How Does Intoxication Effect Consent?

I’ve been thinking about consent for quite some time. I want to start by saying I completely agree with the 10 state jurisdictions who have put into law that voluntary intoxication leads to an inability to consent to sex. A person who, for whatever reason, would be unable to stand before a judge and enter a plea, is not in a position to make a decision as important and potentially life altering as sexual activity. This seems a logical sentiment that justly protects the rights of all involved.

My question really comes about, not in terms of consent to sexual activity, but other forms of consent. I sat in my office, watching video of a client who was obviously intoxicated. During the night he had been provided bottle service and had become increasingly intoxicated as the night wore on. He was being accused of a serious crime and was in the holding area of a night club. As he sat there, he professed apologies to any who would listen. He tried to explain his thought process. Finally, a sheriff’s deputy came in with him and read to him his Miranda  rights. Of course, wanting to clear his name he started explaining his story. He was vague and somewhat evasive with his story, so the deputy continued to prod and pull before finally just asking “you did X, Y, and Z, didn’t you.” My client hung his head and said “yes.”

Unfortunately, this is not an uncommon occurrence. While a subject is high, drunk (or both), officers will question them about their behavior, often even providing the parameters and terms they need for arrest. This same intoxicated individual would not have the legal cognitive capacity to enter a plea in court nor to consent to sex, but based on common practices, he is allowed to voluntarily waive their Fourth, Fifth, and Sixth Amendment rights. If a person is not legally sober enough to make important decisions about sexual conduct, why are they held legally liable to make decisions that could very well affect their liberty or possibly even their life? Why do we hold individuals accountable to two very different expectations of critical thinking when in the same intoxicated state?

This is not the first time this question has been raised, nor will it be the last. For police officers, priorities most often work toward closing cases. If an officer is called out on a specific charge, they will be looking for evidence to substantiate that charge. They may not automatically weigh the evidence before them and then decide on the case. For example, if they get a call about a suspected DUI case, they are going to be looking at all the clues that support a DUI prognosis, rather than ask the individual if their eyes are red from crying all night. They will just assume that red eyes equal intoxication. To this end, it is in the individual’s best interest to get a statement from all involved parties while limiting themselves in what they say.

As an American Citizen:

WE HAVE THE RIGHT TO KEEP OUR MOUTH SHUT!

WE HAVE THE RIGHT TO HAVE A LAWYER PRESENT FOR QUESTIONING! (Though not for field sobriety tests or evidentiary tests.)

WE HAVE THE RIGHT TO MAKE THE POLICE GET A WARRANT TO SEARCH OUR CAR OR SEIZE OUR BLOOD!

WE HAVE THE RIGHT TO REFUSE TO DO FIELD SOBRIETY TESTS OR EVIDENTIARY TESTS. (There may be some consequences to deal with though).

WE HAVE THE RIGHT TO SHUT UP!

When we know our rights, especially when it comes to legal consent, we will be better advocates for ourselves and others. And unless the law changes the legality of verbal statements and evidence obtained while an individual is intoxicated, the best policy is to consult an attorney before anything is said.

I am happy to advocate for your rights.

To Prosecute is Human, To Defend Divine

“How can you defend someone who is guilty?”

In law school, this was a question that I deeply pondered. Even though I was passionate about pursuing criminal law, I wondered if I could ever feel ethically confident defending a client who clearly had broken the law. As a young, naïve law student, I didn’t think I could ever be a defense attorney. I could not imagine defending those I knew were guilty. So, I became a Deputy District Attorney for Washoe County instead, and loved being on that side of justice for eight years.

In law school, we learned in our sterile classroom environments that “this noble profession is about finding justice through the adversarial process.” In practice, it is not always like that. The stereotypical reputation that lawyers have from television, movies, countless jokes, or even personal anecdotes is not favorable. Our profession is often seen as full of hucksters who look for loopholes, or worse yet corrupt to their core. As I worked as a prosecutor, I found this stereotype to be far from the truth. There will always be a few who are not honest with the facts or are looking to manipulate the system to avoid consequences, but I’ve found these to be the exceptions. Most attorneys I have worked with, in and out of court, simply seek the best deal for their clients while also trying to get them the assistance they need to overcome things like addiction or other struggles.

My time with the Washoe County District Attorney’s office helped me fully recognize the important need for each individual’s rights to be protected throughout the legal process, whether or not they were guilty. I watched as the members of the defense bar defended the rights of their clients without necessarily defending their actions. As I watched this from the eyes of a prosecutor, I gained a respect for the work that defense attorneys did and the methods most used.

