21 Aug More on Criminal Law
Criminal Law is defined by Cornell University as “a system of laws concerned with crimes and punishment of individuals who commit crimes. Although this seems like a straightforward and simple definition, the fact is that the practice of criminal law is much wider-ranging and complicated. Fortunately, the firm of Wagner and Lynch has both experience and a great depth of knowledge in this area of law, and our long track record of success is proof.
At Wagner and Lynch, we take, what other attorneys may refer to as, an aggressive approach to criminal defense. That is because we are trial attorneys, and see every case from the view that trial is guaranteed. We believe in an immersive approach that often includes conducting our own investigation, to visiting the scene if available. Years of practicing as if always preparing for trial has proven repeatedly to obviously benefit those that do go to trial, but also those whose case results in a dismissal from the court, or by agreement with the District Attorney’s Office. This approach also often results in better offers for our clients that wish do wish to plea. We believe that a good plea result is always more likely when coming from a prosecutor wishing to avoid trial than approaching a prosecutor and begging for mercy. We never beg for mercy.
For the purpose of this section, we are going to separate Criminal Law into three distinct categories, Criminal Misdemeanors, Criminal Felonies, and DUI/DUID offenses. The Oklahoma Criminal Code can be found in Title 21 of the Oklahoma Statutes. This Title includes most of the acts that are criminalized under Oklahoma Law, but not all. Other Titles include criminal statutes and punishments as well. Most notably the Controlled Dangerous Substances (CDS), or Drug crimes, and the punishments for them are contained in Title 63 the “Public Health and Safety” laws, and most laws regarding motor vehicle crimes such as DUI and other traffic violations are found in Title 47. We will address these more specifically below.
A Misdemeanor is a criminal offense that does not carry a punishment that exceeds a $1000.00 fine, or incarceration in the county jail for more than one year, or both. Under Oklahoma law, most misdemeanors have specific penalties for the specific crime committed. This may include a maximum sentence of 30, or 90 days, or six months in jail, but if no penalty is specified in the statute, then the default maximum punishment is one year in county jail, a $1,000 fine, or both. Some misdemeanor offenses have higher penalties based upon other facts surrounding the alleged offense. For example, the crime of assault carries a maximum of 30 days in jail and no more than a $500 fine, but assault and battery carries up to 90 days in jail and no more than a $1,000.00 fine. Even still assault and battery of a family member or spouse/domestic partner carries up to a year in the county jail and a fine not to exceed $5,000.00, and it is what is called a predicate offense. A predicate offense is a misdemeanor offense that if one is convicted of it could face a felony if the same offense is alleged to have been violated within ten years of the previous conviction. Then if an assault and battery involve a dangerous or deadly weapon or results in great bodily injury may be filed as a felony. You can see how the offense progresses from a misdemeanor to a felony here. Many people will represent themselves in misdemeanors, or they consider these to be small crimes or “ticketable” offenses that should not require the services of an attorney. In some cases, this may be true. Often the prosecutor is going to offer a small fine or short amount of probation which would be an attractive conclusion for someone facing a misdemeanor offense like a public intoxication charge or traffic violation. However, you should always consult with an attorney before deciding if it is best to proceed alone. As discussed above a misdemeanor can have long-term ramifications that one who is not well-versed on the application of Oklahoma Criminal Law will not know. Also, just because the government accuses you of something, does not mean you have to accept that because hiring an attorney and fighting it is just “too much of a hassle.” At Wagner and Lynch, we take phone calls every day from people that are contemplating this very thing. Consulting with us is always FREE, and we are going to tell you all the potential consequences, risks, and costs associated with any misdemeanor charge. This firm does represent clients in misdemeanor jury trials, and we have a long track record of success in misdemeanor trials, including the fastest “NOT GUILTY” verdict we have ever achieved for a client in any trial when the jury returned its verdict after less than ten minutes of deliberation. Do not take the first offer the prosecutor gives you, call Wagner and Lynch and see what all your options are.
