Friday, June 6, 2014

Defense of the Oh Crap App

GRL Law’s Oh Crap App has received quite a bit of media attention over the past few months.  Stories were run across the entire United States by local and national media outlets alike. Understandably, different media outlets spun the story of the app to best fit their political and philosophical viewpoints. The two sides of the argument really boil down to: the app is an effective education and prevention tool vs. it promotes drunk driving.  

The public's reaction was similarly divided.  We received numerous messages and phone calls thanking us for making the information in the app available to the public for free.  We also received phone calls and messages from individuals voicing their passionate displeasure with the app.  In fact, some members of law enforcement were so displeased with the app that they publicly wished injury and/or death upon Oh Crap App's founders in an online forum for police officers.

To start, let's get one thing clear - neither GRL Law nor the Oh Crap App condone or encourage drunk driving.  Drunk driving is bad, it is dangerous, it kills innocent people and there is nothing more that really needs to be said on that issue.

That being said, GRL Law is passionate about defending citizens charged with all types of criminal accusations, including drunk driving offenses.  We refuse to stand idly by while people are arrested, prosecuted, and at times, convicted of crimes based upon faulty "evidence" concocted by illegitimate "police science" without any basis in accepted medicine or science.  Just as important, we refuse to allow evidence obtained in violation of citizen's constitutional and statutory rights to be used illegally against them in a legal proceeding.  The Constitution of the State of Iowa and of the United States of America require us as attorneys to honor our oath and stand as the final defenders of the Constitution when the government attempts to infringe upon its' guarantees in order to secure convictions the easy, instead of the right way.

As Justice Bradley declared back in 1886:  “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 then of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. Boyd v. United States, 116 U.S. 616, 635 (1886).

GRL Law and the Oh Crap App are similarly passionate about educating citizens about their legal rights and equipping them with the information and knowledge necessary to avoid being accused of a criminal offense which may come about due to ignorance of the law, a violation of their legal rights, or faulty science.  Educating citizens on how the offense is committed, the legal process, as well as their rights if they happen to find themselves in an investigation, is one small step in the right direction.  The information and knowledge passed on through this process will similarly serve to deter and prevent citizens from committing the offense in the future.  Practical prevention and education through services such GRLLaw's business presentations, the Oh Crap App or other programs such as, is much more effective than over-criminalization and penalization.

Our Founding Fathers recognized and understood that for basic rights to serve as adequate protections against an overreaching government, the public must know, understand and be able to effectively exercise those rights.  Benjamin Franklin is credited with the following quote that best sums up GRL Law and the Oh Crap App's approach: "This will be the best security for maintaining our liberties. A nation of well-informed men, who have been taught to know and prize the rights which God has given them, cannot be enslaved."  There is no time like the present to ensure that the general public is adequately educated regarding their rights.  If informing and educating people of their legal rights makes us the bad guys then that is a role we will happily accept.  Sometimes it takes a rebel to start the waves of positive change.

Courts across the nation have for centuries been declaring that the exercise of a constitutional right cannot be converted to a crime.  We don't plan on letting that happen any time soon.  Know your rights; Exercise your rights; Preserve your freedom!

Friday, May 16, 2014

Thank You May I Have Another

Today in State v. Lukins (No. 12-2221), the Iowa Supreme Court finally announced a straightforward rule as to how an arrestee can assert their right to independent testing following an arrest for OWI (drunk driving) here in the State of Iowa.  In reaching this determination, the Iowa Supreme Court concluded that when Mr. Lukins requested to take another breath test after failing the first one, he triggered his right to independent testing under Iowa Code Section 321J.11.  The Court specifically found "no reason why a detainee should be required to string together a precise formulation of words mirroring the statutory language in order to invoke his or her statutory right to an independent chemical test."  Any request for additional testing should be "liberally construed" and as long as the request can be "reasonably construed" to be a request for an additional test, it will trigger the rights afforded to the detainee pursuant to Iowa Code Section 321J.11 and requires the officer to honor the request.

