LegalMatch: Criminal Law

Lindsay Lohan Goes to Rehab...Again

Dear Miss Lohan, thank you for all the legal lessons your social life teaches the general public. The latest from Lindsay Lohan: she has been released from rehab and will now be under strict probation in an outpatient rehab program that includes therapy and drug testing multiple times per week—a break from the inpatient rehab program she was currently serving. If Lohan violates any of the terms of her probation, the judge in the case warned her that she could be sent back to jail for up to 30 days. This will be the 5^th trip to rehab for the actress that has only been legal to drink for 3 years. Of course never one to miss out on a business opportunity, before beginning the jail sentence that started the rehab chain reaction, La Lohan signed a seven-figure tell all about her life.

Now for the everyday legal lesson at play here....why you shouldn’t violate the terms of your probation. Probation is a form of sentencing that allows the offender to avoid (or lessen) jail time but still remain under legal supervision. In the case of Lohan, moving from an inpatient to outpatient rehab will allow her to continue working as well as regain some of her personal freedom. LegalMatch offers some scary consequences for probation violation, including: modifying the terms of probation to reflect a stricter sentence, fines, or a reinstatement of the original jail time. In addition to getting into some major trouble for a probation violation, the violation itself is often a separate offense that can carry its own punishment.

Some probation violations can be appealed, as can the terms of the probation if something comes up; but the bottom line is that probation is a favor that a judge does for an offender and they do not take the violations very lightly. I think that probation is an excellent way for the courts to let an offender assimilate back into society and still maintain supervision of the individual. Hopefully the good behavior that a probation sentence demands of an individual will continue long after the terms have been fulfilled. As for Lindsay Lohan, let’s hope the fifth time is a charm!

By: Violet Petran

Should We Blame Parents For Drunk Kids?

Unfortunately for some parents, the actions of their children can have major consequences for them.  But at a certain point, parents need to stop being blamed for the mistakes of their children and punishment should be placed squarely on the shoulders of the minor.  But when it comes to underage drinking, when is that point?  One study reported that 70% of teenagers have had a least one drink by the time they reach the age of eighteen.  

There will always be a debate on the topic of underage drinking and parental responsibility.  On the one hand, there is the argument that parents should have the freedom to allow their kids to do what they want when it is at their own home and taking this approach will help to limit abuse later on.  On the other hand is the argument that, in allowing their children to drink, they are communicating disrespect to legal authority and shaping bad habits. 

With graduation and prom season upon us, issues surrounding social host law have become more prominent, especially with the recent publicity surrounding two Harvard Medical professors who were arrested when teenagers were found drinking at their daughter’s graduation party.  The parents maintain that they told their daughter and her fiends that there would be no drinking at the party and did not know that alcohol was being consumed by the minors.

Social host laws are laws that impose liability on parents (or the hosts) who allow underage drinking on their property.  As the host of the party, they are under a duty to be aware of what is going on and make sure there is no illegal activity occurring.  Thus, legal liability is placed on both the person consuming the beverage and on the person furnishing the beverage.  Additionally, the social host may be found liable for injuries that a third party sustains if the injury can be traced back to the hosts and serves as the cause of the accident.  The laws relating to social hosts vary dramatically from state to state and are also heavily dependant on the circumstances of the underage drinking.

I think that there is and should be tremendous leeway for how parents want to raise their children and what they want to expose them to.  That being said, I don’t think that parents should condone underage drinking- especially when it involves kids other than their own.  The bottom line is that it is illegal and to knowingly allow for minors to partake in it makes them just as much of a law breaker as their children.  In the end, it is the parents and not the teenager that is the biggest loser in these types of cases and that should be something these parents keep in mind when they throw a party with alcohol.

By: Violet Petran

How Accurate is the DUI Breath Test?

A night filled with drinking should never be followed by driving.  I am pretty sure anyone and everyone reading this blog post knows that drunk driving is bad; very bad and the slew of celebrities that have been issued a DUI in recent times is helping to publicize the fact that no one is above the law.  Some people need to learn the hard way.  One driver in San Francisco is facing his 9^th DUI charge and looking at 7 years in prison. 

A recent article in the Washington Post reported that nearly 400 Washington D.C. residents were falsely convicted of driving under the influence based on inaccurate results produced by a breath test machine.  This figure is based on a study of convictions from 2008 in which over half of the individuals served jail time, generally serving at least five days behind bars.  The real culprit in these cases is attributed to city police improperly adjusting the breathalyzer machines by mis-setting the baseline alcohol concentration levels- a problem that is undoubtly not unique just to Washington D.C. police.  In cases that do not involve accidents or injuries, a “failed” breath test is enough to charge a person with a DUI and cause a variety of legal problems for years to come.

