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InvisibleEnlilM
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Ask an attorney * 34
    #15908891 - 03/06/12 02:33 PM (8 years, 4 months ago)

It occurred to me that many of you may have legal questions or issues that you would like answered, but you don't want to pay an attorney.  I have decided to answer whatever legal questions you might have with the following caveats:

1.  I am a licensed attorney who practices in many areas of the law including criminal defense, but I am not YOUR attorney.  This means that you should not be giving me any confidential information that you wouldn't want to give the whole community and anyone else watching.  Keeping it anonymous helps you keep safe and helps me stay within ethical rules.

2.  Law varies from state to state.  If you give me the state you're from, I will try to give you as much specific information as I can.  I can't guarantee the accuracy of anything because there could always be a state in which things are different.  Information I offer should be considered general in nature and might not take local law into consideration.

3.  I will NOT be using Lexis or Westlaw searches to help you.  These services are very expensive, and I can't use them just to give out free advice.  I will, if you so request, point you in the right direction so that you can go to a local law library and start searching on your own.

4.  This thread is not for debating.  If it turns into a debate over who's right and who's wrong, I will simply stop participating.

5.  Free legal advice is sometimes not worth what you pay for it.

Guidelines:

1. In the law, we use a lot of jargon.  We calls these "terms of art."  When I use a term of art in my posts, I will try to put it in quotation marks so that you can look it up for more information if you so desire.  Understand, however, that I often use quotation marks normally, so not everything in quotations is a term of art.

2. If you have multiple questions, ask them in multiple paragraphs so I can separate them when answering.  I'm not exactly the most skilled at using this editor.


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OfflineAll We Perceive
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Re: Ask a defense attorney [Re: Enlil]
    #15912254 - 03/07/12 03:04 AM (8 years, 4 months ago)

If there is weed and bowl sitting in the open in a hotel room on the table and there are 3 people in the room, if no one says anything, is there any way for them to successfully try all 3 as a package?

Let us suppose you secretly record a conversation with a cop and he testifies differently than what actually happens.  Your state requires both parties to be on notice that they are being recorded.  You then try and introduce this tape as impeachment evidence.  Result?


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Edited by All We Perceive (03/07/12 03:07 AM)


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Invisiblet00th
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Re: Ask a defense attorney [Re: All We Perceive]
    #15912535 - 03/07/12 05:56 AM (8 years, 4 months ago)

You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court


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OfflinePandora5a
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Re: Ask a defense attorney [Re: t00th]
    #15912588 - 03/07/12 06:37 AM (8 years, 4 months ago)

What are some of the biggest legal misconceptions you have come across?

How much of Canada/US drug law is similar?

You are caught pulled off for the suspicion of driving while intoxicated. What is the most effective course of action?

Any interesting "loophole" type stories?

What is the best way to find truly "effective" representation without a lot of funds?


Only thing I have been able to gather from a series of uniformed legal guidance is this:

Name, Address, STFU



Thanks!!


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InvisibleEnlilM
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Re: Ask a defense attorney [Re: All We Perceive]
    #15912691 - 03/07/12 07:44 AM (8 years, 4 months ago)

Quote:

All We Perceive said:
If there is weed and bowl sitting in the open in a hotel room on the table and there are 3 people in the room, if no one says anything, is there any way for them to successfully try all 3 as a package?




First, there is no "package" doctrine where people are tried as a package.  Each defendant is entitled to his own lawyer, his own arguments, and his own verdict.  You probably already knew this, but it is an important distinction to keep in mind. 

Of course, sometimes co-defendants are tried in the same trial.  In fact, it is more common than not that they are.  This is an efficiency thing.  In cases where trying the defendants in one trial would unfairly prejudice one or more defendants, the trials can be separated.  This is also true when one person is charged with multiple different crimes.  There are times when the different crimes are tried in different trials as well if need be.  This is called "bifurcation."

This answered your question, but I think what you are really asking is whether all three of them are likely to be charged and tried with possession.  The answer, like many answers in the law, is maybe.

