Proposed Nevada Law Could Make Preliminary Hearings a Farce

scales of justiceThe Nevada Assembly is currently considering a very troubling bill masked as a “victim’s rights” bill. Assembly Bill 193 would make hearsay admissible as evidence during the preliminary hearing. During the preliminary hearing, a Justice Court determines whether probable cause exists to pursue charges against the defendant. Assembly Bill 193 goes against a core principle of American criminal jurisprudence, that a person is innocent until proven guilty. If passed, it will result in prosecutions proceeding to District Court with weak and insufficient evidence.

Under Nevada Revised Statutes 51.035, hearsay is, at its core, any statement offered into evidence to prove the truth of that matter asserted that is not made during testimony at the trial or hearing. Chapter 51 lists several ways that such a statement may not be hearsay or may meet an exception to the hearsay rule, such as that the person making the statement is now deceased and the nature of and circumstances surrounding the statement assure its accuracy. Generally, hearsay is not admissible during many important stages of a criminal trial, including, under current law, the preliminary hearing.

Under the hearsay rule, most statements in a criminal trial that are offered against the accused must be made by the person saying them in court, in front of the person being accused and his or her attorney, and under oath. A witness may then be subject to cross-examination, in which the defense lawyer can challenge the accuracy and veracity of the statements being offered into evidence.

During a preliminary hearing, the prosecutor presents evidence that shows probable cause, the necessary standard to pursue criminal charges against a person. Probable cause, in this case, means that, based on facts, a reasonably prudent person who have sufficient reason to believe that, more likely than not, the person charged committed the crime. If the Justice of the Peace finds that probable cause exists, the charges will be bound to District Court for arraignment.

In many criminal proceedings, the testimony of witnesses – often including the alleged victim – is a core part of the prosecutor’s case. The hearsay rule requires those statements to be made in the Justice Court in order for them to be admissible for consideration into whether probable cause exists under most circumstances.

Assembly Bill 193 would erase that requirement. Prosecutors would be able to read statements from witnesses, rather than have the witness testify in court and be subject to cross-examination.

The bill is ostensibly to save victims of sexual assault and other violent offenses the trauma of having to attend the hearing and testify. However, the preliminary hearing serves as an important check on prosecutors. The most interesting aspect about the bill is that the people pushing the bill, namely the prosecutors, have another remedy at law to “save victims” from having to testify, and that is the Grand Jury. Yet the prosecutors rarely take cases with these victims to the Grand Jury. Why? Because it takes a little more time to prepare and get time before a Grand Jury. If the prosecutors were really, truly concerned with the victims then why are they not using this remedy more? Because this bill is about a power grab of Nevadan’s rights.

If this bill passes, preliminary hearings will be virtually a farce. Protecting victims should not come at the expense of forcing people presumed innocent into an unnecessary arraignment and trial. The Legislature would be wise to vote this bill down.

Supreme Court to Hear Case on Synthetic Drugs

SONY DSCThe U.S. Supreme Court has granted a petition for certiorari for a case, meaning they will hear it, involving a question of whether the Controlled Substances Analogue Enforcement Act can be construed to secure a conviction for what are often called “synthetic drugs” or “designer drugs” if there is a question of whether the defendant knew the substance involved was substantially similar.

The case, McFadden v. United States, has been set for oral argument on April 21. The case involves the sale of so-called “bath salts” from a video store in Virginia. The defendant in the case is alleged to have provided the substances to the store, who sold them. The particular bath salts had chemical compounds that are intended to mimic the physiological effects of ingesting cocaine.

The federal government argued that the Analogue Act, passed in 1986 to address chemicals “substantially similar” to Schedule I and II substances, covered the substances the defendant was alleged to have sold. They argued they must only prove that McFadden knew the substances were for human consumption, an element of the crime under the law.

However, McFadden argued that the federal government should have needed to prove that he knew that the substances were substantially similar to controlled substances, or at least that he deliberately avoided knowledge that they were.

He was convicted, and appealed. The Fourth Circuit upheld the appeal.

