For two decades my clients have mostly been defendants in criminal cases, but once in a blue moon I represent a defendant in a civil case (although usually in connection with a prior criminal case). The mail I received recently from the court was in my handling one of those rare cases.

In this instance, the client was a witness in a murder trial from a few years ago. He was compelled to attend and testify, because he had a recording of the murder defendant. The defendant in that case had called my client and made some damning admissions. The call was made from Massachusetts, but answered in New Hampshire. My client insisted that his answering machine had picked up and started recording the conversation prior to his taking the call and talking with the murder defendant. The defendant admitted that an answering machine was involved, but said that the client had turned it on to capture the conversation (supposedly for later use, although that would have presumed some real on-the-spot thinking by the client).

The client was subpoenaed by the Commonwealth of Massachusetts. His immunized testimony and the recording were used at trial during which the criminal case judge ruled the recording was admissible. The murder defendant was convicted ( a life sentence) and the verdict was upheld on direct and collateral appeal. The defendant is still trying to get it overturned, but has now also brought a civil action against the client under the Massachusetts wiretap statute, MGL 272:99 (http://www.mass.gov/legis/laws/mgl/272-99.htm).

The client contacted me after the civil suit had been pending for a considerable time in the court system. I immediately filed a motion to dismiss. We argued, among other things, that the suit was frivolous as well as a lack of jurisdiction, brought for improper purposes, equivalent to retaliatory witness tampering, no damages, defendant/plaintiff still convicted, three types of estoppel, etc. The court declined to rule on the pleadings and had me traveling a couple of hours just to argue what was plainly on the pages of my motions. The waste of time was staggering.

The envelope that I opened on Saturday contained two sheets. The first was the notice of trial in November of 2010. I thought the worst until I turned to the second sheet - the order on the motions. Motion to dismiss granted, but fees and costs denied (oh well, what were we going to get - the guy's canteen money?). Apparently the trial notice was still in the mail pile when the order granting the motion was issued.

The reason I pass this along is because this issue crops up frequently in our practice, in one form or another. I have argued the application of our wiretap statute (NH RSA 570-A) at the Superior Court level and before our Supreme Court, but always in connection with recordings that the State wanted to use against criminal clients. Similar laws from around the country (including the Massachusetts and New Hampshire statutes) have been in the news recently, with the police trying to slam citizens who capture audio (or video with audio - watch out for that) exposing their misdeeds. You have probably seen reports, including one about audio and video captured on a motorcycle helmet cam. This trend seems to run counter to the legislative histories, since most of these laws were put in place to protect the citizen against state action (warrantless recordings by police), but the wording of most of these statutes is amenable to such use against citizens.

In my case (the New Hampshire recording of a call originating in Massachusetts), the Superior Court agreed with us on the jurisdiction issue. The short order from the court cited Massachusetts case law ruling that an interception in another state cannot be the basis for a suit under MGL 272:99. The court did not address the other issues. There are many issues arising from these statutes which should be of concern to us in our daily practice. I am sure that you have all advised clients about our New Hampshire statute, especially when the client mentions an intent to record, or tells you about an existing recording that was made without a party's knowledge and/or consent. I tell clients (and even other witnesses) that secret audio (or video with audio) recording is illegal and that if one party does not know about the recording, it's a misdemeanor, and if two or more parties are recorded, it's a felony. Now I will tell them this story and point out that they might get sued, even if the other party is the villain and/or gets convicted. Any of you who also practice in the Commonwealth of Massachusetts should look at both statutes (NH and MA), because there are differences, both obvious and subtle. I am of the opinion that the MA statute might have provided for liability in this situation, if the call and the recording had both occurred in Massachusetts. Even without actual damages, MGL 272:9 has statutory damages of $100 per day or $1,000, whichever is higher. Here is how the civil remedy section reads:

Q. Civil remedy.

Any aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by this section or whose personal or property interests or privacy were violated by means of an interception except as permitted or authorized by this section shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest, and shall be entitled to recover from any such person-

1. actual damages but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher;

2. punitive damages; and

3. a reasonable attorney's fee and other litigation disbursements reasonably incurred. Good faith reliance on a warrant issued under this section shall constitute a complete defense to an action brought under this paragraph.

