I do not have a “typical client” demographically when it comes to DUI defense cases. I have helped more males than females, but that trend appears to be changing, according to a study released recently by the National Highway Traffic Safety Administration. The NHTSA’s data (from the FBI) reveals a 28.8-percent increase in the number of women arrested for driving under the influence over a 10-year period from 1998-2007. Transportation Secretary Ray LaHood believes this to be a “very disturbing trend.” Chuck Hurley, CEO of Mothers Against Drunk Driving even said that a mother being arrested for DUI with children in the car was “the ultimate form of child abuse.” Pretty harsh.

But ponder this: During this same 10-year period most states moved from a legal blood alcohol limit of .1 to .08 BAC. I’m generalizing here, but go with me when I say that most women are smaller than most men, and in general get to .08 BAC faster, and with less alcohol, than most men. So was this latest reduction in the legal limit – hotly debated at the time – discriminatory towards females? I said ponder it, but don’t waste too much time on it. We are stuck with a legal limit of .08 BAC. It is certainly not going to go back up.

Last Wednesday, Secretary LaHood kicked off a nationwide anti-drunk driving enforcement campaign, which will last through the Labor Day weekend. It is hoped that this campaign will reduce the number of fatalities on our nation’s roads and highways, which topped 12,000 last year. Look for more road signs, checkpoints and community education on statistics and risks.

Mississippi is involved in this national campaign, called “Drunk Driving. Over the Limit. Under Arrest.” In a press release from August 13, 2009, Commissioner Stephen B. Simpson of the Mississippi Department of Public Safety stated that the Mississippi Highway Patrol will be working closely with local police and sheriff’s departments and other law enforcement agencies to aggressively look for all impaired drivers and to arrest anyone they find driving under the influence. Commissioner Simpson also said “Too many people don’t understand the gravity of their actions and the serious consequences of driving while impaired. On top of the possibility of a deadly crash, incarceration, driver’s license suspension, higher insurance rates, and numerous other expenses from attorney fees, fines, and court costs can result from just one instance of drinking and driving.”

So be advised, they are out there, waiting on you, lots of them. If you get arrested you are going to need some help.

If your luck runs out during this period of increased attention on DUIs, give us a call. This firm aggressively defends DUI cases. Your telephone consultation or visit to our law firm is immediate and it is free. I feel certain the call will be productive for you.

I received a very interesting call about a month ago.  It seems that the National Rifle Association needed a lawyer in Mississippi experienced with firearms and familiar with gun laws to refer litigation to on an “as needed” basis.  The NRA’s Office of Legislative Counsel ran across my website, and we quickly formed a great relationship.

The NRA has since named me its “referral counsel” in Mississippi for NRA members that need help with gun issues, etc.  I’m not a “gun nut,” but I’ve been around firearms my entire life.  I can still field strip an M16A2 service rifle with the best of them, and so I gladly accepted the honor and responsibility of helping people with legal issues regarding firearms in the state of Mississippi.

Firearms are a part of our culture in this state.  You don’t have to be in Mississippi long to know that it embraces the hunting/sporting ethos with great enthusiasm.    And so the U.S. Supreme Court’s decision last year in District of Columbia et al. v. Heller met with little dissent in these parts.

After decades of speculation by analysts and court-watchers, the U.S. Supreme Court finally held that the Second Amendment to the Constitution protects an individual’s right to possess a firearm that is unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

The Second Amendment reads “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”  Gun control advocates have maintained forever that the second clause of the sentence is dependent on the first, so that the individual right to possess firearms is dependent on the existence of, or participation in, a militia.

The Court finally put an end to this long debate, holding that the Amendment’s first clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.  See District of Columbia et al. v. Heller, 128 S.Ct 2783 (2008).

So, for now, it looks as if it will quite literally take an amendment to the Constitution in order to “pry [a Mississippian’s] cold dead fingers” from their favorite beloved firearm.  Praise the lord and pass the ammunition.  With that issue somewhat resolved, what kinds of trouble can you still get into with a firearm?

