dumb laws
There’s pretext and then there’s pretext
Jun 22nd
Among the many discussions clogging the bandwith of the local listserve this week was one about the validity of a traffic stop based on the police officer’s observation of an air-freshener hanging from the rear-view mirror of a vehicle. (Yes, I recognize that what’s in the accompanying picture is anything but an air-freshener.)
There’s pretext and then there’s this.
The legislature in its infinite wisdom deemed it worthy to make it a traffic offense to have anything hanging from the rear-view mirror of a motor vehicle. Codified in C.G.S. 14-99f(c):
No article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.
The underlying intentions in passing this statute remain shrouded in mystery, yet there should be none about its use by law enforcement as a tool in pulling motorists over.
First of all, the statute doesn’t mention whether the obstruction of the view of the operator is a subjective or objective standard. So, boys and girls, what does that mean? That means if anyone (read: police officers) thinks it is obstructing the view, then it is.
Second, having anything hanging from your rear view mirror is giving cops automatic license to pull you over. Take Mr. Gamache for instance. He had:
“a large cluster of air freshener ornaments hanging from the rearview mirror,” “three and a half to four inches tall and maybe an inch and a half or two inches wide” obstructing “the peripheral vision, especially”
The cop doesn’t pull him over, but follows him for about half a mile, until he pulls into the parking lot of a bar. There, he approaches and “immediately noticed a very strong odor of alcohol and observed that the defendant’s
eyes were glassy and bloodshot.”
Mr. Gamache is placed under arrest for DUI.
This is not just a CT phenomenon. From footnote 2 of the opinion:
The reported cases reflect the wide variety of such objects. United States v. Barragan, 379 F.3d 524 (8th Cir. 2004) (air freshener); United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) (golf ball-sized spherical crystals); United States v. King, 244 F.3d 736 (9th Cir. 2001) (parking placard); Moore v. Winer, 190 F.Sup.2d 804 (D.Md. 2002) (medic alert card); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999) (dog tags); In re Jose Z., 116 Cal.App.4th 953, 10 Cal.Rptr.3d 842 (2004) (Mardi Gras-type beads); People v. Paxton, 255 Cal.App.2d 62, 62 Cal.Rptr. 770 (1967), overruled on other grounds by People v. Tribble, 4 Cal. 3d 826, 484 P.2d 589, 94 Cal.Rptr. 613 (1974) (St. Christopher medal); Thompson v. State, 399 A.2d 194 (Del. 1979) (graduation tassel); People v. Alvarez, 243 Ill.App.3d 933, 613 N.E.2d 290, 184 Ill. Dec. 263 (1993) (cross
hanging on a chain); People v. Mendoza, 234 Ill.App.3d 826, 599 N.E.2d 1375, 175 Ill. Dec. 361 (1992) (fuzzy dice); Commonwealth v. Murray, 27 Mass.App.Ct. 872, 545 N.E.2d 858 (1989) (garter belt); De La Beckwith v. State, 707 So .2d 547 (Miss. 1997) (Masonic emblem); State v. Harris, 839 S.W.2d 54 (Tenn. 1992) (handcuffs).
Most states, however, require that the item hanging from the rearview mirror cannot materially obstruct the view. CT, on the other hand, requires that the view be unobstructed. There is no materially obstruct requirement. Indeed, in Mr. Gamache’s case,
Officer Solak testified that the air freshener did not obstruct the driver’s view to the front or rear of the vehicle, he could reasonably conclude that the operator’s peripheral vision in the right-hand direction was obstructed. These circumstances provided Officer Solak with, at the very least, reasonable suspicion sufficient to briefly detain the defendant and investigate the suspected violation.
The court then goes on to recognize that these infractions could lead to a vast majority of the motor vehicles on the road being pulled over, just the same as cars going 66 miles per hour.
So, in essence, it acknowledges that this is a pretext, but says that’s okay, because technically it is a violation of a statute.
The advice, then, is to not have anything hanging from your rearview mirror, even if it is a parking permit or a handicapped permit. Because that may potentially somehow perhaps in the eye of maybe one overzealous cop be viewed as obstructing.
I’m all for people driving safely and obviously not while under the influence of drugs and/or alcohol. This, however, gives police the power to pull over just about anybody they choose even when there is no visible indicator of erratic driving.