The statute can be violated in numerous ways:

Interception, oral communications prohibited. Editing of tape recordings in judicial proceeding prohibited. Disclosure or use of wire or oral communications prohibited. Disclosure of contents of applications, warrants, renewals, and returns prohibited. Possession of interception devices prohibited. And there is a sixth way to be liable - Conspiracy to do any of the other things prohibited by the statute.

Although the New Hampshire statute's civil remedies are almost identical (e.g., $100 per day and $1,000, whichever greater), the rest of the statute is not the same, and contains quite a few land mines for us and our clients. Be careful my friends.

　

Sven D. Wiberg

Wiberg Law Office, PLLC

2456 Lafayette Road, Suite 7

Portsmouth, NH 03801

(603) 686-5454

sven@nhcriminaldefense.com

Criminal Defense Attorney Sven D. Wiberg discusses our shrinking bills of rights.

Sven D. Wiberg is an experienced criminal defense attorney with Wiberg Law Office (www.nhcriminaldefense.com) located in Portsmouth, New Hampshire.  Contact us today for free information.

Criminal Defense Attorney Sven D. Wiberg discusses DWI detection and prosecution.

Scam, Sham and Shame Part II

Sven D. Wiberg is an experienced criminal defense attorney with Wiberg Law Office (www.nhcriminaldefense.com) located in Portsmouth, New Hampshire.  Contact us today for free information.

Criminal Defense Attorney Sven D. Wiberg discusses DWI detection and prosecution.

DWI Detection and Prosecution - Scam, Sham and Shame 1

Sven D. Wiberg is an experienced criminal defense attorney with Wiberg Law Office (www.nhcriminaldefense.com) located in Portsmouth, New Hampshire.  Contact us today for free information.

There is a motor vehicle accident and police respond to the scene. The driver exhibits a number of signs indicating impairment, including staggering, slurred speech, disturbance of orientation, drowsiness, disordered thoughts, and shock. The driver is arrested and submits to a breath test, with results reported in excess of the legal limit.

Was the driver actually violating the DWI statute? Was he or she driving while impaired due to the consumption of alcohol or drugs? Not necessarily, because this driver was a diabetic.

The symptoms displayed by diabetics in the states of low blood sugar (hypoglycemia) and high blood sugar (hyperglycemia) can be remarkably similar to symptoms caused by excess alcohol consumption. This can, and certainly has, resulted in erroneous conclusions by law enforcement officers on the road, followed by unfair criminal charges.

We are in the midst of a huge diabetes epidemic today. Diabetes has always been a relatively common disease, but recently the numbers of those suffering from the condition have been rapidly increasing. More than 18 million people in the United States alone suffer from this disease. Nearly one-third of those individuals may be undiagnosed, due to the failure to recognize the most common warning signs related to this disease.

A person with low blood glucose (hypoglycemia) may experience dizziness, slurred speech, blurred vision, muscle weakness, loss of coordination, and confusion. In high blood sugar (hyperglycemia) situations, the person can suffer from blurred vision, fatigue (sleepiness),

dry mouth (with effects on speech), hyperventilation, cardiac arrhythmia, and stupor. Left untreated, these conditions can result in coma, or even death. But in the context of a DWI case, these physical manifestations are the very signs that the patrol officer is looking for to confirm a suspicion of driving while intoxicated.

But, you ask, don’t the breath test results clear this up and confirm the officer’s conclusion that the driver was impaired due to alcohol? The answer, may surprise you.

Breath testing relies on technology that can incorrectly identify other substances in the breath as alcohol. Light beams are used in these machines (infrared spectrometry) to analyze the air blown into them. Different chemical components of the breath absorb varying amounts of the light beams directed at them and the machine supposedly checks this spectral analysis against computer records of known compounds. Unfortunately for diabetics, and others temporarily suffering from high or low blood sugar(it is important to note that you do not necessarily have to be a diabetic to experience low or high blood sugar and the attendant effects), the machines are not sophisticated enough to accurately distinguish between ethyl alcohol (the intoxicating component of alcoholic beverages) and other chemicals in the methyl group (a family of compounds which includes ethyl alcohol). Many of the thousands of compounds in the methyl group are close enough to register as alcohol in this type of testing.