The case involves just federal law, but has implications for state law, as well. Many states have struggled to stay on top of synthetic drugs. A synthetic drug, as generally defined, is one that is synthesized with the intent of creating effects on the same physiological effects of a substance that has been deemed controlled. For instance, “K-2” and “Spice” are intended to imitate marijuana, while “bath salts” are often intended to imitate cocaine or methamphetamine.

States have attempted to ban the compounds in the synthetic drugs. However, new synthetics with different chemical makeups are regularly developed. As soon as regulations are put into effect to outlaw a specific substance, developers put out a new one.

Nevada has not yet passed a ban on synthetic drugs, although the Las Vegas Metropolitan Police Department has cooperated with federal officials, like the Drug Enforcement Agency in 2012 in “Operation Logjam.” A ruling favorable to the government might encourage Nevada legislators to go forward with one. Synthetic drugs have gained significant negative attention due to their often unpredictable effects on the body.

If arrested for drug charges in Las Vegas, synthetic or not, it’s important to contact a drug defense lawyer who will protect your rights and fight for the best possible result.

 

Nevada Legislator Plans Files to Prohibit People Convicted of Domestic Violence From Carrying Firearms

Beretta HandgunA Nevada state senator has announced she will propose a bill in the current legislative session that will prohibit any person convicted of a domestic violence offense from possessing a firearm in all related protective orders.

Sen. Debbie Smith, of Sparks, has filed Senate Bill 187. The proposed law would mandate that judges issue injunctions prohibiting a person from possessing or purchasing firearms if convicted of a domestic violence offense.  The session ends June 1.

An offense is considered domestic violence under Nevada law if it is one of several crimes, including assault, battery and stalking, when the victim is the accused’s current or former spouse, is related to the accused by blood or marriage, lives with or has lived with the accused, is in or was in a dating relationship with the accused, has a child with the accused or is the accused’s child.

Currently, state law allows a judge considering an injunction for domestic violence to prohibit a person from possessing or purchasing firearms. Nevada Revised Statutes 33.031 says a judge “may” issue and order against a person convicted of a domestic violence offense:

  • Requiring that he or she surrender, sell and/or transfer any firearms he or she currently owns; and
  • Prohibiting that person from possessing any firearms or having any firearms under his or her control.

Currently violating such an order is a gross misdemeanor, under the proposed bill a violation would be a category B felony with a sentence of 1 to 6 years in prison.

Under Federal law any person convicted of a domestic violence conviction is prohibited from owning, possessing or using a weapon.  The Federal law effectively prohibits a person from purchasing a new weapon; however there are little provisions on how to deal with those weapons that you already own.  It is illegal, under Federal law, to own a weapon after you have been convicted of domestic violence but rarely does it get enforced regarding weapons you already own.  The proposed Senate Bill 187 is Nevada’s way of taking the Federal law further.

Under current state law, the judge may examine the person’s history of domestic violence, whether a firearm was used to injure or harass the victim or a child, and whether the person had used a firearm in the commission or attempted commission of a crime. Using these factors, the judge may make a decision to issues an injunction including the prohibitions on firearms.

This bill, as Smith has described it, will take that decision away from judges. For anyone convicted of a domestic violence offense, the judge would have no option but to issue an injunction containing the firearm prohibitions. This would mean that the Judge would order that all current firearms be removed from the home of the accused, even before he or she has been found guilty in a Court of law.  Other restrictions typically in the protective orders, such as requiring the subject of the order away from the victim’s home or prohibiting contact, remain according to the judge’s discretion.

Mandatory punishments, including mandatory minimum sentences, tend to be bad public policy. First and foremost, an essential tenet of criminal justice is that the punishment should fit the crime. There are many variations and circumstances at play in a criminal accusation. Having a one-size-fits-all solution is an injustice.

Additionally, mandatory punishments take away the ability of defense lawyers to negotiate a plea bargain. Plea bargains are important to the criminal justice system because they make it more efficient. With no incentives to take a plea bargain, every case might as well go to trial, clogging up the courts.

