Now Tiger Woods may have his share of family and PR headaches to deal with in the coming weeks, but one thing that he wont have is much of  a legal headache.

As had been reported, Tiger will not face criminal charges stemming from the accident and disturbance at his home. The reason? He kept his mouth shut, plain and simple. Woods refused to speak to police about the incident (as is his right to do) and in the process eliminated the possibility of making any incriminating statements.  No one knows what exactly happened, but the story given doesn’t quite add up. However, this is not the point. If the police want to take a statement or conduct an interview in such a situation there is usually one reason: “they don’t have enough evidence to charge a crime and/or they want to extract a confession.”  Given this, nothing that Mr. Woods  said would have helped him, only hurt.

The inclination to make any statement to police or officials is often misguided. I see this not only with clients that come to me but also in high profile cases (Martha Stewart, Scooter Libby to name a few) where individuals are already represented by counsel.

In this instance, Mr. Woods likely received some good and prompt advice… and he made the right choice.

I have posted ad nauseum about the often incorrect perception that celebrities “get off” easy when accused of criminal wrongdoing. It is rather funny to be an advocate for a group that is quite capable of taking care of their own interests. However, more and more we are seeing a blatant double standard applied to celebrity wrong doing then that of the average citizen.  The bottom line is that the law should be blind to issues of race, gender, religion, status, and yes…celebrity.

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.

State legislature’s and law enforcements zeal to stop as many suspected drivers for DUI has resulted in a gradual erosion of basic constitutional rights and protections.  Many client’s come to me surprised to hear that certain rights they always heard about do not apply in DUI cases. For example, when you are arrested on suspicion of DUI, handcuffed in the police car and on your away to the station for a breath or blood test you are not entitled to:

– 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

In California, other than providing your ID and vehicle registration you are not obligated to make any statements to the police if stopped. You are not required to answer where you were going or what you were doing. You are also not obligated to take any field sobriety tests (e.g. walk the straight line); nor are you required to take the Preliminary Alcohol Screening test “PAS” if you are over the age of 21 (a small breathalyzer machine administered at the scene of the stop). You are, however, statutorily obligated to take the actual blood or breath test at a regulated facility (usually a police station) if you are detained on suspicion of DUI.

With the nasty wildfire spreading throughout the Los Angeles area, the search into its origin has now turned into homicide investigation.

California has a relatively complex set of laws relating to arson, with serious penalties that depend on many factors. Among them are:

* whether the crime was against property or a person;

* whether a structure was inhabited;

* whether great bodily harm resulted;

* whether the perpetrator willfully and maliciously set the fire;

* extent of the damage caused.

As the article above states, fire destroys evidence but also preserves it. Arson investigators can often pinpoint the origin of such a blaze and determine its cause.

Someone who intentionally sets such a forest fire will at the very least face a charge of Aggravated Arson (willfully setting a fire of any residence, structure or forest likely to cause injury or causing damage in excess of a specified amount Cal. Penal Code § 451.5(a)). In and of itself, this charge carries a prison term of 10 years to life. Now that there has been loss of life, however, even greater charges and penalties are assured.

I have posted several times on domestic violence (“DV”) and the Chris Brown/Rihanna saga. Now that Mr. Brown has been sentenced, a few thoughts are warranted.

I commented before that this matter may be resolved rather quickly or can take on a circus like atmosphere. Clearly, Mr. Brown and his legal team believed that contesting the charges was an up-hill battle or otherwise problematic. Brown was sentenced to 5 years formal probation, 180 days Cal. Trans (i.e. labor intensive community service), a one year domestic violence program, a stay away order from Rihanna (despite Rihanna’s request that such a stay away order not be in effect), as well as other conditions. While avoiding jail may sound like a great deal, such plea deal’s are common and defendants often avoid jail time when they have limited or no criminal history. The severity of the victims injuries is a key factor, to be sure. However, even though Rihanna’s injuries appear quite significant, they also are consistent with many similar (yet much less profile) DV cases.

