Kevin Mark Wray Criminal Defense Blog

The Columbo Effect and 10 reasons not to talk to police!

Peter Falk as Lt. Columbo

Lt. Columbo wearing his shabby raincoat, chomping on his stub of a cigar, pulling papers from his pants and coat pockets, and asking the most innocuous questions imaginable solved crimes on TV for more than three decades.  He looked like a bum that just came off the street and drove an older beater of a car that was five decades old (by the end of his TV crime-solving career).

He had a bumbling demeanor, was overly polite, and had a garrulousness that kept his suspects feeling as though they had pulled the wool over the eyes of the law.

However, beneath all that comical exterior was probably the most dogged investigator on the Los Angeles Police Department. Columbo was often called on to investigate high profile murders that involved the rich and famous. The culprits were often amused by him and just as they thought they were going to get away with murder, Columbo would find a way trap them or find enough evidence to make them confess.  How?  They talked their way right into jail.

As a criminal defense attorney, I often wonder what would have happened if the suspect just said, "Lt. Columbo, no more questions.  I have an attorney.  I am invoking my right to counsel and to remain silent."  The case just went from "cat and mouse" to bloodhounds.

But Columbo, Inspector Maigret, Hercule Poirot, Frank Pembleton, Sgt. Joe Friday, Mr. Monk and a host of other TV characters solved crimes by getting the suspects to talk. 

Like the character Harold Payne says in the movie Speed: "... They [police] talk to you like they're your best friend...and they don't even know you."

In real life, cops live for this.  Cops train for this. They call you. They ask you to come in to talk.  They will lie to you.  They will tell you they have an arrest warrant (You go straight to an attorney for this too! An attorney negotiated surrender always goes better than turning yourself in!)  They will tell you nothing will happen to you, they just need information.  Anything and everything imaginable will be promised to get you into the police station to give them a statement that will, most likely, put you in jail.

Suspects think they can outthink, outwit, outschmooze and outlast a police officer looking to tie up a crime and suspect into a neatly tied bow.  But, just like TV, it does not work.

Here is why you should never talk to the police

REASON #1: Talking to the police CANNOT help you.  If the police are talking to you, it’s because they suspect you have committed a crime.  If they have detained you, it’s because they already have enough evidence to arrest you and they want to see if you will admit it and thus, give them an even stronger case against you.  If they have evidence to arrest you for a crime, they will.  If they don’t, they won’t.  It’s as simple as that.  

No one has ever “talked his way out of” an arrest.  Talking to them or not talking to them won’t make a difference!  If the police have enough evidence to arrest, they will arrest you.  If you deny that you committed the crime, the police will not believe you.  The police already have evidence suggesting that you committed the crime.  They’ll assume you’re just doing what every criminal does --- deny committing the offense.  It will not prevent you from getting arrested.  This is completely contrary to popular belief.  

For some reason, many people think that they are savvy enough or eloquent enough or well educated enough to be able to talk to the police and convince the police not to arrest them. But ask any police officer if because of the eloquence and convincing story of the suspect, they have ever been convinced not to arrest somebody whom they had originally intended to arrest, and they will tell you no.  They will tell you that in their experience, no one has ever talked themselves out of getting arrested.  Talking to the police cannot help you.  It cannot prevent you from getting arrested.  It can only hurt.

REASON #2: Even if you are innocent, it’s easy to tell some little white lie in the course of a statement.  This kind of thing happens all the time.  A person who is completely innocent and who is trying to vehemently assert their innocence will go overboard and take it a little bit too far and deny some insignificant fact, tell some little white lie, because they want to sound as innocent as possible.  But if the police have evidence of that lie, it makes your entire statement look like a lie.  The prosecutor will ask: “Why did he lie to the police?  Why indeed would he lie to the police, unless he was guilty?”  That little white lie could be used to destroy your credibility at trial.  

An example would be a man who is questioned about a murder.  He wants to sound innocent. He wants to sound non-violent.  He is, in fact, innocent.  So he denies everything.  He denies the killing.  He denies being in the area where the killing occurred on the night that it occurred. He denies owning a gun, and denies that he has ever owned a gun in his whole life.  But it turns out that this last statement is not true and the police can prove it.  He did at one time during his life own a gun (he bought one fifteen years ago).  Now he has told a lie and the police have caught him and things will only go downhill from there.  Although he is innocent of the murder, he has told a lie that will be used to destroy his credibility at trial and could be the cause of his conviction.

REASON #3: Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.  

For example, the same man is being questioned about a murder.  He is truly innocent of the murder.  But in the course of explaining his innocence, he makes the statement that he never liked the victim, because the victim was not a nice guy.  A statement like that could be used to prove motive.  Or in the course of the statement, the suspect might admit that he was in the area of town where the murder was committed at the time it was committed.  Although he’s innocent and although this statement is true, the prosecutor could use that statement to suggest that the suspect had the opportunity to commit the crime, which looks very bad in front of a jury.

Remember, what you think is an honest, harmless, innocuous statement is not what the police think about the statement you gave them.

REASON #4: Even if you were innocent, and you only tell the truth, and you don’t tell any little white lies, and you don’t give the police any information that can be used against you to prove motive or opportunity, you still should not talk to the police because the possibility that the police might not recall your statement with 100% accuracy.  

What if the police officer remembers something wrong?  What if he remembers you said “X” when actually you said “Y”?  If the police officer takes the witness stand and contradicts your statements at trial, it will kill your credibility.  You can take the witness stand and say “I never said that!”  But it’s your word versus a police officer.  Who’s the jury going to believe?  Who will the jury assume is lying to save his own skin?  Who will the jury believe is lying because he’s really guilty?  You guessed it. YOU!

The police are human and are not required to be 100% accurate but most important of all ---- they have no obligation to help you.

REASON #5: Even if you’re innocent, and you only tell the truth, and your entire statement is videotaped so that the police don’t have to rely on their memory, an innocent person can still make some innocent assumption about a fact or state some detail about the case they overheard on the way to the police station, and the police will assume that they only way the suspect could have known that fact or that detail was if he was, in fact, guilty.  

Example: Suppose the police officer is questioning a man about the murder, and the suspect makes the statement “I don’t know who killed the victim. I’ve never owned a gun in my life.  I don’t even like guns.”  On its face, there’s nothing incriminating about that statement.  But suppose at trial, the prosecutor asks the police officer if anything about that statement surprised him.  The police officer answers “Yes, it surprised me when the suspect mentioned a gun, because I had never mentioned a gun before that. I merely told him that I was investigating a homicide.”  When the officer said there has been a homicide, the man may have simply assumed that the killing was done with a gun, or the man may have overheard in the police station some other officer talk about the fact that it was a shooting.  But if the officer taking the statement had never mentioned a gun or a shooting, and the suspect makes the statement that he had never owned a gun, you give the prosecution the opportunity to create some high drama, suggesting that suspect has had a Freudian slip, and has made a statement about a gun because he is, in fact, the murderer.  And as the murderer, he knew that a gun was used.

REASON #6: Even if you’re innocent, and you only tell the truth in your statement, and you give the police no information that can be used against you, and the whole statement is videotaped, a suspect’s answers can still be used against him if the police (through no fault of their own) have any evidence that any of the suspect’s statements are false (even if they are really true).  

Suppose the police have a statement from a witness who claims to have seen the suspect in the area where the crime was committed at the time of the incident.  Suppose further that this witness is actually wrong, but has made an honest mistake.  The suspect then gives a statement to the police in which he says he was nowhere near the area where the crime took place at the time of the incident.  By giving the statement, the suspect has now created a conflict between his own statement and the statement of this witness.  

By itself, the statement of the witness that he or she saw the suspect in the area at the time the crime was committed is not that useful.  But by giving this statement, and creating a conflict with this witness’s statement, the suspect has now made this relatively minor witness into the government’s star witness.  The jury will hear the conflict and will assume that the suspect is lying and wonder why.  So even if you tell the complete truth, you’re putting your cards on the table without first seeing what evidence the government has.  And if the government has some bit of evidence which, through some honest mistake, contradicts part of your story, you set yourself up to be portrayed as a liar by giving a statement without first knowing what evidence the government has.

