Mainly whether you think the various laws are too restrictive or not.
From my perspective, that's just simply a "what's good for the goose" situation. If you forget to check a box on any form or sign in the right place or perform some perfunctory responsibility in the course of doing your duty to the government, they are gonna fine, imprison, punish the hell out of you for it. If the government can fine you or dismiss a petition from you for the same minor mistakes, then it's only just and fair that the government be held to the same standard when trying to levy charges against you.
To me, getting someone off "On a technicality" is a lawyer finding a situation where a cop made a minor and relatively inconsequential mistake or procedure not judgement, and manipulating that. A situation where a check box is forgotten to be marked once in a dozen times, however its redunandcy check (the actual maintence laog) is filled out. An instance where an officer may've got distracted while signing a number of papers that may be evidence or some such thing and in the middle of starting one he gets distracted by someone and ends up missing the signature on that...yet you can see every item prior to it and after it entered into the log is signed by him. Etc.
From my perspective, that's just simply a "what's good for the goose" situation. If you forget to check a box on any form or sign in the right place or perform some perfunctory responsibility in the course of doing your duty to the government, they are gonna fine, imprison, punish the hell out of you for it. If the government can fine you or dismiss a petition from you for the same minor mistakes, then it's only just and fair that the government be held to the same standard when trying to levy charges against you.
I think it depends on the state law as well.
In this particular case, if the law says that the device has to be checked periodically or it's inadmissible, and there is no evidence that it was indeed checked (because no one checked the right box), then yeah, maybe it should have been thrown out, because you can't prove guilt beyond a reasonable doubt if you don't know if the device was accurate.
But, do you get a chance to correct said minor mistakes with documented proof?
If so, then your compairson is not valid.
However, if the maintenance records are public information, posted on a publicly accessible website, where the maintenance sheet is signed by the maintainor of said instrument, then I don't understand what the problem is there.
But, like I said, the judge was a sheep in the courtroom.
If the one box wasn't checked when it was supposed to be, who's to say the other record was completed when it wasn't supposed to be? There's that shadow of a doubt creeping in...
If you only knew what the system was like, lol.
The same information obtained by the individual completing said form is obtained from the same source as the public website.
The document posted at the instrument is scanned in and published on the website.
The operator is NOT the individual who conducts the regular preventive maintenance on the instrument.
Exactly. So when one box is checked while the other isn't, it means that the confirmation of completion has failed somewhere. Whether that be because of oversight on the part of the cop filling out the form by having not checked the box or because of some maintenance tech having fibbed a bit on his work order...who knows? What we do know is that a mechanism was set in place for important maintenance to be performed and then have its performance confirmed and that mechanism failed so the entire process now falls under suspicion.
Shadow of a doubt creeping right on in...
Just as clearly, after he does this and begins talking (or talking again) he has given up that right.This ruling is just obnoxious. If a suspect refuses to speak a word after being advised of their right to remain silent, its clear that they are invoking the right.
Just as clearly, after he does this and begins talking (or talking again) he has given up that right.
Nothing to see here. move along.
I think you are confused.
The maintenance record is posted at the instrument site. Signed by the FTA Branch individual who performed the maintenance.
The form has a section on it to show maintenance had been completed by FTA Branch and a date is intered into a place. However, there a box next to said portion of the form (because its a multi-use form for both blood and breath, blood not needing maintenance under this form). Box is not inked in, but date for maintenance is filled out.
The same maintenance record that is scanned is published on public website.
The argument was brought in that the maintenance could not be verified because the ink was not filled in the box.
The judge accepts that the form completed by the operator does not show the maintenance has been completed, even though it is evident that the operator intended to do so via putting the information on the box. (fair enough).
The judge then does not allow the prosecution to otherwise show that the maintenance has been completed, by presenting the same document that the operator used to verify that maintenance has been completed.
This is a BS technicality, that would have never held up in superior court, or under most any other judge.
If anything, the prosecuting DA could have appealed the case and won, but then they have to determine whether such an appeal is worth the time, money put in by the court to find this individual guilty. In this case it wasn't, and I agree.
