Birmingham Criminal Defense Blog

Coffey v. Shimoto – Challenging Alabama DUI Chemical Tests

Posted in Alabama DUI

Many people assume that if blood-alcohol or breath-alcohol tests reveal a concentration of 0.08 or higher, it’ s an open-and-shut case for DUI conviction in Alabama. bar1

Not so. There are many ways in which to challenge chemical tests. But defendants must also be mindful of the fact that the absence of this evidence does not automatically mean they will evade conviction, either.

DUI law is actually more complex than most people realize, and the recent case of Coffey v. Shimoto is evidence of that. This was a California Supreme Court case in which the chemical testing of defendant was challenged, but still resulted in a conviction, primarily based on other circumstantial evidence.

Circumstantial evidence is evidence relying on an inference to connect it to a conclusion of fact. This is in opposition to direct evidence, which supports the truth of the assertion directly. So in a DUI case, a breathalyzer reading of twice the legal limit would be direct evidence, while the fact that the driver was seen pulling out of the parking lot of a bar would be a piece of circumstantial evidence.

While prosecutors don’t typically like to rely heavily on circumstantial evidence if they can help it, sometimes it can be a powerful tool in securing a conviction.

It’s important for DUI defense attorneys to challenge both kinds of evidence wherever possible, but circumstantial evidence is generally more ripe for this.

In the Coffey case (a challenge to license suspension), a trooper with the state highway patrol  stopped a vehicle driven by plaintiff. (In a criminal case, she would be identified as the defendant, but here, she petitioned the court for reconsideration regarding her license suspension, so she is here “plaintiff.”)

Trooper reportedly observed her driving erratically. It was around 1:30 a.m. Upon making contact with plaintiff, he observed her eyes were read and a strong odor of alcohol emanated from the vehicle. Another officer arrived and would later confirm these observations. Driver denied consuming any alcoholic beverages. She told officers the “implausible” story that she just turned 21, had been in a bar but had not personally consumed any alcohol. Based on this, officers placed her under arrest. After officers advised her of the implied consent law (which requires drivers to submit to chemical sobriety tests, or else face mandatory license suspension and other penalties), plaintiff submitted to a breathalyzer test.

She initially failed to provide adequate breath samples the first few times. She finally did submit an adequate sample, and one hour after she was stopped, her breath-alcohol concentration measured 0.08 percent. A second breath test minutes later resulted in a BAC of 0.09 percent. Subsequent blood tests taken a half hour later revealed even higher BAC levels of 0.096 percent and 0.096 percent.

This is indicative of the fact that alcohol is processed in our systems in a way that it may rise even after consumption of alcohol has stopped. That means you may not be over the legal limit when you get into the car, but you could by the time you are pulled over.

In this case, officers did not take this fact into regard and instead issued an administrative license suspension/revocation and the state charged her with misdemeanor drunk driving. She was later allowed to a charge under California law known as “wet reckless,” which basically is a misdemeanor reckless driving charge with a prosecution statement indicating alcohol was involved. It’s a lesser offense than drunk driving.

Subsequently, at an administrative hearing on the license suspension, plaintiff presented the expert witness of a forensic toxicologist with extensive experience who testified the fact that her BAC levels were on the upswing from the time she was stopped to the time she was booked indicates her alcohol level was rising at the time of the tests – meaning she was likely below the legal limit when she got into the vehicle.

The DMV officer rejected this testimony, finding it too speculative and based on subjective evidence. But beyond that, the hearing officer found the trooper’s testimony to be credible, and even without the BAC level reading, the other circumstantial evidence presented was sufficient enough to conclude the license suspension was proper.

Plaintiff appealed, but both a trial court and the state supreme court ultimately affirmed.

This case shows how there may be more than one way to approach a DUI case, and it’s important to have an experienced criminal defense lawyer to preserve your rights and fight for a favorable outcome.

