The Lombardi Law Firm Blog

Criminal Law Drunk Driving - What you need to know about our services.

What makes punching in when you're not working wrong?

Iowa OWI law: the exception to the Constitution.

In the Jury’s Eyes Why Did This Dram Shop Claim Fail?

Ninth Circuit Court of Appeals Decision Brings Reality Back to Police Work

Is there a difference between sex-ed and pornography in Texas?

A father who forced his children to watch hard-core porn, including group sex can’t be charged under Texas law according to the Randall County District Attorney. The children are and 8 and 9 year-old daughters whose father, divorced from the mother “made them watch adults having group sex and various other acts at his home in Amarillo. The parents of the girls, and their 7-year-old sister, are divorced and share custody.”

Texans do everything big, including making bigger mistakes than who they vote in for Governor. The law allows parents to show “harmful material” to their children. Which this lawyer-prosecutor believes sanctions parents showing porn to their children. Here in Iowa we make a distinction between educational materials and those considered pornography. The one is to educate the other In this instance the facts might lead one to conclude the parent’s actions fit in the prurient interests category. Most

“An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.”

In most states they look at the goal to be achieved and perhaps this father sees group sex as a way to achieve his goal of sex education. Apparently the mother, who wanted her ex jailed, wasn’t too happy.

Pornography is the depiction of sexual behavior that is intended to arouse sexual excitement in its audience. During the twentieth century, Americans debated whether pornographic material should be legally protected or banned.

So the question remains, what was his intention? So when Texas officials aren't beating up on injured people what else do they do? It appears they've found the Internet...

HOUSTON – March 2009

Iowa New: Driver charged with homicide by vehicle after crash kills passenger

Metrick Lawan, the driver of the car that crashed on September 21st 2009 killing passenger Heaven Chumos, has been charged with two counts of serious injury by vehicle, OWI, and the most serious charge of homicide by vehicle. He arrived at the Polk County Jail Monday after spending the last week in the hospital recovering from his own injuries related to the crash, his bond has been set at $76,000. Investigators had previously said that they found no skid marks indicating that Mr. Jenkins did not try to brake to avoid crashing.

The report indicates the driver had lost his license hours before the crash occurred.

What’s the difference between legitimate and excessive force?

Follow the link and watch this video from South Bend, Indiana and ask yourself if the suspect is resisting arrest and is the force necessary.

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Meet the Police Women of Broward County on TLC.

Meet the latest reality series on of all things, The Learning Channel: Meet the Police Women of Broward County, on the TLC. And what is it exactly that TLC is teaching today? Well let’s just take a look and see.

http://tlc.discovery.com/videos/police-women-of-broward-county-meet-andrea.html

Yes you heard it right, the police bragging that, “There’s always a good time to use a Taser.” Right from the mouth of the people entrusted to uphold the law is bravado about turning, what should be a department issued deadly weapon, into a sound bite for entertainment consumption. Is this right? Is this what American society has become? Is this what are tax dollars are being used to do; to put weapons in the hands of law enforcement who think Tasing citizens has entertainment value? This clearly demonstrates what is wrong when the government gets into the entertainment business.

How about instead of playing to the TLC camera that government does what it is constitutionally empowered to do: simply enforce the laws.

This comment by law enforcement is inappropriate, unprofessional and can be later used to show malice by the Broward County Police Department and officers when someone dies from using a Taser. And who will pay for this indiscretion? You guessed it the taxpayers will be paying. The taxpayers of Broward County will be paying for it in wrongful death damages after little Miss Blonde Deputy Gun Slinger gets her fill of always having a good time to use the Taser.

It’s my opinion that government law enforcement participating in reality TV shows is not an appropriate governmental function. These shows started as educational opportunities and they’ve turned away from education to focusing on entertainment. When did police work turn into the latest reality TV series? When cops turn into movie stars crime turns into an excuse for profit and what crime drives the best ad dollars.  Making police work entertaining borders on an unconstitutional exercise of the State of Florida’s police power.  A basic function of state government is law enforcement not entertainment. So using government law enforcement resources to entertain the public is wasting those resources and encouraging the perception that the purpose of law enforcement is to take economic, social and financial advantage of criminal activity.

This is disgraceful for the State of Florida and especially its police departments. This officer should be sanctioned and either removed from the show or from the service of police work. The Broward County Sheriff’s Department needs to withdraw from the TLC.

Does the TLC stand for Taser Loving Cops.

