What are My Rights at a DUI Checkpoint?

A Florida lawyer’s “strategy” for dealing with a DUI checkpoint has caught the imagination of motorists all over the country and put the spotlight on what drivers’ rights are when they are stopped at a checkpoint. According to Warren Redlich, all you have to do when approaching the checkpoint is to put your license and proof that you are insured in a plastic sleeve as well as a flier declaring that you want an attorney, are remaining silent and refuse requests for a search of your vehicle.  Roll up the window with the plastic sleeve on the outside and then refuse to roll down the window or say anything. Doing this would prevent the officers manning the checkpoint from claiming that you showed signs of intoxication such as slurred speech or breath that smells of alcohol. A video of Redlich using this tactic that he posted on YouTube has already been viewed more than two million times.

While Florida police have disputed the legitimacy of the tactic and claimed that Redlich was allowed to pass simply because he showed no signs of intoxication, Redlich said that his method was successful in achieving his stated goal of preventing police from making up a reason to arrest drivers for a DUI. He also claimed that it was not a method that would allow drivers who were actually intoxicated from avoiding arrest since it requires a certain amount of discipline to successfully implement.

Keep in mind that a DUI checkpoint is only legal if it is conducted properly. The following criteria must be followed:

  • Motorists must be stopped according to a neutral formula that does not discriminate against particular drivers.
  • Proper safety precautions, such as adequate lighting, prominently-displayed warning signs, and clearly-identifiable police personnel and vehicles.
  • There must be sufficient indication that the checkpoint is an official one and its nature clearly identified.

What are the rights you can assert when at a DUI checkpoint?

  • The right to not speak to the officers until you can consult with your lawyer.
  • The right to refuse to give consent to a search of your person, car or personal effects.
  • The right to refuse to answer questions without a lawyer present, as well as to participate in acts such as a line-up or other physical acts such as a field sobriety test.
  • The right to exercise your Miranda rights if you are under arrest, and to confer with an attorney if the officer does not recognize your rights.
  • The right to refuse to give consent to an impoundment of your vehicle if you are taken into custody, as well as to make reasonable arrangements to secure your property.

You can have your rights printed in a card that you will hand to the officer along with your license and registration.

In addition, you can refuse to participate in field sobriety tests while at the DUI checkpoint. Keep in mind that refusing these tests will not prevent the officer from arresting you if he believes he has probable cause to do so, but will prevent him from gathering more evidence which can be used against you in court.

Common DUI Defenses That You Can Mount

There are a number of DUI defenses that are available to you if are caught driving while intoxicated. By mounting a strong defense rather than simply accepting the charge, you might convince the prosecution to drop the case or offer to reduce the charge so that you can avoid the more severe penalties such as suspension of your license.

There are two elements to a DUI case: that the defendant was driving at the time they were stopped and that their ability to drive safely was significantly impaired by being intoxicated or having done drugs or a combination of the two. If either of these two elements is proven wrong, the prosecution can’t prove its case. The defense might also attempt to prevent the prosecution from introducing certain pieces of evidence at trial, which can hinder them from proving their case.

The most viable DUI defenses are those in which the procedures related to the arrest are questioned. If the officer failed to follow the right procedures, or did not have any legal justification, when making the arrest, then any evidence gathered from it or the traffic stop may be deemed by the judge to be inadmissible. Without this evidence, the prosecution might have no case and would thus be forced to withdraw the charges.

If you believe, for example, that the officer stopped you because you looked suspicious as a result of your ethnicity, rather than because he saw you driving erratically, you might be able to challenge your arrest.  If you were not read the Miranda warning when you were arrested, then you may be able to question the arrest process and get some evidence excluded at trial.

You can also introduce witnesses to dispute the officer’s observations regarding your state of intoxication. If you can challenge the officer’s contention that you were driving erratically or that you looked intoxicated by offering a witness who will testify to the contrary. For example, if there was another person with you in the car and you accidently crossed the center line because you were distracted, you can ask him or her to testify to this fact in court.

