Archive for the 'Court' CategoryPage 2 of 80

Massachusetts Rules Field Sobriety Tests Can’t Prove You’re High While Driving

As marijuana–either medical or recreational–has seen increasing legalization across the country, the implications of that legalization have led to any number of legal concerns. One of the chief among those has been how police officers will be able to establish that somebody is intoxicated for the purposes of a driving while intoxicated (DWI) charge. Out in Massachusetts, there has finally been a ruling on the issue. However, it has made it even more difficult than ever before for Massachusetts police to prosecute somebody for driving while high.

Massachusetts approved the “”possession, use, distribution, and cultivation of marijuana,” recently. The legalization, taking effect January 1, 2018, is conditioned on regulating marijuana in the same vein as alcohol. Stores selling marijuana have been pushed back to June 2018 over concerns over lack of legal preparation to deal with widespread legalized marijuana.

The Massachusetts Supreme Judicial Court made a ruling last week which, in some ways validates these fears.  They have ruled that-for the most part-the usual field sobriety tests can’t be used as evidence that somebody is driving under the influence of marijuana.

sobriety testMr. Gerhardt’s Sticky Situation

The case itself dealt with a man named Thomas Gerhardt. Mr. Gerhardt was pulled over for not having his lights on. However, once he was pulled over the officer reported smelling burned marijuana from his car. When asked if he had marijuana, Mr. Gerhardt responded that he had a couple of marijuana cigarettes in his ashtray-pointing to a couple of mostly consumed marijuana cigarettes. When asked when they were smoked, one passenger said about twenty minutes prior while Mr. Gerhardt said around three hours ago. When asked how much marijuana he had smoked, Mr. Gerhardt replied about a gram.

The officer had Mr. Gerhardt perform several field sobriety tests, standing on one leg, the heel-to-toe walk test, following a finger with his eyes, and reciting the alphabet. For the most part, Mr. Gerhardt had no issues with the tests. However, he was incapable of understanding the instructions of the walk and turn test despite several explanations. In the end, he was incapable of performing the test properly, walking normally instead of heel-to-toe. He was also unable to stay balanced while standing on one leg. The officer took this to imply that that Mr. Gerhardt was impaired by marijuana. This led to charges of driving while under the influence of marijuana-obviously still a crime regardless of legalization.

However, Mr. Gerhardt’s attorneys challenged this evidence. They argued that the tests are fine for establishing that alcohol has impaired a person’s ability to drive but aren’t suited to testing how impaired a person is who has smoked marijuana. After all, a DUI doesn’t happen just because you’ve drank-it’s because you’ve drank to a point of impairment agreed upon to be over .08% BAC after much scientific testing. By the same token, the crime of driving under the influence of marijuana is due to the impairment from the marijuana. But to be guilty, that impairment must be established. The Massachusetts Supreme Judicial Court felt that the research on the correlation between these field tests are being impaired by marijuana just wasn’t there yet.

Scientific Tests as Evidence

There is a strong, well scientifically tested, relationship between these field tests and impairment due to alcohol consumption. That scientific testing simply hasn’t happened when it comes to marijuana. Without diving too deep into the issues of evidentiary law, anything that tends to prove any fact of consequence to a case-or provide a link in a chain towards doing this-is relevant and admissible evidence barring several exceptions.

Scientific tests have the potential to be considered more weighty than they actually are due to a bias towards accepting the validity of such tests. Scientific evidence must be based in sufficient evidence and be a product of reliable principles and methods. This evaluation has largely replaced a previous test requiring the acceptance of a scientific test by the scientific community at large. However, in practice, both tests can be thought of similarly. To be admissible, a test needs to be generally accepted by the scientific community to produce reliable results on an issue. The court didn’t think these field tests had been suitably vetted by the scientific community when it came to marijuana impairment.

In fact, there is quite a bit of disagreement in the scientific community over how effective tests like this are when it comes to detecting marijuana impairment. This is partially because marijuana’s effects vary enormously from person to person. Marijuana also operates very differently from alcohol, so the same tests may not produce as concrete results. Either way, the potential for a jury to look at these tests and weigh them too heavily made their use to prove impairment inadmissible.

How These Tests Can Be Used

This doesn’t mean these field tests can’t be admitted. It just means they can’t be relied on as evidence of actual impairment. They can still be used to show balance, coordination, mental acuity, etc. What’s more, the court ruled that a jury can still use their common sense to translate this into whether somebody was impaired. An officer could testify to appearance (red eyes, etc.), behavior or demeanor, but they couldn’t say somebody was impaired or “high.”

