The Clarion Ledger has an article in today’s paper reporting on the growth of the Mississippi Alcohol Safety Education Program since Hurricane Katrina in 2005.  The article reports that DUI arrests in Mississippi have grown from 22,511 in 2005 to 32,099 in 2009 – a big increase.  Previously, DUI arrests had fallen off, and this was attributed to the focus of Mississippi’s law enforcement being shifted to disaster recovery from Katrina.  But the heat is back on DUI enforcement now.  Arrests are increasing, with a corresponding increase in convictions.

If you are convicted of DUI(1st) in Mississippi, you face the following penalties:

• imprisonment of not more than 48 hours;
• a fine of $250-$1000, plus court costs;
• suspension of your driver’s license for not less than 90 days;
• possible attendance at “victim impact panel” training; and
• mandatory participation in the Mississippi Alcohol Safety Education Program.

I have previously discussed that every criminal conviction carries collateral consequences, and DUI is no exception.  Your insurance rates will certainly be affected, as well as your employment, your education, ability to join the military, etc. 

What is the Mississippi Alcohol Safety Education Program?

According to the program’s website, the mission of the Mississippi Alcohol Safety Education Program is to:

1. To provide education, rehabilitation, and referral information for the first-time DUI offender.
2. To create a DUI control system by integrating the enforcement, judicial, and rehabilitation / education functions.
3. To design and evaluate the effectiveness of various education / rehabilitation modalities.
4. To conduct research in order to design, implement, and test the effectiveness of intervention / prevention strategies.

Upon your conviction for DUI(1st), one of the forms the court will give you is a form directing you to the nearest location of MASEP, and the time to report for your classes.  Classes meet once a week for four weeks, and typically run from two to three hours each.  At the end of the fourth class you will receive a certificate that you can use to get your license back.  You’ll have to pay the fee when you report to your first class – if you haven’t learned already, you will quickly get tired of all the fees involved with a DUI.  My very valuable advice on that is here.

The timing of these classes is important if you want to pursue a hardship license to reduce the period of mandatory suspension.  These classes usually start at the beginning of each month, and we will need the certificate of completion to attach to your hardship petition, so it is important that you begin the classes as soon as possible.  These steps are not rocket science, and I will help you through them if you need me to.

As I have said before, the best way to avoid MASEP classes, fines, hardship licenses, etc. is to not get a DUI.  But the Clarion Ledger article states that the Mississippi Highway Patrol has secured federal funding for more overtime to keep officers on the roads, and they have three new “state-of-the-art” DUI trucks to test and book people accused of DUI.  Increased arrests are inevitable.  The second easiest way to avoid all of it is to beat your DUI.  If you need help with that contact me at clarence@guthriefirm.com or call 601-991-1099.

Today, in the landmark decision of McDonald v. Chicago, the United States Supreme Court held that the Second Amendment right to keep and bear arms now applies against state and local governments, in addition to the federal government.  If you want to see the opinion, here it is.  Don’t accidentally hit print; the thing is 214 pages long.  It was a ”5-4″ decision, meaning five justices voted in favor, and four against.

This decision is another big victory for gun owners.  The first came in 2008, and I previously posted on that decision here.  The first decision basically resolved the arguments that had been going on forever about whether the Second Amendment really gave an individual the right to keep and bear arms.  The Supreme Court ruled in 2008 that  ”the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home,”  and that the federal government could not make laws that infringe upon that right.

The decision today was a natural follow-up to the first decision.  Today’s ruling extended the Court’s 2008 ruling to state and local governments as well.  Here is a key quote from today’s opinion, penned by Justice Samuel A. Alito Jr., that lays out the reasoning:

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States.  .  .  . We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

I support this decision, and the reasoning behind it, if for no other reason than it is consistent.  Most of the other rights have already been incorporated against the states.  So once this right was finally found to be an individual right, it made sense to apply it to the states as well as the federal government.

On an unrelated note, Justice John Paul Stevens, 90, retired today, having served on the Supreme Court for an astonishing 35 years.  He was one of the most liberal Justices on the Court, and I personally didn’t see it his way on a number of things, but he wrote in a letter to his colleagues that “if I have overstayed my welcome, it is because this is such a unique and wonderful job.”  A class act, and I wish him well.

