In Part I of this posting, I discussed the U.S. Supreme Court's ruling in Furman v. Georgia (1972), which declared invalid all of the state laws regarding the administration of the death penalty. The Court reasoned that the death penalty, as it was being carried out at that time, was a violation of the Eighth Amendment, which bans cruel and unusual punishment. The court noted the disproportionate number of poor and minority defendants that received the death penalty. Because minority defendants would receive a death sentence far more frequently than white defendants who were found to be guilty of the same crime, the Court found the death penalty to be an "unusual punishment" within the meaning of the Eighth Amendment.
At the time, states authorized the death penalty for a number of crimes in addition to murder. These crimes included rape, aggravated assault, and armed robbery. In cases involving these charges, minorities would receive the death penalty while white defendants accused of these crimes would rarely receive a death sentence. The Court also noted the unbridled discretion that judges and juries had in determining who shall receive a death sentence. For these reasons, the Court held that the administration of the death penalty in the U.S. was arbitrary and capricious.
THE STATES' RESPONSE TO FURMAN V. GEORGIA
35 states, wishing to preserve the death penalty as the ultimate criminal sanction, revised their statutes regarding the death penalty to comport with the Supreme Court's ruling. In doing so, they turned to the Model Penal Code, which was drafted by the American Law Institute (ALI), for guidance. Section 210.6 of the Model Penal Code set forth the what ALI considered to be the ideal procedure for administering the death penalty.
Georgia, after turning to the Model Penal Code, enacted legislation that required a jury to find at least one statutory aggravating factor before it could impose the death penalty. Statutory aggravating factors included multiple victims, crimes committed against a police officer, crimes committed for financial gain, and the defendant's prior record of capital offenses.
Also guided by the Model Penal Code, the new Georgia statute required a bifurcated trial that consisted of a guilt phase and a sentencing phase. Once the jury determined that the defendant was guilty, they would weigh aggravating and mitigating factors during the sentencing phase to determine whether the defendant should be sentenced to death. It could use any aggravating factors in making its decision, but it had to find at least one aggravating factor specifically listed in the new statute to impose the death penalty.
Finally, the new Georgia statute required an automatic appeal to the Georgia Supreme Court for review of the death sentence to prevent arbitrary and capricious sentencing. The Georgia Supreme Court was to review death sentences to ensure that they were not given under the influence of passion or prejudice, to ensure that there was sufficient evidence to support the existence of a statutory aggravating factor, and whether the a sentence of death is disproportionate to the sentences imposed in similar cases.
In 1976, the U.S.Supreme Court decided the case of Gregg v. Georgia. The court was asked to decide whether the new Georgia statute, which was enacted in response to Furman v. Georgia, violated the Eighth Amendment prohibition on cruel and unusual punishment. The Supreme Court first noted that it did not believe that the death penalty itself constituted cruel and unusual punishment. To support this proposition, the Court pointed to the fact that the death penalty was common place at the time the Eighth Amendment was drafted and there are other constitutional provisions (such as the Fifth Amendment, which requires due process when the government takes life, liberty, or property) that acknowledge the death penalty as acceptable punishment for certain crimes.
The Court concluded that the new Georgia statute alleviated the constitutional concerns that were present prior to Furman v. Georgia. The Court found that drafting a list of specific aggravating factors and requiring a jury to find the existence of at least one of those factors in a two-phase trial resulted in "guided discretion," which remedied the previous problem of juries having unbridled discretion with regard to the decision of who lives and who dies. The Court also found that the automatic review by the state supreme court remedied the problem of disproportionate sentences being carried out. For these reasons, the Court found that the new Georgia statute was not unconstitutional and the death penalty was reinstated in the U.S.
In the next posting, I will explain what happened since Gregg v. Georgia that made ALI delete its section on the death penalty in the Model Penal Code and decline to further endorse the death penalty as an acceptable form of punishment.
