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I am a criminal defense lawyer practicing in Rhode Island.  I handle all types of criminal cases, including, DUI, domestic violence cases, drug case, sex cases just to name a view. 

Tuesday, July 29, 2014

United States Surpreme Court Decision WIll Effect DUI and Other Criminal Cases

    In a recent United States Supreme Court case, Navarette V. California, the court in a 5-4 decision greatly expanded the ability of the police to pull a motorist over in a DUI or other criminal investigation based on an anonymous tip.  The Supreme Court held that a police traffic stop based upon a 911 call complied with the Fourth Amendment Search and Seizure requirements because under the "totality of the circumstances" the police officer had a reasonable suspicion that the driver was intoxicated.
    As stated in the scathing dissent by Justice Scalia, this opinion "serves up a freedom-destroying cocktail."  I completely agree with Justice Scalia.  This case will now allow for the reliance by police officers on anonymous 911 reports of traffic violations to conduct a traffic stop and further search of the vehicle and person. Additionally, this decision allows for a reasonable suspicion of drunkenness based upon a single instance of careless or reckless driving.
    Justice Scalia, who is often seen as a conservative by many, has continued to be an advocate for fundamental fairness in criminal and DUI cases.  Based on the majority's opinion, anyone at any time can have someone pulled over by the police based on a phone call.  A jealous ex-wife, a former business partner or an employee can now just make an anonymous phone call and have anyone that they may not like pulled over by the police for no reason.  This can be extremely unfair in drunk driving cases.
    For instance, an individual may notice that someone had one or two drinks with dinner and then makes a phone call saying they see a motorist driving erradically.  When the police stop said motorist they will likely smell the alcohol and jump to the conclusion that the individual must have been drunk driving.  This person, even if he eventually passes a breathalyzer test, will have been pulled over, detained, brought back to the police station (sometimes for hours) and have had their car towed because someone may have had a grudge against them.  The person with the grudge never has to worry about their accusation coming back on them because it was just an anonymous phone call.
    This decision does not completely abolish the needed corroboration of an anonymous tip.  Defendants can still argue that their case may not have fallen under a 911 call or defendants can still argue that Rhode Island's Constitution goes further than the United States Constitution which still disallows stops based upon an anonymous tip.

    For more information regarding criminal cases or DUI cases please visit my websites at www.rhodeislanddefenselawyer.com or  www.ridrunkdrivingattorney.com..

Sunday, July 13, 2014

New Gang Law Punishes Based On Affiliation Not Actions

The Rhode Island General Assembly recently enacted RIGL 12-19-39.  This legislation can be categorized as "feel good" criminal legislation dealing with gangs. 

The new law adds a consecutive ten (10) year sentence to any crime if it is considered gang related.  Clearly, the punishment is based solely on an affiliation and not based on criminal actions.  The interpretation of what a gang constitutes is not clear and can be subject to many different interpretations.  In addition, this law can clearly be used in a prejudicial manner.  Groups of friends in the affluent suburbs may not qualify as a gang while another group of friends in the city may be construed as a gang.  Almost no towns in the rural areas have specified gang units of the police to identify gangs in their areas.  Conversely, many of the police departments in the inner city are quick to label all young adults as being associated with certain gangs.  The legislation at hand will punish inner city defendants with a much more disproportionate sentence than similar individuals living outside of the inner city.  For instance, a group of individuals in the inner city who are arrested for a narcotics nuisance (a place commonly used for use of illicit drugs) would be looking at a sentence of fifteen (15) years while a similar group in the outlying rural areas would only be looking at a maximum of five (5) years. 

Another problem with this legislation is the challenges it will create when trying a gang related crime in a courtroom.  This legislation states that the gang's  primary activities would involve the commission of criminal or delinquent acts.  This may bring into evidence  numerous "bad acts" or crimes that a defendant is not involved in to prove that the gang that he is alleged to be in qualifies as a gang under the statute.  The introduction of this evidence may make it impossible for a defendant to receive a fair trial on a charge he is facing based on unrelated crimes that he was never involved in.  In short, if a jury hears that a certain gang is involved in drugs and prostitution that evidence may be admissible at a defendant's felony shoplifting charge even though that defendant was never involved with drugs or prostitution. 

It is indisputable that gangs are a problem in Rhode Island.  However, "feel good" legislation such as RIGL 12-19-30 as passed by the Rhode Island General Assembly casts a net that is too wide and will often lead to innocent people being convicted of charges they may not have done in addition it will lead to greater sentences for people that may not deserve them. 

For more information regarding criminal defense please go to my website at www.rhodeislanddefenselawyer.com .

Tuesday, July 8, 2014

Rhode Island DUI Law Harsher But Fairer

This session, the Rhode Island General Assembly passed and the Governor signed into law new amendments to the already strict Rhode Island DUI law.  Effective January 1, 2015, convicted DUI offenders with a BAC at 0.15 or above, repeat DUI offenders and DUI offenders who have repeatedly refused BAC tests will be mandated to install interlock devices in their vehicles.

