Dealing with law enforcement: Top Ten Posts

Jefferson City Criminal Lawyer

Some issues come up over and over:

 

Moberly pays $2.4 million for police taser homicide

The Associated press is reporting that the city of Moberly will pay millions to the family of a young man tasered to death after he resisted arest by arguing with Moberly police officers. Police had suspected him of driving while intoxicated. Story is here: Moberly to pay $2.4 million in Taser lawsuit settlement.

As I predicted back at the time of the incident–see Missouri man dies after Taser fired during traffic stop–the police tasering was found to be justified. Even though no criminal charges were filed, the city has suspended police use of tasers in addtion to paying the $2.4 million settlement.


Come back with a warrant

Free the MoPed! A call to the legislature

Here’s a proposal for the legislature. Everybody knows someone who has had their driver’s license suspended or revoked for poor driving habits (too many points) or for a DWI. Some people lose their license for reasons that have nothing to do with actual safety (like driving with an expired license or having past due child support). It gets pretty harsh when someone gets a second DWI: Five years without a license.

This is a hardship on families and employers as well as the offender. Keep in mind that these guys are already being punished. Such a second offense always means jail time.

The state agrees that such revocations are not punishment for crime, but are merely “administrative.”

If the legislature is chiefly concerned with safety–and they ought to be–then why don’t they legalize the driving of “mopeds” or motorized bicycles without a license.

As it now stands, these gas-saving gadgets require no insurance, no helmets, no registration.

These are defined as:

Any two-wheeled or three-wheeled device having an automatic transmission and a motor with a cylinder capacity of not more than fifty (50) cubic centimeters, which produces less than three (3) gross brake horsepower, and is capable of propelling the device at a maximum speed of not more than thirty (30) miles per hour on level ground.

For obvious reasons you can’t drive them on the interstate highways. Just as obviously, the reason for the general laxity is that any danger involved is about the same as riding a bicycle. In fact, the rules of the road are the basically same for both.

The difference is that you have to have a driver’s license to ride one; and if your license is suspended or revoked, well, you don’t have a license, so  you can’t ride.

Now since these things can’t go any faster than a bicycle; and since they aren’t likely to hurt anyone other the rider himself, a law allowing unlicensed moped use for adults–and without child passengers–would seem a merciful, harmless concession to someone trying to get to a job every day. How about it?


 

 

 

One quick question for my readers:

 

 

 

 

 

 

Missouri man dies after Taser fired during traffic stop

Suspect Dead After Moberly Police Use Taser

TaserMoberly Police apparently killed a 23-year-old drunk driving suspect with a taser early this morning during a traffic stop. Police Commander Kevin Palmatory said the young man resisted arrest, so the officer used his Taser twice. The suspect died at the scene.

I’m going to go out on a limb and predict that this homicide will be ruled to be justified because the officer was following departmental rules. Perhaps someone needs to look at those rules again. One of these days, a wise police chief will announce that taser use will be limited to situations that would otherwise justify the use of deadly force. If that were the case, this kid would be alive today.

I’m stopped for a DWI. Do I blow into the breathalyzer?

Let’s pretend it’s a clear starry Saturday morning, 1:00 a.m and the cop lights me up and pulls me over. He says I crossed the centerline. I did?

He asks for license and insurance and smells what he will describe in his report as an “odor of intoxicants” emanating from me.

It’s all downhill from there: the one-legged stand test, the walk-and-turn, the gaze test. Then come the handcuffs and a ride in the back seat to the sheriff’s office, where the cop reads some stuff from some form. He says:

  • “You are under arrest for driving while intoxicated.”
  • “To determine the alcohol content of your blood, I am requesting you submit to a chemical test of your breath (or maybe blood). If you refuse to take the test, your driver license will immediately be revoked for one year.”
  • “Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?

So . . . should I blow?

If I say NO, I lose my license for a year.

If I say YES, I provide additional evidence to be used against me in court.

There are some other things I should think about:

A first offense DWI may result in a 30/90 day license suspension, but a repeat offense (or one involving injury or death) will likely cause a license revocation of a year or more. Considering that the punishment for anything more serious than a first offense DWI is probably jail or prison, and a year or more revocation, I might feel there is not much to lose by refusing the breathe test. So I think to myself . . .

  • Now if I just had a beer or two, I might want to blow if am confident that my blood level is below .080%. It would prove me innocent.
  • But in a close case it could be just enough for the state to make the case against me.
  • If I am really drunk, however, it probably doesn’t much matter whether I blow or not. They’ve got me good and nothing will change it. Most prosecutors will just argue that I was so drunk that I knew the breath test would convict me. They would be right and the jury would probably agree with them.