REASON #7: The police do not have authority to make deals or grant a suspect leniency in exchange for getting as statement.  People tell me all the time that they gave a statement to the police because the police told them that they would be better off if they confessed, better off if they admitted what they did wrong, better off if they cooperated.  The police will make vague statements that things will go easier on the suspect if he simply admits what he did wrong.  The police will also make vague statements suggesting that they will do what they can to help the suspect that they will put in a good word for the suspect, if the suspect will just come clean.  

Number One thing to remember:  The police do not have authority to make deals, grant immunity, or negotiate plea agreements.  The only entity with that authority is the District Attorney in state court and the U.S. Attorney in federal court.  Despite their claim that they are trying to help you, the only help police are providing when they take your statement is giving you rope with which to hang yourself.

REASON #8: Even for a completely honest and innocent person, it is difficult to tell the same story twice in exactly the same way.  If you tell your story one time at trial and you tell the truth and you’re innocent, there’s very little the prosecutor can do by way of cross examination.  But if you’ve told your story twice, once at trial, and once previously in a statement to the police, many months apart, the chances are very high that, even if you are telling the truth, some little details in your statement are going to change.  A good cross examiner will pick up on these changes and will relentlessly question you about them in an effort to make it look like you are lying.  So for all these reasons, whether you are guilty or innocent, whether you want to confess or want to exonerate yourself, whether you’re poorly educated or the most eloquent speaker in the world, you should NEVER, EVER, under any circumstances, give a statement to the police when you have been detained as a suspect.

REASON #9: Even if you’re guilty, and you want to confess and get it off your chest, you still shouldn’t talk to the police.  People plead guilty in America every day.  Probably over 90% of defendants in state court plead guilty at some point during their case.  

There is plenty of time to confess and admit guilt at a later stage of the proceedings.  What’s the rush?  Get a lawyer first.  Let the lawyer set up a deal whereby you get something in exchange for accepting responsibility for the offense, for instance a better plea bargain or maybe even immunity from prosecution.  If you confess to the police, you get nothing in return.  Zero.  In fact, you could get a harsher prosecution because the state’s case is now airtight, now that you have confessed.

REASON #10: Even if a suspect is guilty, and wants to confess, there may be mitigating factors which justify a lesser charge.  Mitigating factors are rarely brought out by the police in an interview.  Normally, police want to focus on the facts that will suggest the suspect has committed the most serious crime possible.  In fact, the suspect may have committed a lesser grade of offense.  And if given the opportunity to talk to an attorney first, the attorney may be able to explain to the suspect what facts are important in establishing that he is guilty of a lesser grade of an offense, and not a higher grade.  A confession presented in this context to the District Attorney’s office might result in a lesser charge and a more appropriate and fair penalty.

 

Now, you might be thinking, "If I am not charged with a crime yet, why have a lawyer?"

Actually, having and paying a lawyer before you are charged may save you a lot of money.

You were in a car when a drug deal went down.  Your idiot friend met a guy who wanted to buy two Oxycotin pills and an Eighth of an ounce of weed and he did the deal in the back seat while you sat in the front passenger seat.  The guy was an undercover cop and he calls you and says meet him at the police station to "talk" about your friend.  If you go to the station, you will get charged.  (Mere presence at a crime scene is not probable cause for anything.)  Then you will pay me between anywhere from $2,000 to $10,000 to resolve your criminal charges.

How about this.  Your ex-wife's son (now 17) from another marriage accuses you of molesting him when he was 5 years old.  CYS has been called and a police detective wants you to come in for questioning.  Go ahead, go.  I charge about $5,000 to $25,000 for sex crimes.

In both of the above cases, I was hired for a few hundred dollars to contact the police, told the police I represented the "person of interest", and that the right to remain silent and the right to counsel were being invoked.  Result, no charges and no further police contact.

Did you catch the last sentence?  Once a lawyer contacts the police and tells them that the "person of interest" is represented, the calls and contact stops. 

The Columbo Effect is good TV.  Do not get caught up in the fiction of winning the Police Questioning game; because, in reality,  it's rigged and you lose every time it's played.

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

 

"Gideon's Trumpet" and the right to counsel

Fred Turner, played by Lane Smith, seated next to his client Clarence Earl Gideon, played by Henry Fonda

I just watched an HBO documentary called "Gideon's Army". It is both depressing and motivating on what public defenders do (with inadequate funding) to protect the constitutional rights of the accused. It is a criminal justice education you can obtain in 90 minutes.

http://www.hbo.com/#/documentaries/gideons-army

The story of Clarence Gideon is equally depressing and motivating.

Clarence Earl Gideon was born in Hannibal, Missouri, on August 30, 1910.  His father died when he was only three years old.  Shortly after finishing the eighth grade, Gideon quit school and ran away from home.  By the age of sixteen, Gideon was a drifter with a substantial petty crime record.

Gideon spent a year in a reform school for burglary before finding work at a shoe factory.  At age 18, he was arrested in Missouri and charged with robbery, burglary, and larceny.  Gideon was sentenced to 10 years but released after three, in 1932, just as the Great Depression was beginning.

Gideon spent most of the next three decades in poverty.  He served time for various theft crimes in Kansas, Missouri and Texas.

Between his prison terms, Gideon was married four times.  Although his first three marriages were fairly short, the fourth in October 1955 to Ruth Ada Babineaux seemed long-lasting. Gideon and his wife settled in Orange, Texas, and Gideon found irregular work on tugboats and as a bartender. 

When Gideon became laid up with tuberculosis for 3 years, Gideon’s life began to unravel.  In the late 1950s, the couple had moved to Panama City, Florida.  He had Ruth had 6 children (Three were Ruth’s by prior marriages and she and Gideon had three children together.)  At some point, the six children were removed by welfare authorities.  Gideon started working as an electrician in Florida, but began gambling for money because of his low wages.

On June 3, 1961, $5 in change and a few bottles of beer and soda were stolen from Bay Harbor Pool Room, a combination pool hall and beer joint.  The owner, Ira Strickland, Jr., alleged that $50 was also taken from the jukebox.  Henry Cook, a 22-year-old resident who lived nearby, told the police that he had seen Gideon walk out of the joint with a bottle of wine and his pockets filled with coins, and then get into a cab and leave. Gideon was arrested in a tavern.

Being too poor to pay for counsel, Gideon was forced to defend himself at his trial after being denied a lawyer by his trial judge, Robert McCrary, Jr.  On August 4, 1961, Gideon was tried and convicted of breaking and entering with intent to commit petty larceny.  On August 25, 1961, Gideon was given the maximum sentence by Judge McCrary --- five years in prison.

While in jail, Gideon studied the American legal system and came to the conclusion that Judge McCrary had violated his constitutional right to counsel under the Sixth Amendment, applicable to the State of Florida through the due process clause of the 14th Amendment to the U.S. Constitution.  He then wrote to an FBI office in Florida and next to the Florida Supreme Court, but was denied help.  Then in January 1962, he mailed a five-page petition to the Supreme Court of the United States asking the nine justices to consider his complaint. The Supreme Court, in reply, agreed to hear his appeal.  Originally, the case was called Gideon v. Cochran.

The Gideon v. Cochran case was argued on January 15, 1963.  Abe Fortas, a well-known and highly regarded attorney, was assigned to represent Gideon.  Bruce Jacob, the Assistant Florida Attorney General, was assigned to argue against Gideon.  Fortas, who would become a U.S. Supreme Court Justice himself, argued that a common man with no training in law could not go up against a trained lawyer and win, and that "you cannot have a fair trial without counsel."

Jacob argued that the issue at hand was a state issue, not federal; the practice of only appointing counsel under "special circumstances" in non-capital cases sufficed; that thousands of convictions would have to be thrown out if it were changed; and that Florida had followed for 21 years "in good faith" the 1942 Supreme Court ruling in Betts v. Brady.  The hearing ended three hours and five minutes after it began.  (The case's original title, Gideon v. Cochran, was changed to Gideon v. Wainwright after Louie L. Wainwright replaced H. G. Cochran as the director of the Florida Division of Corrections.).

The Supreme Court ruled unanimously (9-0) in Gideon's favor in a landmark decision on March 18, 1963.

As a result of the Gideon decision about 2,000 convicted people in Florida alone were freed.  Gideon himself was not freed.  He instead got another trial.

