Wednesday, December 16, 2015

Holiday DUI tips and strategies

1    Q: If I am detained and arrested by police for DUI, what are my rights? 

A: DUIs are rigorously enforced and prosecuted. While the case is being filed in court, the DMV gets the information of your arrest, and you should consult a lawyer immediately to protect your rights at the administrative hearing for your license suspension. It is only a myth that you cannot beat your DUI, no matter what the facts are.  

DUI criminal prosecution is based mainly on the arresting officers’ subjective opinion and impressions as to your perceived level of intoxication and the pseudo-scientific evidence of the breath/blood based on the testimony of the biased criminalist on payroll with the law enforcement agency. Both can be effectively countered and discredited depending on who is your lawyer. 

First, when you are detained by a police officer for some alleged traffic violation or at a sobriety checkpoint, you should not answer any questions regarding your drinking. Any statements you make regarding your drinking pattern or where you were coming from will be used as evidence against you in court. The police are not obligated to read Miranda rights before those questions, because the Supreme Court has decided that those are merely investigatory questions. However, you have a right to tell them politely that you do not want to volunteer that information. Second, when they confront you with their suspicion you might have been drinking or that you smell alcohol, don’t fall into the trap. They are using psychological tricks on your mind, by implanting fear in your brain to gather information to use in court against you. Third, don’t agree to field sobriety tests by telling them you are not physically fit or have physical impairment to be able to do those tests right at that moment. An average sober person fails those tests anyway due to various reasons. They are still being used as law enforcement tools to detect possibility of impairment and to solidify their suspicion. Why give them additional bogus ammunition to use in court against you. Fourth, you do not have any obligation to agree to blow into the small testing device that the police ordinarily carry with them. This is called a PAS machine that is highly inaccurate and detects mouth alcohol, or stomach acid, which will then alert them to alcohol presence in your body and further investigation. 

Fifth, if you do all of the above, but still are arrested and taken to the station, you will be told you have to submit to a blood/breath test there. By California law they have to admonish you that if you refuse this test, your license will be suspended. It is true. However, you should be advised that once you provide blood/breath (depending on your choice), you will provide legally admissible evidence of presence of alcohol in your system. Therefore, you should weigh seriously whether suspension of your license is as important to you as getting a criminal conviction in your record. By balancing the two, you should either refuse the test or submit to it. Certainly, if you had only insignificant amount of alcohol several hours before driving, you should submit to the test, preferably blood test, to discredit the officer's subjective impressions. If you refuse, your refusal can still be used against you in court as consciousness of guilt. However, the government will not have any hard evidence of alcohol in your system, except for subjective impressions of police. Remember, the government can not forcefully draw the blood without a warrant, with very limited and notable exceptions.

If you decide to submit to the test, it is still not the end of your case. Both blood and breath tests are extremely inaccurate for a number of reasons. First, the breathalyzer that is used to obtain breath sample is subject to numerous errors and its scientific validity is still questioned. Second, the effects of alcohol on the human body are a subject of fierce scholarly debate. Your lawyer qualified in this field will be able to counter the prosecution so-called expert, the criminalist, who works for the county with a real expert, who will come to court and discredit the entire prosecution theory. This is done every day in court and the most difficult DUI cases with the most impossible facts can be won as I have done in the past rigorously defending my clients.   

 Happy and safe Holidays!

Wednesday, November 18, 2015

The "Soft" Power of International Law

With the recent escalation of violence in the Middle East and the bombings in Paris, the issue of refugees has become a focal political point in the West. Half the states in the U.S. have gone so far as to openly proclaim they are refusing to accept refugees from Syria. See Here and Here. Without getting into details on the federal government's authority to overrule these objections and place refugees anywhere it wants in the country, it is vital to review the international law on refugees. It is quite disheartening to see U.S. citizens and officials so unaware of international laws and norms on any issue. Europe has been under a constant influx of refugees from the Middle East for two decades now and when their countries started openly resenting it, the United Nations placed mandatory quotas on them for accepting refugees. See Here. There have been no mandatory quotas placed on the United States and the US government informally has been fending off the refugee issue while officially proclaiming they will accept more in 2016 here. There is a formal administrative process in place for seeking a refugee status through the UNHCR, United Nations Refugee Agency, which then refers refugees to countries. However, if a country is unwilling to accept refugees, the UN as an agency often has no political will to coerce it.

