A panel of 11 judges from the Ninth Circuit Court of Appeals held that officers in California would be allowed to continue collecting DNA from those arrested for felonies regardless of whether they are ever formally charged with crimes. The judges upheld a lower court ruling that refused to end the practice.

Many civil rights advocates, including groups like the ACLU, had hoped the Ninth Circuit would decide differently. Instead, the current ruling appears to have fallen in line with the U.S. Supreme Court decision last year in Maryland v. King, which found that DNA swabs were similar to fingerprints and therefore an appropriate part of Maryland’s law enforcement booking process.

In this case, the Ninth Circuit found that the state’s decision to swab suspects for DNA who are arrested for felony crimes is constitutional, even if those suspects are never actually charged or eventually have their charges dropped. The Ninth Circuit also said that law enforcement officials are allowed to continue to store the genetic material in a statewide criminal database, an especially alarming decision to some.

In this case, the ACLU and others challenging the California practice argued that the program was far more intrusive than the one the U.S. Supreme Court considered in Maryland. In that case, Maryland’s system automatically destroys all samples for those who are never convicted for their crimes. In California, the samples will remain in the system unless and until the suspect files for and receives an official expungement order.

The number of people that could have their information stored into a database despite never having been convicted of a serious crime is surprisingly large. In California, more than 300,000 people are arrested each year and charged with felonies. Of this number, about a third are never convicted. That means around 100,000 people every year could have their genetic information stored in a criminal database that can be accessed by law enforcement authorities across the state.

Though California officials claim that 96 percent of all expungement requests are granted, others point out that only a tiny fraction of those that are able to apply for an expungement do so. The reality is that it is a tedious and time-consuming process that few people understand. Many would need to hire a lawyer to successfully navigate the process, something that deters many people from even trying.

The ACLU says that it is considering filing a more narrow challenge to the practice. Initially, it asked the Court for a complete injunction against the DNA swabbing of all suspects. After the Ninth Circuit rejected this request, the ACLU says it is now considering asking for an injunction against the sampling against those arrested for relatively minor crimes and who are never formally charged.

Source: “Court upholds practice of swabbing individuals for DNA upon arrest,” by Maura Dolan, published at LATimes.com.

 

A strange and little-known law in Minnesota grants immunity to state lawmakers for being arrested for a range of crimes, including things like drunk driving.  A group of students from Concordia University recently learned about the bizarre law and came together to persuade a legislator to write and attempt to pass a bill that would abolish the exemption for drunk driving.

Though the bill’s prospects appeared to be promising, a Minnesota Senate judiciary committee voted this past week to table the measure, essentially putting it on ice. The vote upset students and the bill’s sponsor, Sen. Kathy Sheran, who say that legislators do not deserve immunity from the very laws they spend their days creating and imposing on others.

The issue in question goes back a long time and appears in the Minnesota Constitution. Specifically, the provision grants immunity to lawmakers during the legislative session for everything except felonies, treason and a more vague notion of “breaches of the peace.” The immunity was initially created with a good goal in mind, trying to ensure that legislators weren’t thrown in jail on bogus charges designed to keep them from voting on potentially important measures.

However, opponents of the law say that the provision has long since outlived its usefulness and that it is instead being used as a “get out of jail free” card. In fact, the students pointed out that legislators are handed an actual card explaining their rights, a card they can then hand to policemen if they are pulled over at some point during the legislative session.

The students backing an overhaul of the immunity provision simply asked that the language be changed to specifically include drinking while driving as a breach of the peace. This would ensure that legislators who decide to drink and drive can face the same penalties that they hand down to ordinary Minnesotans.

Though it might seem like an obvious bill to support, legislators didn’t take long to raise concerns with the reform. Some questioned whether the change was necessary and others argued that there was no real evidence that legislators had ever used the get out of jail free card to avoid drunk driving charges.

However, students who researched the case say that an intensive review of legislators’ driving records showed that arrests for drunk driving were made between May and December, when the legislative session is over, yet not a single such arrest has occurred during the months when the legislature is in session. The students said that either this was an amazing and improbable coincidence, or that legislators had indeed used their pass to avoid DWI charges.

