West Virginia Criminal Law Blog

As reported in the Charleston Gazette today, Charleston lawyer, Roger Wolfe, who is a “senior labor and employment lawyer” with Jackson Kelly, was arrested on suspicion of DUI on June 17, 2007. Apparently he was taken to the South Charleston state police “barracks” (again, why do cops like to pretend that they are some type of pseudo-military), and when he smiled at a female trooper, she told him that she would wipe that smile off his face, and had a male cohort take him into an adjoining room. He was beaten so fiercely that he leaked cranial fluid out of his nose.

Then, as if to add insult to injury, the emergency room doctor allowed a trooper to come in and question him while he was in-and-out of consciousness, in order to cover their tracks. For instance, he was supposedly asked, “when you were speaking with the female trooper, do you remember trying to kiss her?” and “how did you get that knot on your head.” If all he had was a knot on his head, then why was he in the emergency room? And why did he spend a week in the hospital with “potentially life-threatening injuries?” What if he did try to kiss her? Is that worth the man’s cranial fluid on the floor? I would hope that other female law enforcement officers are embarrassed and ashamed of this…

Good luck to Mr. Wolfe. The sad thing is that had this guy not been a lawyer with a powerful firm, probably nobody would believe him. This matter better be under investigation by the state, and by the feds. These crooked cops deserve to be stripped of their badges and locked up with their prior arrestees.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

In Daytona Beach, Florida, near my hometown, a police “lieutenant” (I still don’t understand why we give cops fake military rank) was accused of stating the following in response to being cut off from getting free coffee:

“If something happens, either we can respond really fast or we could respond really slow. I’ve been coming here for years and I’ve been getting whatever I want. I’m the difference between you getting a two-minute response time, if you needed a little help, or a 15 minutes response time.”

Then the cop offered to take a polygraph and he failed. Then he was fired. At least the department did the right thing by throwing this jerk under the bus.

You think the cops are bad, in West Virginia? You should see them in Florida. There are two cops for every person. All they do is harass people all day long. And talk about overpaid… The poor cops up here make peanuts. Down there, between the unions and the sky-high property taxes, the cops (and firemen) make over fifty thousand per year starting salary. For reference, many in rural West Virginia cops make under twenty thousand per year. As much as I complain about law enforcement in West Virginia, I still thank my lucky stars that we don’t have Florida’s storm-troopers.

You can read the article here.

- John H. Bryan, West Virginia Attorney.

From Simple Justice this morning, Scott Greenfield has a great post about the old days of practicing criminal law, when there was some semblance of integrity among lawyers - and among prosecutors. This reminds me of a lawyer I am dealing with right now in an unnamed city in southern West Virginia, who would cut your throat in a second if he thought it would help his case one iota. There is something inherently sleazy about an opposing counsel who’s word you can’t trust. I was always taught that as a lawyer, your integrity and credibility is all you have and is never worth violating - no matter how much you want your client to win - and I believe that. I also believe that what comes around goes around, and that you reap what you sow - or rather your client will reap what you sow. If you sow lies and sleaziness, your client will end up suffering for it (though many times birds of a feather stick together - and the client probably deserves it).

However, this is not the first sleazeball lawyer that I have encountered. A little over a year ago my newborn son was admitted to the hospital with an uncommonly high fever, so my wife and I were resolved to stay with him the entire time he was there. Only one attorney gave me a problem about continuing all of my scheduled court dates. He was out of Raleigh County, West Virginia, and it was a particularly nasty civil litigation matter. He refused to agree to a continuance, just out of meanness. His client was mean too (as I said, birds of a feather…). Fortunately, the judge didn’t have any problem continuing the hearing on my unilateral request.

Just remember, there are good and honest lawyers out there, and it is my belief that they will better serve clients and will be more successful in the long run. And then there are mean, sleazy, and downright evil lawyers out there, who will engage in “rambo” tactics and lies to try and intimidate and steal victory. But mark my words that it’s a universal truth that good will always win in the long run - even if it does not appear that way.

Truth has an inherent advantage in the courtroom. If a lawyer cannot be honest, he (or she) cannot be sincere and honest to the jury. You have to believe what you are saying to ultimately persuade a jury - you can’t just try and trick them. You have to show genuine emotion. In order to do that, you have to give a damn about what you are saying. Jurors, despite what people say about them, pick up on these things, and will 9 times out of 10 will pick up on honesty, sincerity, and goodness. They also pick up on sleaziness and lying.

What happened in the case of the sleazeball lawyer from Raleigh County? His client lost, my client won - i.e., his client had to take out his check book and write my client a fairly large check.

Of course, this is all one man’s opinion and you can be sure there are those out there who will disagree with everything I have said.

- John H. Bryan, West Virginia Attorney.

From the Charleston Gazette this morning, there is an article about a Dunbar, West Virginia, police officer - George Ike Radar - who was charged with domestic battery for slapping his wife 20 times and pointing his finger into her chest.

Bravo to State Trooper E.B. McClung for arresting this jerk. But shame on the magistrate for letting him out on a $1,000 recognizance bond, which in my opinion is preferential treatment based on his status as a police officer.

The Dunbar police chief was quoted in the article as saying “everyone is innocent until proven guilty, and we need to get to the facts.” Since when do cops believe in the presumption of innocence? When one of them are charged themselves, that’s when…

Statistics (and personal observation) show that the wives of many law enforcement officers are the most battered and abused women in this country. Cops protect their own, and they know how to manipulate and abuse the system.

In fact, I was in court yesterday representing the wife of a law enforcement officer who, in preparation for filing a divorce, had his buddy law enforcement officer come over and arrest his wife for touching him in the chest. And you can be sure that she wasn’t given a $1,000 personal recognizance bond (which means they do not actually have to come up with any money). No, she was given a $2,500 cash bond, which means that she had to come up with cash or go to jail. And guess what? She was not allowed to retrieve any money or belongings from home, because (again, in preparation for his filing divorce) he immediately filed a domestic violence petition at the same time, which means that a protective order is placed into effect, and she cannot go home or see her kids.

You better believe that many cops actually are above the law, and they will not hesitate to lie or manufacture evidence to have their buddies arrest you. Then, guess what? The magistrates are also buddies with the cops, so you get a high cash bond and general unfairness in the courtroom. Then the prosecutors are also buddies with the cops and would rather put your case in front of the jury instead of pissing off the cops by dismissing the case.

Yesterday, the assistant prosecutor who appeared offered to dismiss the criminal charge if my client withdrew several motions and a hearing date in the former-couple’s divorce case! Is that not disgusting? Is that not a gross abuse of power? Is that not a violation of human rights?

