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October 2016 Archives

Welcome to FindLaw's DUI Law series. If you have been charged with a DUI, know someone who has, or just want to know about the law and how to protect your rights during a DUI stop, please come back each week for more information.

Want to hear something truly scary? You had a few drinks, are on your way home, and there are police lights on the road up ahead. Do you look too drunk to drive? What's your blood alcohol content? Are you going to jail tonight?

DUI checkpoints can be a frightening experience. With 55 deaths last Halloween in drunk driving accidents, and promises of more DUI checkpoints this season, the prospect of a DUI is even more horrifying. So make sure you remember these laws if you run into a DUI checkpoint this Halloween.

The law in every state allows some latitude when it comes to the crime of selling and buying stolen goods. The one factor that can make the most significance is whether buyer or seller knew that the goods were stolen. Although knowledge makes all the difference, however, not knowing generally will not allow a purchaser, nor seller, to keep the proceeds, nor the goods.

Depending on the jurisdiction and the value of the goods, certain states can charge the offense as a petty crime. Petty crimes, typically, are misdemeanors, or infractions, that do not carry very stringent sentences. Usually, this is reserved for situations where the value of the goods is less than $500 or $1,000, and did not involve an additional crime, such as a weapons, assault or battery charge. If a seller has no knowledge the goods they are selling are stolen, it is likely they would be treated similarly to a buyer who had no knowledge.

The New York Police Department announced that it has seized over 3,000 guns so far this year, and over 1,000 of those will remain off the streets for good. The NYPD says its Field Intelligence Officers' haul is the highest in the last three years.

So what happens with all those weapons now?

Since the assimilation of social media into everyday life became nearly unavoidable, lawmakers have been working to strengthen the laws prohibiting cyberbullying, cybercrime, and online threats. Potentially in spite of the Supreme Court ruling in 2014 that reversed the conviction of a man who posted his own original rap lyrics about his fantasy of killing his wife on social media, state's around the country continue to embrace new laws that create for a safer, less hostile online environment.

The Supreme Court's stance on online threats seems to land more in favor of characterizing even the most despicable speech as protected under the first amendment. Despite the Supreme Court's stance that the online harasser's intent matters, states can still regulate and prosecute people they believe have made credible online threats.

Arrested for Vaping?

There aren't many places left for the cigarette smokers of the world. Pushed out of offices, airplanes, bars, and even some sidewalks, the choice is either to quit or to smoke at home. Or, find something that isn't "smoking." Many new and long-time smokers are turning to vaping instead, in the hopes of circumventing anti-cigarette ordinances.

The question then becomes, what's the difference between smoking and vaping, and can you get in trouble for vaping the same way you can get in trouble for smoking cigarettes?

DUI and Immigration Status

The last thing you want to do if you are applying for citizenship is get a DUI. Even if you're in the country legally on a visa or green card, immigration officials may deport you or downgrade your status on the basis of a criminal conviction, especially for a felony.

Here's what you need to know about a how a DUI conviction could affect your immigration status.

Last week, a juvenile carjacker in New Jersey made headlines for being arrested twice within 48 hours for two separate carjacking incidents. Police released the minor into the custody of a relative after his arrest on a Friday for carjacking, and on Sunday, the teen was rearrested for another carjacking.

The juvenile carjacker, surprisingly, is only 13 years old. Fortunately, there were no injuries as a result of his actions, however, police have linked an additional two to three car thefts from surrounding communities to the young suspect.

George Zimmerman, the garbage human infamously acquitted in the homicide of Trayvon Martin, became the victim of a shooting himself last year, in an apparent road rage incident. The man who shot at Zimmerman, Matthew Apperson, was convicted of attempted second-degree murder last month, and last week was sentenced to 20 years in prison.

The irony is that Zimmerman himself was charged with second-degree murder in Martin's death, and was perhaps fortunate his victim wasn't around to testify at his trial.

Last week, the Minnesota Supreme Court ruled that a BB gun does not count as a firearm when it comes to a felon-in-possession charge. David Haywood, who was convicted of a felony in 2005, was convicted three years ago for possession of a firearm and sentenced to the mandatory minimum 5 year sentence. Now, his conviction is overturned.

