Law Blog

Other than drug possession, there might not be a bigger criminal defense field than drunk driving attorneys. In the past year alone thousands of clients have come to LegalMatch.com seeking an attorney to represent them in a drunk driving case.

Most people have heard of a .08 blood alcohol content (BAC) limit, and will somehow assume this has something to do with driving drunk. In reality the law varies by state to state. (How many times have you heard that?) Some states have higher legal limits than others, or laws that do not require a blood alcohol measurement for conviction.

The following lists the most common BAC levels cited by the thousands of LegalMatch customers looking for a drunk driving attorney last year, in order of frequency: 

• I don’t know: 24%
• .10 to .15: 20%
• No test given: 16%
• .16 to .20: 12%
• .08 to .09: 9%
• .21 or more: 7%
• .07 or less: 7%

There is an easy joke here about not remembering what your test score was for driving drunk. I will eschew it as a matter of editorial professionalism. There are a variety of reasons besides inebriation for not knowing what the test results were.

My interest lies in the 7% who were pulled over and arrested for being below a .07%. The reason most states utilize a .08% blood alcohol level is because of studies showing a significant drop off in a person’s ability to drive with a .08% or above BAC. Prosecuting the offense follows a familiar pattern: introduce the reading, introduce the expert, and introduce the findings damning the defendant to the nether-regions of presumptive guilt-purgatory.

But what about the tee-totaling .07 percenters?  Presumably their state still allows for their prosecution. In California, for instance, you can be prosecuted either for being above a .08%, or for driving “while under the influence.” In English, that means that you were so under the influence that your ability to drive was impaired.

Even though the defendant can technically still be guilty of a crime, anything below a .08 BAC in a state like California will always be used by the defense. Why? Because jurors expect a .08 reading or above. It is akin to the CSI effect: jurors expect police investigations to have fancy forensic scientists with super-technologically advanced super-computers that can recreate three dimensional representations of a crime scene piece by piece. Which of course is a complete fantasy.

For whatever reason, jurors come into the court with a preconceived notion that drunk driving means driving above a certain level, usually .08%. The truly rational left brained jurors might be able to completely shed this preconception. The majority of jurors, on the other hand, are skeptical of a test below .08%, or the absence of a test at all. Throw in error rates and the fuzzy science often relied upon by prosecution experts as “proof” that field sobriety tests show impairment, and the prosecution usually has a loser on its hands.

Reasonable minds may differ on the necessity of the drug war and the tactics used to fight it, but one thing is certain: it costs a heck of a lot of money. Some states are taking steps to spend their money wisely. One of these steps is de-criminalizing the possession of less than an ounce of marijuana. Massachusetts has already done so and Connecticut is considering following suit. Efforts to do so have failed in California, but the movement to ease the burden on our courts by removing small-time cases from the docket is gaining momentum.

How much could be saved? According to statistics compiled by LegalMatch, in 2007 44% of LegalMatch clients arrested for drug crimes were marijuana related. Federal statistics for the same period show that that 47% of all drug arrests were for marijuana possession. Nationally this works out to 775,137 marijuana possession arrests, or almost 10 times the amount of arrests for drug trafficking and sales.

Reducing the burden on our courts by shifting almost 3 quarters of a million defendants off the criminal docket could save a lot of money. Court costs for even the smallest of cases can still add up. A study of average court costs in Allen County, Indiana in 2001 show an average bill of $1,146 for processing drug offense charges. Factoring in inflation, this adds up to $1,345 in 2007 dollars. If we use this estimate for a national average (which seems on the low side as it is), that’s still over $1 billion spent simply processing marijuana possession offenses. That is not even taking into account the costs of other programs such as probation and incarceration.

Massachusetts estimates that it saves over $30 million a year by decriminalizing possession of less than an ounce of marijuana. How much can the nation as a whole save by following suit? Probably a few billion dollars. Although that may seem like chump change in the face of an $800 billion stimulus packages, that is still a lot of money that would be better spent elsewhere. In these tough economic times, we need to look everywhere we can to shed the extra fat. So let’s support a more rational criminal justice policy. It might just save you some money.

The easiest blog title ever, because that’s actually the name of the show. Yes, Fox has sunk to even deeper depths of the bottomless sink hole known as reality TV. According to Fox executives, the show treats the audience to a reverse “Punk’d”:

“Instead of the worst day of your life and then a joke at the end, this is the reverse. This is the best day of your life, and then we arrest you.”

Excellent! The Austin Criminal Defense Lawyer sarcastically points out that Fox will only target non violent offenders for these “hilarious” sting operations. I agree with his skepticism. What is a non-violent offender? A guy that missed jury duty? A jaywalker? Someone with one too many parking tickets?

Fox executives are good at one thing, and that is sensationalism. I doubt their focus on non-violent offenders has anything to do with thinking they deserve it more than others; instead, they probably want to avoid the danger inherent in prank-arresting someone with a violent felony history or problems with aggression.

To add insult to injury, (or if you are a Fox executive, to make the show even better) Fox has tapped Maricopa County Sheriff Joe Arpaio as the show’s host.

