I've recently answered some questions on Avvo.

Why should my content stay there when I can post them here as well? Here are some of my recent answers to various questions. I think these are pretty OK. Any typos or spelling issues are directly from the source, including mine. Sorry about that.

How long after you are arrested and bailed out does the DA have to issue a citation?

I was arrested for domestic abuse 8 days ago, my sister bailed me out that night for 700 dollars as they added a battery charge. I still have not been issued a citation or given any sort of information about the charges.

Jeffrey’s Answer

It is not a requirement, no, but you should contact, and possibly retain, a local criminal defense attorney before the decision is made. The statute of limitations is three years for misdemeanors and six years for felonies, so they have plenty of time to decide.

What is the fastest way I can reinstate my license in Lake Country County/Waukesha?

My license is suspended in Lake Country County - Oconomowoc. I need to reopen my case. How can I get into court sooner than my September 14th courtdate. The fine has already been paid, however, they are still keeping my license suspended.

Jeffrey’s Answer

Perhaps? You will need to provide more context about your situation and the reason for the license suspension. But you should provide that context during a private phone conversation or office appointment with a local criminal / traffic defense attorney, and not on a public website like this one.

Im 16 my man is 22 are we legal without sex?

ill be 16 in two months and my boyfriend is 22. we have been together for a month and no sexual contact involved. My grandparents threatened to call the cops and arrest him, can he get arrested if there's no sex? And are we legal once im 16?

Jeffrey’s Answer

"Can he get arrested if there's no sex?" Here's the thing: people get arrested all the time for things they didn't do. And he's not going to have an alibi if there's an accusation made, because you two are apparently together at times. And I suspect there won't be witnesses who can account for every second you are together and confirm that nothing physical ever happened. And people get convicted of things they didn't do more often than society should be comfortable with. Can your grandparents get him arrested? I bet they could.

"And are we legal once I'm 16?" No. Look, I don't have the expertise to provide an expert opinion on the propiety of your relationship, but I agree with the other answers here that this is a bad idea for both of you. Maybe in another 26 months?

IIf I sent a nude to a minor can I go to jail?

Me and a girl met and she sent me nudes and I sent her some I was 25 and she was 15

Jeffrey’s Answer

The bigger problem is the child pornography you have just admitted to receiving.

I pressed charges of simple assult on my ex boyfriend but do I have to show up in court ?

Callers the police on my ex boyfriend but I don’t want nothing to happen to him

Jeffrey’s Answer

If you receive a subpoena, which is a court order, you must comply and appear as directed. You did not press charges, the prosecution did, and they are the ones who decide how to prosecute the case. If you want your position to be considered, you should make sure that they are aware of it, potentially through counsel.

Do I have a case .2yr court to court spent 9days in jail still haven't charged with nothin video proof shows not me . ?

Video an still shot of surveillance camera evidence..shows its not me ...an court a point comes up to me says sec. other courts...an wants me to take a plea ,for mister minor charge. When video shows it not me .????goin on 2 half yrs now...having...

Jeffrey’s Answer

This is a question that you should be asking your attorney, who has more information and familiarity than anyone on this site. If the situation was as simple as you suggest, then I would expect a dismissal as well, but federal cases (the practice area you identified) are rarely as simple as you suggest.

Does my wife lose rights to a vehicle if she used the vehicle for her affair?

My wife had used a vehicle to leave on a vacation with the man she's having an affair with. If the vehicle was used for her affair does she lose her right to claim it as her vehicle?

Jeffrey’s Answer

I don't see how or why that would be the case.

What can i do to get a present back from someone that costed lots of money?

Okay, so my mom and her boyfriend are going through a break up, and last year she got him a $450 dollar PlayStation 4, and we want it back. But, he will not give it back, even after we politly have asked, with no force, and he claims he bought it ...

Jeffrey’s Answer

If it was a gift to him, and they weren't married, I don't see why your mother would have any claim at all to it, especially if the breakup occurred so long after the gift was given.

Can I sue someone that's on disability

Someone trying to sue me but im I am on disability

Jeffrey’s Answer

Being on disability does not give someone immunity from the law.

Be the one. But not that one.

Two things about this article stand out to me. (Read it now. It's short enough.) The first is the jury's guilty verdict and the jurors' apparent reluctance to return it.

What the jury did was extraordinary. They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony. But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

“The general sentiment was she was a victim, too,” said the jury foreman, Jeffery Memmott. “Two of the women [jurors] were crying because of how bad they felt. One lady pulled out a $20 bill, and just about everybody chipped in.” Memmott then contacted the public defender in the case, and went to the home of Sandra Mendez Ortega. He gave her the jury’s collection, which totaled $80.