Possession requires that the defendant exercise "dominion and control" over the substance.  If someone has crank in his pocket, he obviously has dominion and control over it.  It is also true, however, that if someone has stashed some weed in the bushes so that he can grab it when a customer comes, he still has dominion and control over it.  Under the dominion and control theory, it is hard for more than one person to have possession.

There is a concept called "constructive possession" which basically says that multiple people can share possession of the substance.  Your example falls into this category.  Similarly, if a car is pulled over and weed is found in the car, everyone in the car has constructive possession of that weed.

There ARE defenses to a constructive possession case, however.  The most effective one is knowledge.  If a person in the hotel room doesn't know it's there or doesn't know it's weed, then they can beat the case.  Lack of knowledge doesn't defeat the constructive possession aspect, but it does negate the "mens rea" required to convict someone.

So...long story short...it is not only possible to convict multiple people for possession...it is routine to do so.  It is also routine to pick the one with the shortest rap sheet and get them to testify against the others.

Quote:



Let us suppose you secretly record a conversation with a cop and he testifies differently than what actually happens.  Your state requires both parties to be on notice that they are being recorded.  You then try and introduce this tape as impeachment evidence.  Result?





If he lies, the tape comes in.  You'll have to lay a foundation, but the tape will undoubtedly come in if he lies.  This is, of course, for a criminal case.  A defendant in a criminal case has a lot more constitutional protection than a litigant in a civil case.  As a result, he can use the tape.

Having said that, you specifically used the word "impeachment."  Even in a civil case, the tape could be used for impeachment.  It just couldn't be used to prove your case.  The distinction between the two may not be apparent to you immediately, but it makes a difference.


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InvisibleEnlilM
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Re: Ask a defense attorney [Re: t00th]
    #15912709 - 03/07/12 07:55 AM (8 years, 4 months ago)

Quote:

t00th said:
You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court




Specifics are nice...What is a "research chemical" as you use the phrase?  Similarly, what are "caps"?  In addition, what are the charges you're trying to beat?

I don't want to sound like a noob here, but I work in the trenches...people don't generally call things by these terms on the street.

I am going to assume that you are talking about a legal substance that can be used to make an illegal substance.  I will further assume that "caps" refers to a finished product that would is illegal.

First, there is no possession charge for legal substances...even if you did have scales, etc.  States do have crimes that amount to possession of paraphenalia, but those aren't strictly possession.  They require proving an intent to use the items for an illegal purpose.

Usually, these types of things are all based on context.  If you're caught driving a rental truck with 400 lbs of pseudoephedrine hidden inside second hand furniture...you're going to have an uphill battle fighting that one.  If you're caught with 10 boxes of sudafed, the state's going to have the uphill battle.

I'm sorry I can't be more specific.  I just am not certain what exactly you are asking.


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InvisibleEnlilM
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Re: Ask a defense attorney [Re: Pandora5a]
    #15912761 - 03/07/12 08:26 AM (8 years, 4 months ago)

Quote:

Pandora5a said:
What are some of the biggest legal misconceptions you have come across?




People generally misunderstand Miranda and how it applies to them.  A vast majority of clients think that they must be read the rights when they are arrested.

In addition, people have a very limited grasp of the 4th and how it protects them against searches and seizures.  Some think a warrant is always needed.  Others think that probable cause is enough to search.  This is a tricky and convoluted part of constitutional law, so it is natural for people not to know all of the details.

I would have to say, however, that the biggest misconception I come across is actually not one my clients have.  It is a public misconception.  There is a significant majority of people who simply see crime as black and white.  They ask me "how can you defend those people?"  Truthfully, it isn't about guilty or not guilty.  It's almost always about shades of culpability.  Usually, a client is guilty of something but almost never everything for which they're charged.  Most of the time, they have a substance problem or a psychological problem...or both.  They aren't "bad" people.  I have only had one client where I sat across from him and thought "this dude is evil."  That is the exception.
Quote:


How much of Canada/US drug law is similar?




I am not qualified to answer that.  When it comes to criminal law in general, the US Constitution plays a huge role in how it plays out.  Canada obviously has its own framework.  I am not really familiar with it.
Quote:


You are caught pulled off for the suspicion of driving while intoxicated. What is the most effective course of action?




