Another wonderful day in court

Another day, another dollar. Except with inflation it's only *50* cents now. Trying to get a client out of jail for Christmas.

Luckily, court is not too busy today and everyone is generally in a good mood.

UPDATE: client is getting out and his daughter is very happy!!!

Intoxilyzer 5000 – can it be trusted?

Intoxilyzer 5000 – can it be trusted?

Driving Under the Influence (DUI) is a serious crime in Georgia. Would you want to be convicted of a DUI based upon a reading by a machine that other states legally declare as “unreliable”.

There are two types of DUIs related to alcohol. One involves being under the influence to the extent that you are a less safe driver. The other type is what is known as “per se” DUI. It requires a blood alcohol content (BAC) of .08 or higher. Law enforcement in Georgia often relies upon a machine know as the Intoxilyzer 5000 to determine what a driver’s BAC level is. Florida has declared the Intoxilyzer 5000 unreliable based upon testimony from experts in the field.

The primary issue with the Intox 5000 is how the machine calibrates. The Intox 5000 is only checked once per month to insure the accuracy of its results. The currently accepted practice and recommended by most experts in the field requires that a control test be conducted prior to each actual test to insure that results are, in fact, accurate.

Moreover, in Florida, results from the Intox 5000 can no longer be introduced as evidence. However, Georgia still relies upon, and allows into evidence, Intox 5000 tests. If Florida doesn’t trust it, why does Georgia? Does Georgia have lower standards than Florida?

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

What is a Criminal Trial in Douglasville like?

Most people have no idea what it is like to experience a trial – either from the perspective of a juror, witness, or defendant. As a witness, the experience seems confusing and boring because you spend most of your time waiting to testify outside the courtroom. As a juror, the experience is probably a mixture of boredom, excitement, and frustration because you will see almost everything but not quite. As a criminal defendant the trial experience is a drag race with no helmet, doors, seatbelt or floorboard. You experience everything with the knowledge that your life hangs in the balance.

The trial experience actually begins days or perhaps even weeks before the actual trial with the “Calendar Call.” The Calendar Call is a show-up and “shut-up, or put-up” event. During the call of the calendar, each attorney has to announce whether the case is going to trial. If the State (prosecution) announces “ready”, the defense must either be ready to go to trial, willing to accept the state’s plea offer, or have some explanation as to why the case is not ready for trial. In Douglas County, it is not unusual for 50-100 cases to be on the trial calendar. If both the State and the Defense announce “ready”, you will have to report back at the start of the trial week.

Start of trial week is still uncertain. Your case may be the first out, or it may be down the list. If it is not first out, you will be put “on-call”. You may be called in later during the trial, but if you are not, you will be put back on the calendar call for the next month and the process repeats. I have several cases that have been on 10 or more calendars without ever being tried. Likewise, I have had cases that were on only one calendar and tried the first week. In general, the District Attorney controls which cases will get tried and which will not. Weak cases will not go to trial unless they have nothing else to try. Cases which the DA thinks are strong will go to trial right away.

The beginning of the trial starts with voir dire. This is the process of selecting jurors who are impartial and fair to both sides. A panel of 12-14 jurors is put into the jury box and the attorney for the State begins questioning the jurors. Next, the attorney for the defendant asks questions. Questions may cover just about any topic so long as they do not ask the jury to prejudge the case. Since most cases that go to trial are very close, I believe voir dire is the most important part of the trial. An experienced attorney will know exactly what kind of juror he is looking for and what questions to ask to determine who is and who is not that kind of juror.

After voir dire, each side makes an opening statement. The opening statement is just a preview of what each side expects the evidence to be. Openings are not supposed to have any legal argument and are therefore rarely dramatized in movies or TV. However, research shows that most jurors actually make up their minds by the end of opening statements and rarely change from their initial judgment. Therefore, a powerful opening statement that clearly communicates the theory of your case is more important than all the fancy one-liners watched in the movies.

After opening statements, the prosecution presents its case. Witnesses will normally include law enforcement officers, the victim, and maybe scientific testimony if the case requires it. After the prosecution finishes the direct examination of each witness for the State, the Defense is allowed to cross-examine the witness.

After the State has presented its case, the Defense is allowed to call any witnesses it wishes. It’s important to note that the Defense does not have to call any witnesses because the “burden of proof” belongs to the prosecution. Additionally, although the Defense may call any witness it wishes, the defendant does not have to testify. The Court may not order the defendant to testify and the State may not call him as a witness.

Following the Defense case, the prosecution may call rebuttal witnesses if they so choose. If they do not, the case will proceed with closing. Closing is the part the lawyers like because we get to be dramatic and persuasive while we try to impress everyone in the Courtroom. However, in my opinion, closings are mostly for show. At best closings are simply icing on the cake. Icing won’t make a dry cake taste good; likewise a powerful closing won’t make a poor case a winner.

