saw the truck on the highway, followed it and stopped it. After stopping the truck, the police smelled marijuana (police ALWAYS smell marijuana although in this case they probably really did), searched the truck and found bales of marijuana in its bed. It seems pretty open and shut, so what was the Fourth Amendment issue? It wasn’t in the search because the smell of the weed likely provided the requisite probable cause to search. It lies in the stop–did the police have reasonable suspicion to stop the truck? There must be reasonable suspicion that a crime is taking place, has taken place or is about to take place involving the vehicle. That could be a traffic violation. The caller said that the truck ran him or her off the road, which would suggest reckless driving or possibly drunk driving. The caller described the truck and its location and that was enough for the majority to find reasonable suspicion in the totality of the circumstances.

Justice Scalia argues in dissent that there was not enough for reasonable suspicion because the call was anonymous and uncorroborated. The Supreme Court previously held in Florida v. J.L. that an anonymous tip that a young man was carrying a gun without anything more than a description and his location was not enough to justify a stop and search of him. In Alabama v. White, the Court upheld a stop based on an anonymous tip because the police corroborated it through their own investigation. That didn’t happen in Navarette. Although the police followed the defendant, he did not commit any traffic violations during that time nor did he show any signs of drunk driving. There was no corroboration. There was no accident or even identification of the caller.

Why shouldn’t an anonymous tip be enough on its own? Reliability. Our law, especially Fourth Amendment law, requires that information that leads to criminal action against an individual be reliable. That is why judges must sign off on warrants. It is also why courts prefer in person testimony over hearsay. An anonymous call could come from anyone and be for any reason. It is easy to side against the defendants in these cases because appeals come from guilty defendants. We don’t find out about many people who were shaken down by the police on bogus tips.

Based on the Navarette decision, an anonymous tip that a van was made entirely of marijuana, even without any corroboration, would be enough to warrant a traffic stop.

Aside from confrontation clause issues, the Roberts court has not been friendly to criminal defendants. Last year the Court held that a defendant’s silence can be used against him. Two years ago the Court upheld the use of strip searches for taking arrested persons into jail.

The dissent closes by saying, “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference.”

No Fourth Amendment issues here. The van is already parked and open to plain view and plain smell.

Diversionary Programs AR No Guarantee

One of the most common question of people who are charged with criminal offenses is “what can I expect for a sentence” and it is often followed by “this is my first arrest” or “I have no record.” In many situations, a person may be able to avoid a criminal record without trying the case or having the charge nolle’d by the State. Connecticut (and most other states) has many diversionary programs for criminal defendants. When a person enters a diversionary program, the criminal charges will be dismissed if he or she satisfies various responsibilities over a period of time. As a result of the dismissal, there would be no criminal conviction.

Connecticut’s programs include the venerable Accelerated Rehabilitation (“AR”) for many misdemeanors and felonies, the Alcohol Education Program for DUI’s, Drug Education and Community Service Program, Family Violence Education Program (self-explanatory) and Supervised Diversionary Program (SDP or “Psych AR”) for people with psychiatric conditions. Each program has its own eligibility requirements. For instance, for a non military veteran to be AR eligible, he or she must not have a criminal conviction record, not have ever used the program before and not be charged under a statute that is an automatic disqualifier.

There are two stages for the application to these programs. The first stage is the person stating that he or she is eligible for the program in open court. The second stage is when the court either grants or denies the program based on its evaluation of the person between the two court events. It sounds simple enough: no trial, no jail, just filling out some forms, so why hire a lawyer if one is eligible?

“Bart, stop causing a diversion.”

For starters, diversionary programs are ultimately the discretion of the court–the judge decides whether a person is granted a program even if the person is preliminarily eligible. A court may decide that although a person is eligible in the first stage, that person should not be granted the program. One reason for a denial is that the charge or charges is too serious even if it is not program prohibitive by the statute. I’ve seen this happen for burglary charges. Another is the likelihood of a defendant reoffending. During the second stage of an application, an attorney can argue for the granting of the program and can also negotiate with the judge and prosecutor during pretrial as to the program’s requirements or special conditions.

On the opposite end is that a charge might be minor enough or the State’s case weak enough that another sort of nolle or dismissal can be worked out. I’ve done this a few times: reduced a reckless driving (a misdemeanor, not just a traffic violation) to a traffic infraction, had clients do community service in exchange for nolles of breach of peace, complete substance abuse treatment in a domestic violence case instead of FVEP. The reasons or doing this are to preserve a program for the future and to save time and money–some programs require class fees and most take time until they are completed and the case is dismissed, up to years at times. Programs to avoid convictions are great–avoiding programs is even better.

