Happy Memorial Day Weekend

Happy Memorial Day weekend everyone!

 
To many, this weekend is the official start of the summer. School is out, or almost out for the kids and many families are traveling or getting together to celebrate the holiday weekend.
 
Lets not forget the older generation and our veterans at this time of the year. Many have little or no family left and holidays do not bring the joy that they did in the past. A kind word or phone call to the ones we know can bring a little cheer into their lives.
 
After all, if it were not for the older generations, we would not be here. Also, if it were not for the veterans we would not have the safety and liberties we enjoy here in the US.
 
May all have a safe and blessed weekend.

Economic Effects of Violent Crime

Are We Aware of Economic Effects of Violent Crime?

Being a member of the legal profession possibly makes one more aware of the violent crimes going our in his or her community, but we possibly all need to be aware of what is happening in our immediate areas and to be involved in community affairs.

The economic effects of violent crime are costly to the community, the taxpayers and those directly involved in the crime… the victims and the perpetrators.

Murders, rapes, assaults, and robberies quite frequently impose overwhelming economic costs on the victims who survive as well as the families of those involved, not only in the loss of earnings and the legal and medical costs involved, but also the physical and emotional tolls.

Communities also are affected by violent crimes by property values decreasing and insurance premiums increasing. Communities also see reduced investment in high-crime areas along with decreasing population in these areas which lower the tax base for the community.

When the tax base or population is lowered, the cost of community services increase per person and at times the services themselves decrease due to the costs involved.

Violent crimes also impose significant costs on the community and the taxpayers who bear the financial burden of maintaining the police personnel and operations, courts, jails, and prisons directed toward these crimes and their perpetrators.

Also, it may not be considered an economic effect of violent crime in the community, but we also have to be aware that violent crimes are a direct threat to our safety and the safety of our children and grandchildren.

Successful efforts to reduce crime can produce substantial economic benefits for the community as a whole.

Changing Times & Laws

Reflections on Changing Times & Laws

Spending time involved in the court systems brings to ones attention on how much the law has changed thru out history.

Looking back into past history, we see that time moves forward, nations emerge and other ones vanish, our customs change, but it seems that man does not.

The first documented murder happened when Cain killed Abel in the Bible and crime has not stopped since. Laws were instituted by man in order to protect society and the court systems have evolved to uphold the laws.

In the past, stealing a man transportation (his horse) was a hanging offense for the offender and oftentimes a death sentence for the owner of the horse, especially if he was left stranded in the wilderness of the wild west without any food or water.

In todays world, stealing a mans transportation (his motor vehicle) is often done for a thrill by some and a business by others. It’s no longer a hanging offense and most of our society does not seem to be too concerned with the offense…. possibly the owner of the vehicle is… especially if its not insured. The thief might be, if he or she it caught.

In the past, murder was also a hanging offense and justice was often swift. Justice might have been in the form of a legal execution by hanging by the neck until dead or sometimes by vigilante justice. Or many times by family members that believed in an “eye for an eye”, especially when a marshal, sheriff or lawman might be many days travel away. Most of us “oldtimers” are familiar with the “Hatfield & McCoy Feud” which is an example of family members dispensing what they consider “justice”.

Over time, reasons for crimes such as killing and stealing have changed. They still happen, but in many different circumstances. Just watch the news and you will see what I mean. We now classify crimes into different categories with punishment to suit. In past history, murder and many other crimes was a hanging offense or death sentence. In todays society, maybe not!

In todays society, justice is usually not quite as swift, as the court systems at times move slowly. Moving slowly with some calm deliberation about dispensing justice is one way of trying protect the accused rights. Usually, opinions vary on whether justice is dispensed fairly by the parties involved, depending on which side of the law they are on at the time.

As we look at crimes and conditions in other countries and also the crime in our own country, I think most will agree that we need laws designed to protect the innocent and society as a whole.

