The Connecticut Supreme Court got it right in overturning an Appellate Court opinion that held that applying for Accelerated Rehabilitation is the same thing as saying your guilty. Or at least it is the same thing in a labor and employment context. In other words, a public sector employer could regard an emoloyee's application for AR as an admission of guilty to criminal conduct and use that as a basis for disclipine, per the Appellate Court's decision.
The Supreme Court's decision reverses that logic. The point of AR, after all, is to give a first time defendant with little chance of offending again a chance to get a fresh start. This can't be so if you can lose your job merely be applying for it.
Great job by the lawyers involved, including my collegues at the Connecticut Criminal Defense Lawyers Association.
Tuesday, November 2, 2010
Monday, October 25, 2010
Summary of DWI Laws in CT
The General Assembly's Office of Legislative Research did a great summary of Connecticut's DWI laws.
While it is still highly technical, it is a great marshaling of the state of the law. Also, unlike a lot of legal summary, it includes the law not only in court, but also with the Department of Motor Vehicles.
The summary can be found here.
While it is still highly technical, it is a great marshaling of the state of the law. Also, unlike a lot of legal summary, it includes the law not only in court, but also with the Department of Motor Vehicles.
The summary can be found here.
Friday, July 30, 2010
West Virginia Adopts Erasure for DWI arrests
Much like Connecticut has, West Virginia has adopted a program that results in the erasure of a DWI from a motorists record. While their program requires the use of an ignition interlock device and their suspension is shorter, it still results in the erasure of the arrest. A news story about it is here.
If it was a routine traffic stop, there was no accident, no prior offenses and the motorist didn't flee from police, then the defendant is eligible. This is similar to Connecticut Alcohol Education Program, a discretionary program for first-time offenders that requires the completion of classes to earn the dismissal.
If it was a routine traffic stop, there was no accident, no prior offenses and the motorist didn't flee from police, then the defendant is eligible. This is similar to Connecticut Alcohol Education Program, a discretionary program for first-time offenders that requires the completion of classes to earn the dismissal.
Tuesday, June 22, 2010
Supremes Quickly Affirm License Suspensions
In a quick and decisive opinion, the Connecticut Supreme Court found that there was sufficient evidence to suspended the licenses of two separate drivers. Remember in Connecticut that a license suspension results from a conviction in criminal court. But also, the DMV suspends your license unless you ask for and win a hearing before that agency.
Both Stash and Marsh lost their respective DMV hearings and appealed to court. Their argument, in essence, was that since both drivers underwent blood alcohol tests, and the statute is designed for breath tests, there was no evidence to show they were driving with an elevated blood alcohol content.
Since blood test results need to be mathematically converted so they can be compared to breath results, and no evidence was before the DMV as to how this was done, the DMV had no factual basis to suspend their licenses.
The Supreme Court did not make much of a statement about the facts and merely endorsed the trial court's recitation of them. Regardless, we are without the benefit of much analysis by the Supreme Court about this case. The statute is intended to be used with breath tests. It would have been nice to have the Supreme Court's view on how it squared this fact with the inherent inaccuracies of blood tests.
Both Stash and Marsh lost their respective DMV hearings and appealed to court. Their argument, in essence, was that since both drivers underwent blood alcohol tests, and the statute is designed for breath tests, there was no evidence to show they were driving with an elevated blood alcohol content.
Since blood test results need to be mathematically converted so they can be compared to breath results, and no evidence was before the DMV as to how this was done, the DMV had no factual basis to suspend their licenses.
The Supreme Court did not make much of a statement about the facts and merely endorsed the trial court's recitation of them. Regardless, we are without the benefit of much analysis by the Supreme Court about this case. The statute is intended to be used with breath tests. It would have been nice to have the Supreme Court's view on how it squared this fact with the inherent inaccuracies of blood tests.
Wednesday, June 16, 2010
100s of DWI Convictions Tossed
An amazing story in a recent Washington Post shows that the law is enforced against the prosecution in a fair way. At least sometimes, it is.
The head prosecutor in Washington, DC said that since police officer improperly adjusted the various breathalyzer machines. The led to higher readings that would otherwise be obtained had the machine been properly calibrated.
Of course, this will lead to a torrent of lawsuits, as it should.