Now there is one thing the police won’t tell me: the law gives me twenty minutes in which to try to contact an attorney. At the end of the twenty minutes, I must take the breath test or lose my license for the year.

So with that additional 20 minutes I can try to get some advice. If I can’t reach a lawyer, I still have 20 more minutes to think about taking the test. Of course, after a few beers, my thinking is not as good as it could be, but on the bright side, 20 minutes is long enough to lower my blood alcohol from .084% to .079%. That might help.

One final thing to consider is that–if I refuse to blow–the police may to wake up a prosecutor and a judge to get a search warrant, so they get the blood sample anyway. Or they just take the blood without consent or a warrant and hope it holds up in court. If that happens I am triple screwed.

  1. I refused to blow, so I lose my license for a year,
  2. I look guiltier because I tried to hide my alcohol level; and
  3. They got the blood alcohol evidence anyway. (Sure didn’t see that one coming, Ouch!)

As you can see, it’s very hard to know whether taking or refusing the test will hurt or help your case. Sometimes you won’t know until it’s too late.

If you can reach an attorney during your twenty minutes (good luck on that), he or she can help you decide. Don’t rely on this post because it is too short to address all the issues involved. If you want to call me, my number is in the book. Or just avoid the whole thing and have somebody else drive you home.

PS: Some folks will try anything:

How many points will go on my Missouri Driver’s license?

There is a handy list of the point values that the state will assess against one’s Missouri driving record if convicted of vehicular misbehavior.

It’s good to know how much that speeding ticket is going to hurt. Here is the link:

THE POINT SYSTEM.

This PDF file comes to you courtesy of our own Drivers License Bureau at the Missouri Department of Revenue:

For another handy link about points, suspensions and revocations, click here.

DWI: Giant fines and jail time, but no need for an attorney.

Spring in the Missouri legislature always sees the introduction of bills designed to prevent drunk driving.

In addition to the Drunk Driver Victims memorial signs discussed in an earlier post, here are a couple more:

Senator Wes Shoemyer’s Senate Bill 861, attempts to close what some consider a “loophole” in the DWI laws. Currently, some DWI-related convictions do not count toward “enhanced” punishment for persons accused of subsequent alcohol offenses, unless the defendant is represented by counsel or has waived the right to an attorney in writing.

This bill simply snips away the requirement that the defendant must have been “represented by or waived the right to an attorney in writing.”

This is one of those bills that tries to crackdown on DWI offenders, but in the end may backfire by permitting the courts to get sloppy about the constitutional right to an attorney. This would result in overturned convictions and would foul up repeat offender charges.

A written waiver of an attorney is a simple method to protect defendant’s rights (and the prosecutor’s conviction record). A written waiver in the file usually ends any controversy. By doing away with this requirement, Senate Bill 861 will create more problems than it solves.

* * *

Senator Tom Dempsey’s Senate Bill 1053 doesn’t beat around the bush. In addition to jail, fines and license suspensions (click here for a complete list), this bill tacks on an additional–and mandatory–$1,000 fine on a first offense; $2,500 on any later offense.

I guess it follows that since poor people cannot possibly pay such fines, only rich folks will be able to afford DWI’s anymore!

As a practical matter, the courts will be helpless to deal with such mandatory fines, except to sentence everyone to jail and put them on probation with orders to pay the fine in 30 – 90 days. Then when half of them can’t pay, just throw them in jail.

DWI sobriety checkpoint coming to a highway near you.

I noticed in the newspaper that the police department is running DWI checkpoints to catch drunk drivers here in Jefferson City at the end of February.

The deal is that the police get to stop your car and check you out to see if you are under the influence. Most of the time, stopping and examining citizens without ANY cause whatever is considered a blatant violation of the fourth amendment protection against search and seizure.

But that protection was permanently swept away by a U.S Supreme Court decision in 1990. The United States Supreme Court held that a state’s use of a highway sobriety checkpoint does not per se violate the Fourth Amendment to the United States Constitution. There are maybe half a dozen states that still consider such stops as unconsitutional, but Missouri is not one of them.

The police cannot, however, simply stop whomever they want, whenever they want. If they want to use a DWI roadblock, the police are required to create a detailed plan in advance.

They must have their plan in writing and have a supervising officer present throughout the time of the roadblock. They have to design it to catch the most offenders while creating minimum delays for everyone else and to do it in a safe manner.