The Good Kind of Texas Justice

Congratulations to Daniel Villegas and his attorneys. Mr. Villegas was released on bond today after it was set following a Texas appellate court’s overturning of his murder conviction from 1995. He was imprisoned that entire time. A bond was set because in most cases when a conviction is reversed or vacated, the case goes back to where it was before the error occurred. In this case, that was trial. Mr. Villegas is back to just being an accused (rather than convicted) defendant and can be re-tried.

The reason for the vacatur was that Mr. Villegas proved that his attorney rendered ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. In addition to the ineffective assistance claim which he won, Mr. Villegas asserted actual innocence–that he did not commit the crime alleged. A key part of the evidence admitted against him in the original trials was his confession, which he claims was false–that he was coerced by the police into incriminating himself (to be accurate, the habeas claim that succeeded concerned third-party liability).

Whether Mr. Villegas’ confession were false or not, false confession is a real thing. According to the Innocence Project, 25% of people exonerated by DNA evidence falsely incriminated themselves. It sounds crazy to most people. While it makes sense to lie to get out of trouble, why would someone make untruthful statements that get him or her into trouble? I’ve written about why someone might stop answering questions. Confusion could be a reason why someone gives incorrect and incriminating answers. Coercion is the best known reason. There’s physical coercion by which a confession is literally beaten out of someone, and then there’s mental coercion, the classic “tell us and we’ll let you go.” This case includes the claim of coercion as well as a couple of other possible reasons. One is that Mr. Villegas was 16 years-old, a juvenile, at the time of his confession. Another is a learning disability. Although it is not clear what effect if any Mr. Villegas’ youth or mental condition had on his confession, young people and those with diminished mental capacity are more susceptible to falsely confessing.

“I shot the clerk?” My Cousin Vinny provides a great example of the perils of talking to the police. Bill Gambini asks a detective, “I shot the clerk?” in response to an allegation. The detective hears that not as a question but the statement, “I shot the clerk.”

In Connecticut, for interrogation statements to be admissible against juveniles in delinquency proceedings, the statements must be made in the presence of the juvenile’s parent or guardian after they were advised of their Miranda rights (or for 16 and 17 year-olds, after the the juvenile is informed that he or she has a right to have a parent present for the interrogation as well as his or her Miranda rights).

The best course of action is to not speak to the police without an attorney.

Criminal justice hall of famer Ernesto Miranda was convicted in his second trial after his original conviction was invalidated by the case which now bears his name.

Daniel Villegas fought and won himself another shot at freedom. Many lost the means to continue fighting

http://www.youtube.com/watch?v=ZJEwrw4VEls.

What’s the Deal With Plea Bargaining?

My favorite episode of Perry Mason is the one in which Perry reaches a deal with the DA and his client takes it instead of going to trial. A close second is the time Perry requests a continuance because he has to be in another court.

“Your honor, may we have a few more weeks so my client can consider Mr. Burger’s offer?”

The reality is that few criminal cases ever go to trial. Many are resolved through diversionary programs (such as AR) or nolles. The bulk of criminal cases are resolved through guilty pleas. As we know, a criminal defendant is innocent until proven guilty. After a defendant his arraigned, he enters an initial plea, which is usually “not guilty,” and the case proceeds. The plea is a decision that only a client can make. At some point, barring a program or a nolle, the State will extend an offer for a guilty plea: if the defendant changes his or her plea to guilty (or nolo contendere or Alford pleas), the State will recommend a certain punishment and/or will drop or lower some of the charges. The court might even weigh in with what it will sentence the defendant should he plead out. If the defendant rejects the offer, the case could be set down for trial. An agreement can still be reached at any time but we’re dealing with the basic contract principles of offer and acceptance. The State is under no obligation to extend a new offer or to accept a defendant’s counter-offer (back to contracts class, a counter-offer is a rejection). The defendant can plead guilty anyway and leave the sentence up to the court without an offer from the State–this is an open plea–but it is only for the charges before him. Once the court finds probable cause for an offense, the defendant can be brought to trial for it. Only the State decides what to charge a defendant with.