So practically, what does this mean?  Does this mean that if you are a convicted felon you can head out to Bass Pro, Surplus City, or Vann’s and stock up?  No it does not. 

States and cities have a variety of laws restricting gun ownership, such as requiring mental health background checks or waiting periods before gun purchases.  These restrictions, which some will argue are “reasonable,” may now have to be challenged to to define the now-different boundaries of gun ownership and government regulation.  But the Supreme Court made it clear in the 2008 Heller decision that long-standing reasonable restrictions on gun ownership, such as possession by felons, mentally ill persons, and persons convicted of domestic violence, as well as geographic restrictions, such as prohibitions against guns in schools, courthouses, etc., are still intact.

You can still get into trouble in the following ways, which are (currently) valid restrictions on the possession and use of firearms:

• 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

If you get into trouble with a weapon give me a call at 601-991-1099.  I’ve done a good many of these cases, and I’ll be glad to talk to you about it.

Nobody likes to get served with papers.  Having served my share of legal documents over the years, I can state that nobody has ever invited me in to eat or to watch the game with them after I properly identified them and put the papers in their hand.  It is one of those things in life that is just not pleasant. 

No matter how disagreeable it might be, if you:

1. knowingly and willfully obstruct, resist, or oppose
2. any officer of the United States, or other person duly authorized
3.  in serving, or attempting to serve or execute, any legal or judicial writ or process of any court of the United States, or United States magistrate judge;

or you:

1. assault, beat, or wound any officer or other person duly authorized, knowing him to be such officer, or other person so duly authorized,
2. in serving or executing any such writ, rule, order, process, warrant, or other legal or judicial writ or process

You shall be fined or imprisoned for not more than one year, or both.  18 U.S.C. § 1501.  This crime is a federal misdemeanor, and the good news is that a federal judge has the power to grant probation for most misdemeanors.  18 U.S.C. § 3401(d).  Notice that this is the federal crime of assaulting a process server.  Mississippi state court is going to treat you differently for the same conduct if the process server is serving state court documents.

Leave the process server alone.  They didn’t sue you; they are just doing their job.

Times are tough.  People are doing things they wouldn’t normally do to get by.  Some of these things can get you into trouble.

No company, city, or other entity is going to sell you electricity, gas, water, or any other utility without some kind of meter to measure how much you use so they can charge you for it, and if you attempt to tamper with the meter with the intent to get more than you paid for you can be charged with a misdemeanor.  Section 97-25-3 of the Mississippi Code Annotated makes it illegal to:

intentionally, by any means or device, [prevent] electric current, water or gas from passing through any meter or meters belonging to any person, firm or corporation engaged in the manufacture, sale or distribution of electricity, water or gas for lighting, power or other purposes, furnished such persons to register current or electricity, water or gas, passing through meters, or intentionally [prevent] the meter from duly registering the quantity of electricity, water or gas supplied, or in any manner [interfere] with its proper action or just registration, or, without the consent of such person, firm or corporation, intentionally [divert] any electrical current from any wire or cable, or water or gas from any pipe or main of such person, firm or corporation, or otherwise intentionally [use], or [cause] to be used, without the consent of such person, firm or corporation, any electricity or gas manufactured, or water produced or distributed, by such person, firm or corporation, or any person, firm or corporation who retains possession of, or refuses to deliver any meter or meters, lamp or lamps, or other appliances which may be, or may have been, loaned them by any person, firm or corporation for the purpose of furnishing electricity, water or gas, through the same, with the intent to defraud such person, firm or corporation . . .

This statute was obviously drafted by the lawyer for the water or the power company.

What it says is you can’t tamper with, attempt to change the reading on, or swap any kind of meter.  You also can’t “tap” into it and divert what it is supplying to somewhere else.  The statute goes on to say that the mere presence of any kind of diversion pipe, or device found on the meter is evidence of your “intent to defraud” the utility company.  It is the opinion of the Attorney General that this statute also applies when you cut the lock on the meter and turn your water back on after it has been cut off for not paying your bill. 

