Thursday, June 9, 2011

What to do if stopped for DUI.

     Based on over 25 years defending people accused of all sorts of crimes, here are my top 5 suggestions if you are stopped for DUI (or any similar offense):

1.  Be polite but consent to nothing. 

2.  Give your name, required paperwork, address and the like if asked, but politely decline to answer any other questions or do anything "voluntary" unless the officer says you must.

3.  Politely decline any so-called roadside tests (including the portable breath test sometimes given during the roadsides) then ask if you are free to leave and if so, be on your way. 

4.  If you are arrested and requested to submit to a breath or blood test, you could lose your driving privileges for a while if you "refuse."  That decision is up to you, knowing otherwise that lack of a test makes it much harder for the prosecution later to get a conviction for DUI.  If you decide to submit, choose the breath test (though it is easier for the prosecution to prove compared to the blood test, it is easier for the defense to attack).

5.  Do not admit to drinking, to driving, or answer any voluntary questions about where you have been, what time etc.  If you try to explain, you are only needlessly giving away information.  Silence on these issues is your right, and silence is golden.

     Not all lawyers would agree with the above and of course every situation is different.  However, often when you read about a judge or police officer or prosecutor arrested for DUI while not on duty, these are the very suggestions they follow (although they seemingly almost always refuse to submit to a test).  In my experience, not following the suggestions above makes it much harder to defend against a DUI charge that may be bogus to begin with.

Monday, June 6, 2011

Domestic violence in Colorado.

“Domestic violence,” or DV, is not actually a separate crime in Colorado.  Rather, it is a sentence enchancer: it makes the underlying offense more serious.  Assault (causing bodily injury), harassment (e.g. touching a person, threatening him, repeated telephone calling), false imprisonment (restricting one’s freedom of movement), criminal mischief (damaging another’s property) and criminal trespass (being or remaining where you have no right to be) seem to be the usual acts underlying DV cases. 

In sum, if you are charged with committing bad acts against someone you have had or are having an intimate relationship with, it could be domestic violence as very broadly defined by Colorado law.  If convicted - which includes a plea agreement amounting to an admission of guilt - your sentence could be that provided for the underlying crime(s) (jail, probation, therapy, fines, costs, etc.) plus the sentence provided for domestic violence crimes (usually lengthy domestic violence “treatment,” possible loss of your right to possess weapons, and other restrictions and punishments).

For most DV suspects, the biggest issues they face - at least early on- are the no contact and/or restraining orders, together referred to as protection orders, which begin to go into effect once charges are formalized. 

“Restraining orders” automatically go into effect once you are charged, preventing you from harassing, threatening, intimidating, etc. witnesses and the alleged victim(s).  “No contact orders” must be imposed by a judge, and they routinely are in DV cases, preventing you from contacting the alleged victim.  No contact means just that: no telephone calls, no emails, no letters, no visits, no communication.  Generally, having someone else contact the alleged victim is prohibited.  Accepting contact from the alleged victim is prohibited, even if he or she wants contact.

Violation of a protection order is a separate crime.  It also can be a bond violation resulting in jail if a bond securing your release from jail is in effect at the time of violation.

Can no contact orders be lifted (canceled) or modified (usually to allow telephone contact only)?  Yes, but be patient.  First, the alleged victim or victims usually have to request it (repeatedly) of the district attorney’s office.  That office then may prepare a written motion to the judge conveying the request.  The DA’s office may be for or against modification or lifting of the order.  In effect, the no contact order amounts to a great deal of leverage over the defendant to take a plea (well over 90% of criminal cases in Colorado plea “bargain” without trial) and resolve the case quickly just to try to get the order lifted.  Meanwhile no contact orders remain in place, and are strictly enforced, unless and until lifted or modified by a judge, which can take weeks or months if ever (in some plea agreements, the DA’s office will insist on a permanent no contact order).

While the protection orders are in place, you must defend against the charges.  Domestic violence charges can be misdemeanor or felony level.  Most are misdemeanors prosecuted in county court (felony cases end up in district court and involve different procedures and stiffer penalties). 

The DV prosecution process is long and deliberative.  For the accused it is frustrating, emotionally trying, and devastating to the family structure and finances (especially if a no contact order is in place requiring couples to live apart).  Sometimes the cure is worse than the disease, and some families and relationships never recover.  Of course the process can be equally hard on the alleged victim or victims, if not more so.

If you believe you are innocent, don’t give up.  Just because you were arrested doesn’t mean a crime was committed, especially in DV cases, where many well-intentioned peace officers believe they are required to make an arrest regardless of circumstances.  Many times self-defense and other defenses are available.  Let the equally deliberative defense process work its way, and understand that defending yourself is your right (especially before you consider a plea).

Friday, June 3, 2011

What makes a good lawyer?

I graduated from law school (Fordham U. in New York City) in 1988 and have been practicing since.  I've been in every kind of court, seen every kind of judge, and opposed every kind of lawyer.  A "good lawyer" is someone who understands what it means to be a professional.

A professional cares about his client.  He or she follows up.  He thinks alot about ways to help his client and his case.  He is punctual.  He returns phone calls.  He keeps his client and everyone else involved updated, advised and in the loop.  He explains, describes, seeks input from others, and has a plan.  He is mindful about what has happened, what is happening, and what is going to happen, and from time to time updates his client accordingly.  He is responsible and accountable.  He is not content to do the minimum.

From my first boss I learned three key rules of practice:  1.  Universality (look at your actions as affecting the whole of the case); 2.  Be active (not reactive); 3.  Titles mean nothing (don't assume that just because so-and-so is a "learned judge" or "famous lawyer" or president of his company that they know what they are doing any more than anyone else).

The type of case does not change the need for professionalism.  In civil cases the issues usually boil down to what is reasonable; in criminal cases what is alleged; in divorce cases what is equitable.  A good lawyer is able to apply his work ethic to whatever issue comes up so to maximize his client's chances of a good result. 

Too many times in criminal cases I've seen defense lawyers barely do the minimum - they are just choreographers dancing their client's way through a bad plea and sentencing.  Prosecutors and judges rely on these type of lawyers to smooth the process, knowing they won't fight.  In civil and divorce cases I've seen too many lawyers lose focus of or ignore what matters, racking up fees and costs, delaying the case, and causing more harm than good.

The joke says that 99% of lawyers give the rest a bad name.  Professionalism in the law is not dead; you just need to know what to look for.