Monday, January 11, 2010
Tuesday, January 5, 2010
THE DEATH PENALTY LOSES SUPPORT: THE AMERICAN LAW INSTITUTE NO LONGER SUPPORTS CAPITAL PUNISHMENT 33 YEARS AFTER GREGG V. GEORGIA- PART I
This posting will be a two-part posting in which I will explain the constitutional issues surrounding the death penalty and the reason why capital punishment has just lost one of its most credible and influential supporters. In order to do that, I will need to explain who the A.L.I. is, what happened in Furman v. Georgia, what happened in Gregg v. Georgia, and finally what happened since that decision that has caused the A.L.I. To change its stance on the death penalty.
The American Law Institute (A.L.I.) is an organization made up of legal scholars, lawyers, and judges with the purpose of clarifying American law and assisting in law reform. The A.L.I. has drafted a number of model codes and statutes and many states chose to adopt the A.L.I.'s Model Codes, in their in entirety, or in part. In 1962, the A.L.I. Published the Model Penal Code, which included a section that set forth what they considered to be the ideal way in which to administer the death penalty in the U.S.
In 1972, The U.S. Supreme Court decided the case of Furman v. Georgia, which resulted in a nation-wide moratorium on capital punishment and the invalidation of the death penalty as it was administered at that time. The majority decision was written in four separate opinions. Justice Thurgood Marshall's opinion in this case happens to be the first U.S. Supreme Court opinion I had ever read back in school.
The question before the Court was whether the death penalty violated the Eighth Amendment. The Court found that because the death sentence was given and carried out arbitrarily, it was unconstitutional. In reaching its conclusion, the Court noted that the Eighth Amendment to the U.S. Constitution was based on a similar provision in the English Bill of Rights in 1689, which was concerned with banning arbitrary and discriminatory penalties. This was to protect the dissenters from
the crown from being subject to arbitrary and discriminatory penalties.
The Court pointed to substantial evidence that the death penalty was handed out disproportionately to the poor, minorities, and members of unpopular groups. The Court reasoned that a punishment is "unusual" if it “discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
In one Texas study to which the court referred, in capital cases where there were multiple defendants of different races and the defendants were given separate trials, the white defendants were given a term of life in prison while their black counterparts received the death penalty. Justice Marshall also noted that the death penalty was disproportionately given to men- between 1930 and 1972, 32 women were executed compared to the 3,827 men who were executed.
In addition to finding problems justifying the death penalty as an appropriate or necessary punishment and concluding that it was being arbitrarily imposed in a discriminatory manner, the Court also took issue with the unbridled discretion that judges and juries had in determining who lived and who died.
As Justice Douglas wrote, “...we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.”
This decision invalidated all of the state laws as they were written at that time that imposed the death penalty on a person convicted of a crime. A few years later, the Supreme Court would revisit the issue and the death penalty would be reinstated in the U.S. In the next posting, I'll explain why capital punishment was reinstated and what happened since then that made the A.L.I. change its stance with regard to the death penalty.
The American Law Institute (A.L.I.) is an organization made up of legal scholars, lawyers, and judges with the purpose of clarifying American law and assisting in law reform. The A.L.I. has drafted a number of model codes and statutes and many states chose to adopt the A.L.I.'s Model Codes, in their in entirety, or in part. In 1962, the A.L.I. Published the Model Penal Code, which included a section that set forth what they considered to be the ideal way in which to administer the death penalty in the U.S.
In 1972, The U.S. Supreme Court decided the case of Furman v. Georgia, which resulted in a nation-wide moratorium on capital punishment and the invalidation of the death penalty as it was administered at that time. The majority decision was written in four separate opinions. Justice Thurgood Marshall's opinion in this case happens to be the first U.S. Supreme Court opinion I had ever read back in school.
