Mississippi Criminal Defense Law Blog

DUI Consequences in Mississippi

Kevin W Frye — Tue, 01 Jul 2008 17:06:12 GMT

The Mississippi Bar publishes a brochure titled "DUI Consequences: Student Guide" which is available online as a pdf document, here. Being titled "Student Guide" I suppose that it is distributed to high schools and colleges throughout Mississippi. My opinion of the brochure is that it is not entirely accurate, in that it omits important information, and the tone and imagery (handcuffs and fingerprints) are both a bit harsh. It reads more like scary propaganda than an informative document.

I can't imagine practicing DUI lawyers believe that scare tactics will have any impact on under-age alcohol consumption. I'd rather the Bar provide information that is current and accurate, and leave the scare tactics to another organization. I have previously posted information on DUI consequences and penalties in Mississippi, some of those posts are below.

DUI Penalties in Mississippi

Zero Tolerance for Minors

"Hardship" Driver's License

What are the Alcohol Rules on Campus - I'm Confused...?

A DUI Lawyer: Kind of...

Mississippi Criminal Law Court Links

Kevin W Frye — Thu, 26 Jun 2008 08:22:32 GMT

Below are regional Mississippi criminal law court links which you may find useful:

Lafayette County Circuit Court

Oxford Municipal Court

Lafayette County Justice Court

Lafayette County Drug Court

Mississippi Supreme Court

Mississippi Court of Appeals

United States District Court for the Northern District of Mississippi

Criminal Defense Law Blog Survey

Kevin W Frye — Wed, 25 Jun 2008 10:10:58 GMT

Jamie Spencer over at Austin Criminal Defense Lawyer is compiling a new survey of active criminal defense law blogs. I'll post a link to the survey as soon as he's done.

Jury Duty: Not Always Easy

Kevin W Frye — Tue, 24 Jun 2008 11:24:20 GMT

An interesting story today in the Commercial Appeal discussing the difficulties of jury duty in violent cases:

"It's like a nightmare because you only see that in a scary movie and then all of a sudden you get in a trial and this same type of scene comes to real life," said Leake, 43, who works for an air-conditioning company. "You can't believe somebody can actually do somebody like that. Some of the people on the jury were traumatized. One lady broke down and cried. She cried a lot."

When the trial is over and the verdict is in, jurors are sent home to resume their lives with little thought given to how their experience in a gruesome or stressful trial might affect them later.

Post-traumatic stress disorder in the form of nightmares, obsessive thoughts, depression and social withdrawal is a real possibility, experts say, and some jurisdictions around the country have begun addressing the issue.

Courts in parts of Washington state, Oregon, Arizona, Michigan, Ohio, Minnesota, New York and, most recently, Texas offer post-trial counseling and debriefing services for jurors who have been on difficult cases.

The full article can be found here. No doubt both criminal and civil cases can sometimes be difficult for jury members, as well as those involved in the court system on a daily basis. But, I would argue that the average citizen has no more solemn and critical obligation than to serve on a jury when called. In fact, each letter that leaves my office bears a stamp which reads "Jury Duty: Serve With Pride." I recommend reading the press release published by the United States Postal Service when they introduced the stamp. An excerpt:

With this stamp, the U.S. Postal Service calls attention to the importance of jury service, an essential obligation, shared by all eligible citizens, that is a cornerstone of democracy in the United States. By showing a diverse group of 12 representative jurors in silhouette, art director Carl T. Herrman and stamp designer Lance Hidy emphasize that, under the U.S. Constitution, the American jury system guarantees citizens the right to a trial by a jury of their peers...

Generally, in criminal cases, 12 jurors stand between the accused and the power of the government. Unless the government convinces a jury of the accused person's guilt - beyond a reasonable doubt - it may not deprive a citizen of life, liberty or property. In civil cases, a jury represents the conscience of the larger community, ruling in favor of either of the opposing parties in a dispute.

Aggravated DUI

Kevin W Frye — Mon, 23 Jun 2008 09:42:02 GMT

I have previously written about DUI Penalties in Mississippi and Zero Tolerance for Minors, but those posts did not discuss the felony crime of "aggravated DUI" and its accompanying penalties. A person is charged with the felony crime of "aggravated DUI" when they operate a motor vehicle in violation of the standard DUI statute (Miss. Code Ann. Sec. 63-11-30), and additionally, when they negligently cause the death of another person or mutilate, disfigure or permanently disable or destroy the tongue, eye, lip, nose or any other limb, organ or member of another person. In other words, if a DUI related accident results in the death or injury of a passenger, pedestrian, or person in another vehicle, the offending driver may be charged with an "aggravated DUI."