Gideon chose W. Fred Turner to be his lawyer for his second trial.  The retrial took place on August 5, 1963, five months after the Supreme Court ruling.  Turner, during the trial, picked apart the testimony of eyewitness Henry Cook, and in his opening and closing statements suggested the idea that Cook likely had been a lookout for a group of young men who had stolen the beer and coins from Bay Harbor Pool Room.

Turner also got a statement from the cab driver who took Gideon from Bay Harbor, Florida to a bar in Panama City, Florida, stating that Gideon was carrying neither wine, beer nor Coke when he picked him up, even though Cook testified that he watched Gideon walk from the pool hall to the phone, then wait for a cab.  Furthermore, although in the first trial Gideon had not cross-examined the cab driver about his statement that Gideon had told him to keep the taxi ride a secret, Turner's cross-examination revealed that Gideon had said that to the cab driver previously because "he had trouble with his wife."

The jury acquitted Gideon after one hour of deliberation.

Of course, there is a movie connection here.  “Gideon’s Trumpet”, the story of Clarence Earl Gideon, was made into a made for TV movie, based upon the book of the same title by Anthony Lewis.  In the movie during the second trial, Gideon, played by Henry Fonda, is represented W Fred Turner, played by Lane Smith (the prosecutor in “My Cousin Vinny” and Agent K in “Men in Black”).  I highly recommend both the book and the movie.

The most cutting moment in the second trial is not the cross-examination (which was brilliant) but jury selection.  Fred Turner quickly strikes a teetotaler and a convicter from the jury --- something only an experienced attorney would do and something a pro se defendant would have no idea about.

That moment encapsulates an earlier scene in “Gideon’s Trumpet” in which Abe Fortas, played by Jose Ferrer, while discussing a person's right to have an adequate defense during a trial with other members of his law firm: What I'd like to say to the Court is: “Let's not talk; let's go down there and watch one of these fellows try to defend themselves".  

In 1963, U.S. Attorney General Robert F. Kennedy remarked about the case

"If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed.  But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit.  And the whole course of legal history has been changed."

Non-legal movie trivia: Gideon’s landlady is played by Fay Wray (yes, I am distantly related) in her final role.  Fay Wray was best known for her role in “King Kong”.

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

The Lincoln Lawyer, Rule 1, and how the State makes it hard to pay your lawyer

Harold Casey talks with his attorney, Mick Haller, and learns a lesson about Rule 1

In the film “The Lincoln Lawyer”, Mick Haller is a slick criminal defense attorney who runs his practice from the back of a Lincoln Continental while being chauffeured from courthouse to courthouse.  At the beginning of the film, Mick Haller speaks with a client in a holding pen (a holding area for defendants who cannot make bail who are waiting for their case to be called in court)

Mick Haller: Listen. When the judge comes in, he's going to want to know if we're ready for trial.

Harold Casey: We are.

Mick Haller: We're not and you know why not.  You haven't paid me. Rule one, remember Rule one, Harold?  I get paid or I don't work.

Harold Casey: Don't worry, I have your money.

Mick Haller: Right, you have my money, I don't.

Harold Casey: It's coming.  I talked to my boys.

Mick Haller: Harold-- I looked at the list of people I trust, and you know what?  You're not on it.

Harold Casey: The law says you can't just quit.  The Judge won't let you.  I looked it up.

Mick Haller is about to react to his client’s jailhouse lawyering-- when a hush falls over the courtroom, and the Judge comes out:

Mick Haller: Pay close attention, Harold.

When Harold Casey’s case has been called, Mick stands up and addresses the court.

Mick Haller: Mickey Haller for the defense, your honor.  If I may, I'd like to carry this over.

Judge Orton: Do you have a reason, Mr. Haller?

Mick Haller: I'm having trouble locating a witness, your honor.  An indispensable witness.  A Mr. Green.

Mick Haller says “Mr. Green” with emphasis.  A look goes between the Judge and Mick.  Meantime, Harold stares from the pen. 

Judge Orton: How much time do you need?  Would a week be enough?

Mick Haller: I hope so, your honor.  As your honor knows, Mr. Green can be hard to track down. 

With a look of understanding, Judge Orton nods at Mick Haller.

Judge Orton: I'm holding this over pending notification from counsel...

Then the judge gavels down, for the next case-- As Harold Casey's led off, Mick joins him along the rail.

Harold Casey: That was bullshit, askin' for a delay-- I know what that was about.

Mick Haller: And so does Judge Powell.  He spent a lot of years as a defense lawyer, so he knows all about having to chase "Mr. Green," and he doesn't look kindly on defendants who don't pay their attorneys.  Now do you get it, Harold?

In reality, it is not that easy.  Although most judges will let a matter be continued to allow counsel to complete being retained, it won’t be forever.  If the person is out on bail, the judge may tell him to finish retaining his attorney and simply continue the court date.

It gets even worse; if you are behind bars with bail you can’t post (because you do not have it).  Then, it is no longer is just your problem, it's whoever has your back on the outside.  If they do not pay, your lawyer may pull a "Lincoln Lawyer" on you.  (In the "Lincoln Lawyer", no sooner has Mick Haller left the courthouse then a bike gang, with whom Harold is apparently employed as a "drug farmer", pays Mick's legal bill.)

The fact of the matter is that bail is often set too high (wrongfully, in my opinion) to keep defendant’s behind bars.  Rule 523 of the Pennsylvania Rules of Criminal Procedure gives 10 criteria for the bail authority (a magistrate or district justice) to set bail.

Rule 523. Release Criteria.

(A)  To determine whether to release a defendant, and what conditions, if any, to impose, the bail authority shall consider all available information as that information is relevant to the defendant’s appearance or nonappearance at subsequent proceedings, or compliance or noncompliance with the conditions of the bail bond, including information about:

   (1)  the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty;

   (2)  the defendant’s employment status and history, and financial condition;

   (3)  the nature of the defendant’s family relationships;

   (4)  the length and nature of the defendant’s residence in the community, and any past residences;

   (5)  the defendant’s age, character, reputation, mental condition, and whether addicted to alcohol or drugs;

   (6)  if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond;

   (7)  whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape;

   (8)  the defendant’s prior criminal record;

   (9)  any use of false identification; and

   (10)  any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.

 (B)  The decision of a defendant not to admit culpability or not to assist in an investigation shall not be a reason to impose additional or more restrictive conditions of bail on the defendant.

Theoretically, if you have no prior record (which makes 523 (A) 7 through 9 non-issues), a stable job, and an address you’ve been at for more than 5 years, your bail should be unsecured.  For just about anything short of murder. 

The reality is faster than you can say “presumption of innocence”, a district court judge or magistrate will give a defendant monetary bail (often high and un-makeable) with the rationalization, “these are serious criminal charges”. 

Without savings, credit, or really good friends and family, you are going to jail.  Sometimes, even with the financial resources, you go to jail anyway because it’s impossible to know what reasonable bail should be; because there is no bail schedule (a list of criminal charges and bail ranges) and the judge is free to set bail anywhere he or she thinks is appropriate.

While you are sitting in county jail hoping your family and friends can come up with bail, your mind wanders as you watch another new inmate go through a heroin withdrawal and you start thinking about how you might lose your job. 

While you might lose your job, because you did not show up for work; the bigger reality is that your boss might know that you were arrested and for what.

Many states, including Pennsylvania, post criminal court dockets on-line.  Now, you are screwed.  It’s no longer, “Sorry, Boss, I got arrested, but its total bull**it”.  Your boss is more likely to say, “I read online you were arrested on child porn charges.  Clean out your desk”

So, you think, “I’ll just get another job”, but the new job will likely see your arrest as well.  While I generally applaud “Sunshine Acts” which serve to make government more open and honest; here they prevent the accused from keeping his job and his paying bills.  Convicted of nothing, you may find yourself destitute, jobless and maybe homeless --- just because everyone knows your business. 

Before you think that is a good idea, consider this --- divorce records are sealed and no one can see them.  If a guy gives his wife no money, no car, maltreats her behind closed doors, subjects her to emotional and psychological abuse, and uses his financial position to destroy her life in the divorce proceedings --- that is secret.  But a guy who shoplifts at Target, that’s everybody’s business.