A big turning point in solidifying my personal philosophy in defending guilty individuals, was an article entitled “Dialogue Between a Prosecutor and Defense Attorney” in the Clark Memorandum, a magazine put out by the J. Rueben Clark law school at Brigham Young University. This article highlighted a one-hour discussion between United States Attorney, District of Utah Paul M. Warner and Ronald J. Yengich, a prominent defense attorney in Utah. The words of Mr. Warner resonated with me, explaining all the many reasons he loved being a prosecutor, many of the same reasons I loved being a prosecutor. But even more important were these powerful words of Mr. Yengich:

I have a statement in my office: ‘To prosecute is human, to defend is divine.’ I believe in my heart of hearts that I will be accused before the great white throne and Christ will be my advocate, and he will certainly be defending a guilty client. I know that about myself. I am a defense attorney because I know all of the errors I have committed in my life and the luck that I have to be standing in front of you honorable people after a life that has been full of mistakes and errors that could have put me in trouble.” The imagery of these words have vividly stuck with me all these years since.  This philosophy has become one of the brightest guiding lights in my career.

A big turning point in solidifying my personal philosophy in defending guilty individuals, was an article entitled “Dialogue Between a Prosecutor and Defense Attorney” in the Clark Memorandum, a magazine put out by the J. Rueben Clark law school at Brigham Young University. This article highlighted a one-hour discussion the 2005 Orrin G. Hatch Distinguished Trial Lawyer Conference between United States Attorney, District of Utah Paul M. Warner and Ronald J. Yengich, a prominent defense attorney in Utah. The words of Mr. Warner resonated with me, explaining all the many reasons he loved being a prosecutor, many of the same reasons I loved being a prosecutor. But even more important were these powerful words of Mr. Yengich:

I have a statement in my office: ‘To prosecute is human, to defend is divine.’ I believe in my heart of hearts that I will be accused before the great white throne and Christ will be my advocate, and he will certainly be defending a guilty client. I know that about myself. I am a defense attorney because I know all of the errors I have committed in my life and the luck that I have to be standing in front of you honorable people after a life that has been full of mistakes and errors that could have put me in trouble.” The imagery of these words have vividly stuck with me all these years since.  This philosophy has become one of the brightest guiding lights in my career.

All of us are guilty. We’ve all made mistakes. Some are just more serious than others. My goal is to provide the assistance and protection that each of my clients deserve, despite their guilt. I will forever protect my client’s rights, but I cannot defend their actions.  I defend the rights of the guilty because that is what is right and just.

I strive to live by what Mr. Yengich calls “The Defense Attorney’s Oath” (quoted from Walt Whitman):

This is what you shall do: Love the earth and the sun and the animals. Despise riches. Give alms to everyone that asks. Stand up for the stupid and the crazy. Devote your income and labor to others. Hate tyrants. Have patience and indulgence toward the people. Take off your hat to nothing known or unknown or to any man or any number of men. Go freely with powerful uneducated persons and the young and mothers of families. Reexamine all that you have been told at school or in church or in any book and dismiss whatever insults your soul.

Justice v. Compassion

As an immigration and criminal attorney in Nevada, I am bound to the laws of our land. I love and respect our country’s constitution.  While upholding these precepts I hold dear, I find I am also able to show compassion for those clients I serve. I do this by protecting their rights that our great country affords them.  I do this by treating them with the respect that all human beings deserve. I do this by seeking fair and equitable justice as their legal advocate. I find this compassion is as equally important as the letter of the law.  As I reflect my personal philosophies, I can’t help but wonder at the direction our country’s legal system is heading. Are we abandoning compassion for justice and order? Is there indeed room for both? There have been several recent events that I’ve been pondering lately.

On April 11, 2017 Attorney General Jeff Sessions issued a Memorandum for all federal prosecutors. He urged federal prosecutors to “focus on criminal cases that will further reduce illegality.” Calling for “consistent and vigorous enforcement” of key immigration laws. The laws he truly focused on were 8 U.S.C. § 1324 “bringing in and harboring certain aliens” and related offenses. Priority was to be given to section 1327 “aiding or assisting criminal aliens to enter,” and section 1328 “importation of aliens for immoral purposes.” I promote measures that in good conscience dissuade illegal activities, but question extreme implementations of such measures.

