To answer this question and a series of others that I will address over the coming days, let's begin with a quote of the United States Constitution - 4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now, that language is quite heavy and is definitely not written in the plain language with which each of us speaks on a daily basis, so let me rephrase it in a way that is more readable and understandable:
An individual, his or her house, documentation, and personal property shall not be searched through or possessed for an unreasonable purpose (by the Government). Further, a warrant is required and may only be issued if probable cause that is supported by someone swearing to the truthfulness of his or her statement is presented to a Judge, and the sworn statement must specifically describe the place to be searched and the person or things to be taken.
So, to address this question, I use my experience as a former police officer and a attorneys">criminal Defense Attorney. Let me begin by describing a scenario that each of us witnesses on an almost daily basis. You are driving down the highway and see a car pulled onto the shoulder of a roadway and behind it is a black and white car with flashing red and blue lights. An officer is standing at the window of the vehicle, talking with the Driver, who is the only occupant. The officer tells the Driver that he wants to search the vehicle. What happens from here?
The general rule: An officer may stop and automobile if an officer possesses a reasonable and articulable suspicion that the motorist has violated a traffic law. Once the vehicle has pulled to the side of the road, the Fourth Amendment permits the officer to search the vehicle's interior by looking through the windows; This is the "plain view" or "plain sight" rule that has developed in case law and is part of the "automobile exception" to the warrant requirement of the 4th Amendment.
However, the trunk of a vehicle cannot be searched unless the officer has probable cause to believe that it contains contraband or the instrumentality's of attorneys">criminal activity, and similarly, the officer does not get to look into locked containers or a locked glove compartment unless the same type of probable cause is present. When the vehicle is impounded, its contents may be inventoried without a warrant, including the contents of the trunk and any containers inside it.
The rationale for permitting warrantless searches of cars is that the mobility of automobiles would allow drivers to escape with incriminating evidence in the time it would take police to secure a search warrant. The Court has held that a person expects less privacy in an automobile than at home and when you think about it, this is reasonable-you are driving down the road in a vehicle that anyone, not just an officer, may look through the windows and see what is inside.
As the Driver of the vehicle, you may do a couple of things:
1) Consent to the search, if you have absolutely nothing to hide or conceal in the vehicle and want to speed the process along; or
2) Refuse to allow the officer to search the vehicle.
If you elect to refuse the officer's request to search, you should ask the officer if you are under arrest, and if you are not, why he or she wants to search your vehicle. However, the officer may not give you a complete answer as to why he or she is asking to search the space. Denying an officer's request to search is not an admission of guilt, although, the officer may tell you that if you have nothing to hide you should permit the search.
The officer may insist on searching your car. Clearly state, "I am not giving consent to this search" but do as the officer instructed. Repeatedly, but politely and firmly repeat that you are not consenting to the search, as the likelihood of the statement being recorded is great, at least under most department policies. This recording will be invaluable in a later court proceeding, should one arise. But, no matter what you do, do not interfere with the search and do not touch the officer, as either of these actions is likely to get you arrested.
Also, the officer may place you in the patrol car or even handcuff you and have you sit on the curb while conducting the search. Again, this does not mean you are under arrest but will likely be labeled as an "officer safety" tactic. This usually occurs if there is only one officer and multiple occupants to a vehicle or if the officer knows that backup is not nearby. If the officer does handcuff you, DO NOT RESIST and provide a reason to arrest you.
Another situation that may arise is that an officer instructs the occupants out of a vehicle because he is going to search it. This type of search is one based on probable cause. For example, if the officer approaches a vehicle and smells what "training and experience" tells him or her is marijuana or another illegal substance, he does not have to obtain consent to search the vehicle. But, the officer may ask for consent because then there is little room to contest the search later, except for a claim that the search was not voluntary or freely given...i.e. that the search was coerced. Under this situation, even if you refuse consent, the officer may search the vehicle anyway. Again, if this happens, do not resist and do not create problems. You may always challenge the search in court and the more cooperative you were (in following instructions) the better result you may later obtain.
