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.

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.

Recently, OJ Simpson was found guilty of 12 criminal charges, including armed robbery and kidnapping, committed in a failed attempt to retrieve sports memorabilia from two collectibles dealers in a Las Vegas hotel room.  Sixty-one-year-old Simpson faces up to 33 years in prison, and will be eligible for parole after nine years. 

Simpson claimed that he was merely taking back his belongings that had been stolen, and his lawyer urged the court to consider the minimum sentence of six years because Simpson does not have a criminal record. 

Clark County District Judge Jackie Glass, however, focused on the violent and premeditated nature of the crimes, along with the overwhelming evidence against Simpson.  Glass expressed dismay with Simpson during the trial, accusing him of “arrogance or ignorance or both,” and doubling his bail after he violated his release terms.   

Glass has been both heralded for her “tough on crime” approach, as well as criticized for sacrificing defendants’ constitutional rights in the name of courtroom efficiency.  Specifically, critics allege that Glass has dismissed challenges to her rulings and has failed to furnish defense attorneys with complete reports of defendants with mental troubles.  The judge is currently under review by the Nevada Supreme Court for preventing defense attorneys from entering their clients’ psychological evaluations.

Although there has been some speculation that the harsh sentence was in part motivated by a desire to punish Simpson for infamously beating murder charges 13 years ago, so far, few (besides Simpson’s lawyer) have objected to the sentence.  Also, there have not been widespread accusations that his conviction was racially tainted.  Under law, Simpson’s acquittals for the murder of his ex-wife, Nicole Brown Simpson and her friend Ron Goldman, should not be used against him in subsequent trials. 

Judges can, however, impose harsher sentences based on a felon’s prior record or for bad behavior.  Here, Simpson’s courtroom behavior did not constitute legal grounds for imposing a harsher sentence.  Yet, unless it is proven that Glass’ sentence was driven by improper motive, or that she violated another guideline, Simpson’s sentence will stand.  Is this justice?  I suppose the appeals court will have the chance to determine that. . . .  Recent reports indicate that nearly half of the jury thought Simpson should have been convicted for the murders of Nicole Brown and Ron Goldman, and Simpson’s lawyer has stated that jury bias will form the basis of their appeal.

Lori Drew’s jury is speaking to the press, and some are not happy. The forewoman of the Jury in Lori Drew’s trial gave this interesting quote to Wired’s Threat Level blog: (Thanks to Volokh for the story)

“The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service,” she said. “I always read the terms of service…. If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable.”

Quick question: did you read the terms of service for this website? Did you read the terms of service for your email carrier? A forum or blog you just posted on? Google? And did Judge Wu not inform his jury of the difference between being “liable’ and being found “guilty?”  The juror goes on to say that she was disappointed with only securing misdemeanor verdicts, noting that if more malicious sounding text messages had been offered into evidence, it would have been easier to convince the entire jury that Drew’s conduct rose to the level of a felony.

First of all, I stand by my earlier comments when this trial ended that assigning criminal culpability to private contracts is kind of, well, crazy. What you and I go to jail for should always be written by legislators, not corporate attorneys or over zealous intellectual property contract lawyers. Although what Lori Drew did was heinous, let’s not go down this road to bring her to justice.

This also adds another layer to the debate. Namely, how much emotion and back-story should be considered acceptable in these kinds of cases? The juror here stated “trust me, I was so for this woman going away for 20 years,” and throughout the article appeared very moved by the clearly tragic consequences of this online hoax. The defense, for their part, tried their best to keep evidence of the suicide out of the trial entirely, under the (reasonable) argument that it would be more prejudicial than probative to whether Lori Drew actually committed a crime.

Lori Drew was not on trial for causing a suicide or for murder, but that is what this amounted to. How much of the verdict here was retributive rather than based on the law and the facts? Time will tell, as this will be appealed to the 9^th circuit court. (And from there possibly to the Supreme Court, who are not very fond of the 9^th circuit.) Although Lori Drew’s alleged actions are outrageous and deserve contempt, are they federal crimes? If the “act” being criminalized here is not following a website’s terms of service, I have to say no. Let’s keep those violations in the realm of “liability,” not “guilt.”