New DWI laws could have “unintended consequences”

After the governor’s November DWI summit, we can expect new laws that promise to crack down on repeat DWI offenders. Oddly, the news reports seem to suggest a need–not for a crackdown on drunk drivers–but rather a crackdown on courts and prosecutors.

One of the biggest problems cited relates to the many arrested drivers who refuse to give a breath sample to determine their blood alcohol content. The law already requires a one year license revocation for such a refusal, but apparently prosecutors are being blamed for allowing DWI offenders to keep their licenses in exchange for guilty pleas on the underlying criminal offense.

Reports also cite prosecutors and judges giving probation to DWI offenders, thereby avoiding any conviction from appearing on a person’s record. This seemingly ignores recommendations of the federal goverment not to permit such practices.

Changes in the law may make it a crime to refuse to give a breath sample. Other changes could prevent prosecutors from plea deals which would keep a DWI from appearing in state and national databases. Another possible change is to make it a more serious crime to drive with a blood alcohol higher than .15% (the current level is .08%).

It turns out that some prosecutors are not enthusiastic about changing the law, citing unintended consequences of the new laws.

Prosecutors know that if their hands are tied by uncompromising rules, it will change the way they do business. This is because criminal cases do not always appear in black and white. Shades of grey are the norm.

When the prosecutors are prohibited from making reasonable compromises, fewer DWI charges will be filed. Either that or many cases will end up dismissed or lost at trial.

Look for a get-tough bill to be filed soon in the Missouri legislature.


Come back with a warrant

Change would let Missouri police hold suspects twice as long without charges.

When a police officer arrests a person for any criminal offense–whether a misdemeanor or felony–the suspect can be held in jail for 24 hours while police and prosecutors decide whether the person will be charged with a crime. At the end of the 24 hours, the prosecutor must either file a charge or the person must be released.

State Sen. Jack Goodman is considering filing a bill that would increase the 24-hour detention time to 48 hours. Click for  Story: Bill would give prosecutors extra 24 hours to file charges

When I was a prosecutor someone was always trying to get this time expanded. A few years ago the time limit for holding uncharged suspects was increased from 20 hours to 24 hours. Four more hours. Not a real big deal, but it meant having to do less math, so I was for it.

The trouble is that many persons that are arrested get released at the end of 24 hours because there is no case against them or the prosecutor just wants to take a week or two to consider the evidence. This change would mean that a lot of people–who may never be convicted of anything–will be spending most of the weekend in jail.

As far as helping the police and prosecutors, this new law would better allow them to enjoy their evenings and weekends. Sometimes an officer makes an arrest near the end of his shift and he might have to stay late to put together the paperwork for the prosecutor.  If we double the time uncharged suspects could be held, the reports could be completed at a far more leisurely pace.

The truth is that this bill is unnecessary. Twenty-four hours is plenty of time to put together criminal charges without anyone working up a sweat. If police don’t have enough evidence to file charges, they ought not be arresting anyone. That is how it works and it works fine.

While this change not essential, it would help police, prosecutors and judges protect their times of rest and relaxation. I like my free time as much as the next guy, but it’s unfair to the prisoner who sits–unconvicted & uncharged–waiting for someone to read his case and decide whether charges will be filed.


Grand jury is a double-edged sword

Jefferson City Criminal Defense LawyerHow does a person become charged with a crime? The first way is that the prosecuting attorney can file charges with the court. If the charge is a misdemeanor, the case is set for a trial. If a felony, there is an extra step: a preliminary hearing to make sure there is probable cause to believe the defendant committed a felony. The prosecutor must publicly put on evidence in front of the judge. The defendant is present, along with his attorney. If the prosecutor makes his case the accused is “bound over” to the circuit court where the case will be set for trial.

A second way to bring charges in the circuit court is through the grand jury. The grand jury is called to serve by the presiding circuit judge, typically at the request of the prosecuting attorney. The grand jury consists of 12 citizens selected by the court from a randomly chosen master jury list.

Once the grand jury is sworn in, they meet in secret and the prosecutor presents evidence to them in the cases he wants them to consider. There is no judge present. The accused has no right to attend, no right to question the evidence, or put on his side of the case. There is no record made in most cases. The prosecutor leaves the room while the jurors decide which “indictments” they will issue. Nine jurors must agree. The result is almost always whatever the prosecutor wants.

