NTSB .05 BAC DUI proposal is asinine and would make Ben Franklin MADD

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Recently, the NTSB proposed lowering the DUI BAC threshold to .05 from the current .08 number. See Mike M. Ahlers, Tougher drunk-driving threshold proposed to reduce traffic deaths, CNN on-line, May 13, 2013. It claims that this lower number will reduce deaths. No doubt. So will making guns “illegal.” So will banning swimming pools. So will banning tobacco products. So will outlawing all gas power cars and replacing them with horse-drawn carriages. The fact is that life is risk. There are many things we do that seem stupid and even life threatening to ourselves and others (consider NY Mayor Bloomberg’s attempt to ban all sugary drinks more than 16 ounces), but few of those activities are as demonized as alcohol.

Consider a few statistics…

“Not only did the number of people killed in drunk driving crashes in 2011 (9,878) drop by 2.5 percent from the number killed in 2010 (10,136), but this decline outpaced the 1.9 percent decrease in overall highway deaths.” MADD, Drunk Driving Deaths Fall Below 10,000, Dec. 10, 2012.

“From 2005-2009, there were an average of 3,533 fatal unintentional drownings (non-boating related) annually in the United States — about ten deaths per day. An additional 347 people died each year from drowning in boating-related incidents.” CDC info page on drowning deaths.

“In the United States in 2009, 205,974 people were diagnosed with lung cancer, and 158,081 people died from it. CDC has a number of programs for preventing and controlling lung cancer.” CDC Lung Cancer Deaths info page.

Only 1/3 of all traffic fatalities were caused by drunk drivers. Impaired Driving: Get the Facts, CDC.

Hence, if we really wanted to stop death we’d stop another 20,000 by banning all driving, or perhaps lower the speed limit to 20 MPH. Swimming pools are death pits, so lets save 3500 lives a year by outlawing them, too. Ban tobacco and save 200,000 lives a year. I’d dip my toe in the gun control debate, but the Second Amendment makes it clear that this issue was settled over 200 years ago. I’m willing to sacrifice lives to maintain our other freedoms.

What’s my point? Simple. From a practical standpoint, it takes approximately 3 beers consumed within 2 hours to get to the current limit of .08 BAC. See Clemson Redfern Health Center BAC info page. Hence, only 1.5 will get someone to .05. I already advise my clients who have been arrested for DUI to also not drink AT ALL if they are driving. Officers profile prior offenders, so you’ve got a target on your back once that first DUI hits you. This new proposal compels me to give the same advice to those who have never faced the nightmare of a DUI arrest and prosecution.

1.5 drinks. That’s it. It’s not a question of whether you’re impaired. You could be sober as a rock and still get a DUI if you’ve only had 1.5 drinks. This is a simple matter of Big Brother legislating alcohol out of society. Forget social drinking. Forget drinking wine at the restaurant. It’s too risky. 1.5 drinks. Forget bars staying in business. Sure, some who read this may be okay with the above outcomes, but it seems to me that our finite resources should be spent on things that are more important. Sure, 10,000 deaths is tragic, but how many more heinous crimes will go uncontested with police chasing down sober .05 BAC drivers? Shouldn’t the money to be spent on enforcing such laws be spent on eradicating cancer?

In Kansas and many other states we are facing major budget shortfalls. Here, the legislature has refused to impose prison time for repeat felony DUIs. They serve 12 months in county jails not prison. The reason is simple. If such offenders were sent to prison there would be no space left for rapists, murderers, drug dealers, etc. My informal survey of judges and prosecutors tells me that the .05 threshold would multiply the local jail problem tenfold. The state budgets for treatment and housing DUI offenders would be overwhelmed. To be frank, I think part of their objection is that they drive at the .05 level, and they know that if they aren’t drunk after consuming 1.5 drinks then neither are the people they’d be forced to prosecute and convict.

The good news is that most state legislators aren’t married to MADD like they once were. Thus, it is likely they will consider all the above points as well as a few of their own and not implement this ridiculous standard.

As Ben Franklin put it, “Those willing to sacrifice freedom for security deserve neither.” He was probably drinking a large mug of beer and smoking a pipe full of tobacco when he said it.