“Justice had to be done,” said another juror, Janice Woolridge, explaining why the panel imposed a felony conviction. “But there’s also got be some compassion somewhere. Young people make bad decisions. We just couldn’t pile on any more.”

If the jurors unanimously agreed that the defendant was proven guilty beyond a reasonable doubt, and unanimously agreed that "justice" required a felony conviction, then so be it. But that may not have been the case.

“We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her. But the legal standard was very clear.” Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.

But there was "some way of not convicting her" that all juries serving in criminal cases have: returning a verdict of "not guilty." "Jury nullification" refers to a jury's decision to find a defendant not guilty despite its unanimous conclusion that the government had proven the defendant's guilt beyond a reasonable doubt. Jurors are often told explicitly that they have no power to disregard the law, but the fact of the matter is that a not-guilty verdict cannot be challenged after it is returned, and the jury's basis for such a verdict cannot be examined.

Off with her head.

Off with her head.

Perhaps the jury in this case knew this, but still believed that a felony conviction was appropriate. But the sentiment presented in some of the quotes in the article suggest that this may not have been the case. You may have noticed that I've made several references to the requirement that a jury verdict must be unanimous. This is particularly important in a case like this one, where emotions clearly ran high. If even one of these jurors had refused to agree to a guilty verdict, then there would have been no conviction. (On the other hand, then there could have been a second trial where the defendant would have received a more substantial sentence.)

Jury nullification is such a controversial topic that it cannot even be mentioned during a criminal trial, and certainly not affirmatively presented to a jury by a judge during that judge's instructions to the jury. As I mentioned earlier, the power of nullification is not a "power" given to juries, but rather the practical result of such a verdict being immune to challenge. In addition, our country's history is filled with juries deciding to ignore the evidence and law presented to them, but with the result being the conviction - and sometimes the lynching - of innocent defendants. I am not privy, of course, to the negotiations and other factors that may have impacted the prosecution's decision to seek a felony conviction for this defendant, but the party with the clearest power to prevent a felony conviction in the case was clearly the prosecution, not the jury.

The second thing that stands out to me is the victim's response:

A happy holiday story, right? Well what if you’re the woman whose rings were stolen? Although she was not pleased when the jury returned from their deliberations with only a $60 fine for the felony conviction, crime victim Lisa Copeland was appalled when she learned that the jury had also paid the fine.

“I just pray that they’re never in my shoes,” Copeland said. She said Mendez Ortega never accepted responsibility for the theft. “If she had accepted accountability, I would be okay with all of this. The fact that she won’t accept accountability makes it wrong.”

Copeland said Mendez Ortega told a lies from the start and then unfurled a tragic life story that  convinced the jury to impose a punishment of a $60 fine. “I was outraged,” Copeland said. “I was just flabbergasted. I didn’t think $60 equated to the crime at all.” She did not know the jury had taken up a collection for Mendez Ortega until she was contacted by a reporter.

To be clear, the stolen rings were returned. And one of the effects of these incidents becoming criminal cases is that the honest remorse that a defendant feels doesn't get communicated to the victim. When that remorse was clear during the police investigation, though, the responsibility to see that remorse communicated to the victim should fall on the police or the prosecutor. That didn't happen here.

Mendez Ortega reportedly felt bad about the theft, admitted to her boss that she had the rings and turned them over to him. The police were contacted and Mendez Ortega confessed to them as well, saying she returned the rings after learning they were valuable. The police had her write an apology letter to Copeland, in Spanish, which said in part, “Sorry for grabbing the rings. I don’t know what happened. I want you to forgive me.”

Copeland said she has never seen that letter, and that Mendez Ortega has never apologized to her in person. “Never saw it,” Copeland said. “Never heard about it until the trial, during sentencing.”

To be fair, I've never, to my knowledge, been a victim of this type of offense. But I hope I would feel just a little bit more empathy. At the very least, I hope I would be able to recognize that others may be able to feel some.

Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her? I don’t get this. That’s basically saying it’s okay to steal.”

No, it's not saying that. Whether one's conduct is wrong is not dependent on whether one is convicted of a crime for that conduct.

Then during the sentencing phase, Mendez Ortega took the stand. She faced a possible sentence of up to 20 years in prison and a fine of up to $2,500. She told the jury she had dropped out of school after sixth grade, that she first became pregnant at 15,  that she was pregnant again at 19 and had no job, according to court records.

“The whole time she was telling the sob story,” Lisa Copeland said,

Happy new year.

The Officer Is Not, and Never Shall Be, Your Friend.

Dear Client,

You are smarter than this. You have a decent head on your shoulders. I truly believe this. Seriously.

I don't say "decent" instead of "good" merely because you found yourself in a position where you needed an attorney. Some of my clients have done dumb things, to be sure, but certainly not all of them, and no one is as dumb as the dumbest thing he or she has ever done.