Perhaps next we’ll have a Tase booth at the Iowa State Fair. “Step right up ladies and gentlemen and try your hand at Tasing the Moving Criminal! It’s great fun and even helps reduce the deficit created by irresponsible government spending! Hit the felon twice and we’ll credit your property tax bill! Kill him and we’ll give you a full year of property tax relief! Come one come all!”

This disgusts me; this officer needs to be retrained by the Iowa State Troopers who by the way don’t carry Tasers. They use what is called verbal judo, what the rest of us know to be communication skills.  Notice the Iowa State Patrol’s motto: “To preserve lives, rights & property through courtesy, service & protection.” No boasting, no bravado and certainly not stated for entertainment value. The Iowa State Troopers make the Broward County Sheriff’s Department look like Communist thugs.

America is ill. The American public is being dumbed down and law enforcement is not doing it's job in a respectable way. The three branches of government should be ashamed. As a lawyer statements like the one here make me wonder if we've developed very far beyond the Roman Empire and its use of lions eating slaves for entertainment. Long live Caesar.

Drunken Driving it's a tough lesson to learn

On August 9^th 2009 Brenda Gregory was hit by an alleged drunk driver as she turned left onto 190^th Avenue from Iowa Highway 17. Adam E. Vanous ran the stop sign and struck her car injuring Mrs. Gregory and two other passengers in her car; Anna Tilley and Nick Vandarwarka. Mr. Vanous who is 26 is well passed the stage of, “just being a kid” and this is just another example of a pointless accident that could have easily ended 3 lives.  The law allows a claim for punitive damages against a driver that drives while drunk. The bad news is most auto insurance policies exclude coverage for punitive damages. That means you can get the judgment but it won’t be paid by insurance. Ouch! It’s a tough lesson to learn.

Drunken Driving - Iowa Judge, police officer and others involved with OWI

It’s reported that a former associate judge in Muscatine County, Iowa was ordered to serve five years in prison for his third OWI offense.  He was fined $3,125 and will serve his time at Davenport’s work release center. His BAC was more than twice the limit.

Meanwhile a Burlington, Iowa man was sentenced to 5-years of probation for being the driver of a car that crashed killing the passenger. His BAC was more than twice the limit.

A Waterloo, Iowa police officer was arrested on a drunken driver charge after the Black Hawk County sheriff’s deputies responded to a car in the ditch. No breath or field sobriety test results were available. No indication in the available news stories that anyone was injured.

Coralville, Iowa police charged a Chicago man driving a U-Haul truck was stopped on I-80 with blood-alcohol content at 0.184, more than twice the legal limit. Children were in the vehicle and as reported charges of child endangerment are pending.

Driving drunk or under the influence has serious consequences as we’ve seen this past week with the Taconic Highway wrong-way driving accidents that I’ve been reporting on.

MADD, Mothers Against Drunk Driving have MADD statistics on their website including the link to the NHTSA’s statistics for 2007 Traffic Safety Annual Assessment – Alcohol-Impaired Driving Fatalities.

Summary

In 2007, an estimated 12,998 people were killed in alcohol-impaired driving crashes. – a decline of 3.7 percent from the 13,491 fatalities in 2006.

The fatality rate, per 100 million vehicle miles of travel (VMT), decreased to 0.43 – the lowest on record.

Thirty-two States had decreases in the number of alcohol-impaired driving fatalities in 2007, as compared to 2006.

Twenty-five States and the District of Columbia had increases in the number of alcohol-impaired motor-cycle riders (operators).

Alcohol-impaired motorcycle riders increased by 10 percent in 2007

Since 1982 there has been a steady decline in the number of deaths per vehicle miles traveled. The death rate has gone from a high of just over 1.20 to a low of about 0.50. That’s a good thing. We are moving in the right direction.

OWI: Iowa Corn Indy 250 Fans

The Iowa Speedway has been an economic boom for the City of Newton, Iowa.  And here comes the Iowa Corn Indy 250 which will be the boom for the local law enforcement to fill their annual budget.  This means arrests for anyone seen in public who resembles a drinker of alcohol.  Fines will be levied and assessments made for "room and board" for jail sentences.  I expect the arrests will largely be for OWI, which is also known as DUI or drunk driving, interference with official acts, assault on a peace officer, and public intoxication.  Even if you haven't been drinking, officers' reports will indicate a strong smell of alcohol, bloodshot watery eyes and slurred speech- only the names will be changed.  In my experience with these types of events, local law enforcement will have virtually all hands on duty.  Most officers will not have the time or the temperament to properly handle each case, which means that some steps in proper protocol will be overlooked.  To a lawyer, this means that constitutional rights will be violated.
 
