Southern Maine Criminal Lawyer Blog

THE TIDE HAS SHIFTED…..

Published on: September 20, 2013 | by Webb Law Firm

The Supreme Court recently decided a case Missouri v. McNeely, 567 U.S. ____ (2012) holding that police officers cannot normally conduct blood-alcohol tests without a warrant. After being stopped by a police officer for speeding and crossing the centerline the officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath.

McNeely admitted to the officer that he had consumed “a couple of beers” at a bar, and he appeared unsteady on his feet when he exited the truck. The officer conducted field sobriety tests on McNeely who performed poorly on the tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC).

The officer then placed him under arrest and transported McNeely to a nearby hospital for blood testing. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution.

DUI breath testing and radio frequency interference

Published on: June 13, 2013 | by Webb Law Firm

breathtest-300x199-1 Wikipedia defines Radio Frequency Interference as:

“Electromagnetic interference (or EMI, also called radio-frequency interference or RFI when in high frequency or radio frequency) is disturbance that affects an electrical circuit due to either electromagnetic induction or electromagnetic radiation emitted from an external source.^[1] The disturbance may interrupt, obstruct, or otherwise degrade or limit the effective performance of the circuit. These effects can range from a simple degradation of data to a total loss of data.”

This article discusses RFI and breath testing machines.

A Bad Day of Driving Then Drinking

Published on: October 24, 2012 | by Webb Law Firm

The author of one of the greatest home runs in baseball history, thirty-seven years ago Sunday, was arrested for DUI/OUI/DWI on Monday, October 24th. Hall of Fame catcher Carlton Fisk, a god to Red Sox fans like me after his homerun in Game 6 of the 1975 World Series, was arrested in New Lenox, Illinois, refused to take a breath test and had an open bottle of vodka in the truck which was located in a cornfield.

If you are sitting in your vehicle in the middle of a cornfield and are charged with DWI/OUI/DUI here in Maine, you need to consult with a lawyer to help defend your case. How will the DAs Office prove this case beyond a reasonable doubt? Operation of a motor vehicle is an element of the crime that must be proven beyond a reasonable doubt. Was there actual operation? Did the driver admit to operation? In Maine, operation requires a person to either have power or attempt to put power to the wheels. 29-A M.R.S. § 2401(6); State v. Sullivan 146 ME 381 (1951). Is the vehicle in park, or was it in gear with the driver’s foot on the brake?

How will the government overcome the subsequent drinking issue? If there is an open bottle of liquor in the vehicle with the driver, how will they prove that any alcohol onboard the driver wasn’t consumed post-accident? Do they even know how long the driver was sitting in the cornfield?

John Webb Speaks at NCDD Summer Session

Published on: July 30, 2012 | by Webb Law Firm

I am proud to report that this past weekend I was a Demonstration Speaker and Group Instruction Team member at the Summer Session of the National College of DUI Defense, July 26th to the 28th, hosted by Dean George Stein and held at Harvard Law School in Cambridge, Massachusetts. www.NCDD.com

The National College of DUI Defense (NCDD) is a professional, non-profit corporation dedicated to the improvement of the criminal defense bar, and to the dissemination of information to the public about DUI Defense Law as a specialty area of law practice. The Summer Session is an annual national gathering of many of the finest DUI/DWI/OUI defense lawyers who meet to teach, learn and exchange ideas about defending citizens accused of operating under the influence of alcohol and drugs.

This has been one of the highlights of my legal career. I was so honored to be asked by Dean Stein to participate and even more honored to serve. This was my first time addressing the entire college, and my third time acting as an instructor. I am always amazed at how much I learn at these sessions, especially while teaching, and how gratifying it is to help others. Thanks to the entire NCDD Family for the support.

Canada allows entry if you have a DUI conviction.

Published on: February 29, 2012 | by Webb Law Firm

For years I have advised clients that a single DUI will bar entry into Canada for ten years and two convictions will bar you for life. Starting March 1, 2012, some of that will change. Immigration Canada has bowed to pressure from the Canadian tourist industry and has modified Canada DUI rules. Those businesses were losing millions of dollars every year because customers were being turned back at the border.

Under new policies people with one DUI conviction that is not too recent will be permitted to entry to Canada with a DUI on a Temporary Resident Permit (Canada TRP DUI) without a fee. People with more than one criminal conviction, whether they are DUIs or other crimes, will still be barred unless they obtain a TRP or a certificate of rehabilitation under the old rules.

You should still plan ahead and learn more about Canada entry requirements for DUI. It is not clear yet how recent or how serious a DUI must be to bar you. You should contact Immigration Canada at the Point of Entry where you plan to enter Canada to determine their interpretation before you go. It used to be that Canada does not allow DUI entry, but that is changing.

Why you need a DUI specialist lawyer

Published on: February 28, 2012 | by Webb Law Firm

dui-attorney-300x236 Many people I talk to think a DUI is something any lawyer can handle. As an experienced DUI specialist lawyer I can tell you that is not true. I have many hours of specialized training that most lawyers do not have. The following case is a good example of why a specialist is needed.