The information contained in this article is not specific to any state and if you find that you or your vehicle or property has been searched or seized, you should contact a attorneys">criminal defense lawyer without delay if you believe that your rights may have been violated. An good defense attorney will be able to answer your questions about what happened and determine whether you have a valid claim or case. And, it is very important that you advise your attorney of what happened as quickly as possible, especially if you are facing criminal charges as a result of the search since the evidence found as a result of the illegal search is likely to be excluded from any proceedings against you.
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Austin, Texas criminal defense attorney Adam Reposa goes to jail to start his sentencing for contempt of court from a 2008 case in Judge Breland's court. We were the only camera there as he walked in to get booked.
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http://www.youtube.com/watch?v=cFAk3geEiQM&hl=en
Youtube
http://www.youtube.com/watch?v=cFAk3geEiQM&hl=en
Felonies are grave attorneys">criminal offenses that often have severe punishments for those who performed them. As defined by the federal government, a felony is an offense that is punishable by at least one year in prison. In Wisconsin, the punishment for committed felonies includes a term in state or federal prison, and is often times coupled with a considerable fine. Felonies can result in the revocation of not only civilian privileges (licenses, appointments) but also civil rights. Civil liberties that may be taken away include the right to vote, the right to bear arms, and the right to serve on a jury. In some states, for certain severe cases, a felon may be sentenced to death. However, in Wisconsin the death penalty does not exist.
In Wisconsin there exist nine separate classes of felonies, ranging from Class A (having the highest level of punishment, life in prison) to Class I (having the lowest level of punishment, a fine and several years in prison). Examples of felonies include fraud, rape, theft, assault, and murder.
As opposed to a felony, a misdemeanor is typically defined as ''a lesser attorneys">criminal act.'' Misdemeanors are often times classified on different levels. In Wisconsin, there are three types of misdemeanor: Class A, Class B, and Class C. Each one represents a different level of severity in the wrongdoing of the attorneys">criminal individual. Typically, the further down the alphabet the classification letter lies, the lesser the attorneys">criminal offense. A Class C misdemeanor is punished less severely than one that falls under Class A. Despite the fact that misdemeanors are of a lower level of severity than felonies, they still are considered criminal offenses and will remain on one's criminal record.
Misdemeanors cover a wide range of offenses, and it is typically the judge's decision about what class offense has been performed. Examples of misdemeanors include marijuana possession, public intoxication, DUI, and basic assaults.
Typically the punishments for those who have committed misdemeanors include probation, fines or jail time. Jail time for misdemeanors is spent in a local jail, instead of a state or federal prison. Misdemeanants also experience the revocation of citizen privileges, but never their constitutional rights. This means that they can have licenses or appointments taken away, but freedoms such as the right to a fair and just trial or the freedom to choose where to live and work remain.
In Wisconsin there exist nine separate classes of felonies, ranging from Class A (having the highest level of punishment, life in prison) to Class I (having the lowest level of punishment, a fine and several years in prison). Examples of felonies include fraud, rape, theft, assault, and murder.
As opposed to a felony, a misdemeanor is typically defined as ''a lesser attorneys">criminal act.'' Misdemeanors are often times classified on different levels. In Wisconsin, there are three types of misdemeanor: Class A, Class B, and Class C. Each one represents a different level of severity in the wrongdoing of the attorneys">criminal individual. Typically, the further down the alphabet the classification letter lies, the lesser the attorneys">criminal offense. A Class C misdemeanor is punished less severely than one that falls under Class A. Despite the fact that misdemeanors are of a lower level of severity than felonies, they still are considered criminal offenses and will remain on one's criminal record.
Misdemeanors cover a wide range of offenses, and it is typically the judge's decision about what class offense has been performed. Examples of misdemeanors include marijuana possession, public intoxication, DUI, and basic assaults.
