CRIMINAL DEFENSE ATTORNEYS

Tuesday, June 17, 2014

You Have the Right to Remain Silent. So what?

This scene is played out every day, all across the country. Drivers are stopped and arrested for DUI and read their Miranda warnings, either on the road or at the station. People are told they have the right to remain silent and they have the right to speak with an attorney and to have one present before any questioning takes place. Then, the officer questions them about whether they will agree to a breath, urine or blood test.

So, you think, "He just told me I have the right to remain silent and not incriminate myself, and that I could have a lawyer, why should I agree to take a test before talking to a lawyer?" Next, you ask the officer to call your attorney to help you decide if you should take the tests. But, he says you're not entitled to a lawyer before making that decision. Now you're confused.

State's laws about refusal to submit to testing vary around the country. In all states, though, there is an immediate license suspension for refusal, often for a longer period than if you take the test and blow over the limit. In Florida, for example, a second or subsequent refusal can result in an additional criminal charge. Florida, and most other states, permits prosecutors to argue that your refusal demonstrates consciousness of guilt to a jury.

This scenario has led to a judicially created "confusion doctrine". Think of the three very confusing things presented to a DUI suspect: 1) You have the right to remain silent and don't have to say anything that may incriminate you, 2) You can talk to an attorney and 3) You have to decide whether to take a test which might be incriminating without being able to talk to an attorney.

Some judges will prohibit the introduction of "refusal" evidence if they find that the officer created a genuine confusion on the defendant's part that he could lawfully refuse to answer any questions after invoking his Miranda rights.

What is really going on here?

Breath testing laws around the country are based on the notion that driving is a privilege, not a right, and that your consent to take a chemical test is "implied". However, the "right to remain silent" only protects people from police questioning while in custody - not from giving the police physical evidence. So, while some states afford the "right to counsel' after an arrest, that right isn't afforded until after the police are done with you.

In most cases, DUI processing takes a few hours and police want to get their paperwork done, get you booked and get back on the road. So, telling you that you have the right to speak with an attorney is mostly hollow. It's the 'right to a lawyer when I'm ready" exception to the constitution.

The bottom line is that thinking you can speak to a lawyer after a DUI arrest may be a mistake on your part.

Sunday, June 15, 2014

Lawyer's Ethical Obligations and Discovery in the Facebook Age

Social media websites present a new battleground for discovery disclosures and present ethical implications for attorneys. Clients need to be informed about the risk that social media can pose to them without overstepping the boundaries of ethical behavior.

Evidence and Social Media

Although it seems like an ordinary reaction to most social media blunders, it is unethical misconduct to suggest to your client that they remove something on their Facebook page, or other social media sites. An ounce of prevention is worth a pound of cure: make sure your clients know the risks and dangers of using social media and broadcasting their opinions on the case before they start using it. Even telling clients to set posts they have put online as private may be seen as a deliberate attempt to hide evidence.

Attempting to acquire evidence using social media without disclosing your identity, or failing to tell the person you are acquiring the data why you want it, may be considered "phishing" and is illegal under current law. All data accounts you use in any professional capacity need to have your name on them.

Florida's Rulings

In Florida, electronically stored information is discoverable, but information that is "not reasonably accessible" isn't discoverable unless you have good cause. If you or your client are convinced that evidenced that is crucial to your case can be discovered, you can request the production of evidence and specify the file format.

If your client has information behind a wall online (such as a post made exclusive to certain friends or associates) then it is recommended that you move for a protective order to keep the court out of your client's hidden posts. If you can get an agreement from the other party to keep social media out of the courtroom, you can come out ahead.

A recent appellate decision has suggested that there are limits as to what can be considered discoverable, especially in the case of wrongful death suits and personal injury suits. The Second District Court of Appeal found that discovery requests can only hone in on matters that specifically pertain to the case at hand. It is, therefore, hard to build a case based on the idea that someone may have been negligent or otherwise caused their own accident, or that they weren't experiencing the psychological toll they might have told the court they had, using social media.

The more slippery slope may be in criminal context. An attorney should be very careful when advising a client about posts made on social media sites, particularly when a client may have made admissions on line, or posted photographs or status updates that could be deemed evidence in the case.

Here is an example of such a post from a 2013 homicide in Miami-Dade County:

Tuesday, June 10, 2014

DUI Crashes and Texting While Driving – Who is Most at Risk?

The National Highway Traffic Safety Administration collects statistics on impaired driving and publishes them for use by government agencies, law enforcement and the public.

According to a NHTSA report, 1 in 3 people will have their lives touched by a DUI-related incident, whether as a victim, witness or offender. The report also went on to conclude that men are twice as likely than women to have a blood alcohol content over .08, in cases of fatal motor vehicle crashes.

Underage drinkers, children and teens are particularly vulnerable, historically. During 2002, about twenty-five percent of fatal accidents involved teens aged 15 to 20 who had been drinking alcohol. Staggeringly, about 22% of crashes in which children died, involved alcohol.

Ten years later NHTSA's updated statistics paint an even bleaker picture for younger drivers, despite the fact that fatal alcohol-related crashes overall have been on a steady decline. The most vulnerable age group for fatal DUI crashes is the 21-24 year-olds. Thirty Two percent of those drivers involved in fatal crashes had a BAC over .08.

A significant number of my clients fall into the 18-25 age range. Many are college students coming back from a night out on South Beach or a football game. This group is particularly susceptible to DUI arrests for several reasons: Group pressure to drink or do drugs in excess, poor judgment /decision making and lack of driving experience.

Interestingly, texting while driving is six times more dangerous than driving under the influence of alcohol. NHTSA studies reflect that texting takes a driver’s eyes off the road for about five seconds. At 55 mph, imagine driving a regulation American football field with your eyes closed.

Teen drivers are the most vulnerable to this behavior. According to NHTSA's 2009 studies, over 15 percent of teen drivers involved in fatal crashes were reported to have been distracted and texting has replaced drunk driving as the leading cause of accidents.

The responsibility rests on parents to speak to their kids about these dangers and to formulate a contract with them, such as the one below, to make the family accountable to each other for responsible driving behaviors.

Parent-Teen Driving Contract

DISTRACTED DRIVING: In 2011, for drivers 15-19 years old involved in fatal crashes, 21 percent of the distracted drivers were distracted by the use of cell phones.

1. RULE: NO CELL PHONES.