Pot drivers: Stoned drivers are uncharted territory - latimes.com

This underscores the aggressive push to go after stoned drivers. Though this article screams of pro-prosecution bias, it is worth reading to understand the developing issue. Pot drivers: Stoned drivers are uncharted territory - latimes.com

Know your Rights at Drunk Driving Roadblocks

It's 4th of July and that means DUI roadblocks will be out in force. Know your rights if you encounter one this weekend.

If ever in doubt, default to this simple process: First, ask if you are free to leave. If the officer says you are, then leave. If the officer says anything other than "yes," tell the officer that you will not be answering any questions or performing any tests without first consulting a lawyer. Then stay silent.

However, an OUI roadblock presents specific challenges from the perspective of defending a drunk driving case. So other than default advice above, and the most important advice of all, which is to not drink and drive, here are a few "Dos and Don'ts" to follow:

DO...

...When you first pull up, remain calm, provide any requested documentation

...Speak in clear but succinct one or two word answers. Say as little as possible.

...Answer only the very first simple questions such as "where are you coming from."

...Calmly and politely ask if you are free to leave if the encounter lasts for more than 15-20 seconds.

...If asked to exit the car, first ask whether you are free to leave.

...If you think arrest is imminent, ask if you may contact a lawyer on your cell phone, and contact me at 617-858-1529.

DO NOT...

...Let an officer see you place a piece of gum or candy in your mouth

...Admit to consuming alcohol

...Participate in any field sobriety tests

...Participate in any medical or "drug recognition" tests

...Submit to any portable breath testing device

...Fall victim to pressure tactics such as "if you refuse I will arrest you." Let him arrest you and and contact a lawyer who will work to get the charges dismissed.

Remember on this 4th of July that we live in America. Non-cooperation with police is practically in our national DNA. Though they may arrest you, they will rarely beat you or physically harm you due to simple non-cooperation. You can be polite and non-hostile while protecting your rights. Never get into a physical altercation with police, but never be afraid to remain silent.

Barnstable DA should appoint special prosecutor

The Cape and Islands DA Michael O'Keefe should appoint a special prosecutor to investigate and possibly prosecute an incident where several off duty drug cops allegedly beat up a DJ at a bar.

DJ accuses officers of beating him | CapeCodOnline.com

As someone who has prosecuted cases myself, I understand the close relationship between prosecutors and officers. Though the prosecutor is supposed to be independent, it is rare that an assistant district attorney would question a police officer's story. They will be working together again within weeks, so the prosecutor has an incentive to "go along to get along." This poses a threat to justice in this matter.

Perhaps even more important, a special prosecutor will supervise the police investigation so that the police investigating other police are closely scrutinized for bias.

Narcotics police have a reputation for acting with impunity, often believing that they are "above the law." DA O'Keefe can demonstrate his commitment to impartial justice by appointing a special prosecutor for this case.

Supreme Court Further Curtails 4th Amendment

Today the Supreme Court put its stamp of approval on sneaky cop tactics used to circumvent the 4th Amendment in drug cases. In this particular case, the drug in question was marijuana. You can read the opinion here.

New Post! http://ping.fm/F2Yn0

SJC Marijuana Case

The Supreme Judicial Court recently ruled that the odor of burnt marijuana in a parked car, without more, does not justify the police ordering the occupants from the car.

It's important to recognize the limits of this decision. First, it does not affect the laws relating to operating under the influence of drugs. It remains a crime to drive under the influence of marijuana, and police may search a car if they have probable cause to believe that this is taking place. Second, it does not address the issue of the odor of fresh marijuana, or how this situation plays out if car is pulled over.

What does this mean? Smoking marijuana in a moving vehicle remains a very bad idea! If anything, since decriminalization of marijuana, police have made more arrests for operating under the influence of drugs. Law enforcement agencies are churning out "drug recognition experts," officers they claim can provide expert testimony on whether someone is under the influence of a drug, at a record pace. While the "science" behind their methods may be questionable at best, most courts have allowed this testimony.

It is a victory for privacy that one cannot be bothered for smoking marijuana in a parked car while doing nothing else wrong. However, marijuana prohibition is alive and well, and it can ruin lives and reputations.

How Texting Behind the Wheel Risks Criminal Liability

Not afraid of texting behind the wheel? Read this and you will be!

There has been much in the media recently about a texting ban that recently went into effect in Massachusetts.

http://www.boston.com/news/local/massachusetts/articles/2010/06/23/deal_set_for_ban_of_texting_at_wheel/

While the punishment as of now is only a fine, I am writing on a much more serious side of this issue: What happens if you are messing with your phone, cause an accident, and someone is killed?

Now typically in Massachusetts, drivers in fatal accidents are only charged with motor vehicle homicide. This is a surprisingly minor charge. However, in serious cases, where "wanton or reckless" behavior is involved, a driver can be charged with involuntary manslaughter--an extremely serious charge.

My first exposure to this issue came when I was working for a defender in law school. We were working on a case of kid who was drunk, went up the wrong way of a highway ramp, and killed a 16 year-old girl. Because the court found that his behavior may have been "reckless" and not merely "negligent," he ended up pleading to manslaughter and ended up with 7 years in jail.

So the question is whether texting behind the wheel can be considered manslaughter. This legal term is largely defined by the Worcester Firefighter's case, Commonwealth v. Levesque:

"Involuntary manslaughter is 'an unlawful homicide, unintentionally caused ... by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.'" 436 Mass. 443, 438 (2002)

http://scholar.google.com/scholar_case?case=2336413017799955717&q=Levesque&hl=en&as_sdt=40000002

At first blush, texting may not cover this definition. One could argue that the "harmful consequences," while significant, are not actually probable. That is to say that there is not a 50% +1 chance that texting will lead to a fatal accident. However, the same can be said for drinking and driving. Most people would agree that there is less than a 50-50 chance that a drunk driver will kill someone. Yet courts have upheld the provision of Melanie's Law that establishes the charge of manslaughter by drunk driving.

To understand how this issue could impact you, it is important to understand that juries can take into account their common sense and experience when it comes to determining whether conduct is "wanton or reckless." This means that societal standards come into play. So while 5 years ago, texting and driving may not be considered "wanton or reckless," things may have changed in recent months. There has been so much media, government, and law enforcement attention to this issue, that it is harder and harder to claim ignorance of the "probable harmful consequences." In other words, as society becomes more aware, the criminally accused are held to a higher standard. If one of my loved ones were killed by a texting driver, I would damn sure want the person charged with manslaughter. Likewise, if I were sitting on a jury in a similar case involving a stranger, I would agree that texting behind the wheel--with all the information out there right now--amounts to recklessness.

If your own safety is not enough to deter you from texting behind the wheel, the potential criminal consequences provide another angle. That is to say nothing of the civil liability one might face in what would be a slam-dunk civil suit for gross negligence. But that's a topic for another time. The bottom line is that "accident" is a misnomer for a death caused by texting behind the wheel. Labeling such events as "homicides" far more accurately reflects the current state of the law.