Laws that may sound good to some to solve a perceived problem, often have unintended consequences that are much more impactful than the original bill.  Currently Nevada does not allow for jury trials in misdemeanor domestic violence cases.  Despite many attorneys efforts to have jury trials in these impactful cases the United States Supreme Court has struck that right down.  However, if SB 187 passes it would establish a State law that would prohibit a person’s right to bear arms and therefore meet the standard necessary to determine that due process is required before you take away a person’s constitutional rights.

Whatever your position on this bill may be, it is quite clear that if it passes it would have an impact on the citizens of Nevada and their rights.

Las Vegas Law Enforcement to Focus on DUI Until After Super Bowl Weekend

024-0904131528-suspicionlessCheckpointUntil February 2, the Monday after Super Bowl weekend, drivers in the Las Vegas area can expect to see increased checkpoints checking for drunk drivers.  The ramp-up is part of a coordinated effort, and will be the first of six planned increases in patrols over a set period of time in 2015.

The Super Bowl campaign is part of a new “Nevada Joining Forces” program administered by the Nevada Office of Traffic Safety. OTS received a federal grant, which it is passing down to state and local law enforcement agencies for traffic safety campaigns. The Nevada Highway Patrol received one of these grants, and is using the funds for both a public service announcement campaign and to pay for the increase checkpoints

It is actually the third Joining Forces DUI campaign since Thanksgiving of 2014. Future campaigns will focus around holidays. Nevada Highway Patrol Loy Hixson told the Las Vegas Review-Journal that officers typically make about 60 to 70 DUI and DUI-related arrests on Super Bowl weekend.  He said it had traditionally been one of the less busy holiday seasons.

DUI checkpoints may seem daunting, but there are actually a number of regulations under Nevada Revised Statutes 484B.570 that law enforcement must follow in setting them up. There must be a “Police Stop” warning sign at least a quarter of a mile from the checkpoint. At least flashing light at the roadblock must be visible from at least 100 yards away, and the roadblock itself must be visible from at least 100 yards. A stop sign must be visible from 50 yards. If an arrest results from a checkpoint where police failed to follow any of these rules, the arrest may be suppressed, which could lead to charges being dismissed.

The law allows police to briefly stop drivers at the checkpoint. All other traffic stops require reasonable suspicion, which means an articulable set of facts that would cause an objective person to believe criminal activity is afoot. If a driver approaches a roadblock and then turns around and drives the other way, that fact alone does not warrant reasonable suspicion to make a stop. Such a traffic stop may be suppressed after a motion from your attorney.

Even if a driver is arrested at a checkpoint, there are a number of possible defenses. For one, you may still refuse a standardized field sobriety test, breath test, urine test or blood test at a DUI checkpoint. Second, whether the officer was required to get a warrant as the current Nevada’s implied consent law grants a person the right to refuse all testing unless the officer obtained a warrant. Third, whether the SFST may have been improperly administered. Finally, was he equipment in a chemical test properly cleaned or calibrated.

Drivers in Las Vegas should be wary of checkpoints until February 2. If arrested, though, it does not mean a conviction, especially with the assistance of a dedicated Las Vegas DUI lawyer.

Las Vegas Police Will Be Ready for Halloween. Will You Be?

Las VegasHalloween often tends to be one of the wilder nights of the year. The fact that it takes place on a Friday this year, when many do not have to worry about making it to work the next days, virtually guarantees this year will be bigger than usual. This fact has surely not escaped the Las Vegas Metropolitan Police Department, and they are very likely to be out in force patrolling the streets for any alleged violation of the law.

Halloween arrests can run a wide gamut of offenses. Common arrests are for drug charges, marijuana offenses, public lewdness and any other charge common associated with revelry.

DUI is also an extremely common charge on Halloween night. While Metro Police have not announced plans yet, but it is extremely common for police to set up DUI checkpoints on Halloween. At a DUI checkpoint, drivers are asked to submit to breath tests, blood tests or field sobriety tests. Regardless of whether checkpoints are created, police will be patrolling the streets for intoxicated drivers.

