2007 NHTSA Statistics Released

I blogged last year about the fact that, despite the increasing harshness of Kansas DUI laws over the past few years, Kansas had one of the highest increases in drunk driving related fatalities in the entire nation. I had been pondering whether we were getting any return for the massive investment Kansas was making in DUI enforcement and whether these harsher laws were making us any safer. The 2006 statistics seemed to indicate “no”. NHTSA has just released the 2007 statistics on traffic fatalities. Once again, Kansas is not looking so good. There were less deaths from automobile crashes this year in Kansas, but more allegedly involved alcohol impaired drivers. In other words, the Kansas DUI problem appears to be getting worse for the second year in a row, despite the evermore draconian DUI laws in Kansas, including the 2007 laws treating those who blow .150 or higher more harshly.

Basically, the numbers are this:

In 2006, 468 people died on the roads in Kansas. 125 of them are alleged to have been over .08. That is 26.7%

In 2007, 416 people died on the roads in Kansas. 114 of them are alleged to have been over .08. That is 27.4%

No matter how you slice it, the problem is not getting better. My previous post lays out why this is, so I won’t repeat myself here. Needless to say, the laws that are causing more people to lose their jobs, lose their families, and drive without insurance, among other social problems, have thus far not been doing us any good in terms of making the roads safer.

Published by: admin on September 3rd, 2008 | Filed under DUI
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Man with Florida Fake ID Faces DUI Charges

Prosecutors claim a Woodbine, Maryland man used a Florida driver’s license to cover up his record of driving under the influence. Gerald Thomas Titus, Jr., 37, is facing 11 charges after a traffic incident in July. These charges include driving under the influence of alcohol, fraud of personal identity to avoid prosecution, and possession or use of a false government identification document.

When police pulled over a motorcyclist for speeding on March 22, they observed that the cyclist’s breath smelled strongly of alcohol. The man showed the officer a Florida driver’s license with the name Frederick John Karr, Jr. The address was listed as St. Petersburg, Florida. According to court documents, he was sentenced to a year and a half of unsupervised probation. Since he received probation before judgment, the conviction could be removed from his record if he completed his probation satisfactorily.

The man was again stopped for drunk driving on July 9, which promoted the Carroll County Sheriff’s Office to investigate. The officials now believe that Karr deceived officers by giving them a false name and false identification. However, it is unclear how he would acquired this false driver’s license, since the Florida Department of Motor Vehicles requires two forms of ID (among other items) to obtain a Florida driver’s license.

Cops: Fake ID hid DUI record, CarrollCountyTimes.com, August 27, 2008

A Florida DUI lawyer can explain your legal options if you have been arrested and charged with DUI. Contact the law office of William Moore for a free consultation.

Published by: admin on September 2nd, 2008 | Filed under DUI
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Do taxpayer-funded ads contaminate DWI jury pools?

While attorneys have long railed against taxpayer funded sloganeering over DWI, at The Matlock Blog, defense lawyer Shawn Matlock suggests an hypothesis I’ve long harbored in some deeply cynical pocket of my soul but never publicly pronounced: Is the main, real-world function of anti-DWI advertising of the type Texans see everywhere on billboards and television, essentially to contaminate the jury pool? If not in intent, certainly I think that occurs in practice. Matlock writes:

Not too long ago, I had a conversation with my father about some federal case I had where there were some complex search and seizure issues. I tried to explain to my twenty-ninth generation Texan, former rodeo cowboy, straight-talking father that the government can’t actually just walk into your house and seize everything on a hunch. To my dismay, he apparently assumed the government could.

As I began to dissect this somewhat horrifying situation, the conversation turned to DWI cases. My father quizzed me on how I defend (or at least try) various DWI cases. I explained the common fact scenarios for a DWI case that might go to trial. During the middle of the conversation, my father interrupted me to state very matter-of-factly that “If you drink and drive, you go to jail. End of story.”

Somewhere, a Texas prosecutor is smiling. It dawned on me. Those billboards are not about deterrence. Whoever came up with that slogan wasn’t thinking that the campaign was going to stop anyone from having a drink before driving. The purpose of these billboards is to contaminate the jury pool.

You see, after I wiped the drool from the sides of my mouth, I tried to explain that that little catch-phrase is not actually Texas law. I went over the definition of intoxication and explained how a typical DWI case is constructed. I even went so far as to show him a copy of a jury charge that I happened to have saved onto my laptop.

