The Iowa Court of Appeals reversed the conviction of Abdoulaye Tangara on Thursday morning finding that the trial court erred in denying his motion to suppress evidence that alleged the stopping officer lacked reasonable suspicion to pull him over and further that she violated his right to phone calls pursuant to Iowa Code section 804.20. The Court found that both the stop of the vehicle and the officers refusal to allow Mr. Tangara to place calls upon his arrival at the police department, were illegal.
The stopping officer, Officer Karla Altenbaumer of the Cedar Falls Police Department, claimed to have followed Mr. Tangara's vehicle for two miles and observed Mr. Tangaras vehicle noticeably weaving within or between two lanes of traffic. She further claimed that when she turned on her traffic lights the vehicle continued "approximately two blocks, and then it made a right-hand turn onto Main and then stopped in the middle of the road." Officer Altenbaumer also testified that she was absolutely positive that at no time did Mr. Tangara request to place a telephone call.
Thankfully for Mr. Tangara there was a video of the stop of his vehicle and his subsequent interaction with Officer Altenbaumer. The video completely contradicted Officer Altenbaumer's testimony. The video showed no discernible weaving and in fact showed that Mr. Tangara pulled over in a timely and appropriate manner when instructed to do so by the officer. More importantly, the video documented Mr. Tangaras repeated requests to place a phone call after he was arrested and the officers response of "we're kind of past that." The fact that Officer Altenbaumer testified repeatedly that she was positive Mr. Tangara never made a request to place a call, but that the video clearly showed he did make such a request and in fact she heard that request and responded, is what sealed victory for Mr. Tangara. At the hearing, Officer Altenbaumer even went so far as to testify that she was as certain that Mr. Tangara did not ask to place a call as she was that he was weaving and driving erratically. Video doesn't lie but law enforcement officers are human.
Mr. Tangara's case is a classic example of law enforcement's imperfect memory of events or willingness to take a position and testify to something that is inconsistent with the truth and the value of video and audio recordings in justice being served. Had there not been a video and audio recording of Officer Altembaumer's interaction with Mr. Tangara, both the trial court and the appellate court would have most certainly taken the officer at her word and Mr. Tangara's conviction would have been affirmed. It is not whether law enforcement intentionally lied or misstated the facts. While that is obviously important if it did indeed take place, what is more important is that an objective, unbiased tool was available to ensure that the correct decision was made and justice was served. Much like instant replay in a sporting event, the most important thing is to get it right. While the trial court did not take the time to get it right, thankfully the Iowa Court of Appeals did. Justice was served, although a little delayed. Mr. Tangara's convictionw as reversed and will be taken off his record and because the chemical breath test was also suppressed, he will be able to have his driving privileges reinstated with the Iowa Department of Transportation.
Tuesday, November 17, 2009
Friday, October 2, 2009
Sex Abuse Sentence Cruel and Unusual
Defendant's second offense sexual abuse conviction vacated and declared unconstitutionally cruel and unusual under Article 1 Section 17 of the Iowa Constitution.
Jordan Bruegger was sentenced to a mandatory minimum sentence of 25 years with a mandatory minimum of 85% of the sentence to be served before being eligible for parole after he was convicted of statutory rape for having sex with his 15 year old girlfriend when he was 21 years old. The sentence which normally requires 10 years in prison was enhanced to the 25 year 85% sentence because he had a prior juvenile sexual offense conviction. In what will likely be considered a landmark decision by the Iowa Supreme Court in State v. Bruegger, the Iowa Supreme Court elected to vary from the stricter and harsher interpretation of the Federal Constitution on the issue of Cruel and Unusual Punishment, and opted instead to use the federal approach as a guideline while adopting a much more equitable and individualized framework for courts to analyze a cruel and unusual punishment challenge under the Iowa Constitution. Justice Appel, writing for the majority, concluded 1) that a defendant may challenge a sentence as being cruel and unusual for the first time on appeal as a cruel and usual sentence is illegal and can be raised at any time; 2) that a defendant may challenge a sentence imposed as being cruel and unusual "as applied" as opposed to being required to challenge the validity of the underlying statute; and 3)an individualized, case by case approach is appropriate to determine whether or not a sentence is cruel and unusual under the Iowa Constitution.
The Court identified a number of factors that must be considered when determining whether or not a sentence is cruel and unusual. First, the breadth of the crime is important. For example, in the words of Justice Appel: "The crime of statutory rape covers a wide variety of circumstances, from Romeo and Juliet relationships to much more objectionable situations involving the luring of youngsters by older individuals using manipulative techniques, positions of authority, threats of violence, and other aggravating factors." Second, the age of the offender, and in Bruegger's case, the age of the offender at the time of the predicate offense. The Court cited scientific and sociological studies that show that juveniles tend to have immature judgment and act impulsively and without a full appreciation of the consequences of their actions. In Bruegger's case he was 12 years old at the time of his prior juvenile conviction and the Court placed considerable emphasis on that fact. Third, the geometric nature of the mandatory enhancement that drastically increased the amount of time the defendant would actually serve in prison upon a conviction.
While the majority of the Court concluded that the sentence imposed under the record provided was cruel and unusual, the case did not end there. The sentence was vacated or set aside but the case was remanded back to the district court for a determination, following an evidentiary hearing whether or not the statutorily mandated mandatory minimum sentence is actually cruel and unusual after a full development of the record at the district court level. According to the Court, "the State may wish to develop evidence regarding the impact of Bruegger's conduct on K.S. and her family, his lack of remorse, the nature of services provided in Minnesota and his inability to respond to such services, the need to incapacitate him through long-term incarceration, and any other potential factors that tend to aggravate the gravity of the offense and magnify the consequences on K.S."
The importance of this case is that it has opened the doors for defendants in special circumstance cases to present evidence and convince a sentencing judge that they should not be sentenced to the mandatory minimum sentence because it is disproportionate to the individual characteristics of the defendant and the circumstances surrounding the actual offense. A teenager being prosecuted by an overzealous prosecutor for Robbery 1st because he attempted to steal a bottle of liquor from a liquor store and ended up shoving a store clerk, will be able to legitimately argue and have a judge seriously consider that the mandatory sentence for "technically" committing the offense should not be imposed.
Jordan Bruegger was sentenced to a mandatory minimum sentence of 25 years with a mandatory minimum of 85% of the sentence to be served before being eligible for parole after he was convicted of statutory rape for having sex with his 15 year old girlfriend when he was 21 years old. The sentence which normally requires 10 years in prison was enhanced to the 25 year 85% sentence because he had a prior juvenile sexual offense conviction. In what will likely be considered a landmark decision by the Iowa Supreme Court in State v. Bruegger, the Iowa Supreme Court elected to vary from the stricter and harsher interpretation of the Federal Constitution on the issue of Cruel and Unusual Punishment, and opted instead to use the federal approach as a guideline while adopting a much more equitable and individualized framework for courts to analyze a cruel and unusual punishment challenge under the Iowa Constitution. Justice Appel, writing for the majority, concluded 1) that a defendant may challenge a sentence as being cruel and unusual for the first time on appeal as a cruel and usual sentence is illegal and can be raised at any time; 2) that a defendant may challenge a sentence imposed as being cruel and unusual "as applied" as opposed to being required to challenge the validity of the underlying statute; and 3)an individualized, case by case approach is appropriate to determine whether or not a sentence is cruel and unusual under the Iowa Constitution.
The Court identified a number of factors that must be considered when determining whether or not a sentence is cruel and unusual. First, the breadth of the crime is important. For example, in the words of Justice Appel: "The crime of statutory rape covers a wide variety of circumstances, from Romeo and Juliet relationships to much more objectionable situations involving the luring of youngsters by older individuals using manipulative techniques, positions of authority, threats of violence, and other aggravating factors." Second, the age of the offender, and in Bruegger's case, the age of the offender at the time of the predicate offense. The Court cited scientific and sociological studies that show that juveniles tend to have immature judgment and act impulsively and without a full appreciation of the consequences of their actions. In Bruegger's case he was 12 years old at the time of his prior juvenile conviction and the Court placed considerable emphasis on that fact. Third, the geometric nature of the mandatory enhancement that drastically increased the amount of time the defendant would actually serve in prison upon a conviction.
While the majority of the Court concluded that the sentence imposed under the record provided was cruel and unusual, the case did not end there. The sentence was vacated or set aside but the case was remanded back to the district court for a determination, following an evidentiary hearing whether or not the statutorily mandated mandatory minimum sentence is actually cruel and unusual after a full development of the record at the district court level. According to the Court, "the State may wish to develop evidence regarding the impact of Bruegger's conduct on K.S. and her family, his lack of remorse, the nature of services provided in Minnesota and his inability to respond to such services, the need to incapacitate him through long-term incarceration, and any other potential factors that tend to aggravate the gravity of the offense and magnify the consequences on K.S."