Another viable defense is to contest the accuracy of tests conducted by the officer to determine your level of intoxication. For example, if the officer administers a portable breathalyzer at the scene, the defense may raise questions as to whether the device was properly maintained and calibrated, which would affect the accuracy of its readings, or whether the officer was properly trained to use the device. In addition, they may also claim that there were factors such as indigestion and vomiting which could affect breathalyzer readings.

Other DUI defenses involve questioning the administration of field sobriety tests. For example, if you failed one of these sobriety tests, your lawyer may question if the test was applied properly or if the officer interpreted the results properly. For example, if the officer administered the horizontal gaze nystagmus test, the lawyer may raise doubts as to whether it was administered correctly.

An Overview of the Problem of Women in Prison

According to statistics derived from the Bureau of Justice, the number of women in prison is rapidly growing at nearly twice the rate for male prisoners. Around a third of these are jailed for drug offenses and female prisoners often suffer from substance abuse as well as having high rates of being infected with HIV. In addition, many of them have histories of sexual and physical abuse.

What are the factors behind this unprecedented increase? One major contributor is the ‘war on drugs’ which has resulted in some 25% of the women in prison being there due to non-violent drug-related crimes. Others are imprisoned due to other non-violent offenses such as property-related crimes and robbery.

A lot of women end up behind bars after they are arrested as an accomplice to a partner who is the one who is really engaged in criminal activity. Since their involvement in the criminal activity is marginal, they often have no information which they can trade to the prosecutor in exchange for leniency. Her boyfriend, on the other hand, has more to trade for a deal and thus, often ends up spending less time in prison than his partner, even if he is guilty of an increased number of crimes.

Another factor in the skyrocketing female prison population is the ‘get-tough-on-crime’ tactics adopted by states. While these tactics sound good to voters, they have been remarkably ineffective in reducing incarceration rates and have only unfairly targeted poor minority communities. As a result, female prison population has skewed more towards minorities, primarily Latinos since incarceration rates have significantly decreased for African-American women.

The high rates of female incarceration have also adversely affected their families. A majority of women behind bars report that they have a minor child, while around half of them say that they are jailed in facilities that are over 100 miles away from their families. As a result, a high percentage of them report that they have not seen their children even once while they are in jail. In addition, since many of these women are single parents who are the main caretakers of their children, if they are incarcerated it means that their children are deprived of the only parental figure they have ever known. Thus, there is a high risk that in the future, these children will also turn to criminal activity and end up becoming incarcerated as well.

So what can be done to address the problem? Drug treatment programs for women in prison need to be more readily available to help them address their substance abuse problems. In addition, there needs to be programs that address the issues that led to drug use and addiction in the first place, meaning access to extensive counseling as well as help in reintegrating to society once they are released from prison through job training and education programs. Unfortunately, it seems that these programs will not be readily available, meaning that the issue of increased incarceration of women will not have any easy solutions.

How To Protect Yourself If You’re Presented With A Warrant for Criminal Charges

Criminal charges have serious implications in the life of a person. Depending on the nature of the charges, conviction may lead to imprisonment, fine, probation, dismissal from employment, suspension of driving license, etc. In most U.S. states, after conviction of certain criminal offenses, your name, fingerprints and other details will be entered in to the criminal records databases. The meaning and effect of this is that you may not quality for some jobs, places or other offers that require having no past criminal record.

Because of the serious implications of the criminal charges, you must learn how to protect yourself when you are presented with a warrant of arrest. The arrest warrant is a legal writ that authorizes the arrest and confinement of a person. If a police officer presents warrant of arrest, he/she has the right, power and authority to arrest you. In that instance, do not try to put up defense or resist the arrest. The resistance of arrest is an offense that is punishable by the law.

