My firm just recently convinced a District Court Judge to allow us to serve process in a civil case via facebook. This is the first time it has been done in New Mexico. It'll probably get appealed, but I expect the decision to stick.
Just imagine: how can the Courts on one hand say they believe in e-communications so much these days that we can now e-file documents with the court, and in the same breath say, they don't believe in electronic communications enough to believe that if you send one to someone, that they'll actually receive it. Service of process by electronic means has been permitted at least once before in federal court, and I expect that we will see an increase in this practice as defendants continually seek to avoid service of process, the Court's dockets continually swell, and the Courts become increasingly more computer savvy. See, Prediction Co. LLC v. Rajgarhia, 2010 U.S. Dist. LEXIS 26536, 6-7 (S.D.N.Y. Mar. 22, 2010)(Where the Court allowed service of process by e-mail).
Just imagine, "older, wiser counsel" advised me to dump the case once the defendant fled the country, saying I'd never be able to serve the defendant.
Hasta la victoria siempre!
Thursday, January 5, 2012
Tuesday, October 11, 2011
DWI : Accomplice Liability
The District Attorney's Office and law enforcement officers around the state have started charging passengers of vehicles with DWI for allegedly doing something to encourage the act of DWI. The theory of prosecution is not much different from the average accomplice liability case. For example, if you agree to drive the get-away car in a bank heist, you are equally guilty of robbing the bank as you did something in furtherance of the crime. The statute that allows for prosecution under this theory is called "Parties to a Crime."
I recently represented the first client I know of that faced trial for misdemeanor DWI under an accomplice liability theory. Though my client was acquitted, the District Attorney's Office has made it clear that they are actively going to pursue more prosecutions of non-drivers in DWI cases.
Here's the link to a story that ran on the news concerning the recent case I handled:
http://www.kob.com/article/11687/?vid=2908754&v=1
I recently represented the first client I know of that faced trial for misdemeanor DWI under an accomplice liability theory. Though my client was acquitted, the District Attorney's Office has made it clear that they are actively going to pursue more prosecutions of non-drivers in DWI cases.
Here's the link to a story that ran on the news concerning the recent case I handled:
http://www.kob.com/article/11687/?vid=2908754&v=1
Wednesday, July 6, 2011
The Casey Anthony Trial
I've been asked for my take on the Casey Anthony trial quite a few times lately. Here it is:
I didn't keep up with much of the trial itself. I watched bits and pieces of it and couldn't help but watch Nancy Grace blast Ms. Anthony's trial lawyer, Jose Baez, daily. The few courtroom excerpts that I did see showed Baez confidently advocating for his client --a client that was looking down the barrel at the draconian death penalty.
Confidence is key in trial work. Jurors need to feel confidence exuding from the attorney in order to be an effective advocate. It is so powerful that it can transcend all other forms of communication. It is impressive that a Latino lawyer with but 6 (six) years of experience could exude that sort of confidence --confidence in his abilities, and his client's perspective(s). I was only five years into my practice when I went to trial on my first murder case, and I know what the tremendous pressure is like.
About the Anthony case, I was asked, "she was guilty right? Cops and prosecutors don't just charge people on a hunch and haul them into court, right?" Wrong. There is always two sides to each story. In many cases, police proceed forward on a case without fully investigating each side because they are unable to contact witnesses or obtain evidence. That's why we have discovery and then trials. District Attorneys suffer from the same constraints and problems police deal with too --except with more pressure on them to perform.
During the course of his representation in the Anthony case, Mr. Baez was repeatedly warned by jail officials to stop hugging his client during jail visits. Lawyers are not only licensed and learned in the law, but are also trained in advising clients and looking out for their best interests. After finding out that she was in jail about three years for a crime she was not guilty of, it's clear that she deserved a hug or two while she was forced to wait in jail only for an opportunity for her charges to be heard. Counseling clients is very important. With their future on the line, they need to know that they are going to get through it and what to expect.
I congratulate Mr. Baez for a great victory in a hard-fought battle to save his client's life.
I didn't keep up with much of the trial itself. I watched bits and pieces of it and couldn't help but watch Nancy Grace blast Ms. Anthony's trial lawyer, Jose Baez, daily. The few courtroom excerpts that I did see showed Baez confidently advocating for his client --a client that was looking down the barrel at the draconian death penalty.
Confidence is key in trial work. Jurors need to feel confidence exuding from the attorney in order to be an effective advocate. It is so powerful that it can transcend all other forms of communication. It is impressive that a Latino lawyer with but 6 (six) years of experience could exude that sort of confidence --confidence in his abilities, and his client's perspective(s). I was only five years into my practice when I went to trial on my first murder case, and I know what the tremendous pressure is like.