The importance of this case is that it has opened the doors for defendants in special circumstance cases to present evidence and convince a sentencing judge that they should not be sentenced to the mandatory minimum sentence because it is disproportionate to the individual characteristics of the defendant and the circumstances surrounding the actual offense. A teenager being prosecuted by an overzealous prosecutor for Robbery 1st because he attempted to steal a bottle of liquor from a liquor store and ended up shoving a store clerk, will be able to legitimately argue and have a judge seriously consider that the mandatory sentence for "technically" committing the offense should not be imposed.
Monday, September 28, 2009
Sexting
"Sexting" - the practice of sending nude photographs via text message.
Technological advances lead to increased convenience but can also generate new challenges to parenting and law enforcement. The advances in cell phone technology which include ready access to cameras (still and video), increased digital storage capabilities and quicker Internet access through smart phones, have allowed the practice of "sexting" to reach unfathomable popularity, especially among teenagers. Recently, this surprisingly common phenomenon has garnered nationwide attention and concern, especially by parents of middle and highschool aged teens. According to a survey by the National Campaign to Prevent Teen and Unplanned Pregnancy, roughly 20% of teens surveyed admit to having sent nude or semi-nude photographs via text messaging.
Recent events involving celebrities both young and old, have demonstrated one of the practical dangers of "sexting," the publication of the photographs. More importantly though, what many don't stop and consider before "sexting", is the fact that they may be committing a serious crime. More and more cases are being reported where "sexting" is landing unsuspecting teenagers in jail or at the very least facing a serious criminal charges. Nude photographs of anyone under the age of 18 years old can be considered child pornography. Sending of those nude photographs constitutes distribution of child pornography. These offenses can be, and at times are, charged in federal court, the last place that a young adult wants to be.
The act of "sexting" can also qualify as a criminal offense in the state courts of Iowa. Just recently, the Iowa Supreme Court, in the case of State v. Canal weighed in on the topic, explaining how "sexting" can amount to dissemination and exhibition of obscene material to a minor. Iowa Code section 728.2, makes it a serious misdemeanor for anyone, regardless of age, to knowingly disseminate or exhibit obscene material to a minor. "Obscene material" is defined as: "Any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value." In other words, if its "dirty" or "sexually explicit" it's likely considered "obscene materials." While there are defenses based upon the content of the photographs and intentions behind the sending and receipt of the pictures, the jury has considerable discretion in making the ultimate determination of whether or not the materials are "obscene." While the Canal case involved an 18 year old defendant, who's conviction was upheld, the prohibition of disseminating obscene materials to minors does not have a minimum age. Thus, teenagers that are "sexting" each other, even though both are under the age of 18, are still technically violating Iowa law, in addition to possible federal statutes.
Teenage friendships and romantic relationships tend to be the most unpredictable and volatile of all. Factor in immature teenage judgment and what may start out as mere "fun and games" or natural curiosity, can quickly become devastatingly destructive. It is also worth noting, that publication or dissemination of the photographs, even to the general public, can also result in criminal and most definitely civil liability. Life-long embarrassment, criminal prosecution and jail time are just a start to the possible negative life lessons that could be learned from this practice. A little preventative education and common sense could go a long way to avoid unnecessary life-altering consequences.
Technological advances lead to increased convenience but can also generate new challenges to parenting and law enforcement. The advances in cell phone technology which include ready access to cameras (still and video), increased digital storage capabilities and quicker Internet access through smart phones, have allowed the practice of "sexting" to reach unfathomable popularity, especially among teenagers. Recently, this surprisingly common phenomenon has garnered nationwide attention and concern, especially by parents of middle and highschool aged teens. According to a survey by the National Campaign to Prevent Teen and Unplanned Pregnancy, roughly 20% of teens surveyed admit to having sent nude or semi-nude photographs via text messaging.
Recent events involving celebrities both young and old, have demonstrated one of the practical dangers of "sexting," the publication of the photographs. More importantly though, what many don't stop and consider before "sexting", is the fact that they may be committing a serious crime. More and more cases are being reported where "sexting" is landing unsuspecting teenagers in jail or at the very least facing a serious criminal charges. Nude photographs of anyone under the age of 18 years old can be considered child pornography. Sending of those nude photographs constitutes distribution of child pornography. These offenses can be, and at times are, charged in federal court, the last place that a young adult wants to be.
The act of "sexting" can also qualify as a criminal offense in the state courts of Iowa. Just recently, the Iowa Supreme Court, in the case of State v. Canal weighed in on the topic, explaining how "sexting" can amount to dissemination and exhibition of obscene material to a minor. Iowa Code section 728.2, makes it a serious misdemeanor for anyone, regardless of age, to knowingly disseminate or exhibit obscene material to a minor. "Obscene material" is defined as: "Any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value." In other words, if its "dirty" or "sexually explicit" it's likely considered "obscene materials." While there are defenses based upon the content of the photographs and intentions behind the sending and receipt of the pictures, the jury has considerable discretion in making the ultimate determination of whether or not the materials are "obscene." While the Canal case involved an 18 year old defendant, who's conviction was upheld, the prohibition of disseminating obscene materials to minors does not have a minimum age. Thus, teenagers that are "sexting" each other, even though both are under the age of 18, are still technically violating Iowa law, in addition to possible federal statutes.
Teenage friendships and romantic relationships tend to be the most unpredictable and volatile of all. Factor in immature teenage judgment and what may start out as mere "fun and games" or natural curiosity, can quickly become devastatingly destructive. It is also worth noting, that publication or dissemination of the photographs, even to the general public, can also result in criminal and most definitely civil liability. Life-long embarrassment, criminal prosecution and jail time are just a start to the possible negative life lessons that could be learned from this practice. A little preventative education and common sense could go a long way to avoid unnecessary life-altering consequences.
Friday, September 18, 2009
OWI Conviction Reversed
Another OWI conviction was reversed yesterday by the Iowa Court of Appeals after they found that the defendant's right to phone calls under Iowa Code section 804.20 was violated when the arresting officer prematurely terminated the defendant's phone call with her father.
On September 17th, the Iowa Court of Appeals, in an unusual en banc opinion ruled 4-3in favor of GRL client in State of Iowa vs. Brandee Pettengill. The operative facts of the case were that the arresting officer terminated Ms. Pettengill's telephone call to her father after only 15 minutes of conversation, claiming that she was talking about something other than whether or not to take or refuse the chemical breath test. The majority in the Court of Appeals concluded that: "Ultimately, we believe that, under a fair reading of section 804.20 and the supreme court's precedents, it was inappropriate to terminate the defendant's middle-of-the-night phone call to her father involuntarily after fifteen minutes where the defendant was not stalling and the overall purpose of the call was to obtain relevant information and advice, where forty-seven minutes still remained to conduct the breath test, and where the defendant was not advised of the right to make any other calls."
In Iowa, an arrested or detained individual has the statutory right to place phone calls and to see and consult with an attorney or family member or both, upon arriving at the place of detention. The arresting officer is not required to advise the person of this right, but when a request is made, it cannot be denied and an officer must advise the person to whom calls may be placed and for what purpose. Contrary to popular opinion, an individual arrested for OWI does not have the legal right to wait two hours before taking the test but they must be allowed a reasonable opportunity to contact and consult with an attorney or family member before making a decision regarding chemical testing. These attempts must be made in good faith and may not jeopardize the officer's two hour window within which he is required to offer the chemical breath test.
When a person, such as Ms. Pettengill requests the place a call and to contact an attorney or family member, the question inevitably arises as to how long the officer must wait or what is a "reasonable opportunity." Here, the facts were very clear. She made one phone call immediately upon being given the opportunity and that phone call was to her father. It was early in the morning and obviously an arrested person must be given some leeway as to what they may discuss with the person on the other end of the line above and beyond whether or not to take the test. A father or concerned parent will obviously first and foremost want to make sure the arrested person is physically ok and get a general reference point as to what happened. That being said, the implied consent advisory that is read to the person advising them of the consequences to their driving privileges takes a minimum of three minutes to read at a quick pace. Then discussion will obviously need to be had regarding sorting out whether the current offense qualifies as a first, second or subsequent offense, and license suspension periods naturally would need to be discussed. There would also need to be discussion regarding work and general life consequences stemming from refusing the test, passing the test or taking the test and failing. The persons decision at this point in time is extremely important and will have enduring if not permanent consequences from that point forward. This all being considered it is simple to see how the majority in the Court of Appeals concluded that the officer's termination of a 15 minute conversation with ones father in the middle of the night, was unreasonable when there was more than ample time remaining in the officers two-hour window.
Interestingly enough and not included in the court's opinion, is that the officer, when pressed as to the nature of the alleged off-topic conversation, the arresting officer could not articulate what inappropriate topics were being discussed. Also, not included in the opinion was the fact that Ms. Pettengill was arrested in the City of Marion. The officer chose, for no specific reason to transport Ms. Pettengill and her friend who was also arrested to Linn County as opposed to taking them to the much closer and more accessible Marion Police Department. This in-turn limited the time with which Ms. Pettengill would have had to place calls.