What’s more, under the ruling, no officer or expert could testify that somebody passed or failed such a test as that would imply the test had scientifically conclusive results. Similarly, a witness could not say somebody was or was not impaired based on the results of a field test. In fact, a witness couldn’t even call the field tests a “test” in the first place as this would imply scientific credibility.  Essentially, the ruling says that, no matter what, it must be crystal clear that field tests have no ability to directly test for marijuana impairment.

A Complicated Practical Issue

This ruling makes sense, the scientific research isn’t there to support using field tests to determine marijuana impairment. However, the ruling also highlights a serious issue. State marijuana legalization is becoming more widespread as more and more states vote for medical or recreational legalization. Along with this will come a greater need for law enforcement to be prepared to deal with situations such as pulling somebody over for driving under the influence of marijuana. We’ll need tests sooner rather than later to judge impairment where we can’t use a breathalyzer or similar device to reliably establish how impaired somebody is. Even then, such a device assumes that each person is equally impaired while studies show widely varied effects of marijuana on different people. The law and the technology of the law has some catching up to do–and it needs to do it fast.

Death Wish Coffee Initiates FDA Recall Over Potential for Toxin in Brew

In a twist of irony, a manufacturer of cold-brew coffee by the name of “Death Wish Coffee” (named such for how strong their coffee is) has discovered that its manufacturing process has the potential to lead to growth of a toxin known as botulinum-a poison that can cause botulism. While there have been no reported cases of anybody actually getting sick, Death Wish has notified the FDA that it will still being moving forward with a product recall of all their 11 ounce cans. Those who’ve bought their coffee in stores–most places that sold the coffee were on the East Coast of the U.S.–can return the cans for a full refund with a proof of purchase. If you bought any cans online, you can throw them out and Death Wish will provide a full refund if you request one in the month and a half or so.

Death Wish has described the recall as a proactive step in the interest of protecting their customers. This is an admirable stance to take. However, there is also an element of protecting their company from liability. U.S. law requires companies to initiate recalls in certain situations. What’s more, a recall can potentially protect a company from future liability when a real defect exists. Let’s take a look at how product recalls are handled in the U.S and how they relate to how you might sue if you’ve been heard by a recalled product or a product that is eventually recalled.

death wishProduct Recall Law

If you make, import, distribute, or sell goods to the public, U.S. law can legally obligate you to report potential issues with your product and potentially issue a recall. If you don’t do so, or don’t do so in a timely enough manner, it can result in criminal or civil penalties for you and your company. As you might imagine, it’s incredibly important to know these reporting requirements to protect your business.

In the U.S. recalls are generally handled by one of six agencies–the Consumer Product Safety Commission (CPSC), the Food and Drug Administration (FDA), the Environmental Protection Agency, Food Safety and Inspection Services, the National Highway Traffic Safety Administration, and the Coast Guard. Each agency has its own set of rules that need to be followed for reporting potential safety issues with products. In Death Wish’s case, the FDA is handling the process as they tend to handle food products.

Exactly when and how your company needs to report an issue for a potential recall varies a fair bit depending on what your product is and which agency you need to report to. However, as a rule, you’ll to report any defect in your products that could create a substantial risk of injury to customers or an unreasonable risk of serious injury or death. There are also a number of regulatory and statutory situations where you may need to report, such as where a kid is seriously hurt playing with a toy you produce.

When you become aware of an issue with your product, you’re required to report it immediately. The exact meaning of “immediately” can vary. However, you basically need to report within 24 hours of discovering information which reasonably indicates a reportable matter such as those discussed above. This doesn’t mean you can’t investigate such an issue to make sure, but don’t take your time with it. Taking longer than a week or so to investigate can land you in hot water. You’re considered to have been made aware of an issue as soon as it is received by you or somebody who works for you who should reasonably be able to recognize the significance of the information before them. After that point, agencies give you less than a week-the CPSC gives you five days tops-to get that information to the an officer of your company.

It should be noted that being potentially dangerous doesn’t require a recall in and of itself. Many products-like pocket knives-present a certain amount of danger by their very nature. Being sharp wouldn’t require a recall, being likely to shatter into many sharp pieces when used as intended likely would-a recall report generally takes into account the nature of the product to be recalled.