This is a hunch in sheep’s clothing.
Can a State copyright its statutes?
May 6th
Apparently, Oregon is trying. The story goes thusly: Oregon sent a cease and desist letter to Justia and Public.Resource.Org. They claimed a copyright in the “arrangement and subject matter compilation of Oregon statutory law…” Thus, Oregon is asking these sites to take down the Oregon statutes they make available for free.
Most of the correspondence is available for view here. As Justia and P.R.O point out in this letter, the Oregon website is horribly W3C non-compliant (there are over 503,000 HTML errors!), is not “section 508” compliant, doesn’t use CSS (!!!) and even has a robots.txt file that blocks search engines!
How is that “accessible to the public”? The site lacks functionality and may not be accessible by all browsers and all operating systems.
So, what if a State decides to either charge for access to its statutes or makes it publicly available on a crappy website where not all can view the pages. Do we have a legitimate notice problem? I know we are all presumed to know the law, but if the State is charging for access to the actual text of the Statutes, or makes them difficult to access, what are the chances of successfully defending a prosecution on due process grounds?
Also, what the hell is wrong with Oregon? Why, in this day and age, would you be so stubborn and so stupid? What is really the point of “protecting” the Code? I don’t understand what they’re trying to accomplish, other than look foolish.
Anyway, anyone see a potential notice problem here?
The runaway governor: truly scary justice “reforms”
Feb 7th
I’m sorry, I have to say it. She’s freakin’ scary now. I think she’s lost it and I can almost picture her sitting in a darkened room, illuminated by frequent lightning, hair standing up, rubbing her hands together, eyes pointing in separate directions, cackling, laughing maniacally as she imagines these proposals.
The Governor, as part of her budget and state of the state speech yesterday, proposed these changes to the criminal justice system. Are you ready?
I will be submitting legislation to require a mandatory minimum sentence for Burglary in the Second Degree and to change Burglary in the First Degree to include burglary of an occupied dwelling, day or night.
I wonder if she reads the current statutes before making these proposals: “By Jove! I’ve got a brilliant idea! Let’s outlaw one man killing another!”
I would also like to put in place a three-strikes law for those convicted of three violent felony offenses.
And to satisfy those who thought mistakenly there was an “out” in the original proposal, I am removing the possibility of a case review after 30 years. Now it’s three strikes for violent felony convictions and you’re truly out.
There you go. “Original” three-strikes. Completely ineffective and counter productive. I’m also particularly tickled by the “to satisfy those…” comment. American Idol Governor, indeed.
I am also proposing legislation to significantly toughen our laws dealing with sex offenders.
All too often we hear or read about a predator attempting to entice a child online or about a sex offender failing to register as required.
One simple fix I am proposing is to bar offenders from legally changing their names to escape police attention or to avoid registration.
Again with this recidivism nonsense and this shows real ignorance on the topic. Yeah, we hear about MySpace predators because every single time it happens, there’s a media frenzy. Yet, 90-ish % of “predators” will be within the family. They don’t need myspace.
This name changing this is also odd. Why can’t they be allowed to change their name, as long as they register? To change your name, you have to get an order from Court, no? So if you’re on the sex offender registry, it should be pretty easy for someone to figure that out and make the change in the registry.
But I want to go further. I want to require offenders to report in person to police and to provide the name and address of their employers and the license plate number and description of their cars.
And they will also have a special imprint on their driver’s licenses.
Further than need be… This is scarlet letter territory we’re entering into here. Why should the sex offender have to provide the name of his employer? Do we want to further outcast these people? Look at my post from the other day, about the sex offender who can’t be located because he’s been kicked around like a football, or the sex offenders living under the bridge in Miami, one of whom has decided to disappear. Yeah, that’s public safety.
And in the name of public protection, I am calling for another significant change: I want all persons arrested for an A or B felony the most serious of criminal charges to provide DNA samples immediately upon arraignment.Those convicted of lesser felonies and certain misdemeanors must provide a DNA sample at conviction.
These samples will be processed to see if there are any matches related to unsolved crimes.
Incredibly, the law on the books only requires DNA samples to be taken at the end of the inmate’s sentence.