In conclusion, more litigation is likely immanent not only in this case but other cases relating to Iowa Code section 804.20. The Iowa Court of Appeals issued a rare en banc decision and was split 4-3 on the issue. The Iowa Attorney General's Office will likely request Further Review by the Iowa Supreme Court and it would not be a surprise if the Iowa Supreme Court accepted the case and addressed the issue in further detail, providing a clear and concise ruling clarifying any ambiguity that may exist on this issue.
An interesting discussion revealing at least the vocal general publics opinion on this case and operating while intoxicated cases in general can be found on the Des Moines Register's website.
On September 17th, the Iowa Court of Appeals, in an unusual en banc opinion ruled 4-3in favor of GRL client in State of Iowa vs. Brandee Pettengill. The operative facts of the case were that the arresting officer terminated Ms. Pettengill's telephone call to her father after only 15 minutes of conversation, claiming that she was talking about something other than whether or not to take or refuse the chemical breath test. The majority in the Court of Appeals concluded that: "Ultimately, we believe that, under a fair reading of section 804.20 and the supreme court's precedents, it was inappropriate to terminate the defendant's middle-of-the-night phone call to her father involuntarily after fifteen minutes where the defendant was not stalling and the overall purpose of the call was to obtain relevant information and advice, where forty-seven minutes still remained to conduct the breath test, and where the defendant was not advised of the right to make any other calls."
In Iowa, an arrested or detained individual has the statutory right to place phone calls and to see and consult with an attorney or family member or both, upon arriving at the place of detention. The arresting officer is not required to advise the person of this right, but when a request is made, it cannot be denied and an officer must advise the person to whom calls may be placed and for what purpose. Contrary to popular opinion, an individual arrested for OWI does not have the legal right to wait two hours before taking the test but they must be allowed a reasonable opportunity to contact and consult with an attorney or family member before making a decision regarding chemical testing. These attempts must be made in good faith and may not jeopardize the officer's two hour window within which he is required to offer the chemical breath test.
When a person, such as Ms. Pettengill requests the place a call and to contact an attorney or family member, the question inevitably arises as to how long the officer must wait or what is a "reasonable opportunity." Here, the facts were very clear. She made one phone call immediately upon being given the opportunity and that phone call was to her father. It was early in the morning and obviously an arrested person must be given some leeway as to what they may discuss with the person on the other end of the line above and beyond whether or not to take the test. A father or concerned parent will obviously first and foremost want to make sure the arrested person is physically ok and get a general reference point as to what happened. That being said, the implied consent advisory that is read to the person advising them of the consequences to their driving privileges takes a minimum of three minutes to read at a quick pace. Then discussion will obviously need to be had regarding sorting out whether the current offense qualifies as a first, second or subsequent offense, and license suspension periods naturally would need to be discussed. There would also need to be discussion regarding work and general life consequences stemming from refusing the test, passing the test or taking the test and failing. The persons decision at this point in time is extremely important and will have enduring if not permanent consequences from that point forward. This all being considered it is simple to see how the majority in the Court of Appeals concluded that the officer's termination of a 15 minute conversation with ones father in the middle of the night, was unreasonable when there was more than ample time remaining in the officers two-hour window.
Interestingly enough and not included in the court's opinion, is that the officer, when pressed as to the nature of the alleged off-topic conversation, the arresting officer could not articulate what inappropriate topics were being discussed. Also, not included in the opinion was the fact that Ms. Pettengill was arrested in the City of Marion. The officer chose, for no specific reason to transport Ms. Pettengill and her friend who was also arrested to Linn County as opposed to taking them to the much closer and more accessible Marion Police Department. This in-turn limited the time with which Ms. Pettengill would have had to place calls.
In conclusion, more litigation is likely immanent not only in this case but other cases relating to Iowa Code section 804.20. The Iowa Court of Appeals issued a rare en banc decision and was split 4-3 on the issue. The Iowa Attorney General's Office will likely request Further Review by the Iowa Supreme Court and it would not be a surprise if the Iowa Supreme Court accepted the case and addressed the issue in further detail, providing a clear and concise ruling clarifying any ambiguity that may exist on this issue.
An interesting discussion revealing at least the vocal general publics opinion on this case and operating while intoxicated cases in general can be found on the Des Moines Register's website.
Monday, August 31, 2009
Suspension of Fine - OWI 1st
The Iowa Court of Appeals has confirmed that the "minimum fine" on an Operating While Intoxicated, first offense, may be suspended in certain circumstances.
The attorneys at GRL Law first presented this scenario at the Iowa Judges Conference back in 2007, but it was met with scepticism. Arguments for suspension of civil penalties and fines were likewise subject to a luke-warm reception by sentencing judges although some were indeed granted.
Now with the Iowa Court of Appeals decision in State v. Kramer, it is official. What was commonly considered a mandatory minimum fine on OWI first offense, may indeed be suspended in certain circumstances. The defendant must meet the following 5 prerequisites: (1) BAC does not exceed .15; (2) no prior convictions for OWI; (3) no prior deferred judgment for OWI; (4) did not refuse chemical testing; and (5) no bodily injury to a person other than the defendant. In a nutshell, if the person qualifies for a deferred judgment on an OWI 1st offense, they also qualify to have the "mandatory minimum fine" suspended if a conviction is nonetheless imposed. This decision also opens up the doors for judges to suspend civil penalties when granting deferred judgments because pursuant to State v. Nail, when a fine can be suspended, so too may the applicable civil penalty.
The attorneys at GRL Law first presented this scenario at the Iowa Judges Conference back in 2007, but it was met with scepticism. Arguments for suspension of civil penalties and fines were likewise subject to a luke-warm reception by sentencing judges although some were indeed granted.
Now with the Iowa Court of Appeals decision in State v. Kramer, it is official. What was commonly considered a mandatory minimum fine on OWI first offense, may indeed be suspended in certain circumstances. The defendant must meet the following 5 prerequisites: (1) BAC does not exceed .15; (2) no prior convictions for OWI; (3) no prior deferred judgment for OWI; (4) did not refuse chemical testing; and (5) no bodily injury to a person other than the defendant. In a nutshell, if the person qualifies for a deferred judgment on an OWI 1st offense, they also qualify to have the "mandatory minimum fine" suspended if a conviction is nonetheless imposed. This decision also opens up the doors for judges to suspend civil penalties when granting deferred judgments because pursuant to State v. Nail, when a fine can be suspended, so too may the applicable civil penalty.
Monday, August 24, 2009
Proposed Amendment to Treatment of Crack Cocaine Offenses in Federal Criminal Prosecutions
The long awaited amendment to the United States Code removing the disparity between cocaine and crack cocaine offenses has finally been proposed. For decades crack cocaine offenses have been treated significantly harsher in the federal system than identical offenses involving only powder cocaine. The sentencing guidelines, until recently, resulted in a 100 to 1 disparity when it came to sentences handed down for those offenses. In other words, an individual involved in an crack cocaine offense involving 1 gram would be treated the same as an individual involved in a powder cocaine offense involving 100 grams. The laws made this provision even though the substances are all but identical and crack cocaine has not been scientifically proven to be inherently more addictive or dangerous.
The unequal treatment of powder vs. crack has also resulted in a concern that the laws themselves had a racially disparate effect on African Americans. Crack cocaine is much more common and prevalent in areas with higher African American populations and thus a larger percentage of that population has been subjected to increasingly longer sentences as a result of the disparity. According to the United States Sentencing Commission's 2007 report, although African Americans comprise only 27 percent of federal cocaine powder offenders, they comprise a staggering 81.8 percent of the federal crack cocaine offenders.
According to a memorandum released by the Administrative Office of the United States Courts, on Wednesday, July 29th, the United States House of Representatives Judiciary Committee approved H.R. 3245 entitled, "Fairness in Cocaine Sentencing Act of 2009" on a party-line vote of 16-9. The proposed legislation would completely eliminate all references to the crack form of cocaine in the federal criminal code. In effect, crack cocaine would be treated identical to powder cocaine. An example of the result if the legislation would pass would be that an individual charged with a crack cocaine drug offense involving 550 grams of crack cocaine would face a potential sentence of 5 - 40 years imprisonment as opposed to 10 - life which would have previously been required for merely 50 grams of crack cocaine. The proposed legislation is an incredible step in the right direction and would go a long way in minimizing the sentencing disparity that has for too long had a racially disparate impact in the federal criminal "justice" system.
However, the proposed legislation is just that; proposed. It will be some time before anything can reasonably be expected to come to fruition. According to the Administrative Office of the United States Courts memorandum, "the next step for this legislation would be action by the full House of Representatives" which would not occur before, at the earliest, September. It is also unclear whether the proposed legislation would also have any retroactively provisions allowing it to apply to individuals that have already been sentenced and are serving considerably longer sentences than they otherwise would be under the proposed amendments. More information can be found online at the Families Against Mandatory Minimums website. Interested individuals are encouraged to contact their representatives in both the House and Senate in support of the proposed legislation.
