And the DUI mill machine continues...

April 30, 2010, – Pilar Marrero – La Opinion

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La gran discusión nacional en torno a la ley ha enfrentado a quienes argumentan que la cláusula que establece "un contacto legal" entre policía y cualquier persona, que requiere o permite a ese policía revisar el estatus migratorio del individuo, daría paso al uso del perfil racial y quienes afirman que no sería así.

Peter Berlin, abogado defensor en Los Ángeles, indica que técnicamente la ley de Arizona tiene un lenguaje tan vago que ofrece numerosas oportunidades a los policías para pedir papeles una vez que entran en contacto con cualquier persona, por cualquier razón.

"Me temo que donde haya policías con la intención de arrestar a la mayor cantidad de personas posibles, veremos muchas razones de ‘sospecha razonable’ y de ‘contacto legal’.Por ejemplo, alguien que cruza la calle por un lugar prohibido puede ser detenido y que se le pidan sus papeles. Hace años, antes que los tribunales lo detuvieran, había policías que separaban frente a los bares para buscar cualquier falla en las personas que salían o ver si se montaban en vehículos. Lo mismo podría ocurrir aquí", dijo Berlin.

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For the entire article click here.

Similarly, the Arizona bill creates bogus conduct and so called "reasonable suspicion" for police who merely want to check someone’s legal status. This will be based on trivial violations such as loitering or jaywalking as a basis to stop and detain the individuals law enforcement ultimately want.

Q. Should I Make a Statement to the Police?

A. No!!! If you are under investigation or are arrested, do not make any statements to the police. Although you may feel like you can present your side of the story, often anything you say will be used against you. Do not volunteer information or discuss the facts of the case with anyone other than your attorney.

Q. What is a Search Warrant?

A. A search warrant is a court order authorizing the search of a specific place for certain items and to seize them if found. Your Fourth Amendment rights guarantee that a search warrant may only be issued on oath or affirmation that a crime was probably committed. Evidence obtained without the proper search warrant, may be excluded by the court upon motion and hearing filed by a defendant.

Q. What is Bail?

A. Bail refers to a defendants release from jail upon the proper deposit of money or property securing his future appearance in court. Its purpose is to ensure that the defendant appears in court and does not flee from the jurisdiction. The amount of bail required to secure a defendants release depends on the nature of the offense and is governed by various California Penal Code statutes.

Q. What is an Arraignment?

A. This generally refers to a defendant’s first appearance before a judge wherein he is informed of the charges and is afforded the opportunity to enter a plea. The time of the Arraignment often depends on the nature of the charges against a defendant and whether he is in our out of custody. The Arraignment is a crucial step because defendant’s counsel will usually only then be provided with documents, police reports and other evidence of the charges against his client.

Q. What is a Preliminary Hearing?

A. When a felony case is brought against a defendant, he is entitled a hearing with the ability to confront witnesses and conduct cross-examination. The purpose of this hearing is to determine if there is enough evidence to proceed further with the case against the defendant. Although the prosecution’s burden to move beyond the preliminary hearing stage is quite low, the hearing serves an important function by weeding out groundless or unsubstantiated charges against the defendant. Since the preliminary hearing provides the opportunity to determine the facts and evidence, it is important to have counsel effectively question witnesses and ascertain the evidence against his client.

Q. What is a Pre-Trial Conference?

A. At a pre-trail conference your attorney has the opportunity to continue negotiations with the prosecutor in an attempt to reach a favorable disposition. It is at this stage that your attorney may be able to work out the best plea bargain for you.

Q. What is an Expungment?

A. An Expungment refers to the cleansing or removal of one’s criminal record. This often doesn’t have the results the some may think, but may be worthwhile especially for employment purposes. Many but not all misdemeanors and felonies maybe expunged.

Q. What are My Chances?

A. A case depends on many factors which require a thorough and detailed evaluation. Although an experienced and capable attorney can discuss various aspects of a case in detail, often a complete analysis cannot be achieved until the attorney has access to all relevant documents and witnesses. If an attorney guarantees you a certain result or outcome, or fails to conduct a full investigation, seek the assistance of another attorney immediately.

It is anticipated that Dr. Murray will be charged with involuntary manslaughter surrounding the pop stars death and his attorneys have been diligently working on a surrender deal with the L.A. County District Attorneys office. “Surrender” occurs when a defendant (usually through his attorneys) agrees to present himself to police in order to avoid arrest. Such agreements usually occur when there is a “low risk” defendant and typically (but not always) when there is a non-violent offense involved.  These surrender agreements are quite common and serve valuable functions. Among these are:

A. that it saves law enforcement valuable resources in locating and arresting an individual; and

B. providing the defendant to appear at a police station for booking and immediately arranging for bail–so as to avoid the humiliation of arrest and time in jail.

It appears that negotiations between Dr. Murray’s attorneys and the DA’s office broke down because of the DA’s belief that allowing a surrender would appear  as “special treatment.”  However, with no criminal record, no risk of flight, and the relatively minor charges anticipated, Dr. Murray squarely fits into the typical scenario where such surrender is appropriate. To say nothing of the fact that the Dr. has allegedly cooperated throughout the entire investigation.

The DA’s office apparent zeal to parade Dr. Murray in handcuffs rather than to offer a surrender option is perhaps another example of its overreaching and questionable judgment in another high profile case.

Many seem to be puzzled why, after so many years, has the LA County District Attorney’s office bothered with this now?  The answer seems to be pretty clear: Polanski, through his lawyers, red-flagged himself when he petitioned an appeals court to dismiss his case earlier this year. By doing so, even though instances of judicial misconduct were noted, he put himself back on the radar map.

