kamelred posted:

thirdplace posted:

TG posted:

it's cool how you were able to give six different answers with multiple examples without hitting the two I had in mind when I asked the questions (driving without insurance and disorderly conduct, respectively). it's almost like are a whole shitload of laws that are surprisingly common and/or open to abuse! i would have thought drunk driving would be the most typical example given all the fun surveillance tech that has cropped up around it and the aggressiveness with which its enforced





duis could almost be their own threa. its a fucked up area of the law where they twist some bedrock constitutional principles, like the right against self-incrimination, until theyre basically meaningless



for example, everyone knows the miranda rights from law and order or whatnot: you have the right to remain silent, etc. these go into effect the minute you are in custody, which is a somewhat nebulous concept but basically means, if a reasonable person in the client's shoes would feel that they are contacted by police and not allowed to leave, they are in custody. factors like being cuffed, being in the back of a police car, etc, are obvious examples but not the only factors. now, courts have bent over backwards to say that an initial traffic stop isnt custody until the cop says it is, essentially. this is ridiculous, because if you were to say, later pig, and drive off, youd be in a world of trouble. however, once they driver is told to exit the vehicle its a pretty blatant curtailment of their freedom. this should be when they are told they can clam up and even ask for a lawyer, but they arent. for the purpose of dui investigations, there is no right to remain silent. they can pull you out of the car, slap cuffs on you, and grill you about how much youve had to drink, etc, and those statements will make it in front of a jury. courts have given no reason for this erosion of fundamental constitutional rights other than, well, duis are just different



next we have the chemical tests - blood or breath. taking someones blood or breath is, for constitutional purposes, a search of their person which requires consent or a warrant. the "creative" solution most states have come up with is that they cant force you to give blood or breath but if you refuse to do so when asked, they automatically revoke your license for a year. beyond that, they get to hammer home to the jury that this person didnt consent to an invasive search of their person so that means they must be hiding something. for most any other offense, the prosecutor cannot mention that a client has invoked their constitutional rights, but again, duis are just different



as far as their class implications, it starts with the traffic stop. for somewhat obvious reasons, working class folks tend to be stopped more often in their cars. a brand new bmw or mercedes probably wont have a burnt out tail light or a cracked windshield, and if they do, the owners generally have the time and money to get them fixed. obviously not true for my clients. on top of that, cops decide who gets pulled over and i think we all know who theyre on the lookout for or even where theyre commonly patrolling. thats why i think its awesome that dsa chapters across the country hold brake light clinics, where they fix burnt out lights for free, thereby eliminating a "legitimate" reason for a traffic stop. unfortunately, this doesnt stop pretextual stops where cops flat out lie, but its a start



beyond that, you just have general cop discretion on how to interact with folks during a traffic stop. the smell of an alcoholic beverage on a driver's breath is a very common start for a dui investigation - totally subjective and unprovable. nothing is stopping cops from ignoring this sign on a white, middle class driver or completely inventing it for a driver of color. the driver's performance on roadsides, or the standardized field sobriety tests (never ever do these, they are voluntary and designed to make you fail and give the cop something to harp on for half an hour on the stand), is a subjective thing that is hard to counter unless there is dash cam video, and even then, its still quite difficult. especially the horizontal gaze nystagmus test, where the cops have you follow their pen with your eyes. obviously nobody can see whether your pupils vibrate on a grainy cam video from 20 feet away



as you hinted at, duis can be very complicated cases, with a host of motions issues ripe for litigation and potentially scientific evidence involving chemical testing and expert witnesses. a more experienced colleague likes to say that if you have taken a dui case through to trial, you are basically prepared for any trial, even one with dna evidence



the reason thats pernicious is that public defenders rarely have the time or resources to do an excellent job. i think my colleagues tend to be very intelligent and talented lawyers, but we also have high caseloads. on top of that, private attorneys can milk clients for a lot of money on duis because they involve a lot of prep work and several court hearings, some of which can be very time-consuming. if you dont have several thousand dollars to fight it, you generally plead before any of that work gets done. some attorneys will do a flat rate, but the fine print says that that will only get you to the filing of motions, not the actual hearing or even trial



this point is generally applicable to most cases, but trials are fraught with dangers for clients. the worst case ive ever had for trial was an unemployment insurance fraud situation where client lied and received $30,000+ in illegal benefits over several years, all while making $25+ an hour at a pretty good job with admittedly sporadic hours. it included hundreds of pages of evidence because the department of labor has a whole division of folks devoted to creating airtight cases. all that sucks, but the reason that it was so bad is that it would've been impossible to get a jury sat that didn't hate my client with a burning passion because every juror would technically be a victim if they paid any taxes. no judge would approve a change of venue to another state because of something like that, so good luck with the presumption of innocence



thats an extreme example, but duis can be similar. madd has done a really good job of making people absolutely hate drunk drivers. over the past few decades, the videos of horrifically mangled children's bodies being pried out of twisted steel skeletons by the jaws of life have been imprinted on people's brains. madd is also strong at lobbying and theyve been successful at getting state legislatures to pass laws that should be unconstitutional but are upheld by appellate courts anyway. in many places (although thankfully not really the county where i practice) a dui client is fighting quite the uphill battle. comfortable suburban whites cant wrap their head around a situation where you dont just uber home from a bar. ill be honest, i found myself feeling less sympathy for dui clients - especially ones with multiple arrests for it - because i drink a decent amount and rarely get behind the wheel when im plastered, but i gradually got over that with a little thing i like to call empathy