What can a defendant do if he or she does not like the State or court’s offer? Take the case to trial. If only it were that easy. Although that decision is solely the client’s, a criminal defense attorney must advise him or her in that decision and make a recommendation. A poor recommendation to try a case or plead out may constitute ineffective assistance. I enjoy trying cases but my clients’ decisions aren’t about my fun. Their lives and liberty are at stake, as well as the people they support and depend on. For someone who is sitting in jail unable to bond out, the prospect of getting hammered after a loss at trial is often not worth the risk when a plea for lesser charges can get him out much faster. This happens a lot in drug cases wherein the statutes expose a defendant to lengthy prison terms. Other times preconfinement credit and split sentences can free someone almost immediately as long as he pleads to something. Sometimes the punishment isn’t the time but the offense–becoming a felon and suffering all of the ensuing collateral consequences.

Do we have five suspended after two with three years probation?

All of the scenarios, charges, evidence and consequences are what we talk about with clients, sometimes in the courthouse lockup. I never like telling a client to stop fighting; to give up his rights and go to jail. What I like less is when a client makes a poor decision. So much of this work isn’t staying out of jail but getting out of jail.

Pistol Permit Reciprocity in Connecticut (There isn’t any)

Yesterday I wrote about how it is possible in Connecticut for people to be charged with Breach of Peace related to the legal carrying of a firearm. I noted that one must have a valid carry permit to carry a pistol, concealed or openly, on his or her person or in a vehicle. All states except for Vermont, Alaska, Arkansas and Wyoming currently require a pistol permit. Many of these states honor some other states’ permits, meaning that an out-of-state permit-holder can carry in the allowing state without having to obtain that state’s permit. Connecticut however is not one of those states. Connecticut does not have a reciprocity agreement with any other state to honor its permits.

In short, a person cannot carry a pistol on his or her person or in a vehicle in Connecticut without a valid Connecticut permit. The penalty for carrying without a permit, in violation of Conn. Gen. Stat. Sec. 29-35 is one to five years of imprisonment, one year of which cannot be suspended unless good cause is shown. That is not a hard mandatory minimum but it is minimum time. The penalty for possessing a weapon in a motor vehicle, which includes a pistol without a permit in a motor vehicle, in violation of Sec. 29-38, is up to three years of imprisonment without any minimum. Both offenses are felonies.

Since people travel and Connecticut is a small state with three neighbors, the logical question is: what if someone with a valid permit from his or her own state travels through Connecticut with firearms in the vehicle? State and federal law allow such transportation to take place. Sec. 29-38d provides

(a) The provisions of sections 29-35 and 29-38 shall not apply to the interstate transportation of firearms through this state in accordance with 18 USC 926A and 927, as amended from time to time, by any person who is not otherwise prohibited from shipping, transporting, receiving or possessing a firearm. Such person may transport a firearm for any lawful purpose from any place where such person may lawfully possess and carry such firearm through this state to any other place where such person may lawfully possess and carry such firearm provided such transportation is in accordance with subsection (b) of this section.

(b) During the transportation of a firearm through this state as authorized in subsection (a) of this section, such firearm shall be unloaded and neither such firearm nor any ammunition being transported shall be readily accessible or directly accessible from the passenger compartment of the vehicle. If the vehicle does not have a compartment separate from the passenger compartment, such firearm shall be unloaded and such firearm and any ammunition being transported shall be contained in a locked container other than the glove compartment or console.

(c) No person who is transporting a firearm through this state in accordance with this section may use or carry such firearm or sell, deliver or otherwise transfer such firearm while in this state.

The federal law cited, 18 U.S.C. 926A provides

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

If you plan to go hunting in another state, make sure you know the laws of that state and any other in which you will possess firearms.

While Connecticut does not recognize pistol permits from other states, some states will recognize a Connecticut permit. If you do plan on carrying your weapon in another state, it is imperative to verify the laws and permit requirements in that state as well as those of states you plan on traveling through. States have their own firearms laws and often illegal possession is a strict liability offense with severe penalties.

Breach of Peace Love and Understanding: How Can the Legal Carrying of a Firearm Be a Crime?

Connecticut law is relatively clear on the legality of carrying firearms. A permit is required to carry a pistol on the person and in a motor vehicle. No permit is required to carry a rifle or shotgun (provided the weapon is not one prohibited by state or federal law–e.g. a sawed-off shotgun). With a permit, a pistol may be carried concealed or openly–there is no law against openly carrying a pistol. Yet, as occasionally reported in the newspaper, people who were legally and openly carrying weapons have been arrested and charged not with weapons possession but with Breach of Peace. The Register published an article today on this phenomenon.