Most states restrict the rights of individuals who have been convicted of a felony when it comes to gun ownership. The ruling by Minnesota's highest court will indeed change the landscape of gun ownership for felons, but only in Minnesota, and only until the legislature responds.

Two unlucky burglars got way more than they bargained for when they broke into the Gas bike shop in Orange County, Florida last week. The pair of burglars found the shop's owner lying in wait, gun in hand, and it only got crazier from there.

The bike shop owner had a few prior break-ins and was justifiably paranoid that it would happen again. As a preventative measure, he began sleeping in his store, with a gun. When the burglars broke in, he allegedly held the two men at gun point, forced them to strip down to their underwear, then marched them into the bathroom where he beat them, while still holding them at gun point. The shopkeeper did not call the police until some time had elapsed and his brother and brother's girlfriend arrived at the store.

Scooters and mopeds have long since lost their social stigma. Now they seem to be the vehicle du jour on college campuses nationwide. Also, as cheap and relatively easy-to-ride vehicles, motorized scooters are often the go-to beach vacation rental ride of choice. And if there's one trait that these two groups share, it is a propensity to imbibe alcoholic beverages.

While scooters and mopeds might not seem like "real cars," you'd better believe that the DUI you can get while riding one is very real.

When police officers cross the line and cause a person injury, even if the officers were making a lawful arrest, there may be a claim of excessive force that the victim or arrestee can use to sue the police. Generally, the law allows law enforcement to use the force that is reasonably necessary in order to affect an arrest. However, the amount of force that is reasonably necessary is not an easily quantifiable amount.

There is a common misconception that when a person is lawfully arrested and convicted, that even if an officer used excessive force, the arrestee will not have a claim. That is just plain wrong. Even if a person is convicted of the crime they were arrested for, they can still successfully bring a claim for excessive force. Surprisingly though, this even applies to convictions for resisting arrest.

Last week, a 41-year-old Huntington Beach man was arrested with $100K worth of meth and heroin. While he may not quite have reached Walter White status, he's facing enhanced charges as he had 25 lbs of methamphetamine and 289 grams of heroin. Currently, he is in custody after pleading not guilty to multiple charges, awaiting his next hearing on October 28, 2016, where bail may be reconsidered.

Officers arrested the suspected drug dealer after pulling him over for a traffic stop. A K9 unit arrived on the scene, and with the help of a doggy's keen nose, officers discovered the giant stash. The drugs were packaged in multiple containers, which is a generally a sign to officers that the drugs were intended for sale.

While the phrase ‘wrongful arrest’ gets used frequently to describe when law enforcement arrests the wrong person, that isn’t exactly how the legal remedy of wrongful arrest or false arrest works.

If you think you’ve been wrongfully arrested, you may need to file a government tort claim or some other form within 60 days with your state, city, or county in order to be able to file a lawsuit under state law. Suing a police department is the same as suing the state, county, or city. While the primary remedy for wrongful arrest is based on federal law, which does not require an administrative tort claim be filed first, if there is state law remedy, filing an administrative claim with the state or responsible agency will be a mandatory prerequisite.

Teenagers shouldn't be drinking in the first place, let alone drinking and driving. That's just one of the many ways to make a DUI worse. Another way? Cause an accident, especially a fatal one. That can turn a tragic situation into a felony manslaughter charge, as a 19-year-old woman recently found out.

Here's a look at that case, as well as underage DUI and DUI manslaughter laws.

Law enforcement is always looking for better tools for analyzing criminal evidence in the hopes of achieving more accurate convictions. And, as technology advances, there are more tools at the police's disposal. One of the newest is facial recognition software and facial examination experts.

The new software has already been used to catch, and convict, alleged criminals. But how comprehensive is the technology, and how accurate are its results?

In these modern times where newspapers don’t use paper, the internet and computer technology has opened up a whole new world of potential crimes you may not even be aware are crimes. Even though the internet is still a wild wild west of sorts, there are many laws that allow law enforcement to arrest people for acting out online, and sometimes just for doing what is considered normal online activity.