Despite all of that, he wasn’t sure. He had questions about how the definition of intoxication worked with the catch-phrase. He questioned the thinking of someone that drank before driving knowing that it was against the law. The point is, he was swayed by the billboard. He was confused by billboard because he thought for the longest time that the billboard was the law.

I’ve thought since I first saw them these billboards were misleading and relied on a poor message that’s factually inaccurate - they’re writing PR checks, so to speak, that the justice system can’t cash. Matlock’s conversation with his Dad shows why that’s harmful and not just wrong, wasteful and dumb.

To give credit where it’s due, Shawn isn’t the first Tarrant County lawyer to notice the mendacious overreach of these now ubiquitous billboards and ads. According to Alcohol Problems and Solutions:

Of course, its only illegal to drive with a blood alcohol concentration (BAC) of .08 or higher. Therefore, the billboards present a falsehood apparently intended to intimidate drivers into abstinence.

In reaction to these dishonest billboards, Mimi Coffey of Fort Worth has posted a billboard of her own. “Drink, Drive — go to jail. Another government lie.” (Dallas Morning News, 4-22-04) She earlier posted a billboard asking rhetorically “Who said responsible social drinking is illegal?”

Ms. Coffey wants both the Texas Department of Transportation, which created the slogan, and anti-alcohol activists to stop putting out propaganda that’s creating an atmosphere of terror. She says the crusade unnecessarily scares people and is part of an effort to discourage alcohol consumption under any circumstances.

To be sure, public education programs have done a lot to reduce many vices from cigarette smoking and drunk driving particularly those that focus on truth telling instead of promoting inaccurate hype, so I don’t think any reaction should throw out the baby with the bathwater. The real issue in the example of TXDOT’s ads, IMO, is that the PR campaign is obviously, factually inaccurate, not necessarily that government should not ever fund them.

I also wonder about the wisdom of a) overhyping the actual, real-world risks of what is usually a victimless crime, and b) failing to focus on reasons for not driving drunk besides just fear of short-term incarceration. That message only goes so far, especially when claims of the tactic’s effectiveness were seriously overstated in the first place.

Published by: admin on September 2nd, 2008 | Filed under DUI
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Kiss and Tell

Mankato police found James A. Carroll stumbling on the street Saturday morning. He scored a .063 on the breath test. The 18-year-old college student told police he was drunk from making out with a girl 30 minutes earlier; however, police said that scenario is not possible.

Published by: admin on September 2nd, 2008 | Filed under DUI
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11 More Frequently-Asked Questions About Sealing Your Record in Florida

          I recently posted an article entitled “11 Frequently-Asked Questions About Sealing Your Record in Florida.”  In that article, I noted that the Florida Department of Law Enforcement (FDLE) website contains several frequently-asked questions and answers about sealing criminal history records in Florida. This article discusses 11 more of those questions and answers.
 

          1.  If I have my civil rights restored, will my criminal history record disappear?

          No. In order to have your civil rights restored you had to have been convicted (that is, adjudicated guilty) of a felony that caused you to lose your civil rights in the first place.  Persons who have been convicted of a felony are not eligible to get their criminal history records sealed or expunged under Florida law regardless of whether their civil rights have been restored.

          2.  Do I have to apply for a certificate of eligibility to have my juvenile criminal history record sealed or expunged?

          The following considerations are relevant in deciding whether to apply to have a juvenile criminal history record sealed or expunged:  Prior to October 1, 1994 (for felonies) and July 1, 1996 (for specified misdemeanors), juvenile arrest records were not maintained by FDLE in the criminal-history record system and would not be available to the general public unless the juvenile were treated as an adult.  If certain qualifications are met, juvenile records are subject to an abbreviated retention schedule which results in the automatic expunction of the record after a specified period of time.  See Florida Statutes section 943.0515. Juvenile defendants who successfully complete a qualified diversion program, as set forth in Florida Statutes section 943.0582, may be eligible for expunction of their record. If a person wishes to pursue the judicial sealing or expunction of his or her juvenile record, the eligibility criteria and procedures, which are similar to those for adults, are found in Florida Statutes sections 943.059 and 943.0585.

          3.  If I have a criminal history record sealed or expunged in another state or jurisdiction, am I still eligible to have a criminal history record sealed or expunged in Florida?