The unequal treatment of powder vs. crack has also resulted in a concern that the laws themselves had a racially disparate effect on African Americans. Crack cocaine is much more common and prevalent in areas with higher African American populations and thus a larger percentage of that population has been subjected to increasingly longer sentences as a result of the disparity. According to the United States Sentencing Commission's 2007 report, although African Americans comprise only 27 percent of federal cocaine powder offenders, they comprise a staggering 81.8 percent of the federal crack cocaine offenders.
According to a memorandum released by the Administrative Office of the United States Courts, on Wednesday, July 29th, the United States House of Representatives Judiciary Committee approved H.R. 3245 entitled, "Fairness in Cocaine Sentencing Act of 2009" on a party-line vote of 16-9. The proposed legislation would completely eliminate all references to the crack form of cocaine in the federal criminal code. In effect, crack cocaine would be treated identical to powder cocaine. An example of the result if the legislation would pass would be that an individual charged with a crack cocaine drug offense involving 550 grams of crack cocaine would face a potential sentence of 5 - 40 years imprisonment as opposed to 10 - life which would have previously been required for merely 50 grams of crack cocaine. The proposed legislation is an incredible step in the right direction and would go a long way in minimizing the sentencing disparity that has for too long had a racially disparate impact in the federal criminal "justice" system.
However, the proposed legislation is just that; proposed. It will be some time before anything can reasonably be expected to come to fruition. According to the Administrative Office of the United States Courts memorandum, "the next step for this legislation would be action by the full House of Representatives" which would not occur before, at the earliest, September. It is also unclear whether the proposed legislation would also have any retroactively provisions allowing it to apply to individuals that have already been sentenced and are serving considerably longer sentences than they otherwise would be under the proposed amendments. More information can be found online at the Families Against Mandatory Minimums website. Interested individuals are encouraged to contact their representatives in both the House and Senate in support of the proposed legislation.
Thursday, July 30, 2009
Is asleep behind the wheel operating?
The legal definition of "operating" in operating while intoxicated cases is being in "immediate actual physical control of a motor vehicle that is in motion or has its engine running." The question that arises from time to time is what about the individual is fast asleep behind the wheel when law enforcement comes into contact with them? Is that individual in "immediate actual physical control?"
The common sense answer to this question is "no." A basic reading of the definition reveals that it requires action or the immediate ability to act as it pertains to controlling or manipulating the vehicle. An individual that is asleep has no immediate or actual ability to do anything other than continue sleeping. The Iowa Supreme Court has agreed with this statement in the unpublished decision of State v. Worrall. In Worrall, the Iowa Supreme Court concluded that "we are unable to conclude that a person is in 'actual phsyical control' of a motor vehicle while engaged in a deep sleep."
The Iowa Supreme Court's decision in Worrall makes sense given the stated purpose behind Iowa's drunk driving laws which is the prevention of the death and destruction of life that often times unfortunately accompanies drunk driving. Why would the legislature want to punish an individual who has made the correct decision of not driving merely because they are sleeping behind the wheel of a vehicle that has its engine running. The alternative of racing law enforcement home hoping that one does not get caught is simply not acceptable. It would be ludicrous to punish a person for doing the right thing. It is one thing for the individual to be passed out behind the wheel of a car that is running in the middle of traffic on a public highway or road it is quite another thing for the individual to have the wherewithall to either remain parked or pull off and park safely keeping the general public's best interest and safety in mind. This is especially so in areas with extreme climates such as Iowa where the engine must be running in order to keep the vehicle warm or cool enough so that sleeeping person does not befall additional peril.
Some states have adpoted and actually legislated something called the "shelter doctrine" which is an affirmative defense wherein if an individual voluntarily pulls off the road upon realizing that they are not in the proper condition to drive, they have an affirmative defense to any drunk driving charge that may be brought. Iowa has not adopted any such law but does not necessarily need to since "immediate actual phsyical control" does not encompass an individual that is fast asleep behind the wheel of a vehicle even if the engine is running.
The common sense answer to this question is "no." A basic reading of the definition reveals that it requires action or the immediate ability to act as it pertains to controlling or manipulating the vehicle. An individual that is asleep has no immediate or actual ability to do anything other than continue sleeping. The Iowa Supreme Court has agreed with this statement in the unpublished decision of State v. Worrall. In Worrall, the Iowa Supreme Court concluded that "we are unable to conclude that a person is in 'actual phsyical control' of a motor vehicle while engaged in a deep sleep."
The Iowa Supreme Court's decision in Worrall makes sense given the stated purpose behind Iowa's drunk driving laws which is the prevention of the death and destruction of life that often times unfortunately accompanies drunk driving. Why would the legislature want to punish an individual who has made the correct decision of not driving merely because they are sleeping behind the wheel of a vehicle that has its engine running. The alternative of racing law enforcement home hoping that one does not get caught is simply not acceptable. It would be ludicrous to punish a person for doing the right thing. It is one thing for the individual to be passed out behind the wheel of a car that is running in the middle of traffic on a public highway or road it is quite another thing for the individual to have the wherewithall to either remain parked or pull off and park safely keeping the general public's best interest and safety in mind. This is especially so in areas with extreme climates such as Iowa where the engine must be running in order to keep the vehicle warm or cool enough so that sleeeping person does not befall additional peril.
Some states have adpoted and actually legislated something called the "shelter doctrine" which is an affirmative defense wherein if an individual voluntarily pulls off the road upon realizing that they are not in the proper condition to drive, they have an affirmative defense to any drunk driving charge that may be brought. Iowa has not adopted any such law but does not necessarily need to since "immediate actual phsyical control" does not encompass an individual that is fast asleep behind the wheel of a vehicle even if the engine is running.
Friday, July 24, 2009
Court of Appeals Says Jogging While Black is Enough
Jogging while black, 4 1/2 blocks away from the scene of a bank robbery justifies the violation of an individuals privacy. Say it isn't so!
On July 22, 2009, the Iowa Court of Appeals decided the case of State of Iowa vs. Antony Sherrod. In doing so the Court held that a black man "wearing dark clothing and jogging, walking real fast" 4 1/2 blocks away from where a credit union was robbed by a black man wearing "a light blue coat, baggy blue jeans" was sufficient to justify the police officer to stop him and order him to the ground.
The Court of Appeals decision creates legal authority for law enforcement to stop an individual with the same skin pigmentation as a suspect within a 4 block radius of where a crime took place. This simply cannot jive with the mandates of the 4th Amendment that before an officer may intrude upon an individual’s freedom and expectation of privacy, he must first have specific and articulable facts that justify that intrusion and a mere suspicion or hunch is not sufficient. It has also long been established that merely being in close proximity to where a crime has occurred is insufficient to justify such an intrusion. Finally, the constitution requires that the government take the steps that result in the least intrusion into an individuals privacy when investigating suspected criminal activity.
The purpose behind these constitutional requirements is to maximize citizens’ privacy and require officer’s to engage in effective and thorough police work. Privacy trumps law enforcement interests unless the proper investigation is undertaken that reveals the necessary evidence providing probable cause. In the classic admonition by United States Supreme Court Justice Bradley: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.” Boyd v. United States, 116 U.S. 616, 635 (1886). Unfortunately, trial courts and evidently appellate courts appear to be more and more, disregarding the fundamental principals of our constitution and are sanctioning law enforcement taking “easy street” in their investigations. They are allowing law enforcement to cut corners because they believe that they got the right guy and it is much more “efficient” to jump to conclusions than to do a thorough, objective and unbiased investigation that requires patience and time. This is the same attitude that has resulted in countless wrongful convictions based upon shoddy police and forensic work throughout the nation. More importantly this ruling in essence, sanctions seizure of individual's persons based upon skin color and location to criminal activity, opening up an entirely different can of worms that is only magnified by the recent arrest of distinguished Harvard Professor, Henry Louis Gates, Jr.
It would be easy in Mr. Sherrod’s case to argue “well they got the right guy” which may well have been the court’s mindset; however the constitution requires that the courts focus be on the information available to the officer at the time of the search. A search or seizure cannot be validated merely because it turned out that the officer was correct. To do so would be to create a body of law that utterly disregards what must be present prior to the invasion of privacy and utterly undermine the spirit and purpose of the 4th Amendment. Innocent people would be searched without justification but because evidence was not discovered, they would never be charged and the matter would likely never come up before the court to tell law enforcement that what they did was illegal. The danger that arises from the Sherrod ruling is that subsequent law enforcement actions are based upon prior appellate court decisions. Thus, law enforcement is not armed with legal authority to stop and detain individuals of the same color in the general vicinity of a crime. This opens the door to wholesale abuse by law enforcement.