This is where one eye starts spinning uncontrollably, some cats enter the picture and fade to black.
This is just frightening. Absolutely frightening. Presumption of innocence? Them’s just fancy terms. Don’t mean nothing. You’re arrested so you’re guilty. Give up your damn DNA. Heck, I got a better idea. Why wait for people to be arrested. Let’s just have the police go to everyone’s homes. We can all stand in our yards in a line and the police can walk by, taking our DNA. You know, because innocent people don’t exist. Diogenes was right. There isn’t an honest man.
By the way, the statute calls for DNA to be collected after conviction. DOC can choose to collect that sample upon initial entry and they don’t always collect it prior to release.
She’s absolutely lost it and has no idea what to do and what not to do. Pandering is scary enough. This delusional law-making is scarier.
More from CTLP, CT News Junkie.
Disclaimer: This is my opinion. I don’t really think she looks like that in her home. That was my poor attempt at satire. Also, I don’t know what the public defender’s office’s official position would be. This is just mine.
The forever persecuted
Feb 5th
A few days ago, I noticed a story in the Boston Globe about residents in a New Hampshire town who rejoiced after successfully getting a sex offender to leave their community. It was of particular interest to me because that sex offender was from Connecticut and the story said he would be returning here.
So it came as no surprise when I saw this report today. It says that he is on the move – perhaps with a one-way ticket to prison.
This is really stupid and I think the “biggest waste of law enforcement funds this week” nominee. The offender, Douglas Simmons, was in compliance with registration requirements while he lived in CT. Then he decided to move to NH. So what does he do? He notifies the police in New Hampshire when he gets there. Not good enough, say the police. He has to inform police in Connecticut as well, that he is moving out of state.
This seems pointless to me. Either he is living in the state and in compliance or not living in the state and therefore shouldn’t have to comply. Some law enforcement agency knew of his whereabouts at the mandated interval. What difference does it make that it was New Hampshire law enforcement? The NH police contacted CT to say “hey, one of your guys moved here”. Apparently, they’re not to be trusted.
The statute has has violated is C.G.S 54-252, which provides in relevant part:
If any person who is subject to registration under this section changes such person’s address, such person shall, without undue delay, notify the Commissioner of Public Safety in writing of the new address and, if the new address is in another state, such person shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders.
I want to know what undue delay means and what the delay was in this case. Either way, the prosecutor handling this case should really look at this and see whether this needs to be prosecuted. I don’t think it does.
Now, his current whereabouts are unknown, because, you know, he was kicked out of his last town. Do you blame him? This is a guy who committed a pretty ugly offense. He served 22 years in jail for it (day for day, it seems). Then he gets out and has to register for life. Which he does dutifully. Then he decides to move. So thinking logically, he notifies the town he moves into. They freak out and kick him out. He leaves and moves back to his home state. Now he’s wanted by the police and will have to go back to jail for some bs violation. I’d be tempted to give the State the finger at that point. Wouldn’t you?
Parole ban may be lifted soon
Jan 25th
Now that stricter home invasion laws have been enacted, Governor Rell indicated at a press conference today that she will be considering whether to lift the parole ban this weekend. This will certainly be good news for a correctional system that is barely hanging on by a thread and is bursting at the seams (hah! TWO in a row!).
At a ceremony Friday, in which Mrs. Rell signed into law the new criminal justice reforms passed earlier this week by the legislature, she said she needs to make sure a few more things are in place before she lifts the ban. However, “I hope to have that decision over the weekend,” she said.
Cathy Osten, a lieutenant and president of CSEA/SEIU Local 2001’s correctional supervisors, said Friday morning that all the state’s correctional facilities are overcrowded. She said she’s been with the department more than 18 years and it’s been overcrowded almost half of that time. She said the current population increase is a result of the governor’s ban on parole.
Ironically, her new bill might get its first test on the first day! The wife of the Assistant Deputy House Speaker walked in on two robbers in her home today (Morons). Will it matter what time she actually signed the bill into law?
Gov. Rell also indicated that she would try and raise a three-strikes bill again, because the people of CT want it or some such nonsense. Except that the most recent QU poll showed that they don’t. I guess she’s the American Idol Governor only when it suits her ideas.
