Why People Hate Lawyers (JAWM)

[Danestress]

The comment was

 

I think that's morally wrong.

Why? If cops want to search and are able to make an adequate case for it, they get a warrant. Why is it morally wrong to refuse consent until they do so?

[8circles]

Why? If cops want to search and are able to make an adequate case for it, they get a warrant. Why is it morally wrong to refuse consent until they do so?

 

 

In the context of a so-called professsional posting of *pride* in someone getting away with a crime, posting such a comment no longer becomes good advice, but an encouragement to get away with something.

 

 

I think it's about context as I've already said.  I'm not sure what else you want me to explain... but I guess I'll try.

 

The specific example we're talking about is about someone who was, in *fact*, DWI.  The police screwed it up.  Any comment after that becomes seen in the context of the specific example.  Like: Someone broke the law & got away with it because they didn't consent & the police broke the rules.  Remember, don't give consent when this happens to you, because the police might screw-up & then you'd get away with it, too.

[fraidycat]

The problem is that jail doesn't cure addiction. Never has.

 

And the jails are full to over brimming as it is.

 

So put a drunk in jail knowing good and well it won't change one bit that he is a drunk.

 

Or put the robbery with intent to assualt guy in jail.

 

Bc there flat out isn't room for both.

 

It's a huge part of the reason plea deals are so popular. Truth is if defendants stopped taking pleas (and honestly in a lot of cases they should bc they are giving up a lot of rights and not always better off for it but they don't know that) there'd be no where to hold them all. Heck just getting a court date in some jurisdictions can take months and months. Due process and speedy trial by your peers be damned, there's just more legal problems than judges, courts, and jails. And that's with millions of cases being pled out before it ever shows up in court.

Chances are this guy committed robbery to obtain money to fund his drug addiction.

 

Where do you draw the line between jail/prison for breaking the law vs. addicted so no jail?

 

The system we have is what we have. Therefore, it's the system we have to work with. Addiction or not.

Edited March 30, 2016 by fraidycat

[SKL]

I don't really care if jail fixes addiction.  Drunk driving is deadly dangerous to other people.  If someone wants to be a drunk, that is their business, but they don't need to drive drunk.

 

Driving drunk is exactly like drunkenly shooting off a loaded gun around the neighborhood.  How many times would that happen before the guy was disarmed permanently?

[Tsuga]

I don't hate lawyers.

 

I also don't think it sounds like the lawyer posted on Facebook, but that someone else posted about a friend's coup in court.

 

As for never consenting on principle, sounds legit. Warrant every single time? Fine.

 

But also, how about never driving while intoxicated, like, ever? When I drink I stay home or call a cab. You can be as much of an alcoholic as you want, just flipping walk to the store!!!

[Ravin]

OK but to argue that, wouldn't you have to stipulate that you were driving drunk? And if so, then would the DUI still stand even if they threw out he test results?

No. It's the prosecution that is alleging that the defendant was that intoxicated. Prosecutors have to prove the case, the burden is on them. If the defendant was as intoxicated as alleged, he was incapable of consenting to their test or waiving the right to an independent second opinion. If a person is drunk enough not to be able to consent, then a warrant should be obtained for their blood sample, and/or they should be taken for medical treatment and the prosecutor can subpoena BAC results from the hospital afterwards. The defense can argue in hypothetical/"as alleged" terms and doesn't have to stipulate to anything.

Edited March 30, 2016 by Ravin

[ChocolateReignRemix]

No. It's the prosecution that is alleging that the defendant was that intoxicated. Prosecutors have to prove the case, the burden is on them. If the defendant was as intoxicated as alleged, he was incapable of consenting to their test or waiving the right to an independent second opinion. If a person is drunk enough not to be able to consent, then a warrant should be obtained for their blood sample, and/or they should be taken for medical treatment and the prosecutor can subpoena BAC results from the hospital afterwards. The defense can argue in hypothetical/"as alleged" terms and doesn't have to stipulate to anything.

 

Implied consent laws usually remove this defense.  Georgia is an exception currently due to a 2015 state supreme court ruling.

[Melissa in Australia]

You'd all hate it here. Refusing a random breathalyzer test is a serious offence here; up to six months in prison - double a low level drink driving offence. 

 

I love our RBT...soon, hopefully, to include random drug testing for drivers. RBT in my state had an instant, permanent and significant effect on accident rates.

 

Getting someone off on a technicality, when they were driving under the influence ? Yeah, it might be my job, but I wouldn't be bragging about it on FB.

They are doing random drug testing here in Vic. I have never been drug tested but have been brethalized regularly

 

 so love how it helps keep the roads safe.  :hurray:

[fraidycat]

You'd all hate it here. Refusing a random breathalyzer test is a serious offence here; up to six months in prison - double a low level drink driving offence.

 

I love our RBT...soon, hopefully, to include random drug testing for drivers. RBT in my state had an instant, permanent and significant effect on accident rates.