Despite that, though, Peter Nickles deserves a lot of credit for doing the right thing. It is never easy for a prosecutor to use any discretion in DWI cases. Doing so here was not only the right thing, but a courageous one as well.
The head prosecutor in Washington, DC said that since police officer improperly adjusted the various breathalyzer machines. The led to higher readings that would otherwise be obtained had the machine been properly calibrated.
Of course, this will lead to a torrent of lawsuits, as it should.
Despite that, though, Peter Nickles deserves a lot of credit for doing the right thing. It is never easy for a prosecutor to use any discretion in DWI cases. Doing so here was not only the right thing, but a courageous one as well.
Tuesday, June 15, 2010
How Does Blood Serum Compare To BAC?
In Connecticut, police officers can pick a test of your blood, breath or urine if they suspect you were driving while intoxicated. Most of my clients underwent breath tests. Blood tests occur most often when my client was taken to the hospital due to injuries in an accident. Non-accident blood tests are rare, in my experience.
Breath tests measure alcohol by volume (sort of, since it approximates).
Blood tests measure the weight of the alcohol. It generates a plasma or serum level, which needs to be converted to blood alcohol content ("BAC"). In Connecticut, like most states, a BAC over 0.08 is illegal.
Statutes like Connecticut's are based on "whole blood" levels, which coincide with breath tests, the most common used. A blood sample contains red blood cells, most of which are "spun out" of the sample, leaving a clear fluid on top. This is known as "serum." This happens when the blood sample sits without any kind of anti-coagulant.
If an anti-coagulant is added, due to the weight of the liquids, "plasma" is left on the top of the sample. The red blood cells are also "spun out" of the sample.
Since there is considerably less volume in both of these "spun out" samples, they do not equate to breath tests. And, since the red blood cells are not present, there is a much higher concentration of alcohol present in the serum or plasma than in the entire blood sample.
So, what we do is reduce the blood alcohol content (it usually is labeled "ETOH" in hospital records) by 17% to get the approximate result that would have occurred if a breath test were administered.
Is it exactly accurate?
No. But neither are breath test readings, since they use a complex algorithm to equate those results to what is actually in your blood at the time of operation.
Think of it like this: your body is metabolizing alcohol while you drink it and then as time passes. Netting all these times out, trying to equal the breath versus blood results and getting the times right is a best guess that the law, at least in Connecticut, appears to allow.
Breath tests measure alcohol by volume (sort of, since it approximates).
Blood tests measure the weight of the alcohol. It generates a plasma or serum level, which needs to be converted to blood alcohol content ("BAC"). In Connecticut, like most states, a BAC over 0.08 is illegal.
Statutes like Connecticut's are based on "whole blood" levels, which coincide with breath tests, the most common used. A blood sample contains red blood cells, most of which are "spun out" of the sample, leaving a clear fluid on top. This is known as "serum." This happens when the blood sample sits without any kind of anti-coagulant.
If an anti-coagulant is added, due to the weight of the liquids, "plasma" is left on the top of the sample. The red blood cells are also "spun out" of the sample.
Since there is considerably less volume in both of these "spun out" samples, they do not equate to breath tests. And, since the red blood cells are not present, there is a much higher concentration of alcohol present in the serum or plasma than in the entire blood sample.
So, what we do is reduce the blood alcohol content (it usually is labeled "ETOH" in hospital records) by 17% to get the approximate result that would have occurred if a breath test were administered.
Is it exactly accurate?
No. But neither are breath test readings, since they use a complex algorithm to equate those results to what is actually in your blood at the time of operation.
Think of it like this: your body is metabolizing alcohol while you drink it and then as time passes. Netting all these times out, trying to equal the breath versus blood results and getting the times right is a best guess that the law, at least in Connecticut, appears to allow.
Monday, June 7, 2010
CT's Tougher DWI laws?
Gov. Jodi Rell signed a law today requiring ignition interlock devices on cars operated by people who are convicted twice within 10 years of a DWI offense. The Hartford Court story, though short, hits the high points.
What does this mean?
If you are convicted twice of DWI within ten years, you will face at least 120 days in jail, probation, fines, court costs and fees, a substantial increase in insurance premiums, a one-year license suspension and, now, a requirement that you only operate cars with ignition interlock devices.
