Reality of the Courts

Last week, I finished up an OUI case with one of my clients.  When this client first came into my office, I read the police report and listened to his version of the events.  While I didn’t completely believe everything my client was telling me, I didn’t quite buy the story the police officer was telling, and he seemed to have a fairly decent case.  The only test the police officer was able to get my client to perform was the eye test (horizontal gaze nystagmus), and that test had a good chance of being suppressed.  My client refused to do any other tests, to include the breathalyzer.  So ultimately, the only evidence against my client was the officer’s observations, and those observations could be explained in any number of ways.  There were also several holes in the officer’s story, and a few things that didn’t make sense.  However, as with any case, I wanted to see all that the District Attorney had before we started getting ahead of ourselves.

The discovery took a couple of months to get, and we were on our third pretrial hearing by the time the discovery came in last week.  All of a sudden, this really good case that I had started looking dismal.  The complete police report mentions two other officers that were on the scene, as well as the Chief of Police who had to assist my client into the booking room because he could not walk in on his own.  I also learned about two civilian witnesses and three firefighters who were on scene due to possible medical issues.  Each one of these witnesses was prepared to testify that my client was, quite literally, falling down drunk.  Although my client wanted to call this a conspiracy and attempt to prove so at trial, I had to point out to him the reality of the courts.  We were in a court that favors the police and prosecution.  I could have poked holes in the officer’s report, but if we were to go to trial, with the testimony of the witnesses against my client, there was a strong likelihood that we would have lost…bad.  And when it came to sentencing, the judge would have undoubtedly been harsh because, if for no other reason, the Chief of Police felt the need to come into court to testify in this case.  The judge would have looked at this as though we were wasting the court’s time, as well as the time of the Chief.  It wouldn’t have been pretty.

I managed to work out a really good deal for my client, but the end result is not what either of us were hoping for.  No matter how good your case is, I can’t stress the importance of waiting until that discovery comes in before making a full assessment.  You never have the entire story from an initial consultation, or from an initial police report.  There’s always more to the story, and sometimes that something more is compelling to one side or the other.  Also, you need to know your courts.  What may work in some courts won’t necessarily work in others.  Every judge is different.  Although neutral, every judge is going to look through the filter from a different perspective.  I have worked with some judges who look at all of the evidence through a filter that is in the light most favorable to the Defendant.  Others will look at it in a light most favorable to the Prosecutor.  Know which way your judge is going to lean before you fully assess your case.  And as always, consult with an attorney before trying to represent yourself.  It may turn out to be the deciding factor in your case.

The Purpose of Sobriety Checkpoints

As we approach the holiday season, you will begin to hear more often that the police “are out in force.”  As a former police officer, I will tell you that budgetary constraints do not generally allow the police departments to add officers on any given shift.  What that phrase usually means is that the officers usually working those shifts are being told to stay on the streets as opposed to spending time in the station or barracks.  However, one thing you will certainly see is an increase in the number of “Sobriety Checkpoints.”

Sobriety checkpoints are a part of the Administrative Warrant Exception to the 4^th Amendment.  The sole purpose of the Administrative Warrant doctrine is for the safety of the public.  The US Supreme Court, in Michigan v. Sitz, noted that the balance of the State’s interest in preventing drunk driving, the extent to which the system can reasonably be said to advance that interest, and the degree of intrusion upon motorists, weighs in favor of the state program.  There are, however, rules that the police have to follow in order to properly conduct a sobriety checkpoint.

In order to run a sobriety checkpoint, there must be a written, administrative policy at the police department.  That policy must dictate how the officers will stop the vehicles.  For example, the officers are to stop every car that comes through the checkpoint, or they are to stop every third car that comes through the checkpoint.  The police cannot stop cars “at random.”  Nothing can be left to the discretion of the police officer.  In Massachusetts, the SJC has added that the date, time, and location of the checkpoints must be “published.”  Further, the written policy must be on file at the police department, and must state the department’s reasons for conducting sobriety checkpoints.  The checkpoint can then only be used in connection with that policy.  I have seen policies that go as far as to require each officer have a 3×5 card on them with a specific greeting, and the greeting must be read verbatim to the stopped drivers, explaining the purpose of the stop.  However, bear in mind, in Massachusetts the odor of alcohol alone is enough to establish reasonable suspicion by the officer to further detain a driver for testing.