 

Getting someone off on a technicality, when they were driving under the influence ? Yeah, it might be my job, but I wouldn't be bragging about it on FB.

I'd not hate it.

 

I personally think that anyone caught driving while texting or under the influence should be charged with pre-meditated attempted murder or murder if someone is killed.

 

I've been drunk before. Reeeaally, really drunk. Even drunk, I knew not to go off with strangers, get naked with anyone, drive, or get in the car with someone else who had been drinking. Lowered inhibitions from alcohol is not an excuse to be stupid, I don't care what anyone says. I don't know about drugs - never tried 'em.

[Ravin]

Implied consent laws usually remove this defense. Georgia is an exception currently due to a 2015 state supreme court ruling.

The jurisdiction I work in has a misdemeanor for refusing consent to a breathalyzer, with revocation of license as a consequence. Being too drunk to consent is not the same as refusing to consent.

 

In some jurisdictions, the advice is to consent to breathalyzer because it's easy to have breathalyzer thrown out on technicalities, and to refuse warrantless blood test.

 

As a defense attorney, I consider what would make my client worse off--not consenting or consenting?

[Ravin]

I'd not hate it.

 

I personally think that anyone caught driving while texting or under the influence should be charged with pre-meditated attempted murder or murder if someone is killed.

This completely disregards the meaning of "premeditation."

[fraidycat]

This completely disregards the meaning of "premeditation."

Obviously I disagree. Everyone knows how dangerous dui or while texting is. Doing it anyway is disregarding the pre-existing knowledge with an "it'll never happen to me" ego. You have to make a (pre-meditated) decision to get behind the wheel or pick up your cell phone, all while knowing that it could result in the death of an innocent person.

[MistyMountain]

I think it us pretty yucky she said not to consent to a blood test if you were caught driving drunk, she included so many details about her client and she was bragging about getting someone off who was driving drunk.

Edited March 30, 2016 by MistyMountain

[eternalsummer]

Yes, there are definite differences in socio-cultural issues surrounding privacy, freedom, government power/authority, etc. between the US and much of Europe/Australia/NZ

[kiwik]

You'd all hate it here. Refusing a random breathalyzer test is a serious offence here; up to six months in prison - double a low level drink driving offence. 

 

I love our RBT...soon, hopefully, to include random drug testing for drivers. RBT in my state had an instant, permanent and significant effect on accident rates.

 

Getting someone off on a technicality, when they were driving under the influence ? Yeah, it might be my job, but I wouldn't be bragging about it on FB.

 

Random breathayser checks are common practice in NZ.  They just set up a check point and stop everyone (or every second or whatever) while they are at it they check your registration and WOF stickers but I have never been asked for my licence.  If you fail the test you are given a specific caution and taken to the police station or a booze bus.  As far as I know you can't refuse to be tested but if you tried it would be assumed you thought you would fail and I guess they can get a warrant or something to force you.  As far as I know random searches are not permitted.

[creekland]

You'd all hate it here. Refusing a random breathalyzer test is a serious offence here; up to six months in prison - double a low level drink driving offence. 

 

I love our RBT...soon, hopefully, to include random drug testing for drivers. RBT in my state had an instant, permanent and significant effect on accident rates.

 

Getting someone off on a technicality, when they were driving under the influence ? Yeah, it might be my job, but I wouldn't be bragging about it on FB.

 

I wouldn't hate it.  Drunk driving and texting/surfing while driving do way too much damage to others.

 

It boggles my mind that so many are ok with it (ok proven by stats of those who admit to doing it - not this thread or the Hive in general).

 

We get up in arms about Alar on apples or worry about flying due to the possibility of a crash or get fearful of terrorism hitting home, but totally ignore the real stats from drinking or texting while driving.   :confused1:

 

I wish getting clients off on technicalities were illegal.  Guilty should be guilty, esp when it's something this dangerous.  The Bill of Rights is good - to a point - but it goes overboard IMO.

 

Then we can discuss jail vs treatment.  I'm generally in favor of treatment, but repeat offenders (esp after treatment) likely need to be taken off the streets.

[creekland]

Out of curiosity, I googled stats.  According to the CDC, on average, every day 28 people die in the US alone from motor vehicle accidents involving an alcohol impaired driver.

 

http://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html

 

This, of course, isn't counting those who are merely injured for life or otherwise.

 

I can imagine the uproar if terrorism caused such numbers... or plane crashes... or food poisoning, but we "allow" drunk driving or worry about consent for breath tests, etc.

 

It honestly boggles my mind, but proves that humans are not good at figuring out threat levels.

[Amira]

I've spent my fair share of time driving as a "foreigner" and not speaking the local language very well. If the local laws of the place I was driving in said that consent or a warrant was required for a blood test, I would hope that my inability to understand and/or answer the question wouldn't deprive me of that right.