One may ask, what should the officer had done? The answer is quite simple; wait, watch and conduct a legitimate investigation. The description of the suspect that was given by the victims of the robbery was very specific. The individual was wearing a light blue coat and baggy blue jeans. The robbery took place at 12:02 p.m., in broad daylight. The officer could have followed the suspect, determined whether the specifics of what he observed, i.e. height, weight, build, clothing, matched the specific description provided by the victims as opposed to taking immediate action based upon his observation of “dark clothing.” The officer could also have made his presence known and watched the suspect’s reaction. If suspect appeared nervous, began running or acted in an otherwise suspicious manner, the specific and articulable facts creating probable cause would have obviously increased. A little bit of time and patience by the officer would have alleviated any question as to the legality of the intrusion into Mr. Sherrod’s privacy. What many members of the public and even law enforcement officers do not understand is that law enforcement itself is often times a criminal’s best friend. In their haste to “collar the bad guy” officers jump the gun creating arguments and issues for the defendant when a patient, well executed, investigation could easily eliminate any legitimate argument that a defendant may have once the case gets to court.
Mr. Sherrod still has the opportunity to ask the Iowa Supreme Court to review the Court of Appeals decision, and hopefully, the Iowa Supreme Court will recognize the gravity of the ruling in this case and exercise its corrective function and accept and correct this controversial and potentially dangerous decision.
On July 22, 2009, the Iowa Court of Appeals decided the case of State of Iowa vs. Antony Sherrod. In doing so the Court held that a black man "wearing dark clothing and jogging, walking real fast" 4 1/2 blocks away from where a credit union was robbed by a black man wearing "a light blue coat, baggy blue jeans" was sufficient to justify the police officer to stop him and order him to the ground.
The Court of Appeals decision creates legal authority for law enforcement to stop an individual with the same skin pigmentation as a suspect within a 4 block radius of where a crime took place. This simply cannot jive with the mandates of the 4th Amendment that before an officer may intrude upon an individual’s freedom and expectation of privacy, he must first have specific and articulable facts that justify that intrusion and a mere suspicion or hunch is not sufficient. It has also long been established that merely being in close proximity to where a crime has occurred is insufficient to justify such an intrusion. Finally, the constitution requires that the government take the steps that result in the least intrusion into an individuals privacy when investigating suspected criminal activity.
The purpose behind these constitutional requirements is to maximize citizens’ privacy and require officer’s to engage in effective and thorough police work. Privacy trumps law enforcement interests unless the proper investigation is undertaken that reveals the necessary evidence providing probable cause. In the classic admonition by United States Supreme Court Justice Bradley: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.” Boyd v. United States, 116 U.S. 616, 635 (1886). Unfortunately, trial courts and evidently appellate courts appear to be more and more, disregarding the fundamental principals of our constitution and are sanctioning law enforcement taking “easy street” in their investigations. They are allowing law enforcement to cut corners because they believe that they got the right guy and it is much more “efficient” to jump to conclusions than to do a thorough, objective and unbiased investigation that requires patience and time. This is the same attitude that has resulted in countless wrongful convictions based upon shoddy police and forensic work throughout the nation. More importantly this ruling in essence, sanctions seizure of individual's persons based upon skin color and location to criminal activity, opening up an entirely different can of worms that is only magnified by the recent arrest of distinguished Harvard Professor, Henry Louis Gates, Jr.
It would be easy in Mr. Sherrod’s case to argue “well they got the right guy” which may well have been the court’s mindset; however the constitution requires that the courts focus be on the information available to the officer at the time of the search. A search or seizure cannot be validated merely because it turned out that the officer was correct. To do so would be to create a body of law that utterly disregards what must be present prior to the invasion of privacy and utterly undermine the spirit and purpose of the 4th Amendment. Innocent people would be searched without justification but because evidence was not discovered, they would never be charged and the matter would likely never come up before the court to tell law enforcement that what they did was illegal. The danger that arises from the Sherrod ruling is that subsequent law enforcement actions are based upon prior appellate court decisions. Thus, law enforcement is not armed with legal authority to stop and detain individuals of the same color in the general vicinity of a crime. This opens the door to wholesale abuse by law enforcement.
One may ask, what should the officer had done? The answer is quite simple; wait, watch and conduct a legitimate investigation. The description of the suspect that was given by the victims of the robbery was very specific. The individual was wearing a light blue coat and baggy blue jeans. The robbery took place at 12:02 p.m., in broad daylight. The officer could have followed the suspect, determined whether the specifics of what he observed, i.e. height, weight, build, clothing, matched the specific description provided by the victims as opposed to taking immediate action based upon his observation of “dark clothing.” The officer could also have made his presence known and watched the suspect’s reaction. If suspect appeared nervous, began running or acted in an otherwise suspicious manner, the specific and articulable facts creating probable cause would have obviously increased. A little bit of time and patience by the officer would have alleviated any question as to the legality of the intrusion into Mr. Sherrod’s privacy. What many members of the public and even law enforcement officers do not understand is that law enforcement itself is often times a criminal’s best friend. In their haste to “collar the bad guy” officers jump the gun creating arguments and issues for the defendant when a patient, well executed, investigation could easily eliminate any legitimate argument that a defendant may have once the case gets to court.
Mr. Sherrod still has the opportunity to ask the Iowa Supreme Court to review the Court of Appeals decision, and hopefully, the Iowa Supreme Court will recognize the gravity of the ruling in this case and exercise its corrective function and accept and correct this controversial and potentially dangerous decision.
Tuesday, June 9, 2009
DUI vs. OWI
What is the difference between DUI and OWI? Primarily the name but there are also little nuances that justify the different acronyms.
DUI stands for "Driving Under the Influence." OWI stands for "Operating While Under the Influence." In the State of Iowa, it is illegal to operate a motor vehicle while under the influence of alcohol and thus, Iowa uses the acronym OWI. Other states only prohibit driving while under the influence and thus use the acronym DUI. "Operating" under most state laws has a broader definition than "driving" and thus, casts a much wider net. In fact, Iowa defines "Operating" as "being in physical control of a motor vehicle that is in motion or has its engine running." That being the case, one is always "operating" when "driving" but not always "driving" when "operating." Other acronyms such as OMVUI and OUI and DWI which have their own definitions that are much the same but with similar subtle but important distinctions.
Aside from those distinctions, in normal everyday conversations DUI and OWI really mean about the same thing. They are acronyms for drunk driving charges. DUI is the most commonly used because most States prohibit "driving" and not necessarily "operating." As a consequence DUI is the most common acronym used for drunk driving charges.
On an important side note the offense of Operating While Intoxicated in Iowa is Iowa's drunk driving charge. It can be committed in three different ways but the offense is still drunk driving as it is commonly referred to. Whether the person is accused of having an alcohol concentration over .08, being "under the influence of alcohol", having any amount of controlled substances in their system, or a combination of alcohol and controlled substance, the charge is still OWI and the consequences are the same regardless of how it is defined. These charges cary some of the most severe penalties of any misdemeanor offense in this State and must be taken very seriously.
Know your rights; Exercise your rights; Preserve your freedom
DUI stands for "Driving Under the Influence." OWI stands for "Operating While Under the Influence." In the State of Iowa, it is illegal to operate a motor vehicle while under the influence of alcohol and thus, Iowa uses the acronym OWI. Other states only prohibit driving while under the influence and thus use the acronym DUI. "Operating" under most state laws has a broader definition than "driving" and thus, casts a much wider net. In fact, Iowa defines "Operating" as "being in physical control of a motor vehicle that is in motion or has its engine running." That being the case, one is always "operating" when "driving" but not always "driving" when "operating." Other acronyms such as OMVUI and OUI and DWI which have their own definitions that are much the same but with similar subtle but important distinctions.
Aside from those distinctions, in normal everyday conversations DUI and OWI really mean about the same thing. They are acronyms for drunk driving charges. DUI is the most commonly used because most States prohibit "driving" and not necessarily "operating." As a consequence DUI is the most common acronym used for drunk driving charges.
On an important side note the offense of Operating While Intoxicated in Iowa is Iowa's drunk driving charge. It can be committed in three different ways but the offense is still drunk driving as it is commonly referred to. Whether the person is accused of having an alcohol concentration over .08, being "under the influence of alcohol", having any amount of controlled substances in their system, or a combination of alcohol and controlled substance, the charge is still OWI and the consequences are the same regardless of how it is defined. These charges cary some of the most severe penalties of any misdemeanor offense in this State and must be taken very seriously.
Know your rights; Exercise your rights; Preserve your freedom
Monday, June 8, 2009
Internet: A Client's Worst or Best Enemy
In todays modern world, it is hard to imagine how society would function without the internet. With the ease of posting pictures and text to forums such as Twitter, MySpace, and Facebook, it is becoming increasingly easy to obtain information on people. In fact, I would venture that running a simple Google search on about anyone would provide an interested party with some information. However, the ease and benefits that the internet has created for information seekers does not come without consequences, especially for those who are parties to litigation.
