This shouldn’t amaze you, but blood alcohol content, or blood alcohol concentration (BAC) is a measure of how much alcohol is in your blood.  It is usually expressed in terms of volume of ethanol per volume of blood, and is scientifically measured by calculating the ratio of ethanol to blood within your system.  Ethanol in your blood is a byproduct of the broken-down alcohol that you consume.  Therefore, if you have a BAC of .12, you have .12 grams of ethanol per 210 liters of breath, which equals .12 grams of ethanol per 100 milliliters of blood.  If your BAC  is above .08 and you are operating a vehicle in Mississippi, you are wrong.

How is BAC measured?

In practice, BAC is determined by breath, blood, saliva or urine testing.  Law enforcement will typically try to talk/coerce/influence you into taking one or more of these tests shortly after you are stopped.  Blood testing is the “gold standard” method to determine your BAC, but since it requires the drawing of your blood by a doctor or other qualified medical professional, most of the time your DUI will be based on a breath test.  Remember, you can refuse a breath test.  Also remember that you can get a DUI without a BAC, if the prosecution can prove by other means that you were operating a vehicle in Mississippi while under the influence of alcohol.

To be such a relatively small misdemeanor, a DUI on your record can have lifelong effects.  A DUI is never cut-and-dried.  Each case is factually different, with only one common theme: the prosecution wants a conviction on every one.  If you are arrested and charged with DUI, give me a call and I’ll discuss it with you.

When you are arrested on federal charges, one of the first things that will happen to you is that you will be taken in front of a federal magistrate judge for an “initial appearance.”  If the government wants to keep you in jail until your trial, the prosecutor will ask the court to detain you – to keep you in jail.  A detention hearing will then take place, usually immediately, but sometimes it is delayed for 3-5 days.  The issue before the judge then becomes:

1. whether you are a serious flight risk, and
2. whether you are a danger to the community.

At the detention hearing, if the government is trying to show that you are a “flight risk” (that you’ll run and won’t come back for trial), then it must prove it by a “preponderance of the evidence.”  If the government is trying to show that you are a danger to the community, then it must prove this by “clear and convincing” evidence.  The rules of evidence do not apply at detention hearings, and so the judge can consider almost anything. 

The government has the benefit of a presumption that you need to stay in jail in certain cases, including certain types of drug cases, certain types of firearms cases, terrorism cases, any crime involving a minor victim, and in certain cases where you have been previously convicted of a felony and the alleged offense was committed while on bail or within five years.  You need to think of this presumption as a “head start” for the government, but this head start can be overcome by you and your attorney with any type of credible evidence, including the pretrial services report, cross-examination of government witnesses, documentary evidence that may be available, etc.  This is where a good lawyer can help you. 

The judge will consider the following factors when making the determination regarding letting you out:

1. the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics);
2. the weight of the evidence against you;
3. your history and characteristics, including your physical and mental condition, family ties, employment, financial resources, length of time in the community, community ties, past conduct history relating to drug or alcohol abuse, criminal history, record of court appearances; and whether, at the time of the current offense or arrest, you were on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law;
4. the nature and seriousness of the danger to any person or to the community that would be posed by releasing you.

The judge can then do one of four things:

1. Release you on your own recognizance or on an unsecured bond (where you won’t put up any money, but you will lose money if you don’t show back up);
2. Release you on certain conditions – (get a job, stay in school, stay away from certain people, check in with pretrial services, submit to drug testing, ankle bracelets, etc.)
3. Temporarily detain you until certain other things can happen (you get deported, your existing bond gets revoked, etc.); or
4. Detain you until trial, or until conditions change enough to warrant reconsideration of the detention decision.

Statistically, if the government wants to detain you, you are likely to be detained.  But, contrary to what some will tell you, it is not a foregone conclusion, and you should fight it almost every time.  Why?  Because a detention hearing usually happens very early in the case, and you and your attorney need to take every chance you can get to find out as much as possible as soon as possible.  But, more importantly, it’s your freedom.  Never, ever give up a chance to fight for your freedom.