The question before the Court was whether the death penalty violated the Eighth Amendment. The Court found that because the death sentence was given and carried out arbitrarily, it was unconstitutional. In reaching its conclusion, the Court noted that the Eighth Amendment to the U.S. Constitution was based on a similar provision in the English Bill of Rights in 1689, which was concerned with banning arbitrary and discriminatory penalties. This was to protect the dissenters from
the crown from being subject to arbitrary and discriminatory penalties.
The Court pointed to substantial evidence that the death penalty was handed out disproportionately to the poor, minorities, and members of unpopular groups. The Court reasoned that a punishment is "unusual" if it “discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
In one Texas study to which the court referred, in capital cases where there were multiple defendants of different races and the defendants were given separate trials, the white defendants were given a term of life in prison while their black counterparts received the death penalty. Justice Marshall also noted that the death penalty was disproportionately given to men- between 1930 and 1972, 32 women were executed compared to the 3,827 men who were executed.
In addition to finding problems justifying the death penalty as an appropriate or necessary punishment and concluding that it was being arbitrarily imposed in a discriminatory manner, the Court also took issue with the unbridled discretion that judges and juries had in determining who lived and who died.
As Justice Douglas wrote, “...we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.”
This decision invalidated all of the state laws as they were written at that time that imposed the death penalty on a person convicted of a crime. A few years later, the Supreme Court would revisit the issue and the death penalty would be reinstated in the U.S. In the next posting, I'll explain why capital punishment was reinstated and what happened since then that made the A.L.I. change its stance with regard to the death penalty.
Monday, December 28, 2009
CAN THE POLICE SEARCH YOUR CELL PHONE WITHOUT A WARRANT?
The Ohio Supreme Court just decided a novel question of law a couple weeks ago relating to the law of search and seizure. Up until now, neither the U.S. Supreme Court, nor any state supreme court has rendered a decision on whether the police can search the contents of a person's cell phone without a warrant. As I have said before, the Fourth Amendment to the U.S. Constitution prohibits warrantless searches unless the state can show that there were exigent circumstances or that the person who was searched consented to the search. Exigent circumstances include the possibility that the defendant was armed, that there was some other sort of threat presented, or that there was a possibility of the evidence being destroyed.
In Ohio v. Smith, a person who had bought crack cocaine from the defendant, Smith had been taken to the hospital after a drug overdose. At the hospital, the police questioned the patient and had her call Smith to arrange another drug deal. The police recorded their phone conversation. Later, the police arrested Smith at his customer's home. At the time of arrest, police searched Smith and took his cell phone. The police also later found bags of cocaine at the home.
While Smith was at the police station being booked, the police searched Smith's cell phone to confirm that he was the person the hospital patient had called and spoken to about setting up the drug deal. Smith did not consent to the search and the police did not have a warrant.
Smith went to trial and was found guilty of trafficking cocaine. Prior to trial, Smith moved to suppress evidence obtained from his cell phone on the ground that it was a warrantless search in violation of the Fourth Amendment, but the motion was denied. After Smith was convicted, he appealed and the Ohio State Court of Appeals affirmed the convictions. The Court of Appeals based its decision on U.S. v. Finnley, which I will discuss below.
The police can conduct what is called a search incident to arrest if it is contemporaneous to the arrest. This is for officer safety and to prevent the destruction of evidence. The police did this when they initially too Smith's phone, but when they were at the police station, a significant amount of time had passed and a search could not have been considered to be contemporaneous to the arrest at that point. In addition, the whole justification for a search incident to arrest is for officer safety and to prevent the destruction of evidence. Here, the police had no reason to be concerned for their safety, as Smith had already been placed under arrest, handcuffed, and transported to the police station. The Court of Appeals nevertheless ruled that the search was permissible under U.S. v. Finnley, which I will now discuss.
In Finnley, the Fifth Circuit ruled that cell phones were analogous to containers found on an arestee's person, which are subject to searches for the preservation of evidence.
