Monday, June 8, 2009

New book out...

Well, it's official.  I finally completed my eBook and it is now available for sale on my website.  The book is titled The DUI Survival Guide.  Demystifying the Process.  My book gives the reader the "20,000 foot" overview of the process.  This isn't a "how to defend yourself book".  Rather, it is a tool to provide the reader with clear guidance on how to choose an appropriate lawyer through asking the right questions as well as a "map" of the court and OUI process.  An informed and educated client should be the goal of every DUI attorney.  I hope you enjoy the book.

Thursday, May 28, 2009

All work and no play...

This picture sums up the typical work vacation for me...  As usual, I'm taking phone calls on my iPhone and typing information into my laptop.  Two things I never leave home without are my iPhone and my laptop.  Hey, if you're going to be on vacation, you might as well get some work done too!

The rest of the pictures are some pictures of the most beautiful state I have ever had the privilege to spend some time in... Oregon.  There are pictures of us traveling through the mountains with snow, pictures of the Pacific coastline, pictures of deserts and mesas and pictures of the river we fished... all in the same trip.  It was an awesome trip.  The conference Chris and I attended was pretty awesome as well.  We headed out to Portland Oregon on May 13th for a 3 day Federal Criminal Defense conference.  It was amazing and we learned a tremendous amount.  Hopefully we can put that knowledge to use soon on some of our cases.

After the conference in Portland, Chris flew back home and I flew down to San Diego for a forensic blood seminar for OUI defense.  Again, this was a top notch seminar that focused strictly on the science behind blood test and urine test cases.  We were able to view an operational state lab and received instruction from the best names in science, medicine, law and alcohol research.  Sorry, no pictures.  This one was literally all work and no play.  Well, enjoy the pictures of Oregon.  I hope it inspires you to travel out there one day.  

Sunday, May 3, 2009

Recent victory...

I don't like to get on my blog to speak about specific cases.  However, from time to time I find it instructive to talk about a recent victory to illustrate the point that you can only win if you choose to fight.

I had a 2nd offense OUI with a relatively high test.  We prevailed at the BMV hearing because of a residual mouth alcohol issue and saved my client a 3 year suspension.  Since he is a contractor, a suspension would have destroyed his business and in this economy, that is an exceptionally tough thing to swallow.

We went to court about a month ago for a motion to suppress the stop on the grounds that there was no Reasonable Articulable Suspicion to stop my client's truck.  Well, I just received notice of the decision and we won.  That effectively ends the case because anything that happened after the truck was stopped doesn't come in.  That means no SFSTs, no statements, no observations and certainly no BAC test result.

So how did we get this result?  We fought.  Plain and simple.  We didn't accept the possibility of defeat because that wasn't an option.  My client told me flat out that if he were to lose his license, his business would crash.  Since he owned a very profitable construction business, there would be a lot of collateral damage were he unable to drive.  Employees would be out of work, he would be unable to finish jobs, customers would be unhappy, and most of all he would lose the ability to provide for his family.

The client made it very clear that he would risk jail time in order to have a shot at beating the case.  We got an extremely reputable breath testing expert involved in the case very early.  This in turn set the table for the BMV suspension hearing, where we prevailed.  Normally, a BMV hearing is limited to 15 minutes.  However, our hearing went on for over an hour.  I prepared for this hearing for almost a full day as I didn't want to leave anything to chance.  We pinned the officer down on his report, got him to contradict himself numerous times and ultimately inflicted so much damage to his credibility on memory issues that we were able to wield the transcript like a sword against him in court.

When you arrive in court and announce ready for hearing, chances are you might be the only one truly prepared to go.  Many attorneys withdraw their motions on the day of the hearing and the DAs count on that.  They can't prepare for every single hearing... there just isn't enough time.  That means if your attorney is a fighter (me), he will be prepared for hearing and in a better position to beat the DA on the important issues.  

Ultimately, we won the hearing.  The case was effectively killed and will have to be dismissed as a result.  Now keep in mind that more cases are lost than won at hearing.  The reason is because the law is heavily slanted in the state's favor.  However, that doesn't mean you don't keep fighting.  In fact, you keep fighting harder because that is what gets you results.  In this case, my client is an extremely happy individual.  He was able to walk away from this case with absolutely no fines, no suspension time, no jail and no criminal record.  

If you find yourself on the wrong end of the law, you need a good lawyer.  Someone who is going to fight for you.  Whether it is a drunk driving charge, aggravated assault, drug trafficking or any other criminal charge, the attorneys of NIELSEN & BLY, P.C. will fight for you every inch of the way.  We are the preeminent law firm of southern Maine and we hope you choose us to represent you in the future.


William T. Bly, Esq.

Wednesday, April 22, 2009

BIG US Supreme Court news!!!

Arizona v. Gant, decided on April 21, 2009, will change the criminal legal landscape for the foreseeable future.  The great significance of this case is that motor vehicle searches following the arrest of the occupants will no longer be upheld as legal searches where the occupants have been secured and no longer have access to the vehicle interior.  In many cases, drugs and weapons are found following routine traffic stops and arrests for innocuous offenses such as bail violations or warrants for arrest.  