After the arresting officer has explained the criminal charges preferred against you and that he/she intends to arrest you, you should comply and request to contact your attorney, next of kin, friend or other person whom you feel that you information is important. The arresting officer has no power of denying you the right to inform your attorney, family or any other person of the arrest unless there are very clear and reasonable grounds and reasons of doing so.

Criminal charges such as assault, theft, violent crimes and Driving under Influence may attract serious long sentences in jail upon conviction. If you are charged of these crimes or any other, you must ensure that you build up the proper defense.

Building up a criminal defense is not easy. The prosecution will try its best to convince the presiding jury or magistrate to hand to you the severest and maximum sentence ‘as a way of deterring the commission of that crime by setting example to others’…this is serious!

Building strong defense to criminal charges begins with the hiring of a qualified and experienced criminal lawyer. The criminal lawyer will go through the charges and facts to support the same. He/she will also go through the witness statements and find out, based on his/her experience and training of handling criminal casers, how to defend your case.

The gold standard of the trial and conviction of all the criminal charges is that the prosecution must prove beyond reasonable doubts that you committed the alleged offense or crime. Once you have hired the criminal lawyer, you need give him/her all the material facts that are important in discrediting the prosecution case and building your defense.

The communication between a person charged of a crime and his/her lawyer is considered privileged in the United States. This means that your lawyer cannot be compelled to disclose communications between you and him/her. The criminal lawyer is not supposed to lie to the court or coach your witnesses. He/she will call in witnesses and give in those facts that tend to defend you against the criminal charges that you are facing and discrediting the prosecution’s case.

What To Do If You’re Accused Of Insurance Fraud

Insurance fraud refers to any unrealistic or false claims made to an insurance company such as exaggerated estimates of damage or misreported or under reported information. Insurance fraud can pertain to any area of insurance from medical and home claims, to personal injuries and car collisions. In minor cases, those found guilty are given a felony charge, but in more serious cases insurance fraud can result in a jail sentence.

Due to the huge costs incurred by fraud, insurance companies take implications very seriously. It is usually beneficial for everyone that insurance companies have such strict regulations and pay close when investigating what appear to be fraudulent claims. Insurance fraud incurs costs not only for the insurance company but also for the policy holders. If the cases of fraud increase, insurance companies have to compensate but setting higher premiums.

Sometimes a policy holder may be wrongly accused of insurance fraud, usually due to a lack of evidence that arouses suspicion of the insurance company. It is important to resolve the case as soon as possible to prove the claim is real. Insurance companies almost always have more than enough resources to pursue a fraudulent case, and such matters are considered to be a serious crime as they frequently involve large amounts of money.

It is best to try to resolve everything outside of court, between just the insurance company and accused, as hiring an attorney can run up high and unnecessary costs. This is especially so when there has been a misunderstanding and the case can be solved simply through filing the appropriate paperwork or by presenting firmer evidence that the claim is real such as through medical records. The accused can further support his position by better explaining his defense against the charges and contacting any parties who can support his position.

However, sometimes the company may be disinclined to negotiate in which case it is best to seek the guidance of an attorney and take the matter to court. Attempting to represent oneself in court can cause extreme difficulties. An attorney can better advise the accused on his rights, defense procedures and other important information about the legal system in general.

It is very unlikely that an insurance company will continue to press charges when the accused is represented by an attorney as soon as it becomes clear that no fraud exists. However, first determining whether legal assistance is necessary can save a lot of time, money and inconvenience.

5 Things You Should Understand About Appeals in Criminal Cases

Appeals in criminal cases are often misunderstood both by the layperson and attorneys. The defendant found guilty in a criminal case has the right to appeal the verdict to a federal court of appeals. When considering an appeal, there are a few things you should understand about the appeals process.