Each conviction for the felony of "aggravated DUI" carries a prison term for a period of time of not less than five (5) years and not to exceed twenty-five (25) years. If convicted for more than one count of aggravated DUI, the court may choose to run the prison terms concurrently (i.e. at the same time, so that two 10 year sentences equal 10 years) or consecutively (i.e. one term followed by the other, so that two 10 year sentences equal 20 years).

Should I let the cops search my car?

Kevin W Frye — Sun, 22 Jun 2008 16:23:01 GMT

One of the questions I hear most as a criminal lawyer is: "[i]f I get pulled over, should I let the cops search my car?"

The realistic answer to this question is that it depends on the circumstances. Although generally sound advice is a simple "no." For other opinions, I decided to see what advice my fellow criminal law bloggers have given. Below are excerpted answers to the question with a link to the full blog post.

Can I Search Your Car? by Robert Guest

First, cops will often try and trick you into granting permission to search your car. You should NEVER let the police search your vehicle.

Why? The cop might be crooked, and your friends might be drug users. If you are innocent never let the police search. Believe or not if the police find your cousin's half burnt joint in the back seat, they aren't going to let you go.

Also, look out for this typcial trick the cops use to get permission.

Cop- "You don't have any guns, meth, hand grenades, or dead bodies in your car do you?"
You- "No."
Cop- "Then you don't mind if I search your vehicle."
You- "Actually I do mind. Am I free to go now?"

See the trick. The cop is implying that only a person with something to hide would deny permission to search. He wants you to say "No, I don't mind" before you have a chance to think about it." In this case the correct answer is "Yes I do mind".

Cops rarely ask for permission to search in a straight forward manner. They often backdoor their search request because they don't care about informing you of your rights. They want to search.

Why You Should Never Consent To Any Police Search... by Jamie Spencer

Generalized consent to search a car in Texas apparently includes having to endure the officer choosing to move it to a different location to remove the gas tank...

Wow. First we have the court affirming that a “basic search” can include looking under the car, and lifting the carpet??? Does that make you want to say “go ahead and search my car?” You don’t have to be hiding dope to find that objectionable...

Is there any wonder that criminal defense lawyers advise folks to not submit to any search? No matter what the circumstances are? OK, do you have 90 minutes to waste while a cop tears your car apart?

I'm back!

Kevin W Frye — Tue, 17 Jun 2008 12:56:39 GMT

Alright, I'm back from a fun summer vacation, with a tan, and will be posting on criminal law again in the next few days! In the meantime, check out www.OxfordMississippi.com.

Hinds County District Attorney & the Death Penalty

Kevin W Frye — Thu, 05 Jun 2008 13:24:39 GMT

The Hinds County District Attorney has announced his intention to seek the death penalty more often. This is reported by the Clarion Ledger today as follows:

Jackson's growing homicide rate has prompted Hinds County's new district attorney to do something that hasn't been done in at least two decades - seek the death penalty often in capital murder cases.

Robert Shuler Smith said Wednesday he believes the death penalty is a crime deterrent. There have been 29 homicides in Jackson this year; there had been 18 at this time last year.

"If someone thinks that you can commit murder in Hinds County and either walk away from the crime or not face the death penalty, I believe that weakens the strength of our laws," he said. "The death penalty should be imposed more frequently or more often."

Of course, Hinds County includes Jackson, which is known in the region as a high crime city. I have a number of problems with this announcement, not the least of which is reflected by a law enforcement statement buried at the end of the Clarion Ledger story.

Jackson Assistant Police Chief Lee Vance said he believes society needs the death penalty but does not think it deters crime. He pointed to the recent execution of Earl Wesley Berry, a man convicted of kidnapping and beating a woman to death in 1986, as an example.

"The length of time that goes by before the (death) sentence is carried out takes away any effectiveness it has as a deterrent," he said.

"It would be a deterrent if a person was contemplating committing a crime and knew that if he was caught and convicted he would be put to death in three months, not in 20 years."