For example, take the individual who was charged with hitting and killing a motorcylist when she was drunk. Despite her attorney's hard work to get her out of jail pending trial on the condition that she abstain from alcohol, she decided that it would be a good idea to have pictures taken of her consuming alcohol at a fraternity party. Unfortunatley for this individual, these pictures were posted on the internet and fell into the hands of the prosecutor on her case who quickly asked for a bond review hearing because of the obvious violations to her release.
Or how about the judge who was recently reprimanded in North Carolina for "friending" an attorney on Facebook who was involved in pending litigation before him and who also actively sought out one of the litigants websites and comented at the trial about a poem posted on that litigant's website. The judge was reprimanded for ex parte communications and independent information gathering which indicated a disregard for the principles of judicial conduct. http://www.abajournal.com/weekly/judge_reprimanded_for_friending_lawyer_and_googling_litigant
The interent makes it much easier to break down the walls of privacy and engage in activites that may be detrimental to a person's pending litigation, their personal lives, and even their careers. I have often times sat at home at night after picking a jury wondering what a juror would be able to find out about my client, myself, or the judge, if they decided to break their oath and actively seek out information, and how that information would be beneficial or detrimental to my client's case. Our firm has also actively sought discovery from opposing parties concerning their MySpace or Facebook pages and have been provided with text from MySpace pages which has allowed criminal charges to be dismissed in some cases. In todays technologically advancing world it may even be bordering on malpractice for an attorney to forgoe seeking out information about an opposing party by way of photos, text, or other information that may be useful in impeaching or attacking the credibility of an opposing party.
Suffice it to say that if you are the party to litigation, an attorney representing a client, or even a judge, it would be wise to know what information is available to the general public via the internet about you personally and professionally and then judge how that information may impact a pending case.
For example, take the individual who was charged with hitting and killing a motorcylist when she was drunk. Despite her attorney's hard work to get her out of jail pending trial on the condition that she abstain from alcohol, she decided that it would be a good idea to have pictures taken of her consuming alcohol at a fraternity party. Unfortunatley for this individual, these pictures were posted on the internet and fell into the hands of the prosecutor on her case who quickly asked for a bond review hearing because of the obvious violations to her release.
Or how about the judge who was recently reprimanded in North Carolina for "friending" an attorney on Facebook who was involved in pending litigation before him and who also actively sought out one of the litigants websites and comented at the trial about a poem posted on that litigant's website. The judge was reprimanded for ex parte communications and independent information gathering which indicated a disregard for the principles of judicial conduct. http://www.abajournal.com/weekly/judge_reprimanded_for_friending_lawyer_and_googling_litigant
The interent makes it much easier to break down the walls of privacy and engage in activites that may be detrimental to a person's pending litigation, their personal lives, and even their careers. I have often times sat at home at night after picking a jury wondering what a juror would be able to find out about my client, myself, or the judge, if they decided to break their oath and actively seek out information, and how that information would be beneficial or detrimental to my client's case. Our firm has also actively sought discovery from opposing parties concerning their MySpace or Facebook pages and have been provided with text from MySpace pages which has allowed criminal charges to be dismissed in some cases. In todays technologically advancing world it may even be bordering on malpractice for an attorney to forgoe seeking out information about an opposing party by way of photos, text, or other information that may be useful in impeaching or attacking the credibility of an opposing party.
Suffice it to say that if you are the party to litigation, an attorney representing a client, or even a judge, it would be wise to know what information is available to the general public via the internet about you personally and professionally and then judge how that information may impact a pending case.
Friday, June 5, 2009
June Traffic Enforcement Crackdown
The Iowa State Patrol announced on June 4th, a campaign to step up enforcement of traffic violations during the month of June. http://www.dps.state.ia.us/commis/pib/Releases/2009/06-03-2009_SafeSaturdays.htm. According to the State Patrol's press release "statistics indicate the month of June is one of the deadlier months for traffic fatalities in Iowa." The majority of these fatalities occur on Saturday nights so the special enforcement effort is being dubbed "Safe Saturdays."
The stepped up enforcement will focus on cracking down on speeding, seat belt usage, and drunk driving. Each Saturday during June a different District will activate its entire work force between the hours of 5:30 p.m. and 2:00 a.m. with all uniformed members of the patrol participating in these projects, regardless of rank. Bottom line is that the highways will be crawling with State Troopers looking for the slightest possible traffic infraction to "justify" stopping vehicles to investigate them for OWI/DUI. Aggressive enforcement of traffic laws will likely be an understatement. If you have not already, now is the time to ensure that all of the equipment on your vehicle is in proper working order because the smallest infraction will give law enforcement sufficient reason to pull you over. (Top 10 Ways to Avoid a DUI). Now is also a good time to refresh your understanding of your rights (OWI and Your Rights) and request an Iowa Driver's Rights Card. In the unfortunate event that you are stopped and investigated for Operating While Intoxicated what you do and say from the moment you are stopped can make all the difference.
The Department of Public Safety has released a schedule for the stepped up enforcement but you can be certain that all law enforcement agencies will be increasing patrols and enforcement at all times through out the summer months and especially during the month of June. A word of warning, it is a pattern of Iowa law enforcement agencies and specifically the Department of Public Safety to announce a formal crack down on one weekend but actually step up enforcement on other dates that are not advertised. Govern yourself accordingly. The "published" schedule is as follows:
June 6th:
District 1: Includes Des Moines, Ames, Marshalltown, Boone and Newton
District 6: Spencer, Estherville, Orange city, Sibley, and the Lakes area
District 7: Fort Dodge, Webster City, Algona, Rockwell City, Clarion and Pocahontas
District 12: Davenport, Muscatine, Clinton, Anamosa and Maquoketa
June 13th:
District 3: Council Bluffs, Red Oak, Shenandoah, Atlantic, and Corning
District 8: Mason City, Charles City, Clear Lake, Forest City and Cresco
District 13: Fairfield, Mount Pleasant, Burlington, Washington, Keokuk and Fort Madison
June 20th:
District 2: Osceola, Creston, Chariton, Indianola and Lamoni
District 5: Sioux City, Cherokee, Storm Lake and Ida Grove
District 9: Cedar Falls, Waterloo, Waverly, Iowa Falls and Grundy Center
June 27th:
District 4: Carroll, Denison, Jefferson, Audubon and Harlan
District 10: Dubuque, Oelwein, Decorah and Independence
The stepped up enforcement will focus on cracking down on speeding, seat belt usage, and drunk driving. Each Saturday during June a different District will activate its entire work force between the hours of 5:30 p.m. and 2:00 a.m. with all uniformed members of the patrol participating in these projects, regardless of rank. Bottom line is that the highways will be crawling with State Troopers looking for the slightest possible traffic infraction to "justify" stopping vehicles to investigate them for OWI/DUI. Aggressive enforcement of traffic laws will likely be an understatement. If you have not already, now is the time to ensure that all of the equipment on your vehicle is in proper working order because the smallest infraction will give law enforcement sufficient reason to pull you over. (Top 10 Ways to Avoid a DUI). Now is also a good time to refresh your understanding of your rights (OWI and Your Rights) and request an Iowa Driver's Rights Card. In the unfortunate event that you are stopped and investigated for Operating While Intoxicated what you do and say from the moment you are stopped can make all the difference.
The Department of Public Safety has released a schedule for the stepped up enforcement but you can be certain that all law enforcement agencies will be increasing patrols and enforcement at all times through out the summer months and especially during the month of June. A word of warning, it is a pattern of Iowa law enforcement agencies and specifically the Department of Public Safety to announce a formal crack down on one weekend but actually step up enforcement on other dates that are not advertised. Govern yourself accordingly. The "published" schedule is as follows:
June 6th:
District 1: Includes Des Moines, Ames, Marshalltown, Boone and Newton
District 6: Spencer, Estherville, Orange city, Sibley, and the Lakes area
District 7: Fort Dodge, Webster City, Algona, Rockwell City, Clarion and Pocahontas
District 12: Davenport, Muscatine, Clinton, Anamosa and Maquoketa
June 13th:
District 3: Council Bluffs, Red Oak, Shenandoah, Atlantic, and Corning
District 8: Mason City, Charles City, Clear Lake, Forest City and Cresco
District 13: Fairfield, Mount Pleasant, Burlington, Washington, Keokuk and Fort Madison
June 20th:
District 2: Osceola, Creston, Chariton, Indianola and Lamoni
District 5: Sioux City, Cherokee, Storm Lake and Ida Grove
District 9: Cedar Falls, Waterloo, Waverly, Iowa Falls and Grundy Center
June 27th:
District 4: Carroll, Denison, Jefferson, Audubon and Harlan
District 10: Dubuque, Oelwein, Decorah and Independence
Wednesday, May 27, 2009
New Law Gives CDL Holders Hope
Much litigation and debate has centered around how/why the Department of Transportation is able to disqualify a persons' commercial driving privileges following an arrest for operating while intoxicated. As of May 22, 2009, it appears that much of that ligation and debate may be over. Back in 2005, the Iowa legislature amended Iowa Code Section 321.208 to allow for the disqualification of a person's commercial driving privileges following an arrest for operating while intoxicated even if they were driving their personal vehicle. The disqualification would be for one year in the event the person refused to submit to chemical testing or was found or plead guilty to operating while under the influence and it was a first offense. The disqualification would be for life if the person's commercial driving privileges had previously been disqualified.