An Appeal is Not a Rehearing or Retrial

When an appeal is filed, the Appellate courts reviews the legal briefs filed by the attorneys on each side to determine if there have been any legal errors that took place during the trial. The Appellate court does not accept new information nor do they hear any witnesses. The appellant must show the court that a legal error was made that affected the previous court decision. The appellant may request that the court reverse the decision based on the errors made. At the same time, the appellee will file a brief urging the court to keep the decision as is.

The Appeal Process is Slow

The right to appeal is granted to anyone found guilty which results in a very crowded court system. The appeal process can take months if not years to process.

The court has to consider each and every case that comes before it and this process takes time. The process requires the judges to read through briefs, research and carefully consider the case. It is important for an appellant to recognize the process is slow and to understand that when his case is up for review, he wants the judges to take ample time, consider all of the facts before coming to a decision. The appellate court process is not one that should be rushed.

Cases can be Heard Orally

While an appeals case can be handled entirely by the appellate court reading briefs, it is best for the court to grant oral cases. In this situation, the attorney has the opportunity to orally address the court and explain the reasons why his clients decision should be reversed. Each side will be granted roughly 20 minutes to present his case.

Appeals are Expensive

Handling criminal cases is expensive period but the appeals process adds a substantial amount to the cost. The more difficult the case is, the more time the attorneys must put into the case bringing the cost higher. To appeal, an attorney must spend a significant amount of time going through the transcripts and documents of the court case. He must go through things with a fine tooth comb searching for any and all errors made in the case. Briefs must be prepared with utmost accuracy and no mistakes. The appellate court is very picky and requires rules to be followed exactly.

When cases are heard orally, the attorney may be required to travel adding to the expenses. An experienced attorney can provide a rough estimate of the cost of an appeal but the appellant must realize the cost can change as the case progresses.

Appeals do not Always Result in the Case Being Over

While the goal of the appeals process is to have the verdict overturned and the case over, this is rarely the case. The appeals process may assert that there were trial errors which will result in the appellant starting over with a fresh trial. The appellant has already been through trial once and will now go through the entire process again. The appeals process may render previous evidence suppressed which could hurt the prosecution’s case.

The appeals process in criminal cases is long and difficult process and requires the use of an experienced criminal defense attorney to ensure the best possible outcome.

How Often Is a Juvenile Sentenced to Death?

Since the Supreme Court’s decision in 2005 in the case of Roper v. Simmons, it has been deemed unconstitutional to execute individuals who committed a capital crime while under the age of 18.  The case investigated whether a minor convicted of a crime was protected under the auspices of the Eight Amendment’s prohibition of Cruel and Unusual punishment.  The court decided, based on a variety of circumstances and legal principles that it was inappropriate to seek the death penalty for those who had committed a crime while under the age of Majority.  Their ruling was based on the social standard that those under 18 are prohibited from voting, serving in the military, and serving on juries.  It also cited scientific studies that indicated that those under the age of 18 had not sufficiently neurologically matured so that they are more subject to impulsive and rash acts and more easily manipulated by peers and other nefarious influences in committing crime or acts of violence.  Moreover, the ruling indicated that capital punishment was not appropriate to juvenile conviction, since it is designed to be applied only in the very worst of cases and juveniles are the most likely to benefit from rehabilitation.

Since the time of the founding of the first colonies in America, 364 juveniles have been executed under State or Federal jurisdiction.  Twenty-two of those executions took place since the reinstatement of the death penalty after a series of challenges in 1976.  The lead case, Gregg v. Georgia, established the standards by which a person could possibly be sentenced death.  It found that, in extreme cases, the death sentence does not violate Eight Amendment rights, meets the moral standards of contemporary society, and fulfills its dual purpose of retribution and deterrence.

In any event, it has only been in very rare cases that an individual convicted of committing a crime and sentenced to death was actually executed while still a juvenile.  The slow and laborious process of appeals has ensured that (since 1976) the offender was over 18 at the time of execution.  Of the 22 juvenile offenders executed between 1976 and 2005, all were between 16 and 17 at the time they committed the offense, all were male, 11 were black, 1 was Hispanic, and 10 were white.  All were between the age of 23 and 38 at the time of execution.