Basically, the car won't start unless you breath into a tube that makes certain no alcohol is emanating from your breath.
What does this mean?
If you are convicted twice of DWI within ten years, you will face at least 120 days in jail, probation, fines, court costs and fees, a substantial increase in insurance premiums, a one-year license suspension and, now, a requirement that you only operate cars with ignition interlock devices.
Basically, the car won't start unless you breath into a tube that makes certain no alcohol is emanating from your breath.
Saturday, June 5, 2010
Did The Law Catch Up To Science? Or The Other Way Around?
If you follow appellate law in Connecticut - or if you make a regular habit of reading the Connecticut Law Journal every week - you find that things fall into a particular rhythm. The lower Appellate Court is a high-volume court that applies the law without breaking much new ground.
The Supreme Court, on the other hand, oftentimes writes long, expansive decisions that become the controlling law in Connecticut. The Appellate Court follows that lead.
At least once a year, the Supreme Court released an opinion on an area of criminal law that makes concrete a squishy area. For example, for the longest time a passenger in a car kind of had the right to contest the search of the car despite having no property interest in it. Then, in State v. Davis, the Supreme Court held that a property right in the property that was searched must exist before someone has the right to contest the search. Thus, passengers in cars containing drugs had no ability to suppress evidence unless they owned or leased the car that was searched.
Yesterday, the Supreme Court released its decision in State v. Courchesne. Simple facts: the defendant was arrested, tried and convicted for the murder of a pregnant woman, who died once she got to the hospital. Her in utero child was delivered via c-section and lived slightly more than 40 days before dying. Courchesne was sentenced to a prison term for the mother's death and sentenced to die himself for the death of the child.
The basis of the death penalty was, in part, that Courchesne killed two people at once. Things being what they are in America these days, we had no clear science or law on something called the "born alive rule." That doctrine says, in essence, that if a fetus is "born alive" but later dies, the person who sets the events in motion leading to the fetus/baby's death can be convicted of murder.
The Supreme Court overturned the panel that sentenced this defendant to death, saying that the incorrect standard of proof was used. What it really means is that if the Waterbury State's Attorney's Office wants to put Courchesne back on death row, they will need to prove that the baby was not effectively "brain dead" when born and was able to live on her own.
How to do this and is it worth it?
This is where the law in Connecticut - and I suspect many other states - is behind the science. Perhaps not in 1998 when this crime occurred, but now, in 2010, with the state of science being what it is, prosecutors should be required to prove each step of what they allege occurred. It is black letter law that the prosecutor must prove each element of a crime beyond a reasonable doubt. So, simply put, the prosecutor here must prove that this baby was alive so that Courchesne can be liable for having killed it.
In all, I have to say that this is a brave decision. Despite the gravity and independence of those jobs, our Supreme Court justices still need to swallow hard before coming down on the side of a defendant in a case like this. Choosing the strength of law over popularity is not easy.
And to show that this Court thought long and hard about it, the other justices that disagreed with the majority wrote their own views into law. They can be found here, here and
here.
The Supreme Court, on the other hand, oftentimes writes long, expansive decisions that become the controlling law in Connecticut. The Appellate Court follows that lead.
At least once a year, the Supreme Court released an opinion on an area of criminal law that makes concrete a squishy area. For example, for the longest time a passenger in a car kind of had the right to contest the search of the car despite having no property interest in it. Then, in State v. Davis, the Supreme Court held that a property right in the property that was searched must exist before someone has the right to contest the search. Thus, passengers in cars containing drugs had no ability to suppress evidence unless they owned or leased the car that was searched.
Yesterday, the Supreme Court released its decision in State v. Courchesne. Simple facts: the defendant was arrested, tried and convicted for the murder of a pregnant woman, who died once she got to the hospital. Her in utero child was delivered via c-section and lived slightly more than 40 days before dying. Courchesne was sentenced to a prison term for the mother's death and sentenced to die himself for the death of the child.
The basis of the death penalty was, in part, that Courchesne killed two people at once. Things being what they are in America these days, we had no clear science or law on something called the "born alive rule." That doctrine says, in essence, that if a fetus is "born alive" but later dies, the person who sets the events in motion leading to the fetus/baby's death can be convicted of murder.