Best DWI Lawyers in El Dorado AR

Best DWI – DUI Lawyers in El Dorado Arkansas

Some Attorneys do have a better success rate than others in defending certain criminal charges.

To decide which DWI – DUI Lawyer in the El Dorado Arkansas is best for you, ask how successful they been in defending these charges.

Naturally, anyone that has been given a ticket or arrested on any charge would like to have the charge dismissed, but in many cases that may not happen.

If you have been arrested for DWI – DUI, you may want to meet with a attorney to discuss your case. A competent attorney should be able to advise you as what to expect.

If there is no chance of getting the charges dismissed, talk to your attorney about the possibility of getting them reduced.

A DWI – DUI can mean large fines, possibly jail time, loss of your vehicle and can affect your drivers license, driving privileges, insurance rates, job, and even your marriage.

The State of Arkansas has the burden of proving beyond a reasonable doubt that a driver was intoxicated and was operating or in actual physical control of the vehicle at the time the investigation began.

A well-educated, properly trained and sufficiently experienced DWI defense lawyer will make an independent investigation to discover all of the information which the police officer had at the time of the arrest in order to make an independent determination whether the facts will support a conviction. Moreover, that lawyer will design his defense to demonstrate the weakness of the state’s proof.

Gary McDonald is that well-educated, properly trained, sufficiently experienced lawyer who is not afraid to assert a vigorous defense on your behalf.

For a FREE case evaluation, call Gary McDonald at the McDonald Law Firm.
Offices Located in Simmons First Bank Plaza
100 West Grove Suite 308 El Dorado AR
PHONE (870) 862-1498 FAX (870) 862-4071
E-Mail: gary@garymcdonald.net

SOBERING FACTS

SOBERING FACTS – Drunk Driving in Arkansasdwi

According to the Behavioral Risk Factor Surveillance System about 1.9% of drivers on a national average report driving after drinking too much.

The statistics for Arkansas where drivers report driving after drinking too much is 1%.

In the US about one third of traffic fatalities involve a drunk driver.

Drivers with a blood alcohol concentration of 0.08% or higher are considered alcohol-impaired by law – considered to be drunk drivers.

A conviction for a DWI in Arkansas carries heavy penalties.

Keep Arkansas safe. Keep drunk drivers off the road.

Arkansas DWI

WARNING: If you have been arrested for DWI in Arkansas your drivers license may be automatically suspended unless you take immediate action!

Arrested for DWI in El Dorado, Camden, Magnolia, Lewisville or Texarkana Arkansas?

Call Gary McDonald (870) 862-1498

Getting a DWI in Arkansas can be a very intimating event. Going through the court process with a DWI or Drunk Driving Arrest can extremely stressful and scary, not to mention costly.

You will need a qualified DWI attorney who knows the DWI laws in Arkansas.

 Gary McDonald knows the lawUnion County Courthouse and is Experienced

▪ Dozens of Jury Trials
▪ More than 100 DWI trials
▪ Hundreds of DWI Clients represented
▪ Thousands of hours spent in courtroom   

If you have been charged with Driving While Intoxicated (DWI) in the State of Arkansas, you are facing potential fines, jail time, community service, permanent damage to your record, loss of liability insurance and a loss of driving privileges.

You need the services of a well-qualified DWI defense lawyer.  Police Officers and Prosecuting Attorneys will be trying to convince a Judge to assess driver’s license suspensions, heavy fines, court costs and jail sentences against you.

Call Gary McDonald at 870 862-1498 for a FREE Consultation!

MORE HELP FOR VETERANS

MORE HELP FOR VETERANS!!!!!

The Veterans Administration has developed what is being called the “Veterans Justice Outreach Initiative”.  According a Department of Veterans Affairs, April 30, 2009, Under Secretary for Health’s Information Letter, “The purpose of the initiative is to avoid the unnecessary criminalization of mental illness and extended incarceration among Veterans by ensuring that eligible Veterans in contact with the criminal justice system have access to Veterans Health Administration (VHA) mental health and substantive services.”