About the Anthony case, I was asked, "she was guilty right? Cops and prosecutors don't just charge people on a hunch and haul them into court, right?" Wrong. There is always two sides to each story. In many cases, police proceed forward on a case without fully investigating each side because they are unable to contact witnesses or obtain evidence. That's why we have discovery and then trials. District Attorneys suffer from the same constraints and problems police deal with too --except with more pressure on them to perform.
During the course of his representation in the Anthony case, Mr. Baez was repeatedly warned by jail officials to stop hugging his client during jail visits. Lawyers are not only licensed and learned in the law, but are also trained in advising clients and looking out for their best interests. After finding out that she was in jail about three years for a crime she was not guilty of, it's clear that she deserved a hug or two while she was forced to wait in jail only for an opportunity for her charges to be heard. Counseling clients is very important. With their future on the line, they need to know that they are going to get through it and what to expect.
I congratulate Mr. Baez for a great victory in a hard-fought battle to save his client's life.
Wednesday, May 25, 2011
Red Light Cameras
As you may know, the STOP Ordinance here in Albuquerque declares the act of driving over the speed limit a nuisance. It allows the City of Albuquerque to camera record drivers, capture images of speeders and issue a fine for speeding. The ordinance holds the owner of the vehicle liable for the act of speeding (and of course a hefty fine) whether they are driving the vehicle or not.
A Brief Legislative History
At first, the ordinance was advertised as a safety mechanism that was not intended as a revenue-generator. Shortly after commencing the program, the ordinance began to generate much-needed revenue for the City. The City of Albuquerque contracted with an Arizona-based company (Redflex) and made them millions of dollars as well. The New Mexico State Legislature then passed a bill that would have required municipalities to share the revenues earned by the STOP program with the State. The Governor then, Bill Richardson, did not sign the bill into law, but asked the local municipalities to "take a look" at how high the fines were. Later, in 2008, "The Guv" went ahead and signed a bill that took some of the revenues from the cameras. The City of Albuquerque had also lowered its fines by about thirty percent (they went from over about $100.00 to $75).
Then, the program went in the red. At that point in time, the City waivered back and forth as to whether or not it would continue the program. It became too costly, which is obviously a consideration contrary to the selling point: "the program was not a revenue generator, but a safety issue." The ordinance is still in effect, bu the contract with the provider (Redflex) has expired.
The Constitutionality of the Ordinance
Pursuant to the New Mexico State Constitution, Art. X §6(D), and New Mexico State Statute §3-17-1, municipalities like the City of Albuquerque can only adopt ordinances or resolutions consistent with the laws of New Mexico. The state statute only allows the municipalities to define a nuisance on a person who "creates or allows a nuisance to exist." In turn, since the owner of the vehicle caught on camera is held liable no matter whether they created or allowed the driver of their vehicle to speed, the ordinance is clearly contrary to state law. Again, by law, the City should have to prove that the owner of the vehicle created or allowed the vehicle to be driven above the speed limit in order for the city to hold the owner of the vehicle liable for the fine.
The Ordinance's Lawfulness Challenged
A colleague of mine has challenged the constitutionality of the STOP Ordinance. He lost the administrative hearing, lost his appeal in State District Court, and lost his appeal to the New Mexico Court of Appeals. The case is now pending in the State of New Mexico's Supreme Court. It is styled Case No. 32,941.
I hope that the Supreme Court sees the ordinance as what it is: an unlawful hidden tax imposed on folks from Albuquerque and those who drive there. In the meantime, I recommend that you slow down out there!
A Brief Legislative History
At first, the ordinance was advertised as a safety mechanism that was not intended as a revenue-generator. Shortly after commencing the program, the ordinance began to generate much-needed revenue for the City. The City of Albuquerque contracted with an Arizona-based company (Redflex) and made them millions of dollars as well. The New Mexico State Legislature then passed a bill that would have required municipalities to share the revenues earned by the STOP program with the State. The Governor then, Bill Richardson, did not sign the bill into law, but asked the local municipalities to "take a look" at how high the fines were. Later, in 2008, "The Guv" went ahead and signed a bill that took some of the revenues from the cameras. The City of Albuquerque had also lowered its fines by about thirty percent (they went from over about $100.00 to $75).
Then, the program went in the red. At that point in time, the City waivered back and forth as to whether or not it would continue the program. It became too costly, which is obviously a consideration contrary to the selling point: "the program was not a revenue generator, but a safety issue." The ordinance is still in effect, bu the contract with the provider (Redflex) has expired.