International refugee law is a set of rules and procedures that aims to protect persons seeking asylum and those recognized as refugees under relevant instruments. Grounded in the Universal Declaration of Human Rights adopted in 1948 by the United Nations, the two main sources of refugee law are treaty law, notably the 1951 Refugee Convention and its 1967 Protocol, and customary international law. It is critical to understand that customary international law applies to all states irrespective of whether they are parties to a convention or not. Thus, even if the United States had not been a party to the treaties on refugees, it would still be bound by the law. However, the United States has been a party to the 1951 Convention at its inception. This concept has long triggered theoretical discussions on the application and enforcement of international laws to various problems in the world. As Justice Cardozo has eloquently stated: "International law.. has at times, like the common law within states, a twilight existence during which it is hardly distinguishable from morality or justice, till at length the imprimatur of a court attests its jural quality." New Jersey v. Delaware, 291 U.S. 361, 383.

 According to the 1951 Refugee Convention a refugee is a person who:

...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

See for more here

Developments in international human rights law have reinforced the principle that the Convention be applied without discrimination as to sex, age, disability, sexuality, or other prohibited grounds of discrimination. A number of principles are especially important to note. First, non-discrimination: the provisions are to be applied without discrimination on any of the recognized grounds. For example, a Muslim cannot be rejected a refugee status merely based on his/her religion. Second, non-penalization: the refugees cannot be penalized for illegal entry into the country and breaching immigration laws. Hence, once a person is defined as a 'refugee' under this Convention, he/she may not be persecuted or arrested for migrating to the country. Third and more crucial, the principle of non-refoulement: a refugee cannot be returned or expelled back to his/her country against his/her will when he/she fears threats to life or freedom. Lastly, the Convention lays down basic rules on the minimum treatment of refugees: access to travel documents, access to courts, primary education, right to work, general welfare and housing rights.

The principle of non-refoulement is considered a part of the customary international law and cannot be derogated by any state. The purpose behind is clear: it is against international law norms to return a person to a zone of life-threatening danger. Conceptually, not giving a safe haven to a refugee is the same as expelling him/her, because if a refugee is mistreated by the newly founded home, that will have the effect of forcing that person to further migration, which takes us into a different concept of internally displaced persons. Internally displaced persons (IDPs) are defined in the 1998 Guiding Principles on Internal Displacement as:

“persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border”.

While there are legal differences between refugees and IDPs, their treatment is still well-governed by the same principles of international law grounded in the Universal Declaration of Human Rights and other humanitarian instruments. See here the UNHCR Handbook on Protection of IDPs.

It is easy to lay out an international law on an issue, harder to enforce it. The adjudication of asylum status has been left to countries/States. The regional and international bodies do not have jurisdiction to rule on who is admitted or not admitted to the United States. However, they have jurisdiction to evaluate whether a given ruling by a national court has violated the international law. The domestic courts also have the prerogative of interpreting key terms from the international conventions.

For example, in Sale v. Haitian Ctr. Council, Inc.,509 U.S. 155 (1993),the U.S. Supreme Court held that the U.S. was not in violation of its non-refoulement obligation when it returned Haitians interdicted on the high seas because the Haitians were not within U.S. territory and therefore the non-refoulement obligation did not apply. However, the Inter-American Commission on Human Rights (IACHR) rejected this reasoning in IACHR, Report No. 51/96, Case 10.675, Haitian Centre for Human Rights(United States), 13 March 1997. The IACHR held that the U.S. had violated the petitioners’ right to seek asylum as well as their right to life, liberty and security of the person when it summarily returned interdicted Haitians – many of whom were subsequently arrested by Haitian authorities – without providing them with a meaningful opportunity to have their claims adjudicated. The IACHR also held that the U.S. had violated their right to freedom from discrimination, noting that a much more favorable policy was applied to Cubans and Nicaraguans. For more here.

From reading the international instruments on the refugee treatment, it is clear that states/countries cannot unilaterally turn their backs to the crisis of refugees from the Middle East or other hot spots in the world. It is at minimum a well-settled customary international law principle, as well as treaty-based law that refugees cannot be rejected, expelled and treated inhumanely. To what extent states/countries will follow this well-settled international law and custom is more about self-image and credibility as a nation in the international community. I have always believed that international law's expressive function is a lot more pronounced and crucial than its coercive function. States are like children, who won't be coerced into compliance, but may voluntarily behave accordingly if it has the effect of increasing approval by others and higher self-esteem. For a Theory of Expressive International Law see here.

Thursday, October 22, 2015

The epidemic and the possible cures?

In the recent years of activities by the Innocence Project, when new scientific evidence and investigations uncovered the ugly stories behind convictions and lengthy sentences of hundreds of convicts, based on false eyewitnesses, police framing, false confessions, and prosecutors withholding material exculpatory evidence under Brady, there has been a real effort to confront the reality, name it by its name and find a cure. The laws on prosecutor's duty to disclose exculpatory evidence have been in place for a long time, at least since the cardinal case of Brady v. Maryland (1963) 373 U.S. 83, when the Warren court laid out the landmark ruling, that withholding of evidence material to guilt or innocence by prosecuting agencies is in violation of the due process. Multiple Supreme Court and state court cases since then have elaborated, articulated and specified the parameters of this simple rule. The prosecuting agencies, which includes the law enforcement, not only have had to disclose what they had available, but also have a duty to preserve evidence that was material to guilt or innocence. Arizona v. Youngblood (1988) 488 U.S. 51; California v. Trombetta (1984) 467 U.S. 479.