When I called a spade a spade and told the assistant prosecutor that she should be ashamed of what she was doing, she said “how dare you… I have never… I have never… (blah, blah, blah).” That is actually the second time that a female prosecutor has said that to me. The first time it was said I probably deserved it, but not this time. I guess they take themselves a little more seriously than the male prosecutors. Or maybe they just refuse to sympathize with the female victims of their law enforcement buddies.

Can a cop in West Virginia really have his wife arrested and use the prosecutor to negotiate a better divorce settlement for him? Absolutely.

You can read the full article about the Dunbar officer here.

- John H. Bryan, West Virginia Attorney.

The Charleston Taco Bell shooting last Saturday, which is detailed in the Charleston Daily Mail here, is not one that will likely fade from memory. The perpetrator of this crime, Desmond Clark, gives new meaning to the term “bad apple,” and he has indeed just about ruined the probation system and the domestic violence petition system - for everyone.

I was talking to a former prosecutor and legislator the other day who was up-in-arms about this. Defense attorneys now are going to have an extremely hard time getting probation for their clients, especially in those domestic-related cases, which oftentimes are the same cases that subside on the flimsiest of evidence.

And for those of us who practice divorce and family law, the times just got tougher. What magistrate is going to deny a protective order in any situation now? This legislator joked that in just about every ugly divorce he has seen, there are skid marks from the marital home to the magistrate court, where the first spouse there takes out a domestic violence petition against the other. Then, what family law judge is going to release or dismiss the protective order, despite the sufficiency of the evidence? The end result is that the loser of the race to magistrate court ends up getting ousted from their house/belongings/children until the divorce is finalized.

So, the legislature has realized this system of domestic violence petitions is broken and largely abused. But, what can they do about it? For every 999 times this system is abused and misused, there is some legitimate victim out there like this poor woman who was murdered in the Taco Bell. But then again, she had a protective order in effect at the time she was murdered, and it didn’t help her very much.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald today:

A Beckley man has been arrested and charged with his second offense of “failure to register as a sex offender.” Well, the guy was registered, you can look it up yourself on the WV Sex Offender registry, found here.

What crime did he commit? His wife (presumably) bought a car and it had his name on it. He didn’t notify the State Police within the required amount of days the statute requires. If you didn’t know, a conviction as a sex offender requires the person to notify the State Police anytime they do or buy anything.

I don’t have a problem with this when it comes to real sex offenders - you know, the child abductors and child molesters, etc. In fact I think we should increase the penalties and protections against these predators. But any “sexually-motivated” conviction brings the requirement to register as a sex offender for life. That waters down the purpose of the sex offender registry. Not every sex offender is dangerous. Not every sex offender deserves to be subjected to the sex offender registry.

What about the guy charged in this case? A glance at his “offender details” reveals that he was convicted in the year 2000 of two counts of 3rd degree sexual abuse. He was given a suspended sentence and 15 months probation - so he did not do any jail time. What is “3rd degree sexual abuse” exactly, and how is that different from 3rd degree “sexual assault?.” Third degree sexual “assault” in West Virginia is essentially statutory rape - sexual intercourse between someone 16 or under and someone over 16 and also 4 years older than the “victim.” I put “victim” in quotes because many times the “victim” is absolutely old enough to be responsible for his or her actions and that fact should not be ignored. The “Assault” charge is a felony and carries up to 5 years in prison.

Third degree sexual “abuse” occurs when one person subjects another person to “sexual contact” without the latter’s consent, when such lack of consent is due to the victim’s incapacity to consent by reason of being less than 16 years old. What is “sexual contact?” It could be slapping someone on the rear-end, or an improper touching of any sort. It doesn’t take much. Actually it could just be a lie. Poor saps are convicted all the time from some 15 or 16 year old girls testimony before a jury, and without much more evidence - and it could very well be a lie. The only defense to this is a good lawyer who can talk some sense into the jury.

Lastly, the victim must be less than 16 years old. That means that the old-farts in the state legislature decided that a young girl on the day before her 16th birthday is absolutely incapable of forming her own decisions, she cannot consent to sexual conduct, but one day later, this 16 year old girl can have all the sexual escapades that she wants. In one magical day, she has become a wise and responsible adult.

So what about the guy in the article? I have no idea what the facts in the case are, but it could be relatively minor, or he even could be innocent. On the other hand, he could have done something more serious and pled down to this charge. Who knows. The point is, that even for relatively minor “sex offenses,” non-dangerous people are subjected to a life of being charged with felonies every time they buy a new car or go on vacation. The charge they put on this guy is a felony and brings 10 to 25 years. And the original charge that he was convicted of was a misdemeanor and only carried a potential penalty of up to 90 days in jail… Think about that. But hey, just like lawyers, these people do not make sympathetic victims and no one is going to help them.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Daily Mail:

A man in Boone County was charged with shooting a chocolate lab 5 times with a pistol, allegedly in self defense. The dog’s name is Titan, which is fitting given that he has apparently recovered.

Something that I have learned in the practice of law is that there are evil people out there. Many of those who are evil, or are sociopaths, hate or dislike animals. Likewise, most people who love animals are not evil.

But then again, the guy could have been acting in self defense. But if so, what was he doing already armed with a pistol. Was he looking for trouble? Was he anticipating having to shoot the dog? Certainly he could have a concealed weapon permit, in which case there would be no problem. Or, he could have been on his own property, in which case he can have a gun on him if he so chooses. But I suspect that this was just a bad guy with a propensity towards viciousness towards animals.

People complain about domestic violence in West Virginia, but what about animal abuse… Before I moved to West Virginia, I had never seen people actually swerve to hit an animal crossing the road. The people that do this are the usual suspects: either driving a piece of junk truck with no muffler, or driving a mustang with (you guessed it) Flowmaster exhaust. I’m all for hunting. But there is a difference between hunting and killing, and evil viciousness for that matter.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

Although I stated in a previous post/rant about magistrate court in West Virginia that I do everything in my power to prevent having a bench trial in magistrate court (rather than a jury trial), I was forced yesterday to try a case in magistrate court.

The reason I was forced was this: my client initially requested a jury trial, but the court was dragging it’s feet in scheduling one and she wanted to get the matter over with. Against my advice she requested a bench trial instead. The good news was that most of the State’s witnesses did not show up, so I got two of the three charges dismissed. The bad news was that the officer could still testify to one charge. So we went for it.

