Category Archives: Civil

Do Not Speed in Virginia – Professional Baseball Player Learned the Hard Way

Jayson Werth, of the Washington Nationals, apparently does not read my blog. If he had read my earlier article, he would have known that Virginia does not take kindly to speeders. If they’ll lock up a car writer on a test drive, you know they will be happy to send a message to a rich ballplayer driving his Porsche 50 miles over: 105 in a 55. It also may not have helped that he told the cop he was “pressing his luck”, according to the officer’s testimony.

Now, I have major reservations about the court’s findings in this case. Apparently the testimony alleged that the cop accelerated to 105 MPH, and that Werth was still pulling away. “Still pulling away” are frequently used by cops to bolster their case when they don’t actually pace someone for an appreciable amount of time. Apparently this all happened within six tenths of a mile. It’s strains credulity that the cop gunned it up to 105, and that Werth was still pulling away, yet still saw the officer’s lights and pulled over, in that short of a period of time. Theoretically possible, but I doubt the cop was also driving a Porsche. Werth admitted going way to fast, but testified he could’ve been doing 90, but not much more.

That kind of speed is considered reckless driving in Virginia, and it’s not unusual for judges there to give out jail time for first time offenders. Werth was sentenced to 10 days in jail, with another 170 suspended. He will probably serve only 5 days, and only if he is unsuccessful on his appeal. It’s not a good idea to speed anywhere, but for the love of dog, don’t speed in Virginia!

http://www.nbcwashington.com/news/local/Nationals-Right-Fielder-Jayson-Werth-Found-Guilty-of-Reckless-Driving-in-Virginia-284892741.html

CNN Wants to Remind You it is Legal to Record Officers

CNN, as part of their Ferguson coverage, did a video piece on whether it is legal to record police officers. Yes, yes it is…

In the words of Jeffrey Mittman, the legal expert they spoke to, “you have an absolute right to make a document, a recording, of interactions with a government official.” He goes on to say it is improper for an officer to suggest otherwise. It was an issue with previous Ferguson protests where officers repeatedly told people to stop recording. People cannot physically interfere with an officer’s investigation, but merely making a recording does not do that. That’s a Constitutional right under the First Amendment.

http://www.cnn.com/video/api/embed.html#/video/us/2014/11/19/erin-dnt-sidner-police-mistrust-ferguson.cnn

Steve Lehto Shares Tips on What to do If You Get Pulled Over

Blogger Steve Lehto, an attorney from Michigan shares some pointers in his latest column: http://oppositelock.jalopnik.com/how-to-reduce-the-odds-of-being-ticketed-during-a-traff-1645604557

I would add, be exceedingly polite. I doubt anything makes as big a difference on whether you are getting ticket, and what deal you get at court, than how you treat the cop.

More on the Police Practice of Seizing Property

Yesterday I discussed the growing practice of property forfeitures by law enforcement- even when there is not evidence to support an arrest, and how those seizures can be challenged. I was inspired by a video from John Oliver’s This Week, Tonight, that posted on Huffington Post. Yesterday, Forbes.com and Yahoo did their own article, also referencing the John Oliver video. Their article is worth a read, as well. And here is a link to the John Oliver bit, if you’ve got 15 minutes:

 

What Can You Do If Cops Take Your Stuff, Even If You Didn’t Commit a Crime

Law enforcement forfeitures are on the rise across the country. Cops see forfeiture as an easy way to enhance their bottom line, or to pick up some toys that they can’t otherwise get approved in their budgets. And in many State’s, the agency that does the forfeited often gets to keep the majority of the property seized, which sadly can incentivize some law enforcement agencies to be too aggressive in their seizure policies. The more they grab, the more they get to keep, and that’s a recipe for abuse of the system, especially because it is difficult to for people to fight the forfeitures. We’ve talked about the risk of abuse before on Crimcourts. John Oliver recently did a great take on the issue on “This Week, Tonight,” which is worth the 15 minutes to watch.