In the article Paul Vance of the State Police and Michael Lawlor, the governor’s criminal justice adviser, both state that a person can openly carry a firearm as long as it does not cause “annoyance or alarm.” Rich Burgess of the organization Connecticut Carry disagrees, saying, “The very premise of breach of peace is ‘violent or tumultuous behavior. Since carrying a weapon in public is legal, doing so is exempted from the breach-of-peace statute.”

Since we’re talking about Breach of Peace, let’s take a look at the actual statute: Sec. 53a-181 – Breach of Peace in the 2nd Degree. The statute reads in its entirety (with the most relevant language bolded):

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests. (b) Breach of the peace in the second degree is a class B misdemeanor.

Breach of Peace and its cousin Disorderly Conduct are among the broadest, open-ended statutes (along with Risk of Injury and a few others). It does not take much beyond being rowdy to get hit with this charge. Although Sec. 53a-181(a)(1) is the subsection that is applicable for weapons, it neither mentions nor excludes firearms or any kind of weapon. Mr. Burgess is incorrect is saying that carrying firearms is exempted from the statute because it is a legal activity. Many activities that are in themselves legal, such as speaking, are Constitutionally-protected until they are used in a threatening manner.

I know what you’re thinking: what if someone is just carrying a weapon and minding his or her own business and someone who is extra-sensitive to guns sees it and calls the police? Many other people might’ve seen it and not cared a lick. Whether the act constitutes a breach of peace is a question of fact: it is up to a judge or jury to decide the intent of the defendant and if the alleged activity constitutes violent, threatening or tumultuous behavior. So, how does a fact-finder do that? Time to pull up the jury instructions for 53a-181(a)(1). Here is what the State must prove beyond a reasonable doubt:

Element 1 – Intent
The first element is that the defendant
-acted with the intent to cause inconvenience, annoyance or alarm. The predominant intent must be to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.

-recklessly created a risk of causing inconvenience, annoyance or alarm. A person acts “recklessly” with respect to a result or circumstances when (he/she) is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstances exist.

The words “inconvenience, annoyance or alarm” refer to what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.

Element 2 – Conduct
The second element is that the defendant engaged in fighting or in violent, tumultuous or threatening behavior that actually involved physical violence or portended imminent physical violence.2 The defendant’s conduct must be more than a display of mere bad manners. It must cause or create a risk of causing inconvenience, annoyance or alarm among members of the public.

Element 3 – Public Place
The third element is that the conduct took place in a public place. “Public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

The above-bolded language specifies that whether behavior is violent etc. is based on an objective standard–not the subjective feelings of an actual person (such as the one who witnessed the event, a police officer or Mr. Lawlor). The question is essentially would an ordinary person feel threatened by this? Context and circumstances are always key. Carrying a holstered handgun on your belt while you buy a sandwich? Probably not objectively threatening. Walking around pointing at your weapon and winking at people? Possibly threatening. Carrying your hunting rifle into the woods? Seems reasonable and non-threatening to me. Walking near a school with a rifle? I’ll let you think about that one.

Carrying your rifle in preparation for deer-hunting likely isn’t breaching any peace. Doing it at a wedding or while speaking like Christopher Walken just might be.

Is Breach of Peace overused, often as a fallback to make an arrest? I think it is and have had the clients that demonstrate that idea. But it’s hard to say that weapons should be exempt from Breach of Peace because one can–and I’ve had the clients to prove this too–be charged with Breach of Peace without having any weapons. I don’t write the laws but I defend people who are charged with breaking them and it’s tough to defend something as open as Breach of Peace.

Breach of peace? In Charles Bronson’s world, he is making peace.

Connecticut’s new law against texting while driving — and some other points.

Today the New Haven Register reported that Connecticut is getting tougher on texting while driving and points to a new law which took effect on Oct. 1.

Connecticut has band handheld cellphone (and other electronic device) usage by motor vehicle operators since 2006. Conn. Gen. Stat. Sec. 14-296aa provides in relevant part:

Except as otherwise provided in this subsection and subsections (c) and (d) of this section, no person shall operate a motor vehicle upon a highway, as defined in section 14-1, while using a hand-held mobile telephone to engage in a call or while using a mobile electronic device while such vehicle is in motion. An operator of a motor vehicle who types, sends or reads a text message with a hand-held mobile telephone or mobile electronic device while such vehicle is in motion shall be in violation of this section.

If this isn’t distracted driving, then I don’t know what is.

What the new law, Public Act 13-271, enacted this spring, does is allow the Department of Motor Vehicles to assess points on the licenses of drivers who violate 14-296aa. One point to be precise.

