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November 2016 Archives

Shockingly, a Massachusetts man, Steven Byrnes, was recently arrested twice in the same day for drunk driving. He was initially arrested for drunk driving while trying to pick up his 10-year-old son from school in the afternoon, which happened after arguing with officers who claimed to smell alcohol on him. Clearly, Byrnes made a bad decision. But then, after somehow being released from custody just a few hours later, he was arrested again for drunk driving. Byrnes’s case is proof positive that alcohol affects a person’s judgment.

The thing that makes his second arrest even more astounding is the fact that his 20-year-old son actually called police to warn them that his dad was driving drunk again. Not shockingly, Brynes, who is 52, is no stranger to DUI charges, and he has been convicted on eight prior occasions. Knowing his history, it is somewhat alarming he was not held in custody for a longer period of time.

In Virginia, a class action case is heating up as the Department of Justice has decided to enter the fight. The gist of the case is that in Virginia, if a driver fails to pay court costs or fines, they may have their driver's license suspended without consideration of whether the failure to pay was intentional or a result of poverty. To date, nearly 1 million Virginia drivers have had their licenses suspended as a result of unpaid court costs and fines. The lawsuit alleges that the law unfairly punishes the poor.

Although suspending someone's driving privileges seems to be a rather minor punishment in the grand scheme of things, it can actually have disastrous effects. Ironically, the law makes it more difficult to get to work to pay the fines that resulted in the license suspension in the first place. As the DOJ explains, this sort of punishment can create an inescapable cycle of poverty.

Dylann Roof, against the advice of the judge in his own hate crime murder case, has elected to represent himself. The motion surprised many on Monday morning as jury selection was set to begin. The experienced attorneys that were representing Roof on the multiple hate crime murder charges are now required to serve in an advisory/standby capacity.

While the statistics are grim for defendants that represent themselves, most that choose to do so are exploiting the process either to have a forum to justify their crime or expound on some other delusional agenda. Critics are concerned that Roof will use the opportunity to harass his victims' families and survivors. While the judge cautioned Roof about representing himself, he had previously determined that Roof was competent to stand trial, over his attorneys' objections.

Everybody enjoys a good party. However, what some people consider a good party is what police consider arresting fish in a barrel. While there are some legal drugs, such as alcohol, prescription medications, vitamins and supplements, and, of course, marijuana in some states, there are countless illegal drugs that can get you arrested if you are caught using or possessing them at a party. It is important to note that the legal drugs can also get you arrested if you are overly intoxicated in public, selling/distributing them, if they look like real drugs, or while driving home.

There's no specific list of drugs that are considered party drugs. "Party drug" is a term that generally refers to any drug that has an effect that a partygoer would consider good for a party, such as extra energy, increased/altered sensory perception, and/or mood/mind altering effects. The term became popularized in the mainstream when illegal raves started gaining widespread popularity. Sometimes party drugs are as simple as vitamins or herbal supplements, however, frequently the term is used to refer to illegal or more powerful substances.

Getting convicted for a DUI can be career ending. The key term here, however, is convicted, because as most of us learned in grade school, a person charged with a crime is innocent until proven guilty. But, even a DUI arrest can have a negative impact on your job.

Generally, nearly all employment in the US is "at-will" employment. This means that an employer can fire an employee for pretty much any non-discriminatory, or non-retaliatory, reason. While it may seem unfair, generally, private employers will be able to fire an employee even for just being arrested. If your arrest receives publicity, such as being listed in a local newspaper's blotter, your employer may not be too pleased with that, especially if you have a public facing role in your company.

As virtual reality technology advances, like with every new technology, the law frequently needs time to play catch-up. We have already seen the law extend to cover credible criminal threats made online. However, when it comes to virtual reality (VR), lawmakers may be teetering upon an uncertain slippery slope. 

Recently, a virtual reality user reported having her VR character (avatar) repeatedly molested by another VR user inside the same VR world. Despite the lack of actual physical contact, the violated user explained that she felt many of the same emotions as she did when she was groped in real life, and to make matters worse, there was nothing she could do to stop the virtual attack, short of signing off from the game. In response to the VR sexual assault, the game-makers created a user command that allows a user to create a personal bubble that removes all other live players nearby.

If you've ever gotten a DUI, or known someone who has, you may have heard about ignition interlock devices (IIDs) -- they're like breathalyzers for your car, forcing drivers to blow into them in order to start the engine. Normally reserved for repeat drunk drivers, more and more states are requiring ignition interlocks for first-time DUIs.

And with more IIDs on the market, scientists and engineers are working on more efficient models. Researchers at the University of California San Diego have now developed a wearable sensor that can monitor a person's blood alcohol level and communicate that information remotely to a laptop, smartphone, or even an IID, taking the breath out of the car breathalyzer.