Below are 5 computer crimes that can get you arrested in order from most likely to get you arrested to least likely.

Since the recent Wall Street bailout of 2008, the public's trust still has not fully recovered in the banking establishment. The recent Wells Fargo scandal has lawmakers and the public demanding justice. However, justice in this case is not just restitution of the ill-gotten bank fees paid by victimized customers; the justice being demanded includes criminal charges against the bank's CEO.

Lawmakers have been pressing for a criminal investigation and for criminal charges against CEO John Stumpf. To date, no charges have been filed, but many people, lawmakers included, want the CEO to be held criminally liable for the actions of his company.

You did the right thing last night -- you didn't drive drunk and you got home (or wherever) safe. But if you're headed back out early the next morning, there's a chance that alcohol in your system hasn't completely worn off. And if you get pulled over, you may be asked to submit to some field sobriety tests or a breathalyzer. You haven't been drinking since last night -- but could you still get charged with a DUI today?

Here's what you need to know.

While the First Amendment provides the freedom to associate, people often wonder about whether gang affiliation is a crime or considered free association. Generally, being a member of a gang is not in and of itself illegal; however, it is likely to lead to illegal activity which is generally punished more harshly if there is a gang affiliation. This is because many states define gangs as groups that include a purpose of committing crimes or illegal acts. However, as history has shown, figuring out who is actually in a gang is not easy.

To fight the gang problem, a majority of states have gang enhancements that can be applied to other criminal charges that will typically make the punishment, if convicted, stricter. Additionally, state and federal law enforcement maintain gang member databases, so that law enforcement can more easily determine if a suspect, arrestee, or detainee is a current or former gang member. While it may be legal to be a member, when a gang injunction has been issued, then being a gang member out in public, or even being misidentified as a gang member in public, can lead to arrest and/or prosecution.

Remember when your parents told you you would get in less trouble if you just told the truth? Or the phrase, "the cover-up is worse than the crime?" There are many instances where lying makes a bad situation worse, and the criminal justice system is no different.

Take theft, for instance -- taking someone else's property without permission. Theft can be charged as a misdemeanor or a felony, depending on how much you stole. What about if you get their permission, but you lie to get it? In most states, that's called obtaining property by false pretense, and almost always a felony. Let's look at some state laws as an example.

Using a stolen credit card is a serious crime that carries serious penalties. Even if the card was not stolen, per se, but rather found on the sidewalk, using the card is still illegal in all 50 states. Unlike using stolen or found cash, using a stolen credit card involves an act of fraud on top of theft, on top of the underlying theft of the card potentially.

Like most criminal statutes, the laws prohibiting using a stolen credit card vary from state to state. Some states have stricter penalties than others. Most states however do differentiate between when using a stolen credit card is a misdemeanor or felony. Sometimes, if the value of the goods or services purchased were below a certain threshold, a prosecutor can opt to charge a lesser crime, such as petty larceny or petty theft, which typically are misdemeanors. However, if the value exceeds the state’s misdemeanor threshold, or there were multiple cards involved, it is likely that felony charges will be brought.

Four states had legalized recreational marijuana use in 2015, another 25 have comprehensive public medical marijuana and cannabis programs, and quite a few cities decided not to prosecute possession of small amounts of pot. So you might expect that with this rise in legalization and decriminalization there would be a corresponding drop in marijuana arrests. Instead, as Human Rights Watch reports, marijuana arrests outpaced those for violent crime in 2015.

So why are pot arrests up, even though it's more legal than ever? And what effects are these arrests having on defendants and the criminal justice system?

Most of us are worried about what can get added to our criminal record. And we're right to think that -- background checks for jobs, applications for schools, and even rental or lease applications can bring our criminal history to light and we don't want past transgressions, like a DUI for instance, messing up our future.