Most agencies recommend a policy of reporting if you’re in doubt. However, this is a bit of an oversimplification of the issue. Obviously, if you might face criminal charges for not reporting then you should report. However, there is the middle ground such as Death Wish’s recall. Their manufacturing process has the potential for danger to their consumers but there is no evidence their existing products have any issue. Recalling is probably a good idea, however there is certainly a serious publicity hit to announcing a recall. Death Wish may have a death wish because many companies have seen a recall effectively end their business. That being said, announcing a recall can protect a company from liability to some extent. If you make the recall public then a member of the public who ignores the warning may lose their case against you. Depending on how a company handles their recall it can be viewed as a subsequent remedial measure-steps taken to make an earlier injury or harm less likely to occur in the future. When this is the case, a plaintiff often can’t use these steps (the recall) as evidence of negligence of a defective product. However, this doesn’t mean that these companies are shielded from liability completely. It’s quite often to see a recall give rise to a class action lawsuit of people hurt by the defective product before the recall was announced. These lawsuits come in a number of forms, but are generally negligence or product defect lawsuits. It’s important to understand how these work if you’ve been hurt by a product that is later recalled.

Product Defects

Product defect cases exist in a few types of situations. Where there is a defect in the way a product is designed that is known as a design defect. Where there is a problem in the manufacturing process-as it was with Death Wish Coffee-that is known as a manufacturing defect. Finally, where a product fails to include clear warnings of dangers associated with normal use that is known as a labeling defect. In all these situations, a company that is any part of a distribution chain for a product may be held liable for injuries caused by a defective product.

Product defects are generally a standalone cause of action against a company. However, depending on where you live the strength of the laws may vary. Even where product defect liability isn’t available, there may be a negligence case if the company has not followed the standard safety practices of their industry.

Death Wish has taken steps to make sure nobody ever gets hurt by their product. This is both an admirable decision and potentially a preemptive step to avoid liability which could end a fledgling company such as theirs. However, while no issue with botulism has been reported, they may still face lawsuits from those who were injured but did not make the connection. That being said, they’ve protected themselves from liability if somebody gets sick after not choosing to simply chuck out their coffee. Understanding this balance–as well as you are required to report–is crucial to running a business. At the same time, understanding your rights a consumer is important when a recall such as this is issued. If you’ve been hurt by a product, you may well be able to recover for your injury or the economic losses from purchasing the product.

Big Brother Can Arrest Robbers by Tracking Their Locations

What if I told you the government had the ability to obtain all your smartphone records and use them to track your every location? Probably nothing, since it doesn’t personally affect you. You might even applaud it, since government prosecutors can use the information to put robbers in prison. But is it worth the risk to our civil rights?

Between December 2010 and December 2012, Timothy Carpenter and about fourteen other conspirators robbed a series of RadioShack’s and T-Mobiles throughout Ohio and Michigan. Carpenter allegedly served as organizer and lookout for the group. In April 2011, police arrested four of the conspirators and one of them confessed to the entire scheme. The conspirator who confessed gave the FBI his cellphone and the cellphones of the other members of the group. The FBI demanded Sprint and MetroPCS, the phone service providers, turn over a list of all cell sites that the phones had been in proximity to for the previous 127 days. The FBI used the list to track the defendants’ every location during the time of the alleged robberies. Since the data revealed that the robbers had been in the stores during the robberies, the defendants were found guilty.

trackingOn appeal to the Sixth Circuit, Carpenter argued that his 4th amendment rights had been violated because the FBI and the government had obtained private information without a warrant. The Sixth Circuit affirmed the guilty verdict, though the judges disagreed on whether new technology automatically raised 4th amendment questions. The case is now pending before the Supreme Court.

Does Cell Phone Number Privacy Exist?

Carpenter’s defense is mostly based on the existence of cell phone number privacy.  Does the government need a warrant if they want to view your contacts list on your cell phone? With traditional landline phones, the court had ruled that people lacked a reasonable expectation of privacy in dialed telephone numbers because the information was conveyed to third parties.

Arguably, that same conveyance of information to third parties exists with cell phones. I can’t expect my call to my parents to be private if Sprint or MetroPC have records I made the call. The contents of the phone might be private, as I wouldn’t expect Sprint or MetroPC to be listening in while I’m talking with them. However, Sprint or MetroPC would have records that I called them, so the mere fact that I called them would not be private information unless obtained with a warrant.