Additional Resources:

Coffey v. Shimoto , April 6, 2015, California Supreme Court

More Blog Entries:

Alabama Prison Reform Could Alter Sentencing, Parole, March 19, 2015, Birmingham DUI Defense Attorney Blog

 

Alabama Arrests for Florida Gang Rape Stem From Cell Phone Seizure

Posted in Alabama Criminal Law, Sex Crimes

Alabama authorities launched an investigation into a local shooting, and in the course of collecting evidence, reportedly found something that led to three felony arrests for sexual assault of an unconscious spring breaker in Florida. iphone3

It was a cell phone video. It appeared to depict an unconscious woman being sexually assaulted by at least three men, despite being surrounded by hundreds of other spring-breakers, who did nothing to intervene. Investigators say it appears the assault took place sometime in mid-March behind a popular bar in Panama City, FL.

Thus far, three men – one from Tennessee and two others, students at Troy University in Alabama – have been arrested on suspicion of sexual assault by multiple perpetrators. The two Alabama students have since been suspended from school.

It’s not yet clear whether the person who filmed the alleged attack was in any way involved, but the local sheriffs condemned the fact that no one stepped in to stop these actions. He derided the complicit norms that make it more likely for someone to whip out a cell phone and film an encounter before taking steps to intervene.

But of course, as our Birmingham criminal defense lawyers know, that assumes bystanders even recognized anything illegal was happening. Certainly, spring break is known for raucous behavior and lowered inhibitions, and that’s precisely why many people attend in the first place.

It’s estimated some 100,000 people descend on Panama City alone each year for spring break. In this kind of atmosphere especially, issues of consent can be blurred. This can result in defendants being blindsided by allegations of sexual assault. Indeed, it may even blindside the victims. For example in this case, there is no evidence the alleged victim made any attempt to report an alleged assault at the time it occurred. The victim reportedly did not realize she had been assaulted until a news program aired portions of the video and she recognized her tattoos. Investigators say they believe the woman may have been drugged.

At this point, sheriffs deputies in Bay County, where the incident occurred, say they have been able to interview three purported witnesses, but the investigation is still in the early stages. It’s not clear how police identified the alleged perpetrators or how clearly the video allows for identification of those involved. If the video is grainy, it’s likely eye witness accounts will be essential, particularly because whatever DNA evidence might have existed has likely been destroyed at this point. However, witness accounts are likely to be tainted by the fact that many people were intoxicated, vacationing from out-of-town (and thus unfamiliar with surroundings, landmarks, timelines, etc.).

Florida has a law specifically intended to address instances of sexual assault by multiple perpetrators (i.e., “gang rape”). That statute increases penalties for sexual assault committed by more than one offender on the same victim. So an offense that would otherwise by a second-degree felony is bumped up to a first-degree felony. What otherwise would have been charged as a first-degree felony would instead be charged as a life felony.

Alabama does not have any such provision. However, allegations of sexual assault are extremely serious, and could carry penalties that include the imposition of decades-long prison sentences. It’s imperative to contact an experienced criminal defense lawyer.

Additional Resources:

3rd arrest made in Panama City Beach ‘gang rape’ case, April 15, 2015, By Dennis Pillion, Al.com

More Blog Entries:

Dickerson v. Alabama – Robbery Conviction Reversed by Alabama Appeals Court, March 23, 2015, Birmingham Sexual Assault Defense Lawyer Blog

 

 

M.A.M. v. Alabama – Adult Sentenced by Juvenile Court for Prior Sex Crimes

Posted in juvenile defense, Sex Crimes

The Alabama Court of Appeals recently reversed a conviction based on improper jurisdiction as exercised by the juvenile court over an adult defendant who was underage at the time of his alleged sex offense.desperation

Defendant in the case of M.A.M. v. Alabama (whose identity was protected due to his age at the time of the offense) appealed the court’s conviction and sentencing of him to one year in the care of youth corrections services, as he was 24-years-old at the time he was charged.