We didn’t even get through the first witness’ testimony. The prosecutor objected to one of my questions on cross examination. As he was arguing his objection, the magistrate made the final ruling in the case. I was shocked. I hadn’t even had the opportunity to finish my cross examination, or the opportunity to call any witnesses, or the opportunity to have a closing statement, or the opportunity to discuss the case law. I think the prosecutor was dumbfounded as well.

Unfortunately for my client, it was the same magistrate as was featured in my last post, and my client never stood a chance. It was a kangaroo court - a farce - a miscarriage of justice. In short, it was a formality, a box to check. Well, at least you have the opportunity to appeal to circuit court…

Moral of the story? Request a jury trial. Unless of course, you want to be convicted.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald today:

Matthew Peelish, a Raleigh County contractor, pled guilty to 3 counts of felony obtaining goods by false pretenses for taking money from people and not completing the work, and for obtaining materials from local merchants on an account and refusing to subsequently pay. The Court held him to task and sentenced him from 2 to 20 years.

This is extremely common here in Monroe and Greenbrier county, yet no one is ever prosecuted for it. Everyday people are prosecuted for some ridiculous things, and in these situations, you have real victims that lost real money. Yet 9 times out of 10, they have to resort to a civil action, which leaves them trying to collect a judgment years into the future, or worse, from a trustee in bankruptcy. The problem often cited by prosecutors is that it is difficult to show the requisite intent (intent not to pay at the time the goods are taken or money accepted) to prove the charges. But then again, since when do judges or juries hold prosecutors to their burden of proof anyways?

It really hurts a local business when a deadbeat contractor runs up an account of 5, 6 or 7 thousand dollars and then skips out on the bill. It should be prosecuted. Bravo to the Raleigh County Prosecuting Attorney.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Gazette today:

This is another one of those “only in West Virginia” items…

A St. Albans woman, who has since qualified for the Parent of the Year award and the Intellectual Criminal of the Year award, robbed a video slot parlor with a Crossman BB pistol. She held it to the clerk’s head and stole her cell phone and keys. It didn’t say whether or not she took the clerk’s car with the keys, I’m assuming she did not - since she only had to escape a few houses down.

She was found sitting on a porch a few houses away a short time later by police. She had the cash, the keys and the cell phone - and the kids I’m assuming - with her on the front porch.

She later told police that she just wanted a better life for her kids. Well, this is probably the best thing that could happen to her kids because now they will be raised by someone else - anyone else.

What an idiot.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

Psst… Hey buddy, want to buy some gas?

Apparently the future of crime in southern West Virginia lies with black market gas. According to an article in the Bluefield Daily Telegraph today, law enforcement is preparing for thieves stealing tanker trucks and stealing large quantities of gas from gas stations.

I can picture it now… Gas thieves will be the new robin hoods, stealing from the gas companies and selling to the poor at a substantially-reduced rate. You might play up the robin hood theory to the jury. It could work.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

If you have a case in which you will need to subpoena cell phone records, no need to reinvent the wheel…

I came across this posting of Mark Bennett’s regarding addresses of the major cell phone companies to which to serve subpoenas, which can be used in either civil or criminal cases.

Here is the link.

- John H. Bryan, West Virginia Attorney.

On Friday, the US Supreme Court settled an argument that had been raging for decades: does the 2nd amendment apply to individuals, or does it apply to “well regulated militia’s”? Thankfully, the Supreme Court got it right this time. West Virginians know this better than anyone else: you can’t depend on the police to wake up, take a shower, and drive thirty minutes to your house to protect you from danger. You have to be able to protect yourself and your family.

What still makes me sick, is that some guy (or gal) convicted of some stupid non-violent felony that has nothing to do with guns, will never be able to own a gun. What about his children? Should they be at the mercy of some armed intruder who is aware of the fact that they cannot protect themselves? Should they be required to die because some bleeding-heart know-it-all is anti-gun?

For a great analysis of this recent Supreme Court decision, take a look at this post from the South Carolina Criminal Defense Blog, by Bobby Frederick.

- John H. Bryan, West Virginia Attorney.

I apologize for not posting much this week, but it has been one of those end-of-the-month weeks…

As I had previously detailed, the sentencing for O’Brien, Henthorn and Garten was scheduled for Friday, June 30, but now has been continued until sometime in the fall. This was likely a joint motion as probation officers had likely not completed their presentencing reports, which the lawyers must rely on and respond to accordingly, depending on what they contain. It’s important to remember that in federal court, the most frequent claim for legal malpractice comes out of mis-advice given by attorneys, to their clients, regarding the federal sentencing guidelines, so it is important to get it right the first time.

For those of you who don’t know, this is just a case that probably repeats itself in all other small towns across the country. You have good country folks who work hard to earn a living. Then you have the fat cats, who get high-on-the-hog by ripping off the working folks. Most times they are greedy, compulsive, narcissistic liars who have an obsession with all things underhanded. They will do anything for money - anything that is, except for actually earn it. They look down at the working peons as a bunch of suckers who were not blessed with the infinite wisdom they were born with, when in reality they were just born as spoiled rich kids with a lack of morals and manners.

It still blows my mind that this bank CEO, and they almost always become extremely rich legally, would throw his life away for $10,000 worth of bribes… In all likelihood, this was not the first time, there probably were many other bribes passed under the table, and that was what made it worth it in his mind, not this particular bribe.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Dail Mail:

Apparently, there was an autopsy performed on this child back in 1981 which indicated that the infant died as a result of being shaken, but it was never delivered to the prosecutor’s office. Talk about gross incompetence…

Just remember, these are the same medical examiners that make mistakes in the other direction as well. Medical examiners for the most part couldn’t get a job working in a hospital, or in private practice working on actual living beings. Their incompetence and skewed sense of purpose can’t maim or kill a cadaver, but they can cause an innocent person to get convicted.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

The Charleston Daily Mail published a story today about another child porn bust in Kanawha County. This is proving to be an ever-expanding area of criminal law, both nationally and in West Virginia.

Robert Eugene Simmons, 32, was arrested by members of the West Virginia Internet Crimes Against Children task force after giving officers permission to search his computer, according to the criminal complaint.

The arrest comes less than a week after the first child pornography sting in the Kanawha Valley where ICAC officers used peer-to-peer file sharing to observe child pornography distribution. This type of observation has already been successful elsewhere in the state.

The article stated that: “Simmons, and others arrested for distributing child pornography, may face more charges after their computers’ hard drives are examined, said State Police Sgt. P.C. Koerner, who aided in Tuesday’s arrest.”