For now, the measure appears to have lost momentum and will remain stalled in the judiciary committee. Advocates of change say they hope to muster enough support to eventually get the bill out of committee, perhaps next year. They say that it is high time that legislators be held to the same standard as normal Minnesota motorists.

=&0=& “Senate deals blow to DUI immunity repeal

,” by Dan Linehan, published at Read More...

In a provocative action this week, one Minnesota district court judge chose to ignore an important state Court of Appeals ruling (which we discussed just last week) and instead followed his own interpretation of a recent U.S. Supreme Court case when handling the case concerning an implied consent violation.

Clay County District Court Judge Steven Cahill decided to throw out a drunk driving charge against Angeliac Greenwaldt. Cahill said that Greenwaldt was simply exercising her legal right to refuse to submit to what amounted to an unreasonable search when she chose not to submit to a breath test after being pulled over on suspicion of drunk driving.

According to Cahill, prosecutors failed to show that there was any reason to support such an invasive search. Specifically, Cahill said that there was no evidence entered into the record to show that there was either consent on the part of Greenwaldt or exigent circumstances that would have necessitated the officer performing a warrantless search.

Judge Cahill refused to apply the recent State v. Bernard decision, which was handed down by the Court of Appeals earlier this month. According to Cahill, the ruling in Bernard was “unprecedented” and evidently not worthy of following. In Bernard, the Minnesota Court of Appeals decided that in cases where a police officer could have gotten a search warrant, either through consent of the suspect or due to the existence of exigent circumstances, a warrantless search would be deemed reasonable. Confusingly, the officer did not actually have to get the warrant; he simply needed to have been able to secure one had he wanted to.

Judge Cahill said that the Bernard opinion was not supported by prior precedent and that, as a result, he would ignore the decision and instead follow the example set in other cases. Cahill criticized the ruling that criminalizes a suspect’s refusal to submit to a breath test. Specifically, Cahill said that that if the government is allowed to force individuals to give up their constitutional right to be free from warrantless searches as a condition for being granted the privilege of driving, then it is just as likely that the state could force individuals to give up other fundamental rights.

Though Cahill refused to directly address the legality of Minnesota’s implied consent law, it is clear that he does not hold it in high esteem. Cahill said that district court judges across the state are in disagreement about the constitutionality of the implied consent law. The hope is that the issue is resolved in a clear and commanding way, putting an end to the uncertainty that began last year after the Supreme Court’s ruling concerning warrantless blood tests in Missouri.

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District Court judge rejects Court of Appeals opinion Read More...

In an important decision that could have wide-ranging impacts on those arrested for minor drug crimes, a court in Colorado tossed a woman’s 2011 marijuana-related drug charges given that the same crimes would now be deemed legal.

The case began when Brandi Russell was arrested three years ago for possessing less than an ounce of marijuana and marijuana concentrate. Russell was charged and convicted, but less than a year later, voters in Colorado approved Amendment 64, which made possession of anything less than an ounce of marijuana legal for those over 21.

Russell decided to appeal her conviction in light of the new law and was pleased to win over the Colorado Court of Appeals. The majority of a three-judge panel wrote that Amendment 64 amounts to a significant change in the law and, as such, can allow for the elimination or mitigation of penalties for those who were previously convicted of such crimes.

Though some have said the impact could be quite broad, the Court’s majority attempted to narrow the possible importance of the ruling. The opinion stated that the decision would only impact those who were already in the process of appealing their convictions when Amendment 64 went into effect.

Russell’s attorney, as well as other defense lawyers, applauded the decision by the appeals court saying that defendants across the state who have minor marijuana convictions staining their criminal records will now have hope that their offenses could be removed. Russell herself said that the criminal conviction had impacted her life and her ability to find work and was thrilled that she would be able to move forward with a clean slate.

Unsurprisingly, not everyone was pleased with the ruling. The state’s Attorney General issued an announcement saying that he thought the Court of Appeals was wrong to apply the new law retroactively and said he intended to take the matter all the way to the state’s supreme court.

Some have said that the ruling could now be used as precedent by others who appeal similar low-level marijuana convictions. Beyond those who were cited for possession of marijuana and marijuana concentrate, the new ruling could also be interpreted to offer hope for those convicted of other minor marijuana crimes that are now legal under Amendment 64, such as growing marijuana.