Rich entrepreneur has no respect for the Constitution

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Sen. Jeff Melcher (R-Leawood) was overheard by a reporter in Topeka, Kansas, telling someone he thought paying $62.00 an hour to court-appointed attorneys was too much. He seemed to think that there were so many new law school graduates and out of work attorneys that the market would pay much less. Hmm. Consider this, Sen. Melcher: Have you in your business dealings ever hired an attorney for less than $100.00 an hour? Indeed, I suspect you’ve never paid less than $300. Why? If a family member got in trouble (a child, parent, wife), would you feel confident in court-appointed counsel at your “market rate”? Doubtful. You like many middle-to-upper class Americans would probably talk behind the pubic defenders’ backs about how pitiful such legal defense would be. So here’s my question for you; if we are all entitled to a right to counsel under the Sixth Amendment, does “well paid counsel” only apply to those who can afford it with the rest getting unjust sentences (not true, by the way, but it’s what you think, I’ll bet)?

Here’s the truth in Melcher’s idiotic comment. He loves America when it makes him money, but not when the same freedoms that he enjoys require at lease some sacrifice on his part. I’m also a right-wing conservative, perhaps the only one left in the Kansas Association of Criminal Defense Lawyers. As a member of the Kansas Board of Indigent Defense Services I’ve been impressed with Gov. Brownback’s commitment to preserve funding for indigent defense services. He gets it. He knows that if we sacrifice one of our fundamental rights for a group of citizens just because they’re poor (or even criminal) we sacrifice the freedoms of all. Indeed, we are witnessing the Obama administration ignore the fundamental right of parents to raise their children as they see fit by deporting a German family who have religious objections to government schools in Germany and are facing prison if they are sent home. See Pierce v. Society of Sisters. We’ve also seen SRS and other government agencies invade homes based solely on their decisions to home school their children. Sound irrelevant? Wrong. It’s the principles wrought by court decisions in the criminal courts, defendants represented by state funded court-appointed counsel, that protect those of us who think we’ll never be impacted by the bad law bad lawyers make in the criminal courts.

Put another way, if you let the market pay someone $10, $20, or whatever pitiful remuneration Sen. Melcher thinks is proper, we will see many more bad laws made in the courts by bad lawyers. We need the best defense at all levels of the criminal justice system, not just for the O.J. Simpsons of the world.

There’s also the practical consideration. Associates in big law firms aren’t the ones taking court-appointed cases. These firms can spread their overhead costs across lots of clients. It’s the one, two, or three man firms that are taking such cases. $62.00 doesn’t cover overhead costs such as secretarial work, rent, utilities, equipment, etc. I stopped taking such cases a couple of years ago, at least in the criminal court. Why? I couldn’t afford it. One particular case that resulted in one mistrial and another retrial did it. $62.00 an hour for 8 hours is…not much, especially when “the market” pays me more than $200.00 an hour on other cases.

I could rant for another hour if I didn’t have better things to do. Suffice it to say our leaders should read the Constitution and understand the rights they are sworn to protect. It’s not just about making money, Sen. Melcher, but even lawyers need to feed their families. Knock those rates down even lower and all the good lawyers will move on to another more lucrative area of law…like chasing ambulances.

I leave you, Sen. Melcher, with something you’ve never read before, the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Free healthcare–more security, less freedom, whoopee!

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“Those willing to sacrifice freedom for security deserve neither.” Ben Franklin

I like options. When I was a young man I spent money on CDs, electronics, and adventure-related activities. I did not spend it on health care, including high insurance premiums. Had someone told me back then that I had to spend several hundred dollars a month on something I would seldom if ever use, I would have laughed in his face. Alas, I can laugh at President Barack Obama’s face all I want, but I will still be forced to shell out hundreds of dollars a month on healthcare and never see a penny of it returned.

How can that be? Wasn’t the point of Obamacare to give me and other Americans free healthcare, or at least more affordable healthcare. Wrong!

My experience is common. First, before Obamacare passed I was paying close to $800.00 a month for a comprehensive plan. We had no copay. I even got a couple “free” colonoscopies and my daughters and wife used the plan generously. Then Congress passed Obamacare. Overnight my premium shot up to almost $1200.00 a month. I shopped around and found what amounts to a major medical plan for just under $700.00 a month. It included a $2k per member deductible, $5k for the family. To absorb the blows, we opened an HSA so at least we could write off the $5k we had to spend out of pocket while trying to meet the deductible.