Many times a DA will even mention that they can win an appeal on a case that is lost by a sheep judge, and I say I could give a **** less.
However, if the maintenance records are public information, posted on a publicly accessible website, where the maintenance sheet is signed by the maintainor of said instrument, then I don't understand what the problem is there.
But, like I said, the judge was a sheep in the courtroom.
Yeah, from what you've said, I tend to agree in this instance.
Judges make mistakes all the time. Usually they err on the other side, against defendants.
I understand you just fine. But here's the issue: all of those processes are mechanisms by which to determine that procedures were followed and to dispel all doubts that there was any negligence anywhere in the process. You may know that everything was on the up and up in the process but that means jack **** to a man standing in front of a judge under the threat of $10k in fines and other liberties being dispelled as punishment. Think of it this way...if you stop someone and they haven't got their insurance card, their driver's license, and an outdated registration in their car, you don't care if they say "Oh, I was detailing my car and all that stuff I do have, it's just sitting on a box in the garage because I forgot to put it back in the glove box." They may very well have all of that but that's information you need to verify that they are legal. And the issue now is that you have a responsibility to remove that possibly unsafe, uninsured, and unlicensed driver off the road at 10:30PM on a Saturday night. Same thing with that box on that form...it needs to be filled in a certain way and if it's not, then you lose the justification for detaining that suspect because you obviously can't keep your own house in order so what makes the people think you have any business taking responsibility for "rehabilitating" or "punishing" anyone else?
Because Fact, not Appearance, is what matters in court.
So I'll mark you down as a supporter of BS technicalities that have no bearing on the evidence of the case.And the FACT is, someone, somewhere in the procedural chain didn't do what they were supposed to do as evidenced by the form not being filled out properly. And because of that, doubt is cast on the entire case of the State, especially considering it was a cornerstone piece of evidence.
If you can't follow your own procedures, you have no business taking responsibility for enforcing the laws to which those procedures pertain. That's the reasoning.
So I'll mark you down as a supporter of BS technicalities that have no bearing on the evidence of the case.
Gotcha.
And you would be misplacing your frustration if you did. It has everything to do with the evidence of the case. The evidence submitted in the case comes in the form of that paperwork and it is imperative that it be filled out properly just like it would be for the citizen under suspicion to show his proper evidence. If the form is not completed according to procedure, then by all means, it and any fruit of that poisonous tree must be removed entirely from the evidence. At that case, the dismissal is for lack of evidence.
Does it suck for the cop who had a clean collar otherwise? Absolutely. But the balance of power between the citizen and his government is so disparate that it is imperative the government be held to such standards in all things lest it gain too much control and abuse the authority it has.
The refusal of a judge to receive evidence in a case is a failure on the judges behalf, not that of the prosecution.
The refusal of the judge to allow the public website's information to be used is a loophole.
The addition of ink on a piece of paper does not mean the person is not guilty of a crime.
And those kinds of decisions are rare indeed, and maybe that's why you hear about them from time to time instead of every day.
I have clients who all believe they can win on those things, though. "Look, he wrote that my car is a 2005 and it's really a 2006! Can I get this thrown out?" "Um, NO."
The problem is that some people hear about the other cases and start considering anything that frees a guilty person as a "loophole" when in fact, there may be very good Constitutional reasons why they charges were dismissed.
I am literally finishing a brief today about a case where a young and inexperienced cop was investigating a hit and run accident. He saw tire tracks in the snow leading to my client's driveway with a sign saying "No trespassing, private property." Instead of getting a warrant however he drove up the driveway (which goes about 1/10 of a mile -- you can't see the house from the road because of all the trees) and started searching the damaged car he found. My client came out and was arrested.
Now, if I win, does that mean he gets off on a loophole? Is the 4th amendment a loophole or a requirement?
Good answer. Thanks. Would also be interested in hearing how "today's brief" turns out. Would never have thought that a cop in the line of duty would ever be restricted by a "no trespassing" sign. (guess we need to get some of those babies painted up over at our crack labs....)
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