The case is State v. Soucy, 2012 ME 16. Mr. Soucy was speeding and was upset after a fight with his girlfriend. He was stopped by police and given field sobriety tests. He had balance troubles on the balance tests and the HGN test showed jerking of his eyes. He was arrested and blew a 0.00 on the Intoxilyzer. The cop asked him if he took medications and he told him he took oxycodone and hydrocodone. Mr. Soucy told police he wasn’t impaired by drugs, just tired and sick with the flu. They called in a Drug Recognition Technician to perform a DRE test.

A DRE test is a battery of tests and examinations. The technician examines the subjects eyes, blood pressure, muscle tone, balance, temperature and and other things. (There is a lot of doubt in the scientific world about the reliability of these tests, but that is for another blog.) The test showed pinprick pupils, HGN, rigid muscles and bad balance.

GPS Tracking Devices – SCOTUS Decision

Published on: January 30, 2012 | by Webb Law Firm

The 4th Amendment has been resuscitated!! Hopefully you recall back in September of 2010, I wrote about GPS tracking devices and a recent decision from the District of Columbia Circuit (“GPS Tracking Devices – A Warrant or Not A Warrant – That is Now the Question”). Well, on Monday we got our answer; kind of….

In United States v. Antoine Jones, #10-1259 United States Supreme Court (SCOTUS) Justice Scalia wrote the decision of the Court, that said the Government’s installation of the GPS tracking device on the suspect’s vehicle to monitor it’s movement was a search within the meaning of the 4th Amendment, and thus raised the issue of whether a warrant was required prior to the installation. I said “kind of….” because whether this search required a warrant was not answered.

The Court rejected the government’s argument that the attachment of a GPS device was not a search, but did not define how long or if you could track the vehicle with or without a warrant and what violates a reasonable expectation of privacy. The Court declined to opine on other details, like whether a warrant requirement applied to tracking cell phones. It appears that Justice Sotomayor was certainly ready to cast a much wider net and restrict government activity.

Supreme Court limits invasions of privacy

Published on: January 27, 2012 | by Webb Law Firm

supreme-court-300x237 This week the Supreme Court, in United States v. Jones, ___ US ___ (2012), decided that placing a GPS on a person’s car and tracking to movements is a search that requires a warrant. This is an important decision for several reasons. First, changes in modern technology make it easier for government to intrude on our privacy. Second, it made it clear that there are two ways to analyze when a search warrant is needed. Third, it shows that the Court may change its views of the Fourth Amendment as technology becomes more invasive of our privacy.

The facts were that Mr. Jones was suspected of drug dealing. Drug agents got a warrant to place a GPS on his car by a certain date in Washington, DC. They did not put the GPS on the car as specified in the warrant. Instead, they found the car in Maryland and put the GPS on the car after the warrant date. They tracked every move his car made for four weeks. Using the GPS information agents found evidence that arguably tied Jones to drugs and money. They charged him in a drug trafficking conspiracy.

Jones moved to suppress the evidence (prohibit the government from using it at trial.) He argued that placing the GPS on his car was a search, and that the search was illegal without a warrant.

I Got a DUI-OUI-DWI – Now What?

Published on: January 7, 2012 | by Webb Law Firm

OUI-300x200 If you get a DUI it is very important that you get a good DUI lawyer right away. If you wait, the chances of losing the case and losing your license get much, much worse. You may lose the chance to fight your license suspension if you wait too long. Equally as bad, critical evidence may be destroyed – that’s evidence you need to win.

Most states have a procedure that suspends your license for DUI or refusing a test BEFORE your court date. In some states the police take your license when they arrest you. In other states the Motor Vehicles department gets notice from the police about the DUI. Motor Vehicles then sends you notice of suspension that your license will be suspended soon. You have a right to fight this suspension, no matter which way they do it. But that right requires you to tell Motor Vehicles you want to fight it. The time to let them know is limited. In my state, Maine, you have ten days from the date of suspension to challenge the suspension. If you don’t file your challenge within those ten days, you can never challenge it.

Evidence you need to win your case may be lost if you don’t take steps to save it. Police video cameras record to hard drives. After a couple of weeks many of those hard drives start to record over the old recordings. Unless you put the police on notice that you want the video saved, you may LOSE IT FOREVER. That video may be the only evidence you have to prove the cop wrong. If there is no video it is your word against the cop’s word. Who do you think they will believe?

Changing a gun law won’t save lives

Published on: January 4, 2012 | by Webb Law Firm

guns-300x225 In yesterday’s paper there was an article about a shooting in Mt. Rainier National Park. There was a tragedy in the park. A young man, believed to be Benjamin Colton Barnes, had severe mental problems – possibly PTSD from service in Iraq. He shot several people near Seattle on New year’s Eve. He may also have been involved in another shooting incident that night. On New Year’s Day Barnes he fled to Mt. Rainier National Park.

Park police had a checkpoint set up to make sure people had chains because of the snowy conditions in the park. Someone blew through that checkpoint. One of the rangers followed that person. Another ranger, Margaret Anderson, set up a roadblock to stop the person who ran the checkpoint. As she was getting out of a vehicle she was shot and killed. Police believe Barnes was the shooter. Barnes was later found dead in the Park. The cause of death is believed to be hypothermia – he was found in a snowy stream in a T-shirt and jeans.

Before Barnes was found dead, rangers had rounded up all of the park visitors and evacuated them. They were afraid for their safety. Afraid that Barnes would try to kidnap or harm some of them.