The City of Newton sits on an interstate, I-80.  There are other highways; such has State Highway 14 that leads to Newton.  There will be city police officers, county sheriff's deputies, and state troopers all over.  They won't be concerned about Helio Castroneves, Danica Patrick or Dan Wheldon.  They will have their own competition of sorts on arrests.
 
Any guest visiting our state should know that if arrested you do have a right to call a lawyer or family member in order to secure a lawyer once you arrive at the jail in order to protect your rights.  Otherwise, be responsible and enjoy yourself.  Maybe you'll even get to have a Budweiser in the parking lot.

How do the police measure the level of alcohol in your body? ?

What are the different ways that blood alcohol concentration can be measured?  Most of the time the officer is going to request that you provide a breath sample, but they may also request blood or urine.  There are two different times that an officer may request a breath sample.  First, the officer has a hand-held device that can take a breath sample and provide an analysis of blood alcohol content.  The problem is that by law this device is not reliable so they will always request that you provide another breath sample at the police station on another machine which is considered to be more reliable than the hand-held device.  Don’t be fooled- this device also has problems.  Even if a person where to provide a sample each of their breath, blood and urine, all three would have a different alcohol level.  There are many factors to determining the level of blood alcohol concentration and the time of vehicle operation.  Some states do not allow alcohol measurement through urine because it is so unreliable.  In order to obtain more convictions regardless of the reliability of this test, Iowa still allows urine testing.  You always have the right to make a reasonable number of phone calls prior to making a decision on whether to provide a sample for testing.

OWI: How do you maintain your silence when they are asking you questions??

An officer has to honor your request to talk to a lawyer and to remain silent.  That is your constitutional right.  You have the right under the 5th Amendment to not be a witness against yourself, and you have the right under the 6th Amendment to the assistance of counsel.  Be prepared however since the officer is not going to take your silence as a friendly gesture.  Some officers view silence as an admission of guilt.  Many officers view the constitution as an obstruction to justice and some have the view that the “end justifies the means.”  Those officers do not care if you’re constitutional rights are violated.  They do not like it when people do not respect their authority and refuse to answer their questions.  They threaten to file additional charges, such as Interference with Official Acts for refusing to answer their questions.  Even if you do not answer their questions and do not take their “tests”, they will still charge you with OWI.  If you have decided, either on your own or through the advice of an attorney, to remain silent then you need to stick to your guns.  If you initially decide to remain silent, which then draws the officer’s anger, and you decide to talk about your charge, you are then in the worst situation which is making statements about your charge in additional to having an angry cop.  Most officers will honor your request and fill out their paperwork as long as you sit quietly.  If you do initially indicate that you are going to remain silent, you can not decide to ask questions and expect the officer to talk to you.  All of your questions should go to your lawyer, not the officer.

OWI: Why does the officer ask if I've been drinking?

Under Iowa’s OWI law, there are strict requirements that must be met for an officer to eventually charge someone with OWI. There are essentially three stages and before an officer moves from one stage to the next, he must satisfy certain requirements within each stage. To move from one stage to the next, an officer has to have evidence that he is trying to obtain which allows him to proceed on. Most of the evidence is founded upon a determination of reasonable grounds to believe someone is drinking and driving. Keep in mind that it is not illegal to drink and drive. It is illegal to drink and drive drunk. But the law says that any admission that you have been drinking allows the officer to move on to the next stage, in other words he can advance towards an arrest. Some officers, and some people in general, believe that any alcohol consumption should result in an OWI. An officer can ask if you’ve been drinking as soon as he pulls you over, even if he doesn’t smell alcohol or have any other basis for suspecting a drunk driver. When a person admits they have had a drink, they are then going to be subjected to field sobriety testing, and those "tests" are designed for you to fail.

So what is the lesson to be learned and why should you listen to this advice?

The lesson is that there are no casual conversations with a police officer. It's like you hear on television, everything you say can and will be used against you.

OWI: When should you refuse the breath test?

OWI: Who decides whether someone should be charged with OWI??