However, the appeals court found the decision appropriate because defendant was 16 when he allegedly sexually abused the victim, who was then 6. When he allegedly committed that offense, the law stated the juvenile court held exclusive jurisdiction of proceedings in which a child is alleged to have been delinquent. A “child” under that statute was defined as anyone under 18, or in some cases 19. The law also state the juvenile court retains that jurisdiction until the child turns 21.

Defendant in this case was 24, meaning the juvenile court lost jurisdiction when defendant turned 21. Further, the appeals court ruled, there isn’t any express statement providing an exception to the loss of jurisdiction at age 21 if the offense  doesn’t have a statute of limitations.

This defendant can’t be charged in adult court because he was not an adult at the time of the alleged offense. That basically means there is no way to charge him.

Our Birmingham sex crime defense attorneys know the legislature addressed this gap when it adopted the current Alabama Juvenile Justice Act, and repealed old statutes pertaining to the juvenile court’s jurisdiction. The new law, codified in 12-15-114(b) Ala. Code 1975, holds the juvenile court has no jurisdiction over acts committed before an offender was 18 but not filed until after the offender’s 21st birthday – except when the offense has no statute of limitations (which would include sex offenses involving victims under the age of 16).

Under current law, defendant would be subject to prosecution in juvenile court. However, there was no indication in the new law that legislators intended for it to be applied retroactively.

According to court records, he allegedly sexually abused his step-sister, with whom he did not live, on occasions when the pair were in the same household together. Alleged victim did not immediately report these offenses, as she alleged he threatened to harm her and her family if she did so. It wasn’t until years later, when alleged victim saw defendant out at a restaurant and, later when he requested to connect with her on social media, that she decided to report the alleged crimes.

Defendant denied sexually abusing his step-sister and said his efforts to connect with her on social media were not romantically motivated.

The case was filed with the juvenile court, and defendant, age 24, was adjudicated delinquent and sentenced to one year of incarceration in a youth services facility. That was the maximum allowable sentence for the offender’s alleged crime and age at the time of the offense.

The appeals court reversed. The court noted the lack of remedy, but stated it was constrained to longstanding legal principles that the law in place at the time of the offense controls the standard by which the offender is judged.

The judgment was reversed and the case remanded, with a directive to dismiss the delinquency petition.

Additional Resources:

M.A.M. v. Alabama , March 13, 2015, Alabama Court of Criminal Appeals

More Blog Entries:

U.S. Supreme Court to Weigh Retroactivity of Miller v. Alabama, March 26, 2015, Birmingham Sex Offense Lawyer Blog

Morris v. Alabama Board of Pardons and Paroles – Reversal of Parole Revocation

Posted in Alabama Criminal Appeals

The purpose of parole is to allow a person to serve part of their sentence under the supervision of the community. It’s only granted to convicted prisoners who have substantially observed the rules of the prison, whose release would not undermine the seriousness of the offense and would not jeopardize public welfare.OLYMPUS DIGITAL CAMERA

The idea is to prevent needless imprisonment and to help former prisoners get re-established in the community under strict controls, so as to prevent further offense.

In Alabama, the issue of prison overcrowding has resulted in the proposal of a new bill, which recently progressed to the Senate Judiciary Committee, which would increase the number of offenders who are eligible parole. The parole rate in 2009 (those prisoners granted parole by the state) was 42 percent. It was down to 36 percent by 2013. Drafters of the bill say the problem is parole board members cherry-pick parolees.

But part of that bill to widen access to parole would also increase punishments for those who violate it. For example, those who miss an appointment with a parole officer would immediately go to jail for several days, rather than waiting months to go back to prison.

When offenders are accused of parole violations, our Birmingham criminal defense lawyers know the consequences can be severe. It can even result in a reinstatement of the full prior sentence, which could mean a defendant could return to prison for years for a seemingly minor offense. Defendants are entitled to legal counsel in these proceedings, and it’s critical that they avail themselves of this right.