Additionally, the Court concluded for the first time in a published opinion that when the right to an independent chemical test is denied by police officers, the chemical test obtained by the police officers must be suppressed.  In reaching this conclusion, the Court determined that if suppression was not the appropriate remedy for a violation of this statutory right, it would allow "officers to deny with impunity a detainee's request for an independent chemical test and render the right "meaningless."  This decision now puts the statutory right to independent test right in line with the statutory right to make telephone calls and is a right that should be exercised following every OWI arrest.

The question that is left unanswered by today's opinion, is what duty is imposed upon the officer when a person does adequately assert their right to independent testing.  At the bare minimum, the officer should inform the person of their right to independent testing and how/if the officer will facilitate that request.  Questions most certainly will arise as to whether a trained professional can come to the jail to collect a sample if the detainee remains in jail ;whether the officer must transport the detainee to a trained professional for the testing; or even whether letting the detainee submit to another breath sample is sufficient.  It is important to remember that the "failure" or "inability" of a person to obtain independent testing will likely not trigger suppression unless the officer contributes to that "failure" or "inability." However, for now, suffice it to say that anyone deciding to submit to a breath sample at the station following an arrest for OWI should be asking to take a second breath test!

Finally, as the writer of this blog, I am forced to eat crow and admit that my law partner and associate correctly predicted the outcome if this appeal ;)

Thursday, May 15, 2014

The "Secret" Sobriety Tests

Most people are familiar with at least one or two of the three Standardized Field Sobriety Tests that law enforcement use to investigate suspected drunk drivers. These include the Horizontal Gaze Nystagmus Test; Walk and Turn Test; and One Leg Stand.  However, what many people do not recognize is that officers begin testing and evaluating the driver even before those three "formal" tests are commenced.

The complete anatomy of a operating while intoxicated investigation starts with the person's driving behavior and ends with chemical testing at the station.  However, it is during the "personal contact" phase that law enforcement is most prone to exaggerate observations they make in support of their predetermined conclusion that a person is intoxicated.  The "personal contact" phase starts when the officer initially approaches the individual to discus the basis for the stop.  During this phase, the officer is trained to observe how the person reacts and interacts with him when asked various questions and simultaneously requesting multiple documentary items from the driver.  According the law enforcement's training, the following are just some of the observations an officer can make that are "consistent" with impairment:

    1.  Inability to produce two or more things requested simultaneously, i.e., license and registration;
    2.  Not immediately answering questions while searching for the requested documents;
    3.  "Unusual" answers or responses;
    4.  "Nervous" behavior.

Anyone who has been stopped by law enforcement, knows that any, if not all of those things can and often times are, a natural consequence to any motorist being stopped by law enforcement.  Nerves are much more likely to cause many of those behaviors than impairment by alcohol.  Indeed, the Iowa State Patrol has published a pamphlet entitled: "The Traffic Stop and You."  In that brochure it explains that nervousness is a natural emotion during a traffic stop.

The absurdity of law enforcement's training as it pertains to the "personal contact" phase is best demonstrated by the "meow" scene from the movie Super Troopers.  Applying law enforcement's training to that scene, that poor fellow could easily be painted as intoxicated.  He only produced his drivers license when asked to produce both license and registration; He does not immediately answer questions; Appears unsure and confused by the entire situation; and has a nervous mannerism of reaching up to his right ear.  Now, it certainly does not help that the officer threw in 9 "meows" during the interaction with one to end it, but that clip demonstrates how law enforcement has made a practice of turning completely normal behaviors into evidence of intoxication so long as they have any reason to believe the person has been drinking.

Looking at this from another side though, knowing what law enforcement is looking for and how they are trained to interpret their observations, can work int he favor of a driver.  Having license, registration and insurance ready to go; knowing that you will be "tested" even while sitting in the car; and understanding how the process and investigation works from law enforcements perspective can better equip you to conduct yourself in a manner where you are actually creating evidence of sobriety, even by law enforcement's own training.  This can be a powerful tool in defending any number of accusations that may come about as a result of a traffic stop.

Know your rights before you see lights.  Visit to download your free app explaining your legal rights when investigated by law enforcement.

Friday, May 2, 2014

Nice Frame - Pull Over!

Nice frame - pull over.  Today the Iowa Supreme Court gave law enforcement the license to pull Iowans over based just upon the frame around their license plates.  According to the Court, a license plate frame that covers up the county name violates Iowa law and provides law enforcement with a legal basis to conduct a traffic stop."