Recently the Equal Employment Opportunity Commission (EEOC) went after employers who used arrest records (not convictions) to screen potential employees.  BMW and Dollar General were sued for using arrest records to illegally deny jobs to fire African-Americans (btw both companies were also illegally using data to fire employees). http://www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm

Let’s hope the threat of investigations, lawsuits and protracted litigation will force employers to follow basic civics.  The accused are entitled to the presumption of innocence until their guilt has been proven beyond a reasonable doubt.

For those who want something more advanced on the subject, the U.S. Supreme Court opinion in Coffin v. United States (1895). http://constitution.org/ussc/156-432.htm 

It’s time to treating bail for what it is, a promise to return to court, and set it with the thought in mind that we should be jailing people who have been convicted of crimes not those who are simply accused. 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

DUIs, Breathalyzers, PBTs and Refusals

How will the police prove you are drunk in a DUI arrest? Police officers are trained to note the following "symptoms of intoxication" in their affidavits of probable cause:

Flushed face; red, watery, glassy and/or bloodshot eyes; odor of alcohol on breath; slurred speech; fumbling with your wallet trying to get license; soiled, rumpled, disorderly clothing; and being combative, argumentative, jovial or any other "inappropriate" attitude are all duly noted in DUI arrest affidavits.  The problem with the foregoing is they lack baseline measurements.  You may in fact have a flushed face and bloodshot eyes.  But if you are an asthmatic suffering through allergy season, you might have red eyes and a flushed face morning, noon, and night with a Blood Alcohol Content of 0.00%.  A double shift in a kitchen restaurant where you worked as a bar back may make to look like a wreck and have you reeking of the smell of rum, bourbon, and beer; but again your BAC may be zero point zero zero percent.  Without knowing anything about you, all of the above “symptoms” are sneezes looking for a flu diagnosis.

Do the police know this?  Yes, yes they do.  When a police officer determines you may not be driving at your best, he needs a “fool-proof” way to delineate whether you are just tired, sick, etc or if you are driving under the influence.  How does he do it?  The Officer will use a Field Sobriety Test or FST for short.

He simply asks you to step out of your car.  Then he will ask you to perform a number of tasks. The National Highway Traffic Safety Administration (NHTSA) has developed a Standardized Field Sobriety Test (SFST).  The three tests of the SFST are: Horizontal Gaze Nystagmus (HGN),Walk-and-Turn (WAT), and One-Leg Stand (OLS).  The science behind all three tests is functionally a coin flip.

In Pennsylvania, our Courts think the Horizontal Gaze Nystagmus is junk science, so we are stuck with two acrobatic stunts that quite frankly were not part of the Pennsylvania driver’s test and have little or nothing to do with your ability to drive safely under any conditions.  Throw in a slanted shoulder by the side of the road, with red and blue lights flashing in your eyes, and traffic whizzing by and you can understand why the Field Sobriety Test failure rate is in the upper 90s, percentage-wise.  So when you stagger when exiting your vehicle, sway on your feet, leaning on your car for support, fail to comprehend the officer's questions, and stumble while walking (all explainable by uneven road surfaces, lateness in the evening, and the distraction of the glare of police lights and being in close proximity to fast moving traffic), it makes sense that the police officer is now reporting that you are disoriented as to time and place and show an inability to follow directions or to "divide attention".

Say, you were weaving a bit on Route 3 in Delaware County and driving 10 mile per hour under the speed limit (both actual indicia of drunkenness).  It’s after midnight and you are tired.  The police officer pulls you over and you fail to successfully perform the OLS and WAT by the side near Barnaby’s (where the road curves and the shoulder in beveled away from the road to reduce puddling when it rains).  If you drank earlier that evening, the PBT is going to get you.  If you weigh 180 pounds, three drinks may make you legally drunk.  So, here comes the PBT.  

The police officer asks you to blow into a tube attached to a thing that looks like a walkie-talkie.  You’ll blow and blow.  He’ll keep telling you to blow harder and harder.  It’s very tiring.  Never mind that Pennsylvania Courts do not view the PBT as accurate or reliable.  Like the HGN, it’s a bald-faced attempt to create probable cause (based upon nothing other than a guess that it might work --- you know like deciding something important by flipping a coin) to arrest you for DUI.

As they say in poker, here is where the hanger comes into play.  The police may not have enough to arrest you for DUI based upon your driving (or if you pulled over to sleep it off – not driving), so they rely on the FST.  The Field Sobriety Test is the probable cause to have you submit to a test of your blood, breathe or urine.  And, the PBT (usually done last) is the icing on the cake.  The cop gets a reading for the alcohol in your breathe ---it’s time for the real thing.  Either you go to the hospital for a blood draw or the police station for a breathalyzer test.

Pennsylvania’s Implied Consent Statute compels you to cooperate in this endeavor or lose your license for a year.  Anything other than a “yes” to a request for this testing is a refusal.  (Most police officers in Pennsylvania are very cool in this regard, they will ask you many, many times before giving up.) 

Problem is you just did a breathalyzer test, didn’t you?  At least, you think you did.  No, all you did is give the police a lot of reasons to get you to submit to a breathe or blood test.  So you might refuse.  It is not uncommon for a person to be told to blow into the PBT multiple times or to blow for more than a minute (it’s a long time, trust me).  So, you refuse and your trouble doubles.

If you decline to take a Field Sobriety test, the Police are stuck with your driving patterns before the traffic stop.  If you recall, you weaved a bit and were driving 35 m.p.h. in a 45 m.p.h. or so zone.  If the police knew they were unlikely to get you to perform a Field Sobriety Test, what do you think their chances would be establishing probable cause for a DUI? 

I read a lot of Affidavits of Probable Cause for DUI arrests.  In the vast majority of cases, more ink is devoted to what you did after exiting your vehicle for the Field Sobriety Test than why the police stopped you initially.  The Field Sobriety test is designed for failure, in my opinion, and just bolsters the police officer's probable cause to get a Breathalyzer or Blood Test. 

When you hand your license, registration and proof of insurance over and the officer asks if you have been drinking, reply as follows.  "Officer, I have given you all the required paperwork.  You may ticket me if you wish.  I will not answer any questions I am not required to answer nor perform any test I am not required to perform.  If you suspect me of DUI, I will comply with the Implied Consent Statute and nothing else." 

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

"Unforgiven", vigilantism and victim's rights

The final stand-down between Little Bill (Hackman) and Munny (Eastwood)

"Unforgiven" may be the last classic western movie ever made.  A combination of a Hollywood taste for realism (Cowboys in the "real" Old West were mostly Black or Mexican) and the lack of ensemble Western actors (From the 1940s to the 1970s, hundreds of Westerns were made plus dozens of TV series during the same period) are key elements of this trend. 

In "Unforgiven", a group of prostitutes in Big Whiskey, Wyoming, led by Strawberry Alice, offer a $1,000 reward to whoever can kill Quick Mike and "Davey-Boy" Bunting, two cowboys who disfigured Delilah Fitzgerald, one of their own.  The local sheriff, Little Bill Daggett, a former gunfighter and keeper of the peace, keeps heavy handed order in town (and tries to build himself a home in town as well), is worried about the prostitutes' incentive, as he does not allow guns or criminals in Big Whiskey.  Little Bill gave the two men leniency, despite their crime.  Strawberry Alice’s complains at the outset of the film—“It ain’t fair, Little Bill. It ain’t fair!”

Miles away in Kansas, the Schofield Kid, a boastful young man, visits the pig farm of William Munny, seeking to recruit him to kill the cowboys.  In his youth, Munny was a notorious cold-blooded murderer.  Now a widower with two children, he has sworn off alcohol and killing. Though Munny initially refuses to help with the execution, his farm is failing which puts his children's future in jeopardy; so he reconsiders a few days later and sets off to catch up with the Kid.  On his way, Munny recruits Ned Logan, another retired gunfighter, who reluctantly leaves his wife to go along.

Back in Wyoming, gunfighter English Bob and his biographer, W. W. Beauchamp, arrive in Big Whiskey, also seeking the reward.  Little Bill and his deputies disarm Bob, and Daggett beats him savagely, hoping to discourage other would-be killers.  The next morning he ejects Bob from town, but Beauchamp decides to stay and write about Little Bill Daggett.  The sheriff has impressed Beauchamp with his tales of old gunfights and seeming knowledge of the inner workings of a gunfighter's psyche.