This is a partial list of crimes that have to do with possessing a firearm or explosive device:

• Carrying a concealed weapon
• Assault with a deadly weapon
• Possession of an unregistered gun
• Brandishing a firearm
• Unlicensed firearms
• Felon in possession
• Possession by a minor
• Unlawful discharge of a weapon
• Unlawful sale of firearms
• Carrying a concealed and loaded firearm in a vehicle
• Federal firearms violations, including possession of a machine gun or silencer
• Possession of assault weapons

These crimes can generally be pursued in both federal and state court.  Some of these crimes are stand-alone offenses, and some are “enhancements” to other offenses.  The penalties tacked on in the federal system for using a firearm in the commission of certain crimes are especially brutal.

A lawyer that knows about firearms can also help you with the loss and restoration of firearms possession rights, which can be forfeited as the result of a felony conviction, a domestic violence conviction, or other crimes.  Your firearm itself may also be forfeited as the result of criminal charges, and a knowledgable firearms lawyer can help you with forfeiture issues as well.

So in summary I am proud that the NRA found me and has expressed their confidence in me to litigate firearms issues in this state.   This will certainly irritate some of my more liberal friends, but I know they can get past it.  If you find yourself in trouble, and there is a firearms issue with your case, call me and we’ll work the problem together.

If you or a family member have been arrested, or are under investigation  in the state of Mississippi and you need help,  give me a call at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.

“Strong Odor of Alcohol on the Suspect’s Breath”

It has been a long, long, long time since I have seen a report from a DUI arresting officer that didn’t say that the officer smelled a ”strong odor of alcohol on the suspect’s breath.”  But alcohol (ethanol) has no odor.   It is the mixing agent, or the flavoring, that produces the odor.

The officer is smelling all the other ingredients associated with the alcohol, and thinks it is alcohol, but he cannot say that he smelled a “strong odor of alcohol” without being shown to be biased and just wrong. The “odor of alcohol” doesn’t matter.  It may indicate that a person has consumed alcohol; it may not.

And the odor itself certainly cannot be used to determine how much the person has consumed — or what they drank, or when.  All the ”odor of alcohol on the breath” offers is that a DUI suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough to be “under the influence” or to have the requisite BAC of .08 or higher.

If you or a family member have been arrested in Mississippi for DUI and you need help, give me a call at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.

I am in the middle of a jury trial in federal court this week, and I obviously can’t say anything about it, other than to say it is one of the biggest I’ve ever tried.

I am writing this post as a “note to self” more than anything else, because every time I get to trial I realize how important the competing motivations of the prosecution, the court (i.e., the judge), and the defense are to the eventual outcome of the case.  In summary, the prosecution wants to present the evidence flawlessly, the defense wants to defend the client’s interests, and the court wants to protect the record.

A successful prosecution involves marshalling all of the available evidence together, and coordinating with law enforcement, victims, and (unfortunately) political influences to present the evidence in a manner that will be coherent and believable to the jury.  This can be a large and expensive logistical burden, and the nitnoid details of putting the case together can sometimes interfere with a prosecutor’s strategic legal thinking.

Because the burden of proof is always on the prosecution to prove the case beyond a reasonable doubt, the defense is oftentimes afforded the opportunity for more strategy.  One strategy may be to scatter the seeds of doubt throughout the prosecution’s case by going after every witness, attacking all of the forensics, and generally wreaking havoc.  Another strategy may be to pinpoint one weak area and concentrate defense efforts to ensure one element can’t be shown (the stop was without probable cause, they had sex, but it was consentual, etc.). 

Finally, in trial one of the judge’s main concerns is to ensure that an adequate “record” of the proceedings is produced.  After the trial, physically the record is a big stack of paper consisting of the pleadings, the exhibits, and the trial transcript.  This record is all that history will have to reconstruct the trial, but more importantly the record is all the appellate court will have if any issues are taken up on appeal.  Judges do not like to be overturned for making incorrect legal decisions.  This is not necessarily because of their ego, but because when a case is returned from the appellate court it must be retried or reconsidered, and therefore for the reasons of judicial economy it is much better to do it right the first time.  This is why most good judges move at a deliberate pace once a trial is finally underway, slowly making sure that counsel have an opportunity to raise any legitimate issues, and stopping the trial if necessary to explore the latest law on said issues.

These three goals, although different, do not necessarily “compete,” as the title of this post suggests.  But understanding these goals helps to define the “box” that a defense counsel is working in, so that it may be easier to think outside of it to zealously represent the client.