Nor, dear client, am I tempering my praise of your intelligence in this instance merely because you have come to me today with a new problem. You have heard through the grapevine, or from some police contact, that you are being accused of something completely divorced from the thing you are being accused of that led to my representation. This sort of thing happens. Perhaps I can fault you for putting yourself in a position to find yourself accused of something new, but that's a different issue for a different blog post.

No, dear client, what has me face-palming today is your unsupported belief that providing your version of events to law enforcement will make all of this go away immediately. Come on. You are smarter than this. Your thought process is why this works:

“Hello,” the message read, addressing the man by his first name. “This is Officer Smith. My address is as follows: 4310 SW Macadam Ave. Portland, OR 97239. Please feel free to call me with any questions that you have. I will need to heard [sic] from you soon.”

“Officer Smith” is Scott P. Smith, an agent with US Immigration and Customs Enforcement (ICE). The address on Macadam is the local ICE headquarters in Southwest Portland. The man he texted, who the Mercury has agreed not to name, is suspected by ICE to be living in the United states illegally and was recently charged with a misdemeanor in Multnomah County.

Smith soon got the man on the phone, attorneys say, and manipulated him into divulging his native country and immigration status. The agent was collecting evidence against him for a potential deportation proceeding.

It doesn't even matter whether your version of events clears you of all wrongdoing. If it does, the officer likely won't believe you and won't care. Perhaps you think that the officer will investigate your version of events, realize that you are completely innocent, and everything will be fine. You are as incorrect as the experts who worried that Miranda v. Arizona would eliminate all confessions. Both you and those experts falsely assumed that people are rational. People are not rational. And you are a person. Do you see where I am going with this?

You are smarter than this. I truly believe that you are. Talk to me before you talk to the police. And don't post all of the details about your specific situation like this person, who at least didn't go straight to the police department:

 

Notice the unanimous advice?

Notice the unanimous advice?

"Hey Jeff, you're a criminal defense attorney. I have a legal question for you. What's the difference between DUI and OWI?"

That's quite the question you have there, faceless amalgam of friends, family, clients, and random people who stop me on the street and in the courthouse while I'm wearing a suit. I suppose there are two different ways to answer that question, depending on what you're really asking.

What does it mean that I'm charged with "OWI" instead of "DUI" or "DWI"?

It means that you were charged in the State of Wisconsin. Wisconsin uses the phrase "Operating While Intoxicated" instead of "Driving While Intoxicated" or "Driving Under the Influence," so anyone who says they were arrested for "DUI" within the borders of the state is not using the correct legal term. If a lawyer uses the wrong term with you, correct the lawyer; he or she will respect you more for it and will stop talking down to you. If a friend uses the wrong term with you, never speak to them again.

What does it mean that Wisconsin uses of "OWI" instead of "DUI" or "DWI"?

Now we're talking. There is a difference between "driving" a vehicle and "operating" a vehicle. According to the statute, "'Drive' means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion," and "'Operate' means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion."

Under these definitions, then, you can't "drive" a vehicle that isn't moving, but you can definitely "operate" one. Turning the ignition? You aren't exercising physical control over the speed and direction of the vehicle (yet), but you are activating one of the controls necessary to put it in motion. As the Wisconsin Court of Appeals put it in Milwaukee County v. Proegler,

The prohibition against the "activation of any of the controls of a motor vehicle necessary to put it in motion" applies either to turning on the ignition or leaving the motor running while the vehicle is in "park." One who enters a vehicle while intoxicated, and does nothing more than start the engine is as much of a threat to himself and the public as one who actually drives while intoxicated. The hazard always exists that the car may be caused to move accidentally, or that the one who starts the car may decide to drive it.

You may be tempted to say, "But Officer, I was just sitting in the driver's seat! My friend started it for me! I was just staying warm!" Shut up! Don't say anything! Ask to speak to your attorney! You'll convince a jury you didn't operate the vehicle before you convince the officer of that, but if you (by which I mean "you and your attorney") can convince the jury of that then you should be acquitted, like the defendant in Village of Cross Plains v. Haanstad:

According to the explicit words of the statute, in order to "operate" a motor vehicle, the statute requires that the person physically manipulate or activate any of the controls of the motor vehicle necessary to put it in motion. The Village does not dispute, and the court of appeals concluded, that Haanstad never physically manipulated or activated any of the vehicle's controls. She did not turn on or turn off the ignition of the car. She did not touch the ignition key, the gas pedal, the brake, or any other controls of the vehicle. Haanstad simply sat in the driver's seat with her feet and body pointed towards the passenger seat. Haanstad did not "operate" a motor vehicle under the statute's plain meaning.

PRO TIP: It helps if you can remember your friend's name and phone number. Your attorney will want that information. Don't underestimate the power of circumstantial evidence suggesting you operated the vehicle.