For any defense attorneys who have not yet faced charges such as these, here is what they have been doing: they seize the computer, it then is sealed and placed in the State Police detachment evidence room. They then have the option of doing a “live preview” of the hard drive to essentially take a peek at what could be on the hard drive. Then the computer is transported to Huntington, West Virginia, to the state’s forensic computer expert. At that point, the proper procedure is to make a “clone” of the hard drive before anything else is done with the computer.

The article further stated that “Each file shared over the Internet has a fingerprint attached to it. What we’re able to do is, we’re able to track where those files are going. As a computer forensics expert will tell you, each file has should be “hashed” which gives you this “fingerprint” - and if that is not done, then there could be some deficiencies with the evidence.

With child porn charges, defendants can be charged in state court, or they can be charged federally. The federal charges bring a minimum sentence of 10 years. If the charges are federal, it can alter your access to the evidence (i.e., computer). Federal prosecutors demand that the defendants attorneys or experts not be allowed to possess their own “clone” of the hard drive, as can be allowed if the charges only exist at the state level. I’m not sure what makes the federal prosecutors God, but for some reason the state police and defense experts are afraid to disobey the AUSA’s demands.

The protocol they use is this: they first make a clone of the hard drive, then the defense clone gets placed in a safe in the evidence room; the defense is given the only key, then when they want to analyze the computer, you are forced to do it under supervision of the state police. Now, if the charges are in state court only, then you can get an order from a circuit court judge to possess a clone of the hard drive. By the way, the feds insist on this even if no child porn has yet been found on the hard drive.

Speaking of experts, it is extremely important to retain an defense expert from the very beginning. The state has an expert are their side from the very beginning. You must have a forensic computer expert who can observe any and all manipulation of the hard drive by the state’s experts, as well as perform his or her own analysis of the hard drive. The important thing here is to prevent spoilation of evidence that could be exculpatory, and to foreclose the possibility of any manufacturing of evidence by the state, as well as to be able to give an opinion at trial regarding the reliability of the state’s procedures. If anyone is in need of an expert for computer-related charges, contact me and I can put you in touch with a very good one.

I think this is a trend we will continue to see in West Virginia, both with child porn charges, and with online solicitation charges. There is not much case law yet in this state for these types of cases, so many of the defenses have not yet been tried as they have in other states.

You can read the full article from the Charleston Daily Mail here.

- John H. Bryan, West Virginia Attorney.

A troubling trend is emerging in West Virginia. According to my own experience, and to those of some of my colleagues, State agencies, such as ABC (alcohol beverage control commission) are beginning to become actively involved in criminal cases, such as by trying to assist law enforcement in obtaining statements from suspects or defendants.

For instance, if someone who has an alcohol license is charged with a crime, they will suspend the alcohol license in “the interest of public safety.” Then, to get it back, they request a statement of why you are innocent of the charges. Undoubtedly that statement would end up right in the prosecutor’s file and would be used against you at trial. And if you don’t give the statement, your license remains suspended and you lose the income with which you were depending on to pay for your defense. Many times, the crime charged doesn’t have anything to do with selling alcohol or actual safety of the general public, they are just hassling you. And they can. Your only recourse is to request a hearing before the ABC Commissioner, and then to appeal that decision to the Kanawha County Circuit Court, and then to the WV Supreme Court of Appeals. By the time an arbitrary decision is overturned, you have gone out of business.

Something else they have been doing: if someone is charged with a crime involving consuming alcohol - for instance DUI, they will request the persons help in obtaining information on the establishment where the alcohol was bought or consumed. They trick you into believing that by helping them find out information about this establishment, that it will help your case, or that it will remain confidential. In reality, the statement gets forwarded to the investigating officer or prosecutor that same day.

Moral of the story? If you have been charged with a crime, or even investigated regarding a crime, keep you mouth shut and call a lawyer.

- John H. Bryan, West Virginia Attorney.

This is another one of those “only in West Virginia” news items…

From the Charleston Daily Mail today:

Nicholas County emergency services director, Alfonso J. Derito, Jr., of Richwood, was charged with using county money to pay for hotel rooms for sexual liaisons with a female coworker, and apparently car repairs in order to more efficiently provide transportation to and from said hotel, as well as male sexual performance products, also to assist with said liaisons.

There is an affirmative defense though: The job-description did not adequately define “emergency services,” and Mr. Derito was, in his mind, providing an emergency service to his co-worker. Furthermore, the county provided him a county credit card to assist with all matters involving his rendering of emergency services, including enhancing job performance, providing more efficient transportation, and providing a more comfortable work environment.

According to the article, “Both admitted to going to the hotel on at least three occasions to sit and talk.” What more can I say?

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

At lunch today, I was thinking about my previous post regarding the Charleston cops spotlighting deer, and it hit me. It all boils down to this:

Case in point: Cops have a suspect. Cops go to suspect’s house. Cops do not have a warrant. Cops illegally enter house. Cops look for evidence. Cops interrogate and get statement from suspect. Cops find what they are looking for. Suspect gets attorney. Attorney files a motion to suppress evidence found based on cops’ illegal behavior (warrantless entry of house). Cops lie and say on stand they were given “consent” to enter. Defendant/suspect says he/she absolutely 100% did not give consent to enter house. Defendant’s parents confirm his/her story. Defendant’s parent’s friend confirms the story. Cops cannot provide signed written consent form (yes, they exist). Judge denies motion to suppress, stating that defendant and witnesses have motive to lie, but that the cops have no reason to lie. Defendant takes plea agreement. Defendant goes to jail or on probation. The end. It happens day after day after day. And in the end, what judge cares if they know the person is guilty? Likewise, what do the cops care? If they fail to find evidence, then the apologize and go on their way. If they do find evidence, they show up in court and say the magic words: “consent,” and boom, the judge denies the motion to suppress. And no one cares but the poor sap who was convicted and the defense attorney banging his head against the wall.

Sometimes practicing criminal defense can be an exercise in futility. People think they have all of these constitutional rights… but, when it comes down to it, you only stand a chance if you can stand in front of a jury and, despite everything found by the police and prosecutors, convince them it would be an injustice to convict your client. Your only hope otherwise is to argue a constitutional technicality on appeal, and who wants to do that when they have some control over their destiny through taking a plea deal - especially in West Virginia where you don’t even have a right to an appeal, and even if you get there, the justices are elected through partisan elections (i.e., good luck Mr. Charged-With-Sex-Crime).

- John H. Bryan, West Virginia Attorney.