Typically the punishments for those who have committed misdemeanors include probation, fines or jail time. Jail time for misdemeanors is spent in a local jail, instead of a state or federal prison. Misdemeanants also experience the revocation of citizen privileges, but never their constitutional rights. This means that they can have licenses or appointments taken away, but freedoms such as the right to a fair and just trial or the freedom to choose where to live and work remain.
Driving home late one Saturday night, you glance in your rearview mirror and catch a glimpse of the dreaded red and blue flashing lights. The officer comes to your window and asks you to step out of the car. After some field sobriety tests, you're taken to the police station and charged with a DWI. You were out at a party, and your breathalyzer results are just over the legal limit of .08. Looks like case closed for you - right?
It's true; a large portion, even a majority of DWI-related arrests lead to a subsequent conviction in court. With so many laws requiring DWI suspects to submit to test after test, and wide use of breathalyzer devices despite fierce ongoing controversy over its reliability, it's little surprise that many people feel helpless when facing a DWI charge.
Unreasonable Search and Seizure - What it Means for DWI Arrests
The Fourth Amendment to the US Constitution states that: "The right of the people to be secure ... against unreasonable searches and seizures, shall not be violated ... but upon probable cause." This simple statement, in fact, is regarded as part of the highest law in the land, which means that it overrides and governs all other laws - including those associated with DWI. So, in short, despite having what appears like "ironclad" evidence in a DWI case, prosecutors cannot obtain a conviction if the initial arrest was made without probable cause.
The probable cause standard means that, in order to pull you over in the first place, a police officer must have a reasonable belief that you have or are committing a crime (driving while intoxicated). In court, a good DWI defense lawyer will question the presence of probable cause. Examples of valid probable cause include:
- Swerving erratically while driving
- Stopping abruptly for no reason
- Drifting between lanes
- Making excessively wide turns
- Driving at extremely high or low speeds
If the police officer cannot present solid justification that he had a good reason to pull you over, the violation of your Constitutional rights immediately voids any evidence against you resulting from the arrest, and your case is likely to be dismissed. For this reason, it is important that you try and note the following details during the arrest:
- Where you were going
- Your own level of intoxication (if any)
- What the police officer gave as the reason for the stop
- What the police officer asked you to do
It's true; a large portion, even a majority of DWI-related arrests lead to a subsequent conviction in court. With so many laws requiring DWI suspects to submit to test after test, and wide use of breathalyzer devices despite fierce ongoing controversy over its reliability, it's little surprise that many people feel helpless when facing a DWI charge.
Unreasonable Search and Seizure - What it Means for DWI Arrests
The Fourth Amendment to the US Constitution states that: "The right of the people to be secure ... against unreasonable searches and seizures, shall not be violated ... but upon probable cause." This simple statement, in fact, is regarded as part of the highest law in the land, which means that it overrides and governs all other laws - including those associated with DWI. So, in short, despite having what appears like "ironclad" evidence in a DWI case, prosecutors cannot obtain a conviction if the initial arrest was made without probable cause.
The probable cause standard means that, in order to pull you over in the first place, a police officer must have a reasonable belief that you have or are committing a crime (driving while intoxicated). In court, a good DWI defense lawyer will question the presence of probable cause. Examples of valid probable cause include:
- Swerving erratically while driving
- Stopping abruptly for no reason
- Drifting between lanes
- Making excessively wide turns
- Driving at extremely high or low speeds
If the police officer cannot present solid justification that he had a good reason to pull you over, the violation of your Constitutional rights immediately voids any evidence against you resulting from the arrest, and your case is likely to be dismissed. For this reason, it is important that you try and note the following details during the arrest:
- Where you were going
- Your own level of intoxication (if any)
- What the police officer gave as the reason for the stop
- What the police officer asked you to do
Driving while intoxicated (DWI) is a serious problem due to the scores of deaths caused due to drunken driving. DWI is the only misconduct attorneys">criminal offense for which postponed settlement cannot be received. DWI results in car accidents, highway injuries as well as death on road.