Every criminal law course teaches that there are four traditional concepts or theories behind criminal punishment: 1.) retribution; 2.) deterrence; 3.) rehabilitation; and, 4.) incapacitation. I certainly agree with Assistant Police Chief Vance that the deterrence theory is of no consequence when the time lag between the sentencing hearing and the imposition of the sentence spans decades. I'm not a fan of the death penalty, but if the DA is going to be its champion why not place it under the appropriate theory of punishment - retribution.

Juveniles and Life Without Parole Sentences in Mississippi

Kevin W Frye — Mon, 02 Jun 2008 10:41:17 GMT

Here is an interesting post on the Sentencing Law and Policy blog which begins:

Most juveniles sentenced to life without the possibility of parole in Mississippi are black, a disparity that underscores the need to reform sentencing guidelines, according to a report by the NAACP Legal Defense and Educational Fund. Poverty, lack of education and broken homes are among other traits shared by youngsters sentenced to spend the rest of their lives behind bars, the report said.

"Anything you say WILL be used against you"

Kevin W Frye — Mon, 02 Jun 2008 10:01:52 GMT

The above quote from an interesting post by Charles Kenville on the Iowa Champion advising that "under no circumstances do you talk to the police." More from the post:

The reasons people decide that they will talk to the police are varied. People are taught from a young age to obey police. They think that if they don't talk they will "look guilty". Some people, frankly, are guilty but think they can "out-smart" the officer. Whatever the reason, they talk to the police. This is a bad, bad, bad idea. The Miranda warning says it all. Anything you say WILL be used against you. There is no maybe about it. In all of my years of criminal law practice, if there is one thing that I have learned, it is that a defendant's statements to the police are the most powerful piece of evidence a prosecutor can have. DNA is fine, but nothing really makes a jury perk up their ears as a defendant who "confessed".

The full post, including eight reasons not to talk to the police, can be found here. I agree with Charles that talking without the benefit of counsel is ill-advised. One additional thought - I can think of many circumstances where I have been retained during the investigative stage of a case and have been able to negotiate a positive outcome with the police for my client. Never underestimate the value of having an experienced advocate to speak for you and guide you through difficult circumstances.

Felony Convictions & Long-Term Penalties (i.e. The Right to Vote)

Kevin W Frye — Thu, 29 May 2008 11:12:40 GMT

I found an interesting post on Underdog by Jon Katz describing a case handed down this week, U.S. v. McCarson. An excerpt:

When convicted felons are around guns and unlawful drugs, they risk exposure to substantial incarceration time. Lewis D. McCarson learned that when federal marshals came to his girlfriend's home with an arrest warrant for him. U.S. v. McCarson, 2008 U.S. App. LEXIS 11234 (D.C. Cir. May 27, 2008). Other than the arrest warrant, all went well for McCarson until he told the marshals that he wanted to wear his black pants, coat, and shoes on his way out the door. The marshals went to the bedroom for those articles of closing, and claim they then saw a bag of marijuana and a handgun in plain view and cocaine by the time they further opened the drawer to retrieve the handgun.

One lesson learned here: McCarson's apparel request to the marshals boomeranged back with the rank smell of feces. Because the marshals had an arrest warrant but no search warrant, one is left to wonder whether they would have bothered doing anything to find the gun and drugs had McCarson just agreed to leave the home in his underwear...

The full post, including Katz's lessons number two and three, can be found here. Staying on the same topic - rights denied to convicted felons - here at home. The Northeast Mississippi Daily Journal published an article yesterday on felony convictions and voting (sure to be a hot topic in this election year). The article begins:

When asked about his favorite candidate in this year's presidential race, 31-year-old Steven Hubbard didn't hesitate to say, "Obama's my man."

But that's where his political voice ends. Hubbard, a convicted felon from Tupelo, is one of nearly 150,000 inmates and convicted felons in Mississippi who've lost their right to vote, nearly 7 percent of the state's adult population...

...Mississippi has a procedure that would allow Hubbard to have his rights restored. But with the presidential election less than six months away, some people have begun to wonder about the effect of having so many voting-age Americans disenfranchised, particularly black voters.

According to the Sentencing Project, a nonprofit criminal justice organization engaged in research and advocacy, 48 states and the District of Columbia prohibit inmates from voting while incarcerated on felony offenses. Only Maine and Vermont permit these inmates to vote. Thirty-five states prohibit felons from voting while they are on parole.