The Supreme Court overturned the panel that sentenced this defendant to death, saying that the incorrect standard of proof was used. What it really means is that if the Waterbury State's Attorney's Office wants to put Courchesne back on death row, they will need to prove that the baby was not effectively "brain dead" when born and was able to live on her own.
How to do this and is it worth it?
This is where the law in Connecticut - and I suspect many other states - is behind the science. Perhaps not in 1998 when this crime occurred, but now, in 2010, with the state of science being what it is, prosecutors should be required to prove each step of what they allege occurred. It is black letter law that the prosecutor must prove each element of a crime beyond a reasonable doubt. So, simply put, the prosecutor here must prove that this baby was alive so that Courchesne can be liable for having killed it.
In all, I have to say that this is a brave decision. Despite the gravity and independence of those jobs, our Supreme Court justices still need to swallow hard before coming down on the side of a defendant in a case like this. Choosing the strength of law over popularity is not easy.
And to show that this Court thought long and hard about it, the other justices that disagreed with the majority wrote their own views into law. They can be found here, here and
here.
Wednesday, June 2, 2010
When Silence Doesn't Equal Silence
As anyone who has watched any crime show knows, you have the right to remain silent. Anything you say can and will be used against you. So watch out. I cannot tell you how many cases I have represented defendants in when their own statements are what sank them. If words of your guilt come out of your own mouth, that is the most potent evidence there is.
Comes now the US Supreme Court. In a close 5-4 decision, that court held that a criminal defendant must actively assert his right to silence. Merely the act of being silent does not do it. The Washington Post version of the story can be found here.
What does this mean? Why would you care?
It means that if a defendant is sitting in a police station and does not desire to speak - but never tells his questioners that he is intentionally sitting silently - that this silence is, in itself, a statement.
I know you need to have had the law school labotomy to get this to make sense. But think of it like this: a jury of laypeople sit and listen to a prosecutor's presentation. Part of that presentation is that the defendant sat mutely while his inquisitors asked him question.
Wouldn't a non-guilty person have spoken up?
Who sits there silent while police officers seek to only understand your involvement - or lack of it - in a crime?
These questions go through the jury's mind. And if permitted, a prosecutor will argue they are conclusive signs of a defendant's guilt.
Our Constitution permits silence. In fact, per Miranda, it is a right.
Or maybe, it was a right. Now you need to break your silence to assert it.
Comes now the US Supreme Court. In a close 5-4 decision, that court held that a criminal defendant must actively assert his right to silence. Merely the act of being silent does not do it. The Washington Post version of the story can be found here.
What does this mean? Why would you care?
It means that if a defendant is sitting in a police station and does not desire to speak - but never tells his questioners that he is intentionally sitting silently - that this silence is, in itself, a statement.
I know you need to have had the law school labotomy to get this to make sense. But think of it like this: a jury of laypeople sit and listen to a prosecutor's presentation. Part of that presentation is that the defendant sat mutely while his inquisitors asked him question.
Wouldn't a non-guilty person have spoken up?
Who sits there silent while police officers seek to only understand your involvement - or lack of it - in a crime?
These questions go through the jury's mind. And if permitted, a prosecutor will argue they are conclusive signs of a defendant's guilt.
Our Constitution permits silence. In fact, per Miranda, it is a right.
Or maybe, it was a right. Now you need to break your silence to assert it.
Tuesday, June 1, 2010
CT State Police Make 76 DWI Arrests Over Holiday Weekend
The Connecticut Post reports today that the Connecticut State Police made 76 arrests for DWI over the Memorial Day weekend. The story can be read here.
Increasing DWI enforcement over holiday weekends is nothing new for local departments and the State Police. In fact, if you hang out at courthouses enough, you'll here people say they expect the Tuesdays after Memorial Day, Fourth of July and Labor Day to be unusually busy due to extra DWI enforcement.
So what to do if you are one of the 76 who were arrested?
Well, first, call a lawyer. Only an experienced lawyer that knows the details of Connecticut's complex DWI laws can make sure your rights are protected throughout this process. Because don't forget, not only will your license be suspended, but there is the possibility that you could go to jail or wind up with a criminal record if your case is not handled properly.
Second, understand that the proceedings in court and those before the DMV are NOT the same. Your license will be suspended by the DMV unless you ask for and win a hearing before it.