To avoid this, US government has set various prevention methods like DWI courts, blacklisting driver licenses, seizing the registration plates, increasing penalties, rehabilitation programs for alcohol abuse, fines, or open container bans.
Arrest of the driver: Laws of U.S. States
The United States has established DWI as an offense if the driver has blood alcohol concentration (BAC) at or above a proscribed level, 0.08 percent. Suspension of license is the common methodology for this offense. Administrative license suspension is also followed wherein licenses are taken away from the driver if he/she fails in the chemical test. Administrative license suspension laws are self-regulating and free from attorneys">criminal procedures.
Forty-five states allow some lawbreakers to drive if their vehicles have ignition interlocks which enable analysis of driver's breath and immobilize the ignition.
Information on defense is important to drivers to avoid being wrongly convicted for DWI. DWI defense helps in drivers claiming for their persecution
People have about 15 days to appeal. When people are detained for any offense, facing accusation may be a tiresome process. The likely penalty from a conviction includes the restraining of a driver's license, an augmenting insurance cost, fines or court costs.
A lawyer can help defend if he is able to prove against the following points :
the arresting officer made the arrest accurately
proper advise of the rights was given
The equipment used to test was working accurately
The office that governs the "standard field sobriety tests" should have effectively finished the National Highway Traffic Safety Administration Standardized Field Sobriety Testing student class before administer these tests. DWI defense lawyer help people in DWI defense if they know the various tricks and ways the officers use to arrest the person. Prior to the trial DWI defense lawyer will evaluate the officers to ensure that the tests were performed properly.
If the DWI defense lawyer finds out that the tests were not accurate, they can be proclaimed to the District Attorney or the jury about the tests results being defective.
To avoid this, US government has set various prevention methods like DWI courts, blacklisting driver licenses, seizing the registration plates, increasing penalties, rehabilitation programs for alcohol abuse, fines, or open container bans.
Arrest of the driver: Laws of U.S. States
The United States has established DWI as an offense if the driver has blood alcohol concentration (BAC) at or above a proscribed level, 0.08 percent. Suspension of license is the common methodology for this offense. Administrative license suspension is also followed wherein licenses are taken away from the driver if he/she fails in the chemical test. Administrative license suspension laws are self-regulating and free from attorneys">criminal procedures.
Forty-five states allow some lawbreakers to drive if their vehicles have ignition interlocks which enable analysis of driver's breath and immobilize the ignition.
Information on defense is important to drivers to avoid being wrongly convicted for DWI. DWI defense helps in drivers claiming for their persecution
People have about 15 days to appeal. When people are detained for any offense, facing accusation may be a tiresome process. The likely penalty from a conviction includes the restraining of a driver's license, an augmenting insurance cost, fines or court costs.
A lawyer can help defend if he is able to prove against the following points :
the arresting officer made the arrest accurately
proper advise of the rights was given
The equipment used to test was working accurately
The office that governs the "standard field sobriety tests" should have effectively finished the National Highway Traffic Safety Administration Standardized Field Sobriety Testing student class before administer these tests. DWI defense lawyer help people in DWI defense if they know the various tricks and ways the officers use to arrest the person. Prior to the trial DWI defense lawyer will evaluate the officers to ensure that the tests were performed properly.
If the DWI defense lawyer finds out that the tests were not accurate, they can be proclaimed to the District Attorney or the jury about the tests results being defective.
The state of Texas has a .08 blood alcohol concentration limit for intoxication. However, a driver may be issued a citation for impaired driving due to alcohol or drugs regardless of the amount of alcohol. Impairment can begin with the first drink. Depending on body weight, gender, and the food in one's stomach, a person's tolerance varies. In general, women, smaller people, and younger people do not have high tolerances.
Once you are stopped, you will be asked to take a blood or breath test. You can deny. However, you will then be automatically subjected to a 180 day driver's license. In the state of Texas, punishment for DWI depends on the number of previous convictions.