In U.S. v. Park, however, a Federal District Court ruled that cell phones are not the same as containers for the purposes of a Fourth Amendment analysis. That court reasoned that because cell phones “have the capacity for storing immense amounts of private information,” they are much more like laptops, in which arestees have a significant privacy interest.
The Ohio Supreme Court cited U.S. v. Park in rejecting the lower court's reliance on U.S. v. Finnley. The Ohio Supreme Court said that because a person has such a high expectation of privacy in their cell phones, police cannot search the phones without a warrant. The court also stated that the police failed to show that the search was conducted because there was a concern for officer safety or imminent destruction of evidence.
This has been the first state supreme court on the issue of whether police can search the contents of a cell phone and for that reason I am posting it in this blog, which is usually limited to Washington State and federal cases and statutes. Hopefully, Washington State will follow Ohio's lead in protecting our privacy rights.
In Ohio v. Smith, a person who had bought crack cocaine from the defendant, Smith had been taken to the hospital after a drug overdose. At the hospital, the police questioned the patient and had her call Smith to arrange another drug deal. The police recorded their phone conversation. Later, the police arrested Smith at his customer's home. At the time of arrest, police searched Smith and took his cell phone. The police also later found bags of cocaine at the home.
While Smith was at the police station being booked, the police searched Smith's cell phone to confirm that he was the person the hospital patient had called and spoken to about setting up the drug deal. Smith did not consent to the search and the police did not have a warrant.
Smith went to trial and was found guilty of trafficking cocaine. Prior to trial, Smith moved to suppress evidence obtained from his cell phone on the ground that it was a warrantless search in violation of the Fourth Amendment, but the motion was denied. After Smith was convicted, he appealed and the Ohio State Court of Appeals affirmed the convictions. The Court of Appeals based its decision on U.S. v. Finnley, which I will discuss below.
The police can conduct what is called a search incident to arrest if it is contemporaneous to the arrest. This is for officer safety and to prevent the destruction of evidence. The police did this when they initially too Smith's phone, but when they were at the police station, a significant amount of time had passed and a search could not have been considered to be contemporaneous to the arrest at that point. In addition, the whole justification for a search incident to arrest is for officer safety and to prevent the destruction of evidence. Here, the police had no reason to be concerned for their safety, as Smith had already been placed under arrest, handcuffed, and transported to the police station. The Court of Appeals nevertheless ruled that the search was permissible under U.S. v. Finnley, which I will now discuss.
In Finnley, the Fifth Circuit ruled that cell phones were analogous to containers found on an arestee's person, which are subject to searches for the preservation of evidence.
In U.S. v. Park, however, a Federal District Court ruled that cell phones are not the same as containers for the purposes of a Fourth Amendment analysis. That court reasoned that because cell phones “have the capacity for storing immense amounts of private information,” they are much more like laptops, in which arestees have a significant privacy interest.
The Ohio Supreme Court cited U.S. v. Park in rejecting the lower court's reliance on U.S. v. Finnley. The Ohio Supreme Court said that because a person has such a high expectation of privacy in their cell phones, police cannot search the phones without a warrant. The court also stated that the police failed to show that the search was conducted because there was a concern for officer safety or imminent destruction of evidence.
This has been the first state supreme court on the issue of whether police can search the contents of a cell phone and for that reason I am posting it in this blog, which is usually limited to Washington State and federal cases and statutes. Hopefully, Washington State will follow Ohio's lead in protecting our privacy rights.
Tuesday, November 17, 2009
NEW LAW HELPS TO STOP THE POOR FROM BEING CONVICTED OF DRIVING ON A SUSPENDED LICENSE
As I have previously written, there are three types of Driving While License Suspended (DWLS) crimes in Washington State: DWLS in the 1st degree, DWLS in the 2nd degree, and DWLS in the 3rd degree. 1st degree DWLS is the crime you will be charged with if you are driving while your license is revoked under the Habitual Traffic Offender Act. 2nd degree DWLS is what you'll be charged with if you drive while your license is suspended and you are ineligible for reinstatement due to a mandatory license suspension for a specified period of time (such a 1 year suspension for refusing to take a breath test). 3rd degree DWLS is where your license is suspended, and you are eligible for reinstatement.