Though the ruling is undoubtedly good news for those in Colorado with criminal infractions to contend with, it is unlikely that the ruling will lead to anyone getting released from jail. That’s because the kind of crimes that are now legal under Amendment 64 would not have resulted in jail time in the first place.

=&0=& “Colorado court: Some marijuana cases can be overturned,” by John Ingold, published at DenverPost.com.

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A recent case before the Minnesota Court of Appeals dealt with the rights of a DWI suspect to refuse a breath test in a Minnesota drunk driving case. In the opinion, the Court ruled that it is legal for the state to criminalize a suspect’s decision to refuse to submit to a breath test.

The case began when William Bernard was arrested on suspicion of drunk driving. At the time of his arrest, Bernard refused to submit to a breath test after being asked by the arresting officer. This decision violated Minnesota’s implied consent law and, as a result, led to a test refusal charge for Bernard. Specifically, prosecutors charged Bernard with two counts of DWI-Test Refusal.

A lower court dismissed the test refusal charge against Bernard, reasoning that it was unconstitutional for Minnesota to criminalize a refusal to submit to a breath test when that same test could not ordinarily take place without a warrant. The lower court relied on the recent U.S. Supreme Court decision, Missouri v. McNeely, saying that the case made clear that the dissipation of alcohol in a driver’s bloodstream is not enough to justify a warrantless search. The matter was then appealed and the decision ultimately overturned.

The judge’s decision in this case began by noting that previous court decision in Minnesota have established the right of the state to criminalize a breath test refusal when the state could have obtained a search warrant or shows that the situation would fall under an exception to the usual warrant requirements. The exception that is most frequently used to support the criminalization of breath tests is exigent circumstances. Specially, prosecutors argue that the dissipation of alcohol in a suspect’s bloodstream requires speedy action before evidence is lost.

The Minnesota Supreme Court has backed up this idea, deciding in State v. Shriner that warrantless blood tests are constitutional based on the exigent circumstances created by the dissipation of alcohol in a driver’s bloodstream. Bernard argued that the recent McNeely decision should alter Minnesota’s interpretation of the law, a contention the Court of Appeals ultimately disagreed with.

The judges decided that imposing criminal penalties for refusing to submit to a breath test is a reasonable means of achieving a permissible state objective. The Court held that because the arresting officer in this case had probable cause to believe that Bernard was impaired, he also had the option of obtaining a blood test by getting a search warrant. That means that at the time Bernard was asked to submit to a test, the officer had the ability to receive a warrant. The Court said that this makes Bernard’s case different from the warrantless test at issue in McNeely. Rather than force Bernard to submit to the test based on a search warrant, the officer gave Bernard an option to voluntarily provide a breath sample. The Court held that Bernard’s refusal could constitutionally be penalized under Minnesota law.

To read the full opinion, click here.

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In a sad case out of a Texas, police are now revealing that the person who drove a car through a crowd of people gathered at the South By Southwest festival was drunk at the time of the accident and behaving erratically. Authorities say they have arrested a man and charged him in connection with the deadly accident and are continuing to work to piece together what happened the evening of the crash.

Police in Austin arrested Rashad Charjuan Owens immediately after the accident. Later tests discovered that he was impaired at the time, with a Breathalyzer reading finding Owens had a BAC of 0.114 percent, well above Texas’ 0.08 percent legal limit. Owens is now behind bars on $3 million bail and apparently still in the market for an attorney.

According to accident investigators, Owens intentionally steered his car into a large gathering of pedestrians in an attempt to evade an officer who was trying to pull him over. Rather than apply his brakes as he neared the crowd, witnesses say Owens accelerated, ultimately killing two people and injuring as many as 23 others.

Because of his actions, Owens is now charged with capital murder and faces dozens of other charges including aggravated assault with a vehicle. The crimes could result in years behind bars, a steep price to pay for trying to run from the cops.

The accident serves as a tragic reminder of how important it is to stay calm if you are pulled over by a police officer. In this case, the deadly evening began when an officer who was out looking for drunk drivers noticed that Owens’ 2012 Honda did not have its headlights turned on. The officer then followed Owens and nearly crashed after Owens made an abrupt turn from the middle lane of traffic.