But Polanksi’s dilemma is not so much of whether his conviction can be set-aside or his plea withdrawn. The judicial misconduct at the time appears present and he deserves to have this opportunity.  Rather,  it lies in the fact that he willfully fled and became a fugitive.  Courts’ do not like when their orders are disobeyed and when one fails to appear for proceedings.  So if he is extradited, Mr. Polanski’s problem is not so much whether he can get a new trial, or withdraw his previous plea…but in explaining why he shouldn’t be punished (as most defendants are) for going awol for the better part of 30 years.

More often than not, the public’s first introduction to a particular crime occurs when a celebrity is accused of improper conduct. Hearing of the violation and the maximum penalty for such an offense, the public cries foul if a celebrity is given probation or community service. The perception is: “wow…only a celebrity with money and fame could get off like that!”  For those of us that represent people daily for such violations, however, these supposedly lenient sentences are common and even likely for an average person.

Take Plaxico Burress.  He carries a handgun into a nightclub (inside his waistband and without a holster) and accidentally proceeds to shoot himself in the foot (no pun intended).  His gun is unregistered and his Florida concealed weapons permit has expired (not that it would make much difference).  Sentence: 2 years in prison. If one was an average person with no criminal record, no history of violence and no specific intent to do harm,  do you think they would face a two year prison term? Doubtful…

First, the fact the New York City passed an arcane gun law which provides a mandatory minimum 3 1/2 year prison term for an unregistered firearm is in and of itself absurd. Mind you, these are not otherwise illegal weapons. So the statute makes otherwise law abiding citizens automatic criminals if they forget, are unaware or  fail to register a firearm in New York.

Second, yes Burress did illegally carry a concealed weapon. But when was the last time you heard the Mayor of NYC sound off that the book must be thrown at an average person for such a criminal violation? Well, since a celebrity is involved Michael Bloomberg did just that. Besides, what business is it of the Mayor to advise or comment on criminal prosecutions? He isn’t the District Attorney, nor is he a judge. What he managed to do, however,  is send a message to the DA and the Judge as to what is expected. Hardly proper or fair.

The stupidity of Burress’ conduct is clear. His negligence is even clearer.  However, there is no intent (either alleged or offered) that his conduct was anything but accidental. In California for instance, carrying a concealed firearm is generally a misdemeanor. Someone who has no criminal record would likely receive probation and community service. Given similar facts as with the Burress case, perhaps a jail term….maybe.  But two years of Prison? No way.  Moreover,  what purpose does it serve to have Burress in prison for two years? Wouldn’t say a 6 month Jail sentence and hundreds of hours of community service better fit the crime?

Although it is crucial that our legal system protects the “little guy,” it is just as important to note when there is a severe swing of unfair, politically motivated and biased handling of cases related to any group. Burress is another example of a justice system,  that far to often… is anything but blind.

– have Miranda rights read to you;

– an attorney prior to submitting to the tests;

– refuse a blood or breath test without consequences (a.k.a. offering potentially incriminating evidence against yourself).

And there are others. As much as these rights are a staple of our criminal justice system they do not apply in a DUI arrest.

Pretty bad, you say? Well things get much worse. Some states are now training their police officers in the use of syringes to effectuate forced blood draws to those who refuse to submit to a breath test. Consider the following:

BOISE, Idaho (AP) Sept 13 — When police officer Darryll Dowell is on patrol in the southwestern Idaho city of Nampa, he’ll pull up at a stoplight and usually start casing the vehicle. Nowadays, his eyes will also focus on the driver’s arms, as he tries to search for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’” Dowell said. It’s all part of training he and a select cadre of officers in Idaho and Texas have received in recent months to draw blood from those suspected of drunken or drugged driving. The federal program’s aim is to determine if blood draws by cops can be an effective tool against drunk drivers and aid in their prosecution.

So if the thought of a cop with a flashlight scares you, wait till your approached with a needle.  Cant get much worse you may think? Well then consider this gem of police conduct…how about  forced catheterization for a urine sample:

LAWRENCEBURG, Ind. Sept. 3– An Indiana man has filed a lawsuit claiming that police forcibly withdrew blood and urine from his body during a drunken driving arrest, WLWT-TV reported.

According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunken driving in March.

A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

Lockard and his attorney claim in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine and blood test.

Police said they obtained a warrant, but Lockard’s attorney said his client was shackled to a gurney and had a catheter inserted against his will. (Read the full article here).

Hardly an isolated case …see this

For those who aren’t in the know, Phelps was photographed at party taking a hit of what appears to be a “bong” –allegedly containing marijuana. Phelps didn’t help himself by making statements that can be used against him. But the mere fact that the Richland County (S.C) Sheriff is contemplating filing charges against Phelps raises a host of questions in and of itself.

Now, lets set aside issues of proof. Lets even set aside the issue of resources and the wisdom of investigating Mr. Phelps. Would the same sheriff consider investigating the case if your average citizen walked in with a similar photo of another average Joe.  Not a difficult one to answer…the police would laugh him out of the station.

Whether this type of prosecution is merely a publicity stunt by local law enforcement and prosecutors, or whether they truly believe they are making a statement, it demonstrates that contrary to popular belief, celebrities are sometimes treated unfairly by the legal system compared to your average person.

Not too long ago, Paris Hilton found herself in a similar position. In a case where an average person would have served a few days of jail at best, she served forty days based on nothing more than being a high profile celebrity.  In her case, the judge actually ordered her back to jail after the sherriff released her pursuant to guidelines governing all other inmates. If Phelps is actually charged, it will be another example of such treatment. Something we should consider before saying  how easily celebrities “beat the system” with their fame, money and power.