It's this last type of DWLS that I'd like to focus on in this posting because legislation was passed in May that will hopefully reduce the number of people who are convicted of this crime. People who are charged with 3rd degree DWLS usually have some sort of financial problem. They are all eligible for reinstatement as long as they pay money that they owe. This is often for unpaid traffic tickets, but it can also be for failure to pay child support or failure to pay a civil judgment when the defendant was found to be at fault in a traffic accident.
So people struggling financially and are simply unable to pay the money they owe have the license suspended and to earn a living or to get from place to place in order to get the money they to pay off their debts, they end up driving. Now they get charged with 3rd degree DWLS, which is a misdemeanor criminal charge.
I have had a client who could not get his license reinstated because, although he was slowly coming up with the money to pay off his traffic tickets, he was given the runaround when it came to trying to figure out exactly who to pay- The courts told him his fines went to collection and the collections agency told him to call the courts because they did not have an account for him.
In May of this year, Senate Bill 5732 became law. The new law will be added to chapter 46.20 of the RCW and authorizes cities and counties to establish licensing diversion programs for the purpose of helping suspended drivers get their licenses back. The new law also requires the courts in jurisdictions that do not have licensing diversion programs to issue the defendant a copy of his or her driving abstract and give the defendant all of the information regarding what money is owed and to whom. This law only applies to people whose licenses have been suspended due to failure to pay traffic tickets, failure to respond to a notice of traffic infraction, failure to appear at a requested hearing, or for violated a written promise to appear in court.
Under SB 5732 a driver is not be eligible for a diversion program if he or she has been convicted of DWLS more than 4 times in the last 10 years. The law also limits diversion eligibility for drivers who hold a commercial drivers license. For the many struggling people who are down on their luck, the new law may be of great benefit to get out of a hole. It will also free up the courts which have to deal with a large number of 3rd degree DWLS cases.
It's this last type of DWLS that I'd like to focus on in this posting because legislation was passed in May that will hopefully reduce the number of people who are convicted of this crime. People who are charged with 3rd degree DWLS usually have some sort of financial problem. They are all eligible for reinstatement as long as they pay money that they owe. This is often for unpaid traffic tickets, but it can also be for failure to pay child support or failure to pay a civil judgment when the defendant was found to be at fault in a traffic accident.
So people struggling financially and are simply unable to pay the money they owe have the license suspended and to earn a living or to get from place to place in order to get the money they to pay off their debts, they end up driving. Now they get charged with 3rd degree DWLS, which is a misdemeanor criminal charge.
I have had a client who could not get his license reinstated because, although he was slowly coming up with the money to pay off his traffic tickets, he was given the runaround when it came to trying to figure out exactly who to pay- The courts told him his fines went to collection and the collections agency told him to call the courts because they did not have an account for him.
In May of this year, Senate Bill 5732 became law. The new law will be added to chapter 46.20 of the RCW and authorizes cities and counties to establish licensing diversion programs for the purpose of helping suspended drivers get their licenses back. The new law also requires the courts in jurisdictions that do not have licensing diversion programs to issue the defendant a copy of his or her driving abstract and give the defendant all of the information regarding what money is owed and to whom. This law only applies to people whose licenses have been suspended due to failure to pay traffic tickets, failure to respond to a notice of traffic infraction, failure to appear at a requested hearing, or for violated a written promise to appear in court.
Under SB 5732 a driver is not be eligible for a diversion program if he or she has been convicted of DWLS more than 4 times in the last 10 years. The law also limits diversion eligibility for drivers who hold a commercial drivers license. For the many struggling people who are down on their luck, the new law may be of great benefit to get out of a hole. It will also free up the courts which have to deal with a large number of 3rd degree DWLS cases.