The SunHerald is reporting today that a homeless man in Biloxi was arrested over the weekend for misdemeanor impersonating a police officer.  The man availed himself of a meal at Jazzeppi’s Ristorante and Martini Bar, told a restaurant employee that he was a cop, then attempted to skip out on the bill.  His bail was set at $25,630, which sounds relatively high for a misdemeanor, but it is impossible to pass judgment on the amount of bail without knowing all the facts considered by the court.

Mississippi has several different laws pertaining to impersonation of a law enforcement officer:

• Miss. Code Ann. § 97-7-43 and 44 make it illegal to falsely or willfully assume or pretend to be an officer or employee “acting under the authority of” the State of Mississippi, or any part thereof (county, city, etc.).  This would include most police officers and sheriff’s department personnel.
• Miss. Code Ann. § 45-3-29 makes it illegal to impersonate a state highway patrolman, including wearing any of the insignia thereof.
• Miss. Code Ann. § 41-29-159(e) makes it illegal to impersonate the director, or any agent of, the Mississippi Bureau of Narcotics.

All of these crimes are misdemeanors, with punishments ranging from a small fine, to imprisonment for up to one year.

Typical fact patterns having to do with these crimes look something like the situation that happened this weekend.  Bail Agents sometimes unfortunately get caught up in these kinds of situations as well.  Other problems include using police lights, etc.

I’m back.  Sorry I haven’t posted in a few weeks.  Two large trials and several smaller matters, and blogging gets put on the back burner.

The Clarion Ledger is reporting that the state has launched its  ”Drunk Driving: Over the Limit, Under Arrest” campaign again this year for the holidays.  The Mississippi Highway Patrol announced that the state has received some federal grant money, and an additional 45 state troopers will be on patrol over the holidays.  There will be additional roadblocks, ID checks, etc., during this campaign, which lasts from December 16, 2009 to January 3, 2010.  “No matter what you drive – a passenger car, pickup, sport utility vehicle or motorcycle – if we catch you driving impaired, we will arrest you. No exceptions. No excuses,” said Captain Ricky Myers of the Hattiesburg Police Department.

So if you plan to take advantage of lower gas prices and travel for the holidays, make sure that the only tank that is full is your vehicle’s.  Nothing wrong with celebrating the holidays with your family, but just don’t get on the road after you have had any alcohol to drink.  Law enforcement officers are going to be out in force this time of year, and statistics indicate that they should be.  But you don’t need to be a statistic.  The police make mistakes, too.  If you are arrested for DUI and need representation, give me a call.

Have a Merry Christmas and a Happy New Year!

Because bankruptcy law is federal law in the United States, most crimes related to bankruptcy are prosecuted in federal court.  Bankruptcy is a legal process whereby a business or individual is allowed to discharge most or all of their debts due to an inability to pay.  Your property is liquidated and divided among your creditors to pay your debts, and you are allowed to “start over,” (although with bad credit).  But if you falsely claim bankruptcy, attempt to conceal your assets from creditors, file mulitple claims, or get involved in a “petition mill” scheme, you are committing bankruptcy fraud – a federal offense.

Title 18, Section 152 of the United States Code is the main bankruptcy fraud statute, and the nine paragraphs of this statute prohibit the following activities:

1. concealment of property belonging to the estate of a debtor;
2. making false oaths or accounts in relation to any case under Title 11;
3. making of a false declaration, certificate, verification or statement under penalty of perjury as permitted under Section 1746 of Title 28 or in relation to any case under Title 11;
4. making false claims against the estate of a debtor;
5.  fraudulent receipt of property from a debtor;
6.  Bribery and extortion in connection with a case under Title 11;
7.  transfer or concealment of property in contemplation of a case under Title 11;
8.  concealment or destruction of documents relating to the property or affairs of a debtor; and
9.  withholding of documents from the administrators of a case under Title 11.

The most common types of bankruptcy fraud involve concealment of assets, multiple filings, or petition mills.