Take for example the recent Alabama Court of Criminal Appeals case of Morris v. Alabama Board of Pardons and Paroles. According to court records, defendant was originally convicted of two counts of second-degree robbery and a single count of first-degree assault. He was sentenced to life in prison for each conviction.

However, he was paroled in early 2009.

While on parole, he was arrested in Birmingham and charged with a new offense of second-degree robbery. His parole officer filed a parole violation report, alleging he’d committed a new offense and recommending his parole be revoked.

At a parole revocation hearing, the state provided testimony from a Birmingham Police Department officer on the alleged new crime. The board revoked his parole.

Defendant appealed, arguing the only witness presented by the state had conceded he had no personal knowledge of the events that formed the basis for his new charges. Therefore, he asserted, the parole revocation decision was based solely on hearsay.

Defendant’s petition was denied by the circuit court and he appealed to the appellate court. He reasserted the evidence used to revoke his parole was inefficient. The appeals court agreed, finding the decision was based solely on hearsay from the officer.

The court noted that while hearsay can be admitted to evidence in parole revocation hearings, it may not be the sole basis for revoking one’s parole. The reason is that it denies defendant the right to confront and cross-examine the person or sources from which the factual information was derived – which is considered one of the minimum requirements in these proceedings.

Thus, the decision was reversed and the case remanded for another hearing.

Additional Resources:

Morris v. Alabama Board of Pardons and Paroles, March 13, 2015, Alabama Court of Criminal Appeals

More Blog Entries:

Man Freed From Alabama Death Row, April 14, 2015, Birmingham Criminal Appeals Lawyer Blog

Cherokee County Deputies Arrest Suspects with 390 Grams of “Spice”

Posted in Alabama Drug Laws, Possession of Controlled Substance

“Spice” is a common term for a form of synthetic marijuana sold under brand names such as Spice, K2 and Scooby Snacks. Scientists refer to these products as synthetic cannabinoid receptor agonists, and they are allegedly designed to provide a similar effect to THC in marijuana.

testtubesWhen Spice and related substances were first introduced around 15 years ago, they were marketed as herbal supplements, authorities paid them little attention, and they were not used by a large percentage of the population. As they gained popularity and were being found on suspects arrested for committing other crimes, police sent samples to drug labs for analysis under a mass spectrometer, and it was determined there were very few natural substances contained in these products.

Artificial marijuana consists of any number of combinations of complex chemical formulas and according to authorities, has dangerous photoactive effects on users and is a danger to society. For this reason, it have been classified as a controlled substance, and police have stepped up their enforcement efforts and essentially waged a war on synthetic drugs and their users and dealers. Continue Reading

Alabama Man Charged With Drunk Driving Allegedly Crashed Into Police Car

Posted in Alabama DUI

Drunk driving cases in which there is also a car crash are often treated as more serious than a typical first-offense DUI case. When one of the cars involved in a drunk driving case happens to be a patrol car, prosecutors may be even more aggressive in how they handle a DUI case.

According to a recent news report from AL.com, Alabama state troopers in Jefferson County arrested a 25-year-old defendant for allegedly driving a motor vehicle under the influence of alcohol (DUI), during which time he crashed his car into one of their patrol cars.

Authorities say two troopers were directing traffic around a road construction site alongside U.S. 31 just before 2 a.m. when the alleged incident occurred. Troopers say both officers had parked their patrol cars at the construction site and activated their emergency lights to warn other vehicles to slow down. They say they witnessed defendant crash into one of the patrol cars and went over to see if driver needed medical assistance and to investigate the cause of this accident. Continue Reading

Theft Investigation in Alabama Leads to Meth Bust

Posted in Alabama Drug Laws, Possession of Controlled Substance

According to a recent news report from Central Alabama News, sheriff’s deputies in Jefferson County went to a house looking for a 35-year-old suspect as part of an investigation into a theft. When they arrived at the house, the 64-year-old resident told the deputies suspect was not home, but he allegedly told the deputies to come into the house and take a look around.