Your home is your castle. Only most houses don't come complete with a moat, drawbridge, and turrets. So it makes it easier for other people, including the police, to enter your home. Whether by force, by warrant, or by permission, police may ask to or just try to enter your house, and there are better and worse ways to handle it.

Here's what you need to know if police raid your home.

With the number of states that have passed recreational marijuana laws, the need to detect stoned drivers has increased. Technology companies have come to the rescue, creating devices to detect whether an individual has recently smoked or ingested marijuana. While the devices are still undergoing testing, one researcher, who happens to be a volunteer officer, has begun field testing.

Like the alcohol breathalyzers that are commonplace, the marijuana breathalyzer detects the active ingredient, THC, in an individual’s breath. Based on the reading provided, an officer will be able to tell if a person has recently ingested or smoked marijuana. However, unlike alcohol, where there have been countless studies regarding the point of impairment, the research in regards to marijuana is lacking.

7 Most Common DUI Penalties

There were over 1 million arrests for driving under the influence in 2015. And while that number might have dipped a tad from 2014, the potential penalties drunk drivers face has been steadily increasing.

Here's a look at the most common DUI punishments, and when and why they may apply to your DUI case.

Perfectly reasonable laws can sometimes lead to some wacky lawsuits. Usually, it's due to some lawyer with a novel theory on how to apply the law. Recently, a Pennsylvania judge dismissed one such wacky lawsuit against the Sands Casino.

Basically, a Pennsylvania man sued the casino claiming that he suffered damages because he was convicted of battering his fiance there. He claimed that the casino was at fault for serving him too much alcohol. Fortunately, the judge in the case wasn't having any of that nonsense.

It hasn't been a great couple years for crime labs and their technicians. Last year, Harris County Texas overturned 42 drug possession convictions after initial lab tests were revealed to be false positives. At the same time, lab techs in the Massachusetts state drug analysis unit were convicted of falsifying results and stealing from the lab, affecting some 40,000 criminal cases. Even the FBI was forced to admit that forensic testimony in at least 250 cases was faulty.

And just yesterday, a Baltimore crime scene technician and her boyfriend were arrested in a raid that netted guns, drugs, and more than $100,000 in cash. Now the department is reviewing all of the criminal cases on which she was the technician.

On Election Day, residents of four more states elected to legalize recreational marijuana. Three other states approved medical marijuana. That leaves the country with a hodgepodge of pot laws, and leaves many wondering how travel between weed-friendly states and not-so-weed-friendly states will be regulated. (Keep in mind that marijuana remains an illegal drug under federal law.)

So what do you need to know about driving with marijuana across state lines? Here's a primer:

In July of this year, a Minnesota police officer shot and killed Philando Castile, despite Mr. Castile presenting no threat to the safety of the officer. Although Mr. Castile did have a gun, the weapon was permitted, and Mr. Castile advised the officer of the weapon. Tragically, his last words were about how he was not reaching for his gun, but rather for the documents the officer was requesting.

The Ramsey County Attorney's Office announced this week that the officer would indeed be facing a second degree manslaughter charge, as well as two additional felony charges for dangerous discharge of a firearm. The prosecutor is quoted, saying that "In order to achieve justice, we must be willing to do the right thing, no matter how hard it will seem." At the time of the shooting, Mr. Castile had his girlfriend and her young daughter in the car with him. Thankfully, neither child nor mother were physically injured.

Pretty much everyone knows by now that you can't threaten to kill the president. It would also seem that pretty much everyone thinks they're anonymous on Twitter, or that Twitter isn't real life. How else to explain the dozens of assassination threats that popped up on Twitter following Donald Trump's victory?

Either they think that Twitter threats don't count, which is wrong, or that the Secret Service and FBI have better things to do, which is also wrong.

Being attacked is an awful, frightening, and confusing experience. If you are under a barrage of blows, then of course the law will protect you if you fight back to end it, right? Do you know how far can you go to end it? Can you use a weapon? Can you knock the person out? Can you use deadly force? Can you detain the person until authorities arrive?

In nearly every circumstance, you can stop an attacker by using the same amount or type of force they are using against you. In some states, the bar for when deadly force can be used is lower than in other states. Generally, the main consideration after proportionality is whether you live in a stand your ground state, or duty to retreat state.

Penalty for Gun Store Robbery

The criminal charge of robbery is actually something different than what most people expect. In most states, in order to be charged with robbery, there must a victim present at the scene of the crime, as opposed to a burglary charge, which does not require that a victim be physically present at the scene of the crime.