There are other reforms, too
Sep 30th
Forgotten in this Cheshire mess is the sentencing commission that started work in May, which was charged with looking at how to change the state’s sentencing laws for the better. Ah, back in May, when Komisarjevsky was still on GPS monitoring and the Petit women were alive.
Glad to hear that someone thought to ask them of their other business. Cheshire has overshadowed the fact that CT has draconian drug laws and there is a racial disparity in sentencing and even charging.
[New Haven Public Defender Tom] Ullmann and several other members suggested the task force may be missing a chance to make long-term changes in the justice system.
Others said the group will continue to discuss issues such as mandatory minimum drug sentences and racial disparity in sentencing even as it deals with parole system gaps exposed by the Cheshire case.
Some of the juicy things on their agenda:
The task force divided into four subcommittees that would discuss alternatives to incarceration, sentencing structure, the racial imbalance in prisons and how to classify some drug offenses and other crimes that carry a broad range of possible sentences.
These are all excellent areas of investigation and reform. Thankfully last year the legislature eliminated the disparity between crack and powder cocaine sentencing (I think…I may be imagining it).
Prison overcrowding is an immense problem and all of these avenues will help to reduce it and hopefully, get to the source of the problem for most drug offenders: addiction.
I wish there was some way to study racial disparities in charging, but it seems too daunting a task.
Of all the groups commenting on Cheshire, this task force has been oddly silent. Not all members agree:
Some members say the task force should lend its voice to the Cheshire debate so the state does not make any rash changes.
“I think it’s incumbent upon us to respond,” said Andrew Clark, a group member and the administrator of the Institute for the Study of Crime & Justice at Central Connecticut State University. “We have to ask tough questions and come up with real solutions.”
But there has been, at least for some members, a shift in focus.
The sentencing task force changed its focus at the same time. It studied tougher burglary laws and looked at the impact a tougher “three strikes and you’re out” law would have on prison overcrowding.
“It’s almost like members are bending over backward to join the throng of punitive measures,” said Jon Schoenhorn, a task force member and president of the Connecticut Criminal Defense Lawyers Association. “It violates the entire purpose of why this task force was created.”
“Three strikes laws” + prison overcrowding: Not gettin’ better any time soon.
Re-entry problems
Sep 6th
Grits writes today of the counterproductive nature of policies that bar felons from gaining employment upon release. He points to this press release by the CEO of a security camera surveillance company lamenting the foolishness of such policies. I agree with both of them, but I don’t think any shift in policy will happen any time soon. Rehabilitation and re-integration into society have long been abandoned as goals of the correctional institutions and the penal system in this country (and many others).
Think about it. What is the last thing you want a just released inmate to be doing? Nothing. That’s right. You don’t want him to be sitting around on street corners wondering where the next meal is going to come from or where he’s going to sleep. That is not a good formula for re-integration. More often than not, he will resort to the only thing he knows: How to make quick money. More often than not, that will not involve legitimate means. Crime will continue to occur.
If we are to make our streets safer and to reduce the burden on taxpayers, then we need to focus on re-entry programs and in assisting recently released inmates obtain lawful employment. The money we spend on these programs will be quickly offset by the savings from reduced incarceration costs, law enforcement costs and will only help local economies.
So what is standing in the way? Are we that invested in the idea that “criminals” are “monsters” and “evil” and cannot be salvaged? Are we that invested in our moral highground that we cannot see beyond our own nose?
No one is better off with these policies. Which is why I was extremely glad when Connecticut introduced a proposal to provide gate pay to inmates earlier this year. We need more steps like these to ensure that when inmates are released, they aren’t forced back into a life of crime.
Free punishment: Because they can
Aug 10th
The Windypundit (sorry Mark, but I like calling you that!) writes here about what he considers to be evil suspicious reasons for legislation.
Another example of a free punishment is suspending someone’s driver’s license. To the person who loses their driving privileges, it’s a disruptive life change, but to the government that does it to them, it’s just a database entry and a form letter. So any time politicians want to “get tough” on drunk drivers or parking ticket scofflaws they just tack on a license suspension or increase one that’s already there, because they pay no cost for doing so.