Wednesday, November 4, 2009
OBSTRUCTION OF JUSTICE: MAKING FALSE STATEMENTS TO THE POLICE
Today I’d like to discuss the crime of false reporting. Actually, I'll be referring to the crime of making a false or misleading statement to a public servant, which is commonly known as "false reporting." I recently represented another lawyer on this charge and thought that I should warn others about what the police may do to you if you are rude to them or are otherwise difficult. The lawyer I defended on the charge of false reporting was admittedly rude to the police and made sure they knew she was a lawyer. The cops weren’t happy with the way she talked to them, so they stacked up a few charges against her, one of which was false reporting.
The police claimed that the lawyer left out the last part of her last name when she was asked to identify herself. I am writing about this charge because the police frequently use it to punish someone who made them angry or irritated or to punish someone they just don’t like. So be careful when the police stop you for investigative purposes. You can assert your constitutional rights, but be polite about it. The police often make up false allegations of false reporting against people who mouth off to them.
The actual title of the crime appears as “Making a false or misleading statement to a public servant” in RCW 9A.76.175. That statute says:
"A person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor. "Material statement" means a written or oral statement reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties."
Back in 1982, the Washington State Supreme Court found that the statute defining obstructing a law enforcement officer, which had similar wording to our current statute defining false reporting , was unconstitutional. The court reasoned that the term, “public servant” was too vague. So there may be a way to attack the statute on constitutional grounds if you are charged with this offense.
The public servant must be discharging official duties at the time you make a false or misleading statement. The courts have recognized the acts of making an arrest, stopping a suspect to investigate, and requesting ID while investigating a crime as official duties performed by the police.
Aside from attacks concerning the validity of the statute, you can also challenge the police claim that your statements were “material.” Also, if the police weren’t making an arrest, requesting ID, or investigating a crime at the time they cite you for false reporting, you can argue that they weren’t discharging official duties.
Again, one of the best ways to avoid this charge is to be polite to the cops. They have all of the power in many situations, even if you’re a lawyer. They often make up facts to support a charge of false reporting if you give them a hard time.
The police claimed that the lawyer left out the last part of her last name when she was asked to identify herself. I am writing about this charge because the police frequently use it to punish someone who made them angry or irritated or to punish someone they just don’t like. So be careful when the police stop you for investigative purposes. You can assert your constitutional rights, but be polite about it. The police often make up false allegations of false reporting against people who mouth off to them.
The actual title of the crime appears as “Making a false or misleading statement to a public servant” in RCW 9A.76.175. That statute says:
"A person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor. "Material statement" means a written or oral statement reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties."
Back in 1982, the Washington State Supreme Court found that the statute defining obstructing a law enforcement officer, which had similar wording to our current statute defining false reporting , was unconstitutional. The court reasoned that the term, “public servant” was too vague. So there may be a way to attack the statute on constitutional grounds if you are charged with this offense.
The public servant must be discharging official duties at the time you make a false or misleading statement. The courts have recognized the acts of making an arrest, stopping a suspect to investigate, and requesting ID while investigating a crime as official duties performed by the police.
Aside from attacks concerning the validity of the statute, you can also challenge the police claim that your statements were “material.” Also, if the police weren’t making an arrest, requesting ID, or investigating a crime at the time they cite you for false reporting, you can argue that they weren’t discharging official duties.
Again, one of the best ways to avoid this charge is to be polite to the cops. They have all of the power in many situations, even if you’re a lawyer. They often make up facts to support a charge of false reporting if you give them a hard time.