But the law was given lipservice and was shed in so many outrageous ways that it begs the question: are we a nation of laws any more? As the recent developments have shown, the prosecutors and their agents have been routinely concocting convictions by withholding evidence that could exonerate the defendants. Brady violations are routine in our practice. We don't get evidence even when we specifically ask for it. The Brady duty is self-executing. The prosecutor has an independent duty to disclose it regardless of any requests. The unfortunate fact is that the law enforcement has priority access to all evidence, as they get to the crime scene first, and are the first to speak to eyewitnesses, to gather forensics, ballistics, etc. There is a lot of room for improper conduct which can be undetected for years and years. The problem has become so widespread that the Ninth Circuit Judge Kozinski, has called this an 'epidemic' of prosecutorial misconduct in California and has spoken openly in a scathing indictment against these practices, calling to end them. See here. But the most appalling is that, as Kozinski stated, '[they] got caught this time, but they are going to keep doing this, because they have state judges who are willing to look the other way.' 

The law enforcement will keep doing this, but why do prosecutors, as attorneys who are sworn to uphold the laws, and have ethical responsibilities, fall into the trap?! It is a question that begs another question. Is the system set up in a way that encourages this prosecutorial misconduct?! Do prosecutors have sufficient discretion in their offices to do the right thing, to gather the correct information. Is the desire to obtain a conviction stronger than the prosecutorial duty to obtain justice? 
 Whatever the motives and reasons behind the prosecutorial misconduct, the question is how to cure the epidemic. As Judge Kozinski correctly pointed out, while the judges are willing to keep looking the other way, the prosecutors will not have any incentive in correcting their behavior. As he stated: 

"While most prosecutors are fair and honest, a legal environment that tolerates sharp prosecutorial practices gives important and undeserved career advantages to prosecutors who are willing to step over the line, tempting others to do the same. Having strict rules that prosecutors must follow will thus not merely avoid the risk of letting a guilty man free to commit other crimes while an innocent one languishes his life away, it will also preserve the integrity of the prosecutorial process by shielding principled prosecutors from unfair competition from their less principled colleagues."
 See here . See here for the full article.

 Kozinski has offered many solutions to this epidemic, one of which is to have judges appointed, rather than elected. In his opinion, if judges had the political autonomy, not bound by public opinion, they would have more incentive to reign in these rogue prosecutors. It is true that judges as most elected officials feel they have a duty to follow the public sentiment that is generally calling for toughness on crime and stronger victim's rights. However, as a criminal defense attorney of almost 10 years, I have not seen any difference between appointed and elected judges in that regard. The appointed judge, just as the one who is up for re-election, is scared of the spectre of her name appearing in the papers, in connection of a heinous crime by a 'criminal' who was released on bail or probation by her. Hence, tough and lengthy sentences. Hence, the desire to convict. Hence, institutional approval of prosecutorial misconduct and  no scrutiny of law enforcement techniques that obtain convictions. There are various pre-trial motions filed by us, defense attorneys, that give multiple opportunities to judges to scrutinize the law enforcement tactics in obtaining the evidence. However, they turn a blind eye, denying suppression of unlawfully obtained evidence, whether it is a confession or real evidence, denying motion for personnel file of the involved police officer, denying motion to exclude confession obtained in violation of Miranda rules, denying motion to obtain prior criminal record history of alleged victim.... 

The reality is that most judges are former prosecutors, whose sympathies and loyalties are aligned with the prosecutors doing these outrageous things to obtain convictions. In a perfect world they are impartial arbiters of justice. Some of them are and do strike the proper balance. But so many more are simply not up to the task. Those who do the right thing almost often face political repercussions.

California has recently passed the bill AB 1328 here, that mandates judges to report individual prosecutors to the State Bar for failure to disclose exculpatory evidence. It also allows the judges to disqualify not only the individual prosecutor for a Brady violation, but also the entire DA's office upon any evidence of a pattern or practice of intentional Brady violations.  

I doubt this will have any teeth because of the political structure in our country: the power tilting in favor of the governmental authorities pursuing law and order against the individual's rights enshrined in the Constitution.