Perhaps this is why most jurisdictions allow people to expunge their criminal records. While an expungement doesn't completely erase your record from law enforcement, it can hide it from potential employers, schools, and landlords. But the rules on expunging your record can vary from state to state, and even county to county; and they may not cover your DUI. Here's some advice from our archives:

Erring on the side of protecting their customers' civil rights, social media giants Facebook and Twitter have recently banned Geofeedia from using their users' data. Geofeedia is a third party surveillance software that sells high-priced services to law enforcement and marketers that tracks social media trends. Until recently, Geofeedia primarily relied on data gathered from Facebook, Instagram, and Twitter, to geo-locate when, where, and who police needed to monitor for whatever reasons requested.

However, it is not just used for limited surveillance of crowds. Law enforcement agencies across the country use Geofeedia to track protesters and social justice activists when no crowds are present. The software works by reviewing public information on social media and analyzing that information to determine who is a threat to public safety and where the threat is located.

At some point in their lives, drivers will see an abandoned car on the side of the highway that looks like it broke down months ago, with a bright red, orange, or yellow sticker covering about a quarter of the windshield. That giant sticker is known as a windshield tag, and if it's on the car, it means that local law enforcement has marked the vehicle to be impounded as an abandoned vehicle.

How an abandoned car is handled will depend on local laws. For example, in Minneapolis, a vehicle can't be left on a street or highway for more than 72 consecutive hours or it will be presumed abandoned. Then, if you don't rescue your vehicle, it may be removed, impounded, and possibly sold at auction.

You'd think certain places would be out-of-bounds, even to criminals. At least, that's what Union County Sheriff Eddie Cathey thought, after the arrest of two thieves accused of breaking into 15 churches across 5 North Carolina counties. "It takes a special kind of criminal to target a church as a place to steal," Cathey told the Charlotte Observer. "A church should be off limits."

But pastors and parishioners can rest easy now that Justin Ray Patterson and Amanda Nicole Hickey are behind bars, and their weeks-long crime spree has come to an end.

Welcome to FindLaw's DUI Law series. If you have been charged with a DUI, know someone who has, or just want to know about the law and how to protect your rights during a DUI stop, please come back each week for more information.

We don't need to remind you that a DUI is bad. DUI with children in the car? About as bad as it gets. Unless, of course, you're breastfeeding a child while driving drunk.

If it sounds impossible, let the tales of two recent DUI arrests convince you, and hopefully persuade you to never get behind the wheel drunk, with or without children, and especially never breastfeed while drinking and driving.

Amid the recent allegations from the White House that the Russian government was involved in the DNC cyber attack, questions have been arising about the legality of international hackers interfering with elections. There are several laws on the books in the United States -- and in most countries -- that make it illegal to interference with an election, whether through cyber attack or otherwise. However, it's not so simple to determine how these laws can be enforced against a person in a different country.

The White House's recent position on the DNC hack has grave implications due to the strained relationship between the US and Russia. While there are numerous international agreements in place that address international espionage and cyber-crime, getting concrete proof that the attack came from Russian officials may not be possible. Additionally, to enforce US laws that address these issues would require extradition of the responsible party to US soil, so they could be tried in a US court.

The CEO of a popular classified ads website, Backpage.com, was arrested on Thursday on felony pimping of a minor, pimping and conspiracy to commit pimping, charges. CEO Carl Ferrer was arrested in Texas based upon the charges that California Attorney General Kamala Harris filed in California. The complaint alleges that Ferrer and Backpage.com have profited from the escort advertisements that get posted on Backpage.com by individual prostitutes, as well as escort services that are engaged in human trafficking.

Currently, Ferrer is being held on a $500,000 bond and will soon be extradited to California to face criminal chrages. Law enforcement is also currently investigating Ferrer and Backpage.com's offices in Texas. At this point, it is unclear whether Ferrer will also faces charges in a Texas court. If should also be noted, the two controlling shareholders of the site, Michael Lacey and James Larkin, currently have warrants issued for their arrest on similar charges.

First Time Misdemeanor Offense

There are a lot of ‘first times’ to look forward to in life, but catching your first misdemeanor charge is not one of them. Being charged with a misdemeanor offense is not something to take lightly. You can go to jail, face serious fines, and endure severe life disruptions that can have an effect on your family, career, friendships, and other obligations.