Depends on your state and your sobriety.  If you are stone sober (haven't had anything to drink), comply with the officer and be on your way asap.  If you've had anything to drink, that's where it gets a little trickier.

If you're in an "implied consent" state, then you have to submit to a test (usually breathalyzer) either at the stop or at the station or you lose your license for a period of time.  This is completely separate from any DUI charge you may face.  That puts you in a tough place.  If you think you'll pass, you might be tempted to submit to the test so that you can keep your license...but if you're wrong and over the limit...you're fucked.

On the other hand, if you don't submit, then they have to have probable cause and a warrant to force you to give blood for a test.  This takes some time.  Alcohol levels could go down during that time.  Of course, they take this into account in determining what your level was when you were pulled over, but that is much easer to fight than an immediate test. 

Also, alcohol levels can go UP over time in certain circumstances.  For instance, if you had a shot of vodka right before getting in the car, you're not drunk yet...the alcohol isn't in the blood.  If you're pulled over and tested immediately, you'll probably pass.  If you wait 30 minutes, you'll definitely have more alcohol in your blood than you would have.

Time blurs all of it, and the state has the burden of proof.  A good attorney can use the time between being pulled over and being tested to your advantage in many ways.  This is on top of the option of challenging the warrant for lack of probable cause.

Long story short: If no drinking at all, submit.  If you've been drinking, don't submit.  If you're in an implied consent state...be ready to lose your license for a period of time.
Quote:


Any interesting "loophole" type stories?




This isn't really the place for war stories, but I have won many cases based on logical loopholes that I exploited.
Quote:


What is the best way to find truly "effective" representation without a lot of funds?





First, don't underestimate the public defender.  They get a bad rap because they are portrayed as burnouts who don't care, but you'd be hard pressed to find attorneys with more trial experience than public defenders.  Only prosecutors have as much experience.

Hiring an ex-prosecutor or public defender is a good choice too.

The difference between the two is that the one you hire will have less clients at the same time and can probably move your case a little faster because of that.  The public defender will usually do the same things, but it takes a lot longer because you're one of 30-100 active cases he's working.

Hiring a lawyer who was never a prosecutor or public defender is fine if you're planning on taking a plea, but I wouldn't want one for a trial.  The average civil/criminal private practice lawyer does less than one trial a year.  The average PD or DA does 2-4.  Some do many more than that.

In addition, if you are taking a plea, hiring a lawyer probably isn't necessary.  He isn't going to get you any special deal, and you'll have to pay him for it.  In fact, a PD probably has an advantage here because he cuts deals with the same prosecutors day in and day out.  They have a working relationship far more than the private attorney does.

What you DO get with a private attorney is the hand-holding.  You get the guy you can call at any time to discuss your case.  You get him answering your questions and explaining the process in depth...of course..you pay for all of this.


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OfflineGuruBushHippie
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Re: Ask a defense attorney [Re: Enlil]
    #15912804 - 03/07/12 08:50 AM (8 years, 4 months ago)

Got arrested for DWI. The cop took my knife which I willingly handed over. The knife was not involved in the crime in any way. I never got it back. I called the property office and they said there was no record of the knife and that the arresting officer didn't know anything about it. Can I sue?


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InvisibleEnlilM
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Re: Ask a defense attorney [Re: GuruBushHippie]
    #15912835 - 03/07/12 09:03 AM (8 years, 4 months ago)

Quote:

GuruBushHippie said:
Got arrested for DWI. The cop took my knife which I willingly handed over. The knife was not involved in the crime in any way. I never got it back. I called the property office and they said there was no record of the knife and that the arresting officer didn't know anything about it. Can I sue?




Yes, but you will most likely lose.

Obviously, you have the right to have your property back...This is an issue of proof.  If the police report doesn't mention the knife (check this) and the cop says he didn't take it, then you're going to have to prove that he did take it.

To do this, you can testify that he took it.  He will testify that he didn't.  In addition, you will be cross-examined about your sobriety at the time.  This will cut into your credibility as well.  In the end, the judge will have a man who admits to being under the influence at the time saying one thing, and a cop saying the other.  That's not exactly the makings of a solid case.