Friday, October 9, 2015

Fourth Amendment in the age of surveillance

The Fourth Amendment has been under a massive attack in the post-911 age where the privacy of the U.S. citizens has been held to be secondary to public safety and counter-terrorism efforts. The unprecedented technological advances have made it a lot more possible than one could imagine. Surveillance, wiretapping, tracking devices, and more and more technological means of monitoring human activities are entering the landscape, prompting judges to look outside the box in analyzing the Fourth Amendment challenges. The determination whether a government action is in violation of the Fourth Amendment is a two-tiered analysis, 1) whether the challenged action by government is a search/seizure, 2) whether it is reasonable. The larger question of course is how much privacy can we legitimately expect in this world where all our actions, whether it is at home, at work or in the streets, are tracked by the government. We are being tracked and monitored when we browse on the internet, go shopping, eat dinner with our family, and go on vacations. All the credit cards and other plastics we carry have encoded chips with our personal information. Every activity we engage in is highly monitored. Our identity, our daily lives, our 'personal' information is no longer private, but public information, widely accessible to everyone, specifically the government.

Because the 'search' as a concept no longer has the traditional meaning, the judges have tried to delineate the contours of the new Fourth Amendment limitations. Significantly, in 2001 in Kyllo v. United States, 533 U.S. 27, the Rehnquist Court held that the use of a thermal-imaging device to track the heat emitting from the suspect's home was a 'search' within the Fourth Amendment that required a warrant. Despite the fact the device was placed in the public vantage point and was only tracking the heat not human activity emitting from home, it was rightfully considered a 'search.' It was very interesting, how the justices divided in a 5-4 opinion: Scalia was joined by Souter, Thomas, Ginsburg and Breyer for majority, while Stevens dissented with Rehnquist, O'Connor and Kennedy. Scalia urged that there was no difference between 'off-the-wall' and 'through-the-wall' technology, since both intruded upon the privacy of the home.

Flash forward to 2011, Scalia delivered the opinion of the Court in U.S. v. Jones, 132 S. Ct. 945, where the Court held that use of a GPS-tracking device on a vehicle  similar to a thermal-imaging device in Kyllo constituted a search within the Fourth Amendment that required a warrant. In fact, this was an easier case for the Court because the device was actually installed on the vehicle unlike the thermal-imaging device that was monitoring the home of Kyllo from the public space. Consequently, the Court held that this type of an encroachment would have been "considered a search within the meaning of the Amendment at the time it was adopted." Even the originalists, who tend to resort to the 'original' meaning  and purpose of the Constitution would agree with that. The Court hooked on the common-law trespass jurisprudence of the Fourth Amendment prior to the Katz holding (Katz v. United States 389 U.S. 347) to dispense with the argument by Government that Jones did not have "reasonable expectation of privacy" under the circumstances. The Court made it clear, what was objectionable was that the Government "physically occupied private property" for the purpose of obtaining information and that the Katz holding did not substitute but only supplemented the common-law trespass theory of Fourth Amendment protections.

In light of U.S. v. Jones the Court has recently held in Grady v. North Carolina, 575 U.S. __ (2015), No. 14-593 that the satellite-based monitoring of a registered sex offender was a search within the meaning of the Fourth Amendment and has to be reasonable. In that case North Carolina had demanded to install a tracking device on Grady, a convicted sex offender, without his consent to monitor his activities for the rest of his life. The Court easily dispensed with the unsupported position of the Government that this was not a search, but remanded it for further proceedings whether this could be found reasonable.

It seems, there are two tracks the U.S. Supreme Court has been following in grappling with these cases. Common-law trespass arguments that prohibit 'physical' intrusion by government into a protected area, and the 'reasonable expectation of privacy' arguments formulated by Katz. It is a flexible and useful approach. However, it lends uncertainty to the Fourth Amendment jurisprudence, because it leaves much room for inconsistent opinions by judges below and lack of confidence in how the U.S. Supreme Court will decide the next case. In this age, it would be vastly critical to have a certain amount of certainty when it comes to our privacy rights and the degree to which the Government can intrude upon our lives.

Wednesday, October 7, 2015

Outdated technology and reduced privacy

The California legislature has recently introduced a bill SB 249 (Hueso) on enhanced driver's licenses, that use "RFID" (radio frequency identification) CHIP technology to facilitate movement across california-mexican border. The goal is to reduce the border congestion and wait lines. However, as the critics have pointed out, the technology is outdated and unreliable because these chips are un-encrypted unlike the modern credit cards and passports. It not only opens doors for identity thieves but also privacy breaches by the government and employers, who may in addition decide to make them a job requirement. The significant fact is that the personal information stored in these licenses would be remotely accessible. The bill is couched in terms of giving false sense of security to those who apply for these licenses, something that should be widely challenged by privacy advocates.

With the modern technological advances used by the American government to facilitate the law enforcement and surveillance of citizens and non-citizens alike, we have long said goodbye to our privacy. The question is how far are we going to go with the open efforts by government to co-opt us into 'voluntary' compliance? 

For more see here and here.