Following closing, the Judge will charge the jury on the law. The jury will then retire to the jury room and deliberate. Deliberations can last minutes, hours or days. If the jury has questions, they will send a note to the Judge, who will then consult with the Attorneys and formulate a response. Once the jury reaches a verdict, they will return to the Courtroom and the clerk or the foreperson will read the verdict.

As you can see, a trial is a complicated event. I often see people who have not been trained try to act as their own attorney in Court, which I always consider to a fatal mistake. For example, how does a lay person know when the prosecution is attempting to introduce impermissible hearsay (as opposed to permissible hearsay). What if the prosecution asks a question that puts the Defendant’s character at issue? What if the prosecution objects to a question on the basis of improper foundation? Simply put, if you represent yourself in a criminal trial, you have a fool for a client.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Be Careful what you say online

The Internet is making the world smaller, faster and more productive. One hundred years ago, it could take days to get a message from one side of the country to the other. Now, it takes seconds. Whether we are texting, tweeting, or emailing, we are all so wired that we can communicate virtually anywhere with anyone.

Nevertheless, rules of the old world still apply. Before cell phones and the Internet, there were do’s and don’ts. For instance, you couldn’t call your next door neighbor a murdering thief, unless he really was one (in which case you probably wouldn’t want to). If you did falsely accuse your neighbor of being a criminal, your neighbor could sue you for defamation – more commonly referred to as slander (spoken word) or libel (printed word). These rules still apply on the internet. Often, I encounter people who believe anything goes on the “Internet”

However, I am here to tell you that defaming someone online will still cost you money. There are no special statutory exemptions for statements made online. A good example of how this plays out in our local community can be found at this url. A number of posters to the TOPIX forum mistakenly believe that because what they say is online opinion, their speech is somehow protected. IT IS NOT PROTECTED. Therefore, be careful what you say online. It may be tempting to hide behind what you believe is cyber anonymity, but ultimately it may cost you significant sums of money.

Defamation is not the only way your online presence can get you in trouble. Attorneys, doctors, and others who have special restrictions can get in trouble quick when they forget the rules still apply to online speech. Here is a wonderful article about the missteps and mishaps of barristers who mistakenly believed special rules apply in the cyber world.

Bottom line, speech is speech. It doesn’t matter if its spoken online, in a checkout line, or a telegraph line (they do still exist). YOU ARE RESPONSIBLE FOR WHAT YOU SAY.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Georgia's Speedy Trial Demand

If you know anyone that has been involved in a criminal proceeding, you also probably know that the process can drag on for what seems like forever. Quite often, it is in a Defendant’s best interest for the case to drag on for what seems like forever. However, in certain situations, the Defendant is better served by having his or her case resolved quickly. The key to making this happen is Georgia’s Demand for Speedy Trial which can be found at O.C.G.A. § 17-7-170.

The speedy trial statute allows a defendant to file a motion that requires the state to try his case within the current “term of court” that the demand is filed or the next term thereafter. If the case is not tried within that period, then the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

Example: Defendant is indicted for shoplifting in Douglas County. The alleged offense occurs in December. She is indicted the following March by the Grand Jury. Douglas County has two terms of court running from April to October and from October to April. Assuming the Defendant files the motion for speedy trial before the end of the current term, the case must be tried before the second Monday in October. If the case is not brought to trial, the defendant is automatically acquitted of all charges.

A defendant that demands a speedy trial must take precaution that he or she does not waive the demand. If the defendant takes affirmative actions that cause the case to be delayed, the demand is effectively waived. Such affirmative actions include a motion for continuance, not appearing for a calendar call, and challenging the jury pool.

In the right case a demand for speedy trial can be an effective tool. However, it should be undertaken only with proper consideration given to all the circumstances of the case. Proper legal counsel is essential.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Sitting and Waiting in Court

If you are ever involved in litigation, especially in Douglasville, what you will soon learn is that going to Court involves a lot of sitting and waiting.   There will be days when you go to Court, and just sit, and sit, and sit.  

When most folks watch TV or read a book or go to a movie, they always see people just walk into court and the case immediately starts.   What is never shown on the big screen or written about in the legal thrillers is the constant waiting and waiting.  These delays happen for a number of reasons.

First, the way Courts in Douglasville schedule cases is very inefficient.   No queuing techniques are ever considered.  Everybody reports at the same time and cases are just taken one at time until all cases are done or the Court day is concluded.  Imagine a doctor's office that told it's patients, "Everybody be here at 9 a.m., and we'll do our best to see everybody before the day is over."  My personal opinion is that a better scheduling system would result in less delay. 

Secondly, courts are crowded because there are simply too many cases.  You can't put seven gallons of water in a five gallon bucket.    Domestic relations cases,  divorce, custody, contempt, etc., are the main problem.   The Georgia legislature continues to make domestic relations issues more complicated, which in turn takes the court longer to hear them and  attorney's longer to prepare.   Consequently, domestic cases are clogging up the Superior Court system in Douglas County.

So, what can be done?  I have two recommendations.  First, we should add another Superior Court Judge in Douglas County.  Second, we should implement any type of scheduling system that resembles something other than a stampede.   