The case of Roper v. Simmons is just one indication of the ongoing moral evolution in society.  As we as a people continue to discover more about ourselves, biologically, psychologically, and socially, we are blessed to have a legal and judicial system that is dynamic and continues to adapt to the needs and the conscience of those whom it is designed to serve.

How Often are Juveniles Tried As Adults?

It is actually very difficult to find consistent data about how often juveniles are tried as adults.  Every state has developed its own standards for transferring juvenile cases to adult criminal courts and as many different means for tracking information related to those cases.  In fact, 13 states have NO criteria established for following juvenile cases once they have been transferred.

The history of trying juveniles in adult criminal court is an interesting one, and has been strongly influenced by statistical trends in the rates of crime and juvenile violence over the last four decades.  Prior to the 1980’s, some states had mandatory transfers for certain extreme crimes perpetrated by juveniles.  But by and large, with few exceptions, it fell upon the judge in a juvenile case to decide if the circumstances of a particular offense were of a nature that it should be transferred to a criminal court.  Then, largely in response to rising juvenile violent crime rates during the eighties and nineties, states began instituting mechanisms allowing easier prosecution of juveniles in adult courts.  Many juvenile cases are now transferred automatically to criminal court based on the nature of the offense, particularly in cases of murder or other violent felonies.  In some states these cases are sent to adult criminal courts from the outset and are never processed through juvenile court at all.  In many states, it is left up to the discretion of the prosecution to determine whether a case will be tried in juvenile or criminal courts.  There is virtually no standard for how or when a prosecutor determines to transfer a juvenile case to adult court.  In recent years, the nation has seen an overall decline in juvenile crime, but the mechanisms for transfer remain in place and have largely gone un-reviewed.

According to a recent report by the U.S. Department of Justice that collected and analyzed the fragmentary statistical data available at the time of the report, about 9 in every 1000 juvenile cases is transferred to adult criminal courts.  About 25,000 juveniles are transferred to adult criminal courts annually according to one report.  Other studies set the number of transfers much higher.  But, these numbers are broad generalizations that are based on incomplete and insufficient data.  Recently, the Bureau of Justice Statistics (BJC) with the National Center for Juvenile Justice (NCJJ) has launched an initiative to collect and analyze data from the state courts to codify the documentation of this information and fill in the many statistical gaps.

There are many organizations that are instituting their own investigations into the processes by which the states transfer juveniles and they are studying the efficacy and outcomes of these practices.  One organization, Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative, is actively seeking to reduce the number of juveniles incarcerated in the system.  These organizations are responding to the many moral questions that continue to surround the practice of trying juveniles as adults.

For more information, please reference the exhaustive study of the available statistical information from the U.S. Department of Justice titled Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting.

Convicted Felons and Handgun Ownership

Handgun LawsThere are quite a few handgun laws in place that prohibit someone who has been convicted of a felony from being able to own or possess any firearms or ammunition.  Felonies are crimes that have a conviction period of greater than one year for incarceration.  Whenever someone is convicted of a felony they are not allowed to have a firearm in their possession according to the federal laws that have been put into place.  If a felon is caught with a firearm in their possession, they could be facing incarceration of up to ten years according to the handgun laws in effect by the federal government.

Beyond the main handgun laws in place when it comes to a felon possessing a firearm, there are also a number of other laws that have been placed into effect by the government in terms of restrictions on ownership.  For example, if someone has been convicted of a misdemeanor charge of assault, they are going to have their handgun rights restricted.  The same rings true for someone who has placed under a protection order.  Even though all of these statutes are legal and in effect right now, the Supreme Court heard a case in 2008 about the uncertainty of handgun laws.