As you can see in the this news story about a gun story burglary, the crime is being called a robbery. Burglary, in most jurisdictions, is a felony because it involves not just a theft, but also, unlawful entry onto another’s property. So in the above gun store burglary, it is likely the defendants would face felony charges if caught.

This past August, a federal judge ordered the release of Brendan Dassey, who is best known as the subject of the 2015 documentary ‘Making a Murderer’ for his alleged role in the rape and murder of a 25 year old woman in 2005. The overturned conviction was big news back in August of this year, but now, after a few weeks of fighting over whether he should remain in custody pending a retrial, Dassey is actually set to be released.

The documentary exposed the plight of Brendan Dassey, who was 16 years old at the time of his arrest. Dassey was shown being coerced into confessing, as well as being abandoned and railroaded by his court appointed attorney. Ultimately he was sentenced on nothing but the coerced confession. While some may still be nervous about his release, there are still many conditions that he will need to satisfy, and he will be registered as a sex offender.

There are a lot of steps to gaining U.S. citizenship, meaning that there are also plenty of opportunities to trip up. Citizenship and immigration officials can be selective, and applicants don't want to give them any reason to reject their application.

But is a simple drunk driving charge enough reason to deny citizenship? Here's how a DUI could impact your naturalization process.

Is Identity Theft a Felony?

Like many other crimes, identity theft is a wobbler. Depending on the state and the severity of the crime, identity theft can be charged as either a misdemeanor or a felony. Sometimes, it's not even called identity theft, but rather impersonation, or fraud. Generally, an identity thief will gain access to a person's bank or credit card information, or enough personal information to open a new credit card, and use the credit to make purchases or cash withdrawals or cash transfers.

Typically, when an identity thief uses their illicitly gained information to steal money, or make purchases, in the absence of specific identity theft laws, the crime will usually be treated like any other theft. Theft crimes tend to wobble between misdemeanor and felony charges depending on the circumstances and value of the stolen or illegally purchased items. Additionally, restitution is usually part of the punishment, regardless of whether it is charged as a felony or misdemeanor.

While many heads across the country are still spinning after Tuesday’s results, voters in four states will be able to slow their roll with some legal marijuana. California, Nevada, Massachusetts, and Maine all legalized marijuana for recreational use by adults, but there are some limits to be aware of. For example, it will still be illegal for minors to use recreational marijuana and it will be illegal to drive with under the influence. And the penalties violating these rules won’t just be a slap on the wrist, either.

As any Jay-Z fan will tell you, having a good idea about your legal rights when pulled over by law enforcement can get you out of some sticky situations. And, like Jay, you don't need to have passed the bar to know a little bit about illegal car searches.

But not every word of 99 Problems should be taken as legal advice, so here are five of the most important questions when it comes to vehicle searches and how to legally assert your rights.

So you decided to throw some eggs during Halloween and now you’re facing vandalism charges. Unfortunately, despite your desire to express your opinion through the hurling of eggs, there’s no freedom of egg-spression in this country. Throwing an egg can actually land you with a vandalism charge and leave you asking: how do I defend myself against a vandalism charge?

The bad news is that there really isn’t much you can do if you were caught in the act, or if there is surveillance footage clearly implicating you. Unless you have an attorney telling you the evidence against you is not strong enough, there’s a good chance your best way out of trouble is via a plea bargain to a lesser charge or a civil compromise. The way vandalism is charged varies from state to state, and may even vary depending on the value of the property defaced or destroyed, as well as the cost to clean or repair the property.

It's pretty common for someone convicted of a DUI to attend some kind of DUI class, where instructors and attendees discuss the reasons for and consequences of drinking and driving. The hope is that those attending a DUI course will learn and implement strategies to avoid future drunk driving incidents.

However, the National Highway Traffic Safety Administration estimates that a third of all DUI arrests every year are repeat offenders. Which begs the question: If so many DUI offenders are taking drunk driving courses, why are they drinking and driving again?

The San Francisco Chronicle reported that a local surgeon, Christopher Owens, was arrested last week on suspicion of 99 felony crimes related to prescription opioids. Owens was jailed, but later released and the San Francisco's District Attorney announced on Monday they won't be filing criminal charges yet.

So what put Owens behind bars in the first place, and why is he out?

Is Arson Always a Felony?

One of the hottest areas of criminal law, literally, is arson. Arson is defined as willfully, wrongfully, and unjustifiably setting property on fire, often for the purpose of committing fraud. However, like a fire, in most states, arson is measured in degrees, meaning that not all acts of arson are punished equally.

Generally, if a person is injured, or the value of the property destroyed exceeds a few hundred dollars, arson will be charged as a felony. However, because of the deadly potential of fire, if a person dies, a defendant could be facing felony murder charges on top of felony arson charges.

Can I Hack My Own Phone?