Munny, Logan and the Kid arrive later during a rain storm; they go to the saloon to discover the cowboys' location.  With a fever after riding in the rain, Munny is sitting alone in the saloon when Little Bill and his deputies confront him.  With no idea of Munny's past, Little Bill beats him and kicks him out of the saloon after finding a pistol on him.  Logan and the Kid, who is upstairs getting "advances" on their payment from the prostitutes, escape out of the back window. The three regroup at a barn outside of town, where they nurse Munny back to health.

Three days later, they ambush a group of cowboys and kill Bunting.  Logan and Munny no longer have much stomach for their task.  Logan decides to return home while Munny and the Kid head to the cowboys' ranch, where the Kid ambushes Quick Mike in an outhouse and kills him. After they escape, a distraught Kid confesses he had never killed anyone before and renounces his life as a gunfighter (albeit short-lived).

When Little Sue meets the two men to give them the reward, they learn that Logan was captured by Little Bill's men and tortured to death.  Logan revealed the Munny and the Kid as his two accomplices.  The Kid heads back to Kansas to deliver the reward money to Munny and Logan's families.  Munny drinks half a bottle of whisky and heads into town to take revenge on Little Bill.

That night, Logan's corpse is displayed in a coffin outside the saloon.  Inside, Little Bill Daggett has assembled a posse to pursue Munny and the Kid.  Munny walks in alone and kills Skinny Dubois, the saloon owner and pimp.  After some tense discourse, Munny orders everyone out before stopping Little Bill from reaching for his pistol.  

Bill isn’t a coward, though, and instructs the others to shoot down Munny as soon as he uses his last barrel on Bill.  An empty click is heard.

“Misfire,” cries Bill—but Munny simply pulls his pistol out and cold-bloodedly guns down every man who poses a threat, including Bill.  The room clears out and Munny strides to the bar for a chaser.  After Munny’s exchange with Beauchamp, who then flees, we see that Little Bill isn’t dead and that he’s preparing to shoot Munny.  Bill cocks his gun; Munny hears the sound, turns, and pins Bill’s wrist to the floor with his boot.

Bill curses Munny as he stares up at Munny’s shotgun, which is now aimed point-blank at his head, and says, “I don’t deserve this—to die like this.  I was building a house.”

“Deserve’s got nothin’ to do with it,” Munny says just before he blows Bill’s head off.

Munny threatens the townsfolk before finally leaving town, warning that he will return if Logan is not buried properly or if any prostitutes are further harmed.

The movie ends, people clap, they tell their friends what a great movie it is.

Let's see, Quick Mike and Davey-Boy (the two cowboys who cut up Delilah), Ned Logan (beaten and tortured to death by Daggett and his men), Skinny Dubois (who you would think would have been the guy to kill the men who cut up one of his valuable "employees"), Daggett's posse who are readying to hunt down Munny and the Kid (five in all), and Little Bill Daggett (the crooked sheriff with the crooked house) are all dead.   

Ten people dead versus a disfigured woman.  Vigilante justice versus a flawed legal system.  Nope, if we call it "Victim's Rights", we can clap at the end. 

If you to see how bad this approach is, I recommend another Western - The Oxbow Incident. http://www.imdb.com/title/tt0036244/ 

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

 

My Cousin Vinny and how not to hire a criminal defense attorney.

Vinny Gambini proudly carries his box of evidence after he "finesses" District Attorney Jim Trotter into giving him all of the evidence.

"My Cousin Vinny" is a very funny movie and it’s one of few films about lawyers and trials, I really enjoy.

While driving through the fictional Beechum County, Alabama, two friends Billy Gambini and Stan Rothenstein accidentally neglect to pay for a can of tuna after stopping at the “Sac-O-Suds” convenience store.  After they leave the store, the clerk is shot and killed, and Billy and Stan, who match the descriptions of the murderers given by witnesses, are then pulled over and detained in connection with the murder.  

Due to circumstantial evidence and a series of admissions based on the boys’ belief that they have been detained merely for shoplifting, Billy ends up being charged with murder, and Stan is charged as an accessory.  The pair call Billy's mother, who tells her son that there is an attorney in the family, Billy's cousin, Vincent LaGuardia "Vinny" Gambini, who travels to Beechum County accompanied by his fiancée, Mona Lisa Vito.  Unfortunately, although he is willing to take the case; Vinny is a personal injury lawyer from Brooklyn, New York, newly admitted to the bar (after six attempts and six years) with no trial experience, who worked his way through law school as a mechanic.

After going hunting with the District Attorney, James Trotter III, Vinny believes he has "finessed" Mr. Trotter into producing all of his files to Vinny to prepare for trial.  When Vinny returned to the hotel room with a box of files, he has this exchange with his fiancée.

Mona Lisa Vito:  Don't you wanna know why Trotter gave you his files?

Vinny Gambini:  I told you why already.

Mona Lisa Vito:  He has to, by law, you're entitled.  It's called disclosure, you dickhead! He has to show you everything, otherwise it could be a mistrial.  He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises.

[Vinny has a blank look on his face]

Mona Lisa Vito:  They didn't teach you that in law school either?

Vinny is extremely inexperienced.  Not only is he lost of the rules of criminal procedure (every state has a specific set of rules for how a criminal case will proceed through the courts), Vinny apparently knows nothing about discovery either.  (Embarrassingly, he probably is not getting the best results for his clients in his personal injury practice). 

Too often, attorneys take on DUI cases and criminal cases with no real knowledge of how to get the evidence you need from the prosecution.  The reality is that although fifty years ago, the United States Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that the government must disclose to the defense all information favorable to the accused.  This obligation -- which applies to both the determination of guilt and the imposition of sentence -- is too often ignored.

As a practicing criminal defense attorney, I do not trust the government to give me everything.  Not only do I make informal and formal requests for discovery, I question in court why certain essential pieces of discovery were not produced. 

Once in the Delaware County Common Pleas, I had filed a motion to produce more Brady material and was hitting a roadblock with the DA’s office.  The case was very serious and my client was charged with numerous felonies and misdemeanors and I had been handed only 30 pages of discovery, most of which was only my client’s criminal history (a defendant’s criminal history is not admissible evidence for trial).

The district attorney advised the Court that they had given me everything in their files.  My response was “The Commonwealth is being very disingenuous here.  I did not request everything in the District Attorney’s possession, I asked for all the Brady material in the Commonwealth’s possession.  I should not have to subpoena police files because the DA decided they do not need to have it in their file right now.  They need to “get it”, especially if they are going to rely on it at trial.  Otherwise, I may ask the Court to preclude the introduction of any evidence not produced to me as of today, if it was already in the Commonwealth’s possession before today.”

After a very noisy sidebar (where the Judge, the DA and the defense attorney speak away from the bench), the Commonwealth quickly agreed to produce “everything” to me.  And, lo and behold, I had in my possession mitigating evidence that lead a plea agreement on substantially less serious charges.

If you are charged with a crime, even a DUI charge, do not simple go to an attorney who does criminal cases along with his estates practice, his personal injury practice, his real-estate practice or whatever else.  You need an experienced criminal defense attorney to ensure that the Commonwealth has sufficient evidence to prove your guilt beyond a reasonable doubt before you make any decisions.

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

A quick primer on Traffic Stops

Always keep your hands in view, 10 and 2 o'clock

Ask anyone who operates a motor vehicle whether they or someone they know has been stopped for a traffic violation and the chances are pretty good that they will say they have.  The reality is that traffic stops are relatively common on public roadways, and you may be subject to a stop yourself one day.