What is the punishment for tampering with utility meters?

This crime is a misdemeanor, and if found guilty you can be punished by a fine of $100.00 - $500.00, or by imprisonment in the county jail not more than three months, or by both fine and imprisonment in the discretion of the court.

What if the utility company tries to steal from me, can they get into trouble?

Yes!  The statute goes on to say that if the utility company intentionally installs a meter that is “rigged” to charge you more than what you receive, the utility company can be found guilty of the same misdemeanor.

You will notice that “intent” is mentioned throughout the law.  It is an element that the prosecutor will have to prove against you, and it could be your freedom ticket.  Meters get “messed with” all the time, but not necessarily with the intent to steal utilities.

United States Attorney General Eric H. Holder, Jr. recently issued a Memorandum to all federal prosecutors (the “Holder Memorandum”) addressing the Department of Justice’s policy on charging and sentencing federal crimes.  This memorandum is very significant, as it supercedes several previous memoranda issued by the Bush Administration concerning how the Department of Justice will proceed with respect to charging decisions and advocacy during federal sentencing.

I discussed here that federal sentencing is very different than Mississippi state court sentencing, and sometimes it is the biggest battle of your federal case.  So it is important to keep up with DOJ policy and how they are thinking as we develop a plan for your case.

Most practitioners believe that this new Memo softens what were earlier “hard lines.”  It basically shifts DOJ policy from strict compliance and uniformity to an understanding that no two cases and no two people are alike.  It appears to give prosecutors more discretion than before, saying things such as prosecutors should continue to “ordinarily charge the most serious offense that is consistent with the defendant’s conduct and that is likely to result in a sustainable conviction,”  and “[c]harges should not be filed simply to exert leverage to induce a plea…”

Further, the memo says that all charging decisions must be reviewed by a supervisory attorney, and all but the most routine indictments should be accompanied by a document that sets out charging options and explains the charging decision.

It is my opinion that these are positive developments in DOJ policy.  The key words in the memo are “individualized assessment,” which recognize the fairly recent change making the application of the federal sentencing guidelines advisory, rather than mandatory, on federal judges.

You can read the entire Memorandum here: 100519 Holder Memo.

Ticket timeliness.

A DUI in Mississippi is a misdemeanor driving offense.  It is a harsh driving offense, with severe consequences, but DUI(1st) and (2nd) are misdemeanor driving offenses nonetheless.  As such, the laws regarding traffic citations are applicable to the offense of driving under the influence as well, even though a DUI ticket is required by law to be different than a regular traffic ticket.

Section 63-9-21, paragraph (6) of the Mississippi Code Annotated states that the original traffic ticket issued to someone SHALL be delivered by the officer to the clerk of the court.  In other words, the statute requires that the officer turn the ticket in to the court so that it may be processed, you can be notified of your court date, etc.  In fact, you are not even charged with a crime until the officer turns in the ticket to the court.  Op.Atty.Gen. No. 94-0497, Ford, Aug. 31, 1994, 1994 WL 498740.

Last year (2009), paragraph (6) was amended, and the statute now states that if you are incarcerated based on the conduct for which the ticket was issued (which is practically always the case with a DUI), the officer SHALL file the ticket with the clerk of the court no later than 5:00 p.m. on the next day, excluding weekends and holidays, after the date of the incarceration.  This section of the law went into effect on May 13, 2009.

In the good old days officers might hold tickets for days, or a week, and turn them all in in a stack when they got the opportunity.  They can’t do this any more.  The ticket must be turned in within the prescribed time, or it is defective.  And guess what?  The failure of an officer to comply with this provision is a crime itself!  The officer can be convicted of a misdemeanor and fined not less than $10.00 nor more than $100.00. 

This amendment to the statute is still new, and courts are not applying it in a uniform manner.  The argument your lawyer should be making is that a failure to comply with this provision renders the citation defective, and it should be dismissed.

