From Zero to DUI A Lot Faster

CNN reports that the National Transportation Safety Board wants the states to lower the legal blood-alcohol limit for a DUI from 0.08 to 0.05. A decade ago, it was lowered from 0.10 to 0.08, a de facto mandate from the US Congress tied to transportation funding.

Based on the NTSB’s track record of having recommendations adopted by Congress, we should expect this to be a mandated change in the next transportation budget.

This proposal raises a number of issues for attorneys. In particular, the Standardized Field Sobriety Tests (SFSTs) used by almost all law enforcement agencies in the country are going to need to be revised or discontinued. SFSTs ostenstensibly allow a trained administrator (the officer) to determine whether someone is under the influence of alcohol at or in excess of 0.08% BAC. Based on current caselaw and jurisprudence, SFSTs may not be reliable for DUIs occurring at the 0.05% to 0.079% levels. While there is little doubt that the courts will stretch as best they can to accomodate whatever changes law enforcement agencies decide to put in place to address this shortcoming of the SFSTs, the science is firmly on the side of the defense in this.

The NTSB wants other changes as well, including immediate, automatic seizure of driver licenses from anyone stopped and suspected of committing a DUI and expensive (to the tune of $1500) ignition interlock systems for first-time DUI offenders.

About Those First-Time Offenders

In my years as an Assistant Public Defender, the bulk of my caseload was university students charged with DUI as first-time offenders. In Pennsylvania, each county’s District Attorney has the option of allowing certain offenses, including first-offense DUIs, to go through an Accelerated Rehabilitative Disposition (ARD) program. This results in the dismissal of the charges and the removal of the arrest from the client’s record. To get to that point, participants are required to complete an alcohol safety and driving class, alcohol counseling, suffer a brief suspension of driving privileges, and occasionally some other classes as assigned. For the most part, these individuals never reoffended.

The NTSB’s proposals would unduly punish these people who made youthful mistakes and for whom the present system is not broken.

Zero Tolerance Doesn’t Work

No one disputes that drunk driving is a scourge on society, but we have to be careful when we start streamlining our justice system. “Innocent until proven guilty” must not become just another throwaway line. If the evidence exists to convict someone of a crime, and the government has followed the rules in procuring, preserving, and presenting that evidence, then offenders should be convicted and face the consequences. But we must be wary of plans that assume guilt and treat anyone suspected of a crime as automatically guilty. If we follow to NTSB and groups like Mothers Against Drunk Driving (MADD) in these questions, we will end up somewhere very dark indeed.

More on what’s wrong with MADD later…

Serious Defense for Serious Charges

If you have been charged with a DUI, you need an attorney who understands these issues inside and out and can pick apart a case on the science and on the merits. Attorney Justin P. Miller has handled hundreds of DUI cases. Call him today for a free consultation. 814.359.7529.

 

Those AP Phone Records

I’m trying to be shocked by the story that the Department of Justice obtained several months worth of phone records from several Associated Press offices, including five reporters and an editor.

First, what we don’t know:

  • What was being investigated?
  • Did the investigators properly obtain a warrant for these records?
  • If so, was it as narrowly tailored as possible to fulfill the needs of the investigation?

We have some answers already. Those five AP reporters and one editor all contributed to a story last May about a foiled terror plot out of Yemen. The Obama Administration has made no secret about its animus toward leaks.

We do not yet know if a warrant was obtained or, more to the point, what was hoped to be obtained in that search. More importantly, we don’t know if any warrant was narrowly tailored to what was being investigated.

Once we have answers to those questions, we will know if this investigation was legal. The political implications, however, will be far more extensive and potentially insidious.

High-conflict custody cases losing Parenting Coordinator option

Pennsylvania’s experiment with Parenting Coordination for high-conflict custody disputes is over. The PA Supreme Court has declared all Parenting Coordination orders and programs vacated, effective May 23, 2013. Pennsylvania Rule of Civil Procedure 1915.11-1 was adopted April 23, 2013, effective May 23, 2013. The language of the new rule is as follows:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective. Local rules and administrative orders authorizing the appointment of parenting coordinators also shall be deemed vacated on the date this rule becomes effective.

Everyone sort of knew this was coming after the Superior Court’s opinion in A. H. v. C.M., 2012 PA Super 277 (pdf), in which the Court made it clear that there is a right to a de novo hearing on any decision made by a Parenting Coordinator. The issue in A.H. v. C.M. was whether a party has a due process right to de novo review (like new; a judge looks at the question without consideration of what happened before) and what that review should involve. In this case, Mother appealed the Trial Court’s decision to affirme the Parenting Coordinator’s decision without conducting a hearing. The Superior Court found this to be inappropriate.

Parenting Coordinators are a relatively recent creation, intended to help the parents in a high-conflict custody case reach decisions on issues that don’t necessarily warrant involving attorneys and the court. Always an uncomfortable cross between judges and mediators, they were a tool available when a court felt overwhelmed by the parties in the case and, rather than award full custody to one parent and cut the other parent out completely, the case would be referred to a Parenting Coordinator. The goal was lofty: get the parents talking, save them money, and (hopefully) resolve disputes without the involvement of the court.

If you are a parent who was successfully working with a Parenting Coordinator, this may come as a blow. You probably have lots of questions. Do you need to go back to court? What happens to orders already put in place? You should talk to a child custody attorney as soon as possible to understand where this leaves you. Attorney Justin P. Miller in Bellefonte understands the issues facing parents in high-conflict custody disputes.