Owens has told authorities that he got scared when he saw police lights behind him that night and decided his best bet was to run from the officer. Owens admitted to having several outstanding warrants and was afraid of going to jail for being intoxicated. Owens was previously arrested back in 2011, at the age of 19, for drunk driving in Alaska. Rather than calmly pulling over and letting the situation play itself out, Owens chose to drive through a police barricade, hitting and killing two festivalgoers before colliding with a parked taxi. Owens then got out and tried to run on foot before an officer with a Taser subdued him.

Though it is understandable that a person would be afraid to be pulled over after having a few drinks, the absolute worst thing you can do is panic. Attempting to run from an officer will only compound your legal trouble by magnitudes. Instead, behave calmly and follow instructions. When given the chance, contact an experienced Minnesota DWI attorney who can help guide you through the process in a responsible way.

Source: “Drunken-Driving Suspect in Fatal SXSW Crash Charged,” by Will Weissert, published at ABCNews.com.

 

Before a judge can accept a guilty plea from an individual for a criminal offense, the court must be assured that the defendant is making his plea free and voluntarily and is of sound mind and completely understands the nature of the proceedings.  In fact, it is the defense attorney’s role, at a plea hearing, to make sure the record is clear with regard to these issues.  So, needless to say, if a defendant has been consuming alcohol prior to coming to court, it raises serious concerns for the court as to whether they have a “clear mind” when entering the plea.  Not to mention, it could be considered a violation of a condition of release or even deemed contempt  of court.  The case below, exemplifies this issue.

A Superior Court Judge in Massachusetts decided to turn down a plea from a local drunk driver, deciding that the man was simply too impaired to make the decision to plead guilty. Rather than hear the guilty plea, Judge Richard Carey ordered the man returned to jail where he would be allowed to recover until he was sober enough to make the decision.

The issue of the defendant’s drunkenness arose after Judge Carey noticed the man’s clearly impaired behavior. Carey ordered officials with the Probation Department to conduct a test of Patrick Johnson’s blood after he appeared unsteady on his feet and slurred his words. Johnson also admitted to drinking six ounces of vodka prior to coming to court, further proving to the judge that the man was dangerously intoxicated.

The blood test ultimately showed that Johnson had a BAC of 0.28 percent, nearly four times the legal limit in Massachusetts. Judge Carey then sent Johnson back to jail to dry out and told him to come back and make his plea later next week when he isn’t under the influence.

The problem in this particular case is that Johnson is an admitted alcoholic. Johnson says that he drinks large amounts of alcohol regularly and feels that because of his extensive consumption, he no longer feels the effects of the alcohol. Johnson said that he believes he was perfectly clear-headed at the time he attempted to plead guilty to operating a vehicle under the influence. In fact, Johnson says he was totally aware of what he was saying and also understood the consequences of pleading guilty.

However, Judge Carey was not satisfied. In Massachusetts, before a judge can accept a plea, he or she must ask the defendant if they have consumed drugs or alcohol in the past 24 hours, a question designed to reveal if the person is impaired and not making good decisions. Johnson said he felt he should answer the question truthfully, and it led to his plea being postponed.

Johnson’s defense attorney says she is worried that Johnson may never be able to plead guilty given his regular consumption of vodka. She says that Johnson drinks large amounts of alcohol every day and that it would be nearly impossible to get him to court when he had not consumed alcohol during the previous 24 hours. Whether the man can stay clean long enough to plead guilty to drunk driving remains to be seen, though he’ll have his second chance this coming week.

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Judge determines Vermont man too drunk to plead guilty to drunk driving Read More...

For decades now, there has been a debate among the nation’s regulators and safety experts about what the national drinking age should be. Some have argued that the nation’s current limit, 21, is too high and arbitrarily set, unnecessarily leading younger people to illegally binge drink due to their lack of easy access to alcohol. Others claim that lowering the drinking age would lead to even worse trouble for college-aged individuals, with more deaths due to alcohol poisoning and drunk driving.

A recent article published in the Journal of Studies on Alcohol and Drugs argues that the current legal limit actually does serve a purpose and that it saves lives. Researchers behind the paper concluded that the current drinking age lowers the rate of alcohol-related car accidents and also works to lower the amount of alcohol consumed by young adults.