 

Even foreigners should be able to rely on the rule of law in the US. Especially foreigners.

[poppy]

What is wrong is our courts privileging a foreigner driving at 3 times the legal blood alcohol limit over the rights of U.S. citizens to go about their business without having their safety threatened by said foreigner. I seriously doubt this is what the Founding Fathers intended when they wrote the Bill of Rights.

 

How do you manage to see anything clearly at all through those xenophobic lenses?

[Guest]

You'd all hate it here. Refusing a random breathalyzer test is a serious offence here; up to six months in prison - double a low level drink driving offence.

 

I love our RBT...soon, hopefully, to include random drug testing for drivers. RBT in my state had an instant, permanent and significant effect on accident rates.

 

Getting someone off on a technicality, when they were driving under the influence ? Yeah, it might be my job, but I wouldn't be bragging about it on FB.

How do they test for drugs? I'm perfectly fine with random tests that aren't invasive.

 

And DUI should have a mandatory punishment of 1 year in jail. I don't buy that all the DUI's are alcoholics who can't help themselves. Many are just a-holes.

[Guest]

I'm not going to comment on lawyers but I cannot like or say AMEN enough. My 8th grade boyfriend was killed by a drunk driver who ran off the road into a putt putt golf course. He had been arrested multiple times for drunk driving.

 

I'm going to have to quit reading the thread because all this defense is upsetting me... THEY ARE KILLING PEOPLE.

No one is defending drunk driving. People are saying that the proper steps need to be followed by the police. That's the only way to keep things somewhat fair.

[bettyandbob]

 

I'm going to have to quit reading the thread because all this defense is upsetting me... THEY ARE KILLING PEOPLE.

I don't think anyone is defending the drunk driver.

 

There's nothing wrong with the defense attorney using a legitimate defense. In fact that is exactly what he should do.

 

If having that as a defense is bad than people need to lobby to have things changed at the legislative level. As long as anything is a right I want police and prosecutors to be required to not impinge on those rights because that covers way more situations than driving.

 

The congratulations should have been saved for a bar association meeting where ethics and defense strategies are often discussed. Blasting on social media is unprofessional even if no personal information is given.

[SquirrellyMama]

I am curious - why?

 

As there are countless cases where the police/investigators/prosecutors have had less than pure motives when searching/questioning a suspect, why is it immoral to protect one's legal rights?  No matter what someone investigating you says, they are NOT working in your best interests at any point.

 

I think in this case the comment seems very callous. Maybe, instead of "never consent", he should have said, "never drive drunk".

 

Kelly

 

[Bluegoat]

It's a super-tacky comment and the tone is tacky too.

 

And I do object to the "never consent" advice, if it isn't specific.  Sure, a lawyer is giving a client the best advice for his or her situation.

 

I hope to God though that the lawyer, if he's actually sat down and thought about the law, is able to make a mental distinction between his particular role as an advisor to a client, and what it means to be part of a society - that the latter includes a vision of the common good, doing what is right for its own sake, and for the good of the community as a whole and other individuals within it.

 

From a purely selfish legal perspective, maybe people should always refuse consent.  From the perspective of being a human being and living in a functioning and healthy community, a focus on personal gain alone is destructive and immoral.

Edited March 30, 2016 by Bluegoat

[maize]

I think everyone here is in agreement that we want drunk drivers off the road. Personally I am fine with implied consent laws and would be happy to have those on the books everywhere. Random breathalyzer stops? Go for it!

 

Our lawyers and judges are correct, however, to work within the technicalities of the law in the jurisdiction within which they practice. They don't make the laws, and if in the performance of their duty a guilty person goes unpunished because of a technicality so be it. No system is perfect; ours is set up to generally let guilty people off the hook more often than it condemns innocent people. I'm OK with that. If I want an actual law changed I can and will lobby to have that done through the legislative process.

[Valley Girl]

This thread reminds me of a friend's drunk driving ordeal.  You have to know this person though.  She never drank, ever.  Never ever touched the stuff in her life.  But her driving was .... interesting.  So one day she was out driving with friends and a cop decided she was weaving.  He decided she needed to take a drunk test.  Everyone in the car found this hilarious.  This made the cop even more suspicious.  My friend was laughing so hard that she couldn't breathe enough into the breathalyzer.  Somehow she managed to talk the cop out of dragging her in.  :p

 

I'm not trying to pick on you, SKL. I just find their reaction...disturbing. Her driving was erratic enough that an officer pulled her over for suspected drunk driving and the response is laughter? Not a very wise move.

 

[Chess Dad]

I'm nearing my retirement after 21+ years in Law Enforcement.  I have seen many changes in policing.  I have had only one DUI trial but have testified many times in court on DUI's and Drug cases.  Narcotic cases (not alcohol) has been the majority of my cases.