The fairness of this process is dependent on the judgment and integrity of the prosecutor. Most of the time the grand jury gives the prosecutor what he wants. If he has a reluctant witness, he just brings in a police officer to repeat what the victim told him. Hearsay is common in front of the grand jury.

Not only can a prosecutor get an indictment in a case that would never survive a preliminary hearing, he can easily avoid an indictment in a high-profile case by presenting his case in a way that insures that the grand jury will not indict. It’s great political cover because the grand jury gets the blame but is bound by secrecy rules that prevent anyone from knowing what really happened. The familiar criticism that a prosecutor could persuade a grand jury to “indict a ham sandwich” is only a mild exaggeration.

Unfortunately, we have real life examples: the tragic 2006 indictment of innocent Duke Lacrosse players in a case that promised national publicity to a prosecutor with too little courage and too much ambition. The recent indictment of Vice-President Dick Cheney and former attorney general Alberto Gonzales  last week in Texas (whatever we think of them otherwise) seems covered with the fingerprints of a publicity-seeking prosecutor. If the news accounts of erratic prosecutorial behavior are true, (read news stories here and here) perhaps this one will end quickly.

The fairness of the criminal justice system depends on the quality of the prosecutor: experience, mature judgment and a sense of fairness. Nowhere is this more true than in the use of the grand jury.

More posts on prosecutorial power:

Something from a former prosecutor to a new prosecutor
Criminal Cases: A roadmap of a typical case
Missouri Prosecutors join Obama “truth squad”

 

New law makes sex offenders hunker down for Halloween

Post-Halloween Update: Christian County arrests 18 sex offenders for not following Halloween law. Eighteen arrests. It’ll be interesting to see if the prosecutor charges these sex offenders and to see whether anybody challenges the law in these cases.

Update: Judge’s ruling complicates enforcement of new Halloween sex offender law. Part of the law ruled “ambiguous.” This still doesn’t address the issue of whether the law applies to most registered offenders.

Friday is Halloween and registered sex offenders have their marching orders under a new Missouri law.

Senate Bill 714 requires that registered offenders shall henceforth, on Halloween:

  • avoid all Halloween-related contact with children
  • remain inside their residences between 5 and 10:30 p.m. unless there is just cause to leave
  • post a sign stating, “No candy or treats at this residence”, and
  • leave all outside residential lighting off during the evening hours.

There is already a lawsuit filed challenging the law:Cape Girardeau County prosecutor responds to sex offenders’ suit over Halloween activities.

Since we haven’t yet seen a Halloween under this law, no one has yet been charged and no one knows if the federal courts will interfere.

One thing that will eventually be raised is that, when this law went into effect, it could not be enforced against anyone. This is because the Missouri Constitution prohibits what is called a “retrospective law.”  A retrospective law is one which creates a new obligation with respect to things that were done in the past. The State cannot impose a new duty on a person whose offense occurred before the duty was imposed. Doe v. Phillips, 194 S.W.3d 833 (Mo., 2006).

The new Halloween law went into effect on June 30, 2008. This would seem to make the new law unconstitutional because it claims to apply to all registered sex offenders. Under the Missouri Constitution, the new law should only apply to persons whose sex offenses occurred after that date.

Of course, that’s just my opinion.  As a practical matter, there will always be some prosecutors who will try to enforce this new sex offender law, without regard to its constitutionality. Politicians shovel this stuff out and the public eats it like ice scream.  Later on, the courts get to play the villain when they toss out the bad law.

So unless a sex offender wants to chance getting charged, he will need to hide out this halloween, just like the new law says. Until someone fights it and wins, the law is presumed to be constitutional.


Missouri Prosecutors join Obama “truth squad”

Who is the most dangerous when they abuse power?  Police? Prosecutors? Judges?

Police work under many rules. If they do not follow the rules they eventually get caught. They can be dangerous to some individuals, but unless the judge and prosecutor join them, the potential for abuse is limited in both time and scope.