Concealing assets accounts for nearly 70 percent of all bankruptcy fraud committed in the United States.  If you purposely fail to list every one of your assets on your bankruptcy claim, knowing that creditors cannot come get assets that they do not know about, then you have fraudulently concealed these assets.  Similarly, businesses frequently conceal assets when filing for Chapter 11 bankruptcy by transferring money or properties to their relatives or other outside interests so that the assets cannot be confiscated.

Multiple filing fraud takes place when you file for bankruptcy in more than one state, using different combinations of real and false information (name, address, social security number) to file the claims.  You may list the same assets on each claim, but deliberately fail to include every asset.  This, like concealment of assets, fraudulently protects your valuables from total liquidation.

Finally, ”petition mill” schemes are unfortunately on the rise in these economic times.   These schemes claim to help financially strapped tenants keep their house and not get foreclosed and evicted.  Typically, ads are run in the paper and online offering counseling on how to avoid eviction.  Once the person is signed up, this “service” then files bankruptcy in the tenant’s name.  It then charges outlandish fees and drags the case out for months, draining savings accounts, ruining credit, and merely postponing the inevitable eviction.

If you are indicted for bankruptcy fraud, each count carries a maximum statutory penalty of five years in prison and a $250,000 fine.  Any sentence following conviction, however, would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

The Clarion Ledger is reporting that a former Jackson Police Department burglary detective, who was out on bail for bank robbery, was arrested today for robbing five local Jackson businesses in the past 24 hours.  The detective was ten years removed from the department, as he was fired in 1999 for testing positive for cocaine use.  And he has been very busy since then.

Last year, when this person was arrested for robbing a local credit union, Assistant Police Chief Lee Vance attributed the problems to drug use and abuse.  “It’s actually a testament to the scourge of of crack cocaine in our society, and it is very sad,” said Jackson police spokesman Lee Vance. “Police officers are held to a higher standard with higher expectations, and he betrayed that. But even more than that he betrayed himself, and he betrayed his family.”

All good police officers, like Marines, hold themselves to higher standards than the general public.  They are aware that their special role in society puts higher expectations on them for honesty, ethics, morals, competency in their profession, and even courtesy.  In order to enforce the law, police officers must necessarily be more conversant and observant of it than average citizens.  This is a source of pride to all good police officers, and it is difficult to witness this source of pride break down.  It reminds me of an argument I used to make all the time when I defended Marines at courts-martial: “Marines have very high standards.  Lance Corporal [insert name of accused here] simply can’t live up to these high standards.  But that doesn’t necessarily make him a bad person.”  Sometimes that argument worked, sometimes it didn’t.    

Finally, another sad thing about this story, other than the fact that this person appears to be rapidly ruining his life, is that every time he gets into trouble the headlines read “Former Police Officer . . . ,” “Ex-officer arrested . . . .”  The police are saddled with this man’s sinking reputation, and are forced with having to accept it as their own.  I work with law enforcement officers virtually every day, mostly going head-to-head with them, but they deserve respect for the very difficult job they have to do.  This “former detective,” just like anyone else, is presumed innocent until proven guilty beyond a reasonable doubt, so all we can do is hope that justice will be served.

If you are convicted of two or more crimes, either by pleading guilty or being found guilty after a trial, the court has the option of requiring you to serve the terms of imprisonment on each charge concurrently (at the same time), or consecutively (one after the other).  Miss. Code Ann. § 99-19-21.

For example:  You decide one day to go down the street breaking into houses and stealing whatever you can find.  You get caught, and are charged with three different counts of burglary of a dwelling, under § 91-17-23 of the Mississippi Code Annotated.  Each of those different counts carries a punishment of between 3 and 25 years in the penitentiary.  For this example, let’s pretend that you didn’t hire a good lawyer, and you are convicted of all three counts, and the judge sentences you to the maximum 25 years for each count.  At this point, the judge can order that the sentences run consecutively, in which case you will be sentenced to a total of 75 years, or the judge can order the sentences to run concurrently, in which case they will all run at the same time, and you will serve 25 years. 