It has been the law across the nation for some time that when a police officer observes a traffic offense, however minor, the officer has probable cause to stop the driver of the vehicle.  The motivation of the officer stopping the vehicle is of no concern to the court and the officer is not bound by the real reason for the stop.  In other words, if the officer wants to stop a vehicle to investigate narcotic activity without sufficient suspicion of narcotics activity, if he observes any sort of traffic offense, he may lawfully stop the vehicle even though he may have an ulterior motive.

This law is the reason police officers stop cars for dirty license plates, the middle brake light being out, or license plate light being out at 2:00 a.m. on a Saturday morning.  The police wouldn’t ordinarily stop someone for such a minor violation during normal driving hours, but at 2:00 a.m., they are looking for drunk drivers.  Consequently, they stop vehicles for whatever reason they can come up with just to see if the driver has been drinking.  The way our law is currently, so long as the reason or the stop is valid, the officers true motivation for the stop is irrelevant.

We see license plate frames all over the place that partially obscure portions of the numbers and letters on the plates.  Often times the county name is at least partially obscured.  These frames may be placed on the vehicle by the car dealership that sold you the car or are purchased and placed on the vehicle by the owner to show support for their favorite team or cause.  In State v. Harrison, the Iowa Supreme Court was squarely presented with the question of whether or not a plate frame that obscures the county violates Iowa law.

Iowa Code section 321.37(3) makes it unlawful “for the owner of a vehicle to place any frame around or over the registration plate which does not permit full view of all numerals and letters printed on the registration plate.”  The defendant in Harrison, contended that this provision only applied to the large letters and numbers that actually serve a purpose on the plate.  The Iowa Supreme Court disagreed concluding “all numerals and letters printed on the registration plate” meant exactly what it said.  This means the “Hawkeyes,” “Cyclones,” “Panthers,” or “Bulldogs,” on the Iowa Collegiate plate that serve  absolutely no legal purpose, better be clear and visible as well.

So, while license plate frames may be neat and decorative, if they do not properly fit around the plate and obscure any letter or numeral printed on the plate, they give the police a license to pull you over.  Unless you welcome extra one-on-one time with your city, county or state law enforcement agencies you may want to tell the car dealer the next time you buy a car, “thanks but no thanks – keep the frame.”  If you have a frame you just might want to consider scrapping it.

Friday, March 14, 2014

Prescription Drug Defense and License Supsensions

Does the prescription drug defense apply to license suspension proceedings for operating while intoxicated cases?  That was the question that the Iowa Supreme Court had to answer in its recent opinion in Bearinger v. Iowa Department of Transportation.  Their answer - "Yes."

For the last five years or so it has been the Iowa Department of Transportation and Iowa Attorney General's argument that the prescription drug defense applicable to criminal operating while intoxicated cases did not apply to the license revocation proceedings arising out of the same facts.  In other words, the State contended that if a person was driving a motor vehicle while taking a prescription drug and a chemical test came back positive for that prescription drug, their driving privileges had to be suspended for operating while intoxicated even if they proved that they were taking the prescription as required by their physician or pharmacist.  It was an absurd position for the State to take but they took it none the less to the detriment of hundreds if not thousands of otherwise law abiding drivers.

Thankfully the Iowa Supreme Court reined in the DOT's misapplication of the prescription drug defense and concluded that it could indeed be used in license suspension proceedings.  After thoroughly analyzing the statutory language and relevant provisions of the Iowa Code, the Iowa Supreme Court concluded: "It would be absurd to deny such drivers the prescription-drug defense in revocation proceedings."

A person wanting to use the prescription drug defense must establish the following:

1.  The drug detected was prescribed to the person;
2.  The person took the prescription in accordance with the directions of a medical practitioner or pharmacist;
3.  There is no evidence of alcohol consumption along with the medication; and
4.  The medical practitioner or pharmacist had not directed the person to refrain from operating a motor vehicle.

Wednesday, February 19, 2014

Early Discharge From Iowa Sex Offender Registry

In an opinion handed down on February 15, 2014, State of Iowa v. Iowa District Court for Story County, the Iowa Supreme Court ruled that individuals who have completed their criminal sentence and who are not under the supervision of the Iowa Department of Corrections, may petition to have their Iowa Sex Offender Registry requirements modified.