Besides, the cost of the knife is probably not worth the filing fee and the hassle of court.


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OfflineAlan RockefellerM
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Re: Ask a defense attorney [Re: Enlil]
    #15913072 - 03/07/12 10:54 AM (8 years, 4 months ago)

Quote:

Enlil said:
Quote:

t00th said:
You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court




Specifics are nice...What is a "research chemical" as you use the phrase?  Similarly, what are "caps"?  In addition, what are the charges you're trying to beat?





A research chemical is a drug that has not been scheduled yet.

I am not a lawyer, but I can tell you what happened to me when they found a small bag of jwh-073 in my wallet. This was back when the substance was still legal, and involved local police in California.

The cop asked me what it was.  It had been in there a long time and I didn't remember what it was.  I told him the truth, that I didn't know.  He tested it with narcopouch test kits, and when he used the opiate pouch, it turned yellow.  These tests are notoriously unreliable and I knew this was wrong since I have never been into opiates, but the kit established probable cause so he ran me through the system.  I was arrested for felony possession of a controlled substance and transported to county jail.  It cost $1500 to bail out - Otherwise I would have been in there a couple weeks until I got in front of a judge.  On the way out of jail they took my DNA.  At my first court date the state asked for a continence to test the drugs.  On my second date the state dropped the charge because the substance tested negative for controlled substances when tested with GC/MS.  I never got the 1500 back, and now have a permanent felony arrest record.

I would expect the same thing to happen when busted with any substance which looks like drugs.


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InvisibleEnlilM
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Re: Ask a defense attorney [Re: Alan Rockefeller]
    #15913083 - 03/07/12 10:58 AM (8 years, 4 months ago)

Quote:

Alan Rockefeller said:
Quote:

Enlil said:
Quote:

t00th said:
You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court




Specifics are nice...What is a "research chemical" as you use the phrase?  Similarly, what are "caps"?  In addition, what are the charges you're trying to beat?





A research chemical is a drug that has not been scheduled yet.

I am not a lawyer, but I can tell you what happened to me when they found a small bag of jwh-073 in my wallet. This was back when the substance was still legal, and involved local police in California.

The cop asked me what it was.  It had been in there a long time and I didn't remember what it was.  I told him the truth, that I didn't know.  He tested it with narcopouch test kits, and when he used the opiate pouch, it turned yellow.  These tests are notoriously unreliable and I knew this was wrong since I have never been into opiates, but the kit established probable cause so he ran me through the system.  I was arrested for felony possession of a controlled substance and transported to county jail.  It cost $1500 to bail out - Otherwise I would have been in there a couple weeks until I got in front of a judge.  On the way out of jail they took my DNA.  At my first court date the state asked for a continence to test the drugs.  On my second date the state dropped the charge because the substance tested negative for controlled substances when tested with GC/MS.  I never got the 1500 back, and now have a permanent felony arrest record.

I would expect the same thing to happen when busted with any substance which looks like drugs.




I assume your bail was $15k and you used a bondsman?  Otherwise you should have gotten your bail back.

And to the original asker of the question...That's pretty much how it would go.  You wouldn't be convicted or likely even go to trial, but you might get arrested.



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Edited by Enlil (03/07/12 10:59 AM)


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OfflineAlan RockefellerM
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Re: Ask a defense attorney [Re: Enlil]
    #15913093 - 03/07/12 11:05 AM (8 years, 4 months ago)

Quote:

Enlil said:
I assume your bail was $15k and you used a bondsman?  Otherwise you should have gotten your bail back.






Correct.  I would have bailed myself out but I don't know how to go about withdrawing $15k from the bank while incarcerated.  Is that even possible, or is it necessary to borrow the cash from a friend?


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Re: Ask a defense attorney [Re: Enlil]
    #15913135 - 03/07/12 11:21 AM (8 years, 4 months ago)

Quote:

Enlil said:
Quote:

t00th said:
You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court




Specifics are nice...What is a "research chemical" as you use the phrase?  Similarly, what are "caps"?  In addition, what are the charges you're trying to beat?