Obamacare took full effect in 2013. Before we had that $5k we could spend through the HSA and write it off on our taxes. Now the tax deductible amount is reduced to $2500.00. Before we could write off health care that exceeded 7% of our income. That threshold went up to 10%.

To summarize, it looks like I’m paying for your healthcare.

Suffice it to say I am ticked. I was already looking at three of the worst financial years of my law practice thanks to the administration’s socialist, government-cures-all policies, now my health insurance costs have gone through the roof since the pool of must cover people has been forcibly expanded. When does this madness end?

Now for something else you didn’t know Obamacare did. Recall what happened when Catholic institutions tried to not cover abortion and birth control services due to their sincerely held religious beliefs. Eventually, they mostly won the argument. But private institutions are toast. If they’re covered by the mandate, they must offer such services, even if they are owned by Christians who are opposed to such services. (What happened to the First Amendment’s Freedom of Religion Clause?) But it gets worse. If an employer isn’t compelled by the legislation to provide healthcare (less than 50 employees) but chooses to provide it anyway, BAM!, they must cover such services. This issues is being argued in Federal Appeals Courts right now, but don’t hold your breath on American citizens winning.

Ben Franklin would be sad. For the security of free healthcare for poor Americans, the freedom of the rest of us has been sacrificed. This isn’t the America of our fathers or fathers’ fathers. This is a very different place, a worse place. Sadly, things will get much worse before they get better.

Legal updates 4-2-2013

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New law review article: “Florence, Atwater, and the Erosion of Fourth Amendment Protections for Arrestees”
Julian Simcock, Note: Florence, Atwater, and the Erosion of Fourth Amendment Protections for Arrestees, 65 Stan. L. Rev. 599 (2013): If there is an animating imperative behind the Supreme Court’s decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip searching arre

W.D.Mo.: The emergency aid entry here, by all accounts, was in good faith
The record supports the conclusion that there was a bona fide emergency justifying the entry into the house. The defendants weren’t under investigation for drugs before the entry. [Truly applying good faith to a warrantless entry.] United States v. Brandwein, 2012 U.S. Dist. LEXIS 187273 (W.D. Mo. M

OH2 warns counsel not to be candid about defense arguments lest they use it against them
Defendant voluntarily consented to the searches. Counsel’s attempt to be candid about the lack of strength of his argument was seized on by the appellate court as a near waiver, which it wasn’t. [Sometimes you just can’t trust appellate courts.] State v. Pugh, 2013 Ohio 1238, 2013 Ohio App. LEXIS 11

OH6: A warrant for a computer implies that its contents were subject to seizure
A warrant for a computer implies that its contents were subject to seizure. “The search of the contents of the computer is implied by the use of the phrase ‘computers and all related electronic storage devices.’ This makes sense, since oftentimes a computer is of little or no evidentiary value apart

Maryland: Senate Bill 281 Passes House Committees
Last Friday, Senate Bill 281 was considered and passed in the House Judiciary Committee by a 14-8 vote and in the House Health and Government Operations Committee by a 13-10 vote.  SB 281 was reported by these committees with amendments and goes to the House floor TOMORROW for a final vote.  If pass

Montana: Contact Governor Bullock to Support Senate Bill 145 (CWP Confidentiality); Other Pro-Gun Bills Pending in Senate; Governor Vetoes Pro-Gun Bills
Senate Bill 145, introduced by state Senator Frederick Moore (R-20), provides important confidentiality and privacy protection for concealed weapon permit holders.  SB 145 passed in the state Senate by a 37 -13 vote on January 31 and passed in the state House by an 88-9 vote on March 13.  It is now

Utah: Ominous Campaign Disclosure Bill Now Before Governor
House Bill 43, a measure aimed at suppressing political speech by membership organizations such as the NRA, received the final approval in both the Utah House and Senate and is now awaiting Governor Gary Herbert’s (R) approval.  This fatally flawed bill poses a grave risk to freedom of speech in Uta