The full article can be found here. If you read the full article, you'll note that it presents points of view from persons both for and against expanding the right of a convicted felon to vote. The article quotes one person against expanding voting rights, he says:

"We don't let everyone vote - not children, not non-citizens, not the mentally incompetent. There are certain minimum and objective standards of trustworthiness, loyalty and responsibility, and those who have committed serious crimes against their fellow citizens don't meet those standards."

I couldn't leave this statement without some comment. Equating convicted felons to children, non-citizens or mentally incompetent persons is simply ridiculous - I know that we Mississippians can all think of examples (very recent examples) of intelligent people who are also convicted felons. I also think this guy assumes too much when he implies that all persons who are NOT convicted felons are trustworthy, loyal and responsible. Not true. I see no rational relationship between a felony conviction and responsible voting, they simply have nothing to do with each other.

Mississippi Court System

Kevin W Frye — Mon, 26 May 2008 11:34:58 GMT

I am often asked how the Mississippi court system works - people are curious as to what courts we have in Mississippi and what court handles what type of case. What follows is a brief outline.

Municipal Court: Associated with a municipality (for example, Oxford Municipal Court) this court has jurisdiction over city traffic violations, misdemeanor crimes (including DUI First and DUI Second) and municipal ordinances.

Justice Court: Jurisdiction over "small claims" civil cases where the amount does not exceed $2,500.00 (claims for recovery of debt, damages or personal property) and misdemeanor crimes and traffic violations that occur outside of a municipality. For example, a DUI First received in the county rather than the city would be handled by the Justice Court. The Justice Court may issue search warrants and may hold bond hearings and preliminary hearings in felony criminal cases.

Chancery Court: Jurisdiction over disputes in matters involving equity: domestic matters such as divorce, child custody and adoptions; guardianships and conservatorships; wills and estates; and, disputes involving title to real property. The Chancery Court generally hears cases without a jury.

Circuit Court: Jurisdiction over civil cases where the amount exceeds $2,500.00 (unless there is a County Court) and felony criminal cases. The Circuit Court also hears appeals from Justice Court and Municipal Court. Typically, cases in Circuit Court are decided by a jury.

Court of Appeals: The Court of Appeals hears cases from throughout the state which have been assigned to it by the Supreme Court. Court of Appeals judges are elected to eight-year terms.

Supreme Court: The Supreme Court is the court of last resort in Mississippi and it hears appeals from the Chancery and Circuit Courts, and may also hear appeals from the Court of Appeals. Supreme Court justices are elected to eight-year terms.

For those interested, more detailed information can be found at the State of Mississippi Judiciary website, here.

New Office Post/Interesting DUI News

Kevin W Frye — Thu, 22 May 2008 11:13:35 GMT

I've been busy this week moving in at my new office location - you can now find me just north of the Square at 428 North Lamar (convenient and ample parking available!). While I continue to get organized here I have little time for new posts - so, check out these interesting stories from my blogging colleague. I'll be back in full swing next week.

Lawrence Taylor explains that "9% of You Drove 'Drunk' Last Month". He then goes on to question DUI laws and their ~~effectiveness~~ (ineffectiveness). Interesting read. Lawrence also weighs in with a long post on an important development in Arizona, where a judge has dismissed 49 DUI cases due to the failure of the Intoxilizer 8000 manufacturer (CMI) to turn over programming code for the machine to defense counsel. See the AP story here.

Underage Drinking: Risk Factors

Kevin W Frye — Wed, 14 May 2008 21:23:29 GMT

I just ran across this video that discusses risk factors relating to children and underage drinking on Slate (one of my favorite news oriented websites). While the video didn't provide me with any new information on the subject, I thought it was interesting nonetheless. As I was watching, I was thinking about the success of the BASICS alcohol counseling program at Ole Miss - see my previous post on the topic here.

Mississippi Criminal Defense Law Blog in the News

Kevin W Frye — Mon, 12 May 2008 18:11:06 GMT

Last week the Oxford Eagle's Alyssa Schnugg raised the profile of this blog and others with her story on blogging. Over the last two days, various regional news outlets have published versions of her story: see the Clarion Ledger; the Natchez Democrat; WREG in Memphis; Fox Ten in Mobile; and WXVT in Greenville. Thanks again to Alyssa!

A DUI Lawyer: Kind of...