I don't want to sound like a noob here, but I work in the trenches...people don't generally call things by these terms on the street.

I am going to assume that you are talking about a legal substance that can be used to make an illegal substance.  I will further assume that "caps" refers to a finished product that would is illegal.

First, there is no possession charge for legal substances...even if you did have scales, etc.  States do have crimes that amount to possession of paraphenalia, but those aren't strictly possession.  They require proving an intent to use the items for an illegal purpose.

Usually, these types of things are all based on context.  If you're caught driving a rental truck with 400 lbs of pseudoephedrine hidden inside second hand furniture...you're going to have an uphill battle fighting that one.  If you're caught with 10 boxes of sudafed, the state's going to have the uphill battle.

I'm sorry I can't be more specific.  I just am not certa
in what exactly you are asking.




sorry let me clarify

by a research chemical i meant an actual drug that may not be scheduled yet. lets say - MXE. and by a cap i meant the pill shell that is used to cap chemicals up for sale. caps = intent of human consumption.

the way i figure it - your riding down the road with 100g of mxe - properly labeled and with nothing on you to make it seem like its for human consumption - your still going to get arrested.

my question is are you going to get off of the charge (possesion, trafficking, whatever it may be) when you go to court.


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Re: Ask a defense attorney [Re: Alan Rockefeller]
    #15913176 - 03/07/12 11:37 AM (8 years, 4 months ago)

Here you must go through a bondsman no matter what.

Can you not get your felony arrest record, prints, and DNA record permanently expunged since the case was dropped? You would be able to do it here with the help of the lawyer. It's well worth the lawyer's fees.


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OfflineAlan RockefellerM
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Re: Ask a defense attorney [Re: naum]
    #15913197 - 03/07/12 11:47 AM (8 years, 4 months ago)

Quote:

t00th said:
the way i figure it - your riding down the road with 100g of mxe - properly labeled and with nothing on you to make it seem like its for human consumption - your still going to get arrested.

my question is are you going to get off of the charge (possesion, trafficking, whatever it may be) when you go to court.





If there is no evidence that you are going to use or represent it as a drug, you would get off.  (in my opinion.  I am interested in what an attorney would say)  But just being arrested for felony drug charges is a harsh punishment in itself.  They treat you like crap and lock you in tiny rooms with 20 other felons.

Quote:

naum said:
Can you not get your felony arrest record, prints, and DNA record permanently expunged since the case was dropped? You would be able to do it here with the help of the lawyer. It's well worth the lawyer's fees.




That is a good question for an attorney.  Enlil?


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InvisibleEnlilM
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Re: Ask a defense attorney [Re: naum]
    #15913296 - 03/07/12 12:21 PM (8 years, 4 months ago)

Quote:

naum said:
Here you must go through a bondsman no matter what.

Can you not get your felony arrest record, prints, and DNA record permanently expunged since the case was dropped? You would be able to do it here with the help of the lawyer. It's well worth the lawyer's fees.





That isn't true...you can always place a cash bond.

And there is no expungement of an arrest...only convictions can be expunged.

Keep in mind, however, that an arrest isn't used against you as a "prior" for later cases, and it doesn't show up on most background checks.  Usually, an arrest record simply goes in the police computer and sits there.


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Edited by Enlil (03/07/12 12:53 PM)


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Re: Ask a defense attorney [Re: t00th]
    #15913357 - 03/07/12 12:40 PM (8 years, 4 months ago)

Quote:

t00th said:
Quote:

Enlil said:
Quote:

t00th said:
You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court




Specifics are nice...What is a "research chemical" as you use the phrase?  Similarly, what are "caps"?  In addition, what are the charges you're trying to beat?

I don't want to sound like a noob here, but I work in the trenches...people don't generally call things by these terms on the street.

I am going to assume that you are talking about a legal substance that can be used to make an illegal substance.  I will further assume that "caps" refers to a finished product that would is illegal.

First, there is no possession charge for legal substances...even if you did have scales, etc.  States do have crimes that amount to possession of paraphenalia, but those aren't strictly possession.  They require proving an intent to use the items for an illegal purpose.