Indiana: NRA-Backed Pro-Hunting Reform Bill Passes Senate
Today, the Indiana Senate voted 40-9 to advance House Bill 1563.  Sponsored by state Representative Sean Eberhart (R-57) and state senators Carlin Yoder (R-12) and Richard Young (D-47), HB 1563 would repeal Indiana’s current prohibition on the use of a suppressor while hunting and strengthen Indiana

Nevada: Three Gun Bills Scheduled for a Hearing this Wednesday, April 3
Assembly Bill 234, introduced by Assemblyman William Horne (D-34), is an all-out attack on the Second Amendment for imposing an excise tax on every Nevada firearms dealer who sells firearms or ammunition in the state.  Dealers will be required to charge a $25 tax on every firearm and 2 cents on each

Virginia: General Assembly to Vote on Pro-Gun Amendment to Senate Bill 1378 this Wednesday, April 3
This Wednesday, April 3, the Virginia General Assembly will reconvene for one day to consider amendments to Senate Bill 1378 submitted by Governor Bob McDonnell (R).

WaPo.com: Fourth Amendment creates new fault lines
WaPo.com: Fourth Amendment creates new fault lines by Robert Barnes: The oral arguments last week on same-sex marriage showed clearly the Supreme Court’s familiar fault line between liberal justices nominated by Democratic presidents and conservatives named by Republicans. But a decision that got

D.S.D.: Cell phone properly seized incident to juvenile prostitution arrest
Defendant was accused of transporting a juvenile for prostitution. An undercover officer saw the screen of his Blackberry and saw a reference to “bring[ing] condoms.” There was probable cause to seize the cell phone incident to his arrest. The cell phone was later searched with a warrant. United Sta

D.Ariz.: Using a co-conspirators’ code word at the door to get defendant to open it was not unreasonable under the Fourth Amendment
Using a co-conspirators’ code word at the door to get defendant to open it was not unreasonable under the Fourth Amendment. It was also not consent obtained by deception. United States v. Poom-Medina, 2013 U.S. Dist. LEXIS 45469 (D. Ariz. March 29, 2013). A protective weapons search in this case

CA5: Two day warrantless search of tractor-trailer with PC was reasonable
There was probable cause for the stop and search of defendant’s tractor-trailer. The fact contraband wasn’t found in the first three hours didn’t cause the PC to dissipate. The truck was moved and searched for two days. Given there was probable cause, the two day search of the truck was reasonable.

S.D.Ind.: IU RAs can enter dorm rooms for announced “health and safety inspections”
Indiana University Resident Advisors in the dormitories conducted a quarterly announced “health and safety inspection” of dorm rooms, and a small quantity of marijuana was seen in plaintiff’s room. The RAs were not “state actors.” A campus police officer came when called, and his warrantless entry w

S.D.Ohio: While Ohio law requires PC to search a parolee, the Fourth Amendment doesn’t
While Ohio law requires PC to search a parolee, the Fourth Amendment doesn’t in federal court. United States v. Hill, 2013 U.S. Dist. LEXIS 45754 (S.D. Ohio March 29, 2013): => Read more!

Some thoughts for DUI clients…

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Proverbs 23:29-35
Who has woe? Who has sorrow?
Who has strife? Who has complaining?
Who has wounds without cause?
Who has redness of eyes?
Those who tarry long over wine;
those who go to try mixed wine.
Do not look at wine when it is red,
when it sparkles in the cup
and goes down smoothly.
In the end it bites like a serpent
and stings like an adder.
Your eyes will see strange things,
and your heart utter perverse things.
You will be like one who lies down in the midst of the sea,
like one who lies on the top of a mast.
“They struck me,” you will say, “but I was not hurt;
they beat me, but I did not feel it.
When shall I awake?
I must have another drink.”

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@kevinmarksmith: Observation about our priorities. No budget cap for public school. Pennies on the dollar for poor people’s lawyers, a 6th amendment right. Shame on Kansas House members who just voted to slash the indigent defense fund by another $2 million, against Gov. Brownback’s recommendation.

