Pretrial Motions Explained

After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense attorney usually appear before a criminal court judge and make pretrial motions — arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.

Remember that most DUI cases do not reach the preliminary hearing stage. In the majority of such cases, the arraignment and pretrial hearings usually represents the first and last time the suspect will be in court, as most DUI suspects choose to plead guilty, especially if evidence of intoxication is strong.

As their name implies, pretrial motions are requests made by either attorney prior to the trial to limit the amount of evidence a jury or judge will hear. Pretrial motions are tools used by the government and the defense in an effort to set the boundaries for trial, should one take place. Pretrial motions typically address the following issues:

  1. What physical evidence and testimony can be used?
  2. What legal arguments can and cannot be made?
  3. Is there any reason that the defendant should not be forced to stand trial?

While specific possibilities are endless, following are some examples of pre-trial motions that might be made in a DUI case:

The defense asks the judge to keep out of the case (“exclude”) marijuana “joints” that the defense argues was obtained through an illegal search of the defendant’s car.

The defense argues that a confession made by the defendant should be excluded, because it was made to a police officer who failed to advise the defendant of his Miranda rights. The defense argues that Breathalyzer test results should be excluded, because the testing procedure used by the arresting officer was clearly flawed.

A pretrial motion could allow you to gain access to an arresting officer’s personnel file to determine if the officer has received any prior complaints regarding her conduct. Remember that police officers must follow very strict guidelines when obtaining evidence. The arresting officer’s personnel file may be used to show that, because the officer has a history of misconduct, it is likely that you were not properly treated. And, if so, then evidence against you could be kept out of court. Complaints that you might look for in an officer’s personnel file include those about racial bias, excessive force, false arrest, planting evidence, discrimination, harassment, or criminal conduct.

However, in order for access to a personnel file to be granted, something must have happened that led you to and your attorney to believe that the officer’s past conduct should be called into question

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.

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DUI and Background Checks

A DUI conviction, or even an impaired driving charge that does not end in a conviction, may negatively impact one’s career, particularly if an offender holds a commercial driver’s license (CDL) or is required to drive as part of his or her job.

An employer may choose to conduct background checks on current or prospective employees for any number of reasons, some more valid and legal than others. Depending on how the background check is conducted, it may expose a DUI charge or conviction. But the limits of an employer’s ability to conduct such checks, and whether or not a DUI offense should be considered in a hiring (or firing) decision, is governed mostly by state laws.

All states are subject to the provisions of the federal Fair Credit Reporting Act (FCRA), which applies to background checks performed by outside companies but not those conducted in-house. While the FCRA prohibits the reporting of criminal arrests after a period of seven years, criminal convictions (including DUIs) may be reported indefinitely. Also, reporting restrictions imposed by the FCRA only apply to jobs with a yearly salary of $75,000 or less.

However, federal courts have often ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from barring employment of individuals with convictions unless they can prove a compelling business reason to do so. Still, this interpretation of the Civil Rights Act comes into conflict with some state laws. And most applicants have no way of knowing what goes on behind the scenes when they apply for a job.

Most states allow employers to refuse employment to anyone with a conviction record and many even allow employers to refuse applicants with an arrest record, mainly due to a lack of regulations in this area. At least 14 states have legal standards requiring an employer to prove the job relevance of a given conviction, including Colorado, Florida, Kansas, and New York. But only Hawaii, Kansas, New York, and Wisconsin apply these regulations to private employers as well.

California and eight other states offer certificates of rehabilitation for employment purposes to those convicted of a DUI or other crimes, lifting some barriers to employment. California Labor Code 432.7 states that employers cannot ask about an arrest that did not result in a conviction. And if you successfully complete a probation for a DUI in California, you can file a motion to withdraw your plea or set aside the verdict; this will show in your records that the case was dismissed.

Those running for public office or applying for a professional license in the state must disclose a DUI or any conviction from the past 10 years; the same is true for direct questions on an application regarding criminal convictions.

Most states require background checks for certain types of jobs, including anyone who works with children, the elderly or the disabled. This doesn’t necessarily mean a DUI record will preclude such an applicant from consideration, but it could factor into an employer’s hiring decision as a perceived character flaw. Also, many state and federal jobs require a background check; but this may depend on the kind of job, such as those requiring a security clearance.