Judges are probably the least dangerous cog in the machine. They cannot bring charges against anyone. They can only affect cases that are brought before them. If the prosecutor doesn’t like the way they do business, he can kick them off the case. If the judge does something wrong in the case, a conviction can be reviewed and overturned by an appeals court.

prosecutorNow to the prosecutor.  When it comes to charging criminals with a crime he operates with few restraints and with absolute immunity. His power extends to every person who enters his jurisdiction.  He can charge anyone with any state crime if just one person is willing to make a statement that the accused probably did something that could be considered a crime. This is all it takes to put the accused behind bars, where they may–or may not–get out on bond.

Months may pass before the accused gets to see the evidence against him at his preliminary hearing. And if the charge is baseless, a judge will finally dismiss the charge. By now, the poor guy has probably lost his job, maybe his house, but hopefully not his family.

But it can still go on. If the prosecutor wants to play out the bad hand, he can bring the accused person’s enemy before a grand jury to get an indictment (instead of having a judge decide at a preliminary hearing).

There is a saying that if the government wanted to, it could indict a ham sandwich. That doesn’t mean grand juries are stupid, just that that they see and hear only what the prosecutor wants them to see and hear. They seldom indict (or refuse to indict) unless that is what the prosecutor wants.

So the prosecutor can get the accused indicted on baseless charges and the accused sits in jail for many more months. When the trial date arrives he can either dismiss the charge at the last minute or–what the heck–let an assistant prosecutor try and lose the case. They need the practice anyway.

This is why a prosecutor can be so dangerous. It’s the reason why good prosecutors are very careful about their power. And why people should be beware the prosecutor who is partisan, or even casual, about their duties. There is nothing casual about it.

Now we have the disturbing news story over the weeend that two of Missouri’s top prosecutors have joined the Barack Obama “truth squad.” St. Louis City and County prosecutors Jennifer Joyce and Bob McCullough (and others) have pledged to react swiftly to unfair attacks on Obama and to what they consider ethical violations by Obama opponents. I’m not trying offend to Democrats here, because I’d be no more surprised, and just as offended, if it were the McCain “truth squad”.

Watch the video and see what you think. Technically, they haven’t crossed any legal line. It’s kind of like offending the King: once you know what he wants, only a fool does otherwise.



Needless to say, such intimidation tactics–harmless in the mouths of bloggers–cannot be ignored when threatened by prosecutors. I consider such political involvement by prosecutors inexcusable conduct in a job that has no business involving itself in partisan politics. It’s bad enough that prosecutors must be elected in partisan contests.

I notice that the governor issued a press release condemning the “police-state tactics” of these officials.  Even so, if you are in the east end of the state, don’t look for the  governor to save you if a prosecutor decides you may have been unfair in a way that they consider criminal. The real purpose, of course, is not to prosecute opponents, but simply to shut them up.


Child Endangerment & DWI: Double Jeopardy?

DWISection 568.050 makes it a separate crime (child endangerment) to commit a DWI with a child in the car. The new Senate Bill 216 would also add driving with any level of controlled substance (or its metabolite) in the body to create a new way to commit child endangerment. Both of these ways to commit child endangerment create a problem when combined with a DWI.

Police & prosecutors are known to file DWI charges AND Child endangerment charges together for the same incident, if there is a child in the car. But that’s an illegal double-dip. I can’t see this practice continuing very long before the court of appeals overturns a conviction (that is, if there isn’t one in the works right now!).

Simply, a conviction on both charges together would amount to double jeopardy.The reason is that DWI is a lesser included offense of the Child Endangerment charge; i.e., the elements of the DWI charge are contained totally within the Child Endangerment charge. That’s a big no-no which smart defense attorneys will prevent and ethical prosecutors will not file in the first place.

All things considered, I’d say Missouri’s DWI Child endangerment law is pretty useless. If prosecutors can’t file Child Endangerment along with the DWI charge, then they must choose between the two. In that case they will certainly choose the DWI charge because the punishment ends up being worse for the defendant. With a DWI, he not only has criminal punishment, but he must deal with:

  • points on his driver’s license
  • increased punishment for repeat offenses
  • conviction can be later used to charge a higher level DWI
  • odd stuff like insurance rate increases, job loss, etc.

If the legislature wants to make DWI child endangerment stick they will have to make it a type of aggravated DWI with ALL the DWI penalties and consequences PLUS something more for having Junior along for the ride.