If you are stopped by a police officer for a traffic violation, keep in mind the following tips to increase your chances of avoiding a citation and to make the traffic stop safe for you and the officer:

  • Slow down and safely pull over as soon as possible.  You do not need to pull over in 5 seconds.  By signaling you are pulling over and substantially reducing your speed, the officer will know you are looking for a safe spot to stop.  Wide shoulders, parking lots or a less traveled side street are good choices.
  • Remain calm.  Keep in mind that you may have committed a minor traffic violation which you are unaware of or the officer may have pulled you over because there is a problem with your vehicle.
  • Turn off your vehicle engine.  If you are stopped at night, turn your dome light on. 
  • Remain in the driver's seat with both hands clearly in sight on the steering wheel.  10 and 2 o’clock.  Do not start looking for your license, registration and insurance right now.  Fidgeting makes police officers nervous.
  • DO NOT exit your vehicle unless you are instructed to do so by the officer.
  • Be courteous and non-confrontational.  You should comply with the officer's request to see your driver's license, registration, and proof of insurance.  If these documents are in your glove box or some other location, inform the police officer of their location and follow the officer's instructions for retrieving the documents.  I strongly recommend your get a visor clip to hold a duplicate of your license and copies of your registration and proof of insurance.  As in, “Officer, my documents are in the visor clip above my head may I hand them to you.”  No reaching, searching, grabbing or twisting in your seat --- just, “Here is the paperwork you want, Officer.”
  • Listen carefully to the officer.
  • Remain polite and use your manners to respond properly to the officer's commands. Do not challenge the officer.  This does not mean you must agree with him, but it does mean there is no reason to argue.  A police officer is not going fight with you over “Officer, I believe I came to a complete stop back there.” versus “What do you mean I blew the stop sign?!?!!” which will piss him off.
  • If you do not wish to answer any questions until you have spoken with an experienced criminal defense attorney that is your right. 
  • If you are issued a ticket that requires your signature, sign it.  This is not an admission of guilt.  You are merely acknowledging that you received the ticket.
  • Ask for the officer's name and badge number.
  • Determine if you can leave.  You have the right to terminate an encounter with a police officer unless you are being detained or arrested.  If you are unsure, ask the officer.  This is how you ask.  “Thank you, Officer.  May I leave now?”  If he is non-committal, you should say.  “Am I free to go, or am I being detained?” Until you are told you are free to go, keep asking whether you are free to leave.

What Should I do if the Police Car is Unmarked?

Many police departments use both marked and unmarked patrol cars for conducting traffic stops.  This is done to remind drivers that any vehicle may be driven by a police officer, and therefore drivers should always obey traffic laws.  In some cases, however, the driver of the unmarked vehicle attempting to pull you over could be someone pretending to be a cop for the purpose of carrying out an illegal activity.  Impersonating a police officer is illegal.  

If you are skeptical about the vehicle that is attempting to pull you over because it is unmarked and you cannot identify the driver of the vehicle, you should:

  • Turn on your four-way hazard lights to notify the officer that you are complying with his or her request to pull over.  Do not slow down to a complete stop unless you are in a well-lit and well-populated area;
  • If you have a mobile phone, call 911 and ask the dispatcher to verify that it is an actual police officer attempting to pull you over.  This may be done by verifying your vehicle description and your location.  In some states, there may be a special number posted along the roadside that will connect you directly to the state's highway patrol.  Do not get off the 911 call until they verify who is behind you;
  • With your hazard lights turned on, drive to the nearest well-lit and well-populated area;
  • Attempt to attract the attention of a uniformed police officer.  If you contact 911, request a uniformed vehicle come to your location;
  • Once stopped, turn on your interior dome light as a signal for the officer to do the same;
  • If the unmarked vehicle is operated by an officer wearing plain clothes, you may request that a uniformed officer respond to the scene.

Do I Need a Lawyer for My Traffic Violation?

Depending on the circumstances of the stop and the kind of traffic violation you are cited with, you may wish to fight your traffic ticket in court.  You should speak with an experienced criminal defense attorney immediately to learn more about your rights and to determine what defenses may be available.  Remember, you are to be treated with dignity and respect by the police officer.  If you believe that you have been treated unfairly, you need to present your case in court.

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

Should I take a test if the police stop me for DUI in Pennsylvania?

This issue comes up so often that I thought it prudent to address it. If you’re pulled over in Pennsylvania and the police think you may be under the influence, what are your rights?

There are three types of tests that the police can give you. The first two you can refuse without terrible consequence. If you refuse the third type, you’ll lose your license for a year and often still be charged with DUI. If you’re then found guilty of DUI you’ll lose it for another year (assuming it’s a first offense DUI, even longer if you have previous convictions).

The first type of test is the standard sobriety test. These can be walking a straight line, the walk and turn test, the stand on one leg test, the alphabet backward test, the follow the pen with your eyes only test, and many others. These roadside tests can be refused with no official consequence and you probably should refuse them if you’ve been drinking or if you may have recreational or prescription narcotics in your blood system from current or earlier use.

The second type of test is a portable breath test. Many officers carry these portable machines that they can get you to blow into on the side of the road. These tests have been deemed inaccurate by Pennsylvania courts and their results are NOT admissible in court. You can refuse this test as well without official consequence.

The third type of test is an official chemical test. This can either be a blood test drawn by a phlebotomist at a hospital or other location, or it can be a breathalyzer machine set up at a roadside checkpoint or back at the police station. These tests cannot be refused under PennDOT policy. If you do refuse it, your license will automatically be suspended for one year, and that’s before any suspension you might suffer as a result of potentially being charged and convicted of traffic or DUI offenses.

Just to be clear what a refusal is, as this is often a contentious issue. Anything you say other than the word ‘yes’ can be considered a refusal by the police.

If you or someone you’re concerned about has been stopped for or charged with DUI (driving under the influence) in Philadelphia, Delaware County, Chester County, Montgomery or Bucks County, PA, it is critical that you contact my office immediately. Every day I see people in court get harsher punishments than necessary for DUI because their lawyers do not have the experience to understand the intricacies of the DUI laws.  Often these lawyers scramble up to me to ask for help at the last minute but by then it’s often too late. Make sure you’re represented by an experienced criminal defense attorney if you’ve been charged with any crime in the Philadelphia area.

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

Philadelphia Area Traffic Tickets – Is It Worth Hiring A Lawyer?

No one likes that feeling you get in the pit of your stomach when you see those flashing blue and red lights behind you in the rear view mirror.

The vast majority of drivers violate the driving code in one way or another every time they get in their car, whether it’s speeding, not stopping completely at a stop sign, not signaling a lane change, or any one of dozens of other possible infractions.

So what do you do after you’re issued a ticket? First, you need to understand what you’re being charged with and what the repercussions of paying the ticket might be. My traffic ticket practice is part of my larger and well known criminal defense practice. While most people don’t consider traffic tickets to be crimes, they are dealt with the same way. Most of the calls that come into my firm are from people that paid their tickets, some suggesting that the officer promised there would be no points. I get the call after the client gets a letter from PennDOT saying that points have been assigned and they realize their insurance rates are going to increase dramatically.

First, you need to realize that, contrary to popular belief, the police are under no duty to tell you the truth during a traffic stop. In fact, they can lie right to you about the ticket itself if they think it will end the stop without a confrontation. Now, I have a good relationship with many officers, and the vast majority are actually good guys who work hard on the job and deserve our respect and praise, but there are a few that are less integrity driven.

The bottom line is that it is worth talking to an experienced and knowledgeable traffic attorney before deciding what to do with your ticket. The benefit of working with a firm as serious as mine is that I do not have time or energy to take money from people unless I know that I can help them. 

Call me for a quick consultation. Let me immediately determine based on the charge, the facts, the officer and the judge, whether I believe it is worth hiring my firm.

All my traffic cases are handled for a flat fee, and most for less than $375.

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

 

Proving one's Innocence is different than going free

Dr. Richard Kimble and US Marshall Samuel Girard at the end of The Fugitive (1993)

At the end of the movie "The Fugitive", Sam Girard asks for the keys to the handcuffs that bind the hands of Dr. Richard Kimble.  It takes a moment to say, "Okay, he still has to have his murder conviction overturned.  How hard is that?"

It is not easy.  First, Dr. Richard Kimble is not simply still convicted of First Degree Murder under Illinois Law (720 ILCS 5/9-1), he has been sentenced to death for that conviction.  While Dr. Charles Nichols and Frederick Sykes (the one-armed man) may be culpable for the crime, they have not been charged.

What happens after the credits roll and you leave the theater.   If his attorney, Walter Gutherie, is good and the US Marshalls let Kimble make a phone call to his lawyer right away; when he gets to jail (most likely Chicago City jail), he could potentially be freed in a day or two. 