It is your constitutional right to refuse to take these tests, and doing so denies prosecutors critical evidence against you.  Recently the Nevada Supreme Court ruled that Nevada’s Implied Consent law is unconstitutional.  This means that if you are arrested for DUI you are not required to give an evidentiary sample of blood or breath, unless the officer gets a warrant.  It is recommended that you do not provide consent to a breath or a blood test as this will be used against you by the prosecution.

A driver can be forcibly required to submit to a test if police obtain a warrant. Checkpoints on such a major holiday are likely to have judges on site, ready to sign warrants, as well as nurses and paramedics to take blood tests.  It is still recommended that you do not voluntary consent to a blood or breath test, unless the police have a warrant.

If police collect a sample at a checkpoint from you that shows a blood-alcohol content (BAC) at or above .08, it does not mean you are automatically convicted. Nevada Revised Statutes 484B.570 has multiple requirements for roadblocks. A sobriety checkpoint must:

  • Be at a location on the highway visible from at least 100 yards away in both directions;
  • Have a stop sign visible from at least 50 yards in both directions;
  • Have a flashing light visible from at least 100 yards to oncoming traffic;
  • Have “police stop” warning signs placed at least a quarter of a mile away; and
  • Have a flare, light or lantern near the “police stop” warning signs.

If police fail to maintain these standards for checkpoints, any arrest that resulted in a stop may be thrown out entirely. Your lawyer can challenge the arrest and file a motion to suppress the arrest. A Las Vegas DUI attorney can also challenge the results of any test.

In all likelihood, this will be a big night for Halloween partiers, and a big night for Las Vegas police. Make sure you know your rights before you head out.

Doctors Are Targets in “Pill Mill” and Other Prescription Drug Investigations

iStock_000010480247SmallThe cases last week of a Las Vegas doctor sentenced to 46 months in federal prison for drug trafficking and of a Henderson doctor arraigned for felony drug distribution serve as a reminder that these serious charges are not merely for cartels and street dealers. Doctors, pharmacists and other medical professionals are frequently the target of controlled substance investigations and arrests, especially with the growing popularity of recreational and nonmedical prescription drug use.

Victor Bruce, the Las Vegas doctor, was convicted in U.S. District Court of trafficking oxycodone, a popular painkiller. Oxycontin is a popular brand of the substance. Trafficking is a term that refers to the production, transportation and/or sale of controlled substances.

Bruce was accused and convicted of running what is commonly called a “pill mill.” A pill mill is a doctor’s office, clinic or other health care facility that illegally prescribed unnecessary medication to patients. Painkillers like oxycodone, hydrocodone, morphine and codeine are common controlled substances are common substances in pill mill cases. Ambien, Adderall, Xanax and other prescription drugs may also be involved. In many cases, the medical professional is charged with distributing more than one type of drug.

Mahesh Kuthuru, a Henderson doctor running a pain management clinic, was arraigned before a U.S. Magistrate for felony drug distribution. Kuthuru is accused of selling prescriptions for painkillers, including oxycodone, morphine sulfate and methadone, when the drugs were not medically necessary.

Doctors, pharmacists and medical professionals are typical targets in pill mill cases. Doctors may write prescriptions for patients for controlled substances. They may charge patients for their services, including writing these prescriptions. However, the prescriptions must be medically necessary. In cases involving medical professionals facing drug charges, accusations are often that the doctor is writing medically unnecessary prescriptions.

Pill mill cases may result in trafficking or distribution charges, in state or federal court. If convicted of certain trafficking offenses, the medical professional could face mandatory minimum sentences. Doctors could also lose their medical license as a result of any conviction or accusation relating to selling prescriptions.

Doctors have much to lose if facing charges for controlled substance offenses, and should acquire the services of a Las Vegas drug defense lawyer as soon as they learn they are under investigation.

Supreme Court Hears Case on Whether Officer’s Mistake of Law Justifies Traffic Stop

Traffic ViolationThe U.S. Supreme Court heard oral arguments Monday on Heien v. North Carolina, a case involving whether police officers can justify a traffic stop due to a reasonable belief of the law that is inaccurate. The case could have implications

In the case, an officer in North Carolina pulled over a driver who only had one brake light working. The brake light malfunction was cited as the reason for the stop. During the stop, the officer searched the car and found cocaine. The driver was charged with cocaine trafficking and cited for the broken brake light.