It’s not that there aren’t good reasons for taking away the licenses of drunk drivers and keeping violent felons from owning guns. However, as long as doing so doesn’t cost anything, there’s going to be a temptation to punish too much, just because we can.
It’s a good time to remind my CT readers about the awful DUI bill the legislature passed this past session. Miranda gave us the highlights:
Megan’s Jessica’s Robin’s (?) Law
Jun 6th
Get ready for the next wave of [insert victim's name]‘s Law. Officials in the Upper Bucks borough of PA will urge legislators to pass “Robin’s Law” which is the same as Megan’s Law, except for domestic violence offenders. Yeah. You read that right. Domestic Violence.
To do what? To protect “other people”. Huh? Are we now legislating good dating habits?
Introduced in the state House on May 31, the bill would create a Megan’s Law-style database. Instead of sexual predators though, the picture, address and crime of domestic violence convicts will be posted online for anyone to see, according to a preliminary draft of the bill.If approved, the database would be the direct outgrowth of the Quakertown murder-suicide of June 15, 2004. That day Robin Shaffer was shot to death by her estranged husband, Jeffrey Ogle, at her Quakertown apartment. Ogle then led police on a day-long manhunt that ended when he killed himself beside the train tracks in the borough.
Heidi Markow, Shaffer’s sister, came up with the idea for a domestic violence registry, seeing it as a way to forge something positive from her sister’s death.
Domestic abuse, by definition, refers to those who abuse domestic partners. Y’know, those who are in relationships with other people. How is this a “risk to the community” group?
Also, what is the need for these offenders to register their address? If the goal is to help other women “avoid potentially disastrous relationships by checking, with the click of a mouse, if the new man they’re dating has a history of domestic abuse”, then shouldn’t a name be enough? Why should they have to register?
Oh boy.
Sometimes I feel like the Aflac duck.
(HT: C&C)
mixed bag for New Jersey
May 10th
Two New Jersey legislative proposals in the past few days caught my eye: one good, one bad. In the plus column is New Jersey’s bill to abolish the death penalty, which was voted out of the Judiciary Committee (8-2) and now heads to the full Assembly for a vote.
If also passed by the Assembly and signed by Gov. Jon Corzine, who opposes capital punishment, it would make New Jersey the first state to legislatively abolish capital punishment since 1976. That was the year the U.S. Supreme Court upheld the first revised death penalty laws after striking them down nationwide four years earlier.
“That would be historic,†said Richard Dieter, director of the Death Penalty Information Center in Washington, D.C.
The bill’s sponsor, Sen. Raymond Lesniak (D-Union), said passing it would “give New Jersey an opportunity to lead the nation by recognizing the death penalty has no reason to exist.â€
“The death penalty cannot be fixed,†Lesniak said. “The time has come to abolish it.â€
Full audio of the judiciary committee hearing is available here. Click on listen and then skip to around 51 minutes in.
HT: CDW
On the other hand, Lyndhurst, NJ has this asinine proposal:
Lyndhurst is gathering feedback on a proposal to require background and fingerprint checks of all ice-cream truck and other food-on-wheels vendors as a way to protect children. ‘Most of the people who come to an ice-cream truck are kids,’ says Mayor Richard DiLascio. ‘A parent might not always be around.’ Volunteer coaches and teachers must already submit to such checks.
This is nothing but fear mongering. As Mark Bennett rightly points out, only 7% of all reported sexual assaults against minors are carried out by strangers. He also has an interesting proposal to reduce child sexual assault.
Yes, that is a “Jersey Ice Cream ” ice cream truck in the picture.
Serious Proposed Changes to DUI Statute
Apr 16th
Adding to the list of bills coming out of the Judiciary Committee last week is a baaaaaad DUI bill.
Among the many and extremely harsh changes:
1. Legal limit for those operating a CDL is .04; legal limit for those under 21 is .02
2. Evidence of BAC is admissible now, even if police failed to (a) “comply strictly” with the requirements of the statute, as long as the state can establish good cause, which includes showing that “the alleged failure does not materially affect the validity of such results”; and/or (b) provide our clients with a reasonable opportunity to contact an attorney before consenting or refusing to perform the requested test.