None of these distinctions matter, of course, in most OWI/DUI/DWI cases, since most begin with a police officer conducting a traffic stop and seeing the eventual arrestee behind the wheel. "Driving" counts as "operating," obviously. In conclusion, don't drink and operate, folks.

Get Your "Kik"s

I strongly suspect that practicing criminal defense law makes it impossible for me to read certain news articles with a perspective that could be labelled anything close to "normal." Consider the following fear-mongering:

Soon after Raleigh, North Carolina, police arrested registered sex offender Thomas Paul Keeler II in March last year, they discovered he was an avid user of Kik Messenger, the Canadian communications app billed as the West's alternative to WeChat. He was a member of more than 200 Kik groups with names like "kidsnbabies," all dedicated to trading child abuse material, including images and videos of minors aged between three and 12 "engaged in sexual acts with adults," according to a search warrant obtained by Forbes. In total, Keeler, who is awaiting sentencing after filing a currently-sealed plea agreement, shared and received such content with as many as 300 different individuals over less than a year, the government claimed.

This astonishing level of illegal content might appear unique, but in recent years this kind of activity has become rampant across Kik. A joint Forbes and Point Report investigation has uncovered evidence of a vast number of child exploitation cases involving the use of Kik, where some of the most appalling material is being shared and young girls and boys are being targeted for grooming. Posing as 14-year-old girls, we also discovered just how quickly predators were on the prowl and how third-party apps for sharing profiles appeared to be facilitating access to minors. And we found that Kik hasn't even been deleting the profiles of individuals charged and convicted of child abuse offenses.

I'm not sure who bills Kik "as the West's alternative to WeChat," especially since "WeChat" is the name for the official "western" version of Weibo. Anyway, I suppose the knee-jerk reaction to any article focused on a single app or platform, like this one is, will invariably be "DELETE THIS APP FROM UR PRECIOUS CHILD'S IPHONE NOW!!!!!," much easier advice than the more nuanced concept of paying closer attention to the variety of apps and communications platforms that one's child uses to communicate. Unfortunately, reporter Thomas Fox-Brewster waits until the article's final paragraphs to spread the suspicion around:

Experts say predators are now diversifying, using Kik as just one platform to carry out their crimes. Increasingly, streaming apps such as Facebook Live, Live.me, Twitter's Periscope and newer tools like Musical.ly and Oovoo are being used to contact children for potential grooming. One search warrant detailing a case from Ohio where police said they found one suspect was using a range of those applications and Kik in hunting for underage girls.

"Offenders are using multiple apps simultaneously in the course of their offences, including to speak with the same victim. For example, from Kik, to Facebook, to Skype," added U.S. attorney [Zach] Myers.

It's not just Kik that has plenty of work to do to ensure young web users are safe from abusers.

My reaction to this Forbes article as a criminal defense attorney is colored by my experience with this topic from the other side of the problem. On the rare occasion that I find myself reading about Kik, it tends to be in the police reports of clients accused of soliciting minors. Nothing good happens after [insert time here], and nothing good comes from chatting with strangers on Kik. Though perhaps bad for business, I do appreciate this article suggesting the same:

There's also evidence American investigators are treating Kik like a honeypot. The Canadian company provides a full guide for cops on how to use the app, while feds are running a significant array of fake profiles, even encouraging suspects to communicate with them over Kik rather than other platforms.

In November 2016, District of Columbia Metropolitan Police Department detective Timothy Palchak, acting in an undercover capacity on an unnamed classified ads site, interacted with a user who expressed an interest in incest, looking for a "mother with no limits," according to a criminal complaint. Soon after getting in touch with the suspect, Palchak wrote in internet speak: "Whats your kik dont like discussing on email."

In an earlier case, a separate investigator failed in an attempt to get the target to move over to Kik. A suspect responded to another of Palchak's advertisements in August 2016, to which the officer wrote: "Sweet 30 dad here with daughter. Do you have kik? easier to talk." The suspect replied: "How old is she? I actually don’t. Honestly probably not the safest place to chat. I know a guy its talking to who said it wasn't."

Cops are going to incredible lengths in order to pursue offenders too. Police said in one warrant that in response to a request for an image from a suspect, who believed they were talking to an underage girl, the undercover agent provided a real photo of an unnamed officer assuming the identity of a 14-year-old.

I have three reactions. First, "Whats your kik dont like discussing on email." is not "internet speak." Second, it's cute that Mr. Fox-Brewster considers it "going to incredible lengths" to "provide[] a real photo of an unnamed officer assuming the identity of a 14-year-old." Third, maybe it's not Kik that has a "Huge Child Exploitation Problem," as the article's title indicates. Maybe it's the real world that has the problem, and Kik is merely the newest ghetto to which the problem has been chased.