The police sometimes get clever in setting up such roadblocks. A sign on the highway will say “Sobriety checkpoint ahead – be prepared to stop.” The police then setup the roadblock–not on the highway–but at the next exit.

The idea is that drunk drivers will “select” themselves by taking the exit to avoid the roadblock. Like checking into a roach motel. Too late, the driver realizes, he put his head in the noose.

Of course, once the police have a car stopped and the window is rolled down, the party is over in the time it takes to smell the driver’s breath.

Any driver arrested for a DWI or other charge needs to talk to an attorney as soon as possible. This goes double when the arrest stems from a roadblock situation. DWI prosecutions are always tricky. The legal & scientific requirements are complex. They are made even more complicated by checkpoint requirements.

Cops are human and they make their share of screw-ups. No defendant should plead guilty to a crime without knowing if the state actually has a legal case against them.

Missouri SB 975: Alcohol Monitoring of DWI offenders coming?

DWI laws are tough. The first offense is traumatic enough, involving a big fine and court costs, alcohol counseling, loss of drivers license, and more, but there is no mandatory jail time.

On the second offense, the sky falls: mandatory jail time and loss of drivers license–often for five full years. Third offense is a felony. Don’t even think about it.

The law has a little-used option that avoids the mandatory jail time on 2nd and 3rd offenses if the offender completes a truckload of community service. Not a bad idea, but offenders in other types of cases are typically ordered to complete 20 or 40 hours of community service. In these DWI cases the community service option is 30 or 60 DAYS.

This such an overwhelming obligation that the defendant:

  1. cannot do it without losing his job, or
  2. cannot do it due to some disability, or
  3. won’t do it because he’s a bum.

So while the law would permit a defendant to trade thirty or sixty days of community service for some jail time, DWI defendants almost never ask for or are given community service. Better to serve five or ten days in jail during their vacation than to lose their jobs.

I always thought it would be better to lower the requirements to realistic levels; and if not, then remove this useless, unused option.

Now comes Senate Bill 975, sponsored by Sen. Luann Ridgeway, which would require continuous alcohol monitoring (you need to think: booze-sniffing ankle bracelet) for persons convicted of their 4th or 5th alcohol-related offense in exchange for a shorter jail or prison sentence.

Second and 3d time offenders, could likewise have their jail time removed altogether under the bill. But those 2d & 3d timers (who are far more numerous than the hard-core 4th & 5th timers.) cannot take advantage of this option unless they complete ridiculous amounts of community service (i.e. 30 or 60 days)

Senate Bill 975 simply dumps alcohol monitoring on top of the original (and unworkable) community service option. It would better hit the target if it made the monitoring option usable by 2d & 3d time offenders.

If alcohol monitoring is to have any chance of working, why not do this instead:

In exchange for cutting down or eliminating the mandatory sentences, the court would require no more than forty hours community service; and add the alcohol monitoring on top of that.

It remains to be seen if alcohol monitoring can be effective at anything beyond swelling the pocketbooks of those who manufacture and furnish the equipment, but we will never find out unless the plan is structured as a viable option.

Missouri to outlaw roadside memorial crosses?

SB 881, sponsored by Sen. Timothy Green will outlaw those little roadside crosses memorializing the death of a loved one, replacing them with a sign to be paid for by family members of the deceased (upon request).

The bill provides for the Missouri Department of Transportation to create a “drunk driving memorial signs program.”

The bill leaves many details of the program to the department, but the bill’s summary states:

“The signs developed by the department shall resemble a Missouri license plate and shall feature the words “Drunk Driving Victim!”, the initials of the deceased victim, the month and year in which the victim of the drunk driving accident was killed, and the phrase “Who’s Next?”

Apparently, only victims of drunk drivers may be memorialized. Any other cross or memorial will be illegal under the new program.

This seems a well-intentioned way to deal with those messy little roadside crosses, but I wonder if this program will do much to satisfy the impulse that causes these little memorials to be set-up in the first place.

Each of those memorials is a unique expression of one family’s grief. And it’s not just the loved ones who lose under this scheme, but I fear that the positive impact on the rest of us will be diminished. The new program seems so sterile and formulaic that I cannot imagine being moved enough to check my own speed when I pass one.

Those little memorials must be a pain to mow around in the summer. And they’re not really legal, either. So this bill goes a long way to tidy up the situation.

On the other hand, perhaps it is better for government to just keep looking the other way.