50 years of the Sixth Amendment Right to Counsel

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50 years ago a drifter in Florida who was illiterate yet very bright wrote a lengthy, grammatical flawed letter in pencil to the United States Supreme Court. He was upset after being convicted of a misdemeanor subsequent to being denied a court-appointed attorney. See http://en.wikipedia.org/wiki/Gideon_v._Wainwright. His state of conviction was Florida, and Florida did not provide for court-appointed counsel in misdemeanors even though misdemeanors carried jail time. The net result was that the Court found that the Sixth Amendment Right to Counsel is part of our due process of law rights in the Fourteenth Amendment and is therefore applicable to the States. From that day onward all states had to provide counsel to indigent defendants.

This morning my church men’s group discussed the right to counsel. I shared one of my favorite Scriptures, Job 16:19 (NIV): “Even now, behold, my witness is in heaven, and he who testifies for me is on high.” Seems to me that if God advocates for all men on the spiritual realm, then the state should want to provide defense to indigents for the sake of standing up for the Constitution.

What’s my point? Simple. I serve on the Kansas State Board of Indigent Defense Services. In Kansas court appointed counsel receive just $62.00 per hour. Think about that number. If you hire a lawyer to defend you you’ll probably pay in excess of $200 per hour, yet poor people get counsel paid less than a third of that. Do you think they get equivalent defense? If you do, you are delusional. In contrast, a right not guaranteed under the Federal Constitution, “sufficient funding” for government education in Kansas, has resulted in government schools being told that $15k per student isn’t enough. Hmm. What right is more important? One is in the Bill of Rights. The other is not. Our state will give government schools whatever they want, yet indigents, exercising a constitutionally protected right, are stuck with scraps. Seems to me that the time will come when the U.S. Supreme Court will rectify this disparity, and justice will finally be served.

“So the poor have hope,
and injustice shuts her mouth.” –Job 5:16

Tech savvy lawyers are better than the alternative

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I attended the annual Spring CLE for the Kansas Association of Criminal Defense Lawyers last weekend. Overall, it was good. Nothing spectacular came out of it from a law perspective, but one part of it inspired me. Technology. One presenter talked about how he used computers in his case prep and trial work. I’ve been integrating technology in my defense practice for a couple of years now. Not because I wanted to, but mostly because prosecutors use computers, PowerPoint, etc. pretty much in every trial, and it makes them look really organized even when their cases aren’t that strong. Even though I played the “I don’t have unlimited resources” card to counter such practices, the fact that most jurors know better–it doesn’t take a rich dude to throw together a PowerPoint for closing–compelled me to update my trial techniques. I now use PowerPoint, DropBox, and a variety of other Apps to organize exhibits and prepare for trial. It mostly helps be to fully understand the issues of my cases, and also makes be feel like I’m earning my fees.

Here’s the interesting fact the presenter brought out, one that I see for myself weekly. Prosecutors use technology. Defense attorneys more often than not don’t. I’ve found that electronic presentation of exhibits and evidence, especially during the closing, really helps to put the cherry on top of a well argued case. It may not be essential, but it sure helps me to get my thoughts straight.

What’s the point? Simple. If your potential lawyer doesn’t make time in his practice to educate himself on the value of technology, he’s probably not the best for your case.

There’s a daily aspect to technology that I’ve found essential to keeping my practice from driving me nuts, as well as helped me to avoid reinventing (or re-researching) the wheel. Evernote. If you haven’t heard of this gem and you are in the business of ideas, research, or writing, you’re missing out. In summation, it’s a note taking/idea preservation system in the cloud that gives you a central repository for notes, articles, basically anything on the ‘net or self-generated. Since going all in, I’ve built up a filing cabinet of several dozen topics. I save all cases I pull up while researching motions, briefs, etc. Instead of redoing research when similar issues come up, I just open the file, review its cases and notes, then sherpardize to make sure the law is current. Again, if your attorney hasn’t discovered this indispensable tool, you should ask him where’s he’s been the last several years.

What’s my ultimate point? A tech-savvy lawyer will better manage his clients, present more compelling arguments to a jury, and make the most of your valuable legal fees. I suggest not only asking him or her about his trial experience, but also how he uses technology to better serve his clients. Being “Old School” is just another excuse for being lazy and not moving out of one’s comfort zone. Don’t hire a lazy lawyer.