Your license will also be suspended a second and unrelated time by the judge in court if you do not handle your case correctly.
These suspensions do NOT run together. If your license is going to be suspended by both the judge and the DMV, getting these suspensions to run at the same time does not happen automatically. Instead, it must be carefully planned and negotiated.
Third, if the DMV finds that you refused a breath test, your license will be suspended for six months (at least) and you cannot get a work permit for the first half of the suspension. Remember: just because the arresting officer said you refused a breath test does not mean that you did so. The law is very detailed in this regard. If the arresting officer said you refused to take a test, SEEK THE ADVICE OF A LAWYER IMMEDIATELY.
Lastly, do NOT miss court, no matter what. There are no good excuses for missing a court date.
Legal help is only a phone call away. If you have questions about what to do or what your rights are, call a lawyer.
Increasing DWI enforcement over holiday weekends is nothing new for local departments and the State Police. In fact, if you hang out at courthouses enough, you'll here people say they expect the Tuesdays after Memorial Day, Fourth of July and Labor Day to be unusually busy due to extra DWI enforcement.
So what to do if you are one of the 76 who were arrested?
Well, first, call a lawyer. Only an experienced lawyer that knows the details of Connecticut's complex DWI laws can make sure your rights are protected throughout this process. Because don't forget, not only will your license be suspended, but there is the possibility that you could go to jail or wind up with a criminal record if your case is not handled properly.
Second, understand that the proceedings in court and those before the DMV are NOT the same. Your license will be suspended by the DMV unless you ask for and win a hearing before it.
Your license will also be suspended a second and unrelated time by the judge in court if you do not handle your case correctly.
These suspensions do NOT run together. If your license is going to be suspended by both the judge and the DMV, getting these suspensions to run at the same time does not happen automatically. Instead, it must be carefully planned and negotiated.
Third, if the DMV finds that you refused a breath test, your license will be suspended for six months (at least) and you cannot get a work permit for the first half of the suspension. Remember: just because the arresting officer said you refused a breath test does not mean that you did so. The law is very detailed in this regard. If the arresting officer said you refused to take a test, SEEK THE ADVICE OF A LAWYER IMMEDIATELY.
Lastly, do NOT miss court, no matter what. There are no good excuses for missing a court date.
Legal help is only a phone call away. If you have questions about what to do or what your rights are, call a lawyer.
Monday, May 31, 2010
Memorial Day Weekend Is DWI time
As the persistent radio and TV ads make plain, local enforcement of DWI laws are upped over holiday weekends. Memorial Day is no exception.
The question I get asked a lot is "should I take the test?" This question refers to the blood, breath or urine tests police officers are permitted to seek after arresting a motorist for DWI. This is no easy question to answer, but here are a few guiding principles.
1) The prosecutor does not REQUIRE tests in order to convict you of DWI. While he or she may prefer test results to strengthen the case, they are not required to find you guilty. Instead, witnesses can testify to your condition. These witnesses include your own passengers, people who may have been with you prior to your arrest, police officers or other witnesses. Therefore, by taking tests, you are giving a potent piece of evidence against you.
2) You have a right to refuse a breath, blood or urine test. Per our federal and state constitutions, you do not need to give your consent to these tests.
3) In Connecticut, if you refuse a test, the DMV will suspend your license for at least 6 months. Per DMV regs, you cannot get a work permit for the first half of your suspension, no matter what.
4) You have NO right to pick the type of test. The arresting officer does that.
5) The prosecutor cannot use the tests against you at trial unless they comply with the statute. If your lawyer is on his toes, tests that do not comply with the statute must be suppressed (i.e. not used at trial).
So, to answer the original question, what to do?
Refusing a test means no license, unless DMV finds, after a hearing, that you did not refuse a test.
Taking a test means that you are handing over potent evidence against you.
In short, if you have absolutely no DWI or driving history and there was no accident, it is probably safest to consent to the tests so that you can minimize suspensions and have a shot at a work permit.
If you have a bad driving history, including previous DWIs, handing over game-changing evidence that a prosecutor will use against is probably something that is best to avoid.
Above all else, get a lawyer, Only an experienced, competent lawyer with a thorough knowledge of DWI law can make certain your rights are protected, both in court and before the DMV.