In Arkansas, the initiative is being administered through the Central Arkansas Veterans Healthcare System.  The initiative is one of many programs that is being offered.

Although the initiative does not prevent or preclude a veteran from having to face the consequences of his or her actions, it does allow a knowledgeable criminal defense attorney an additional avenue to better serve the client.

The VJO Initiative website can be accessed at http://www1.va.gov/HOMELESS/VJO.asp.

If you would like to learn more about Veterans Treatment Courts, please see the  Justice for Vets site.

Endangering the Welfare of a Minor

Endangering the Welfare of a Minor

Drivers who operate a vehicle with minor children as occupants should beware. An old law is being applied in a new manner and could have far reaching effects.

          The Arkansas Legislature passed law decades ago concerning the endangerment of the welfare of a minor or child.  That law, codified as Arkansas Code Annotated, Section 5-27-205, has rarely resulted in arrests.  The law in pertinent part provides that:

(a) A person commits the offense of endangering the welfare of a minor in the first degree if, being a parent, guardian, person legally charged with care or custody of a minor, or a person charged with supervision of a minor, he or she purposely:

(1) Engages in conduct creating a substantial risk of death or serious physical injury to a minor;”

(b) Endangering the welfare of a minor in the first degree is a Class D felony.”

          As one can readily conclude, the law is very broad in nature and can be literally construed to cover a large number of activities.  I have been retained recently in two separate cases, each of which involves a young parent who was operating a vehicle while his or her young child was a passenger. In each of those cases, the Arkansas State Police have interpreted an old law to apply to new factual situations.

          In the first of those cases, the young parent was driving 95 miles per hour in 55 miles per hour speed zone.  An Arkansas State Policeman made a traffic stop and thereafter issued multiple citations for alleged illegal activities.  One of those charges was for the offense of endangering the welfare of a minor in the first degree. 

          In the second of those cases, the young parent had been to a party at a neighbor’s house.  When the parent left the party to travel a very short distance to their home, a young child was correctly secured in a child restraint device/seat.  While enroute home, the vehicle passed through a DWI checkpoint.  The driver was ultimately charged with DWI and endangering the welfare of a minor in the first degree.

In each of those cases, the young parent faces up to 6 years in the penitentiary, if convicted.   The legal issue in both cases is whether the parent/driver was engaging in conduct that created a substantial risk of death or serious physical injury to a minor.  Stated differently, does driving while impaired or driving at an excess speed constitute conduct that in and of itself creates a substantial risk of death or serious physical injury to the minor occupant.  The appellate courts of Arkansas have yet to consider that question.

          Until just recently, I was unaware of the law having been applied to motorists who were driving with minor children in the vehicle.  The referenced arrests were made within a thirty-day period of time by separate officers.  I firmly believe that we will be seeing many more arrests of motorists on felony charges of endangering the welfare of minor passengers. 

Whether those arrests will lead to convictions is yet to be determined.  I suspect that most motorists would never dream that he or she could be sentenced to the penitentiary for speeding or for driving under the influence of alcohol/drugs.  Drivers should beware that the combination of minor children occupants and driving at a speed greatly in excess of the posted speed limit and/or driving while under the influence of drugs and alcohol can be considered as irresponsible driving.  Those same drivers should beware that irresponsible driving may result in the filing of felony charges.

STANDARDIZED FIELD SOBRIETY TESTS

STANDARDIZED FIELD SOBRIETY TESTS

A client once referred to the standardized field sobriety tests as “those silly tests that the cops make drivers perform on the side of the highway”. The implication of that statement is that the tests have no rational basis. However, if the tests are performed correctly, judges accept the results as evidence of impairment.