 

Cases are plea bargains at a very high rate.  Easily over 90%, guessing closer to 98%.  Why?  many reasons.  Jail capacity, cost, client, money, etc.

 

After many years of dealing with Criminal Defense Lawyers, I find only a very few that I would trust.  There are a thousand reasons why.  Most are just doing what they can to get their client off.  I could type a book of examples.  Hopefully it's not that way across this great country, but I doubt it.  Of course, I'm looking through 21 years of history dealing with lawyers.  I believe a lawyers job is to make sure their clients constitutional rights are guarded, to be their adviser of the law.  It should not be to get their client off, It should not be to find a gray area and muddy the water so they can get a better plea bargain, It should not be to sell their soul to the devil for money.  This causes many problems, as does the high rate of plea bargaining.

 

 

Of course, this is my opinion.  I'm just speaking from my experience of dealing with them for 21 year (and counting). I also believe are system here in America is a good one.  There is no easy answers but I'm ok with that.  I'm also all for ideas to make the system better.

 

:patriot:

 

[Scarlett]

This thread reminds me of a friend's drunk driving ordeal. You have to know this person though. She never drank, ever. Never ever touched the stuff in her life. But her driving was .... interesting. So one day she was out driving with friends and a cop decided she was weaving. He decided she needed to take a drunk test. Everyone in the car found this hilarious. This made the cop even more suspicious. My friend was laughing so hard that she couldn't breathe enough into the breathalyzer. Somehow she managed to talk the cop out of dragging her in. :P

I have an interesting friend like that too. She doesn't drink. But weaves a lot. She got pulled over one night on suspicion of DWI but she got the cop to let her go because she told him ( truthfully) that she had a stomach ache and was trying to hurry home.

[creekland]

Our lawyers and judges are correct, however, to work within the technicalities of the law in the jurisdiction within which they practice. They don't make the laws, and if in the performance of their duty a guilty person goes unpunished because of a technicality so be it. No system is perfect; ours is set up to generally let guilty people off the hook more often than it condemns innocent people. I'm OK with that. If I want an actual law changed I can and will lobby to have that done through the legislative process.

 

I disagree here.  Common sense needs to prevail at some point.  Laws really can never be specific enough to cover each and every situation.  I expect the officers involved truly thought they had consent.  Chances are the person in question was nodding and pretending to understand English.  Are they supposed to doubt what they hear all the time?

 

To go to an extreme (true extreme), we find that judges enforced slavery, Jim Crow laws, and more in US history alone, then add in other countries like the Nazi era of Germany.  Were they correct because it was written by someone in history?  I don't think so.

 

DUI causes multiple deaths every single day.  It should not be tolerated nor let off on a technicality when we know the person was guilty.

 

I'm not ok when it happens.  I'll never be ok when that happens.

 

I'm ok when potentially guilty people get off the hook when there's doubt, because that's better than condemning someone innocent, but when it's technicalities like this, that's totally different and repulsive.

 

Whether one is a foreigner or not has absolutely no bearing on this whatsoever.

[Ravin]

How do they test for drugs? I'm perfectly fine with random tests that aren't invasive.

 

And DUI should have a mandatory punishment of 1 year in jail. I don't buy that all the DUI's are alcoholics who can't help themselves. Many are just a-holes.

 

And then what would you do with the woman who racked up 2 DUI's because her abuser insisted she drink while driving him around and she did because the alternative was getting beaten up? Or the diabetic man who is charged with DUI because he was found passed out behind the wheel of his car in the parking lot, who was actually severely hypoglycemic and only drank half a beer (enough to smell of it, not enough to put him over the legal limit), but appeared so intoxicated that the police didn't even bother with attempting field sobriety tests or a breathalyzer and just threw him in the drunk tank without having him checked out by a medical professional, where he's lucky he didn't die?

 

Not all DUI's are a-holes. Or even alcoholics. Many times, latitude in sentencing is necessary to see justice done, and throwing someone in jail for a year affects more than just that person.

 

I find the cavalier attitude some people have towards the basic constitutional protections of individual rights alarming. When someone walks because the police didn't do their job correctly and evidence was therefore excluded, that's not "getting off on a technicality." That's an individual defendant walking away because their right to due process was violated in a significant enough way that the justice system deems it the lesser wrong to let them walk away than to let the government get away with abusing the rights of members of the community.

 

There are good reasons why the standard for proof in a criminal trial is "beyond a reasonable doubt." There are reasons for the hoops police and prosecutors must jump through--every one of those hoops was put in place because someone in authority before them came along and abused that authority, and people were imprisoned and executed wrongly because of it. The Founding Fathers understood that, and the application of those rights is the same whether the context is something they would have immediately recognized or a modern situation.