For a person's first DWI offense, they will spend between 72 hours and 180 days in jail. In addition, they are subject to fines up to $2,000 and their driver's license will be suspended for a minimum of 90 days and a maximum of a year. A second offense carries a possible fine of $4,000. An offender will spend between a month and a year in jail. Their driver's license will be suspended for a maximum of 2 years. If a person is convicted of DWI the third time, they face up to 10 years in prison, a $4,000 fine, and a driver's license suspension for up to 2 years.
If you are found in possession of alcohol and are under 21, the following will occur on the first offense: 30 day driver's license suspension, 8 to 12 hours of community service, alcohol-awareness classes and a fine of up to $500. If a second or third offense occurs, the driver's license can be suspended 180 days. If the offender is above the age of 17 they face a maximum of $2,000 in fines and 180 days in jail for the third offense.
If you are under the legal drinking age of 21 and are drinking and driving, the following will occur: 60 day driver's license suspension, $500 fine, 20 to 40 hours of community service, an alcohol awareness classes. Penalties increase with subsequent offenses.
The state of Texas has a zero tolerance rule. That means an individual under the age of 21 cannot possess any alcohol in their blood. The above consequences will occur if the amount of alcohol is very minimal. If the BAC is .08 or greater and the individual is 17 they face up to 180 days in jail.
If you are facing DWI charges contact, contact http://www.dwi-lawyers-austin.com for legal help.
Once you are stopped, you will be asked to take a blood or breath test. You can deny. However, you will then be automatically subjected to a 180 day driver's license. In the state of Texas, punishment for DWI depends on the number of previous convictions.
For a person's first DWI offense, they will spend between 72 hours and 180 days in jail. In addition, they are subject to fines up to $2,000 and their driver's license will be suspended for a minimum of 90 days and a maximum of a year. A second offense carries a possible fine of $4,000. An offender will spend between a month and a year in jail. Their driver's license will be suspended for a maximum of 2 years. If a person is convicted of DWI the third time, they face up to 10 years in prison, a $4,000 fine, and a driver's license suspension for up to 2 years.
If you are found in possession of alcohol and are under 21, the following will occur on the first offense: 30 day driver's license suspension, 8 to 12 hours of community service, alcohol-awareness classes and a fine of up to $500. If a second or third offense occurs, the driver's license can be suspended 180 days. If the offender is above the age of 17 they face a maximum of $2,000 in fines and 180 days in jail for the third offense.
If you are under the legal drinking age of 21 and are drinking and driving, the following will occur: 60 day driver's license suspension, $500 fine, 20 to 40 hours of community service, an alcohol awareness classes. Penalties increase with subsequent offenses.
The state of Texas has a zero tolerance rule. That means an individual under the age of 21 cannot possess any alcohol in their blood. The above consequences will occur if the amount of alcohol is very minimal. If the BAC is .08 or greater and the individual is 17 they face up to 180 days in jail.
If you are facing DWI charges contact, contact http://www.dwi-lawyers-austin.com for legal help.
The Fair Debt Collection Practice Act (FDCPA) is a statute that was added to the Consumer Credit Protection Act by Congress in 1978. The FDCPA sets forth guidelines for debt collection practices in order to protect consumers from abuse, allow for the validation of alleged debts, and ensure the rights of consumers. The FDCPA governs many different types of debt collectors, whether they be a dedicated agency, an individual, or a practicing attorney. As a consumer or business owner, understanding the rules outlined in the FDCPA will help you decide how best to approach a debt situation, whether you are debtor, creditor, or collector.
Practices Forbidden by FDCPA
The FDCPA prohibits debt collectors from engaging a variety of behaviors or practices considered to be abusive or unethical. For example, debt collectors may only contact a debtor during "normal" hours, defined as the time between 8 AM and 9 PM, unless permitted to do otherwise by the debtor.