Michigan Judge holds self in contempt

Judge Raymond Voet in Ionia County, Michigan, has a simple courtroom rule: any device that goes off in court earns the owner a contempt citation. Rules like this cut down on disruptions and engender a reverence for the courts that is often lacking. Judge Vote takes his rule so seriously that he applied it to himself yesterday when his phone went off.

In the same vein, a former county judge around here was known to send a defendant home to change if he showed up in shorts and a t-shirt, and once infamously asking the chagrined individual, “Are you going to a volleyball game?”

Moving up the start date

I’m opening my doors on March 4th!

My original plan was to open the Law Office of Justin P. Miller on April 2, 2013. I could have opened on April 1 — after all, it worked out pretty well for Steve Jobs and Steve Wozniak — but I didn’t want anyone to think I wasn’t serious about this.

Running my own firm, being my own boss, and selecting my own clients have all been goals of mine since I left law school. I’ve been fortunate to have worked as a Law Clerk and as an Assistant Public Defender. Both of these positions were privileges I was humbled to have experienced. Moving forward, I hope I can bring the same sense of justice that I experienced every day in those jobs to my private practice.

Quis custodiet ipsos custodes?

A series of recent events have coincided to bring to the surface the contradictions of our modern Surveillance State. In this post-Patriot Act age of widespread surveillence, when the State argues it should even be able to attach a GPS tracker to a vehicle without a warrant, there is one area that law enforcement still holds sacrosanct: citizen surveilence of the cops’ own actions.

David Sirota lays the issue bare in an article on Salon.com today:

From warrantless wiretapping to data mining to the proliferation of red-light cameras, the Surveillance State is clearly on the march. And yet, when citizens occasionally exercise their constitutional rights and turn the camera on the Surveillance State itself, they increasingly face the threat of police retribution.

This issue is not going away. As the cost of “lifelogging” goes down and the number of people with camera-enabled cellphones goes up, police are going to find themselves surveiled to such a degree that they cannot escape the all-seeing eye of the public. Looking at my desk, between my iPhone, iPad and laptop, I have the functional equivalent of a mobile video production studio. I imagine many of my readers are similarly equipped.

Fortunately, there is an easy solution to these incidents: clean up our police force. I’ve long been a proponent of sunshine laws: open records, open meetings, and open debate. If you are doing the Public’s business, what you do should be open to the public. Here are some more ideas: Better screening of police candidates for personality traits that lead to violence and abuse. More and better civilian oversight, with the teeth needed to get bad cops off the street and out from behind the badge. And police unions that understand their coddling of offenders in their ranks will not be tolerated.

As a defense attorney, I worry every day that I’ll upset the wrong cop in court and find myself with a speeding ticket – or worse – on the way home from work. That I harbor these concerns in our little community speaks volumes for how far things have degraded. It is not too late to turn things around, but we have to start soon.

Dragged kicking and screaming into the Century of the Fruitbat

Another state joins the civilized world.

Are you mad for what they did to you?

Raymond Daniel Towler spent nearly 29 years in prison for a crime he didn’t commit. Writing in Esquire, Mike Sager shares Ray’s story of hardship, hope, and vindication. It is a heartrending portrait of what happens when we get it wrong and an innocent man goes to prison.

He carries himself upright. He doesn’t complain and moan. He doesn’t gossip. He does his own time. He maintains his maintain. Never for one minute does he ever let himself think he is destined to spend the rest of his life behind bars — he knows he might, but he never thinks he will … so he doesn’t live like that, like an animal in a cage. He tries to live like he’s at home. He tries to respect himself and others. He acts in a way that makes others respect him. His Zenlike demeanor, a calm he’s possessed since childhood — when he used to sit for hours and draw on the data-entry cards his moms brought home for that purpose — fits well to his circumstances.

Ray Towler should never have gone to prison. We can only hope the millions of dollars the state of Ohio will have to pay him can serve as a token of the apology society owes him. Because no amount of money can make up for 29 years in prison.

Union Busting and the Constitution

Salon.com: The real threat to union-busting: The constitution.

The Democratic state senators who are hiding out across state lines in Illinois are a major problem for Wisconsin Gov. Scott Walker and his effort to push a bill stripping public employees of their collective bargaining rights through the state Legislature. So is Wisconsin’s state constitution, which severely limits Walker’s ability to break the Democrats’ resistance. Any action he might take, it seems, could form the basis for a successful challenge before the state Supreme Court.

It looks as though even if Gov. Walker were to “win,” and somehow get the questionably-named “Budget Repair Bill” passed, nothing would happen for months — if at all — while the Wisconsin Supreme Court sorts through the legality of this mess.

You don’t mess with the Money

When creating your particular whiz-bang, social-network, made-of-awesome, Web-n+1 site, you don’t mess with the Money. As Brian McCarthy learned, it has an entire government to send after you:

When the US government decides to take down a website offering access to free TV streams over the Internet, it doesn’t mess around. Newly unsealed court documents show that Brian McCarthy, the 32-year old alleged operator of Channelsurfing.net, got the complete treatment—investigators dug into his domain name registrar, his ISP, his Gmail account, his ad brokers, and the Texas driver’s license database. They even sent a surveillance team to the Deer Park, Texas home where McCarthy lived with his parents.