I have been asked many times recently what has happened with this case. Well, nothing has really happened since the sentencing has not yet taken place. The sentencing for these crooks will take place on June 30, 2008 before U.S. District Judge Thomas E. Johnston. There are also several civil cases currently pending in this matter, which undoubtedly will be detailed in the future.

You can read my previous post here.

- John H. Bryan, West Virginia Attorney.

As I detailed in a previous post, which can be found here, two Charleston cops, who were off-duty, were caught spotlighting and shooting a deer on W.Va. 34 near Liberty. Did they admit to their crime, apologize and beg the public for forgiveness? No, or course not, the law only applies to citizens, not cops, right? They claim they were ending the suffering of a poor injured deer. Even if that were true, and even if cops are allowed to do this, would it be proper to do it at night with a spotlight? In West Virginia, there are farmhouses all over the place. How could you be sure you wouldn’t kill some innocent person?

These cops are obviously lying, and nobody seems to care. Okay, assuming they shot this deer as part of their official duty, did they radio the dispatcher as to what they were doing? Were they even in their jurisdiction? Everyone knows thats a bunch of garbage. They committed an illegal act, then they got preferential treatment. The DNR officer even stated that “it was difficult to investigate two law enforcement officers….” Why in the world would it be difficult. If I was a cop and I became aware of two crooked cops using their badge and gun to break the law, I would get great enjoyment out of busting them and taking them to task. Heck, they are slandering your profession with their reckless disregard for the law and their utter hypocrisy.

So these cops got a plea deal. They were allowed to plead no contest and were given fines. Apparently the conspiracy charges were dropped as well. The Charleston Police Chief is apparently struggling with what, if any, discipline these officers should suffer with respect to their jobs. Hello…. what about the fact that these cops are lying through their teeth while pleading no contest at the same time? How many poor saps have been convicted based on the testimony of these two cops? I say, let’s reopen all of those cases, because these two guys are liars. Despite this, nobody wants to face the fact that cops lie on the stand, under oath, every single day. Why? Who knows and who cares. They have a variety of reasons, not limited to covering up their own wrongdoings.

The fact is though, that these two cops are lying and it is obvious. The cover-up is worse than the original crime. So they spotlighted deer… in the grand scheme of things it is no big deal. Nobody is perfect, we have all done things that are illegal at one point in our lives. They should have apologized and asked for forgiveness.

These two are hypocrites and liars, period.

You can read the entire article here.

- John H. Bryan, West Virginia Attorney.

Although this was in Australia, what would any government expect when you make jurors sit for a trial for 66 days? What kind of crime is worth spending a million dollars to prosecute? Drug conspiracy? If as the prosecutor, you reach day 66 of your drug conspiracy trial, you have officially bored the hell out of the jurors - not to mention put them out of business and caused their families to lose their home in foreclosure. Who can afford two months of jury duty?

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

I reported on the new West Virginia DUI statute in a previous post, which can be found here. I previously reported that the effective date would be June 1, 2008. From what I have heard from other attorneys, and from the WV Supreme Court, the effective date will actually be June 6, 2008.

This means that if you get arrested for DUI on or after June 6, 2008, then the new law will govern your case.

- John H. Bryan, West Virginia Attorney.

A story in the Charleston Daily Mail today reported that a Kanawha County mother was charged criminally with the death of her 22 month-old son.

Elizabeth Dawn Thornton, 21, was arraigned in Kanawha Magistrate Court in connection with the death of Constantine Alexander Washburn, known as Alex.

Lt. Sean Crosier, of the Kanawha County Sheriff’s Department, said the infant died May 31 as a result of injuries received May 26 in his Cross Lanes home. Crosier said the boy’s severe brain injuries and other injuries would have required immediate medical attention, but that Thornton did not seek help until a friend called an ambulance on May 29.

Crosier said authorities waited several days before charging Thornton. “This is a very, very serious allegation and we wanted to make sure everything was right,” he said. He said authorities are still questioning other family members, including the boy’s father, 31-year-old Christopher Washburn.

Police believe the elder Washburn may have been present when the boy was injured. Crosier did not know if other charges are pending.

According to the criminal complaint, both parents told police Alex Washburn bumped his head on a table and hit his chin on a toilet. But doctors said the boy’s severe brain injuries and bruising on his neck did not support their stories.

As a criminal defense attorney, this is the most upsetting type of case, because babies are innocent 100% of the time and have been robbed of their life. Secondly, there are many types of accidental situations that could be construed to be child abuse or neglect, resulting in essentially murder charges against parents who have suffered a great tragedy.

In these types of cases, there is a very fine line between parents who deserve to rot in prison, and parents who are either innocent, or unintentionally harmed their child. What separates the two? The medical examiner who performed the autopsy. The ME will come up with some reason why the injuries do not corroborate the parent(s) version of what happened. Therein lies the problem: what happens when two doctors disagree on the autopsy results and their necessary conclusions? You have a situation where two doctors testify against each other for opposing parties in a court room. But this is not a civil case, this is a criminal case, with everything at stake, not just money.

Case in point: I had a similar case where a 6-month-old child died tragically. The autopsy was performed and it was ruled SIDS (sudden infant death syndrome) by the ME. Law enforcement thought something was fishy, and they didn’t like the ME’s conclusion, so the ME was fired, and a new ME was brought in to take a second look. Guess what? The second ME ruled the death a homicide, based on the conclusion that blood in some cavity of the body meant it must have been murder, or that someone was lying. So the investigators leak the story to the newspapers and start interrogating the parents.

So what happened? After being devastated by the death of their infant, the parents were already at the end of their rope. Within months, both parents committed suicide. Tragically, an entire family disappeared from the world.

The point is, that investigators better make damn sure they know what they are talking about, and the parents better run - not walk - to an independent physician to review the ME’s findings.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

This is a story that I will detail in a later post if need be, but it rises to the situation where the public should be informed of this massive abuse of authority.

A southern West Virginia Chief of Police, who is a big guy and also a military veteran, had his little wife arrested by a buddy law enforcement officer for “domestic assault,” taken into physical custody, after which she was able to bond out with a $5,000 cash bond. For those of you who don’t know, $5,000 is the average bond for felonies in southern West Virginia.

This police chief then filed for divorce and refused to drop the frivolous criminal charge against her unless she agreed to his terms for the divorce. This story is continuing and may be updated based on future actions taken by the law enforcement officer.

- John H. Bryan, West Virginia Attorney.

One of the top, if not the top, criminal law blogs in the country, authored by Scott Greenfield in New York, Simple Justice, recently featured this blog in a post titled, “New Blood in the Blogosphere,” which can be found here. Thanks, Scott. I would encourage anyone interested in criminal law to check it out, as I do regularly.

