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December 12, 2007

A Honest Opinion...Finally

On December 10, 2007, Minnesota Judge Jack Nordby finally took a stand issuing an order that quite simply stated "[t]he company and the state cannot bargain away the people's rights and privileges."  His opinion recognized our Constitutional rights and refused to compromise those rights for anything short of "National Security."  At least currently, DUI defendants are not "held off shore in wartime" where the war is not a war against terrorism, is not a war against drugs, but is a war against those simply accused of impaired driving.  The opinion calls for an end to the secrecy regarding the way the testing machine works, and it demands a mutuality of remedy.  "Just as a person who choses to drive impliedly consents to the testing of his system for intoxicants, a seller or user of a testing instrument impliedly consents to the full disclosure and testing of all aspects of the device."    He goes on to say that "[i]t bespeaks an astonishing degree of hubris for a company that designs and markets a device specifically to produce evidence for use against individuals in our courts to believe that it must not make every single piece of information concerning that product's composition and functions immediately and fully available to both the purchaser (the state) and the subject of its analysis (the driver)."  His further opines that the "state cannot proffer evidence and claim immunity from the obligation to show its evidentiary foundation, especially not on behalf of a private non-party."  He concludes his opinion stating that the defense must be afforded its Constitutionally guaranteed right to present its defense and confront the evidence and witnesses.  The state was given 30 days to comply with the order or the evidence of the breath test was to be excluded.  Will the state do the right thing?  Check back later to find out the answer.

Posted by BryanWBrown at 06:50 AM | | Comments (0) | TrackBacks (5)

The Scarlet LetterS - "DUI"

If you think we have it bad here in DC, take a look around the country and see what may be coming if we are not careful.  In Arizona, on proscutor's office has gone so far as setting up a website that publishes the photos of person's convicted of DUI.  If you are unlucky enough to be convicted of Felony DUI, your face may even appear on a billboard along the highway.  Would this type of program be accepted if the offense was anything but DUI? 

I just have a few questions: 

(1) Where are the funds that support this coming from?
(2) Is this a seperation of powers issue?
(3) Is is appropriate for the executive branch to make up and enhance its own penalties where the legislature has not acted? and
(4)  What the .... are they thinking and how could they believe that their conduct is even remotely acceptable?
Take a look at the original article and see the writing on the wall.  Defense attorneys' must remain on guard to prevent this mentality from migrating the the "Capitol of the Free world."

Posted by BryanWBrown at 06:21 AM | | Comments (0) | TrackBacks (6)

December 02, 2007

Sleep driving defense saves defendant.

Hard work, exhaustive investigation, and an unyielding belief in the client's innocence combined to enable a Massachusetts lawyer to save his client’s freedom.  This case further highlights the significance of the defense attorneys role in our justice system.

A thirty Six year old attorney went to sleep hoping to get a good nights rest, but he woke up in a nightmare.  The next thing he remembered, he was being placed under arrest by the police and told that he had just killed a man with his car.  Prior to going to sleep, Ki Young O had taken a prescribed dose of Ambien for his clinically diagnosed insomnia.  He came to his lawyer describing his situation and professing his innocence.  How many of you would have believed his story?  What sort of a defense would you have tried to develop?  Was this a case for an early plea?

Not for the Mr. O’s attorney.  He went to work for his client and soon discovered his defense.  How many of you would laugh at the defense of “sleep driving”?  After consulting with experts and researching the side effects of Ambien, he discovered that the FDA has recently added "Sleep Driving" and “Sleep Eating” to the list of possible side affects of Ambien.  With the FDA’s seal of approval on his defense, the attorney was able to combine Mr. O’s testimony with that expert witness, Dr. John Winkelman.  The judge found Mr. O not guilty of vehicular homicide.  A link to a recognized news source that reported the case can be found here:
http://www1.whdh.com/news/articles/local/BO68004/

 

Posted by BryanWBrown at 10:24 PM | | Comments (0) | TrackBacks (2)

December 01, 2007

What does Justice/Money have to do with it?

I am interested in looking into the role that funding plays in OAG and a particular assistant’s decision-making process.  In a bizarre recent case, the assistant did not seem to have any interest in reaching a just resolution of the matter.  I observed a stubborn resolution to achieve a conviction on the impaired driving count at all costs.  The defendant faced two cases with about 13 counts in each case, but he was willing to plea to all the counts except the impaired driving offenses (DUIs).  His position was that he was not impaired, and he was willing to accept responsibility for the remaining counts that included everything from equally serious reckless driving charges, fleeing charges, and Leaving After Colliding charges to you name it.  The assigned assistant's response to an offer to plea all counts but the two DUIs was simply:  "That's not going to happen!  He has to plea to the DUIs." 
After weathering a tirade of abusive comments, I received the government’s generous counter offered to have my client plea to one DUI and the remaining counts in both jackets.  They agreed to dismiss one of the DUIs.  Does that seem reasonable?  Since when did one DUI count equal over twenty similar offenses?  The last time I asked the government to drop three counts in exchange for a plea to the lead DUI count, I got a look that made me duck for cover. 
From the government's stand point, my client’s offer would have exposed my client to a greater amount of jail time and fines.  Moreover, the government would have secured more then twenty more convictions then their original offer.  My question remains, is it reasonable to have such resolve to secure a DUI conviction in light of the overall case.  Could there be a monetary incentive?  Is there some personal bias the demands a conviction for alcohol related offenses?  Any other thoughts?
Oh did I forget to mention that my client is already serving a 70-month sentence on U.S. District Court charges that stemmed from the same underlying events and transactions?  I did not represent him on the District court charges, but I did agree to take the D.C. Superior Court traffic cases on at the request of the presiding judge of the DUI court.  I intend to take a close look the money trail and its affect on the decision making process in this case and all alcohol driving related cases.  Any information, ideas, or comments would be appreciated.

The defendant adamantly holds to his innocence on the DUI counts, and I intend to see justice done in this case.  It touched my heart to see the resolve in his eyes as he held true to his beliefs and said I don't care if I have to do more jail time on this case, just fight for me and prove my innocence on the two DUI counts.  I will not admit to something I did not do!  When money forces citizens to compromise their principles by using their liberty as a bargaining chip, society has failed, the government has become corrupt, and defense attorneys must fulfill their Constitutional mandate to protect the rights of all.  As Thomas Paine said so well, "It is the responsibility of the patriot to protect his country from its government."  "We do not want a police state, and it seems we are on the precipice of becoming one in the name of DUI." - Martin v. Commonwealth.

Posted by BryanWBrown at 09:22 AM | | Comments (0) | TrackBacks (4)