          If the other record was sealed or expunged by operation of law (administratively or automatically, without intervention or action by the applicant), then the out-of-state sealing or expunction would not prevent you from being eligible to have a record in Florida sealed or expunged. However, if the record was sealed or expunged because you petitioned to have it done by a court order, or otherwise actively sought the sealing or expunction, then you would not be eligible to have another record sealed or expunged in Florida.

          4.  How long does it typically take to receive a response from my application for a certificate of eligibility?

          The current processing time is 30 working days or less from the date the application is received, processed, and mailed back to the applicant.*
 

          5.  If I had a criminal history record sealed or expunged and then had that same record vacated, can I now apply to have a different criminal history record sealed or expunged?
 

          No.  Florida Statutes sections 943.0585(2)(f) and 943.059(2)(e) state that an applicant cannot have obtained a prior sealing or expunction of a criminal history record.  The fact that that record was later vacated is immaterial insofar as obtaining a sealing or expunction is concerned.

          6.  Will FDLE notify the agencies involved with my case that my record has been sealed or expunged?

          FDLE will obey a certified court which states that a particular criminal history record is to be sealed or expunged.  Once FDLE seals or expunges the criminal history record, a notification letter will be sent by FDLE to the arresting agency (or agencies) involved with your case. The notification letter informs the agency that FDLE has received and complied with the order to seal or expunge the criminal record.

          7.  What type of background check is conducted by FDLE to determine my eligibility to have a criminal history record sealed or expunged?

          FDLE conducts criminal history record checks in Florida through the Florida Crime Information Center (FCIC), national record checks through the National Crime Information Center (NCIC), and driving history checks through the Florida Department of Highway Safety and Motor Vehicles (DHSMV).

          8.  Why is the database at the Florida Department of Highway Safety and Motor Vehicles (DHSMV) checked in order to determine my eligibility to have my criminal history record sealed or expunged?

          A criminal traffic offense such as DUI, reckless driving, or driving while license suspended/canceled/revoked may appear in the DHSMV database even though it may not appear in the criminal history record system maintained by FDLE. Although noncriminal traffic offenses (such as careless driving) do not affect one’s eligibility to seal or expunge a criminal history record, an adjudication of guilt for any criminal offense, even a traffic offense, makes it impossible for an applicant to get her criminal history record sealed or expunged.

          9.  Who should receive a copy of the order to seal or expunge a criminal history record?

          By law, the Clerk of Court is responsible for certifying a copy of the court order to the State Attorney’s Office (or to the Statewide Prosecutor’s Office) as well as to the arresting agency (or agencies). The arresting agency is then responsible for sending a certified copy of the court order to all agencies that are known to have received the criminal history information. In addition to FDLE, those agencies may include the Florida Department of Corrections, Teen Courts, and the Florida Department of Juvenile Justice.

          10.  What do I do once I receive a certificate of eligibility?

          Once FDLE has issued the certificate of eligibility to seal or expunge a criminal history record, you or your attorney must file a petition for relief along with the certificate of eligibility and a required affidavit in the court in the county where the arrest occurred. The issuance of the certificate of eligibility is not the final step in the sealing or expunging process nor does it guarantee that a criminal history record will be sealed or expunged. The final decision about whether or not to seal or expunge a criminal history record is placed lies with the judge who has jurisdiction over your case.

          11.  What information is required to complete the application for certification of eligibility?

          In order to obtain a certificate of eligibility so that you may, in turn, petition the court to seal or expunge your criminal history record, you or your attorney must do the following things pursuant to Florida statutes sections 943.0585(2) and 943.059(2):

          A. Section “A” of the application must be completed and signed in the presence of a notary public;

          B. The applicant must be fingerprinted by authorized law enforcement personnel or a criminal justice agency. The fingerprint card must include the applicant’s name, race, sex, date of birth, social security number, and signature prior to submission to FDLE;

          C. The applicant must provide a certified disposition of the case that he is applying to have sealed or expunged.

          D. A nonrefundable money order or cashier’s check in the amount of $75.00 made payable to the FDLE must accompany the application.

          E. If you are requesting an expunction of a criminal history record, the Office of the State Attorney or the Office of the Statewide Prosecutor with jurisdiction over your case must complete Section “B” of the application. If section “B” is not completed, FDLE will assume that you are attempting to get your criminal history record sealed rather than expunged.