The unfriendly part about the legislation back in 2005, is that although the statute allowing for disqualification of a commercial driver's license was amended to allow for disqualification of a commercial driver's license even if the person was driving their non-commercial vehicle, Iowa Code Section 321J.8, which is the code section dealing with what warnings a motorist is to be given prior to being asked to submit to chemical testing, was not. Thus, a situation was created whereby motorists holding commercial driver's licenses were not being advised about the disqualification consequences to their CDL licenses and were only being told about the consequences to their non-commercial driving privileges which were for different periods of time. Thankfully, the Iowa Supreme Court addressed this issue in State v. Massengale, 745 N.W.2d 499 (Iowa 2008), and determined that it was a violation of due process for failing to adequately inform motorists holding a commercial driver's license how their CDL license could be disqualified following an arrest for operating while intoxicated.
Nevertheless, holders of commercial drivers licenses were still being treated different and were at a disadvantage. Iowa Code Section 321J.13(6)(c) allowed for a person who had successfully suppressed their breath test results or breath test refusal from being admissible in trial to petition the Department of Transportation to reinstate their non-commercial driving privileges. However, this code section did not apply to commercial driving privileges. See Wiebenga v. IDOT, 530 N.W.2d 732 (Iowa 1995). Thus, motorists who had either their statutory or constitutional rights violated which resulted in the suppression of their chemical test or chemical test refusal had an avenue to get their non-commercial driving privileges reinstated but no such avenue existed for reinstatement of a person's commercial driving privileges for the same statutory or constitutional violations.
This year the Iowa legislature wisely acknowledged the disadvantage that was being bestowed upon holders of commercial drivers licenses, and proposed Senate File 419. That file proposed changes to Iowa Code Section 321.208 to clarify how/when a persons commercial driving privileges can be disqualified following an arrest/conviction for operating while intoxicated but more importantly amended Iowa Code Section 321J.13(6)(c) to provide an avenue for the holders of commercial drivers licenses to petition the Department of Transportation to reinstate those privileges following a successful motion to suppress. Thus, if a motorist is able to get their chemical test result or test refusal suppressed and held inadmissible at trial on the criminal side of their case, they can petition the Department of Transportation to reinstate (or keep from disqualifying) their commercial driving privileges. Senate File 419 was signed by Governor Culver on May 22, 2009, and the portion of that bill amending Iowa Code Section 321J.13(6)(c) became effective immediately and is applied retroactively back to January 1, 2005.
Simply stated, if you or someone you know was arrested for operating while intoxicated dating back to January 1, 2005, and held a commercial drivers license but was able to reinstate their non-commercial driving privileges as a result of a successful motion to suppress on the criminal case, SF419 appears to allow reinstate of the commercial driving privileges or removal of the disqualification of the commercial driving privileges arising out of that event. It would be best for those individuals to contact an attorney who is competent on these issues.
The unfriendly part about the legislation back in 2005, is that although the statute allowing for disqualification of a commercial driver's license was amended to allow for disqualification of a commercial driver's license even if the person was driving their non-commercial vehicle, Iowa Code Section 321J.8, which is the code section dealing with what warnings a motorist is to be given prior to being asked to submit to chemical testing, was not. Thus, a situation was created whereby motorists holding commercial driver's licenses were not being advised about the disqualification consequences to their CDL licenses and were only being told about the consequences to their non-commercial driving privileges which were for different periods of time. Thankfully, the Iowa Supreme Court addressed this issue in State v. Massengale, 745 N.W.2d 499 (Iowa 2008), and determined that it was a violation of due process for failing to adequately inform motorists holding a commercial driver's license how their CDL license could be disqualified following an arrest for operating while intoxicated.
Nevertheless, holders of commercial drivers licenses were still being treated different and were at a disadvantage. Iowa Code Section 321J.13(6)(c) allowed for a person who had successfully suppressed their breath test results or breath test refusal from being admissible in trial to petition the Department of Transportation to reinstate their non-commercial driving privileges. However, this code section did not apply to commercial driving privileges. See Wiebenga v. IDOT, 530 N.W.2d 732 (Iowa 1995). Thus, motorists who had either their statutory or constitutional rights violated which resulted in the suppression of their chemical test or chemical test refusal had an avenue to get their non-commercial driving privileges reinstated but no such avenue existed for reinstatement of a person's commercial driving privileges for the same statutory or constitutional violations.
This year the Iowa legislature wisely acknowledged the disadvantage that was being bestowed upon holders of commercial drivers licenses, and proposed Senate File 419. That file proposed changes to Iowa Code Section 321.208 to clarify how/when a persons commercial driving privileges can be disqualified following an arrest/conviction for operating while intoxicated but more importantly amended Iowa Code Section 321J.13(6)(c) to provide an avenue for the holders of commercial drivers licenses to petition the Department of Transportation to reinstate those privileges following a successful motion to suppress. Thus, if a motorist is able to get their chemical test result or test refusal suppressed and held inadmissible at trial on the criminal side of their case, they can petition the Department of Transportation to reinstate (or keep from disqualifying) their commercial driving privileges. Senate File 419 was signed by Governor Culver on May 22, 2009, and the portion of that bill amending Iowa Code Section 321J.13(6)(c) became effective immediately and is applied retroactively back to January 1, 2005.
Simply stated, if you or someone you know was arrested for operating while intoxicated dating back to January 1, 2005, and held a commercial drivers license but was able to reinstate their non-commercial driving privileges as a result of a successful motion to suppress on the criminal case, SF419 appears to allow reinstate of the commercial driving privileges or removal of the disqualification of the commercial driving privileges arising out of that event. It would be best for those individuals to contact an attorney who is competent on these issues.
Friday, May 22, 2009
Providing Alcohol To Minors . . . . It's NOT Worth It
In this season of high school graduation and the family celebrations and party's that follow, the issue inevitably arises over whether or not parents or other individuals over the age of 21 should be providing alcohol to minors. During these debates, without a doubt, one parent will always respond "they are going to do it anyway, I'd rather have them do it in my basement where I can keep them from driving." While this response is understandable, it is mislead and is the beginning of a recipe for disaster. The risk in these situations far outweighs any benefit that could conceivably be achieved.
Every year around this time the news is filled with stories of high school graduates that are tragically killed in car accidents in which alcohol was involved. Often times the alcohol turns out to be provided by a parent operating under the same theory as set forth above. Regardless of how watchful or vigilant a "supervising" parent may be, teenagers are that much more creative in ultimately doing their own thing and avoiding detection. The idea that a parent can successfully watch a group of teenagers who are drinking and prevent them all from driving, if that is indeed what they want to do, is nothing short of naive. The only responsible parenting is to not provide alcohol to minors, regardless of the setting, and to further keep an even more watchful eye on our own children, knowing that the potential consequences are tragic and permanent.
In case the distinct possibility of tragic premature loss of life is not enough to prevent "cool parents" from providing alcohol to minors, the laws criminalizing this behavior have recently been beefed up. Just the act of providing alcohol to a minor is a Serious Misdemeanor punishable by up to one year in jail, and a minimum fine of $500 which can be as high as $1,875. If serious injury results from the provision of alcohol to a minor, the offense becomes an Aggravated Misdemeanor punishable by imprisonment of up to 2 years and a fine of up to $6,250. Finally, if death occurs, the offense becomes a Class D Felony punishable by up to 5 years in prison and a fine of up to $7,500. Prison sentences are routinely handed out on these cases regardless of the Defendant's prior criminal history or status within the community.
Finally, if death or injury does result from providing alcohol to a minor, a costly civil suit will also likely follow the criminal prosecution. Bottom line is that it is not worth it! Lets have a safe and festive graduation season without putting our recent graduates in situations where tragedy is likely to follow.
Every year around this time the news is filled with stories of high school graduates that are tragically killed in car accidents in which alcohol was involved. Often times the alcohol turns out to be provided by a parent operating under the same theory as set forth above. Regardless of how watchful or vigilant a "supervising" parent may be, teenagers are that much more creative in ultimately doing their own thing and avoiding detection. The idea that a parent can successfully watch a group of teenagers who are drinking and prevent them all from driving, if that is indeed what they want to do, is nothing short of naive. The only responsible parenting is to not provide alcohol to minors, regardless of the setting, and to further keep an even more watchful eye on our own children, knowing that the potential consequences are tragic and permanent.