The drinking ages across the country have historically varied. In the early 1900s, many states chose the age of 21, though there were some exceptions to this general rule. However, in the early 1970s, more than half of all states decided to lower the drinking age to 18. The move was based in part on the draft, which was then sending thousands of young men off to war. Legislatures felt pressure to ensure that the same people who were able to fight and die for the country were able to legally have a drink.

The problem was that almost immediately after the drinking ages were dropped, there was a measurable increase in the number of alcohol-related traffic fatalities. The increase was so stark that states began raising their recently lowered limits. Finally, a federal measure, the National Minimum Drinking Age Act, was implemented in the mid-1980s and ensured uniformity across the states, setting the age at 21.

Researchers say their data shows that setting the drinking age at 21 saves approximately 900 lives every year. The NHTSA says that these lives are saved due to a reduction in the number of impaired young people behind the wheels of cars. Other studies have confirmed that shifting the drinking age to a lower number would lead to an increase in the overall number of traffic accidents. The CDC estimates that the number of injury-causing accidents would increase by around 10 percent if the drinking age were lowered.

However, experts agree that the current drinking age undoubtedly contributes to the culture of binge drinking that is so pervasive at colleges across the country. By limiting access to alcohol for a large group of American adults, it encourages the voracious consumption of alcohol when the opportunity to drink presents itself.

Some say the issue should not revolve around what age to limit alcohol consumption, but should instead be about educating drivers of all ages about the dangers associated with overconsumption of alcohol. The group, Choose Responsibility, says that it would like states to require an education program similar to driver’s ed for those 18 and older that deals with all aspects of alcohol. By educating drivers, the group believes that the drinking age could be safely lower without a resulting increase in fatalities.

Source: “Drinking age still cause for debate,” published at ColumbiaChronicle.com.

For those who have recently been arrested in Minnesota for drunk driving, one of the questions most likely to be on your mind is, “What is the worst thing that could happen?” Many people understandably fear the unknown, and given that first time DWI arrestees are likely unfamiliar with the state’s criminal justice system it can be helpful to hear about the worst possible outcome in a Minnesota DWI case.

In Minnesota, the law says that anyone who is found to be in control of a moving or parked vehicle can be arrested and charged with drunk driving if his or her BAC (blood alcohol concentration) is 0.08 percent or higher (the number is actually lower, 0.04 percent, for those in a commercial motor vehicle). If you are found with a BAC that exceeds the legal limits, you can be convicted of a Minnesota DWI and face potentially serious legal consequences.

Before diving into the possible penalties associated with a DWI, it’s important to note that more than 30,000 drivers across Minnesota are arrested each and every year for drunk driving. Though the state does have laws that specify the possible punishments for impaired driving, it’s important to understand that the results vary on a case-by-case basis, shifting dramatically depending on the specific facts of your case.

The first penalty faced by those who receive a Minnesota DWI involves the installation of an ignition interlock device. These devices are required for all first-time drunk drivers who are found to have a BAC of 0.16 percent or above. If you refuse to install and IID on your car then you will have your driving privileges revoked for a minimum of one year. If your BAC was less than 0.16, then you must endure 90 days of no driving privileges. Drivers can choose to use an ignition interlock device to more quickly get back behind the wheel.

Regarding criminal penalties, the law says that the maximum jail time that could be given to someone arrested with a BAC under 0.20 percent is 90 days. The same person could also face a maximum fine of $1,000. These penalties are heightened in some cases. First, if a driver is arrested with a child in the car, then he or she could face up to one year in jail and a fine of $3,000. Those arrested with a 0.20 percent BAC or greater similarly face a worst-case scenario of one year behind bars and a $3,000 fine.

The absolute worst-case scenario of all for a first-time offender is if you are charged with a gross misdemeanor for having a child in the car and for having a BAC of 0.20 percent or higher. In that case, the driver could be sent to jail for up to one year, pay a $3,000 fine and have his or her vehicle seized.

It’s important to stress that these are only the worst-case scenarios and penalties are often reduced well below the statutory maximums. With the help of an experienced Minnesota drunk driving lawyer, you can be sure to have guidance as you navigate the confusing process.

=&0=& “DWI Consequences,” by, published at DPS.MN.gov.

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