On a more general level, challenging the accuracy of a breathalyzer, urine, or blood test is a major argument in any driving under the influence case because there is always the element of human and machine error present in these tests.  Of all the tests that are administered, the breath test (although the easiest) has the most room for error in that there can be damage to the machine, the machine can be wrongly calibrated, and a variety of operating errors all of which can all serve to skew results.  LegalMatch has a helpful tip for those who find themselves in a situation where they must choose a test- the blood test is the most accurate of the three tests.  Although the blood test is the most invasive in that it requires the police to draw a sample of your blood, it produces results far more accurate than the breath or urine test. 

An alcohol-related driving conviction can have a major impact on an individual’s personal and professional life and I believe that people need to be properly punished for this type of illegal behavior.  In drunk driving cases, the prosecution needs to prove that the individual’s blood alcohol level was at or above the statutory limit at the time they were pulled over.  Test results help to prove that people are over the legal limit and for that reason, they should remain as such a tool; but as studies have shown- the testing mechanisms are not perfect and that fallibility needs to be taken into account as well. 

I hope that those wrongfully convicted will have a chance to clear their record before too much damage is done, and police will work to help improve the flaws in the system.  Also, I think the study results show that even if an individual fails a breath test, they should still seek to argue against the reliability of the results rather than just take the failed score as an absolute. 

By: Violet Petran

How Much Authority Do Police Have To Search You?

Ahhh, another new year. It's a time for keeping (or rather cheating to keep) resolutions to get healthier, smarter, and/or more cultured. It's also a time for buckling down again and getting back to work after the zaniness and hijinks from ringing in 2010. Though sometimes silently letting go of those 2009 indiscretions can be hard since, well you know, our society's pesky laws have an odd tendency to be broken at incredible levels during New Year's celebrations.

Arrests for DUIs, public intoxication, drug possession, and the all-time favorite: disorderly conduct, consistently spike at the beginning of each year. And taking a look at past LegalMatch statistics lends credence to the truth of this trend as the number of cases requesting legal counsel for these types of offenses also increase with every new year.

So what's the point of all this? Well, other than the interesting look into the human psyche that these statistics present (at least interesting to me), it got me thinking about one of the most common questions people ask me: how far reaching is a cop's authority to search and seize?

The simple answer is the police can check you as long as they have probable cause to do so. Probable cause means anything the police officer sees in your possession, vehicle, or even you that would give the cop some indication that you may have something in your possession, knowingly or unknowingly, that is illegal.

Whew. That was a mouthful. It sounds simple enough, and for the most part it is; but as you can probably already see, if the police can search you for anything that makes them suspicious, do they have any limit at all?

Well, to all you U.S. Constitution-carrying Americans out there, the answer is the police have really broad discretion to search you. The Fourth Amendment protects against “unlawful searches and seizures,” but what makes a search unlawful is a lack of probable cause. Similarly what makes a seizure illegal is taking something that isn't illegal or necessary for an investigation (which may or may not be return after said investigation depending on the situation).

The more interesting aspects of police search and seizures come in the form of vehicle checkpoints. You may be surprised to learn that drug checkpoints (i.e. points in the road where police mandatorily stop you to inspect your car for drugs) are illegal. Yes, that's right, the U.S. Supreme Court has rule that they're unconstitutional. Why? Because there is no probable cause.

But what cops can do is stop your vehicle temporarily if they suspect you may have drugs. Conversely however, most courts have upheld sobriety (drunk driving) checkpoints as constitutional. Go figure. But remember: even at a sobriety checkpoint, police must follow proper procedure to arrest a person and actually have it upheld.

As always, the best thing you can do if you're arrested is to get a lawyer. I mean, there's a reason that part is built into your Miranda Rights. Criminal violations are a serious blemish to your record. So don't take them lightly, and as always remember to party safe and with a reverence for the law. Sorry for being a buzz-kill.

Most DUI Defendants Are First Time Offenders

Don’t drink and drive.

I would call the above admonishment “common sense” – except for the fact that it doesn’t appear to be terribly common. Maybe “good sense” would be more accurate. In 2008, over 11,000 deaths were caused by drunk driving, and those deaths accounted for over 30% of the total number of traffic fatalities in the U.S. that year. People really ought to know better by now.

Besides the obvious fact that you might kill yourself or someone else, there are other risks associated with driving under the influence. If you get caught, it can result in a legal nightmare. In addition to license suspension/revocation, having a DUI on one’s record will probably result in higher insurance premiums, and might cause some employers to think twice about an applicant, and, in some industries, might preclude employment altogether. It is estimated that, when all is said and done, the average DUI conviction costs the defendant approximately $10,000, when you factor in bail, fines, towing, insurance rate hikes, and legal fees. That analysis assumes that the DUI did not result in an accident or injuries. Obviously, those would cause the costs to skyrocket.