In case the distinct possibility of tragic premature loss of life is not enough to prevent "cool parents" from providing alcohol to minors, the laws criminalizing this behavior have recently been beefed up. Just the act of providing alcohol to a minor is a Serious Misdemeanor punishable by up to one year in jail, and a minimum fine of $500 which can be as high as $1,875. If serious injury results from the provision of alcohol to a minor, the offense becomes an Aggravated Misdemeanor punishable by imprisonment of up to 2 years and a fine of up to $6,250. Finally, if death occurs, the offense becomes a Class D Felony punishable by up to 5 years in prison and a fine of up to $7,500. Prison sentences are routinely handed out on these cases regardless of the Defendant's prior criminal history or status within the community.
Finally, if death or injury does result from providing alcohol to a minor, a costly civil suit will also likely follow the criminal prosecution. Bottom line is that it is not worth it! Lets have a safe and festive graduation season without putting our recent graduates in situations where tragedy is likely to follow.
When a drunk driving charge is reduced to a mere traffic ticket
Plan "A" is beat the case. . . . Plan "B" is minimize the damage and obtain the best possible resolution that has the least negative impact on a clients life. That is the plan of attack for the drunk driving defense lawyers at GRL Law.
Whether it is a 1st, 2nd or 3rd offense operating while intoxicated offense, the defendant is facing some of the most severe mandatory minimum penalties for misdemeanors of Class D felony offenses. A person charged with drunk driving in the State of Iowa is looking at mandatory minimum jail time and the highest mandatory minimum fines of any criminal offense in this state. See http://www.grllaw.com/CM/Custom/Criminal-Penalties.asp. That being the case, an aggressive defense from the outset of the case is paramount to obtaining the best possible result. The more holes that can be poked in the State's case the better the ultimate resolution will be for the Defendant. Prosecutors hate to take cases that are not sure victories to trial. The worse the case for the prosecution the more likely there is for a favorable resolution or all out dismissal.
Not every case results in an all out acquittal or dismissal and likewise not all cases end with a guilty plea or guilty verdict to the charged offense. This is because in the majority of cases, plea bargaining takes place. A reduction from Operating While Intoxicated to a traffic offense or simple misdemeanor is a victory regardless of the case. Reckless Driving or Public Intoxication http://www.grllaw.com/CM/Custom/Pulic-Intoxication-Iowa.asp is always better than a conviction for Operating While Intoxicated. Mandatory minimum jail time is avoided and the fines are much lower not to mention the fact that no Operating While Intoxicated conviction is on the person's criminal record for the rest of their life. Reduction of charges are not just given away because someone is a good person, has lots of money, knows the right people or any other reason than a factual or legal issue that weakens the prosecutions case. It is these weaknesses that drive a reduction of charges and nothing else.
While an aggressive drunk driving defense lawyer, such as the lawyers at GRL Law (http://www.grllaw.com/CM/Custom/Attorneys.asp), is an important piece in securing a favorable resolution such as a reduced charge, what the defendant does from the time he/she is pulled over to the time that an attorney gets involved is equally important. Even the best lawyer can't change the facts of a case once they are established. While facts can be developed in certain ways to benefit a client, the core facts will always remain unchanged. That being the case, it is important for people to know and understand their rights and responsibilities before getting in a position where they are faced with a drunk driving charge. For more information regarding avoiding a DUI please refer to our prior blog at http://grllaw.blogspot.com/2008/08/dui-prevention-top-ten-ways-to-avoid.html
Know your rights; Exercise your rights; Preserve your freedom
Whether it is a 1st, 2nd or 3rd offense operating while intoxicated offense, the defendant is facing some of the most severe mandatory minimum penalties for misdemeanors of Class D felony offenses. A person charged with drunk driving in the State of Iowa is looking at mandatory minimum jail time and the highest mandatory minimum fines of any criminal offense in this state. See http://www.grllaw.com/CM/Custom/Criminal-Penalties.asp. That being the case, an aggressive defense from the outset of the case is paramount to obtaining the best possible result. The more holes that can be poked in the State's case the better the ultimate resolution will be for the Defendant. Prosecutors hate to take cases that are not sure victories to trial. The worse the case for the prosecution the more likely there is for a favorable resolution or all out dismissal.
Not every case results in an all out acquittal or dismissal and likewise not all cases end with a guilty plea or guilty verdict to the charged offense. This is because in the majority of cases, plea bargaining takes place. A reduction from Operating While Intoxicated to a traffic offense or simple misdemeanor is a victory regardless of the case. Reckless Driving or Public Intoxication http://www.grllaw.com/CM/Custom/Pulic-Intoxication-Iowa.asp is always better than a conviction for Operating While Intoxicated. Mandatory minimum jail time is avoided and the fines are much lower not to mention the fact that no Operating While Intoxicated conviction is on the person's criminal record for the rest of their life. Reduction of charges are not just given away because someone is a good person, has lots of money, knows the right people or any other reason than a factual or legal issue that weakens the prosecutions case. It is these weaknesses that drive a reduction of charges and nothing else.
While an aggressive drunk driving defense lawyer, such as the lawyers at GRL Law (http://www.grllaw.com/CM/Custom/Attorneys.asp), is an important piece in securing a favorable resolution such as a reduced charge, what the defendant does from the time he/she is pulled over to the time that an attorney gets involved is equally important. Even the best lawyer can't change the facts of a case once they are established. While facts can be developed in certain ways to benefit a client, the core facts will always remain unchanged. That being the case, it is important for people to know and understand their rights and responsibilities before getting in a position where they are faced with a drunk driving charge. For more information regarding avoiding a DUI please refer to our prior blog at http://grllaw.blogspot.com/2008/08/dui-prevention-top-ten-ways-to-avoid.html
Know your rights; Exercise your rights; Preserve your freedom
Friday, May 15, 2009
Right to Phone Calls
Conflict within the Court of Appeals (see http://grllaw.blogspot.com/2008/10/court-in-conflict-iowa-court-of-appeals.html) regarding an arrested persons right to phone calls and the extent of an officers duty when a request is made was resolved today with the Iowa Supreme Court's decision in State v. Garrity http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20090515/08-0330.pdf.
Today, Justice Baker writing for the Court made it clear that anytime an arrested individual requests to make a phone call, the phone call statute (Iowa Code Section 804.20) is implicated and the officer must then advise the arrested person who he may call and for what purpose and they must then provide the individual with the opportunity to place those calls. Contrary to many Department of Transportation decisions and decisions from District Associate Judges across the State of Iowa, the purpose of the phone call is not limited merely to obtaining advice regarding whether or not to submit to chemical testing. According to Justice Baker: "One purpose of Iowa Code section804.20 is to allow the arrestee to call an attorney before making the decision to submit to chemical testing. . . The statute, however, doe snot limit the phone calls to that purpose. As long as the purpose of the phone call is a good faith purpose (e.g., not for ordering a pizza), the arrestee may chose to contact family or a legal representative for advice, or to have them inform his employer that he is not likely to be at work, pick up children from school, or arrange to have the dog let out." If the officer declines the arrested person's phone call request because it does not fall within the scope of the statute, he must then explain the scope of who the person can call and for what purpose.
It has been a long time coming but finally the Iowa Supreme Court has made it abundantly clear that regardless of the purpose, if an arrested person asks to place a call, the officer cannot simply ignore the request because it did not fall within the rights set forth by section 804.20 rather it is incumbent upon the arresting officer to provide the person the opportunity to make the call or the officer must explain to the individual who he can call if he has requested to call someone other than an attorney or family member. It is clear that a request to place a call, regardless of the purpose, triggers the statute and puts the obligation on the officer to ensure compliance.
Today, Justice Baker writing for the Court made it clear that anytime an arrested individual requests to make a phone call, the phone call statute (Iowa Code Section 804.20) is implicated and the officer must then advise the arrested person who he may call and for what purpose and they must then provide the individual with the opportunity to place those calls. Contrary to many Department of Transportation decisions and decisions from District Associate Judges across the State of Iowa, the purpose of the phone call is not limited merely to obtaining advice regarding whether or not to submit to chemical testing. According to Justice Baker: "One purpose of Iowa Code section804.20 is to allow the arrestee to call an attorney before making the decision to submit to chemical testing. . . The statute, however, doe snot limit the phone calls to that purpose. As long as the purpose of the phone call is a good faith purpose (e.g., not for ordering a pizza), the arrestee may chose to contact family or a legal representative for advice, or to have them inform his employer that he is not likely to be at work, pick up children from school, or arrange to have the dog let out." If the officer declines the arrested person's phone call request because it does not fall within the scope of the statute, he must then explain the scope of who the person can call and for what purpose.
It has been a long time coming but finally the Iowa Supreme Court has made it abundantly clear that regardless of the purpose, if an arrested person asks to place a call, the officer cannot simply ignore the request because it did not fall within the rights set forth by section 804.20 rather it is incumbent upon the arresting officer to provide the person the opportunity to make the call or the officer must explain to the individual who he can call if he has requested to call someone other than an attorney or family member. It is clear that a request to place a call, regardless of the purpose, triggers the statute and puts the obligation on the officer to ensure compliance.
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