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.
Monday, May 31, 2010
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?
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