In a recent NPR article by Lorne Matalon, three current criminal immigration case studies were examined. The first, Scott Warren, a college geography instructor and volunteer with a group called No Mas Muertes (No More Deaths) was arrested and is facing three felony charges including conspiracy to transport and harbor migrants. No Mas Muertes leaves jugs of water in the desert along migrant trails to help prevent dehydration and exposure, leading causes of death among migrants in the Arizona border deserts. Warren, from Ajo, Arizona was allegedly seen talking with two migrants who sheltered in Ajo. Warren denies any participation in sheltering plans, and counters that his First Amendment religious freedom is being violated.  He asserts that the government has turned his spiritual belief (of assisting those in distress) into a criminal act. 

In the second example, an elected city and county attorney from Marfa, Texas, Teresa Todd, is under investigation for human smuggling because she stopped to help three ailing migrants in February 2019. Todd noted that one young man was pleading for aid, explaining that his sister, 18 year old Esmeralda, was in trouble. Todd sheltered the migrants in her car, as she tried to contact a friend, a legal counsel for the local Border Patrol. Before Todd reached her friend, a sheriff’s deputy arrived and called the Border Patrol. Todd was soon being read her Miranda warnings. Eight days later a Department of Homeland Security (DHS) investigator served a search warrant for her cellphone at Todd’s office. She was told that her phone would be returned in a matter of hours. The sheriff of Presidio County, Danny Dominguez stated that anyone with undocumented migrants in their car risks arrest, even if the vehicle is not moving. Todd’s phone was held for 53 days before finally being returned. Esmeralda was told by doctors that she was on the brink of death by the time she got to the hospital. 

Finally is Ana Adlersteina.  She is a U.S. citizen and volunteer at a Mexican migrant shelter. Adlerstein wanted to observe the process of seeking asylum, so she decided to accompany an asylum seeker from Sonora, Mexico to the border crossing at Lukeville, Arizona to experience the process. Instead, Adlerstein was accused of human smuggling and detained at the border for several hours. The border official had been previously told that a U.S. citizen would be accompanying an asylum seeker that day. Current law allows for a migrant to request asylum once they step onto U.S. soil.

Thus far, only Warren is facing criminal charges, however, Adlerstein has received subsequent calls from DHS investigators and Todd is still waiting to find out if she will be indicted for human smuggling. Their lives are in the balance as I write this, at the mercy of our ever evolving justice system.

I am a Christian, a member of the Church of Jesus Christ of Latter Day Saints. I often find myself reconciling between my Christian faith and my legal logic. I tell my clients before they hire me that I will protect their rights, but not defend their actions. As I read this NPR article, I was reminded of the biblical story of the “Good Samaritan.” Sometimes we forget that those human beings most affected by the letter of the law still deserve human decency and dignity. Are we forgetting that most of our ancestors were once immigrants, many coming into the country illegally themselves? Our Lady Liberty still proudly stands, declaring to the world “Give me your tired, your poor, your huddled masses yearning to breathe free.” I firmly believe in protecting the rule of law, but in many cases like those above, maybe compassion and common sense has a bigger precedence. If we continue to punish people for helping others, how will that influence the moral fabric of our society? And at what point does our basic humanity degrade completely?

Question: I was told I can’t be on my company’s auto policy because I have a ticket. Can I have the record sealed?

In order to completely answer this question, first we need to clarify a few things. In Nevada, there are only three categories of criminal activity:

  1. Felonies
  2. Gross misdemeanors
  3. Misdemeanors

Many other states will have different levels, including infractions or citations. If you receive any kind of citation in Nevada, it is a misdemeanor citation. So, anytime you are “found guilty” through pleading (which includes just paying a ticket in the mail) or through trial, that is equivalent to being convicted of a misdemeanor.

To quote one of my favorite bands, “I hope you know this will go down on your permanent record.” But don’t get distressed, there are ways to fix it. The most thorough and permanent fix is a governor’s pardon. This works for all crimes and will completely wipe off the incident from your record, restoring any rights that may have been lost through conviction. Of course, for most misdemeanors, this is completely overkill and unnecessary. Although because a governor’s pardon restores ALL rights (whereas a sealing of record doesn’t), it can greatly benefit with domestic battery convictions which affects gun rights.) In Nevada, we have the ability to seal a record, in other states this is called expunging a record, the end result is essentially the same. After a record is sealed, and the notices are sent out, the record will be permanently altered in such a way that MOST people will not be able to see it.