However, this new law does address Rhode Island's long-term need of a hardship license. Rhode Island unlike Massachusetts does not have what many refer to as a "hardship" or "Cinderella" license.  Many people in the state of Rhode Island who receive a DUI or Refusal conviction are almost certain to lose their jobs because of the impossibility of getting to work and from work.  Many people that live in rural areas of Rhode Island do not have the benefit of public transportation therefore a conviction makes them unemployable. This new law gives judges the discretion to allow first time DUI offenders to drive to and from work if they have installed an ignition interlock system in their vehicle.  This law only allows a temporary license with limited times for the sole purpose of allowing employment.

Now more than ever,  it is important to hire a Rhode Island lawyer who concentrates in the area of Drunk Driving and criminal law.  These new laws can be helpful but also can lead to more serious penalties.  Lawyers who do not regularly practice in the DUI area may not be as  well versed in these laws and their nuances.

The Law Offices of Michael J. Zarrella has concentrated on criminal defense and DUI defense for 20 years.  Call him now at (401)523-5271 or visit his website at www.rhodeislanddefenselawyer.com or  www.ridrunkdrivingattorney.com..

Tuesday, July 1, 2014

New DNA law allows DNA to be taken from the wrongfully accused.

Individual Freedoms Take Another Hit.

This week Governor Chafee signed a bill that requires anyone arrested for a violent felony have a DNA sample taken from them.  The old law required that DNA samples be taken from only those people that were convicted of a felony.  This new law will allow the police to take DNA from wrongfully accused people.  The logic in the law is flawed.
The idea that an individual would have to give his or her DNA after a conviction is based on the premise that those people lost certain rights when they committed the crime.  Under the new law, the police just need to arrest a person to get their DNA. The criminal case does not even have to be charged.  The police need to merely make an arrest to obtain a person's DNA.  This gives the police a unfair tool in getting people's DNA.  
The proponents of the law will argue that it may help solve crimes.   If that is the case,  why stop there? People that are convicted of lesser crimes may pose more danger than people that are wrongfully accused of a serious ones. In addition, DNA is not like photos and fingerprints, those items can be destroyed or sealed.  Rather,  DNA goes into a national data base and likely can never be taken out of that data base.  There are supposed to be provisions to have the DNA taken out the database, but it often will not happen.  If the cases is dismissed and the court orders an expungement it might come off,  but under Rhode Island law not all dismissals can be expunged.  In addition, many defendants that can have their case expunged do not know to file the paperwork. What about cases that have lessor included charges? So you are charged with a crime of rape and you are found not guilty, but you are convicted of resisting arrest.  What happens then. You can not get that case expunged. What happens to your DNA.  Furthermore, they is no way to track if the lab has taken the DNA out of the database.
People today are just to willing to give up rights! This country and this state were based on freedoms and liberty.   Every time we give up a right, we are that much closer to a police state.

Rhode Island Synthetic Drug Criminal Law Update

The State of Rhode Island has enacted a new law which provides for strict penalties for the criminal charge of possession of certain quantities of a class of substances known as synthetic drugs.  This law greatly expands the 2013 law which had placed synthetic drugs (both synthetic cannabinoids and synthetic cathinones) on the highly regulated Schedule I drug list in addition to banning the manufacture, sale and use of these drugs in the State of Rhode Island.  Prior to this law, synthetic drugs were legally marketed and sold in Rhode Island under the names of "bath salts", "synthetic pot" and "herbal incense".

Under the recently enacted law, the penalties for the manufacture, sale or possession are as follows:
  • one ounce to one kilogram of a mixture or substance containing a detectable amount of synthetic drug is punishable by imprisionment of up to 50 years and a fine of up to $500,000
  • more than one kilogram of a mixture or substance containing a detectable amount of synthetic drug is punishable by imprisonment up to life and a fine of up to $1,000,000
The State of Rhode Island has made clear through the enactment of these criminal laws that it wants to deter the manufacture, sale or use of synthetic drugs by enacting harsh penalties for those convicted of the crime.

The criminal prosecution of this law will require the police and law enforcement authorities to obtain special training in the area of synthetic drugs and will require the testing of the substance by the Rhode Island Department of Health.  The test conducted by the Rhode Island Department of Health will determine whether the suspected substance is considered one of the illegal synthetic substances and critical in determining if the prosecution is warranted.

Defense of a charge of the manufacture, sale or possession of synthetic drugs will greatly hinge on  such issues as the manner in which the evidence of synthetic drugs was obtained by the police, the propriety of the administration of the test of the substance and the accuracy of the test.

If you or a loved one have been charged with the manufacture, sale or possession of synthetic drugs, be sure to call an experienced criminal defense attorney who can successfully challenge the prosecution's evidence.  The lawyer should be able to clearly explain the charges to you an set forth a well planned legal defense to the charge.