However, it is not impossible to fight a forfeiture. You have a right to challenge a forfeiture in court, and should talk to an experienced attorney right away. Cops will attempt a forfeiture even when the evidence doesn’t support it. They will claim a suspicion that a crime is being committed, based on their ‘training and experience’, and presumptively seize the property. However, a hunch isn’t enough to prove the case in court. The must demonstrate criminal activity by a preponderance of the evidence, and convince a jury of it. If the cops do try to seize your property, you should definitely exercise your right to fight the forfeiture.

Florida actually provides several different stages of challenging a forfeiture, and there are time considerations, which mean you should retain an attorney to help you as soon as possible. First, there are several technical filing requirements the state must follow before a forfeiture will be granted. The person who’s property is being seized has a right to a preliminary hearing, that means if they state is holding your property, they must demonstrate to a court why they should be permitted to hold it. And finally, the person has a right to make them prove their case to a jury at trial, and all of the defenses available on a criminal charge can be argued, as well as some particular to seizure cases. It can be a long, arduous process, but one that may be fruitful to follow through on.

If your property has been seized, you should contact me or another expereinced attorney right away.

Criminal Law  Attorney Spencer Cordell https://www.facebook.com/crimcourts

Criminal Law Attorney Spencer Cordell
https://www.facebook.com/crimcourts

The Cop Who Arrested Bengal Sam Montgomery Was Fired

Bengals Defensive Lineman Sam Montgomery was arrested a couple months back in South Carolina; his only offense speeding. As we’ve discussed before on Crimcourts, that’s not enough for a criminal charge in Florida, as when Dodger Yasiel Puig was arrested for high speed on Alligator Alley. However, speeding alone can bring a reckless driving charge in Virginia, and that will land you in a jail for a few days, if you get popped in a town that’s far enough away from civilization. Apparently, arrest for speed is within an officer’s discretion in South Carolina… and that’s not what got the trooper in hot water.

Sam Madison Arrest Video

Sam Montgomery Arrest Video

The trooper ended up losing his job for unprofessionalism. The video is jarring. He asked Montgomery if he was military, and when Montgomery responded that he was in the NFL. As soon as Madison told him that he played football, he put him under arrest, apparently the fact that he plays in the NFL made him more arrestable. It actually goes down from there, as the trooper pulls out his taser and threatens to use it on Montgomery. Montgomery, to his credit, is nothing but polite with the trooper.

I don’t think Montgomery got arrested for being in the NFL; I think the cop just had a personal policy for arresting people, as he says, “25 over, you get arrested.” I don’t think he needed to threaten a Taser: Madison was as compliant as anyone I’ve ever seen stopped. And while the officer has the discretion to arrest, it should only be reserved for special circumstances, not mere speed (perhaps extreme speed, or someone who doesn’t have their license or ID on them). An arrest escalates the tension of the encounter. It is substantially more taxing on resources, as it involves jail personnel, booking, and it takes the trooper off of his patrol probably at least a few hours each arrest. All over a $300 ticket. It’s not necessary to arrest someone for a misdemeanor more of the time, much less for a simple ticket.

Also, I’m biased. I’m a Bengals fan… though Montgomery is not projected to end up making the team.

Judge Makes Interrupting Lawyer Produce a Training Video

A Federal Judge in Iowa found that an attorney was deliberately making excessive objections during depositions, and as a sanction, has ordered that attorney to produce a training video for lawyers, explaining why the tactic is improper. She and her firm are contesting the sanction… natch.

I guess the takeaway is, don’t object to much. Well, really, it’s don’t be a jerk. Object when it’s prudent, but not merely to obstruct the process. Though, Florida courts frown on “standing objections”, so the baseline is low for when repeated objections need to be made.

http://www.nbc-2.com/story/26210251/objection-interrupting-lawyer-gets-rare-sanction