They scheduling system doesn't have to be elaborate; it could be as simple as what most deli counters and barber shops implement - "take a number".   If for instance a potential litigant had the choice of being #20 next week or #3 a month later,  an intelligent choice could be made. Standing orders could require numbers 1-10 to show up at 9 am, slots 10-20 at 11 am and so on and so forth.  

Finally, even if my suggestions aren't actionable, the community needs improvement.  Access to the court system is necessary for our society to function.    However, until we get improvement in Douglas County, my only suggestion to the citizens that have to appear:  "Bring a book."

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com.  If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Fighting Back Against Insurance Companies

            Don’t you hate getting taken by insurance companies?  I know most folks do.  You pay them tons of money, for years at a time, and then when you need them, they turn their back on you.  Insurance companies love to take your money, but they hate to pay your claims.    They pull out every exclusion and nickel and dime you to death.  Well, you can fight back, and here’s how.

            In Georgia, we have what is known as a “Bad Faith” statute.  O.C.G.A. § 33-4-6 requires an insurance company to pay for a loss covered by insurance within 60 days of a proper demand.  If the insurance company does not pay the demand within 60 days, the insured is entitled to recover an extra 50% of the liability or $5000 whichever is greater, plus reasonable Attorney’s fees. 

            Let’s illustrate with a real world example.  You have a homeowner policy with ACME insurance.  The policy insures you against theft of items taken from your home.  Someone breaks in your home and steals $4,000 of your stuff.  You file a claim with your insurance company, and they refuse to pay.   On top of refusing to pay, the “Special Investigator” also insinuates that you may be attempting to commit insurance fraud by filing this claim.  At this point, you’ve got two options. 

    Option 1 is probably the most commonly pursued and the one the insurance company is betting on.  You’re mad, insulted, but also busy as heck.  It’s just $4,000 and you figure, “It’s just not worth it.  They’ve got all the money and power.”  So you do what the insurance company predicts, what their mathematical studies indicate is most likely, and you just walk away.  They Win.  You Lose.

Option 2 is Fighting Back.  You talk to an Attorney about O.C.G.A. § 33-4-6.  You send ACME a proper demand.  The Attorney chews on the “Special Investigator”, the 60 days pass, and your Attorney files suit against the insurance company.  The insurance company then sends you a check for $4,000 and you say thank you very much, but we’re still going to teach you a lesson.  One of the great provisions of 33-4-6 is that payment after the 60 day window isn’t a defense to the bad faith claim.  The insurance company refuses to settle your “Bad Faith” claim.  You go to trial, pick a jury, and tell them what a terrible company ACME is.  They award you the extra $5000 (because $5000 is greater than 50% of $4000), plus Attorney’s Fees.  

I like Option 2.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com.  If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Obstruction (or Destruction) of Justice

When you hear the term "Obstruction of Justice", what pops in your mind?  If you are like most law abiding citizens, you probably think of a group mobsters trying to intimidate witnesses or a secretary deleting computer files seconds before a search warrant is served.  

 

            Well, the purpose of today's entry is to recalibrate your thinking.  The crime or charge commonly referred to as "Obstruction of Justice" should really be called "Making a Police Officer Mad."   If you find yourself in a situation where you make a police officer mad, the odds are pretty good that you are going to get charged with Obstruction of Justice.   In Georgia, Obstruction of Justice is defined as follows:

 

Obstructing or hindering law enforcement officers:

(a) Except as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.

(b) Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer, prison guard, correctional officer, probation supervisor, parole supervisor, or conservation ranger in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.

            Most Obstruction charges arise when people run from police.   If you run, you will be charged with Obstruction. What is more interesting is that it doesn't matter if you actually did anything wrong, initially.   If an officer has a valid reason for stopping you (an articulable suspicion), and you decide to take off running, you have just hindered his lawful discharge of official duties and you will be charged with Obstruction.

            Also, if you lie to a police officer, you will be charged with Obstruction. (lying to him/her is also likely to make them mad).  Duke v. State, 205 Ga. App. 689, 423 S.E.2d 427 (1992); Carter v. State, 222 Ga. App. 397, 474 S.E.2d 228 (1996). 

            What that average citizen really needs to understand is the criminal liability associated with "touching" a police officer.   If you touch a police officer during the commission of his/her duties, then you may be charged with felony obstruction, which carries a maximum of five years in prision.   Felony obstruction requires that you actually do violence or offer to do violence towards an officer.   If you touch a police officer, he will conclude that is violence.

            As an example, let's assume that you are watching a 6' 4" officer that weighs 240lbs arrest your pregnant 5' 2", 120lb pregnant daughter.  The officer has your daughter down on the ground with his knee in her back while she screams for you to help her because she can't breathe.  If you touch the officer and ask him to stop, you will be charged with felony obstruction.   

            So what’s the moral of this BLOG?  It’s simple, “Don’t make a Police Officer mad.”  If you do, the odds are very good that you will find yourself arrested. 

            If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com.  If for whatever reason I can't help you, I'll point you in the direction of someone who can.