In general, consumers' rights are heavily guarded by the FDCPA. Under the statute, a debtor can force a collection agency to refrain from further contact by a simple written notice. The only exceptions to this rule are a) notifying the consumer that collection efforts have ceased, and b) notifying the consumer of any further action, such as a lawsuit, that the creditor intends to pursue.
Other practices forbidden by the FDCPA include, but are not limited to:
Publishing the consumer's name or address on a list of debtors,
Using abusive language,
Contacting third parties about the debt (such as family, friends, neighbors, employers, etc.), and
Contacting a consumer who is known to be represented by an attorney.
Protocol Required by FDCPA
The FDCPA also obligates debt collectors to provide certain information about themselves and the creditor they represent. They must identify both themselves and the creditor, including both name and address, inform the consumer of their right to dispute the debt, and provide validation of a debt in the case of a formal dispute.
Debate over FDCPA
The process of debt collection is stringently regulated and highly technical. The FDCPA's provisions are enforced by the Federal Trade Commission. Furthermore, violations of the FDCPA also allow the affected private citizen(s) to sue to recover compensation up to $1,000, plus any damages caused by the violation.
Not everyone is happy with the FDCPA as it stands, however. In fact, the FDCPA has come under fire from both consumer advocates and industry representatives. In the former case, consumer advocates feel that the penalties allowed by the FDCPA are not sufficient deterrents to abusive collection practices, partially due to the fact that fines have not been scaled to inflation. On the other hand, the collection industry complains that the heavy regulations of the FDCPA promote frivolous and time-consuming lawsuits over minor technical details, and thus impedes their ability and right to collect on valid, legitimate debts.
For more information on the Fair Debt Collection Practices Act, or to learn more about dealing with debt as either debtor or creditor, visit the website of the Austin business lawyers of Slater & Kennon at http://www.slaterandkennon.com.
Practices Forbidden by FDCPA
The FDCPA prohibits debt collectors from engaging a variety of behaviors or practices considered to be abusive or unethical. For example, debt collectors may only contact a debtor during "normal" hours, defined as the time between 8 AM and 9 PM, unless permitted to do otherwise by the debtor.
In general, consumers' rights are heavily guarded by the FDCPA. Under the statute, a debtor can force a collection agency to refrain from further contact by a simple written notice. The only exceptions to this rule are a) notifying the consumer that collection efforts have ceased, and b) notifying the consumer of any further action, such as a lawsuit, that the creditor intends to pursue.
Other practices forbidden by the FDCPA include, but are not limited to:
Publishing the consumer's name or address on a list of debtors,
Using abusive language,
Contacting third parties about the debt (such as family, friends, neighbors, employers, etc.), and
Contacting a consumer who is known to be represented by an attorney.
Protocol Required by FDCPA
The FDCPA also obligates debt collectors to provide certain information about themselves and the creditor they represent. They must identify both themselves and the creditor, including both name and address, inform the consumer of their right to dispute the debt, and provide validation of a debt in the case of a formal dispute.
Debate over FDCPA
The process of debt collection is stringently regulated and highly technical. The FDCPA's provisions are enforced by the Federal Trade Commission. Furthermore, violations of the FDCPA also allow the affected private citizen(s) to sue to recover compensation up to $1,000, plus any damages caused by the violation.
Not everyone is happy with the FDCPA as it stands, however. In fact, the FDCPA has come under fire from both consumer advocates and industry representatives. In the former case, consumer advocates feel that the penalties allowed by the FDCPA are not sufficient deterrents to abusive collection practices, partially due to the fact that fines have not been scaled to inflation. On the other hand, the collection industry complains that the heavy regulations of the FDCPA promote frivolous and time-consuming lawsuits over minor technical details, and thus impedes their ability and right to collect on valid, legitimate debts.
For more information on the Fair Debt Collection Practices Act, or to learn more about dealing with debt as either debtor or creditor, visit the website of the Austin business lawyers of Slater & Kennon at http://www.slaterandkennon.com.
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