For the next two years, it is completely legal to hack the devices you own. While there are some restrictions, the revisions to the DMCA that took effect last month effectively mean that you cannot be prosecuted for reverse engineering a device you own. The law is temporary and will expire in two years, unless law makers act to make it permanent or extend the time period.

While the word "hacker" invokes thoughts of malicious cyber-attacks and identity theft, this isn't always the case. Hackers frequently try to make consumer products better for everybody. Hackers are also notorious for discovering security flaws in consumer goods, including medical devices and even cars.

DUI While on Probation

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.

There's no good time to get a DUI. But there may not be a worse time to get one than when you're on probation. If you were lucky enough to avoid jail for a prior offense, being charged or convicted for drunk driving could mean time behind bars.

Here's a look at the possible penalties if you get a DUI while on probation.

While parents are regularly and explicitly warned about the dangers of shaken baby syndrome, it is an unfortunate everyday occurrence. According to the New York Department of Health, there are an estimated 1,000 to 3,000 infants shaken every year. One in four shaken infants will die, and 80% of those that don’t die suffer permanent injury.

What makes shaken baby syndrome so tragic is that parents may not mean to harm their infants, but due to their fragile constitution, even a brief shaking can cause irreversible injury and even death. While parents who have had to deal with this diagnosis are usually devastated, the diagnosis usually requires doctors to contact law enforcement, and for law enforcement to investigate if there was criminal wrongdoing.

The majority of gun owners say they bought a gun for protection (despite evidence that gun owners are more likely to shoot another member of the household in the home than an armed intruder). And most of the people that buy guns for self-defense would rather never use them. But we don't live in a perfect world, and there are times when it becomes necessary to sue a gun to protect yourself, another person, or your property.

The laws that govern whether using potentially deadly force is legitimate can vary greatly from state-to-state, but here are a few common considerations on when it's legal to use a gun in self-defense.

For decades, illicit drug makers have been attempting to skirt drug laws by altering the chemical composition of illegal drugs in order to change the chemicals that make the drugs illegal. While the new compounds usually do not remain legal for very long after their discovery, the makers just alter the chemical until it is legal again. Over the past few years, two synthetic drugs, spice and bath salts, have wreaked havoc on their users.

Illicit drugs are generally categorized as synthetic, derivative, or natural. Marijuana, in its plant form, is a natural drug; cocaine, as it is synthesized from a plant is a derivative; and drugs like bath salts, are typically completely synthetic, having been made from mixing synthetic chemical compounds. While synthesized drugs like cocaine, LSD, and ecstasy, are known to be illegal, synthetic drugs, even the unknown and “legal” ones, can still get you arrested.

You've wanted to drive fast since you were a kid. And all those Fast and Furious movies didn't do much to assuage your lead foot. The only problem is all these nitpicky speed limit laws and all those pesky police officers happy to enforce them.

If you've gotten pulled over pushing your car to the limit, you may have some questions. Lucky for you, we've got all your speeding ticket answers.

While having your identification on you in public is generally advisable, there is no law that requires people to carry identification with them when out in public. As such, you cannot be arrested simply for not having your ID on your person. However, there are situations that can lead to arrest if you fail to identify yourself.

Although carrying a government issued ID at all times is not required by law, certain activities do require showing a government issued ID. For instance, purchasing alcohol, tobacco, lottery tickets, tattoos, or other age restricted items, frequently requires showing a government issued ID to a store clerk, however, failure to show ID will only result in being unable to purchase those item or services, and not in an arrest.

Believe it or not, you don’t have to be driving a car to get a DUI. In most, if not all states, driving an ATV, or other off road vehicle, on any road while intoxicated, can get you a DUI charge. In fact, depending on state laws, you don’t even need to be on a road to get a DUI. For example, in California, state law for DUI allows officers to arrest people on private property.

Some states, like Washington, have separate charges that are filed when a DUI occurs while off-roading. The Washington statute distinguishes between a DUI on private property while off-roading, and a DUI on a public roadway, with the former having much less severe penalties.

You might've thought enabling Touch ID on your iPhone made it more secure. After all, it's harder to fake your fingerprint than to guess a passcode. But when it comes to the law enforcement searches, your smartphone might've gotten a lot more vulnerable.

According to Forbes, federal law enforcement officers recently served a warrant on a California home which gave them "authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant."

Essentially, cops could force everyone in the residence to open their phones. Is this really legal?

When a person fights a speeding ticket, the same basic principle of criminal defense apply: the prosecution must prove the case with evidence. Therefore, it makes sense that the best way to win a speeding ticket case is to knock out the evidence the ticket is based on.

Since most tickets are based on evidence gathered by radar or laser speed detection devices, the following will focus on the main challenges to these two types of evidence.