Colorado is retesting 1,700 DUI blood samples

 “There was a situation where an outside lab ran a sample that caused us to rerun a sample, and we were able to track that to a certain employee who was not following the standard operating procedures,” health department spokesman Mark Salley said.

It has recently come to light that a number of blood tests relating to DUI arrests were mishandled by an independent lab that contracts with the State.  We are monitoring the situation to insure that if any of our client’s tests were mishandled, the appropriate actions are taken in response.  Thus far, none of our client’s tests have been implicated, but the process is likely to take some time.

This highlights the importance of conducting our own independent testing and it is our belief that every blood test should be retested using our own independent lab.  We believe that for the time period covered by this recent incident, all of our clients have had their samples independently tested by our lab.  This should safeguard us from any problems of this type.

We will continue to monitor the situation closely and report on any noteworthy developments…

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Legal searches of your home, understanding your rights.

“I’d like to get some sleep before I travel,

But if you got a warrant, I guess you’re gonna come in.”

The Dead, at first glance, seem to have summed up the 4^th Amendment (the 4^th) in that gem from Trukin’ but there are nuances to the application of the 4^th that are worthy of further discussion.  For the purposes of this conversation, I will be dealing with the application of the 4^th Amendment  to a search of a person’s home. Searches of a person and arrest warrants will be covered in the future.

In the American Colonies, a man’s home was not his castle when it came to the Crown’s right to search your home and seize your property.  The Colonists grew weary of the Government’s ability to enter their homes and search their possessions with little or no reason other than the whim of the authorities.  Prior to the Revolution Massachusetts and Virginia limited the right of Governmental searches and seizures by requiring that the same be “reasonable.”  These documents were the basis of the 4^th Amendment to our Constitution which reads as follows:

            The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

PROBABLE CAUSE

                For the purposes of this discussion, the 4^th amendment says that the police cannot come into your home to search for contraband (stolen items or items that it is illegal to possess) without a warrant.  A warrant is a court order allowing the police to search a specific location for specific items.  The warrant is issued only after a Judge or a Magistrate reviews a document called “An affidavit in support of a Search Warrant.”  The affidavit sets out the facts and circumstances that establish (or sometimes not) the Probable Cause requirement of the 4^th.  There are several sources of information that the police can use to establish Probable Cause:

·         Citizen Informants:  Courts generally consider tips from named citizens to be reliable given that they are willing to be identified and presumably have no reason to lie. 

·         Confidential Informants:  Confidential informants tend to be people working for the police who have less than stellar integrity so their information is generally considered less reliable than that of a citizen informant but their observations can be bolstered by either a history of providing reliable information or corroboration by police officers.  For example, a Confidential Informant is searched by the police prior to going to buy drugs and when he comes out he has drugs.  When he says he saw more drugs inside, probable cause exists.

·         Police observations:  If the police, acting on a tip of suspected drug activity, conduct surveillance on a home and observe multiple people drive up, stop their cars and run to the door,  enter and remain inside for a brief period of time and drive away, probable cause may exist that drug dealing is happening in that home.

An affidavit is considered to contain probable cause if it sets forth sufficient facts to cause a person of reasonable caution to believe that contraband or other evidence of illegal activity is located at the place to be searched.

EXCEPTIONS TO THE WARRANT REQUIREMENT

Now that we have established that the police can’t enter your home to search for contraband it is important to understand that there are exceptions to this rule.  There are several clearly defined situations where the police can walk right in without a warrant.

·         Consent:  The protections contained in the 4th Amendment are a gift given to you by our Founding Fathers.  Like any gift you can give it away if you so choose. If a police officer is at your door and asks: “Do you mind if I come in and look around?” you have every right to say “Sure, Officer, come on in.  Can I get you a soda?”  When the officer finds a kilogram of cocaine under your couch the 4^th Amendment doesn’t provide any relief. 

The police can be very intimidating, especially if they want to be.  You may say to the officers at your door “no, you can’t come in” but they keep asking anyway.  It may be easier just to point at their feet to get your point across.  I found this doormat online at Target.  Protect your rights for under $20.00!!

·         Exigent Circumstances:  There are times when the police (or other governmental entities) can enter without a warrant.  These circumstances include emergency situations that pose a threat to the life or safety of the person searched or to others. If the police hear a struggle inside a home and hear somebody screaming “don’t shoot me” and hear a gunshot, they are coming in.

·         Plain View:  If the police are someplace they otherwise have a right to be and observe contraband in plain view they can seize it.  Say for example you come home from work and your front door has been kicked in.  If you call the police to report a crime and they enter your home to ensure that no burglars remain, you can’t seek shelter behind the 4^th Amendment when they find the pound of Marijuana sitting on your kitchen table that the thief couldn’t grab because his hands were full with your TV.

THE EXCLUSIONARY RULE

                Prior to the early 1900’s the 4^th Amendment was actually little more than words on a very important piece of paper.  It was only in 1915 that the United States Supreme Court came to the realization that a ban prohibiting federal agents from kicking down your door and searching your home without a warrant needed an enforcement mechanism.  Thus began the “Exclusionary Rule” that allowed a person who was the victim of a violation of their 4^th Amendment rights to ask a court to exclude evidence so obtained from the government’s case against them.  It wasn’t until the 1960’s that the Court extended the exclusionary rule to the States.
                In application, the exclusionary rule allows a person charged with a crime to file a motion asking the Judge to suppress evidence obtained in contravention to the 4^th Amendment.  If a judge, after a hearing, rules that the officer violated the amendment the evidence seized may be suppressed and rendered unusable by the prosecution.