          * It has been my experience that FDLE often takes up to a couple of months to respond to an application to seal or expunge a criminal history record.

Published by: admin on September 2nd, 2008 | Filed under DUI
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Todd Palin arrested for DUI in 1986


Minneapolis, MN

As Hurricane Gustav slammed the Gulf Coast, another storm was brewing in the political world. John McCain’s number two pick, Governor Sarah Palin announced that her 17 year old daughter, Bristol is pregnant and that in 1986 her husband, Todd was arrested and charged with Driving under the influence of alcohol. Is the McCain campaign trying to bury this bad news on a day where Hurricane Gustav commands the news cycle? On any other day the Bristol’s pregnancy would be given much more attention, especially in cable news.

Todd Palin was only 22 years old at the time and plead guilty to the D.U.I., but the campaign is not commenting on whether he served any jail time or not. The Brody File is reporting that he was “taken to jail briefly.”

Published by: admin on September 2nd, 2008 | Filed under DUI
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Blawg Review #175

Labor Day. A day off for working citizens. The end of summer and the beginning of fall. Still the start of the football season and in decades past the last day before school. Barbeque. Fireworks. The whole nine yards.

After my last Blawg Review the anonymous editor assigned me this particular slot for my next BR. Which of the above listed associations with Labor Day could have been his reason? 

 

Maybe he thought I’d follow a great American tradition of the work day… showing up late? (This Blawg Review is being posted well after the midnight deadline – sorry about that.)

 

Or did he know that when I’m asked what I believe in, the litany often includes “I’m for labor over capital”?

 

Ah, wait a minute. I’ve got it. Perhaps our dear ‘Ed.’ has a slightly off center sense of humor. He’s given me this weekend’s assignment because I’m a DWI lawyer. (What can I say? It seemed like such a good idea when he proposed it a year ago.)

 

Welcome to the Labor Day Edition of Blawg Review. 

 

Work Related

 

Res Ipsa Blog gives us some helpful hints for how to use Firefox when we get back to work. And Jordan Furlong’s suggestion that non-lawyers can do the work of lawyers if it’s ‘good enough’ might put some attorneys out of work all together.

 

Why do you work? Proabably at least in part to get paid. But if there’s no government in Antarctica taxing your paycheck you don’t get the normal benefit of excluding eighty thousand dollars in income as earned in a foreign country.

 

And speaking of getting paid, how many long time lawyers would have liked Dan Hull’s suggestion that first and second year associates be paid in experience rather than dollars when they were in law school? (Yeah, yeah – I know it sounds like a good idea now that you are partner…)

 

Every job has its requirements. Dre Cummings writes about the LPGA’s new policy requiring all tour players to speak English proficiently or face suspension.

 

Off Work Related

 

Want to see a movie on your day off from work? Quick – go see the newest Bollywood blockbuster Harry Puttar. (Spicy IP tells us Warner Brothers has a legal beef.)

 

 

After a lifetime of laboring for the boss, we can all look forward to retirement, that is unless we read Jonathan Rosenfeld’s blog alerting us to all kinds of problems in the nursing home community.

 

 

Criminal Law / DWI

 

Stephen Gustitis starts a series on Texas executive clemency, i.e. how to get a pardon.

Shawn Matlock posits the MADD’s slogan ‘Drink. Drive. Go to Jail.’ is meant to contaminate jury pools, rather than to deter.

 

Troy Burleson answers the question DWI lawyers hear from their clients: “Why did the officer say I couldn’t talk to a lawyer?”

 

Lawrence Taylor writes again on a topic coming to a community near you: DUI cops with needles. San Diego DUI Blog asks ‘Isn’t it Time to Change DUI Penalties?”

 

To tell or not to tell? Mark Bennett expounds on the theory of what to do with a Nasty Little Surprise in a criminal case. Gideon follows up with his own thoughts on the subject.

Walter Reaves asks ‘Who is Responsible for the Cost of Indigent Defense?’

 

Grits for Breakfast catches Austin Police Department hyping ‘stranger danger’. Mark Draughn at WindyPundit notices we are becoming a police state. A Harris County Lawyer loves to be in trial.

 

Victoria Pynchon documents the FBI’s latest efforts to overcrowd our jails by arresting bloggers where at best a civil suit would do, and offers us tips on what to do when we see the agents arriving on our own doorsteps. Susan Crawford writes about battle over nondiscriminatory Internet access.