Thanks to organizations like the National Highway Traffic Safety Agency (“NHTSA”) and Mothers Against Drunk Drivers (“MADD”), law officers nationwide are on the lookout for drivers who are impaired by alcohol and other drugs. NHTSA has provided the training to catch and prosecute impaired drivers. MADD has mounted a nationwide movement to assure that impaired drivers are not only caught but are also punished.

NHTSA mounted a systematic approach to the identification of impaired drivers in the mid-1970s. At that time, law enforcement officers across the nation used an ad hoc basis for determining whether a given driver was impaired by alcohol. At that time there were a number of tests that were administered to drivers who were believed to have been driving while impaired by alcohol.

As one such test, the officer would drop a number of coins on the street and direct the driver to pick up the coins. It was believed that an impaired driver would not have the dexterity to retrieve the coins without stumbling or fumbling.

Another test required the driver to attempt to draw a circle on a piece of paper with a pen. The lack of symmetry of the circle was believed to demonstrate impairment.

Another test required the driver to recite backwards from a certain specified odd number to another specified odd number. It was believed that alcohol impairment would be demonstrated by the driver’s inability to concentrate and thus count incorrectly.

A further approach was to require a driver to recite the abc’s from a given letter other than “a” and ending with a letter other than “z”. A further approach required the driver to stand with eyes closed, with head tilted backward and attempt to touch the driver’s nose with the tip of his or her finger.

Other common tests for impairment included the horizontal gaze nystagmus, the walk and turn and the one leg stand tests.

NHTSA set out to determine whether any or all of such tests would consistently and accurately demonstrate impairment. It funded research for three specific studies in an attempt to validate a method to accurately judge a driver for impairment. When those tests yielded positive results, it funded additional tests in the 1990’s.

After spending a great deal of money, NHTSA concluded that there were only three tests that validly, consistently and accurately demonstrated driver impairment, those being the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. After reaching that conclusion, NHTSA set out to standardize the procedures by which those tests should be performed, to standardize the “clues” that demonstrated impairment and to standardize how the test was to be graded.

Those validated tests are generically referred to as the “standardized field sobriety tests”. As the name suggests, standardization requires that the tests be administered, judged and graded in a specific manner and order. Standardization requires the officer to administer the horizontal nystagmus test first, the walk and turn test next and the one leg stand test last.

Horizontal Gaze Nystagmus. Alcohol and other central nervous system depressants cause a condition known as “horizontal nystagmus”. Horizontal Nystagmus is defined as the involuntary jerking of the eyes as they gaze toward the side of the head. Nystagmus cannot be controlled and is capable of clearly demonstrating impairment.

To administer the horizontal gaze nystagmus (“HGN”) test, the officer will instruct the driver to stand up straight with heels together while looking forward. The officer will then position an object such as a pen or pen light directly in front of the driver’s nose and slightly above the driver’s eye level. The officer will instruct the driver to follow the tip of the pen or pen light with only the eyes while keeping the head still.

The officer will first view the driver’s eyes to determine whether pupil are the same size and whether the eyes jerk while looking forward. If those conditions are not present, the officer will then make two complete passes of the pen or pen light from its starting position in the middle of the face toward the driver’s left, then toward the driver’s right. The officer will be checking to determine whether the eyes tract equally.

The officer is looking for three clues: lack of smooth pursuit; distinct and sustained nystagmus at maximum deviation; and, onset of nystagmus prior to 45 degrees. Each eye may demonstrate none or all three of the clues. Each eye will be checked twice and separately for the presence of each clue.

Lack of smooth pursuit. The officer will then make two complete passes of the pen or pen light from its starting position in the middle of the face toward the driver’s left, then toward the driver’s right. The officer will then repeat the movement (two passes) to check to determine whether the driver’s eyes smoothly pursue the pen or pen light.

Distinct and sustained nystagmus at maximum deviation. The officer will then make two additional passes to determine whether the driver’s eyes jerk horizontally while looking toward the side as far as the eyes will turn. Officers are trying to determine if horizontal nystagmus (sideway jerking) exists at the maximum deviation (looking to side as far as physically possible) after the eyes have held that position for a minimum of four seconds.