3. When prosecuted under subsection (1), evidence of BAC is now admissible all the time, not only when the defendant requests it. In other words, if my client blew a .06, thereby precluding a prosecution under subsection (2), the state can introduce the test in support of its case under subsection (1).
4. Fines and penalties are increased.
5. To be considered as a multiple offender, the state can look back over your entire driving record, not just the last 10 years. For example, if you were convicted for DUI at 21 and get convicted again at 50, you will be a second offender, where you used to be considered a first offender.
6. The new mandatory minimum for second offender is 180 days (previously 120). For third offender and beyond, it is two years (previously 1 year).
7. And, perhaps my favorite part, for third offense and beyond, the state will order forfeiture of the vehicle you were driving at the time of the offense, as long as you were the legal title holder of the vehicle. The state will then sell the vehicle at auction to fund the Criminal Injuries Compensation Fund. Please note that your car may also be forfeited if your license is suspended for DUI (even ABSENT any conviction) under certain circumstances. Further note, if convicted of Manslaughter in the second degree with a motor vehicle or Assault in the second degree, the state can order forfeiture of the vehicle involved even if the operator did not have legal title to it. For forfeiture to apply, the operator need only have “lawful possession” of the vehicle. Be wary of lending your car out!
8. Finally, there are MANY changes affecting DMV procedures and operator’s license retention. But perhaps the most significant are the changes to the hearing process. At a hearing, our clients used to be able to challenge whether the officer had probable cause to arrest them for DUI. If successful, they kept their licenses. Now, the hearing officers need not determine whether there was probable cause to arrest, but only whether (1) the person was arrested; (2) the person refused to take or registered a BAC above the legal limit; and (3) the person was operating a motor vehicle. The hearing is not only strictly limited to those issues, but also must be “based on” documentary evidence submitted by the arresting officer. Moreover, the statute now requires our clients to pay the fees of any witnesses summoned to appear at these hearings. Oh, one other thing – there is no longer any appeal from the suspension decision. In the end, our clients enjoy significantly less protection and opportunity to fight the suspension of their licenses, and a license may be lawfully suspended as a result of an arrest for DUI, even absent probable cause for the arrest. If I am pulled over, hauled out of my car with no explanation, immediately placed under arrest for DUI and refuse to take a breath test without first speaking to an attorney, my license will be suspended, and I cannot do anything to stop it. The police report need not justify the stop or the officer’s reasons for believing I was under the influence.
P.S. Not sure it’s worthy of noting but because I have friends who ask me all the time: If this bill becomes law, while it will still not be illegal to have an open container of alcohol in your vehicle, it will constitute a rebuttable presumption that the operator was drinking it at the time of operation, which IS illegal.
Felony for invoking right against self-incrimination?
Feb 7th
Montana legislators (there goes my theory) are considering legislation that would make it a felony to not report a sex offender who has not registered.
Rep. Edward Buchanan, R-Torrington, is chairman of the House Judiciary Committee. He said the bill would make it a felony for a person who knows that a convicted sex offender has failed to register with the state to withhold that information and fail to notify law enforcement.
The judiciary committee determined that a person shouldn’t have to commit an affirmative act to be convicted of this crime. Then the legislators delved into a discussion of the right to remain silent:
Rep. Floyd Esquibel, D-Cheyenne, asked whether people have the right to remain silent if a police officer asks them questions.
Buchanan
responded that people have the right to remain silent if they’re in
police custody, "and you’re already being interrogated." He said he
didn’t believe the right against self-incrimination was applicable to
the proposed legislation.Rep. Colin Simpson, R-Cody, responded
that people have the right to remain silent so they don’t incriminate
themselves. He said this bill would make it a crime for people not to
talk and incriminate themselves."I just have the feeling that
we’re criminalizing victims or family members of offenders, because
they have knowledge of offenders," Simpson said.
What will this mean for lawyers? Each state’s ethics codes vary, but the ABA Model Rules of Professional Conduct Rule 1.6 states the following:
(b) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or
fraud that is reasonably certain to result in substantial injury to the
financial interests or property of another and in furtherance of which
the client has used or is using the lawyer’s services;(3) to prevent, mitigate or rectify substantial
injury to the financial interests or property of another that is
reasonably certain to result or has resulted from the client’s
commission of a crime or fraud in furtherance of which the client has
used the lawyer’s services;(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the
lawyer in a controversy between the lawyer and the client, to establish
a defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer’s representation of
the client; or(6) to comply with other law or a court order.