 

Hate lawyers all you want, but it's the job of a criminal defense attorney to protect the rights of individuals accused of crimes. Those rights are the same no matter what the person is accused of having done, and no matter the person's standing in society--citizen or not, speaks English or not. I can think of a dozen reasons to hate lawyers, and even criminal defense attorneys--because some of them lose sight of their purpose and will be too busy trying to "win" to even see their client and what the client wants or is really asking for. Everyone hates lawyers like that--other criminal defense attorneys, judges, court staff, prosecutors, their clients...

[Valley Girl]

I find the cavalier attitude some people have towards the basic constitutional protections of individual rights alarming. When someone walks because the police didn't do their job correctly and evidence was therefore excluded, that's not "getting off on a technicality." That's an individual defendant walking away because their right to due process was violated in a significant enough way that the justice system deems it the lesser wrong to let them walk away than to let the government get away with abusing the rights of members of the community.

 

 

Nobody wants people who have been drinking behind the wheel. Nobody wants guilty people to avoid punishment for crimes they commit. But when you have the power of the state going against the individual, those constitutional protections are vital. My LEO family member--who once threatened to disown me (only half in jest) if I became a lawyer--was firmly of the belief that those constitutional protections mattered even if it meant losing an arrest. The burden is on the police--and everyone else in the criminal justice system--to make sure those "technicalities" are followed.

[SKL]

From a policy perspective, should people be allowed to drive if they are unwilling to prove they are unimpaired?

 

As for the right to not consent, one would think that there would be other evidence to support some charge - be it reckless driving or whatever.  Otherwise, why did the cop pull the person over in the first place?  How about dashcam footage, radar evidence, microphones on the cops' lapel, etc?  The goal is to get dangerous drivers off the road, whether they are tested chemically or not.  A lawyer may ethically fight a clear violation of rights without also undermining the evidence that was legally gathered.

 

And I wonder whether people's reaction would be different if the facebook post included the fact of a death / serious injury caused by said driver.  Still kudos to the attorney?

 

I know defendants have rights, but lawyers can refuse to do certain dirty jobs.

[SKL]

I'm not trying to pick on you, SKL. I just find their reaction...disturbing. Her driving was erratic enough that an officer pulled her over for suspected drunk driving and the response is laughter? Not a very wise move.

 

 

Must have been because the passengers had been drinking.  :P

 

[Murphy101]

Why not? Driving is not a right. It's a privilege and that privilege comes with responsibilities.

You know what? It is both true and not true. And it's scary how many things we could apply that logic to.

 

In my state, if you don't have a driver's license, you literally will be nearly impossible to employ. That's just a fact. Public transport is almost nil and the chances of you being able to reliably bike or walk are very slim. So for all intent and purpose, no license means no job for the majority of citizens here.

 

Now it is true one could say no one has a right to employment. But let's get real. You cannot function in society or certainly not very well without a income and the means to obtain that income.

 

We all understand this and this is why usually we call things you need to function adaquately in society what they are - needs. We don't normally say it is a privledge to have employment or access to what permits us employment even if they are not constitutional rights.

 

And we should get, imnsho, get very unnerved when anyine has to sign away their constitutional rights to avail themselves of basic necessities of making their way in society.

 

Of course driving comes with responsibilities. I never said otherwise. I'm completely for a DUI having their license suspended or removed, especially a repeat offender. I'm also completely for the legal system upholding their responsibility to accurately safeguard rights and due process. It is not an either or scenario. If there is enough evidence of DUI, they shouldn't have any problem getting a warrant and there shouldn't be any need to mandate removing a constructional right for everyone as a condition of just getting a driver's license.

 

Obviously my opinion is contrary to the law in Florida. I'm okay with that. I hope the law changes.

Edited March 30, 2016 by Murphy101

[Murphy101]

Chances are this guy committed robbery to obtain money to fund his drug addiction.

 

Where do you draw the line between jail/prison for breaking the law vs. addicted so no jail?

 

The system we have is what we have. Therefore, it's the system we have to work with. Addiction or not.

There's no reason to presume all drug addicts commit robbery.

 

But aside from that, I'm not saying I'm for or against any of it.

 

Someone posed their frustration with why multiple repeat offender still seem to be on the streets.

 

Because there's not room for them in the jail and they try, in theory, to at least make sure the most dangerous get the jail spots.

 

Because that's also part of the system we have.

[Murphy101]

And of course I'm not for drunk driving and of course the best legal defense is to not commit a crime to begin with.

 

One can be both strongly against policy that treats all people like criminals and strongly against actual criminals.

[SKL]

It's not that I want drunks taking up jail space.  I just don't want them behind the wheel of a vehicle.

 

I brought up jail because I remember when they passed that zero tolerance law that mandated jail time for every DUI after the first.  It was supposed to be this big crackdown.  But apparently there are a million loopholes and the law is a big joke.

 

I think that with time, technology will be implemented to prevent a person from operating a car while drunk.  If the car won't start, you can't run anyone over.