Concurrently is better, yes?  Your lawyer must make sure that the judge puts this in the sentencing order specifically, because Mississippi courts have held that the absence of language in a sentencing order affirmatively indicating that sentences will run concurrently means that sentences will run consecutively.

The laws of sentencing in Mississippi require that if you are sentenced for a felony committed while on parole, probation, earned-release supervision, post-release supervision, or a suspended sentence, then there is no discretion by the Court, and any imprisonment you receive for the new felony will commence after you serve any revocation time for the preceding felony.

The sentencing laws are different in federal court, and all of this becomes incredibly complex if you have both federal and state charges at the same time.  It pays to have an experienced criminal lawyer work through these scenarios with you and keep you aware of all the possibilities.  If you need help with a sentencing issue give me a call at 601-991-1099 or email me at clarence@guthriefirm.com.

Perjury occurs when you deliberately lie in a legal proceeding after having taken an oath to tell the truth.  Perjury requires that you lie about a “material matter,” which means it must be relevant to the case at hand.  In other words, if you are on the witness stand testifying about the crime of larceny, and the lawyer asks you how much you weigh, and you fudge it a bit, then you haven’t committed perjury, unless your weight is relevant to the case.

Perjury  can be committed in criminal cases, civil cases, or “in any case where an oath or affirmation is required by law . . . .”  This would cover lying on an affidavit or sworn statement given to law enforcement.  In order to be convicted of perjury, two witnesses must testify to the truth of matter about which you swore falsely, or at least one witness must testify, along with corroborating circumstances.

The penalties for perjury can be severe.  If you are convicted of perjury for lying on the trial of any capital or felony offense, you can be imprisoned for not less than ten years.  In any other case, you can be imprisoned for a term of no more than ten years.

It is also a crime to “suborn” perjury, which means to get someone else to lie for you in a case, matter, or proceeding.  Subornation of perjury can get you imprisoned for a term of up to ten years as well.

This post begins a new series on this blog.  Each week I am going to feature two new crimes – a Mississippi state crime on Monday and a federal crime on Friday.  I will define each crime, discuss the possible punishments, and hopefully provide some useful information.  Don’t hold your breath each Monday and Friday, though; I’ve got several big trials coming up and I may have to skip a post or two.  If you’ve got something specific you’d like me to cover please send me an email to clarence@guthriefirm.com.

This week we are going to discuss the offense of shoplifting.  You don’t have to be a legal scholar to understand what shoplifting is – shoplifting is taking (stealing, pilfering, ganking, deboing, jacking, thieving, pinching, plundering, swiping, confiscating) something from a store without paying for it.  The prosecutor must show that you meant to steal the merchandise, and this “intent to steal” is presumed if you:

1. conceal the merchandise;
2. take the merchandise from the premises of the store;
3. alter, swap, or remove the pricetags on the merchandise;
4. transfer the merchandise from one container to another (a number of people get caught because they accidentally put something in their purse instead of their shopping basket); or
5. cause the cash register or scan device to ring up a price that is less than the stated price of the merchandise.

Shoplifting is a misdemeanor if the price of the merchandise is less than $500.00, and it is a felony if more than $500.00.  First offense misdemeanor shoplifting carries a punishment of a fine of not more than $1000.00 and up to six months in jail.  Second offense misdemeanor shoplifting carries the same penalties.  For a third offense, the offense then becomes a felony, and the punishments increase to a fine of not more than $5000.00, and imprisonment of up to five years.

If the price of the merchandise is over $500.00, the first offense is a felony, and is punished according to the laws regarding grand larceny, which carries a punishment of a fine of up to $10,000.00 and imprisonment for a term not to exceed ten years for a first offense.

Other statutes in Mississippi make it a criminal act to remove a “theft detection device” from merchandise, or to possess or use a “theft detection device remover” without proper permission.  It is also specifically against the law to aid and abet shoplifting by a minor, and the penalities for this are harsh.