The issue is that this information is being used a way that reasonable Americans probably wouldn’t be able to anticipate. If the FBI only wanted the information to show that Carpenter knew the other fourteen other conspirators, this would not be a Supreme Court worthy case. Instead, the FBI is using the cell phone data to create map whereby they can determine exactly where the defendants were or had been. This is less like the FBI seeing who I called recently and more like an FBI agent following me around everywhere for 127 days. The only question is whether the FBI agent needs a warrant to follow me around. If the answer is “YES!”, then the FBI should also have a warrant before generating their map tracking wherever defendants go.

Federal Judge Rules Attorney General Sessions Cannot Withhold Grants from Sanctuary Cities

Out in Illinois, a federal court has recently ruled that Attorney General Sessions cannot fully follow through on his threat to withhold federal funds from so-called sanctuary cities. In a campaign and presidency that has made immigration one of its most spoken on and contentious issues, the idea of sanctuary cities-cities refusing to fully cooperate with immigration investigations-is something that President Trump has revisited again and again. Trumps’ own steps to take rights away from immigrants-such as his recent DACA declarations-have only exacerbated the matter as the number of cities with laws limiting how state law enforcement may interact with immigration agents and ICE grows.

Several states such as California, Vermont, Connecticut, and Rhode Island have laws in place limiting police cooperation with federal immigration authorities. However, it is Chicago-a state with a similar law of its own-that has brought the first successful challenge to Sessions’ immigration compliance requirements on federal funds-specifically the Byrne Memorial Justice Assistance Grant Program (better known as the Byrne JAG grant).

The ruling out of the US District Court for the Northern District of Illinois has determined that part-but not all-of the restrictions AG Sessions has place on Byrne JAG grants are unconstitutional-an undeniable, if not complete, victory for cities with laws like Chicago’s across the nation. The ruling places a nationwide stop on the portions of the restrictions the court ruled unconstitutional.  Let’s look at the limitations Sessions attempted to place on these grants and the court’s ruling.

attorney general sessionsSessions’ Restrictions on Grant Funding

Sessions’ restrictions on funding, announced by the Attorney General back in July of this year, placed two new conditions on the ability to receive funds through Byrne JAG grants. First, requiring local authorities to tell federal agents before people suspected of immigration violations were released from jail, detention facility, or really any type of correctional facility. Second, state authorities had to give immigration access to detention facilities and to the people in those facilities. This was on top of a condition added back in 2016 which required cities and states receiving Byrne JAG funds to certify that they wouldn’t restrict state and local law enforcement from sharing information with Immigration and Naturalization Services when it comes to somebody’s citizenship status.

These Byrne JAG grants are generally used to support and outfit state and local law enforcement across the country so these additional requirements had the potential for serious national impact. Normally, Byrne JAG grants are given based on a statutory formula based on population and the amount of reported violent crimes. Chicago has received this grant money every year since 2005-including last year when it was required to certify that it would not restrict law enforcement from sharing information with federal immigration authorities. In fact, just last year it was given a little over $2.3M.

Chicago itself has had rules limiting law enforcement’s participation in federal immigration investigations in place since the mid-80s and codified those rules into law over a decade ago. The rules also prevent city agents and agencies form requesting or telling giving others information about somebody’s citizenship. In 2012, these rules were taken even one step further to specifically deny immigration agents access to Chicago facilities and to deny immigration detainer requests (requests for local police to hold somebody on suspicion of an immigration issue) unless specific criteria are met.

These policies-known as the Welcoming City Ordinance-have been in place so long because, according to Chicago, they have created safer streets by allowing the immigrant community to feel safe talking to law enforcement. However, as a potential “sanctuary city,” Sessions’ restrictions had a chance to seriously impact Chicago’s ability to fund its law enforcement. Thus, it’s no surprise they were quick to challenge their constitutionality.

The Court’s Ruling

Chicago challenged the constitutionality of AG Sessions’ restrictions on two primary grounds. First, that Congress never granted Sessions the power to restrict Byrne JAG grants in this manner. Second, that even if Congress did give Sessions that power the restrictions themselves impinged on the Constitutional rights of the states.