Almost every policy I have seen mentions something about the safety of the public being one of its purposes, and deterrence of drunk driving as being another.  I can tell you from experience that sobriety checkpoints do not deter drunk driving.  I have personally stopped numerous vehicles at sobriety checkpoints with drivers who knew they were driving into a checkpoint, and have blown well over the legal limit.  One individual, in fact, after being arrested once by me during a checkpoint, and after being bailed, was picked up by her friend, borrowed the keys to her friend’s car, and drove right back through the checkpoint because she “had to go to the store.”  Hmmm…I wonder what she was looking to buy?

Sobriety checkpoints are a useful tool for the police to help us be safe on the roads this holiday season.  As always, I would suggest that you monitor the amount of alcoholic beverages you are drinking, and never risk driving under the influence of alcohol.  However, if you come across a sobriety checkpoint, and you are subsequently arrested for DUI/OUI, be sure to discuss all of your options with your attorney.  There may be possible defenses available if the officer deviated from the written policy of the department.

Criminal Standards of Proof

While speaking with an OUI client this week, I found myself again explaining to him the different standards of proof.  This is a conversation that I generally have with clients in an initial consultation, but the nuances between the different standards can be confusing to some people.  Most clients come into the office and tell me that the police officer didn’t have “probable cause” to pull him over.  This may be true.  But an officer doesn’t need probable cause to pull you over.  He only needs “articulable suspicion.”

When it comes to criminal law, there are generally three standards of proof that you are dealing with.  The first is articulable suspicion.  To put it as simply as possible, what this means is that the officer must be able to articulate that he believed a crime (or motor vehicle violation) occurred, or was in the process of occurring, and why.  This is an extremely low standard.  I mentioned in a previous blog that, while working as a police officer in my former life, I used to read the motor vehicle code on the midnight shift to give myself something to do.  The average driver has no idea of all the different reasons that could get him/her pulled over by the police.  Your fuzzy dice, CDs, and graduation tassels hanging from your rear view mirror can get you pulled over.  If you cut through a parking lot to avoid getting stuck at a traffic light, you can get pulled over.  If you are weaving in the lane, even if you haven’t crossed over either the yellow or white line, but you have been weaving for a considerable distance, a trained police officer can articulate that he believed there was something wrong and he needed to pull your car over to check on you.  So the long story short of it is that articulable suspicion is a very low standard.  It allows the police to investigate the situation.

The second standard of proof is “probable cause.”  Probable cause means that more probably than not a crime was committed, and you probably committed that crime.  With search warrants, it’s more probable than not that a crime was committed and the thing (the item, person, etc) the police are looking for is probably in the place to be searched at the time the police are searching.  This is a little higher standard than articulable suspicion, and the police are required to meet this standard before making an arrest or even asking a judge for a search warrant (keep in mind there are many exceptions that allow the police to search without a warrant, but that’s an explanation for another day).

The last standard of proof to deal with in criminal matters is “beyond a reasonable doubt.”  This is the standard for conviction of a crime.  A jury (or a judge as the case may be) must find a defendant guilty beyond a reasonable doubt.  This does not mean that they must find you innocent beyond ALL doubt.  There are no absolutes in life, and anyone can stretch an explanation to such an improbable degree that doubt can be found.  Rather they must find you guilty beyond a reasonable doubt.  This is an extremely high standard.

The standards of proof can be difficult to grasp at first.  At our office, we believe the only person who has rights is the person who knows what their legal rights are.  If you are under investigation by the police, have been arrested for a crime, or you are currently waiting trial, make sure your attorney explains to you the different standards of proof until you completely understand them.

Welcome to our Blog

Welcome to the North Andover Criminal Law Blog for the Law Office of Timothy F. Stark.  We believe that experience and engagement form the foundation of an attorney’s effectiveness in any legal matter.  Whether you are facing a criminal issue, employment issue, or a divorce, you deserve to understand your rights and have them upheld by an attorney who can offer you commitment without compromise.

At the Law Office of Timothy F. Stark, you can expect dynamic and forceful representation in court.  You can anticipate legal resolutions that are both innovative and durable.  Above all, you can appreciate the return to fundamentals that defines our work.

Contact our office for a consultation.