WHEN DOES THE 4^TH AMENDMENT APPLY?

                In order to claim the protection of the 4^th a few preliminary matters must be resolved in your favor.  First, did the person claiming to be the victim of a violation of their 4^th Amendment rights have a “Reasonable expectation of Privacy” in the place that was searched?  Since we are discussing a person’s home, it would be safe to assume that they had a reasonable expectation of privacy.  Not so fast.  You may have a very reasonable expectation of privacy inside your home, but you have no expectation of privacy in items you leave outside of your house.  For example, you have no expectation of privacy in the trash that you’ve set out on the curb for pickup.  You also have no expectation of privacy for the Marijuana plant you are growing in your garden that is visible to anybody walking by.

                The second preliminary matter involves the issue of Governmental Action.  The 4^th Amendment exists to protect us from governmental activity, not from activity conducted by other citizens.  For example, a police officer walking into your garage to search for a stolen drill, without a warrant, is prohibited governmental action.  Your neighbor, walking into your garage to borrow your drill, may be bad manners but the 4^th Amendment doesn’t protect you.

                This is a very simplistic discussion of a very complicated and extremely important legal issue.  It is not intended to serve as legal advice.  If you feel that your 4^th Amendment rights have been violated, contact an experienced criminal defense attorney to discuss your situation.

Christopher L. Griffin


The materials available on this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Moorhead & Griffin Llp and the user or browser.

Don't Incriminate Yourself! What to do when being questioned by the police.

It has become increasingly common for law enforcement officers (cops) to engage in behavior which is designed to abrogate your rights as a US citizen…let me put that into English…the cops know (or think) that you did something wrong, and lets face it, maybe you did.  The cops are going to try to get you to admit it.  You have rights and at this point, the most important one is called “the privilege against self incrimination”.  This right or privilege is enshrined in the 5^th amendment to the U.S. Constitution.  You are never required, under any circumstances to make any statement to a representative of the government. *

You have probably heard about “Miranda”…let me clarify` what that means.  If you are “in custody” and subject to “interrogation”, you have to be advised of your right to remain silent.  That does not mean that you have the right to remain silent only when you are subject to “custodial interrogation”. You can never, under any circumstances be compelled to testify against yourself or make any statement at all.  If you are contacted by the police, and they are investigating an incident, they will likely suggest to you that you don’t have the right to remain silent.  That is not true.

The only right that you don’t have is the right to have your rights read to you…I can’t tell you how many cops I’ve talked to who don’t understand (or more likely pretend not to understand) this distinction…they think that if you are not under arrest or “in custody”, that you don’t have the right to remain silent.

Let’s put this into a practical application…lets suppose that you did something wrong…lets suppose that you stole a car.  If you get caught, the cop is going to ask you if you stole the car. He will likely arrange this “interview” in a way that will conveniently avoid the requirement that he “Mirandize” you.  At this point you might think that you only have two options; admit that you stole the car, or deny that you stole the car.  There is a third and infinitely preferable alternative and it is called “taking the 5^th”.  At any subsequent trial for stealing the car, the jury is going to want to know if you admitted or denied doing so…if you told the cop that you wanted to remain silent, the jury will never hear anything at all…they will never hear that the cop asked you if you “did it” and the jury will be left wondering why the cop never even bothered to ask you if you “did it”.  He did ask you, but by taking the 5^th * you have rendered the question inadmissible.

Taking the 5^th can be rather cumbersome for some people.  It sounds rather dramatic and it pisses cops off…You can accomplish the exact same thing by responding politely to any police questioning with any of the following suggested phrases:  “I’m sorry officer, I want to cooperate but I am concerned that I should have my lawyer present”, “I would like to speak to my lawyer first” or “talk to my lawyer”…

Because you also have the constitutional right to counsel (and your attorney will advise you to take the 5^th), asking to speak to your lawyer is the functional equivalent of taking the 5^th, but for many people it seems more polite…if you are ultimately unwilling to give a statement, you can blame it on your lawyer “I wanted to help out, but he wouldn’t let me cooperate”.  Don’t worry; we can handle the heat…

• It would be prudent to provide your name and date of birth or are likely to be taken into custody so that they can verify your identity…this can take along time.
• Or by asking to speak to your attorney…

It is important to know your rights. Be careful out there.

Sincerely,

David Moorhead

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Moorhead & Griffin Llp and the user or browser.

Moorhead & Griffin - Criminal Defense Attorneys

Moorhead & Griffin welcomes you to our criminal defense blog.
 

If you have been accused of a crime, hiring the best criminal defense attorney is critical to the outcome of your case. Moorhead and Griffin have over 29 yrs combined experienced, devoted exclusively to the practice of criminal law. As your Defense Attorneys we will fight to minimize the impact a criminal case can have on your life. At Moorhead and Griffin we are prepared to assess your case rapidly, and with reliable results. We will offer expert counsel at all stages of the legal process, beginning at the time of your arrest; during the ensuing investigation; at the pre-trial hearings, during any plea negotiations; and also at trial. Our goal is to do everything we can to have the best possible outcome and to avoid a criminal conviction. We are dedicated to providing the best Criminal Defense and we are qualified to handle any type of criminal matter.

We will protect you from the police and represent you throughout the entire criminal process. We understand that each criminal defense case is unique, and as such, demands a personal approach and defense strategy. We also know that choosing a  criminal defense attorney is an extremely important decision, and that you deserve to have your rights protected at a reasonable rate. We have successfully and effectively represented thousands of people with all types of criminal problems. But timing is critical. You need to know your rights under the law and act to protect them immediately.

For a free consultation, please call 303-447-1400 or email us.