It is important to note that there are certain crimes that may not be sealed, such as crimes against a child, sexual offenses, felony driving under the influence, etc. Also, cases must be sealed in order, newest to oldest, although courts are now allowing for multiple sealings at the same time.

Before a record can be sealed, ANY and ALL sentencing requirements (including paying fees, community service, prison, parole, probation, etc) must be completed FIRST. Then the time period can begin that’s required for sealing that record. In other words, when all ties to the court sentencing and penal system have been finished, then the time starts to countdown for eligibility of record sealing.

Different convictions have different waiting periods before their record can be sealed:

  • 10 YEARS:
    • Category A felonies (things like murder, trafficking, and kidnapping)
  • 7 YEARS:
    • Crimes of financial and fraudulent use of services
  • 5 YEARS:
    • Category B felonies (grand larceny, home invasion, etc.)
    • Category C felonies (possession of a stolen vehicle, elder abuse, child pornography, etc)
    • Category D felonies (involuntary manslaughter, forgery, perjury, etc)
  • 2 YEARS:
    • Category E felonies.
    • Gross misdemeanors (crimes that are punishable by up to 364 days in jail)
  • 1 YEAR:
    • Most misdemeanors (petty offenses that are punishable by no more than 6 months in jail)

If you were arrested and the case was either dismissed or you were acquitted at trial, you can immediately petition to have the arrest record sealed.

So, back to the initial question above, YES, you can have your traffic ticket sealed, if you’ve met the sentencing requirements, and waited the specified time period (usually 1 year for most simple traffic violations). If you decide to try the process yourself, there are online instructions to help.

While sealing records is not hard work, but it can be quite complicated and tedious work. It reminds me of doing taxes in that way. There is also the risk of completing the paperwork incorrectly. Just like taxes, there can be repercussions for making mistakes in the process. For sealing of records, a mistake could cost an extra year before the record is eligible to be sealed. So, just like with taxes, sometimes it may be worth hiring a company, or a trusted attorney to assist in these matters.

HAPPY INDEPENDENCE DAY!!!!!!!

July 4th has always been one of my favorite holidays. I was always fascinated by the Revolutionary War. Concord and Lexington. Guerilla warfare. The ultimate underdog. Farmers, blacksmiths, normal people standing up against a corrupt government and fighting for rights. These freedoms and rights are the reason I love the law. The Constitution is an amazing document that has molded who I really am and why I enjoy working within the legal system. This is a day celebrated by an entire nation in one fashion or another, often times with food, alcohol, and explosives.

As a criminal defense attorney, the rights that were carved out during 1776 and the subsequent years are what my work life is all about. Currently I deal greatly with the Fourth and Fifth Amendments, specifically the Search and Seizure Clause and the Privilege against Self-Incrimination. As we celebrate this Summer, whether Independence Day, Hot August Nights, Rib Cook-Off, or Street Vibrations, let’s keep ourselves and Reno safe.  I know we have all  heard this before, but if planning to drink, don’t drive. Uber and Lyft are everywhere, install the application on your phone. Taxis roam the streets of Reno with regularity as well, Reno Taxi Cab (775)333-3333, Whittlesea Checker Taxi (775)322-2222, and Reno Lake Tahoe Transportation (775)813-0814 to name a few. Often times Reno provides free rides for certain holidays or special occasions. If you plan on drinking remember to give your keys to someone who isn’t. Also maybe let someone else light off those fireworks because alcohol and explosive entertainment aren’t the best mix either. 

Prevention is the best, however sometimes the best plans still go awry.  So if you find yourself pulled off to the side of the road with the red and blue lights flashing behind you, I have some advice for that as well. This is where the rights that our forefathers bought with their blood come into play. Your right to remain silent is exactly what you need to remember during these times. The police are not looking to “exonerate you” or “make sure you are safe to drive.”  They are investigating and collecting evidence. Keep your mouth closed. The field sobriety tests (divided attention and balance) that they will ask you to preform are not going to help you. And in spite of what they will tell you, those tests are not required and you will not lose your license. However, your driver’s license will be revoked if you refuse of a preliminary/evidentiary breath test or a blood test. Law enforcement cannot have you do the evidentiary tests without reasonable suspicion that you are driving under the influence of alcohol or drugs. That is a fight that belongs in the courtroom, not on the roadside. My job is to defend your rights. If you find yourself in trouble, call me and let me assist you through troubled times like these.

I wish us all an enjoyable and safe summer! Happy Fourth!