The question I get asked a lot is "should I take the test?" This question refers to the blood, breath or urine tests police officers are permitted to seek after arresting a motorist for DWI. This is no easy question to answer, but here are a few guiding principles.
1) The prosecutor does not REQUIRE tests in order to convict you of DWI. While he or she may prefer test results to strengthen the case, they are not required to find you guilty. Instead, witnesses can testify to your condition. These witnesses include your own passengers, people who may have been with you prior to your arrest, police officers or other witnesses. Therefore, by taking tests, you are giving a potent piece of evidence against you.
2) You have a right to refuse a breath, blood or urine test. Per our federal and state constitutions, you do not need to give your consent to these tests.
3) In Connecticut, if you refuse a test, the DMV will suspend your license for at least 6 months. Per DMV regs, you cannot get a work permit for the first half of your suspension, no matter what.
4) You have NO right to pick the type of test. The arresting officer does that.
5) The prosecutor cannot use the tests against you at trial unless they comply with the statute. If your lawyer is on his toes, tests that do not comply with the statute must be suppressed (i.e. not used at trial).
So, to answer the original question, what to do?
Refusing a test means no license, unless DMV finds, after a hearing, that you did not refuse a test.
Taking a test means that you are handing over potent evidence against you.
In short, if you have absolutely no DWI or driving history and there was no accident, it is probably safest to consent to the tests so that you can minimize suspensions and have a shot at a work permit.
If you have a bad driving history, including previous DWIs, handing over game-changing evidence that a prosecutor will use against is probably something that is best to avoid.
Above all else, get a lawyer, Only an experienced, competent lawyer with a thorough knowledge of DWI law can make certain your rights are protected, both in court and before the DMV.
Wednesday, May 26, 2010
Courtside trial tomorrow
Tomorrow I am on trial in Bridgeport. It is a courtside trial, meaning there will be no jury, only a judge. The case poses some interesting issues and I am looking forward to it.
My concern?
Tomorrow is the Thursday before a three-day weekend. It is going to be in the mid 90s. I hope there is someone around to hear us.
My concern?
Tomorrow is the Thursday before a three-day weekend. It is going to be in the mid 90s. I hope there is someone around to hear us.
Sunday, May 23, 2010
Cheshire 5k And Slowing My Son Down
Just finished a humbling 5k in Cheshire, Conn. to benefit their local YMCA and youth swim team. It was all a part of their "Healthy Living Expo." I ran it with my son, a rather athletic lacrosse player who was also running in his first ever 5k.
It started on a hill, went down a hill and through a neighborhood, south on the New Haven to Northampton rail line, up a steady hill, the up a hill on Route 10. He lost me for good on the second to last hill.
After, they gave awards to the best finishers. Kids in his age group were probably catchable for him. I slowed him down. That was humbling.
It started on a hill, went down a hill and through a neighborhood, south on the New Haven to Northampton rail line, up a steady hill, the up a hill on Route 10. He lost me for good on the second to last hill.
After, they gave awards to the best finishers. Kids in his age group were probably catchable for him. I slowed him down. That was humbling.
Thursday, May 20, 2010
How Cases Get Transferred to the CT Supreme Court
I sometimes wonder what I get out of my Connecticut Bar Association membership. Three or four times a year I get a copy of the Connecticut Bar Journal and every other issue has a long article that is probably a sleep aid to non-lawyers, but is of interest to me.
Anyway, former Supreme Court justice David Borden wrote a short (by lawyer standards) essay on the whys and hows that the Connecticut Supreme Court transfers cases. On occasion and from on high, the Supreme Court reaches down to takes an appeal from the lower Appellate Court before they rule.
Appellate lawyers often had no idea why this would happen, nor know how to make or prevent it from happening in any particular case.
Justice Borden would know, since he is the fella that came up with the guidelines for why it happens. The mystery is gone, at least if you read the Connecticut Law Journal.
I would link to the article, but it is not on the CBA website. Back issues can be found here.
This same issue also has in it a "Roadmap to Connecticut Procedure." Though this headline uses most peoples' three favorite words ("procedure," "roadmap," and "Connecticut") if you are a litigator, it is a good read. Can never go wrong going back to fundamentals.