A colleague forwarded this article to me about a cop in Arizona who pulled over and arrested a woman for DUI even though she had a 0.00 BAC. Why would he have done that? Apparently her husband is a DUI lawyer in Arizona who had recently won a high-profile DUI trial. Guess who was the arresting officer for that DUI? That’s right, it was the same cop who arrested the DUI lawyer’s wife.

This disgusting excuse for a law enforcement officer’s name is Bond Gonzalez.

You can read the full article here.

This is something that I continuously worry about. One day I am haranguing a cop on the stand and figuratively chasing them around the courtroom beating them with a stick, and the next day I am peering in my rear view mirror waiting to be pulled over - or worse.

In reality though, most cops have been very good to me outside the courtroom. In fact, I usually make it a policy to apologize to cops I cross-examine after the hearing takes place, and most of them tell me that they don’t mind at all and that they would want me to do the same for them if they were charged with a crime. A few cops have even called afterwards to talk about their own legal matters.

As many of you know, I have ranted previously about being in magistrate court in the State of West Virginia (see prior post here.) Unfortunately for me, just about every week I have another awesome experience in that magical wonderland of justice.

This episode however, was not in the criminal arena, it was a civil case. For those of you who didn’t know, magistrate courts in West Virginia have “jurisdiction” over civil cases where the amount in controversy is less than $5,000 (unless of course, you file a motion to remove the case to circuit court, or appeal to circuit court).

So I was in wonderful magistrate court representing the “defendants” who were sued for what was effectively “injunctive relief.” In other words, the plaintiff was asking the magistrate to make my clients do something they didn’t want to do. Never mind that magistrate courts in West Virginia do not have jurisdiction or authority to order injunctive relief (small detail, practically worth ignoring) - only a circuit judge can order such an Order.

The first outrage that happened was that the other lawyer brought a motion to the magistrate, and the magistrate signed and entered the order without me ever having been served with a copy of it, or ever getting the chance to respond. Then came another motion, then another, then another. And guess what? My clients were never given the chance to respond. It’s just par for the course in magistrate course. There practically are no rules. For the rules that do exist, the magistrates usually do not follow them. So you just have to fight fire with fire, and file motions, get them to sign it and wait for the other party to file another motion. It’s that ridiculous.

My clients had a counterclaim, so I filed an “Answer,” along with a counterclaim for damages. Well, when we show up for the “trial,” the magistrate says with a smirk, “Mr. Bryan, this is a shared courtroom, and we just don’t have time to hear your counterclaim,” to which, I responded, “are you serious, my clients just drove almost 300 miles to be here, we have our witnesses, and our claim must be heard contemporaneously with the plaintiff’s absurd case.” However, the magistrate did not relent. So I jumped up and down and threw a fit, and finally demanded a continuance so that we could get out of that “courtroom” as quickly as possible (all-the-while wondering about how quickly I could file a motion to remove the ridiculous case to circuit court).

So then, the other attorney files the same exact claim in circuit court. Without even attempting to serve my clients with a summons and copy of the Complaint, she sets a hearing and tries to get the circuit court judge to rule in her client’s favor (on the merits). Obviously, that was inappropriate since my clients had not yet been served, and the judge told her that she had to serve my clients. Either she didn’t know how, or didn’t want to spend the money to do it, so she then went back to magistrate court and set a hearing date.

So, I arrived at the hearing, and the magistrate tried to hold the trial. Never mind that my legal assistant was told by the magistrate’s office that it was supposed to be a “status conference.” I informed the magistrate that there was no jurisdiction in magistrate court as the case was currently pending in circuit court, and that we were waiting for my clients to be served.

Immediately, the magistrate yelled at me, shouting that my clients should presently be in the courtroom, that in this particular magistrate courtroom, all parties always appear, and that if they were there now, then they could be served by the other party with the circuit court service of process (which actually is not true since technically an out of state resident traveling to West Virginia to testify in court is immune from service). Then she demanded that I get my clients on my cell phone and have them authorize me to accept service on their behalf. I refused, rightly replying that I had no obligation or desire to do so.

Then the magistrate chastised me for appearing as counsel in lieu of my clients, who live out of state. After all, why drive 300 miles to appear in magistrate court when there is no jurisdiction and no possibility of having to testify? The magistrate told me that, she doesn’t care how they do it in circuit court, that it was her courtroom and that my clients should have appeared. I again reiterated that there was nothing she could do, because the matter was now in circuit court. She yelled that she didn’t care and stated that unless the circuit judge directly orders otherwise, she is scheduling the case for trial within a few weeks.

So then the other lawyer (who deserves a post of her own) goes back to circuit court. In effect she is playing both fields at the same time, waiting for either judicial entity to rule in her favor, in each courtroom telling the other judicial entity that the other one doesn’t really exist.

Only in a rural West Virginia magistrate court would you have a magistrate openly attempting to serve one party service of process for a circuit court lawsuit, and at the same time refusing to accept the overarching authority of the circuit court’s jurisdiction over the matter.

I know that lawyers across West Virginia, especially southern West Virginia, have hundreds, if not thousands, of stories just like this one illustrating the absurdity of our current judicial system called magistrate court. The moral of the story is, that if you want to have any control over your destiny in civil cases, you have to move your case into circuit court - which requires a filing fee and more extensive attorney’s fees - even in small-peanuts cases. And if you have a criminal charge against you, then God help you. If you were charged with a misdemeanor, then you have the choice of either trying your case to the magistrate (who did not go to law school and doesn’t know the first thing about the Rules of Evidence or the Rules of Civil Procedure, or the Trial Court Rules for that matter), or a jury. If you request a jury trial in magistrate court and lose, then you have to pay for the costs of the jury. Needless to say, most poor folks charged with a crime in West Virginia choose to allow the magistrate to decide their fate.

I tell every potential criminal client who walks in my door, if you want me to represent you on a misdemeanor, then you better be requesting a jury trial. Because I will not take responsibility for defending a case before a magistrate. Some magistrates are infamous in this respect. I know of one magistrate whom defense attorneys consider a win in her courtroom to be getting the minimum sentence.

Of course, there are always exceptions. I have encountered a few magistrates who are extremely fair, hard working, and who make a real effort to learn and follow the law. Are there better ways to set the system up? Yes, absolutely, look at North Carolina District Court.

- John H. Bryan, West Virginia Attorney.

From the Register-Herald today:

Monroe County prosecutor Rod Mohler has resigned in order to take a position as an assistant prosecutor in Greenbrier County. When that happens, it is up to the county commission to appoint a successor. It looks like the prosecutor-elect, Justin St. Clair, will be appointed by the Monroe County Commission at a special meeting today.

