Articles Posted in Constitutional Issue

Published on:

In my prior DUI post on this topic I was explaining that the criminal justice system for some reason treats DUI suspects differently and with less privilege, than a murder suspect. This is of great concern to the DUI bar for many reasons. The most important of which was already discussed, that is, we can not permit an erosion of constitutional rights in the name of convenience of prosecution. This ideology takes us down a scary and slippery slope which we as Americans have never permitted, so why permit it in DUI cases?

I must say the degree of enthusiasm and the extent to which the government machine is willing to sacrifice our legal rights strikes me as rather ironic when considering the large variety of people who actually get charged with DUI cases. That is, the very law makers who seek to limit your rights and place the iconic letter on your back are also the law breakers. Starting with a certain former President, charged with DUI, police officers, prosecutors, law makers, countless congressional representatives, doctors, lawyers, and Indian chiefs. A Google search on the topic would reveal countless DUI cases involving any group, for example today, July 4th, 2007 the Chicago Tribune has a piece on a police deputy stopped for suspicion of DUI and wouldn’t you know it, there was a prosecutor in the car with him. The story continues that they were processed and released without charges. Whoops, somebody forgot to charge the police deputy with DUI, how could that happen? Now everybody involved is suspended and it’s all being reviewed for procedural errors which they admit occurred.

How about the Delaware State Representative who was pulled over in December 2006 and flashed his legislative I.D. card and was released without charges by two Ocean City Maryland police officers-whoops. It’s just more than ironic, perhaps hypocriticalthat everybody wants to hammer the DUI suspect, limit their rights, convict as quickly as possible until it happens to somebody in the spot light or somebody with authority, then it’s time to drop charges, run the other way, and turn the other cheek.

Not concerned about your rights yet? Alright. You are driving home from dinner on Friday night, wife and family in the car. You are driving perfectly because you not impaired. You had a glass of wine with your dinner, maybe two. You are herded into a police sobriety checkpoint or road block which is set up on the road you take home. After sitting in a backed up traffic line for 5-10 minutes while the cops engage each driver in conversation, it is your turn. You are not concerned because you are not drunk. Good evening Sir- have you had anything to drink tonight? Your heart jumps into your throat, you know you are not drunk or impaired so you answer truthfully, a couple of glasses of wine with dinner. Sir can you please pull over to the side for field sobriety tests…. guess what? Unless you are a gymnast you are going to jail right now, in front of your wife and children who are horrified. You are going to be charged with a DUI, you have to hire a lawyer, go to court, complete an alcohol class, be on supervision and pay all kinds of money for lawyers and, you guessed it, government fees and fines.

Why? You only had two glasses of wine at dinner, you were driving fine how could this happen? Heck after taking you to the station you only blew a .06 which is below the legal limit of .08. What happened? Well in today’s climate nobody gives a darn. If you admit to drinking alcohol you will be stopped and asked to do field exercises. If you perform those exercises, you will undoubtedly fail them because they are foreign to you and you are nervous and scared. Once that happens, you are going to be charged no matter what, whether you blow a .04, .08 or more. I know because I see it every day. I had a lady involved in a serious single car accident who blew a .04, she had wine with her Mother over lunch. She was charged. I got her off the charge, but she still had to go through all the emotional turmoil and expense of the process.

The point I want to advance here is that 1) this can easily happen to any person any time no matter who they are- unless you just do not consume any alcohol and more importantly 2) this should not happen at all and here’s why…..
Continue reading →

Published on:

Why do DUI defense lawyers defend people accused of drinking and driving, after all, it’s a terrible crime, people get hurt and sometimes worse? How can we possibly do this? Do we condone the use of alcohol and driving? Do we lack a conscious or compassion for our fellow man? The answer is, it is our conscious and compassion for our fellow man that drives us. What I condone is the applicability of the United States Constitution, for which many generations of men have fought and lost their lives. Thomas Paine once said, “It is the responsibility of the patriot to protect his country from its government.” A review of the news around the globe reflects countless instances of government trampling on the rights of its citizens. The United States constitution is over 200 years old and has guided our laws, our citizens and our government effectively because we have always had a government and a Supreme Court willing to fight to uphold its tenets. However, increasingly there have been chinks in the armor of the Constitution in the name of expediency. Increasingly courts all over this country are eroding the Constitutional rights of citizens to be safe and secure in their “persons, papers and effects.” (Fourth Amendment U.S. Constitution). If we blindly continue to allow these transgressions of the Constitution, if we turn a blind eye to these matters because it is convenient to prosecute cases, then tomorrow it will be a different erosion of your personal rights to privacy that were guaranteed to you as a citizen. Each time there is a transgression or an erosion of civil liberties in the name of convenience of prosecution, we bring ourselves one step closer to a society which our forefathers fought and died to extricate us from.

Did you know that if you were convicted of the worst crime possible, murder, that you have more rights and Constitutional protections than if you are charged with the misdemeanor of drinking and driving? That is, as soon as the murderer is taken into custody the first thing that happens is that he is read his Miranda rights; he is essentially advised to shut up and get a lawyer (albeit many people never heed this warning). Every step of the way thereafter, due process mandates that a suspect have a lawyer present to protect his legal rights, despite the fact he may have killed another human being and deprived that person of their rights.

Your government has the right and the ability under law to deny a citizen of their property, their liberty and their life. If a government agent, the police, charges a citizen with a crime, another government agent, the prosecution picks up the ball and prosecutes the citizen. Then a judge, another government employee, or a jury hears the evidence which is offered by the government. The government has an endless amount of resources, financial and otherwise to obtain evidence and to support its version of a case. The ONLY THING standing between the police, the prosecution and government, the only thing an accused has to rely on to protect him from losing his liberty, his property, or his life, is his defense attorney. His attorney is his key to bring to bare the case law, the statutes, and the facts in order to contradict the awesome power of the government. His criminal defense attorney is all he has to protect him from the system.

In any individual case the system may be correct, the defendant may have done what he is accused of doing and may therefore need to be punished (unless he is a friend of the President like Scooter Libby, in which case the rule of law does not matter and he will be set free). If this “system” is correct, then so be it, let the system prove its case to the satisfaction of a jury and punish the defendant accordingly. However, there are also countless times when the system is not correct; where the wrong defendant has been accused, where the crime has not been committed as charged. It is in these cases where the defense attorney is needed the most and in order for the defense attorney to be effective on the part of an innocent person, the attorney must also defend the guilty defendant. That is, both defendants, those actually guilty of the crime and those innocent of the crime have the absolute right to and a need for a defense. Both defendants have the right to an even playing field under the Constitution because if a defendant is in fact guilty, the State should be able to prove its case beyond a reasonable right, right?
Continue reading →