 

And people with multiple DUIs should not be allowed to have a driver's license nor have a car registered to their name.  If they have a car they should have to donate it to charity.  Anyone lending their car should have to ask to see the person's valid license.  Rental car places should have to do a DUI background check (does that already happen?).  Irresponsible drivers should not be driving.

[bolt.]

What is wrong is our courts privileging a foreigner driving at 3 times the legal blood alcohol limit over the rights of U.S. citizens to go about their business without having their safety threatened by said foreigner. I seriously doubt this is what the Founding Fathers intended when they wrote the Bill of Rights.

As far as I understand your American laws, it seems to me that both citizens and "foreigners" (whether allegedly drunk, or aparently sober) have the actual right to NOT have their blood drawn/tested by law enforcement unless there is either consent or a warrant. That (as far as I understand) is an actual legal right.

 

Are you saying that you would prefer that legal right to be changed? To remove or limit that right? From who? Just the foreigners? All people who appear drunk? Only foreigners that appear drunk? You are asserting that those changes would make your country more just? What exactly are you proposing?

 

As you desire to compare the actual legal right (to refuse blood testing without a warrant) with your idea that "U.S. citizens" have a supposed right "to go about their business without having their safety threatened" -- I'd like to better understand. Is that an actual legal right? Is it a right only of citizenship? Is it the right to be safe from all threats? Or only from threats that arise from "foreigners"?

 

And how did you learn this person is "a foreigner"? And how is that category defined? Why is it meaningful? Are there any U.S. laws or rights that distinguish between foreign and non foreign persons?

Edited March 30, 2016 by bolt.

[Murphy101]

There was a case several years ago in my state where a man was presumed DUI when found in a still running but parked vehicle on the side of the road and tossed in the jail to be fully charged when he slept off his drunk.

 

He died.

 

He wasn't drunk. He was diabetic and slowly went further into shock and died.

 

All because someone just assumed that every seemingly intoxicated person is a drunk or drug user.

 

Turned out the man never drank anything.

 

Scared the crap out of me. Because just a few weeks before my own husband was found on the curb of some old ladies house unconscious. He had developed an intolerance to his insulin (which can cause sudden severe drops in blood sugar) while driving home from work and apparently wandered. His car was a block away. Luckily the old lady didn't assume he was some drugged out or drunk asshole. She just saw a man who needed help and instead of calling the police, she called an ambulance and he got medical care and I got called within moments of the paramedics arriving.

[Anne in CA]

Well, as far as "hating" lawyers, I don't. I have a lot of respect for most of them because it's a hard job. In the early 90's I was a bartender in the coke fueled bar hook up scene that still wasn't dead even though AIDS was very real. It was so morally filthy that eventually I gave it up. I was in family court for three days in Feb with a friend and I think what happened there was soooo much more morally filthy than hookups and drug use. The lying of several professionals for money, knowing it would hurt children, but getting their money and telling lies anyway. How do these people live with themselves??? I could never be a lawyer, but I admire people who try to help people in these circumstances.

 

But then, I could never work for the post office because I would never want to be responsible for losing someone's mail, lol. I'm a weirdo like that. I feel really bad if I mess up someone's lunch order.

[G5052]

There was a case several years ago in my state where a man was presumed DUI when found in a still running but parked vehicle on the side of the road and tossed in the jail to be fully charged when he slept off his drunk.

 

He died.

 

He wasn't drunk. He was diabetic and slowly went further into shock and died.

 

All because someone just assumed that every seemingly intoxicated person is a drunk or drug user.

 

Turned out the man never drank anything.

 

Scared the crap out of me. Because just a few weeks before my own husband was found on the curb of some old ladies house unconscious. He had developed an intolerance to his insulin (which can cause sudden severe drops in blood sugar) while driving home from work and apparently wandered. His car was a block away. Luckily the old lady didn't assume he was some drugged out or drunk asshole. She just saw a man who needed help and instead of calling the police, she called an ambulance and he got medical care and I got called within moments of the paramedics arriving.

 

Yes, not all DUI arrests are drunk. And frankly when someone gets off on a technicality, I blame the one that made the mistake, not the defense lawyer.

[Murphy101]

Yes, not all DUI arrests are drunk. And frankly when someone gets off on a technicality, I blame the one that made the mistake, not the defense lawyer.

Indeed.

 

It's not a technicality or a loophole to expect cops and the judicial system to follow the law.

 

ETA: It's scary to think so many people think the law should be followed unless we've decided someone is guilty and then well we shouldn't get too picky with the law.

Edited March 30, 2016 by Murphy101

[Ravin]

Obviously I disagree. Everyone knows how dangerous dui or while texting is. Doing it anyway is disregarding the pre-existing knowledge with an "it'll never happen to me" ego. You have to make a (pre-meditated) decision to get behind the wheel or pick up your cell phone, all while knowing that it could result in the death of an innocent person.