The following is a synopsis of the decision... Argued October 7, 2008, Decided April 21, 2009... Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket.  The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses.  Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant's lawful arrest on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured.  Because Chimel v. California, 395 U. S. 752, requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant's arrest implicated neither of those interests, the State Supreme Court found the search unreasonable.  Held: Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believethat the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

 216 Ariz. 1, 162 P. 3d 640, affirmed.

 STEVENS, J., delivered the opinion of the Court, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. SCALIA, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion. ALITO, J.,  filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY, J.,  joined, and in which BREYER, J., joined except as to Part II

Thursday, April 16, 2009

Why we fight...

While I can't get into specifics about my cases for client confidentiality reasons, I can tell you with a certainty that in many jurisdictions you are so much better off fighting the case as opposed to negotiating the case.  If you take your case to a suppression hearing or trial, you are more likely to get a better offer than if you merely try to negotiate a deal without putting the blood, sweat and tears into the case.  

There is one jurisdiction where the best offer they will ever make is to plead guilty to the mandatory minimum penalties... regardless of the strengths or weaknesses of your case.  If you have a triable case, why in the world would you plead guilty?  If you have a legitimate issue to go to a suppression hearing on, why in the world would you plead guilty?  I don't know but I see way too many lawyers withdrawing their motions and folding up the tent so to speak. 

Test the State's theory of the case.  Of course the DA is going to tell you you will lose the hearing.  They're hoping you will fold.  However, no one and I mean no one can predict with certainty the outcome of a suppression hearing or trial.  Things go wrong.  Witnesses forget.  Witnesses contradict themselves.  Witnesses lie.  Video evidence doesn't support the police officer's testimony.  Certain evidence is inadmissible that the State was counting on getting admitted.  The list goes on and on.  The only thing that is certain is that if you plead guilty, you will be saddled with a criminal record for the rest of your life.  Think about that the next time you're in court with your lawyer.

Tuesday, April 14, 2009

Price Shopping for Attorneys

There is an old time tested adage that is as true today as it was when it was first uttered years ago... you get what you pay for.  The costs for legal services is a concern for most folks.  The fact that it is the primary concern for many is disconcerting.  Beware of the attorney that says he will take your case for $2,000.00.  He either doesn't have the requisite experience to properly defend your OUI case or he will not be able to afford to spend the time necessary in defending you against the OUI charge.  Attorneys that charge too little generally do very little.  It is a simple cost-benefit analysis.  If the attorney only charges enough to perform 10 hours of work, he will be loath to put additional time into the case or take it to trial when necessary.  Why?  Because that cuts into his bottom line and his hourly billing rate begins to go down.

The outcome of your case will affect the rest of your life.  If you save a few hundred or a few thousand dollars but lose the case, did you really save anything?  How much is a NOT GUILTY or dismissal of the charges worth to you?  That's the question you need to answer for yourself.  Another question you must answer is how will an OUI conviction affect the rest of your life?  It may certainly affect your ability to maintain your current employment if you need to drive to work.  It will cause your insurance rates to skyrocket.  It will bar you from traveling to certain countries such as Canada for business or pleasure.  It may even affect your ability to secure a promotion or new position in the future.

Shopping for an attorney is not like shopping for a new plasma TV or a new dishwasher.  There is no warranty on the attorney.  In most cases it may be too late to return the attorney once he starts the case; the damage may already be done.  The most important consideration when shopping for an attorney is the quality of the legal services he or she will provide.  Price should be the last piece of the puzzle you should be seeking a fit for when shopping for an attorney.  The bottom line is you are paying for results and in order to get the best results in your case, you need to hire the best attorney.

Friday, April 10, 2009

Suppression hearings...what, where, when and why

When you retain an attorney to fight for your rights, that attorney may or may not do a good job explaining the process from A to Z in a way that you understand and puts you at ease.  Tonight, I want to take a few minutes explaining to you in plain language, the meaning and importance of a suppression hearing as it pertains to your criminal defense.

WHAT is a suppression hearing?  A suppression hearing is an evidentiary hearing conducted in front of a presiding Judge or Justice in your criminal case.  The hearing is nearly always testimonial in nature, ie, meaning one or more witnesses must testify and the witness is subject to cross-examination.   The goal of a motion to suppress is to exclude evidence or statements illegally obtained and/or in violation of your state and federal constitutional rights.  In order to exclude or "suppress" that evidence, a hearing must be held which will invariably impact the direction or defensibility of your case.

WHERE does a suppression hearing take place?  It will always take place in the courthouse where your trial will be conducted but not always by the Judge or Justice assigned to preside over the trial.

WHEN does a suppression hearing take place?  A motion to suppress normally must be filed within 21 days of your arraignment.  However, the motion usually isn't heard until many months into the case.  During this time, your lawyer should be constantly reevaluating your case and your motion to determine its viability and chance of success.

WHY should your attorney file a motion to suppress?  Because if your attorney fails to file the motion within the 21 day time period and a month or two into the case determines that you have good grounds to file a motion, it is too late.  It a heck of a lot easier to withdraw a motion to suppress than it is to request leave of court to file one after the deadline has passed.  Another good reason to file a motion to suppress and conduct a hearing is because the State's case may fall apart through aggressive cross-examination.  The truth is the State wants to believe their case is bullet proof... it is also true that in many instances, the State's case is anything but bullet proof.