Commercial drivers who commit a DUI on the job, or even in their personal vehicle, are prohibited from driving in a professional capacity for a certain period of time. As of 1999, convictions for major violations committed in a commercial vehicle (including a DUI) remain on one’s CDL record for 55 years.

Roughly 20 different types of information may be included in an official background check; these may include driving records, vehicle registration, criminal records, court records, character references, neighbor interviews and incarceration records. Some of this information may be gleaned from a pre-employment questionnaire or the job application itself. While most such questions are limited to whether or not the applicant has committed a felony, some states allow much broader questions about past charges for crimes.

As a rule of thumb, it’s usually best to tell the truth; while employers may overlook the admittance of a DUI offense, being caught in a lie usually removes the applicant from consideration for the job.

But the internet has proven to be a powerful tool for more informal background checks of job candidates, including online public records and social networking sites such as Facebook. For example, a steadily increasing percentage of employers admit to using Facebook to review job candidates, which could turn up information about a DUI arrest that otherwise might not show up (maybe you or a friend commented on the arrest). In this respect, an applicant who otherwise does not consent to a background check may be subject to one without even knowing.

While it’s not always an option, often dependent on specific state regulations, a DUI offender may choose to expunge his or her record. Expungement is a court-ordered process which effectively “seals” a record of arrest or a criminal conviction.

Many states limit expungement to just arrests that do not result in a conviction. The charge or conviction is not completely “erased,” per se, but is sealed for most purposes, including most employment-related background checks.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.

General DUI Overview

A DUI arrest is always preceded by a traffic stop, whether the police officer suspects drunk driving or has stopped a motorist for an unrelated reason, such as a burned-out taillight. While the Fourth Amendment protects citizens from unlawful search and seizure, refusing to cooperate with an officer typically is not in the best interests of a stopped motorist. Nevertheless, there are still ways to protect your rights when a police officer stops you for a DUI. FindLaw’s “DUI Stop” subsection covers DUI defenses during and after a traffic stop, your rights under the Fourth Amendment, the legality of sobriety checkpoints and more.

In some states, if you have ever driven around late at night, you may have come across a DUI checkpoint. A few police cruisers might block a portion of a road and one officer will ask simple questions of each driver. Washington state does not allow DUI checkpoints as they have been deemed unconstitutional by the Washington Supreme Court.

Once the police pull you over and suspect you of drunk driving, they will most likely ask you to take a breath test. Read this article to find out whether you can refuse this test, and when it might be a good idea to refuse the test.

Police have broad discretion in determining when and whether to pull someone over, but they cannot just stop any random person and start conducting field sobriety tests. Find out the minimum standard police must satisfy before conducting a DUI stop.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.

Steps to Take When Being Pulled Over

Let’s face it, each and every driver will eventually get pulled over by law enforcement at some point in their lives. The following are a few things to keep in mind after law enforcement initiates contact.

The first thing to do is to pull over quickly and safely, letting the police officer know you understand and are complying. Use your signals and pull as far to the right shoulder as you can. Your goal is to make it clear that you understand he or she is in control. By pulling over quickly, you can also be close to the scene where the officer claims you committed a violation. This allows you to review the scene to evaluate the truthfulness of the officer’s allegation and look for potential defenses such as obstructed views.

Always be polite during traffic stops, even if the officer is aggressive. You have little to lose by being polite and a lot to lose by being belligerent. Roll down your window, turn off the engine and place your hands on the steering wheel. If it is night time, turn on your interior light. Do not reach for documentation: officers are trained to spot driver’s reaching for hidden items, or stashing items, and it is likely an officer may misinterpret your actions. You might be reaching for your registration, but for all the officer knows, you’re reaching for a gun.

If you have any suspicion that the officer is not really a police officer (e.g., you were pulled over by an unmarked car), ask politely to see the officer’s photo identification and badge. If you still are unsure, you can ask that officer to call a supervisor to the scene or you can request that you be allowed to follow the officer to a police station.

Although police officers are normally not allowed to search your car during traffic stops, it’s easy to give the officer a valid reason to search your car if you’re not careful. Once the officer shines his or her spotlight on your car, the officer is watching you closely for any suspicious movements. For instance, if an officer observes you trying to hide or throw something out of the window, the officer may legally search your car. If you appear to hunch down in your seat, the officer may reasonably believe you’re hiding something under the seat. Be calm, don’t make sudden or suspicious movements and don’t reach for anything until the officer asks you to.