Tuesday, November 3, 2009
CONSEQUENSES OF RECEIVING AN OUT-OF-STATE TRAFFIC TICKET
Although traffic infractions are no longer considered to be criminal offenses in Washington State, I am making this posting in a criminal defense blog because many criminal defense lawyers, myself included, also handle traffic tickets. In addition, the consequences of receiving a traffic ticket that remains unpaid can result in criminal charges, as I will explain below. Just to clarify if anyone is confused, states share information regarding traffic tickets. That includes California and Oregon. If you get a traffic ticket in California or Oregon, Washington will know about it.
People sometimes ask me what will happen if they ignore a ticket they received while visiting another state. The answer is you will almost certainly have your driver's license suspended. Under the interstate Driver's License Compact (DLC), states share information with other member states so that drivers essentially have just one driving record which includes all traffic violations committed in every state.
Under the DLC, if you are cited with a traffic violation in another state while you're visiting and the state in which you live permanently has a similar statute prohibiting the same action for which you were cited in the other state, your home state will file an action against you as if the violation had occurred in your home state and your state will apply it's own law. If you disregard the citation and fail to pay the fine or request a hearing, your license will be suspended until the ticket is payed off.
But what if while you're visiting another state, you get a ticket for something that is illegal in that state, but is not considered to be a traffic violation in your home state? That's where the Non-Resident Violator's Compact comes in. 45 states in the U.S. are members of the Non-Resident Violator's Compact. If your state is a member of the Compact and you receive a traffic ticket (for something that would not be illegal had you done it in your home state) in another member state, that state will inform your home state of the traffic ticket. If you do not take care of the ticket, the state in which you received your ticket will inform the state in which you reside and your driver's license will be suspended until the ticket is payed.
If your address of record filed with the Depatment of Licensing (DOL) is not current, then you will not receive notice of the suspension. This is how many people get charged with Driving While License Suspended (DWLS) in the 3rd degree- they were unaware that an out-of-state ticket would have any affect on the status of their driver's license and did not receive notice because their address of record was not current.
If you were issued a traffic ticket in another state, in order to keep your driver's license, you will need to either (1) pay the ticket, (2)request a contested hearing or a mitigation hearing and return to the state where you received the ticket and fight the ticket yourself, or (3) hire a traffic lawyer who is licensed in that state to fight the ticket for you. Your safest bet is option (3).
All states are members of the Non-Resident Violator's Compact except for Michigan, Wisconsin, California, Montana, Oregon,and Alaska.
A newer law called the Driver's License Agreement (DLA) has been written to take the place of both the Driver's License Compact and the non-Resident Violator's Compact. As of the date of this posting, only Connecticut, Arkansas, and Massachusetts are members of this agreement. I will write more about the DLA in a future posting.
People sometimes ask me what will happen if they ignore a ticket they received while visiting another state. The answer is you will almost certainly have your driver's license suspended. Under the interstate Driver's License Compact (DLC), states share information with other member states so that drivers essentially have just one driving record which includes all traffic violations committed in every state.
Under the DLC, if you are cited with a traffic violation in another state while you're visiting and the state in which you live permanently has a similar statute prohibiting the same action for which you were cited in the other state, your home state will file an action against you as if the violation had occurred in your home state and your state will apply it's own law. If you disregard the citation and fail to pay the fine or request a hearing, your license will be suspended until the ticket is payed off.
But what if while you're visiting another state, you get a ticket for something that is illegal in that state, but is not considered to be a traffic violation in your home state? That's where the Non-Resident Violator's Compact comes in. 45 states in the U.S. are members of the Non-Resident Violator's Compact. If your state is a member of the Compact and you receive a traffic ticket (for something that would not be illegal had you done it in your home state) in another member state, that state will inform your home state of the traffic ticket. If you do not take care of the ticket, the state in which you received your ticket will inform the state in which you reside and your driver's license will be suspended until the ticket is payed.
If your address of record filed with the Depatment of Licensing (DOL) is not current, then you will not receive notice of the suspension. This is how many people get charged with Driving While License Suspended (DWLS) in the 3rd degree- they were unaware that an out-of-state ticket would have any affect on the status of their driver's license and did not receive notice because their address of record was not current.