Justin is a very capable attorney and I’m sure will serve Monroe County with the utmost integrity and effort.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

In case you didn’t know, this is the most popular weekend for police to perform DUI checkpoints. According to the Register-Herald, the Beckley -area police are all ganging up to conduct a “DUI saturation sting.” Of course, nobody wants drunk drivers on our roads. The problem is that this makes it extremely easy for innocent people to get caught in their traps.

Beckley Police Sgt. Paul Blume, director of the program, says extra officers from the Beckley, Mabscott and Sophia police departments, as well as from the Raleigh County Sheriff’s Department and State Police, will be out in full force until 4 a.m. Saturday, concentrating on drunk driving patrols.

Blume said although the heaviest DUI concentration will be tonight there will be extra patrols throughout the holiday weekend. In addition to the DUI patrols, extra officers enforcing the annual Click it or Ticket campaign will be on the roads looking for seatbelt violations. Although Blume says Memorial Day ranks at or near the top of the deadliest holidays of the year, there are things travelers can do to help keep themselves and others safe.

“If you’re going to drink, designate a driver,” he said. “Most people know in advance if they’re going to be consuming alcohol. Be smart enough to designate a driver and have someone else drive you.

That certainly is good advice. The best advice however, is probably to stay home this weekend, if possible. Between the drunk drivers, and the cops looking for drunk drivers, you’ll be lucky to make it home in one piece.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

From the Bluefield Daily Telegraph:

A Bluefield man facing first-degree murder in the 2007 shooting death of a another Bluefield resident entered into a plea agreement Tuesday in Mercer County Circuit Court.

Ronald Jerome Finney, Sr., also known as R.J., 53, pleaded guilty before Judge Derek Swope to a felony charge of voluntary manslaughter. Finney was indicted in February on first-degree murder in the Oct. 31, 2007 shooting of Donald Lamont Greene, 32, of Bluefield. Greene died as the result of a gunshot wound to the chest.

Finney was apparently claiming that he fired in self defense, stating that he was in fear for his life. However, the situation stemmed from him attempting to purchase crack-cocaine - not exactly a “clean hands” position to be in. Furthermore, his story was pretty shaky. Finney said in his statement that he waited outside [the drug dealer's house], and that Greene later came up to him, threatened him, and “he acted like he had something in his pocket, so I just shot him,” adding that he fired a second time when Greene “then tried to get something out.”

Finney must have been pretty believable though, because prosecutors gave him a pretty good deal - voluntary manslaughter - only carrying a determinate sentence of 3 to 10 years (compared with life for first degree murder, or up to 40 years for second degree murder). This was well-worth accepting in lieu of taking a chance with the jury and possibly facing life in prison.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

In Greenbrier County:

For Prosecuting Attorney, incumbent Kevin Hanson lost big, and at the top of the Democratic ticket for the general election will be Martha Fleshman, who was a complete dark horse in the race. According to the Register-Herald article linked below, she spent only about $1,400 on the race — not including the $992 filing fee. She will face fellow attorney Pat Via, who by the way is an all-around good guy.

For Circuit Judge, incumbent Judge Pomponio emerged victorious over Lewisburg attorney Steve Hunter. He will face Lewisburg attorney (and State Senator) Jesse Guills in the general election.

See the Greenbrier County results here.

UPDATE: The Register-Herald published an article Thursday regarding the county prosecutor race in Greenbrier County, which you can read here.

In Monroe County:

For Prosecuting Attorney, incumbent H. Rod Mohler also lost big - to challenger Justin St. Clair who is a Monroe County Attorney and also an all-around good guy. This was a big race because Rod Mohler had been Prosecuting Attorney for 12 years, and he is also a really nice guy with a lot of support. Justin had been positioning himself to run for the last four years and his hard work paid off.

For Circuit Judge:

Judge Robert Irons narrowly won by about 200 votes. This was a difficult race because it pitted Monroe County voters against Summers County voters, each voting a majority for their resident candidate. I believe the voters made a wise decision as Judge Irons has served the 31st judicial circuit well since he has held office.

See the Monroe County results here.

In Summers County:

For Prosecuting Attorney, incumbent Amy L. Mann, pulled out a major victory over challenger Jason Parmer, grabbing 2,277 votes over Parmer’s 1,280. This race had gotten nasty in the final weeks leading up to the election, and apparently that didn’t play well with the voters of Summers County. In my opinion, the most important quality of a good prosecutor is sympathy and compassion. Not all persons charged with a crime deserve life in prison. Most are generally good people, and most will be back out on the streets before long. A prosecutor who will treat defendants as they themselves would want to be treated, can clean-up the streets much faster than a “lock-em-up-throw-away-the-key” prosecutor. Amy is a compassionate person, and she uses her discretion wisely. But she also knows when to fire both barrels - trust me.

See the Summers County results here.

- John H. Bryan, West Virginia Attorney.

From his Blog, Simple Justice, by New York criminal defense attorney Scott Greenfield posted about instances of federal judges in New York who made actual findings that certain cops had committed perjury before them.

Instead of publicly reprimanding them, the judges seemed more concerned with preventing damage to their careers. As Mr. Greenfield points out, “welcome to the real world of criminal law.” But why would cops risk losing their job and their pension to lock up any individual criminal? Mr. Greenfield replies, “tell it to all the people that cop’s put away before. Tell it to all the judges who defaulted into finding the cop credible, because he’s a cop, or the juries who bought into the prosecutor’s argument that “there’s no reason why the cop would lie…” There’s a very good reason; that’s just what they do. It’s their job. The courts are a big joke, and they say the magic words that put the bad guys in jail. No big deal, just another day’s work.”

Mr. Greenfield posits that “if there were ramifications for getting caught lying, such as jeopardizing a cop’s career (or more importantly, his pension), they would stop. No perp is worth losing a pension. But cops testily with impunity, and everyone in the system, except the criminal defense lawyer, is there to protect that cop from the consequences of committing the crime of perjury.”

And yes, it is no different in West Virginia.

Read the post here.

- John H. Bryan, West Virginia Attorney.

From the Bluefield Daily Telegraph today:

Mario Goodson, 18, appeared Monday for a preliminary hearing before Magistrate Rick Fowler. Fowler found probable cause in Goodson’s case and bound him over to the Mercer County Grand Jury.