While most people are aware of the existence of drivers license points, likely through references in pop culture or from police officers after they are handed tickets, few know how the process actually works. As I have discussed a few times, most notably in the posts regarding drinking and driving, DMV is an administrative agency that can take administrative actions separate from the legal system in response to convictions for crimes or infractions. Authorized by legislation, DMV has developed regulations to assess points for various offenses, ranging from a minimum of one point (speeding, failure to drive right) to five points (negligent homicide with a motor vehicle). DUI carries a three-point assessment.

Points for an offense remain on a driver’s record for 24 months. If at any time the driver accumulates six points, DMV sends him or her a letter warning that once the point total tops ten, the license will be suspended for 30 days. For any subsequent suspension, it will remain in effect until the point total falls below 10. Like DUI per se suspensions, there is a hearing process.

What’s the other collateral consequence that isn’t in the statute? Insurance. Insurance companies check drivers’ records when they apply for new policies and may also periodically pull records. Records with points and evaluations. At least that’s the idea behind the new law: people will be scared of insurance premium increases…because apparently they’re not scared of accidents. It might work.

Stopping a Driver’s License Suspension After Paying An Alcohol or Marijuana Violation

I have a section on my law office website about Possession of Alcohol by a Minor and other alcohol-related offenses involving persons under 21. Although the offense is only a violation and not a crime, it carries the nasty collateral consequence (there’s also a section on these) of a DMV driver’s license suspension. There is a similar suspension for conviction of the non-criminal marijuana possession offense.

The suspension of a driver’s license, for 30, 60 or 90 days, is often far more devastating a punishment to young people than the fine for an alcohol or marijuana ticket. For a great movie on what a driver’s license means to a high schooler, check out the 1988 Coreys vehicle, License to Drive, which also features Heather Graham.

But what if you didn’t read the website and thus did not know about the driver’s license suspension until after you paid the ticket (police tend to tell offenders that “it’s only an infraction” and don’t mention the driver’s license suspension which is authorized by another statute) when you received a letter from DMV? It actually might not be too late. In some circumstances you can move to reopen the case. If the case is reopened, the conviction is vacated and the suspension is rescinded. You can then fight the ticket or work out an alternative disposition to avoid a conviction which would cause a license suspension. If you are facing a suspension for paying a ticket and wish to reopen it, give me a call. I’ve done it before.

Have a brew–but it might cost you your license if you receive a Minor in Possession ticket and pay it.

What Aaron Hernandez’s attorneys are not telling him.

I love sports. Before becoming a lawyer I was a sports writer. As you already know, I have a great interest in the law. (And no, I did not participate in my law school’s renowned “sports law” program.) So when those two areas collide, I get excited. Except when my favorite teams and athletes are in legal trouble…unless they hire me.

I’m a Patriots fan (I’m also a fan of the Red Sox and Celtics and–while I’m rooting for the Bruins, don’t feel I’ve earned earned it into their fanbase because I was an NHL neutral for so long). Today I was talking to someone from Boston and the subject of Aaron Hernandez came up. As you probably known, the New England tight end is being investigated in connection to a suspected homicide. It is currently being reported that police believe Mr. Hernandez destroyed a home security system, broke a cell phone and hired house cleaners in the past few days. I was asked if I thought that his lawyers told him to do these things. I responded that they probably did not because lawyers cannot legally do that.

Winston Wolf solves problems. He also commits felonies of his own while cleaning up yours.

Lawyers must represent and counsel their clients as zealously as possible within the bounds of the law and ethics. Lawyers therefore cannot advise clients to commit, further or cover-up crimes. Connecticut rule of professional conduct 3.4 provides:

A lawyer shall not:

(1) Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

Lawyers also have a duty of candor to courts, which is one of a few reasons why they cannot allow a client or witness testify falsely. These rules are pretty standard throughout the country. In addition to violating the rules of conduct, lawyers must be cognizant to not violate criminal laws. When an attorney goes beyond giving unethical advice and into actually destroying or hiding evidence, it becomes a crime itself, such as federal obstruction of justice or Misprision of Felony, of which a Connecticut attorney was convicted a while back when he destroyed a church’s hard drive that contained child porn.

Unlike Winston Wolf, Michael Clayton is bound by the rules of professional conduct.

So what can lawyers tell clients who are embroiled in investigations? I would start with, “Don’t say or show anything to the police unless I’m there and tell you to.” With the Supreme Court’s latest chip to rights of the the accused, Salinas v. Texas, issued earlier this week and about which I wrote here, that advice takes on even more importance.