Driving Under the Influence (DUI) is when it is alleged that the accused drove a vehicle while under the influence of alcohol and Driving Under the Influence of Drugs (DUID) is when it is alleged that the accused drove a vehicle while under the influence of a specific drug. Although these are both misfeatures these types of cases tend to get their own classification as a result of the frequency this crime is alleged and the short and long-term affects this type of misdemeanor can have on one’s life. The statutory authority for DUI/DUID is found in Title 57 of the Oklahoma Statutes. It is a common misconception that just because you take the state’s test, this would either be a breath test or blood test to determine a person’s Blood Alcohol Content (BAC), and the results are that the person has a BAC of .08 or higher than there is no defense to a DUI charge. This is not true. According to Title 57 Section 756, “Evidence that there was, at the time of the test, an alcohol concentration of eight-hundredths (0.08) or more shall be admitted as prima facie evidence that the person was under the influence of alcohol.” This means that your BAC may be potential evidence of being “under the influence”, but it is not conclusive, therefore you should always consult an attorney in regard to defenses. The results of Standard Field Sobriety Tests (SFST) can also be used as evidence against an accused driver. SFSTs are “standardized,” which means they must be conducted in a precise and specific way for the testing to relay any results to the tester. The fact is that most law enforcement officers do not receive adequate training on how to conduct these tests, and often do so incorrectly which invalidate any resulting clues, or they commonly misinterpret the results of the test they are conducting. Further, it is not clear scientifically that any type of testing can relay to a law enforcement officer that someone is under the influence of an intoxicating substance other than alcohol “which may render such person incapable of safely driving or operating a motor vehicle.” Because the tests tend to either be scientifically questionable, or susceptible to operator error, we advise people to politely decline to take any test, SFSTs or breath/blood, if they have ingested any substances within hours of driving, regardless of how sober a person believes that they are. It is better to be arrested and provide little to no evidence to be used against you than to subject yourself to testing that may be inaccurate but still allowed by the court to be used against you. DUI/DUID charges are all predicate to a felony and can have serious long-term consequences, therefore you should ALWAYS consult an attorney if you have been charged with DUI/DUID. Finally, being charged with DUI/DUID can have negative effects administratively regarding your state-issued driver’s license. As a result of being arrested for DUI/DUID your driver’s license is subject to revocation, and if you do not act could result in your license being revoked for at least a year, leaving you without the ability to drive lawfully. At Wagner and Lynch, we also handle driver’s license revocations, and it is important to know that you only have 15 DAYS to either appeal the revocation and/or seek a modified driver’s license. That is a hard deadline and you should seek assistance and advice before that 15-day period has lapsed.
A felony is a crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death. At Wagner and Lynch, we approach every felony filing as if it carries the consequence of a life sentence because it essentially does. A felony conviction is a designation that affects a person for life. The are very few ways that allow for one to set aside, or be relieved from having a felony record, therefore we treat every felony case as one that affects the rest of a client’s life. When it comes to felony cases, we are very practiced and experienced. We defend all categories of felony cases including property crimes, drug crimes, sex crimes, and all crimes against persons, up to and including Murder. There is no case Wagner and Lynch shy away from or tries to avoid. Also, we tend to be aggressive when it comes to defending these cases, and we use the tools that our state law gives us. In Oklahoma, you are entitled to what is called a ‘Preliminary Hearing or Examination” before a magistrate before one can face trial on a felony charge. In Oklahoma, we believe that Preliminary Hearings are so important that you can find it in the Oklahoma Constitution. A preliminary hearing can be waived only by the defendant (AN ATTORNEY CANNOT WAIVE A PRELIMINARY HEARING FOR YOU). At Wagner and Lynch we use these hearings to judge not only the viability of the state’s case at trial, but our own defense as well. A preliminary hearing is an extremely important right that the accused has in Oklahoma and is generally an integral part of how we put together a defense in your case. Wagner and Lynch have years of experience in trying felony cases to a jury in all jurisdictions and most of the 77 counties in Oklahoma. If you find yourself in a situation in which you are accused of a felony, you need experience more than anything on your side, and we have that. Our trial-orientated approach to criminal defense often results in great results for our clients including reducing felony charges to misdemeanors to outright dismissals.