For those of you who are not familiar with Joe the Sheriff, let me introduce you. Sheriff Arpaio’s accomplishments in Maricopa County, Arizona include making inmates march in pink underwear, creating a tent city jail in Arizona’s 110 degree heat to deal with overcrowding, creating juvenile chain gangs to bury the dead of local indigents, being sued over 2,000 times in federal court, and costing the state of Arizona over $40 million in legal fees over the course of his tenure.

Yes, that Joe Arpaio.

This show joins the already extremely pro-police and pro-prosecution culture of victimization and fear instilled on television viewers by shows such as Cops. This authoritarian mindset is exactly the kind of culture that allows people like Sheriff Joe Arpaio to not only get away with rampant prisoner abuse, but become wildly popular because of it. Everyone suspected of a crime is a bad person and deserves everything coming to them, due process (and human rights) be damned. Unfortunately, very few are able to see anything wrong with this until they wind up on the wrong end of the law.

Now that we are officially in the midst of a recession, commentators have begun to speculate how the economic downturn could affect crime rates. 

Some claim there is no link between recessions and increased crime.  People in this camp rely on U.S. Justice Department statistics that show crime flourished during the 1920’s, 1950’s and 1960’s-when the economy was also booming.  But wouldn’t one expect that during hard times, people who are suffering would steal to compensate for their lack of income?  While there have been reports of increased incidents of shoplifting during recessions, there may be counteractive forces at work which balance the overall property crime rate.  For instance, during economic downturns, people often move in with relatives and stay home more, both of which tend to have a stabilizing effect.    

Others have found a strong link between economic downturns and crime waves.  Those who believe this theory claim that statistics can be skewed by a number of forces.  For example, in the 1990s, when Michigan’s Ecorse Police Department retrieved dead human bodies from the Detroit River and classified them as “floating bodies,” the crimes weren’t recorded in the FBI’s Uniform Crime Report since that crime category wasn’t recognized.  Additionally, crime rates during the Depression may have been distorted by Federal Government programs such as the Civilian Conservation Corps (CCC).  In the 1930’s, the CCC took over 500,000 unemployed young men (who pose the greatest risk of committing crimes) from cities and moved them to isolated work camps where they lacked the opportunity to commit crimes.  Without these measures, would there have been a rise in crime during the Depression?  Who knows. . . .   

While the relationship between recessions and violent and property crime is debatable, it makes sense that certain crimes do in fact rise in tandem with hard economic times.  Specifically, domestic violence, alcohol-fueled crimes, and elder abuse have reportedly been increasing as families struggle with the stress of the current recession. 

What can be done?  While state budgets may be strapped, it may be cost-efficient to implement educational programs in order to prevent an increase in domestic crimes.  Another preventative measure:  don’t cut police department budgets!  If there aren’t sufficient officers in place, criminals will have more opportunities to offend.  And if the effects of decreased security resources illustrated by the recent holiday shopping tragedies are any indication, we cannot afford to under-fund law enforcement.

Stay tuned: LegalMatch is currently mining case detail related to criminal offenses since the Dow Collapsed.  Once we have a sufficient sample of this data we will advise if we see a correlation between the Dow and Crime.

It is long standing precedent that prosecutors must release evidence to the defense that is exculpatory or relevant to punishment. If they don’t, however, they are rarely disciplined. Why should prosecutors get away with this when they are the ones supposedly charged with upholding the law?

Let’s take the Supreme Court case of Cone v. Bell as an example. Gary Cone was found guilty of a brutal double homicide in 1980. For more than a quarter century the case has maneuvered through the courts, (typical of capital punishment cases), with the latest installment coming today in Washington D.C.  Memphis prosecutors failed to release evidence to the defense that Cone was high on amphetamines at the time of the murder. The defense’s main argument was insanity, something that would have spared their client the death penalty. (And prevented 25 years of appeals and millions of dollars in court fees, paid by taxpayers.)

Being high on amphetamines would have lent credence to their claim, but Prosecutors today told the High Court such evidence was irrelevant. Some of the justices fervently disagreed, with Souter going so far as to call the respondent’s argument “utterly irrational.” Justice Stevens commented on the record that he worried about the ethics of the profession.

If the court rules against the state here, Cone might get spared the death penalty. But what about the prosecutors?  Don’t let the Duke Lacrosse case and what happened to disgraced prosecutor Mike Nifong fool you-not every defendant is a wealthy white Duke Lacrosse player with money and clout to get a prosecutor disbarred.  In fact, cases such as this usually go silently into the night-or silently into the court’s archives-without anything happening to prosecutors.

Something needs to be done. Prosecutors have an ethical and legal duty to uphold the law; releasing exculpatory evidence to the defense is the law. If they fail to uphold this important constitutional safeguard, they must face discipline. This is a serious transgression-by failing to release evidence they are obligated to give up, they are being dishonest not only to defense counsel, but to the court hearing the case.

Although criminal sanctions may be going too far, some sort of mandatory bar disciplinary action is necessary here. Prosecutors should be motivated to err on the side of disclosure in deciding whether to release evidence to the defense. As things currently stand, some prosecutors seem preoccupied with winning the case, not upholding the law and the principles of the Constitution.