Three Book Reviews
Full disclosure: I am a Kindle owner, so actually buying these books is pretty effortless. Still, a trip to a local bookstore is worth it for two out of three of these books.
The first is War by Sebastian Junger. Junger was embedded in the Konegral Valley in Afganistan for seven months and not only lived to tell about it, but gives an amazing portrait of how awful the life of an American soldier there actually is. I have never been in the military and know nothing of its life. I always figured that the scariest part of it all would be actually getting shot at. The problem is our troops are there is that they sit in makeshift "forts" and await the inevitable.
This inevitability comes at odd times and in all forms. They get shot at while eating breakfast, talking to someone or tying their shoes. The danger is everywhere, it is deadly and constant. This book gave me a view of the life of a soldier that I haven't experienced since Saving Private Ryan. It is non-political and is not so incredibly macho that you roll your eyes.
This is a must read. Go buy it.
Maxim Magazine's Justin Halpern shows us that Twitter can actually be used for something other than following Paris Hilton on her journey through life or knowing the inner workings of the Tito Ortiz-Jenna Jameson marriage. He added a good ten stories to his "Shit My Dad Says" lines and came up with a very good book. Downside is it is a very quick read, so it comes and goes quickly.
You can see it here. Again, a must buy, especially if you think you are too strict or direct as a parent. Sometimes I wonder . . .
Lastly, I went and downloaded Matterhorn by Karl Marlantes. The upside: it is an incredibly well-researched story that explains every detail. You do actually learn something.
The problem, to me at least, was the pace. Marlantes' story is, in part, about the boredom and forced friendships that come up while in the Army and waiting for your next patrol through the Vietnamese jungle. The boredom of the soldiers translates to a very slow pace in its reading.
If you are a fiction fan, or have a particular affinity for the Vietnam era, pick this up. But it was too slow and I was too aware that I was reading to really get into this. It was a pass.
The first is War by Sebastian Junger. Junger was embedded in the Konegral Valley in Afganistan for seven months and not only lived to tell about it, but gives an amazing portrait of how awful the life of an American soldier there actually is. I have never been in the military and know nothing of its life. I always figured that the scariest part of it all would be actually getting shot at. The problem is our troops are there is that they sit in makeshift "forts" and await the inevitable.
This inevitability comes at odd times and in all forms. They get shot at while eating breakfast, talking to someone or tying their shoes. The danger is everywhere, it is deadly and constant. This book gave me a view of the life of a soldier that I haven't experienced since Saving Private Ryan. It is non-political and is not so incredibly macho that you roll your eyes.
This is a must read. Go buy it.
Maxim Magazine's Justin Halpern shows us that Twitter can actually be used for something other than following Paris Hilton on her journey through life or knowing the inner workings of the Tito Ortiz-Jenna Jameson marriage. He added a good ten stories to his "Shit My Dad Says" lines and came up with a very good book. Downside is it is a very quick read, so it comes and goes quickly.
You can see it here. Again, a must buy, especially if you think you are too strict or direct as a parent. Sometimes I wonder . . .
Lastly, I went and downloaded Matterhorn by Karl Marlantes. The upside: it is an incredibly well-researched story that explains every detail. You do actually learn something.
The problem, to me at least, was the pace. Marlantes' story is, in part, about the boredom and forced friendships that come up while in the Army and waiting for your next patrol through the Vietnamese jungle. The boredom of the soldiers translates to a very slow pace in its reading.
If you are a fiction fan, or have a particular affinity for the Vietnam era, pick this up. But it was too slow and I was too aware that I was reading to really get into this. It was a pass.
Appellate Court Refusals Are The Worst
Though I did succeed in getting two convictions overturned in recent months, yesterday the Connecticut Appellate Court didn't buy what I had to say and affirmed a conviction in State v. Payne. The majority opinion can be found here and the concurring opinion is here.
My argument focused on the trial court's denial of my client's motion to suppress. Quick facts: there was a smash-and-grab burglary in the middle of a the night at a liquor store in the Fair Haven section of New Haven. My client's car was spotted in the area. A brief, yet high speed (for that area) pursuit occurred, ending in my client's car colliding with the front of a house.
The police searched the car AFTER my client was already arrested. Thusly, I argued, none of the exigent circumstances that permit warrantless searches applied any longer. Further, I argued, no warrant exception applied.