Kevin W Frye — Sun, 11 May 2008 22:38:32 GMT

I stopped in Oxford's Uptown/High Point Coffee this evening and found myself in a depressing conversation about a particular Mississippi lawyer and DUI defense. An acquaintance I often see in Oxford, let's call him Mr. X, asked me what I do for a living. When I told him I was a lawyer, and that I practice criminal law, he explained his DUI defense experience to me. Without revealing information about Mr. X or his lawyer, suffice it to say he was not happy with the representation.

An aside. The reality of criminal law practice is that some clients are understandably disappointed in the outcome of their cases - being accused of a crime is stressful, and a conviction or guilty plea is without doubt a difficult experience. So, it isn't abnormal to hear complaints about criminal defense lawyers. But, Mr. X's story stood out to me as something different from the normal frustrations and disappointments experienced by those in the criminal law system.

Interestingly, Mr. X didn't protest "I was innocent" or explain how the court system was wrong. Instead, he explained the poor representation he received from his lawyer and related the enormous fee he paid for that representation. The poor representation included the lawyer not knowing the details of Mr. X's DUI arrest when he appeared in court and the lawyer disparaging local law enforcement in open court, both to the obvious detriment of Mr. X's defense. The fee Mr. X paid for the "representation", to my knowledge, is more than double the fee charged by most lawyers who practice DUI defense in the Oxford area.

I've been reflecting on this conversation for a few hours now, and I'm still not sure what to say. I related earlier that I found the conversation depressing. That's because I do not believe that Mr. X's experience with his lawyer was typical. The lawyers I practice with in Oxford are, for the most part, skilled and conscientious advocates. They are professionals, and they represent their clients to the best of their ability. (I trust that they would say the same thing about me.) I guess all I can say is that Mr. X deserved better.

A DUI Story: Kind of...

Kevin W Frye — Sat, 10 May 2008 11:08:33 GMT

I've heard numerous Oxford DUI stories over the years, from friends, strangers and clients, but this DUI tale is unique. Thanks to Lawrence Taylor of the DUI Blog for bringing Jeff Brown's story to our attention. Jeff relates in this video documentary (interesting but a little long) his experience of receiving a DUI while walking a bicycle and his journey through the legal system in Ohio. Jeff also cites a number of statistics and attacks MADD (more on MADD attacks in a future post). Like I said, the story is interesting, but I don't vouch for his statistical accuracy. Enjoy!

Professional Property Management

Kevin W Frye — Fri, 23 May 2008 12:33:13 GMT

Following a client request, I have decided provide professional property management as an additional service within my legal practice. Asset management is a part of my legal practice, and I know that my legal training and experience as an attorney will be valuable to clients with property management needs. My property management service will include tenant relations and rent collection -- additional professional services will be available as needed.

Added Benefits for Clients:
One of my friends, Mark Pillault, owns and operates Oxford Remodeling Company and is known in the area for high quality work - visit marimekko or Orion Fitness to see his craftsmanship on display. Mark has agreed to be available as needed for routine maintenance and minor repairs, and will also contract major repairs and remodels. Lawn maintenance is also available through another associate.

See my website for more information, and please call me if you would like to discuss your asset and/or property management needs.

(Thanks for indulging this side topic - back to criminal law tomorrow!)

"Pedestrian" at OxfordMississippi.com

Kevin W Frye — Thu, 08 May 2008 09:43:57 GMT

I've got a new post up today over at OxfordMississippi.com relating a story from my childhood, a decent story I think, and discussing the perils of being a pedestrian in Oxford. Enjoy!

Mississippi Criminal Defense Law Blog

DUI Consequences in Mississippi

Mississippi Criminal Law Court Links

Criminal Defense Law Blog Survey

Jury Duty: Not Always Easy

Aggravated DUI

Should I let the cops search my car?

I'm back!

Hinds County District Attorney & the Death Penalty

Juveniles and Life Without Parole Sentences in Mississippi

"Anything you say WILL be used against you"

Felony Convictions & Long-Term Penalties (i.e. The Right to Vote)

Mississippi Court System

New Office Post/Interesting DUI News

Blogrolling

Underage Drinking: Risk Factors

Mississippi Criminal Defense Law Blog in the News

A DUI Lawyer: Kind of...

A DUI Story: Kind of...

Professional Property Management

"Pedestrian" at OxfordMississippi.com