If an officer has reason to believe you’re armed, dangerous, or involved in criminal activity, the officer can frisk you. If the officer has probable cause (a reasonable basis to believe that you or your passengers are involved in criminal activity), then the officer can search your car. Even if the officer doesn’t initially have probable cause, if during the stop the officer sees something in “plain view” (out in the open), then the officer is allowed to inspect it and any other objects the officer comes across can be legally seized as well. Common examples of items in plain view are open beer cans, wine bottles and drug paraphernalia.

 

Finally, an officer can search your car if you or any passenger in your car is arrested. If you are the one arrested, the police may tow your vehicle and do an “inventory” search of the car’s contents without any need for reasonable suspicion.

You should not get out of your car unless the police officer asks you to. Again, you want to avoid antagonizing the officer and communicate that you understand he or she is in control. Officers are trained to expect the worst, and if you suddenly exit the vehicle, the officer is trained to think you’re either going to fight or flee.

If an officer asks you to exit the vehicle, you should do so calmly and carefully, with no sudden movements. Exiting the vehicle may give you the opportunity to better survey the scene to verify the officer’s allegations. If the officer has a reason to believe you’re armed, he or she can pat down your outer clothing. If the officer finds something suspicious, he or she can reach in to grab the concealed object.

Let the officer do most of the talking. Don’t interrupt, don’t be argumentative, and don’t say anything that the officer can record and use against you. This means when an officer asks you questions such as “do you know why I stopped you,” you should respond “no.” If the officer asks you “do you know how fast you were going,” you should simply answer “yes.” Officers are trained to let you incriminate yourself by letting you admit to violations or admit that you were careless or negligent. If required, give noncommittal responses such as “ok” or “I see.” Often the best course is simply not to respond, silence is not an admission of guilt and cannot be used against you. Be polite, but don’t give the officer anything — it’s his or her job to prove your guilt.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.

Child Pornography Under State and Federal Law

Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor (under the age of 18). Increasingly, child pornography laws are being utilized to punish use of computer technology and the Internet to obtain, share, and distribute pornographic material involving children, including images and films.

Federal laws addressing child pornography are:

18 U.S.C. § 2251- Sexual Exploitation of Children

(Production of child pornography)

18 U.S.C. § 2251A- Selling and Buying of Children

18 U.S.C. § 2252- Certain activities relating to material involving the sexual exploitation of  minors (Possession, distribution and receipt of child pornography)

18 U.S.C. § 2252A- Certain activities relating to material constituting or containing child  pornography

18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States

A violation of federal child pornography laws is a serious crime, and convicted offenders face fines severe statutory penalties. First-time offenders found guilty of producing child pornography may be sentenced to fines and between 15 to 30 years in prison. Offenders may be prosecuted under federal, state or both jurisdictions for any child pornography offense.

A federal child pornography crime such as possession, manufacturing, distribution, or “access with intent to view,” typically involves the illegal activity crossing state lines such as on the Internet or through the mail. While federal authorities may be involved, state prosecutors may also pursue child pornography prosecutions. Sentences vary by state, but most will require a convicted defendant to register as a sex offender for life.

If you have been convicted of a child pornography-related crime (federal or state), your sentence will likely include mandatory sex offender registration. Upon conviction, a sex offender will be required to register his or her name, address, and past offenses into a registry for monitoring and tracking offenders.

It is both a federal and state crime for a person to knowingly fail to register or update his or her registration as required by law. You can gain access to the National Sex Offender Public Website (NSOPW) that includes links to the registry for all 50 states and the District of Columbia.

Some have argued, rather unsuccessfully, that child pornography should be protected under the First Amendment to the United States Constitution. However, courts have consistently found that images of child pornography are not protected speech under the First Amendment and are therefore illegal.

If you come across a website that you believe is depicting child pornography, the first step is to contact your local law enforcement agency. While many of these crimes involve federal law, local authorities will know where to route the investigation. You can also contact:

Federal Bureau of Investigation (FBI)

National Center for Missing & Exploited Children (NCMEC) CyberTipLine

Executive Office for the United States Attorneys (EOUSA)

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.