On the most recent restrictions, the ones dealing with reporting and access to detention centers, the court determined that AG Sessions simply overstepped his bounds. Congress not only didn’t give him the power to make such limitations on these grants, they explicitly gave the power to somebody else. While Sessions argued he’d been given broad power to make such restrictions in an older act of Congress, the court felt that if such a grant had been given Congress wouldn’t have needed to give the AG the limited powers to restrict these grants that it did-the power to require a certification that a grantee will comply with all federal laws.

With only this limited power at the AG’s disposal, both the most recent restrictions on these grants were an overreach and thus unconstitutional. However, Sessions does have the power to require certifications as he did with last year’s additional restriction. This meant that this third restriction would only be unconstitutional if it violated some other part of the Constitution.

The 10th Amendment means that the federal government can’t generally force the states to legislate or act in a certain way. Nor can they force state agents such as state police to act in a certain way. They can, however, often tie funds to certain behavior. Chicago argued that the restrictions were violating the 10th Amendment by forcing them to allow state agents to report to the federal government. However, Congress has broad power to legislate when it comes to immigration. What’s more, these very restrictions have already been ruled by another court to not violate the 10th amendment-drawing a potentially questionable distinction between forcing a state to act and preventing the state from directly restricting its officials from acting. The court primarily looked at the fact that the requirements don’t force any active legislation or make state agents act on the federal government’s behalf. Thus, the certification requirement from last year was ruled constitutional.

Ruling Still a Partial Victory for AG Sessions

This ruling takes away the most controlling parts of AG Sessions’ restrictions. However, what is left will still allow for the potential to withhold funds from many states. Chicago is far from alone in its Welcoming City Ordinance, many cities and states have similar provisions. These laws have become particularly contentious in recent months.

California has been moving forward on bills to increase protection from undocumented students in public schools. At the same time, Mississippi and Texas have passed laws barring local ordinances creating “sanctuary cities.” Alabama passed legislation targeting universities attended by undocumented immigrants. The controversy on this issue has just begun and will only continue to heat up. Even this ruling will likely be appealed by the federal government. However, even with what’s left, there is a real possibility the AG Sessions will have the oomph to follow through on some of his threats to funding for cities not cooperating with federal immigration officials.

Can You Access Your Spouse’s Electronic Information During a Divorce?

During a divorce, ex-spouses will be tempted to use every advantage to “win” the case. Since spouses were often intimate during their marriage – even sharing private information with one another – fights between spouses can be nasty, brutal, and long. Many spouses will use passwords to access personal accounts to look for proof of wrongdoing. The Electronic Communications Privacy Act (ECPA) was enacted in 1986 to protect against such digital intrusion. Unauthorized access to email may carry severe penalties – in both divorce and criminal court.

Can I Record Phone Calls?

The answer will differ wildly depending on each state. Some jurisdictions, like North Carolina and Virigina, permit one party recordings. It is permissible to record a phone conversation as long as one of the parties knows and consents to being recorded. Other states, like California, require two party consent; both parties must know and consent to their conversation being recorded.

However, almost all states require a warrant before recording phone conservations in which the recorder is not one of the parties. If you plan to record your spouse and his or her suspected lover, think twice – you will almost certainly be breaking the law.

What If My Spouse Is Saying Nasty Things About Me on Social Media?

It is not uncommon for ex-spouses to say terrible things about the other on Facebook or Twitter to their friends and family. Obviously, any one-sided Facebook statues will likely result in the other spouse being alienated from his or her social circle.

Courts do have the power to order spouses to “add” their spouse to social media as a means of monitoring any potential libel. However, this only comes up if the couple has minor children. Children should not have to see their mother attacking their father’s character on social media. In that instance, the Court can require that the mother “add” the father to social media to ensure that the other parent does not derail normal parent-child relationships.

divorce_loginWhat If My Spouse Gave Me Their Passwords While We Were Still Together?

The ECPA prohibits “unauthorized” access or use of private information. However, if a spouse voluntarily provides the password, then you would have implicit consent. This implicit consent only goes so far though – if you use the password to access accounts other than the email it was meant for, there would likely be no consent granted. If a wife gives her husband a password to check her Gmail, but that same password works for her Wells Fargo account, implicit consent would only exist for the Gmail but not for the Wells Fargo account.

We Separated. Can I Still Read My Spouse’s E-mail with the Password They Gave Me?

When spouses give their passwords to one another, the law assumes that the password was for a specific purpose. If you have your spouse’s email password, it’s probably to check e-mail that the two of you received as a couple while you were married. If the marriage has ended, then the reason your spouse has given you the e-mail has likely ended to.