The Constitutionality of the Ordinance
Pursuant to the New Mexico State Constitution, Art. X §6(D), and New Mexico State Statute §3-17-1, municipalities like the City of Albuquerque can only adopt ordinances or resolutions consistent with the laws of New Mexico. The state statute only allows the municipalities to define a nuisance on a person who "creates or allows a nuisance to exist." In turn, since the owner of the vehicle caught on camera is held liable no matter whether they created or allowed the driver of their vehicle to speed, the ordinance is clearly contrary to state law. Again, by law, the City should have to prove that the owner of the vehicle created or allowed the vehicle to be driven above the speed limit in order for the city to hold the owner of the vehicle liable for the fine.
The Ordinance's Lawfulness Challenged
A colleague of mine has challenged the constitutionality of the STOP Ordinance. He lost the administrative hearing, lost his appeal in State District Court, and lost his appeal to the New Mexico Court of Appeals. The case is now pending in the State of New Mexico's Supreme Court. It is styled Case No. 32,941.
I hope that the Supreme Court sees the ordinance as what it is: an unlawful hidden tax imposed on folks from Albuquerque and those who drive there. In the meantime, I recommend that you slow down out there!
Friday, March 18, 2011
Say What?
Freedom of speech is and always has been one of the core values Americans believe in. The U.S. Supreme Court took the opportunity to re-examine the boundaries of freedom of speech recently in the case Snyder v. Phelps.
In Phelps, the Supreme Court found that members of the Westboro Baptist Church were acting within the bounds of the constitution's protections when they held up signs across the street from a killed soldier's funeral saying "Fags Doom Nations" and "Thank God for Dead Soldiers" and a few others. The family filed suit against the church members for, among other causes, intentional infliction of emotional distress. In its decision, the Supreme Court cited other precedent holding that: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Court held that the suit was properly dismissed by the Fourth Circuit because the church members were acting within their constitutionally protected right to freedom of speech. In the lone dissenting opinion, Justice Alito found that, "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."
Did the Court draw the line in the sand correctly? Core "American" values are being drawn and re-drawn based largely on society's daily political ebb and flow. The justices had a real opportunity to remind the American people that the law is supposed to be blind towards contemporary politics --that stuff is more properly reserved for the legislative branch.
The Court took that opportunity. The Westboro Baptist Church picketers should be blasted for what they did. They brutally attacked a family at its weakest hour. At the same time, they should be commended for courageously exercising their constitutionally-protected right to speak their minds, most likely knowing that they'd be sued and attacked from around the world for doing so.
In Phelps, the Supreme Court found that members of the Westboro Baptist Church were acting within the bounds of the constitution's protections when they held up signs across the street from a killed soldier's funeral saying "Fags Doom Nations" and "Thank God for Dead Soldiers" and a few others. The family filed suit against the church members for, among other causes, intentional infliction of emotional distress. In its decision, the Supreme Court cited other precedent holding that: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Court held that the suit was properly dismissed by the Fourth Circuit because the church members were acting within their constitutionally protected right to freedom of speech. In the lone dissenting opinion, Justice Alito found that, "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."
Did the Court draw the line in the sand correctly? Core "American" values are being drawn and re-drawn based largely on society's daily political ebb and flow. The justices had a real opportunity to remind the American people that the law is supposed to be blind towards contemporary politics --that stuff is more properly reserved for the legislative branch.
The Court took that opportunity. The Westboro Baptist Church picketers should be blasted for what they did. They brutally attacked a family at its weakest hour. At the same time, they should be commended for courageously exercising their constitutionally-protected right to speak their minds, most likely knowing that they'd be sued and attacked from around the world for doing so.
Wednesday, December 8, 2010
DWI: Breath-Alcohol Tests
Are the breath-alcohol testing machines used by law enforcement officers reliable? The answer, admittedly, is: sometimes. Scary isn't it?
First of all, most law enforcement officers will admit that the machine, if working properly, has a margin of error that they deem "acceptable" of .02 grams of alcohol/210 Liters of breath. In turn, if the machine is working exactly right, the resultant test score of .08 grams of alcohol/210 Liters of breath may actually be a .06 or a .10.
Then, there are testing issues. The laboratory or non-laboratory-like cleanliness of the testing facility can certainly impact the score. Some experts estimate that the cleanliness of the testing facility can affect the breath-alcohol test score by as much as .06!
In addition, the machines test themselves for accuracy, which is to say that there is no external apparatus that pretests the machine for accuracy. Instead, the machine itself tells the test administrator if it is working properly, and there is no additional test that insures that the machine's fail indicator is not failing.
In addition, the machines are supposed to be certified by a key operator and re-certified each time they are moved. The machines themselves are about the size of a 1989 IBM typewriter. Janitorial personnel routinely move them to dust under them, yet they are only certified by a key operator (in most instances) twice a year.
There are many, many other problems that affect the reliability of the breath-alcohol testing machine. In brief, two independent studies of the machine's source code have revealed more than a thousand errors in the source code. In turn, even if the machine is working right, it will provide an inaccurate score periodically due to machine error.