Walter Gutherie will need to file a Writ of Habeas Corpus contending that new evidence has been found that is exculpatory (and that the evidence may undermine the conviction).  He will need to have it reviewed by a judge and the judge may also order a hearing on the matter before he grants (or denies) the petition for a Writ of Habeas Corpus.  In this case, the US Marshall's Office might prepare an affidavit stating in the course of hunting for the fugitive Dr. Kimble, they undercovered a massive amount of evidence implicating two others, Dr. Charles Nichols and Frederick Sykes, for the murder of Kimble's wife; if Walter asked them to do so (I would ask, nothing better than having law enforcement on your side when you are arguing that you've been unjustly convicted.) 

If the judge grants the Habes Corpus petition, Dr. Kimble is ordered released from custody.  A Habeas Petition is pretty powerful, but it does not simply end a case; it generally only releases one from custody.  His problem is not over, however he still needs to be retried or the State of Illinois can discharge the case or Walter Gutherie can make a motion to dismiss.  Generally, when the true perpetrator has been caught, the State will simply move to nolle prosse or discharge the case.

By the way, the biggest question in "The Fugitive" is how is the escape of a convicted murder (and others) from Chicago, Illinois being transported on an Illinois state prison bus from Chicago, Illinois to state prison (death row) somewhere in the State of Illinois the jurisdiction of US Marshalls.  Well, its not, and until there is evidence that Dr. Richard Kimble or other escapees crossed state lines, it would never be their jurisdiction (and arguably if were to become their jurisdiction, it would take much longer than 90 minutes).

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

 

 

Winston Wolf, Jules, Car Maintenance and the Law

Pulp Fiction is one of my favorite films and Winston Wolf is its most alluring character.  He's a fixer; in his own words, he "solves problems."

Faced with a dead body in a car, the Wolf need only solve one problem --- move a dead body in a car from Toluca Lake to Monster Joe's Truck and Tow in North Hollywood in less than an hour.  He has two options: drive the car there (first cleaning the blood and the tiny pieces of skull from inside the car) or have the car towed, probably by Monster Joe's Truck and Tow.  The problem with number two is obvious, it's 8:30-ish in the morning and no doubt everyone in the neighborhood will notice a tow truck removing a car from Jimmie's garage.  Then, the Wolf has the conversation

THE WOLF: About the car, is there anything I need to know? Does it stall, does it make a lot of noise, does it smoke, is there gas in it, anything?

JULES: Aside from how it looks, the car’s cool.

THE WOLF: Positive? Don’t get me out on the road and I find out the brake lights don’t work.

JULES: Hey man, as far as I know, the motherfucker’s tip-top.

THE WOLF: Good enough, let’s go back to the kitchen.

In criminal law, the magic word for a traffic stop is reasonable suspicion not probable cause. In US v Gooch, the United States District Court for Western District of Pennsylvania made it clear that traffic stops need only require reasonable suspicion. 2012 U.S. Dist. LEXIS 182833 n. 7 (W.D. Pa. December 28, 2012) http://fourthamendment.com/blog/index.php?blog=1&title=w_d_pa_reasonable_suspicion_is_the_stand&more=1&c=1&tb=1&pb=1 

In Pennsylvania, Section 6308(b) of the Vehicle Code codified this standard decades ago. Section 6308(b) authorizes Pennsylvania police officers to pull over vehicles based upon "reasonable suspicion that a violation of [of the Vehicle Code] is occurring or has occurred."

A smoking car, a bad muffler, a noisy exhaust pipe, no brake lights, broken left or right blinkers or only one operational head light can lead to a traffic stop (Note: In Pennsylvania, you are legally required to keep your headlights on when your windshield wipers are operating.)

Virtually everything you do in a car is exposed to public view and will likely draw police scrutiny.  A loud sound system, heavily tinted windows (if you tint your windows, you are asking to be stopped so the police can see if the tint is too dark), passengers hanging out the windows, and even sleeping in your car will draw police to see what's going on.

Free advice: Your car is a very big window that everyone can look into, so always keep any private items that you don't want others to see out of sight. Legally speaking, police do not need a search warrant in order to confiscate any illegal items that are in plain view.  If your car is not 100% legal, you may want to rethink what you bring with you in the car.

Oh yeah, and transporting a dead body in your trunk is totally illegal --- starting with 18 Pa. Cons. Stat. § 5510, abuse of a corpse. 

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

 

What to do when stopped by Police on the Streets?

In any given public police encounter, with a few notable exceptions, the below rules will help protect your civil rights and improve your chances of leaving safely—so you don't have to be a legal expert to say and do the right thing.

1) Keep Your Private Items Out of View


Use your common sense: Always keep any private items that you don't want others to see out of sight. Legally speaking, police do not need a search warrant in order to confiscate any illegal items that are in plain view.

2) Be Courteous & Non-Confrontational


If you are stopped by a police officer, remain calm. Don't ever -- under any circumstances -- talk back or raise your voice to a police officer. You have nothing to gain -- and everything to lose -- by escalating the hostility level of the encounter.

Even if the officers are being belligerent to you, it's always in your best interest to remain calm, courteous and non-confrontational.

3) Determine the Reason You Have Been Stopped

Police may initiate a conversation with any citizen for any reason, however they may not detain you without "reasonable suspicion" that you are engaged in criminal activity. Ask the officer: "Why am I being stopped?" If the officer does not indicate that you are suspected of a specific crime, then this is a casual stop and you should be allowed to terminate the encounter at any time.

If the officer indicates that you are suspected of criminal activity, you are being detained. At this stage, the officer is attempting to find evidence on which to establish probable cause necessary to arrest you. Steps #4, #5, and #6 become extremely important at this point.

4) Just Say "No" to Warrantless Searches

Warning: If a police officer asks your permission to search, you are under no obligation to consent. The only reason he's asking you is because he doesn't have enough evidence to search without your consent. If you consent to a search request you give up one of the most important constitutional rights you have—your Fourth Amendment protection against unreasonable searches and seizures.

A majority of avoidable police searches occur because citizens naively waive their Fourth Amendment rights by consenting to warrantless searches. As a general rule, if a person consents to a warrantless search, the search automatically becomes reasonable and therefore legal. Consequently, whatever an officer finds during such a search can be used to convict the person.

Don't expect a police officer to tell you about your right not to consent. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In addition, police officers are trained to use their authority to get people to consent to a search, and most people are predisposed to comply with any request a police officer makes. For example, the average motorist stopped by a police officer who asks them, "Would you mind if I search your vehicle, please?" will probably consent to the officer's search without realizing that they have every right to deny the officer's request.

If, for any reason you don't want the officer digging through your belongings, you should refuse to consent by saying something like, "Officer, I know you want to do your job, but I do not consent to any searches of my private property." If the officer still proceeds to search you and finds illegal contraband, your attorney can argue that the contraband was discovered through an illegal search and hence should be thrown out of court.

You should never hesitate to assert your constitutional rights. Just say "no!"

5) Determine if You Can Leave
You have the right to terminate an encounter with a police officer unless you are being detained under police custody or have been arrested. The general rule is that you don't have to answer any questions that the police ask you. This rule comes from the Fifth Amendment to the U.S. Constitution, which protects you against self-incrimination. If you cannot tell if you are allowed to leave, say to the officer, "I have to be on my way. Am I free to go?"

If the officer says "Yes," tell him to have a nice day, and leave immediately. If the officer's answer is ambiguous, or if he asks you another unrelated question, persist by asking "am I being detained, or can I go now?" If the officer says "No," you are being detained, and you may be placed under arrest. If this is the case, reassert your rights as outlined above, and follow Rules #6 and #7.

6) Do Not Answer Questions without Your Attorney Present

There is no reason to worry that your failure to answer the officer's questions will later be used against you. The truth is just the opposite: Anything you say can, and probably will, be used against you.

In just about any case imaginable, a person is best off not answering any questions about his involvement in anything illegal. Assert your Fifth and Sixth Amendment rights by saying these exact words: "Officer, I have nothing to say until I speak with a lawyer."

*Remember- If you do choose to answer any of the officer's questions, always be honest. Police are not easily tricked and will often become hostile if they feel disrespected. If you feel it is best not to answer truthfully, then don't say anything at all.

7) Do Not Physically Resist

If the police proceed to detain, search, or arrest you despite your wishes—do not physically resist. You may state clearly but non-confrontationally: "Officer, I am not resisting arrest and I do not consent to any searches." Or you may assert your rights by simply saying nothing until you can speak with an attorney.