Onset of nystagmus prior to 45 degrees. Finally, the officer will attempt to determine whether the jerking begins prior to the point where the eyes are turned sideways to 45 degrees.

The officer is looking for the presence of those three clues in each eye. Each eye may demonstrate none or all three of the clues. A driver who is judged to have four clues will be considered impaired.

Although it is easy to recite the procedures that must be followed, courtroom experience has taught that only officers with a great deal of experience in administering the HGN test can administer the test proficiently. In many jurisdictions, officers receive very little if any training and thus do not administer the test correctly. When questioned about the results of the HGN test, a poorly trained officer will be able to recite the three clues but will not be able to demonstrate the proper administration of the test.

A HGN test that is improperly administered is not a good indicator of impairment. However, a HGN test properly administered will provide test results that correctly identify impairment approximately 88% of the time. However, many judges give little or no credence to testimony from officers concerning the results of the HGN test. Perhaps this reflects an attitude that the officers are not sufficiently trained to administer and judge the results of the test.

Walk and Turn. Standardization requires the walk and turn test to be administered next. There are two stages of this test, the instruction stage and the walking stage. During the instruction stage, the driver will be advised: To assume a heel to toe stance with the right foot being the front foot; To place arms at the sides; Do not start until told to start; Imagine a straight line; To take nine heel to toe steps on the imaginary line beginning with the left foot, turn around by taking a series of small steps with the right foot and take nine heel to toe steps back; To keep watching his or her feet; To keep his or her arms to the side; To count steps out loud; and, Do not stop walking until the test is completed. The next stage is the walking stage and begins when the office advises the driver to start.

There are eight clues of impairment. The first two clues may occur during the instruction stage. Those clues are observed when the driver cannot maintain his or her balance while in the heel to toe stance and when the driver starts walking prior to be told to do so. The remaining six clues may occur during the walking stage of the test. Those clues are observed when the driver stops walking prior to finishing the test, when the driver misses a heel to toe step, when the driver steps completely off the line, when the driver raises both arms six inches or more from his side, when the driver makes an improper turn, and when the driver takes an incorrect number of steps.

The studies performed by NHTSA determined that 79% of the drivers who exhibited two or more clues during this test were impaired. Most judges give a great deal of credence to the testimony of officers concerning the walk and turn test. Perhaps one reason is that quite often the test is captured on electronic media and thus can be readily seen by the judge.

One leg stand. Standardization requires the one leg test to be administered next. There are two stages of this test, the instruction stage and the balancing and counting stage. During the instruction stage, the driver will be advised to: Stand straight; place feet together; keep arms at side; and, Maintain position until told otherwise. During the balancing and counting stage, the driver will be advised to: Raise either leg; Keep the raised foot approximately 6 inches off the ground; Keep both legs straight and arms at his or her side; Keep eyes on the raised foot; Count out loud in the following manner, one thousand one, one thousand two and so on until told to stop. The officer will then time the driver for 30 seconds.

There are four clues of impairment concerning the one leg stand test. Those clues are demonstrated when the driver puts his foot down prior to be instructed to do so by the officer, when the driver uses his arms to balance, when the driver sways during his performance and when the driver hops to keep from putting his foot down.

The studies performed by NHTSA determined that 83% of the drivers who exhibited two or more clues during this test were impaired. Most judges give a great deal of credence to the testimony of officers concerning the one leg stand test. As with the walk and turn test, perhaps one reason is that quite often the one leg stand test is captured on electronic media and thus can be readily observed by the judge.

McDonald Law Firm
Offices Located in Simmons First Bank Plaza
100 West Grove Suite 308 El Dorado AR
PHONE (870) 862-1498 FAX (870) 862-4071
E-Mail: gary@garymcdonald.net