The point is not to minimize the severity of this incident, or to portray Mr. Brown as the victim. But contrary to popular belief, celebrities often receive harsher treatment and sentences than the “average joe.” Although certain things (such as the DV program) are mandatory under California Law, it is quite conceivable that the “average joe” would have received less community service time, perhaps less probation and likely no “stay away” order where the victim herself is against it.

Mr. Brown’s sentence will not be easy. The media glare will be bright and many will look for any conduct justifying a violation of his probation. There are allegations already that Brown violated the terms of his probation by patronizing a night club in Los Angeles where alcohol is served. If Brown is charged with violating his probation, it may be revoked altogether. If that occurs, he can expect no leniency from the judge and will likely serve his sentence in prison. One must only recall the sentence and surrounding circumstances wherein Paris Hilton served in excess of 40 days in jail for a minor misdemeanor probation violation. The average person would likely have served only a few days, if any at all.

So justice in our system can be relative. But one must also remember that those with certain privilege and notoriety don’t always get a just sentence or fair treatment…despite the fact that they are often no less deserving of it.<-->

Recently, I wrote about domestic violence in California – the myths, the consequences and the realities.

A new incident allegedly has Chris Brown beating superstar girlfriend Rihanna while they were on the way to the Grammys last weekend.  Interestingly, the case touches on some of the aspects I discussed last month. There is the celebrity factor–allegedly severe injuries–and although it is reported that Rihanna is cooperating with police, it remains to be seen whether she and Brown reconcile, likely leading her to recant altogether.

The case can progress in a few ways. Either a quick plea bargain is reached as a result of many factors, including overwhelming evidence. Or, there can be a circus like atmosphere and/or a lack of evidence that leads to a vigorous defense and the prosecution overplaying its hand.

It was reported that there was a witness to the incident.  Moreover, Rihanna allegedly suffered severe injuries for which a felony charge may be warranted. On the other hand, the DA’s office is requesting further investigation by the police before filing charges against Brown (something that is not uncommon in high profile cases, but may mean the evidence against him is weak).

As it stands now, Mr. Brown may have an uphill battle ahead of him. There is not much sympathy for domestic violence in Los Angeles, regardless of the troubled childhood Brown allegedly had. Coupled with his celebrity status, rightly or not, he will likely be made an example of. But high profile cases such as these often do not yield typical results. One would hope the legal system is not judged by these type of cases alone–often it seems that it is.

An Austin American Statesman article recently addressed the issue of blood alcohol test refusal. According to the article, in Texas, politicians, prosecutors and judges refused blood alcohol tests 100% of the time when stopped for suspicion of DUI. The average Texan refused to take a test only 50% of the time.

As in Texas, California has its own implied consent law governing the issuance of licenses within the state. A California Licensee agrees to submit to a blood alcohol test as a condition of being issued the license. If he or she refuses, their license is suspended automatically for year–even if the DUI case is dropped or dismissed. In California, certain procedures by the police must be followed before a “refusal” is legitimate.  With competent representation, a license suspension for refusal can often be challenged. However, if the driver refused and the proper procedures were followed, it is likely that they will lose their license for a year–a significant burden in cities like Los Angeles where people are married to their automobiles.

Of course such a license suspension should be weighed against the consequences of taking a blood alcohol test, especially in light of inaccuracies and issues with breathalyzer machines discussed here.  Without such a test, the prosecution usually has no physical evidence of impairment, and is required to rely on the testimony of the officer–significantly weakening the prosecution’s case and raising the issue of reasonable doubt.

The Statesman’s article demonstrates that politicians, prosecutors and judges are aware of DUI laws and procedures, and are therefore able to make informed decisions tailored to their individual circumstances. By contrast, the average citizen is usually unaware that they have two problems to deal with: 1. the criminal case; and 2. the DMV administrative action against their driver’s license; to say nothing of the complex web of other laws and procedures that are inherit in a DUI charge.

Perhaps articles like the ones above will inform and educate the public of their rights and options, so the privileged few are not the only ones “in the know.”