 

What you are describing is recklessness, and that is a mens rea (state of mind) for many crimes--in the "getting people killed" category, vehicular homicide or involuntary homicide and 2nd degree murder can be "recklessness" mens rea crimes.

 

"Premeditation" has a specific legal meaning. It means you intended to commit the act with which you are charged. First degree premeditated murder requires that you set out to kill someone and did so. Attempted murder requires that you set out to kill someone, took concrete steps towards that end, but failed to do so.

 

In the legal sense, when you get behind the wheel your premeditated action is to drive somewhere, and when you answer a text or call, your premeditated action is to answer the phone or read a text. In those situations it is more correct in the legal sense to say that you are reckless with respect to killing someone, because you ought to know the chances of it are greater but  it isn't your actual intent.

 

Now, a jurisdiction that makes DUI or texting while driving a felony and has first degree felony murder could maybe in some cases put those two together, and that would get the result you are looking for--but only in the event someone is actually killed.

 

We don't punish people the same way for what might happen as we do for what they actually do and the actual consequences of their actions.

 

Also, when it comes to deterrence, criminal justice social science research has shown that to get the most bang for your buck you have to increase the likelihood of getting caught. Greater chance of getting caught, even if the penalty is more minor, is more likely to deter people from dangerous or criminal acts than is increasing severity of punishment. Human beings are, as observed previously in this thread, lousy at judging risk. The reality is that criminal justice aside, you stand a greater chance of getting YOURSELF killed if you drive while impaired or distracted. No criminal penalty is more severe than that. But, once people realize they are more likely to be caught and punished--even with just a ticket/fine or the inconvenience and embarrassment of an arrest--that will effectively change behavior of many more people. The cautious who would pay attention to more severe penalties probably also pay attention to their own personal risk as well, while those for whom risk of death isn't sufficient deterrent will probably not be any more deterred by a possible long jail sentence for something they don't think will really happen to THEM.

 

This is why the NZ/Aus approach of random checks, and the US approach of DUI checkpoints, are effective to increase deterrence.

[creekland]

There was a case several years ago in my state where a man was presumed DUI when found in a still running but parked vehicle on the side of the road and tossed in the jail to be fully charged when he slept off his drunk.

 

He died.

 

He wasn't drunk. He was diabetic and slowly went further into shock and died.

 

All because someone just assumed that every seemingly intoxicated person is a drunk or drug user.

 

Turned out the man never drank anything.

 

Scared the crap out of me. Because just a few weeks before my own husband was found on the curb of some old ladies house unconscious. He had developed an intolerance to his insulin (which can cause sudden severe drops in blood sugar) while driving home from work and apparently wandered. His car was a block away. Luckily the old lady didn't assume he was some drugged out or drunk asshole. She just saw a man who needed help and instead of calling the police, she called an ambulance and he got medical care and I got called within moments of the paramedics arriving.

 

I'm not sure how this applies.  In the post the OP copied (first post) it said that there was a blood draw of .23 DWI.  I seriously doubt that guy was in diabetic shock.

 

The question is whether he consented to the blood draw or not and whether one should have to consent to such things given probable cause and a driver's license.  (I like FL's law as read about here of denying the license if someone refuses consent.)  But in the original case (as we have it from that post) it said the state contended the person understood English.

 

IRL, did his lawyer have him play up his lack of understanding of the language by getting an interpreter or was it real?  Was any evidence presented?  (We don't know.)

 

Then too, did LE honestly think he understood them by the way he was talking and/or nodding?  I'm betting yes or I feel they would have gotten a warrant.  I could be wrong.  We'll never know.  Maybe there was a dashcam and it was filmed.  Maybe not.

 

All we do know is a dude who WAS DWI (no doubt) got off the hook and won't have to go to treatment or have anything else impeding his life.  We can hope he won't do it again...  At least he was stopped that night and didn't kill/maim anyone.

 

DUI and distracted driving are two of my pet peeves.  They can hit any of us and totally ruin our lives or those we love.  It happens every single day in all states.  It rarely makes the national news since it's so common.

 

I have low tolerance for either.  They aren't "accidents."

[Tsuga]

Obviously I disagree. Everyone knows how dangerous dui or while texting is. Doing it anyway is disregarding the pre-existing knowledge with an "it'll never happen to me" ego. You have to make a (pre-meditated) decision to get behind the wheel or pick up your cell phone, all while knowing that it could result in the death of an innocent person.

You are confusing reckless with premeditation.

 

The law is what it is and I can deal with that, but driving drunk and killing is not premeditated murder.

 

I do think people should lose their license after two DUIs though.

[creekland]

ETA: It's scary to think so many people think the law should be followed unless we've decided someone is guilty and then well we shouldn't get too picky with the law.

 

It's also scary to see so many people ignore the fact that IRL this guy was guilty.  There was no doubt in this case assuming what was copied was correct (no reason to suspect it wasn't).  Or are you arguing that the blood test wasn't accurate?