Reporting that a client has not complied with registration requirements doesn’t fit within any of the above categories. Yet, it seems that under the broad language of the legislation, an attorney would be guilty of a felony for failing to report that a client has not registered as a sex offender. Any thoughts on this?
Manufacturing reasonable suspicion
Jun 17th
Blonde Justice writes about a proposed law [news report] in NY that would require special license plates for those convicted of drunk driving.
The license numbers or letters _ the specific code hasn’t been
determined _ would allow police to quickly identify motorists convicted
of driving while intoxicated. Police could then stop the cars without
further cause, said the bill’s sponsors, Republican senators Thomas
Libous of Binghamton and Nicholas Spano of Westchester.
So, a prior conviction is now probable cause, or at the very least, reasonable suspicion. This is vaguely analogous to the Megan’s law statutes which require registration (and of which, i’m sure you know, i’m not a fan) for either 10 years or lifetime. In the Megan’s law cases, arguments implicating the ex-post facto clause were raised and rejected.
The case here, I think, I stronger. When dealing with Megan’s law, the argument was that registration imposes a subsequent punishment – i.e. brandishing of an individual. With this current proposal, not only does it brandish an individual, but it also exposes him to continual harassment and perhaps future arrests. The invasiveness factor is higher because of the automobile. Because you know the cops are going to be tailing cars with these special license plates.
Honestly, I don’t think this bill would pass Constitutional muster. One cannot "create" reasonable suspicion, as this bill seems to do. As Blondie suggests, this is a slippery slope, which leads all the way back to the Scarlet Letter.
Whew! Phone-sex constitutionally protected
Apr 27th
Now that AL&P has reported that phone-sex is constitutionally protected, we can all breathe a sigh of relief.
Hang on, my phone’s ringing.
Lawmaker targets adults in underage drinking bill
Feb 28th
A CT lawmaker is proposing a bill that would increase the penalty on adults providing alcohol to minors from fines to a suspension of their driving license. While the idea itself is rather noble, and one that undoubtedly should be tackled – viz, parental responsibility – I do think that the punishment here is rather disproportionate to the alleged crime.
Under CT general statute section 30-86, Sales to minors, intoxicated persons and drunkards:
(b) Any permittee or any servant or agent of a permittee who sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing the person to be such an habitual drunkard, shall be subject to the penalties of section 30-113.
Section 30-113 provides
Sec. 30-113. Penalties. Any person convicted of a violation of any provision of this chapter for which a specified penalty is not imposed, shall, for each offense, be fined not more than one thousand dollars or imprisoned not more than one year or both. The problem with this statute and any amendment to it, seems to be enforcement. One can easily envision a scenario in which parents have alcohol in the house and a minor child has access to the bar. The minor child then drinks the alcohol and goes about driving drunk. A loss of the parents’ driver’s license seems disproportionate to the "crime" of making alcohol available. Furthermore, Criminal intent is not an essential element in a sale to a minor. State v. Lougiotis, 130 Conn. 372. Let’s apply this proposed law to the other part of Sec. 30-86, sale to an intoxicated person. Using this logic, it would then follow that the owner of a bar that sells alcohol to a person who is "wasted" would stand to lose his/her license. Or would it be the bartender? I fully understand that underage drinking is a significant problem. I also understand that drunk driving is as big, if not bigger, a problem. But punishing adults with a loss of their driver’s license is a severe restriction on most people’s livelihood. We all know that in a small state like CT, public transportation isn’t worth talking about. Almost everybody relies on cars to get to and from work. To take away a license is to effectively prevent someone from going to work. In this scenario, the ends might be better served by pinching people where it hurts the most: the wallet. If parents are providing minors with alcohol, fine the parents larger amounts of money. But to make this a per se crime and punish parents for it is untenable. If I have a child of 18 and want to share a beer with him in my own home (him not going anywhere, ofcourse), then I should be able to do that.
It seems to me that the penalty is harsh enough. Upto one year imprisonment is a Class A misdemeanor. To further compound that with the loss of the adult’s driver’s license seems unecessary.
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