Of particular concern for diabetics, is acetone, a member of the methyl group. The breath of a diabetic can contain significant amounts of acetones, when the diabetic is experiencing ketoacidosis. Diabetic ketoacidosis results from a shortage of insulin. Individuals with diabetes are not able to properly produce or utilize insulin, which is a hormone the body requires in order to process starches and sugar into energy the body needs for most life activities. In response to ketoacidosis, the body switches to burning fatty acids and producing acidic ketone bodies that cause most of the symptoms and complications associated with high blood sugar. Ketoacidosis also causes the production of acetones in the breath, as the body, in self-defense, gets rid of these compounds in any way it can. Bottom line - the breath testing machine will read the ketones as significant levels of alcohol on a diabetic’s breath and return false positive results.

For more information relating to this topic see: HYPOGLYCEMIA: DRIVING UNDER THE INFLUENCE , by John Arnold, in Volume 8, Issue 1 of the Medical and Toxicological Information Review, September 2003 - http://www.medtoxinfo.com/news19.html and Diabetes as a Defense , on the American Prosecutors Research Institute website, Between the Lines - Volume 2, Number 1, 1994 -  http://www.ndaa.org/publications/newsletters/between_lines_volume_2_number_1_1994.html

The latter article includes the following checklist:

To determine if the defendant may have a valid diabetes defense, a prosecutor should ask the following questions:

1. Do the defendant's medical records indicate that he/she is a diabetic?　
2. Was the defendant diagnosed with diabetes prior to or subsequent to his arrest?
3. Does the defense plan to call an expert witness to testify that the defendant was suffering from low blood sugar at the time of the arrest?
4. Is the expert witness the treating physician? Did he/she examine the defendant on the date of the arrest? Did the expert ever examine the defendant?
5.  Is the defendant an insulin dependent or non-insulin dependent diabetic? Non-insulin dependent diabetics are unlikely to even emit acetone from their breath.

As noted above, you do not have to be a diabetic to experience the effects of ketoacidosis. Healthy people can see the effect when dieting or fasting, for example. A false DWI charge can be the result.

Sven D. Wiberg is an experienced criminal defense attorney with Wiberg Law Office (www.nhcriminaldefense.com) located in Portsmouth, New Hampshire.  Contact us today for free information.

Attorney Sven Wiberg of Wiberg Law Office (www.nhcriminaldefense.com) gives another example of self-representation, this time a woman charged with DWI who shows that the officer lied, but still loses.


                                                   


Sven D. Wiberg
Wiberg Law Office, PLLC
www.nhcriminaldefense.com
2456 Lafayette Road, Suite 7
Portsmouth, NH  03801
(603) 686-5454

Attorney Sven Wiberg of Wiberg Law Office (www.nhcriminaldefense.com) discusses the pros and cons of self-representation, and tells of a speeding case where a physics professor tried to defend himself without an attorney in a speeding case.


                                                



Sven D. Wiberg
Wiberg Law Office, PLLC
www.nhcriminaldefense.com
2456 Lafayette Road, Suite 7
Portsmouth, NH  03801
(603) 686-5454

Following up on my last two posts (ROLLING PROBABLE CAUSE and CITIZENS UNITED v. FEDERAL ELECTION COMMISSION ), I am looking back at recent United States Supreme Court rulings to try to see where they might be heading. Citizens United certainly does not bode well. I do not wish to diminish concern about the future actions of the Court, especially those of the 5 company men responsible for Citizens United, but there still seemed to be little rays of light and hope in the last year or so (some even authored by the conservative activists in this recent majority).

A good example (and one that also touches on the subjects addressed in my ROLLING PROBABLE CAUSE post from yesterday) is the Court’s decision last April in Arizona v. Gant, 556 U.S. ___ (2009) (full text here: http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf  .   Gant was a United States Supreme Court decision which held that the Fourth Amendment requires police to demonstrate that an arrested individual poses an actual and continuing threat to their safety, or a need to prevent an arrested individual from tampering with evidence related to the crime of arrest, in order to justify a post-arrest warrantless search of a vehicle. This was a significant retreat from the so-called  "automobile exception" to the 4^th Amendment’s warrant requirement.

This automobile exception dates back to the Court’s decision in Carroll v. United States, 267 U.S. 132 (1925). In Carroll, the Court decreed that a warrant was not required for a vehicle search, so long as there existed probable cause to believe that the vehicle contained contraband or evidence of a crime. This "automobile exception" has been greatly expanded since Carroll, with subsequent rulings holding, for example, that a mobile home capable of traveling on a highway fit within the exception, and that the police may search the personal belongings of passengers in a vehicle, even if those passengers were not already subject to arrest.