However, North Carolina law only requires a driver to have “a stop lamp.” It is not, therefore, against the law to driver with only one brake light working. The officer had made the stop on the basis of a mistaken belief about what the law says.

The case was appealed in state court. The appeals court found that the mistaken belief that the driver had committed a traffic violation did not warrant “objectively reasonable justification” for a traffic stop. The North Carolina Supreme Court disagreed, saying the officer’s mistake was “reasonable” and therefore justified reasonable suspicion.

The matter before the U.S. Supreme Court now is whether a perceived violation of the law can be sufficient grounds to give officers reasonable suspicion to conduct a stop. The implications of their decision could extend to whether a similar mistake could give probable cause to conduct a search or make an arrest.

If the Court rules that a mistake in law can lead to a reasonable suspicion, traffic stops would be significantly affected, as demonstrated by the case Heien is based upon. Traffic laws are complex, and it would be easy for a police officer to make a mistake about vehicle requirements or any of the other myriad laws that regulate motor vehicles and how they are operated under the law.

A traffic stop can lead to drug arrests, DUI arrests and many other criminal charges.

The implications may extend beyond traffic stops, though. Gun rights groups filed a brief siding with the defendant, in part because weapons laws are similarly technical and could lead to searches and stops based on officers’ mistakes on the law.

The case may have profound implications on police’s ability to make stops that often lead to arrests on more serious charges. According to observers, the justices seemed split on their leanings during oral arguments.

 

Nevada Considering Performance-Based Test for DUI – Marijuana

CopLightsMembers of the Nevada Legislature are currently considering changing policy for determining when a person is considered too impaired by marijuana to drive. A committee of state legislators voted in favor of moving forward with implementing performance-based tests for marijuana, instead of testing the blood or urine for metabolites and other chemicals associated with cannabis use.

Currently, Nevada Revised Statutes § 484C.110 sets policy for driving while under the influence of marijuana. Under the present law, a person is considered per se intoxicated if he or she has 10 ng per milliliter in the urine or 2 ng per milliliter in the blood for marijuana, or 15 ng per milliliter in the urine or 5 ng per milliliter in the blood for marijuana metabolite. A person with this amount of substance in his or her system is considered “per se” intoxicated, meaning he or she is intoxicated despite to which he or she has full use of his or her faculties.

The Advisory Commission of the Administration of Justice’s Subcommittee on the Medical Use of Marijuana, chaired by Sen. Tick Segerbloom of Las Vegas, voted 9-3 to request a draft modeled after the law in California. Under California law, it is illegal to drive under the influence of marijuana to the extent that a person in unable to act with the caution of a sober person, using ordinary care, under similar circumstances.

According to the Las Vegas Review-Journal, this effects-based approach has been adopted by 33 states.

The proposal would better reflect the reality of marijuana impairment. THC, the most significant impairing chemical in marijuana, does not operate in the same way as alcohol, in which BAC has a very heavy correlation with level of intoxication. Different people’s bodies process THC in different ways. People develop a tolerance to THC. It also remains in the system for a much longer time than alcohol, often long after the user stops feeling effects.

This is especially critical for the many people who use medical cannabis to treat a condition, which is legal in Nevada.  A person who ingests medical cannabis may have sufficient THC in their system to violate DUI-marijuana laws for hours or more after no longer experiencing any type of real impairment of their faculties.

The Nevada Legislature will consider changing the law during their regular 2015 session. It is expected to have some pushback from law enforcement and prosecutors.

Hydrocodone Combinations Moved Into Schedule II in Federal Controlled Substances Act

Pills2The Drug Enforcement Agency has moved hydrocodone combination products (HCPs), a popular prescription drug for managing pain, from Schedule III to more restrictive Schedule II. HCPs are combinations of hydrocodone, an opioid,  and other painkillers or substances, including acetaminophen. Hydrocodone itself has been in Schedule II since the Controlled Substances Act’s inception.