The federal statute that went into effect to bar any felons from owning a firearm is not a complete ban on gun ownership, but instead there are a number or different exceptions to the rule in place.  One of the biggest exceptions to the rule is when a felon has their rights restored to them under state jurisdiction.  It has to be the same state that took the individuals rights away and incarcerated them in the first place.  What does this mean for you?  If your handgun rights were revoked in Illinois, you cannot apply in Texas to have them reinstated.

There are a couple of other exceptions that go along with the law, in that a person who is pardoned is no longer bound by the handgun limitations.  Since there was never a conviction put into place, that person is not legally bound by the laws of the state prohibiting felons from owning firearms.  When your record is expunged, that also removes the limitations on being able to go out and buy a firearm.  We understand how important it is for a lot of people to own a handgun in today’s society and we appreciate the need for safety on a personal level.  At our law firm, we will do everything in our power to make sure your rights are not taken advantage of and ensure you have success in owning a handgun down the road.

Mortgage Fraud Defense

Not many renters our there want to be a tenant in an apartment or rented house forever. To achieve their dream of home ownership, most of people seek help from financial institutions that offer mortgage financing. However,some of the potential home owners engage in mortgage fraud as a shortcut to realizing their dreams.

Mortgage fraud criminal charges are on the increase in the United States Federal Court. There are several mortgage criminal offenses an individual can be charged with in a USA criminal court.

Mortgage fraud is constituted by various charges:

  • Availing false financial statements to mortgage financial institutions in order to influence approval of mortgage credit financing
  • A scheme to commit bank fraud
  • Money wiring fraud conspiracy
  • Conspiracy to commit money transaction laundering

Consequently, several innocent people are often brought to criminal court charged and convicted of the offense. This is because of the complex definition of mortgage fraud and inclusions of omissions, misinformation, and falsification by a mortgage finance lender. Most of the times the lender or underwriter commits a fraud in order to finance, acquire or insure mortgage loan.  These schemes are further transferred to the mortgage applicant or home owners without there knowledge.

Mortgage Fraud

Due to mortgage fraud schemes charges being complex, the defendant needs adequate preparation for a successful defense in the court. The defendant needs to demonstrate he or she was not aware of participating in a fraudulent activity. The statics in the state of Arizona, confirms that;”lack of knowledge” defense strategy is highly acceptable defense process in a criminal court. Some of the fraudulent schemes such as loan modification,bankruptcy foreclosure, short sale,reverse, equitable, cash or kickback mortgage  fraud schemes are complex.  The defendant must comprehend the gravity of the criminal offense before making a decision oh how to go about his or her defense. Interestingly even the real estate attorneys often find themselves entangle in the fraudulent schemes without knowing that they are allowing fraud to take place by approving illegal contracts.

Further, the accused can explore “Lack of Intent” method of defense. The defendant can prove his or her innocence by demonstrating he or she engaged services of a licensed real estate lawyer for expertise opinion before proceeding with the transaction. This it to prove that the defendant did not intend to commit a fraud but explored all the legal alleys to ensure the transaction was legally binding. With this kind of defense in any criminal court it will most likely influence the mortgage fraud case in favor of the defendant.

Another means of defense is based on constitutional violation of the defendant rights, by being subjected to incriminated evidence, the accused need to demonstrate that the law enforcement agency forced him or her to admit committing mortgage fraud by not being adequately furnished with criminal offense statements. Further, the defendant can prove to the court his or her right was violated by being denied an opportunity to contact his or her lawyer within the legally stipulated time from the time of arrest. Additionally, being interrogated without the presence of your attorney can also help fortify a mortgage fraud criminal defense. The defendant can explore fraud investigation process, and prove the process was flawed and the evidences presented in the fraud case are below the legal parameters and can not be used to incriminate him or her in the fraud case.

Mortgage fraud criminal charges comprise of an extensive range of penalties and in several instances carry prolonged prison sentences. Therefore, it is significant for the defendant to consult further and seek legal opinion of experienced defense attorney before taking a defense stand in a criminal court to prove his or her innocence..