Philip Thomas over at his Mississippi Litigation Review and Commentary has this post on what your lawyer should wear to court.    I’ve been contemplating writing a post on what YOU should wear to court, because I go over it with every client, and so here it is:

“Don’t come to court looking like you just climbed down from the tree stand, or just rolled in from the rap concert.”  That used to be all I had to say on the matter, and it hasn’t failed me yet.  But I must say that I have actually seen someone – NOT MY CLIENT – show up and plead “not guilty” to a possession of marijuana charge with a T-shirt that had a big marijuana leaf emblazoned on it.  And so my advice on grooming and appearance has somewhat evolved through the years.

If you hire me to represent you, shortly before we get to court we will have a brief, but necessary talk about your appearance.  Anything can happen during a trial, and so it is important to control as much as we possibly can before we get in there.  One of those things is the way you look.  In addition, don’t think that the jury is not watching everything you do, and what you have on, and so a little effort in this area is important.  You only get a few seconds to make an impression on someone, so choose what you wear wisely. 

• Dress respectfully – This shows the judge, the jury, and everyone at the courthouse that you have respect for the court, respect for the process, and that you are taking it seriously.
• Dress to disappear – No, don’t wear camoflage.  What I mean by this is that your clothes shouldn’t distract anyone.  Chose dull colors over bright, and clothes that fit, rather than are too tight or loose.  Let me wear the colorful tie.  You just wear something nice.  For ladies – and I do not mean any disrespect by this – if you ever dressed to attract someone’s attention, now is not the time.  Please don’t make me have to elaborate on that any further.
• Do not stink – Tone down the aftershave, perfume, etc.  Brush your teeth, have a mint, and I’m counting on you to tell me if my breath stinks as well.
• Some rules – Most bailiffs in Mississippi will make you tuck your shirttail in, and remove your hat.  Leave your cell phone in the car, as most courts will only allow lawyers in with their phones, and some don’t even allow that.  If you do make it in with your phone, CUT IT OFF.  I have witnessed more than one judge instruct the bailiff to take up a phone and give it back only after a $200.00 fine is paid.

As most of my clients can attest, when you come to see me in my office I will probably be in blue jeans, if I don’t have court that day.  I would practice law in shorts and a sweatshirt if I could get away with it.  But it is game time when we get to court, and like Philip’s post recommends you will see me dressed up when we get to the courthouse.  You don’t necessarily have to wear your Sunday best, but I highly recommend that you pay attention to your appearance when we get to court.  Respect the process, and the process will respect you.

There ain’t no good in an evil-hearted woman
And I ain’t cut out to be no Jesse James
And you don’t go writing hot checks, down in Mississippi
And there ain’t no good chain gang
     -Johnny Cash and Waylon Jennings

It is against the law in Mississippi to “make, draw, utter, or deliver” any “check, draft, or order” to obtain “money, delivery of other valuable property, services, the use of property, or credit” when you know that you don’t have funds in the bank or financial institution to cover it.  Miss. Code Ann. § 97-19-55.  It is also against the law to close your account without leaving enough money in it to cover the checks you have outstanding.  Each bad check that you write is a separate violation of the law.

What is the punishment for bad checks?  Depends on how much.

If the amount on the check is less than $100.00:

• First Offense – Misdemeanor offense, punishable by a fine of between $25.00 – $500.00, imprisonment of between 5 days – 6 months, or both.
• Second Offense – still misdemeanor, but fine goes to $50.00 – $1000.00, imprisonment of between 30 days – 1 year, or both.
• Third Offense – amount doesn’t matter, felony offense.  Imprisonment between 1 – 5 years.

If the amount on the check is $100.00 or more:

• Felony offense – fine of $100.00 – $1000.00, imprisonment of up to 3 years, or both.

Restitution to the “victim” is almost always the case, along with costs of court and penalties.

What about post-dated checks?

It is the opinion of the Mississippi Attorney General that a future obligation as to payment of a check is not contemplated by § 97-19-55; therefore, a person who post-dates a check may not be prosecuted under § 97-19-55. Op.Atty.Gen. No. 99-0028, Hudson, Feb. 5, 1999.

What is going to happen to me if I write some bad checks?