These problems are further compounded for individuals with multiple DUI convictions on their records.

Fortunately, according to LegalMatch case statistics from the past year, the majority of DUI defendants seeking attorneys though our service have no previous DUI convictions, and of those who do have prior convictions, the number is usually very low (1 or 2). This probably means that most people who get a DUI learn their lesson. There is, properly, a large social stigma associated with drunk driving. This might deter people from driving drunk much more than the legal consequences, and would explain the apparently low number of repeat offenders.

Some people, however, don’t appear to have learned their lesson. There are a few individuals seeking attorneys through LegalMatch who have prior DUI convictions numbering in the double digits. How these people are still allowed anywhere near a car escapes me.

While it appears that many individuals don’t appreciate the dangers of drinking and driving until they’ve actually done it (and gotten caught, or worse), most of those people do seem to get the point once they’ve had to face criminal prosecution, pay larger insurance premiums, and suffer the social stigma associated with drunk driving.

If only more people didn’t have to learn this lesson firsthand.

Drunk Driving With Child Now Automatic Felony in New York

Driving under the influence of any type of drugs or alcohol is ALWAYS a bad idea. Now, in the state of New York, it is an automatic felony to drive while under the influence (with a blood alcohol level .08 and above) with a child under the age of 15 in the car. New York now has the nation's toughest drunk driving law with the recent passage of The Child Passenger Protection Act, or better known as Leandra's Law. Leandra's law, named after an 11 year old girl who was killed in a DWI crash when her friend's drunk mother crashed her car on a New York Highway, will also institute ignition locking devices for past violators. First time offenders will face a 1 1/3- 4 year prison sentence.

So what exactly does it mean to be convicted of a felony instead of a misdemeanor? Lots! Generally speaking, a felony is a crime that carries a penalty of at least one year in prison where a misdemeanor is a much lesser sentence. Being convicted of a misdemeanor can still carry jail time, but never usually over one year. Some possible consequences to a felony charge include:

• It could be on your record for life
• Imprisonment
• Probation or Parole
• Significant Fines
• Loss of the Right to Possess Deadly Weapons
• Loss of Occupational License

A recent LegalMatch study revealed the strong need for proper legal representation in cases involved driving under the influence. The overwhelming majority of inquiries are looking for ways to completely get out or reduce the sentence of a DWI charge. Getting charged with a DWI effects so much more than driving rights and shows the need for good, immediate legal representation.

I think that this bill is a wonderful recognition of the increased dangers you are putting your passengers in when driving under the influence. Whenever children are involved, there should be greater security and this legislation recognizes that need. Hopefully the raised penalties will serve the deterrent effect the legislature is aiming for, and eventually more states follow suit.

DUI & DWI Explained.

Drunken driving offenses are usually referred to as DUI (driving under the influence) or as DWI (driving while intoxicated). Driving a motor vehicle (or boat) with a blood alcohol level exceeding a maximum permissible legal blood alcohol limit is considered drunk driving. The legal limit for adults ranges from .08% to .10% depending on the State. Driving when your physical abilities are impaired by alcohol or drugs is also considered drunk driving. In most cases it makes no difference whether the drug in question is legal or illegal. Should you ingest a drug impacts your sense of seeing, talking, hearing, walking, and/or judging distances, you may be guilty of a drunk driving or boating offense.

The most common intoxication tests for DUI/DWI use a breath (Breathalyzer), a blood or a urine test. Usually being submitted to one of these test is the result of a failure to pass a cursory impairment test, such as walking a straight line, touching your nose while standing toe tip to heel, or reciting the alphabet incorrectly or incoherently. If you refuse to take a breath, blood or urine test when asked to do so by a law enforcement officer that has a reasonable suspicion to suspect that you have operated a vehicle or boat while impaired, you may lose your license to operate a vehicle by automatic suspension by your state DMV. You may be arrested and convicted based on testimony provided by the arresting officer or other witnesses in spite of refusing to take a test.

There are tough penalties for drunk driving DUI/DWI convictions in most states and these usually include large fines, license restriction or suspension, community service, mandatory attendance at a DUI DWI education course, 1 to 3 years probation, county jail or state prison for repeat offenders, and/or having your vehicle impounded.

Other consequences of DUI/DWI convictions are increased insurance costs, loss of your driving privilege, civil penalties if an auto accident was caused by your impairment and job loss if it requires driving. You can find out more about your rights and the legal implications of drunk driving at the LegalCenter Law Library, LegalMatch.com’s free legal resource. LegalMatch is a free and confidential service that can instantly match you to a pre-screened and qualified lawyer in your local area. Posted by Chas Blackford