Finally, in addition to the criminal penalties for shoplifting, there are civil penalties as well, if the “victim” decides to pursue them.  For instance, if you are caught and convicted of shoplifting at Dillard’s Department Store in the mall, Dillard’s can sue you for $200.00, or three times the actual value of the stolen merchandise, whichever is greater.  It does not matter if the merchandise was returned or not.  They must give you 30 days written notice and an opportunity to settle up with them before they pursue this civil remedy, which is in addition to the criminal trouble you may be in.

First, Mississippi law defines a “juvenile,” “child,” or “youth” as a person who has not reached his or her eighteenth birthday, however a person who is married or is on active duty in the armed services before reaching eighteen is considered an adult.  Miss. Code Ann § 43-21-105(d).  A “delinquent act” is an act which would be defined as a crime if committed by an adult, including escape from detention, violations of the Uniform Controlled Sustances Law, and violent behavior.

Mississippi law confers “exclusive, original jurisdiction” in the youth court system over children who commit delinquent acts, except in the following circumstances:

1. any act that could be punished by death or life in prison under state or federal law;
2. any act attempted or committed with a deadly concealed weapon, or a shotgun or rifle, if the act would be a felony if committed by an adult;
3. any act committed by a child on or after their seventeenth birthday that would be a felony if committed by an adult.

So any child under the age of eighteen that gets into trouble will probably start out in Mississippi’s youth court system, which is a separate court system with the goal of ensuring that each child “become[s] a responsible, accountable and productive citizen, and that each such child shall receive such care, guidance and control, preferably in [the] child’s own home as is conducive toward that end and is in the state’s and the child’s best interest.”  Miss. Code Ann. § 43-21-103.

In youth court, no child who has not reached their thirteenth birthday will be held criminally responsible for any act, however the parents may be held liable in civil court.  And no child under age eighteen will be held criminally responsible for any act designated as a delinquent act, unless it is decided that the case should be transferred to an adult court. 

In order to transfer a juvenile’s case away from the youth court for the juvenile to be tried as an adult, the youth court prosecutor, or the youth court itself, can make a motion to transfer, and a hearing must be held.  If you find yourself in this situation with one of your children, you absolutely need a lawyer.  In fact, the statute requires it.  The court will then decide: (1) if there is probable cause to believe that the child committed the alleged offense, and (2) if, by clear and convincing evidence, that there are no reasonable prospects of rehabilitation within the juvenile justice system.  There are a number of factors the court will consider in determining whether there are “reasonable prospects of rehabiliation (in other words, whether the case should stay in the juvenile system, or be transferred to another court for the child to be tried as an adult).  These factors include:

• Whether or not the alleged offense constituted a substantial danger to the public;
• The seriousness of the alleged offense;
• Whether or not the transfer is required to protect the community;
• Whether or not the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
• Whether the alleged offense was against persons or against property, greater weight being given to the offense against persons, especially if personal injury resulted;
• The sophistication, maturity and educational background of the child;
• The child’s home situation, emotional condition and life-style;
• The history of the child, including experience with the juvenile justice system, other courts, probation, commitments to juvenile institutions or other placements;
• Whether or not the child can be retained in the juvenile justice system long enough for effective treatment or rehabilitation;
• The dispositional resources available to the juvenile justice system;
• Dispositional resources available to the adult correctional system for the child if treated as an adult;
• Whether the alleged offense was committed on school property, public or private, or at any school-sponsored event, and constituted a substantial danger to other students;
• Any other factors deemed relevant by the youth court.

Miss. Code Ann. § 43-21-157(5).

In the vast majority of cases, if your child gets into trouble, youth court is the best solution, and you will need an attorney to present these factors in the light most favorable to your son or daughter.  An attorney will be appointed for you if you meet the financial criteria for assistance, otherwise you will need to hire one.  This firm aggressive defends the rights of juveniles at all stages of the process.  Give Clarence a call for a free review of your case.