POLICE MISCONDUCT/EXCESSIVE FORCE
The 4th Amendment of the Constitution of the United States protects citizens from “unreasonable searches and seizures.” A search is obviously when a law enforcement officer goes through something of yours in which you have a privacy interest. The Constitution does not allow law enforcement officers to just conduct a search through your things whenever they want. Nor does the Constitution allow law enforcement to “seize” something of yours without reason. This also includes your body. Anytime a law enforcement officer uses their authority to stop you, or order you to do something, that is also a “seizure.” The Constitution is clear that a warrant based upon probable cause is required, and then other Constitutionally vetted state and federal laws may carve out some specific instances in which a law enforcement officer may conduct a search and/or seizure without a warrant, reasonably. Still, there are times when law enforcement officers exceed their authority, and every citizen should know what those are. At Wagner and Lynch, we pursue justice in these situations through civil action. You should consider calling Wagner and Lynch today and see if your interaction with law enforcement may result in a civil action, a recovery of monetary damages, or a reward.
Oklahoma does allow itself to be subject to a civil action for torts in some instances. These are covered under the Governmental Tort Claims Act which is in Title 51 of the Oklahoma Statutes. A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. This is when you sue the government for money. In the context of this area of our practice at Wagner and Lynch, the government you would be suing would be the agency responsible for the officer(s) that commit the tort. For example, it would be the municipality if the officer was employed by a city police department, the county if the officer was employed as a deputy sheriff or district attorney’s investigator, or the state if the officer was a state employee, such as a state trooper, or agent for an administration. You do not have to be charged with a crime, or arrested to have a legitimate claim for a violation of your civil rights. An example of this would be a lawsuit that we brought on behalf of a client that was detained by police, but never charged. This client was at his place of employment when he was told by a supervisor to leave his workstation and meet with some police officers outside. Once outside the man was handcuffed and questioned by officers outside of their jurisdiction and without any lawful suspicion or cause to seize our client and subject him to questioning. We brought a claim against the municipality where those officers were employed, and upon disclosing the video of the unlawful actions of the officers, the insurance company settled the matter for a monetary amount that was satisfactory for our client. In all, he was only detained for less than ten minutes, but that detention was still a violation of our client’s civil rights. We also represent people who have experienced a violation of their rights and were still charged with a crime. Our approach is to defend the criminal allegation first, and if the facts are appropriate for a civil action, then we will advise our client o pursue that. For example, a client of ours was accosted by police officers in his own home, then dragged from his home, thrown onto the hood of a vehicle outside, and arrested for “Obstructing an Officer.” In this example, we successfully defended the criminal charge, which resulted in a dismissal. Despite being violently drug from his home, and slammed down by officers, our client did not suffer any real injury other than some contusions. Wagner and Lynch still pursued a tort action against the city that employed those officers and it resulted in a satisfactory settlement. In still other instances one might have suffered some injury while incarcerated in a county jail or detention center. In those cases, in which we have been retained, we have reached satisfactory settlements for our clients as well. In closing, if you have had an interaction with law enforcement and you think your rights were violated, you should consult us, you may have a case.
Title 42 of the U.S. Code, Section 1983, creates a civil action for depravation of a citizen’s civil rights in federal court. You can read the actual statute here. The language of the statute has been interpreted to allow victims of constitutional violations to sue state and local government officials for damages. In order to succeed on a Section 1983 claim, a plaintiff must show that: (1) the defendant acted under the color of state law, and (2) the defendant’s actions deprived the plaintiff of a right guaranteed by the Constitution. The Supreme Court has determined that not all constitutional violations will give rise to a Section 1983 claim. A proper claim under the law must be must be “sufficiently egregious” such that it “shock(s) the conscience” or amounts to “conduct that deliberately disregards fundamental rights”. Although Section 1983 can be used to bring a suit for a violation of a wide range of Constitutional Rights, at Wagner and Lynch we focus on those cases involving misconduct on the part of law enforcement. If you think your interaction with law enforcement may have resulted in a violation of your civil rights to the degree that the actions of the officer would shock the conscience of the average person, give us a call today and let us determine if you have an actionable case.