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

10 WAYS TO AVOID A DUI CONVICTION!

It goes without saying that the best way to avoid a DUI conviction is simply not to drive under the influence. But if you have been drinking, and you do get stopped, here are several tips for minimizing the likelihood of it leading to a DUI conviction:

1. Find A Safe Place To Pull Over If The Officer Lights You Up.

One of the first things the DUI officer looks to is your judgment in choosing a place to pull over, and how well you negotiate your stop. Try to relax. Don't stop in traffic. Drive ahead slowly until you find a safe place, then signal and slow to a stop.

2. Keep Your Hands On The 10 and 2 Positions Of The Steering Wheel.

Understandably, every officer worries about someone pulling a weapon at a traffic stop. Even the most innocuous-looking driver could be armed and dangerous. Alleviate the officer's worry by keeping your hands on the steering wheel-where the officer can see them-until he approaches the car. Don't go for your license and registration until he instructs. He'll appreciate the courtesy, and the encounter will get off to a better start. (If you keep your registration or insurance card in the glove compartment -- tell the officer first that is where it is and then ask if you can retrieve it)

3. Do not To Make Any Unnecessary Statements.

You must tell the DUI officer your name and provide documents such as your license, registration and insurance information. But the DUI officer will ask you whether you've been drinking, what you drank, how much, when, etc. You have no obligation to answer these questions, and you generally should not. Politely tell him, "I've been advised never to answer these sorts of questions and I don't wish to do so." Almost always, the answers you give will hurt, not help, your situation.

If you have been drinking, the worse thing you can do is to lie and say you've had nothing to drink. The DUI officer will know you're lying and your dishonesty may be used to impeach your credibility later of the case gets to court. Again, simply decline to answer the questions at all.

4. Decline The Field Sobriety Tests.

Though the DUI officer may not inform you that you have a right to refuse to take these tests, you do. Generally, you should decline to take them. The field sobriety tests usually only hurt your DUI case. In DUI reports, the officers tend to exaggerate your every mistake and while overlooking all that you do correctly. The officer may paint you as having failed the tests even if you performed them reasonably well. He probably expects you to perform them perfectly, a feat many completely sober people can't even accomplish.

5. Decline The Preliminary Breath Test (PBT) Test.

The Preliminary Breath Test (PBT) test is a handheld device the DUI officer may ask you to blow into right at the scene of the DUI traffic stop. Officers are supposed to advise you of your right to refuse the test- an advisement they frequently fail to give. Generally, you should refuse it. The DUI PBT devise is totally unreliable. It often gives falsely high readings that are inadmissible in Pennsylvania Courts. Better not to take it.

6. DO NOT REFUSE A CHEMICAL TEST AFTER ARREST.

If the officer does arrest you for DUI, he will make you take a breath or blood alcohol test. Under Pennsylvania's implied consent law, this one you have to take. No one will physically force you to take it, but a refusal makes the consequences of a DUI more severe, including possibly a one-year suspension of your Pennsylvania drivers license.

7. Make An Itinerary Of Events Leading To The Arrest.

Your DUI defense lawyer will need to establish a detailed timeline of everything you did in the hours preceding the DUI arrest: what you drank, where, with whom, when, etc. Write out this itinerary as soon as possible, while it's still fresh in your mind. Also, save any receipts from purchases of food and alcohol, and make a list of any witnesses who were with you up until the arrest.

8. Contact Someone Right Away.

If you get arrested for DUI, call a friend or family member from jail as quickly as possible. Allow a third person to hear you speak logically and coherently, and to hear whether your speech is in fact "slow and slurred" (as the DUI officer will probably allege).

9. Be Polite.

Yes, I advise you not to answer certain questions, not to take the field sobriety tests and not to take the PBT test. Nevertheless, you should always be polite, courteous and cooperative with the officer-even if he doesn't show you the same respect. (In general, the police cannot object to you saying "Officer, I know you have a job to do, but I must protect my legal rights. I will not answer any questions for which I have the right to speak with an attorney nor will I comply with any requests that i am not legally required to do.")

Remember, the police officer has great discretion out there. He can simply let you go if he chooses. He can let you call someone to come pick you up. If he does arrest you for DUI, he can leave your car at the scene, rather than towing it. He can go easy on you in the DUI report. Always try to be a pleasant, friendly, and non-confrontational with the police officer as much as possible, i.e. you want the officer to view you as a friend, not as an enemy, a danger, a jerk or a jackass.

If you are arrested, you will need an attorney right away. You will want an experienced DUI attorney.

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

 

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin Mark Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Mark Wray is not licensed to practice.

WHAT KIND OF CRIMES GET COMMITTED AT CASINOS OR WHY "FINDERS KEEPERS, LOSERS WEEPERS" DOES NOT APPLY IN PENNSYLVANIA?

When patrons of the casino get upset and make a scene, the casino will have them charged and arrested for disorderly conduct. 

If you get thrown out of a casino and try to return, you’ll be charged with trespass.  If you’ve been banned permanently, you’ll get charged with felony criminal trespass.

If you write a bad check, you will be charged with a crime.  It is not uncommon for casino patrons to find that a bounced check they wrote has now resulted in an arrest warrant for them.  If you fail to pay a casino marker, the casino can (and will) come after you with criminal charges. 

You decided you would not get caught passing counterfeit money there because it’s dark.  First, everything gets filmed at a casino.  Second, they check bills with those pens anyway.  Third, it’s a federal offense.  If you manage to get by number one and two, the casino will still find you. 

They use face recognition software, amazing record keeping (think casino member cards), credit card and ATM records, and cameras in the parking lot (yeah jackass, they know the license plate of every car at the casino) and best of all, the State Police help them (Pennsylvania Troopers are at the casino 24 hours a day enforcing state gaming law).  And in case you missed number three, the US Secret Service will also be hunting you down.

At the end of the day, theft crimes are commonly charged against casino patrons.  While stealing chips or chip stacking scams are common charges (Ocassionally a robbery or pickpocketing crime happens, but these are actually very rare), the most common theft crime is when someone cashes out a slot machine that did not belong to them or picked up cash or a chip off the casino floor.

“Wait,” you say knowing you’ve done that exact thing.  “It’s finders keepers, right?”

Guess what?  This is the biggest misconception in the law.  Pennsylvania does not have a "found money" doctrine.  In Pennsylvania, lost property goes to the finder, but he must make reasonable efforts to find the true owner:

“A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.”

18 P.S.A. § 3924. Theft of property lost, mislaid, or delivered by mistake.  Cross References. Section 3924 is referred to in section 5552 of Title 42 (Judiciary and Judicial Procedure).

Outside of the casino, you could take it to the police, get a receipt, hope no one ever showed up to claim it, and eventually get it to keep as your own.  Maybe, you place an ad in a newspaper and wait thirty days before you claim it as your own.  Technically, if you take reasonable measures, you can keep it and under 18 P.S.A. § 3924, as long as you take reasonable measures, you have a legal defense.

Problem is at a casino, the only reasonable measure is to give it to the casino.  As stupid as it may seem to say “I found $1.38 on a slot machine” or “I found a $5 chip (or even a $1 chip) on the floor”; it is your only legal choice.  Whether you are at Harrah’s Philadelphia or Parx or Sugarhouse or any other Pennsylvania casino, they have major “high security” technology.  Every table, every slot machine, the outside of the bathroom, the ingress and egress into and out of the casino, and virtually every public area in the casino is being filmed.  To put it succinctly, the casino is going to find the true owner. 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin Mark Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Mark Wray is not licensed to practice.

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Stuart | Reply 30.08.2015 07.58

Good and entertaining "non-advice" - can you do a piece on the terrible, awful behavior of the Cruise part in A Few Good Men?

John Phillips | Reply 27.07.2013 23.18

Awesome blog

David | Reply 26.07.2013 06.33

How very well written and informative, I hope I'll never need to put all this great knowledge to use anytime, but I know a great lawyer if I do!

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I will easily choose you for my lawyer!

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Cool blog....

Karla | Reply 08.06.2013 21.03

I love the movie references....plus great legal insights on WHAT NOT TO DO

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Have you ever heard of a case when a person was charged with felony for forging a prescription for a non-scheduled drug, such as an antibiotic, for example?

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18.10 | 07:00

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