Most district attorney’s offices in Mississippi have a “Bad Check Unit,” which assists merchants and anyone who receives a bad check to collect on it.  MOST of the time, if you get a notice from the bad check unit, and you act promptly to make restitution, nothing terrible will happen to you.  IF you do not respond to the notice, you can be arrested, and, depending on the severity of the offense, your case can be sent to the grand jury just like any other crime.  Start looking for a lawyer at that point, if not before.

As always, there are many ways to work out a criminal case.  Some bad check cases are totally defensible, so if you believe you have an issue run it by a criminal defense lawyer before it is too late.  Give us a call at 601-991-1099.  We are here to help.

• Counterfeit Trademarks:  The Trademark Counterfeiting Act at 18 U.S.C. § 2320(a) states that if you intentionally traffic or attempt to traffic in goods and services, or use a counterfeit mark on goods or services, you can be punished by jail time of up to ten years and a fine of up to two million dollars.
• Counterfeit Labeling:  Trafficking in counterfeit labeling or packaging designed to be affixed to records, tapes, CDs, DVDs, and computer programs is illegal under 18 U.S.C. § 2318, and can get you up to five years in jail and up to a $250,000.00 fine.
• Copyright Infringement:  If you copy or distribute at least 10 copies of a copyrighted work with a total retail value of $2500.00 within a 180-day period, you have committed a felony under 17 U.S.C. § 506 and 18 U.S.C. § 2319, and if convicted you face up to three years in federal prison and up to a $250,000.00 fine.  This penalty is increased to five years if you did it for “purposes of commercial advantage or personal financial gain.”
• Theft of Trade Secrets:  “Trade secrets” are defined broadly under these laws, meaning any information which someone has taken measures to keep private, and which may have independent economic value.  If you steal trade secrets for the benefit of a foreign government or agent, under the Economic Espionage Act you face up to 15 years imprisonment and a $500,000.00 fine.  If you steal trade secrets for commercial reasons (you copy someone’s secret sauce recipe), you face up to ten years imprisonment and up to a $250,000.00 fine.

Most disputes over intellectual property are resolved in civil courts.  In other words, if someone believes their idea or trademark has been stolen, they can bring a civil suit against the offending person to get them to stop using the idea, and they possibly can collect monetary damages based on the unlawful use.  As I’ve mentioned before, when I am not doing criminal defense I also get involved with civil litigation, and I have been on both sides (plaintiff and defense) of some intellectual property litigation.  This is a very specialized area of law, and I have a good friend who is an intellectual property specialist (and one of the few licensed patent lawyers in Mississippi) that helps me with these lawsuits (or I help him).

But a criminal prosecution for theft of intellectual property is different, and you will need a lawyer that is familiar with both intellectual property law and federal criminal defense if you are under investigation or are indicted.  These tend to be very complex cases, but they are defensible.  If you are accused of any type of theft crime give me a call.  I am here to help.

Your Mississippi driver’s license is in danger of being suspended for any drug conviction.

Mississippi Code Annotated § 63-1-71 states that if you are convicted of, enter a plea of nolo contendere, or adjudicated delinquent (Youth Court) for any offense defined in the state’s Uniform Controlled Substances Law, or the laws of anywhere else for the use, distribution, possession, manufacture, or sale of drugs or other controlled substances, you will forfeit your right to operate a vehicle in the state of Mississippi for a period of six months.  If you don’t have a license, or you are under 15, the six months begins when you get your license, or you turn 15.  If your license is already suspended, the six months is tacked on to the end of your current suspension period.

Which drug crimes and offenses could get my license suspended?

All of them.  Mississippi’s Uniform Controlled Substances Law makes it illegal to sell, barter, transfer, manufacture, distribute, dispense, or possess any controlled substance.  This includes, but is not limited to, marijuana, cocaine, crack cocaine, methamphetamines, precursors, prescription drugs, drug paraphernalia, or anything listed on the drug schedules.  Virtually anything you can think of having to do with drugs puts your license in play.

If my license is suspended as a result of a drug conviction, can I get a hardship license?

Yes.  A lawyer can help you get a hardship license in much the same way that you can get a hardship license after a DUI conviction.