In 2009, the sex offender registry requirements underwent a massive legislative amendment which in part, authorized individuals who were still on probation, parole, work release or under special sentences to petition the court for modification of the registry requirements, including early discharge from the registry.  However, the question arose about whether or not individual who had successfully completed probation could avail themselves to the new statutory modification system.  Initially, the Iowa Court of Appeals said they could not.  However, in the recent Iowa Supreme Court decision, the Iowa Supreme Court conclude that individuals convicted of a sex offense but that were no longer under supervision by the Department of Corrections could indeed petition for modification of the Registry requirements under a different subsection of the Iowa Code section 692A.128.

This ruling clarifies the statute and makes clear that individuals who have been convicted of sex offenses may seek modification or early discharge from the Sex Offender Registry so long as the following conditions are met:

1.  The individual has been on the Sex Offender Registry for at least two years if the offense was categorized as tier 1 - or five years if the offense was categorized as a tier II or III.

2.  The individual has successfully completed all sex offender treatment programs required.

3.  Risk assessment has been completed and the individual is classified as a low risk to re-offend; and

4.  The individual is not incarcerated at the time the application is filed.

If all of these conditions are met, the individual may apply for modification or early discharge from the Iowa Sex Offender Registry.  The matter gets set for a hearing and a judge ultimately makes a determination on whether to grant or deny the requested modification or discharge.

Friday, January 31, 2014

The Ultimate DUI Defense App

Drunk driving defense - yeah we have an app for that. 

In June, 2013, GRL Law launched its trademark pending, Oh Crap App - a mobile application specifically developed to assist in defending drunk driving accusations and invoking a motorist's legal rights.  The app is the brainchild of the attorneys at GRL Law who specialized in defending drunk driving and drug charges.  Throughout the years of representing clients on these charges, the GRL Law lawyers became increasingly frustrated with clients not knowing or understanding their legal rights at the time it mattered most - their initial contact with law enforcement.  To compound the problem, often times clients who did invoke their rights had difficulty proving that fact in court when law enforcement claimed no such statements were made.  In those situations, courts routinely sided with law enforcement finding that the individual consented to a search or failed to legally invoke their rights.

The GRL Law attorneys did not take this problem lightly.  They refused to let courts take law enforcement at their word and initially developed the Iowa Driver's Rights Card.  With advances in technology and mobile phones came the next logical step - a mobile application - The Oh Crap App.  So what exactly is the Oh Crap App and how does it work to protect peoples rights?

The Oh Crap App is designed to serve two primary purposes:

1.   Assist individuals with exercising and documenting their exercise of their rights; and
2.  Educate the public regarding their legal rights.

Oh Crap Button - Rights function.

The “Oh Crap Button” is used for that “oh crap moment” when a person is suddenly confronted with law enforcement either pulling them over or approaching them in some other manner.  When pressed, the “Oh Crap Button” triggers the audio recording function on the person’s phone to record the ensuing interaction between the individual and law enforcement.

After the recorder is activated, the app then gives the person a friendly reminder of their “emergency rights” and provides an easy to use link to contact an on-call attorney in their geographic region.  When the “contact attorney” function is activated, an email is automatically sent to the attorney as well as a bondsman and the user’s designated emergency contact.  This function is most effective when the “My Info” section of the app is completed.

Educate Me - Education function.

The “Educate Me” function provides information regarding a person’s constitutional rights when being investigated by law enforcement for a criminal offense.  The rights are broken down into Basic Legal Rights applicable to all types of criminal investigations; DUI Rights that are specifically tailored for a DUI Investigation and Emergency Rights which are a quick reminder of the basics.  This function also has an informational BAC calculator and tips on how to avoid getting a DUI.

With 3,000 downloads and counting, the app is catching on and will soon be offering a nation wide network of qualified attorneys to assist a person who is arrested in any part of the United States.  The app is absolutely free and does not store or forward your personal information to anyone unless you select the function to contact the on call attorney.  Download your free rights reminder today.

Know your rights; Exercise your rights; Preserve your freedom!