If you were issued a traffic ticket in another state, in order to keep your driver's license, you will need to either (1) pay the ticket, (2)request a contested hearing or a mitigation hearing and return to the state where you received the ticket and fight the ticket yourself, or (3) hire a traffic lawyer who is licensed in that state to fight the ticket for you. Your safest bet is option (3).
All states are members of the Non-Resident Violator's Compact except for Michigan, Wisconsin, California, Montana, Oregon,and Alaska.
A newer law called the Driver's License Agreement (DLA) has been written to take the place of both the Driver's License Compact and the non-Resident Violator's Compact. As of the date of this posting, only Connecticut, Arkansas, and Massachusetts are members of this agreement. I will write more about the DLA in a future posting.
Monday, November 2, 2009
CAN YOU REFUSE TO GIVE POLICE INFORMATION WHEN QUESTIONED?
I read an article recently about Seattle City Attorney, Tom Carr making the announcement that police in Capitol Hill will be stopping people on the street who appear to be intoxicated, ask them where they have been drinking, and try to close down the bars that people name. The author of the article I read urged people to not provide the police with any information regarding where they had been drinking.
That bit of advice prompted me write this posting about your legal rights and consequences of refusing to provide information to the police if you find yourself in the type of situation described above. The statute we have in Washington that defines “Obstructing a law enforcement officer” used to say that you are guilty of this offense if you, without lawful excuse, refuse to furnish or knowingly fail to furnish any information lawfully requested by a public servant. This statute has since been changed after the Washington State Supreme Court found it to be unconstitutionally vague.
Under the old statute, you would be guilty of obstruction of justice if you refused to tell a cop where you had been drinking if a cop asked you. The new statute now says that you are guilty of obstructing a law enforcement officer when you do anything that hinders, obstructs, or delays a law enforcement officer in the discharge of his or her powers or duties.
The courts have found certain things to qualify as acts that hinder, obstruct, or delay the police in performing official duties. These acts include refusing to produce a driver’s license when asked, refusing to stop talking to a person who is being arrested, and refusing to leave the scene of an investigation after being asked to do so.
In the case of State v. Turner, Washington State Court of Appeals said that merely refusing to answer questions asked by the police does not in and of itself constitute obstructing a law enforcement officer. So you can refuse to tell a cop where you have been drinking and not be charged with obstruction. Be careful, however. The cops are known to make false allegations of obstruction or false reporting if you are rude or obnoxious when stopped and questioned.
That bit of advice prompted me write this posting about your legal rights and consequences of refusing to provide information to the police if you find yourself in the type of situation described above. The statute we have in Washington that defines “Obstructing a law enforcement officer” used to say that you are guilty of this offense if you, without lawful excuse, refuse to furnish or knowingly fail to furnish any information lawfully requested by a public servant. This statute has since been changed after the Washington State Supreme Court found it to be unconstitutionally vague.
Under the old statute, you would be guilty of obstruction of justice if you refused to tell a cop where you had been drinking if a cop asked you. The new statute now says that you are guilty of obstructing a law enforcement officer when you do anything that hinders, obstructs, or delays a law enforcement officer in the discharge of his or her powers or duties.
The courts have found certain things to qualify as acts that hinder, obstruct, or delay the police in performing official duties. These acts include refusing to produce a driver’s license when asked, refusing to stop talking to a person who is being arrested, and refusing to leave the scene of an investigation after being asked to do so.
In the case of State v. Turner, Washington State Court of Appeals said that merely refusing to answer questions asked by the police does not in and of itself constitute obstructing a law enforcement officer. So you can refuse to tell a cop where you have been drinking and not be charged with obstruction. Be careful, however. The cops are known to make false allegations of obstruction or false reporting if you are rude or obnoxious when stopped and questioned.
Subscribe to:
Posts (Atom)