At the outset, there are a few things you should know. To start, being charged with a misdemeanor does not mean you are guilty. The prosecutor must prove guilt. If you were arrested and/or booked into custody prior to the charges being brought, then you will have an arrest record, but not a criminal record. If you are convicted, or even accept a plea bargain, then you will have a criminal record.

The key to any criminal justice system's legitimacy is a respect for its laws. Citizens tend to abide by laws, statutes, and regulations they believe are just and fair, less so when it comes to ones they disagree with. And while it's easy to say everyone should follow all the laws all the time, that doesn't stop the discussion, or efforts to change contested statutes.

Here are five controversial criminal laws and what you need to know about them, from our archives:

5 Mugshot FAQs

Websites that post arrest mugshots online have been the subject of much laughter, but only at the expense of humiliating arrestees, both innocent and guilty. Additionally, the online posting of mugshots can create personal, social, and career problems for the individuals whose mugshots get posted.

The real problem herein lies in the fact that mugshots are taken after an arrest, but before a conviction. Even if a person is found innocent, arrested on accident, or even framed by the police, their mugshot can live on in infamy. To better understand this issue, here are 5 frequently asked questions about mugshots.

DUI as an Unlicensed Driver

A DUI is bad. A DUI when you've never had a valid driver's license is worse. A DUI leaving the liquor store for the second time that day and getting into a fatal drunk driving accident that kills a 6-year-old girl and injures 3 other children driving someone else's car without permission and without ever having a valid driver's license is as bad as it could possibly be.

A Florida woman is facing 22 criminal charges stemming from a fatal DUI accident last year, and she never should've been behind the wheel.

In an effort to help control the recidivism rates of inmates, states are beginning to adopt the practice of 'flash incarceration.' Flash incarceration is the practice of locking up parole violators for short periods of time for violating the terms of their parole. The periods of time can range from one to ten days, and states like Hawaii, California, and Washington have seen some success with the practice.

While sending a parole violator to jail for a couple nights for returning a positive drug test may sound lenient to some, the fact of the matter is that sometimes a violation will go completely unpunished. Under the flash incarceration practices, every violation is punished with a short term in jail. Also, the punishment is frequently handed out swiftly, without requiring a parole revocation hearing.

If the idea of a sheriff rounding up a bunch of citizens to hunt down criminals sounds antiquated, that's because it is. While perhaps necessary in a wild west lacking established law enforcement institutions, we generally leave the matters of search, arrest, and punishment to the professionals now.

So it may surprise you to learn that there are modern day sheriff's posses, still operating in the much-less-wild west, although you probably won't be surprised to learn who is in charge of "America's largest volunteer posse." That would be the infamous Maricopa County Sheriff Joe Arpaio, whose cold-case posse determined that Barack Obama's birth certificate was fake and whose deputies have been warned repeatedly by courts to stop racially biased policing and ad hoc immigration sweeps.

So how much authority does the Maricopa County Sheriff's Posse, and others like it, really have?

Welcome to FindLaw's DUI Law series. If you have been charged with a DUI, know someone who has, or just want to know about the law and how to protect your rights during a DUI stop, please come back each week for more information.

Hopefully you'll never get that call from jail, with a friend or family member on the other end saying they've been arrested for DUI and asking you for help getting them out. First off, you were probably asleep. Second, bail proceedings can be complicated and expensive.

But you're probably a good person and you're going to help, so here's what you need to know about bailing someone out of jail after a DUI.

In response to the recent sentencing in the Brock Turner case, or lack thereof, the California legislature has passed new laws relating to the crimes of rape and sexual assault. The new laws not only redefine rape and require mandatory minimum sentencing for sexual assault crimes involving an incapacitated victim, they also eliminate the statute of limitations for a prosecutor to bring criminal charges.

Removing the statute of limitations on rape and crimes such as sexual abuse of a minor takes into account the reality that victims are sometimes too traumatized to go through the court process immediately after being victimized. Additionally, oftentimes victims are afraid to come forward initially due to fear of retaliation, victim shaming, societal stigmatization, or for mental health reasons. These issues can take years to work through, and should not be the reason a violent sexual predator is allowed to walk the streets free.