Jefferson County Sheriff’s Office is reporting that, during this search, deputies found a bag containing what they believe to be crystal meth. At this point, authorities detained resident and took him outside his home, so a narcotics unit could come in and investigate the alleged crime scene. Authorities further alleged, when they were conducting a search of the home, resident was seen trying to hide the bag, which purportedly contained methamphetamine. Sheriff’s deputies secured a warrant and removed the alleged drugs from the home and placed resident under arrest.

During their full search of the residence, authorities report they also found around $6,000 worth of meth, pills of some kind, scales, and three guns. Prosecutors charged resident with trafficking methamphetamine. He is currently being held on $1 million bond. Continue Reading

Hoover Police Conduct Prostitution Bust

Posted in Sex Crimes

Many consider The Wire one of the best television shows ever created. One of the main features of the show was a look at how the police operate by numbers. Numbers of arrests are very important to get enough money in their budget to get adequate funding. Politicians also care about these numbers, as they can affect outcomes of elections.

Some criminal offenses are considered crimes against people, and some are considered crimes against society. When police arrest people for crimes against society, they often refer to these as “quality of life arrests” when charting statistics of numbers arrests in any given time period.

Prostitution is a crime against society, according to most criminologists, and our Birmingham criminal defense lawyers have seen the police often will even list “society” as a victim on police reports in the box where they are supposed to list the name of an alleged victim and other relevant personal information.

According to a recent news report from AL.com, Hoover police have arrested five women on charges of prostitution. This undercover operation occurred on John Hawkins Parkway, just outside of Birmingham. Police arrested five women between the ages of 27 and 36 for alleged prostitution. Prosecutors have charged each defendant with prostitution, and they are all being held on $1,000 bonds. One of these five female defendants was also charged with possession of drug paraphernalia. Police say it is important to make these arrests, because prostitution can often lead to other crimes, such as possession of a controlled substance, theft, robbery, rape, and burglary.   Continue Reading

Man Freed From Alabama Death Row

Posted in Alabama Criminal Appeals

In the past few years, we have seen a variety of news sources report about problems in crime labs and wrongful convictions.  According to a recent news article from the Washington Post, a man has been released from Alabama’s death row after spending over 30 years there, awaiting his execution.

Defendant was convicted in relation to the murder of two workers at a Birmingham, Alabama restaurant in 1985.  There were no witnesses to the murders, no fingerprints connecting defendant to the crime scene, nor was there any other physical evidence tying defendant to the murders. The only evidence of defendant’s alleged participation in these murders was ammunition and a gun located in defendant’s home, which was questionably used to connect defendant to the murders.

For the past 30 years, defendant has protested his conviction and maintained his innocence, while his attorneys have questioned the link between the gun and the murder.  It should also be noted, his mother owned the gun at issue in this case.

These doubts as to whether this gun was involved in the crime were increased when scientific ballistics testing also revealed issues in making a connection.  There was also an issue as to whether the bullets used in the murder were even fired from a single gun Continue Reading

Update: University of Alabama Crimson Tide Defense Tackle Jonathan Taylor Charged with Domestic Violence

Posted in Assault Charges

According to a recent news article from USA Today, University of Alabama Crimson Tide defensive tackle has been arrested and charged with domestic violence III, according to Tuscaloosa police officials.

Police say they responded to an assist request from University of Alabama police in connection with an alleged victim who reported her boyfriend had assaulted her earlier that evening.  Her boyfriend was Jonathan Taylor.  After hearing about the alleged altercations between Taylor and his girlfriend, police determined they had probable cause to arrest him for third degree assault as well as domestic violence third degree criminal mischief. Continue Reading

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