The problem is that in order to point out the major issues with the breath-alcohol testing machine, an expert witness is required by the Court. Expert witnesses are very, very expensive.
First of all, most law enforcement officers will admit that the machine, if working properly, has a margin of error that they deem "acceptable" of .02 grams of alcohol/210 Liters of breath. In turn, if the machine is working exactly right, the resultant test score of .08 grams of alcohol/210 Liters of breath may actually be a .06 or a .10.
Then, there are testing issues. The laboratory or non-laboratory-like cleanliness of the testing facility can certainly impact the score. Some experts estimate that the cleanliness of the testing facility can affect the breath-alcohol test score by as much as .06!
In addition, the machines test themselves for accuracy, which is to say that there is no external apparatus that pretests the machine for accuracy. Instead, the machine itself tells the test administrator if it is working properly, and there is no additional test that insures that the machine's fail indicator is not failing.
In addition, the machines are supposed to be certified by a key operator and re-certified each time they are moved. The machines themselves are about the size of a 1989 IBM typewriter. Janitorial personnel routinely move them to dust under them, yet they are only certified by a key operator (in most instances) twice a year.
There are many, many other problems that affect the reliability of the breath-alcohol testing machine. In brief, two independent studies of the machine's source code have revealed more than a thousand errors in the source code. In turn, even if the machine is working right, it will provide an inaccurate score periodically due to machine error.
The problem is that in order to point out the major issues with the breath-alcohol testing machine, an expert witness is required by the Court. Expert witnesses are very, very expensive.
Thursday, October 21, 2010
DWI: Breath or Blood
Pursuant to New Mexico law, a driver, merely by being licensed to drive in this state, implies his/her consent to submit to a breath test, a blood test, or both upon reasonable request from a law enforcement officer. I routinely get asked which is better (admittedly less often than I get asked how to get out of a DWI or DUI).
Pursuant to the rules of professional conduct, an attorney cannot inform someone how to break the law and get away with it --that succinctly addresses the latter. As far as the former...the short answer is that I trust blood tests more. What I will say is this: when a medical care professional is concerned about your health (which may be life or death-types of situations), he/she will draw and test your blood immediately. Hospitals do not have preliminary breath testing machines, much less the IR-8000 breath-alcohol testing machine that law enforcement officers use to test breath-alcohol content.
In addition, the results of a blood-alcohol test come back with one score whereas breath-alcohol tests require two tests, and thus come back with two results. I've seen breath-alcohol test results routinely vary by .02. To me, that's a big deal. Take for example, a breath-alcohol test card that comes back at a .09, and .07. Is that person at or above the legal (per se) limit of .08? Or, is that person below the legal limit?
The answer to that question depends not only on which score the fact-finder wants to believe, but which score, if either of them, is correct. Then, you throw in the fact that the machine has an acceptable margin of error of .02 in the first place, the possibility of false positives, radio frequency interference, breath-alcohol tube issues, calibration issues, source code issues, and other testing issues, and I don't know what to believe. A .12 breath-alcohol content may very well be a .08 in reality. The IR-8000 is not perfect. No machine is.
In DWI or DUI cases, it has been my finding that jurors prefer blood-alcohol tests. I'd estimate that for every 30 DWI or DUI cases I defend, one case will involve a police officer that tests my client's blood as opposed to breath.
Pursuant to the rules of professional conduct, an attorney cannot inform someone how to break the law and get away with it --that succinctly addresses the latter. As far as the former...the short answer is that I trust blood tests more. What I will say is this: when a medical care professional is concerned about your health (which may be life or death-types of situations), he/she will draw and test your blood immediately. Hospitals do not have preliminary breath testing machines, much less the IR-8000 breath-alcohol testing machine that law enforcement officers use to test breath-alcohol content.
In addition, the results of a blood-alcohol test come back with one score whereas breath-alcohol tests require two tests, and thus come back with two results. I've seen breath-alcohol test results routinely vary by .02. To me, that's a big deal. Take for example, a breath-alcohol test card that comes back at a .09, and .07. Is that person at or above the legal (per se) limit of .08? Or, is that person below the legal limit?
The answer to that question depends not only on which score the fact-finder wants to believe, but which score, if either of them, is correct. Then, you throw in the fact that the machine has an acceptable margin of error of .02 in the first place, the possibility of false positives, radio frequency interference, breath-alcohol tube issues, calibration issues, source code issues, and other testing issues, and I don't know what to believe. A .12 breath-alcohol content may very well be a .08 in reality. The IR-8000 is not perfect. No machine is.
In DWI or DUI cases, it has been my finding that jurors prefer blood-alcohol tests. I'd estimate that for every 30 DWI or DUI cases I defend, one case will involve a police officer that tests my client's blood as opposed to breath.
Subscribe to:
Posts (Atom)