One exception was "abandonment." Courts are somewhat divided over whether or not you maintain a privacy interest in property that you don't keep within your control.
The court spoke around this issue in this case, however. The majority opinion said that the record was not fit for review largely because the trial court opinion was unclear. The court said, in essence, that I had the obligation to make clear that opinion.
Trouble is, I didn't think the opinion was unclear. To me, the trial court answered the questions it was required to answer, though it was not a model of clarity. My concern was that if I tried to clear it up, any helpful points within that decision would have been picked up on by the trial court and ended my argument.
Truth be told, I cannot stand when appellate courts anywhere assert form over substance and use a technical reason to avoid opining upon an issue. Why not just give a defendant or an aggrieved person their day to be heard and ruled upon?
Why look for any possible technical reason to avoid answering the question really being asked?
My argument focused on the trial court's denial of my client's motion to suppress. Quick facts: there was a smash-and-grab burglary in the middle of a the night at a liquor store in the Fair Haven section of New Haven. My client's car was spotted in the area. A brief, yet high speed (for that area) pursuit occurred, ending in my client's car colliding with the front of a house.
The police searched the car AFTER my client was already arrested. Thusly, I argued, none of the exigent circumstances that permit warrantless searches applied any longer. Further, I argued, no warrant exception applied.
One exception was "abandonment." Courts are somewhat divided over whether or not you maintain a privacy interest in property that you don't keep within your control.
The court spoke around this issue in this case, however. The majority opinion said that the record was not fit for review largely because the trial court opinion was unclear. The court said, in essence, that I had the obligation to make clear that opinion.
Trouble is, I didn't think the opinion was unclear. To me, the trial court answered the questions it was required to answer, though it was not a model of clarity. My concern was that if I tried to clear it up, any helpful points within that decision would have been picked up on by the trial court and ended my argument.
Truth be told, I cannot stand when appellate courts anywhere assert form over substance and use a technical reason to avoid opining upon an issue. Why not just give a defendant or an aggrieved person their day to be heard and ruled upon?
Why look for any possible technical reason to avoid answering the question really being asked?
Tuesday, January 5, 2010
Nothing Is Ever Simple
In an incredibly detailed and complex decision the Connecticut Appellate Court decided that the trial court acted properly in refusing to open a judgment in an eviction case.
Seems simple, right?
It isn't and wasn't.
In a primer on the status on the posture of appellate review AND the theories of agency, the court held that the trial court did not abuse its discretion in refusing to open a judgment. The case involved Yale University's lawsuit in which it sought to re-take possession (English: evict) the defendant from a "parcel abutting 266 College Street in New Haven."
For we lawyers that handle appeals, cases like this are valuable since they pile together a lot of complex law in one place. I save cases like this for easy access later. Having cases like this at your fingertips can be a real time saver later.
Monday, January 4, 2010
State Police Arrest 49 Over New Years Weekend
According to the Hartford Courant,, Connecticut State Police arrested 49 drivers for DWI over the holiday weekend. In addition, they issued 700 speeding citations. DWI is the same thing as DUI, OWI or OUI.
What does this mean for these 49 drivers?
Well, it depends. If this arrest was their first offense, there is a possibility that they could enter a program that wipes their criminal record clean. This does NOT affect the Department of Motor Vehicle's ability to suspend their license.
Depending on their blood alcohol content reading, that suspension will be either three or four months, depending on their blood alcohol content. If they refused a breath test, that suspension will be six months and they cannot get a work permit for three months. That means no driving at all, not even for work.
Of course, this all depends on the strength of the prosecutor's case. If it is weak, none of this may happen at all.
If any of these 49 people has been arrested before for DWI, their lives get considerably more complicated. If they used the alcohol education program within the last ten years, they will be left with a criminal record unless they can beat the case at trial.
If they have prior convictions for DWI, there is a possibility of jail time.
Worse, if there were any injuries to anyone as a result of this arrest, the problems get even worse.
Always remember that it is not enough to feel "okay" prior to driving after have drinks. Feeling "okay" is not the same as being over the legal limit. You can be in both places at the same time. The smartest thing to do is call for a ride.
But if you are arrested for a DWI, call a lawyer immediately. Your future may depend on it.
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