 

Mike Masnick alerts us that a New Zealand judge has banned the internet publication of the names of two men accused of murdering a child. In the U.S. we’d call that a clash between the right to a free press and the right to a fair trial – and I fell sure in predicting that the press would win such a battle.

 

Jeremy Richey tells the story of a Kentucky prosecutor who can’t take (or figure out) a joke.

Overlawyered posts about the defendant (or his insurer) suing the city for not properly taking car of his car in the impound in a fatal hit and run case.

 

QuizLaw posts an oldie but a goodie from the internet DWI archives.

 

Random (but still included)

 

As Labor Day precedes the start of the NFL season, Scott Greenfield writes about recently retired New York Giant Michael Strahan’s child support appeal. On a side note, he also takes his approximately 40th consecutive win for Headline-of-the-Week with ‘Three Ponies is Enough for Anybody’.

 

Professor Randazza suggests that if wearing a jacket that says “Fuck the Draft” was found to be protected speech by the Supremes in 1971, the Department of Homeland Security should have known that the t-shirt slogan “lesbian.com” was A-OK.

 

Mark Herrmann gets to say “I told you so” to the Volokhs when a terminally ill plaintiff succeeded in getting a judge to issue an injunction ordering a drug company to provide him with an unapproved, experimental drug.

 

David Harlow writes about an OIG advisory opinion barring a contractual joint venture.

 

Is it against Google’s terms of service to sell links? The comment section of Kevin O’Keefe’s post about FindLaw lights up. And Paul Ohm writes about the possibility of lawsuits when free wi-fi terms of service are editable by the user.

 

That’s it for now folks. Blawg Review has information about next week’s host Legal Literacy, and instructions how to get your blawg posts reviewed in upcoming issues.

Published by: admin on September 2nd, 2008 | Filed under DUI
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Delaying the truth in Charles Hood case harms pro-death penalty cause

If you don’t think judges cover up for one another’s misdeeds, consider the case of Charles Dean Hood, a convicted murderer who’s scheduled for execution next month despite evidence that the judge and the Collin County DA engaged in an extramarital affair during his 1990 trial. Judge Verna Sue Holland went on to serve on the Texas Court of Criminal Appeals, where eight of her former colleagues this summer ruled that Hood could not force her to answer for the alleged misconduct. Her ex-husband, now deceased, and a prosecutor who worked there at the time have said the pair were sleeping together.

So Hood’s lawyers pursued a novel civil suit to get to the truth, but now another Collin County judge has set the hearing for two days after Hood’s scheduled execution.

Meanwhile, Houston Chronicle columnist Rick Casey notes that “the two people who have absolute knowledge of the truth remain silent,” writing that:

Three years ago Judge Holland told reporter Alan Berlow, whose piece on the alleged affair appeared on Salon.com, that it would be “unethical to comment” on a pending case.

That’s absurd.

Houston lawyer Lillian Hardwick, who co-authored the Handbook of Texas Lawer and Judicial Ethics, says she can think of no ethical reason Holland can’t come clean.

“In fact, the Texas Code suggests just the opposite, as applied to what she did on the bench and off the bench, while a judge,” she said.

This is an instance where politicized pandering over the death penalty has prevented an honest rendering of the case. Those who most ardently support the death penalty seem to think that if Hood is executed, they “win,” so they want it to happen without delay.

That’s a foolish stance that’s doomed to backfire. Holland’s friends on the bench can’t protect her indefinitely from having these misconduct allegations publicly aired. As I wrote in the comments on Friday, “this game of chicken is bigger than Charles Hood. Now we know the affair is still likely to be exposed even if it happens posthumously on behalf of Hood’s estate.

“So the question becomes: Do Holland and [former DA Tom O'Connell] want to wait until the deed is done to reveal a conflict which would have easily granted Charles Hood a mistrial if true? My guess is they’d be disbarred over it. If the affair occurred, and if it didn’t one can’t help but believe they’d deny it, the pair will be doubly disgraced, both as adulterers and unethical barristers. Even more importantly in the big picture, they’ll have done more to harm the cause of pro-death penalty advocates than any abolitionist ever could.

“One other aside: A lot of people, not just Charles Hood, got convicted in her court during the six-year period the DA was allegedly bedding the judge. These allegations open up many, many cans of worms.”

Published by: admin on September 2nd, 2008 | Filed under DUI
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