Usually, these types of things are all based on context.  If you're caught driving a rental truck with 400 lbs of pseudoephedrine hidden inside second hand furniture...you're going to have an uphill battle fighting that one.  If you're caught with 10 boxes of sudafed, the state's going to have the uphill battle.

I'm sorry I can't be more specific.  I just am not certa
in what exactly you are asking.




sorry let me clarify

by a research chemical i meant an actual drug that may not be scheduled yet. lets say - MXE. and by a cap i meant the pill shell that is used to cap chemicals up for sale. caps = intent of human consumption.

the way i figure it - your riding down the road with 100g of mxe - properly labeled and with nothing on you to make it seem like its for human consumption - your still going to get arrested.

my question is are you going to get off of the charge (possesion, trafficking, whatever it may be) when you go to court.




So, I'm guessing that MXE would be considered an analog of a scheduled drug...hence the "for human consumption" issue.

If it IS an analog of a schedule I or II drug, then yes, you can be prosecuted...but...they have to prove beyond a reasonable doubt that it was to be used for human consumption...Having it in capsules would be pretty damning, having capsules in the same bag with it would be bad too...having capsules in the car and the mxe in the car...not necessarily a big issue...

BUT..You will have to go to trial in that case.

If you have no capsules or anything else pointing to human consumption, the mxe alone might get you arrested...but it wouldn't get you convicted...or even to trial, frankly.  That case would go nowhere.

Alan's situation had the added complexity of it testing as a controlled substance..that was what got him into the shit he was in.  He still never had any chance of a conviction.

You do have to understand that it doesn't take a lot for a police officer to arrest someone.  Truthfully, in most states, a cop can arrest you for speeding.  It rarely happens, but it can.

I have to apologize for my ignorance about MXE.  I am not up on the latest and greatest drug stuff.  My experience is limited with drugs, although I represent a lot of clients that use them regularly.  Mostly, that is crack, heroin, meth, and pot.


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InvisibleEnlilM
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Re: Ask a defense attorney [Re: Alan Rockefeller] * 1
    #15913392 - 03/07/12 12:50 PM (8 years, 4 months ago)

Quote:

Alan Rockefeller said:
Quote:

Enlil said:
I assume your bail was $15k and you used a bondsman?  Otherwise you should have gotten your bail back.






Correct.  I would have bailed myself out but I don't know how to go about withdrawing $15k from the bank while incarcerated.  Is that even possible, or is it necessary to borrow the cash from a friend?




If you had the 15k in the bank, a judge would have let you out on the promise to post that same day.  I've seen it happen a bunch of times.  Unfortunately, it does require going before the judge...so it might take a few days.  If you had a lawyer, he could have withdrawn it from your bank as well...with your consent, of course.  I've had clients call friends to break into their house and get their checkbook so I could take it to them in jail and have them write the check for bail...to me of course...then I bail them out.

Start Rant:  This is one of the most fucking frustrating things about working in the criminal system.  People get arrested and sometimes spend a month or two in jail before ever being charged.  A month in jail is enough to make a lot of people lose everything that they have...their home, their job...most of their shit...and all of this before they get charged. 

I had a client who spent 4 month in jail before they finally let him go without charges...what the fuck is he going to go home to?  It was great to tell him, "they're letting you out today." but...I know he's going to go to mom's house and try to rebuild his life from nothing.

End Rant.


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InvisiblenaumM
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Re: Ask a defense attorney [Re: Enlil]
    #15913410 - 03/07/12 12:54 PM (8 years, 4 months ago)

I apologize for my ignorance on the bond issue. Yes a cash bond in full is allowed here. For non-cash bonds it's very complicated and varies from county to county.

Not to violate your 4th rule, but my state does allow "total" expunction of an arrest. Relevant code: hxxp://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.55.htm . I don't know if we are the odd ball or if there is something similar in California which I think was the question.


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InvisibleMr.PhilCybin
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Re: Ask a defense attorney [Re: naum] * 2
    #15913461 - 03/07/12 01:05 PM (8 years, 4 months ago)

I don't have any questions right now, but I wanted to thank you for doing this.

:thumbup:


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