In New York v. Belton, 453 U.S. 454 (1981), the Court held that the police may search an automobile's passenger compartment without a warrant after arresting an occupant of the vehicle, since a criminal may hide contraband or weapons in the vehicle before the arrest. With the subsequent decision in Atwater v. City of Lago Vista , 532 U.S. 318 (2001), holding that law enforcement may arrest motorists for even petty traffic violations, the police were given an incentive to arrest minor traffic violators in order to use the Belton ruling to search their vehicles.

But now, with Arizona v. Gant, the Court has moved the 4^th Amendment goal posts back a bit toward protection against unreasonable searches of vehicles. Police may no longer automatically search the interior of a car after a suspect has been arrested. In his opinion for the majority, Justice Stevens discussed the unfortunate impact of the Court’s prior decisions:

Although it appears that the State’s reading of Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years, many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. The fact that the law enforcement community may view the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement "entitlement" to its persistence.

…

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely "within ‘the area into which an arrestee might reach,’" 453 U. S., at 460, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches.

Can I get an amen?

View my article on Health Care Reform posted on OpEdNews - see the link below.


Article submitted: THERE'S NO RUSH?
Author: Sven Wiberg
Reacting to the tone-deaf Democrats' interpretation the "message" to the President and his party sent by the recent Massachusetts election. Seeking the passage of Health Care Reform to avert more deaths.


Article Location: http://www.opednews.com/articles/THERE-S-NO-RUSH-by-Sven-Wiberg-100127-238.html

I am on a personal crusade to raise the general level of civil rights awareness in our society. I go to local schools to present videos relating to how people can protect and preserve their rights in any encounter with law enforcement, to lead discussion, and to answer questions on the topic (I often use clips from the excellent educational DVD "Busted," available for purchase at Flexyourrights.org). As I am sure you can see, I am working against my own financial interest here, since greater awareness would result in fewer arrests and fewer potential clients.

As part of this crusade, I watch the media, including the internet, for examples of good moves and bad moves relating to citizen interactions with the police. As I was perusing one of the local free newspapers yesterday, I spotted one of my favorite columns - "News of the Weird." This feature shows up in many such periodicals, but you can also check out this amusing material online at: newsoftheweird.com, which is, according to it’s author, "the home of Chuck Shepherd's weekly News of the Weird newspaper column, which for 21 years has been the gold standard in reporting the bizarre and the ridiculous." In yesterday’s column Chuck presented these two great teachable moments:

Failed to Keep a Low Profile: (1) A news summary of traffic stops on Christmas Eve in Alice Springs, Australia, noted that 11 people were charged with DUI. One man was spotted driving despite the fact that the hood of his car was broken in the "up" position and had smashed his windshield. The driver maneuvered down the street by craning his neck out the side window. (2) Two weeks earlier, in Trumbull, Conn., police arrested Christopher Frazao, 27, after watching him drive despite a windshield full of snow, except for a small opening he could peer though. A search of the car revealed marijuana and other drugs, as well as items allegedly stolen in recent burglaries.

As you all know, the standard for the initiation of a short investigative stop by police is "reasonable articulable suspicion" of criminal activity. This is even lower than the probable cause standard necessary for arrest or for procurement of a warrant. Anyone have any doubt that a police officer viewing either of these drivers in the situations described had a reasonable hunch that could be put into words? Actually, I am certain that the locals could have charged either the Aussie or the Connecticut Yankee with some analogue of Reckless Operation, just based on pre-stop observations. Consequently, there may even have been probable cause to arrest, depending on the law in those locations. The Connecticut story is especially apropos today, as I look at the flurries drifting down outside my window here in New Hampshire. How often do we find ourselves in a hurry on a snowy morning and, as a consequence, fail to get the snow and ice off the windshields, the side mirrors, the lights, or even the license plates?

Take the time, or you might find yourself at the mercy of a stranger with a gun and a badge and the power to make your life miserable for a good while. As I see, again and again, even innocent drivers can wind up in trouble from any police encounter. You might get a friendly warning and warm wishes, or you might get a really raw deal. That’s the luck of the draw, so don’t give them any excuse stop you in the first place.