Both Goodson and Kenneth Dwayne Eaves, 19, of Bluefield are facing charges of conspiracy and first-degree murder in the Dec. 14, 2007 death of 28-year-old William Jerome Flack of Bluefield. Detective L.B. Murphy of the Mercer County Sheriff’s Department testified Feb. 8 that witnesses allegedly heard Eaves order a second person, Goodson, to shoot Flack.

Wow, that is a big surprise. Many West Virginians do not realize that if they are arrested on a felony, they are entitled to a preliminary hearing in front of a supposedly neutral magistrate to establish whether the police have probable cause to hold you in jail (or on bond) for the charges. They also don’t realize that this process is for the most part a farce, a formality. Preliminary hearings in West Virginia are a joke. The magistrates for the most part are not lawyers and have no legal training on what is and what is not probable cause. They, for the most part, have no idea what is and what is not admissible under the West Virginia Rules of Evidence (of course, there are exceptions).

The West Virginia Rules of Criminal Procedure allow for “relaxed hearsay” in preliminary hearings. This means that the investigating officer can come in and testify to some hearsay if there is a substantial basis for believing that (1) the source of the hearsay is credible; (2) there is a factual basis for the information furnished; and (3) it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. Therein lies the problem. Many magistrates will just allow the investigating officer to come in and testify to anything and everything they were told throughout their investigation. Then, the magistrate will say, “well, probable cause is a very low burden, and they have met the burden… I find there is probable cause.”

For instance, I had a client who was charged with a absolutely ludicrous felony charge in Greenbrier County. His preliminary hearing was held by a magistrate in Greenbrier County. The State subpoenaed three witnesses: the investigating officer, and two very disreputable convicted felons whom had been caught red-handed and pointed the finger at my client to try and get a plea deal. They appeared and were waiting in the waiting room as the hearing began. The State called the officer first, and he proceeded to testify to almost entirely hearsay testimony - basically everything the other two idiots in the waiting room would have testified to. I objected to hearsay, reciting the above relaxed hearsay rule, but the magistrate basically said that all hearsay is allowed in preliminary hearings. Thus, the magistrate allowed the hearsay testimony despite the fact that the two idiots were in the next room, so the primary source of the evidence could have testified. Furthermore, they were extremely incredible. One of them was notorious in the county for being a career criminal, having spider web tattoos all the way up his neck. The lying officer however, grinned and testified that he thought the man was credible. I later told this to the Prosecuting Attorney, and he laughed and joked that everyone knew that this was the most incredible man in the county, perhaps the state.

As it turns out, when it came my turn to call witnesses, I obviously tried to call the two idiots in the waiting room, so that my client would at least have the opportunity to confront his witnesses. Believe it or not, the assistant prosecutor, on his first week of the job, objected on the grounds that they may be charging one of them with a crime and one may testify against the other, and that therefore there was a “use immunity issue.” I responded that it was irrelevant, and was the prosecutor’s problem and had no bearing on the hearing. The magistrate however, got really, really worried that she was going to make someone mad in the prosecutor’s office and decided not to allow me to call any of the witnesses that had been subpoenaed to the hearing and were waiting in the next room. Then, that was it: she found probable cause and we were not allowed to call any witnesses. This was an absolute disgrace to our criminal justice system. Imagine if it were your son or daughter that was treated like this.

Fortunately this client was able to make bail, as his case was never even brought to the grand jury. If it were some poor sap who didn’t have any money, he would still be sitting in jail thanks to this meaningless system of magistrates conducting preliminary hearings.

By the way, these same non-lawyer judges are the ones who make decisions on whether or not the police have probable cause to be issued warrants to search your home - or to arrest you. Yes, it’s very scary and very unjust.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

The following article was written by a Florida DUI lawyer about how to, and how not to, undertake a breath test during a DUI stop or arrest - which was forwarded to me by a colleague in Florida. Obviously, I cannot vouch for its scientific accuracy, so take it for what its worth:

“Stop breathalyzer abuse: Seems that they don’t tell you everything whey they tell you to blow into the machine… ”

By Tom Hudson

The last thing I want to do is to tell drunk drivers how to “beat” the Intoxilyzer. But I am tired of seeing the police misuse the Intoxilyzer to beat up on the citizenry. So the following advice is how to get the Intoxilyzer to measure exactly what it’s supposed to measure: Your breath alcohol. And if it does that, you will probably be under the legal limit.

The police are trained to operate the Intoxilyzer. They take a 24 hour course, and are awarded a certificate that says that they are trained to be “breath test operators” under Florida law. I’ve taken that course, and have one of those certificates.

When the police are trained, they are instructed to tell the subject to “keep blowing until the tone stops.” In reality, you cannot keep blowing until the tone stops. Why not? Because the tone doesn’t stop until you are out of breath. It is a trick, to try to get you to blow out your deep lung air. Why are the police taught to do that? It turns out that the last fraction of a second of the breath is all that the Intoxilyzer measures.

Your “vital capacity” is the amount of air you can exhale from a full inward breath until you cannot blow any more. The lungs of a healthy human being have a typical “vital capacity” of around four and a half liters. That’s 4,500 milliliters. The breath chamber of the Intoxilyzer 8000 is approximately 31 milliliters. In other words, the breath machine measures less than the last 1% of your breath. (Actually the last .6%)

They are measuring only the last 1% of your breath!. That would be fine if the last 1% were a representative sample of your breath alcohol.

But it’s not.

The last 1% of your breath contains the highest alcohol concentration of your entire breath. By telling you to blow until you are out of breath, and measuring only the last 1%, the standard instructions for the Intoxilyzer can overestimate your breath alcohol by as much as 400%.

400%!

So how do you stop the police from overestimating your breath alcohol? Two steps. Remember this: Three and Two. That’s the number “3″ and then the number “2″.

Step One. Take 3 deep breaths before you blow. If you hyperventilate three times before you blow into the machine, you will reduce your breath alcohol by as much as 55%. This occurs for two reasons. First, the breaths cool off your lungs. When the lung tissues are cooler, less alcohol goes from liquid form into vapor. The result is a lower breath alcohol. Second, the breaths clear out the alcohol from your lungs, filling them with fresh air. Find out more in this scholarly article.

(By the way, the reverse is also true. If you hold your breath for a few seconds before you blow, your breath alcohol will be increased. So whatever you do, DON’T HOLD YOUR BREATH before you blow into the machine!!)

Step Two. Blow out HALF of your breath and STOP. Half of a breath is all that you need to give a valid sample under the Florida protocols. The Intoxilyzer 8000 requires only 1.1 liters of breath to register as “adequate volume.” Blowing the minimum required can reduce your measurement b