OWI: Maintaining Silence

How do you maintain your silence when they are asking your questions?  An officer has to honor your request to talk to a lawyer and to remain silent.  That is your constitutional right.  You have the right under the 5th Amendment to not be a witness against yourself, and you have the right under the 6th Amendment to the assistance of counsel.  Be prepared however since the officer is not going to take your silence as a friendly gesture.  Some officers view silence as an admission of guilt.  Many officers view the constitution as an obstruction to justice and some have the view that the “end justifies the means.”  Those officers do not care if you’re constitutional rights are violated.  They do not like it when people do not respect their authority and refuse to answer their questions.  They threaten to file additional charges, such as Interference with Official Acts for refusing to answer their questions.  Even if you do not answer their questions and do not take their “tests”, they will still charge you with OWI.  If you have decided, either on your own or through the advice of an attorney, to remain silent then you need to stick to your guns.  If you initially decide to remain silent, which then draws the officer’s anger, and you decide to talk about your charge, you are then in the worst situation which is making statements about your charge in additional to having an angry cop.  Most officers will honor your request and fill out their paperwork as long as you sit quietly.  If you do initially indicate that you are going to remain silent, you can not decide to ask questions and expect the officer to talk to you.  All of your questions should go to your lawyer, not the officer.

OWI: Promises of leniency or that you won't be arrested

What if the officer promises you that you’ll get off easy or that he won’t tell anyone?  The law says that police officers can lie when investigating criminal activity.  There is simply no way for me to ever count how many cases involve officers telling someone that they won’t be charged if they just come clean or admit they did something.  Often times, upon hearing that assurance, people will say just about anything in order to end their encounter with an officer, expecting to go free.  Unfortunately that is usually just the beginning of the legal process.  The officer will then take that statement and use it against the person.  Words out of your own mouth tend to be the most damning evidence, even if you are innocent.  The officer is not the ultimate charging authority, which is the job of the prosecutor.  The prosecutor does not have to honor any promise or assurance that the officer has made to you.

OWI: Investigative Techniques used by law enforcement

What are some of the “investigative techniques” that officers use?  There are a handful of techniques that officers use to gain evidence.  First, they often will follow a vehicle for an extended period of time to observe driving behavior.  For example, the officer is going to count how many times your tires touched the center line, or that you were “weaving within your own lane.“  After stopping your vehicle, and upon their initial approach to your vehicle, they are going to stand at your window and see what they can see, smell what they can smell, and hear what they can hear.  If they see anything that has the potential to be evidence, they are going to want to examine it.  This can mean something as obvious as open beer cans, to as subtle as a pack of cigarettes.  They are going to watch your every move while you are search for your license, registration and insurance.  The officer’s report will ultimately say that you were “fumbling around” looking for those things.  The report will also indicate “an odor of alcoholic beverage coming from within the vehicle.“  These are common phrases included in most reports.  You will next be asked to sit in the officer’s vehicle.  This helps the officer in many ways.  The officer can sit and chat with you while he’s filling out your traffic citation.  He is going to try to get you to admit you had a beer prior to driving.  If you have a passenger in your vehicle, the officer is then going to go up and ask the passenger the same questions and look for any discrepancies in the stories.  Often times, the officer will tell the passenger that the driver said things, when in fact the driver said no such things.  In this day and age, most law enforcement vehicles are equipped with video and audio capability and will capture the entire encounter.  Sometimes an officer will turn off his microphone so that he does not record what is said.  Eventually you will end up in front of his vehicle performing physical exercises and the officer will say that he could tell you were intoxicated by how you performed those exercises.

OWI: Who decides if charges will be filed?

Who decides whether someone should be charged with OWI?  Normally an officer on the scene of the traffic stop will make that determination.  That officer is the person who observes the driving and the behavior at the scene and ultimately requests a sample for blood alcohol analysis.  The arresting officer is often times the only witness the State uses in an OWI prosecution.  Before they finish their training to become a police officer, all officers are taught  the necessary testimony to obtain an OWI conviction.  In some cases, an officer does not make the final charging decision and will request that a prosecutor review the evidence.  Even if the officer told the driver that they were not going to be charged with OWI, the prosecutor can file the charge.  In every case, the prosecutor has the ultimate decision on whether to proceed with a charge and pursue it in court.

OWI: Why do some charges get dismissed?

OWI: When should you refuse the breath test?

When should you refuse the breath test?  This is a very difficult decision.  There is no universal answer applicable to all persons.  When a person provides a breath test and is over the legal limit, they are going to have their driver’s license suspended.  The length of the suspension depends upon whether this is a first, second or multiple offenses.  A person may be eligible to obtain a work permit prior to the end of the suspension.  If a person refuses to provide a breath sample, however, the length of the suspension is going to be much longer.  Any person who is employed or needs to travel by vehicle for any reasons is going to have to make the difficult decision.  You do have the right to consult with an attorney prior to making this decision at the police station.  If you request to talk to an attorney prior to providing a breath sample, the officer has to honor your request, otherwise your license cannot be suspended and they cannot use the breath test, or lack thereof, against you in court.

OWI: How long does a person lose their license when arrested for OWI?

OWI: What is a field sobriety test?