 

It's not that people decided he was guilty because of how he was driving or what his breath smelled like or that he passed out.

 

Or maybe people didn't actually read the first post and are going off assumptions?

[trulycrabby]

Tacky of that lawyer to post that on facebook, but I don't hate lawyers. They are usually just doing what they are hired to do; protecting the interests of their clients.

[Ravin]

From a policy perspective, should people be allowed to drive if they are unwilling to prove they are unimpaired?

 

As for the right to not consent, one would think that there would be other evidence to support some charge - be it reckless driving or whatever.  Otherwise, why did the cop pull the person over in the first place?  How about dashcam footage, radar evidence, microphones on the cops' lapel, etc?  The goal is to get dangerous drivers off the road, whether they are tested chemically or not.  A lawyer may ethically fight a clear violation of rights without also undermining the evidence that was legally gathered.

 

And I wonder whether people's reaction would be different if the facebook post included the fact of a death / serious injury caused by said driver.  Still kudos to the attorney?

 

I know defendants have rights, but lawyers can refuse to do certain dirty jobs.

 

I am a public defender. By definition, we can't refuse to do the dirty jobs--because someone HAS to do them.

 

I agree 100% that the FB post in the OP was incredibly tacky at best.

 

Police who are really looking to enforce other crimes (looking for drugs for example) will often stop a person on a "pretense"--something that is technically incorrect driving but most of the time they wouldn't bother with because it was so minor, like making a wide turn with no other cars around or something like that.

 

I see a lot of police reports where the person is stopped for something that has nothing to do with being impaired--like speeding, sober people speed with great frequency--but then will smell alcohol or marijuana on the person's breath or coming from their car, or will see an open bottle of alcohol in plain sight, and will initiate the investigation into whether the person has been drinking. But plenty of people are capable of driving while legally impaired without incident--right up until they get in a wreck or something. The classic "visibly weaving around on the road" kind of DUI is a lot less common than it once was in places with adequate policing. The "pulled over and passed out with the car still running", "drove into a ditch", "rear ended someone because reflexes were too slow because impaired" etc. sort of DUI's are more common. When someone is caught without causing an accident, it's more likely to be at a checkpoint of some kind.

[SKL]

I am a public defender. By definition, we can't refuse to do the dirty jobs--because someone HAS to do them.

 

 

Right, and your job is to make sure rights are not trampled upon, not to find the loopholes that will make important laws ineffective.  Usually it's a well-paid private defense attorney who does the latter.

 

A public defender doesn't "lose" a case if the defendant goes to jail because he is patently guilty.

[Lady Florida.]

I went to bed after my last post last night. Just catching up.
 

1. Unless Florida recently changed the law, it is a misdemeanor the second time you refuse to take a breathalyzer.

2. Not sure if you are responding this or not, but the Supreme Court has ruled that drawing blood without a warrant and without consent in a dui stop is a violation of the 4th amendment and the evidence is inadmissible. Are you somehow saying that isn't applicable to Florida?

 
1. I was wrong. I apologize for that. I did not think it was a crime. 
 
2. Florida law does not say blood can be drawn at a DUI stop. It says you have to have been lawfully arrested. Lawfully means not a trumped up charge.
 
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0316/Sections/0316.1932.html

 

 

It states quite clearly on the front of my license: "Operation of a motor vehicle constitutes consent to any drug sobriety test required by law".

 

It's a contract between the state and me that I did not have to sign. If I'm going to drink (which I very rarely do and drink very little when I do), I know in advance. If I didn't know I was going to be offered a drink but I know I have to drive home, I can refuse. It's not hard. It's a conscious decision. Yes, alcoholism is different, but I'm talking about general drinking and driving, which sadly many non-alcoholics do. I also know that if I choose to drink and then drive, simply by getting behind the wheel, I'm giving LE the right to test me for impairment. 

 

As for foreigners, ignorance of the law is no excuse. If you go to another country you learn its laws, or at least the ones that could affect you. When I traveled to the UK I read up on any laws that might pertain to me. Of course I went to an English speaking country. I admit that not speaking the language presents a different set of problems and I don't know the solution.

 

Personally I'd rather have a blood test as they're more accurate. I don't know about breath tests, but I know their accuracy has been improved in recent years. I have balance issues related to my back problems that would probably cause me to fail a field test (or at least have the officer wondering if he shoudl go further). While it doesn't affect my everyday activities, if I had to walk a straight line right now I'd appear drunk.

 

As for lawyers challenging everything, yes they will. The one and only time I was called for jury duty I was picked for the jury. It was a dui manslaughter case. The defendant hit and killed a pedestrian. His defense was not that he didn't do it, but that he wasn't drunk (much lower sentence for that). We the jury got to learn all about gas chromatography, which his lawyer tried to convince us was faulty. We convicted him. 

 

 

Edited March 30, 2016 by Lady Florida