The DEA is citing a high number of overdoses from prescription painkillers as the reason behind the move. Schedule II substances have been determined to have a high potential for abuse with potential for severe physiological and/or psychological dependence. Schedule III substances have a lesser potential for abuse with moderate to low physiological and/or psychological dependence.

The decision follows the trend of the government “cracking down” on prescription drug abuse. The media has been full of horror stories in recent years of teenagers using substances available from pharmacists instead of illegal substances like cocaine and heroin.

The change means that hydrocodone combination products may be more complicated to obtain by patients. For instance, a doctor can rarely use an oral prescription for a Schedule II drug. A patient may need to just through more hoops if prescribed an HCP for pain management.

It also has implications for federal criminal law. The maximum penalty for trafficking a Schedule II substance (20 years in prison, with a fine up to $1 million) is twice the maximum for trafficking a Schedule III drug (10 years, with a fine up to $500,000).

The change only applies to cases heard in federal court. Most drug cases, including possession cases, are tried under state law. Under the Nevada Controlled Substances Act, hydrocodone combination products remain under Schedule III. However, state law on controlled substances in regards to what substances are illegal and how severe they are judge to be, with some notable exceptions, like medical marijuana.

The Board of Pharmacy may make similar findings as the DEA and move HCPs into Schedule II. Like with federal law, this has some implications on state drug law. Most drug charges in Las Vegas and Clark County are tried under state law.

Unlawful possession for sale of any Schedule III substance charges are a Category D felony for a second offense and a Category C felony for a third or subsequent offense. The same charges for a Schedule II substance are a Category C felony for a second offense and a Category B felony for a third or subsequent offense.

Whether or not this change may seem substantial, they reflect a more punitive and aggressive stance by the federal government, which often sets the trend for state governments. If you face charges for any crime relating to controlled substances in Clark County, immediately contact a Las Vegas drug defense lawyer.

Clark County successfully prosecutes first case under sex trafficking law

legsA Las Vegas man was found guilty last month of sex trafficking, marking the first conviction for the state offense. The offense of sex trafficking was created with the passage of AB 67 in 2013. Prosecuting sex trafficking has been a major focus of law enforcement in recent years, and a successful conviction is likely to herald more people facing these charges. It is critical, therefore, to understand the differences between charges relating to sex work.

Sex work, generally, is a broad term that applies to people who engage in sexual acts as a profession. Sex work crosses the legal line when it becomes prostitution. Nevada law defines prostitution as the act of engaging in “sexual intercourse, oral-genital contact, touching the sexual organs or other intimate parts for the purpose of arousing or gratifying the sexual desire of either person” for pay or anything of value.

Both the act of engaging in prostitution and soliciting prostitution (being a “John” or customer) are misdemeanors, unless the person involved was in a licensed brothel. There are no licensed brothels in Clark County.

Penalties are more significant for people accused of being the business of managing and recruiting prostitutes. In the past, these people, often called “pimps,” have faced charges of pandering.

Pandering remains a crime under Nevada law. If charged with pandering, a person is accused of inducing a person to engage in prostitution or to continue to engage in prostitution without engaging in physical force or the threat of physical force. The charges are a Class C felony, punishable by 1-5 years in prison and a fine of up to $10,000.

Under the new, more serious sex trafficking charges, a person who takes, places, harbors, induces, causes or compels a person into sex work using force, threats, fraud or intimidation can be convicted of a Class B felony. It is the same charge to harbor, induce, recruit, transport, obtain or maintain a sex worker knowing force, threats, fraud or intimidation to compel that person into that work.  A Class B felony is punishable by three to 10 years in prison and a fine of $10,000.

Additionally, if any sex worker involved was a child, the charges become sex trafficking, whether or not force or threats were involved. Charges are a Class A felony. If the child was between 16 and 18 years old, there is a mandatory minimum five-year sentence. For a child between 14 and 16, the mandatory minimum is 10 years. Trafficking any child sex worker younger than 14 will result in a mandatory minimum sentence of 15 years in prison under state law.

Regardless of the offense, any charge involving sex work is serious. It’s important to immediately contact a Las Vegas prostitution defense lawyer if accused.

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