Wednesday, December 16, 2015

More about DWI cases

To the person who wrote me a recent comment that I'm not going to publish, I want to say thank you so much for what you said. It was really touching & lifted my otherwise-rather-glum spirits. Thank you for taking the time to reach out & tell me your thoughts. It meant a lot.

In rather exciting news, a case from Minnesota has been picked up by the United States Supreme Court!!! This is probably the closest I'll ever get to being at SCOTUS, so I'm nerding out about it. It's even a case I've talked about to you all! It's the Bernard case involving whether or not the state can make it a crime to refuse to submit to a dwi test. I've voiced my opinion that I think it's wrong to charge a person with a crime for not consenting to a search. And the law in Minnesota on this topic continues to be a moving target. The court of appeals recently held that the state cannot make it a crime to refuse to provide a blood sample. The Bernard decision had dealt with breath samples--it's ok for the state to charge you with a crime if you refuse a breath sample.

So, presently, here's what we know on this topic:

If you're arrested for a dwi & refuse to provide a breath sample, you can be charged with test refusal.

If you're arrested for a dwi & refuse to provide a blood sample, you can't be charged with test refusal.

If you're arrested for a dwi & refuse to give a urine sample, who the hell knows? The courts haven't decided this yet.

To make the cluster even more fucked, the statute says that if a cop first asks for a blood sample & the person refuses, a urine or breath test must be offered instead and if a cop first asks for a urine sample & the person refuses, a blood or breath test must be offered. So you can refuse some tests but not others & some we don't know if you can refuse & sometimes the cops have to offer you a different test which you may or may not be able to refuse.

So. That's fun. Good luck trying to understand that mess.

The right to refuse the blood test causes the most trouble for drug-dwi cases, when it's not alcohol that's the issue, it's drugs. Unlike alcohol, you can't smell it on someone & it doesn't show up on a portable breath test. And many of the "possibly high" indicators are also "possibly medically related" indicators. I had a dwi case once where the police thought it had been drugs, but turned out the guy had had a seizure. Slow cognition, droopy eyelids, confusion, garbled speech...hard to say what causes that without a tox screen of the blood. And any defense attorney with half a brain would be able to get a case like that either outright dismissed or to win at trial if there's no proof of any drugs in the person's system. In the past if a person refused to give a blood sample, they'd still get charged with a crime for refusing. (The most ridiculous parts of the test refusal statute are that 1. The penalty for refusing is almost always more severe than failing the test, so ACTUALLY DRIVING WHILE INTOXICATED is less serious than not giving a sample and 2. Yo can be charged with & convicted of a dwi-test refusal even if you were 100% sober. So combine those two stupid things and you wind up with the possibility that a completely sober person who values their civil liberties & refuses to consent to a sample gets a gross misdemeanor dwi-test refusal charge with the possibility of a year in jail, while an actually intoxicated person driving with a BAC of .15 gets charged with a misdemeanor dwi with the possibility of 90 days in jail. Way to keep our roads safe, legislators!!!!)

The easiest fix to all of this is to just make cops get a warrant for a blood, breath, or urine sample. Then there's no arguments to be had about the test refusal law & what type of tests you can or can't refuse, etc. When I get a case w/ a warrant involved, my immediate reaction is, "well shit" bc most of the time, that will prevent any 4th Amendment arguments about unlawful searches or seizures. All that terrible, horrible, damning evidence that tanks any case we may have gets to all come in. And the thing I challenge the most during pretrial hrgs is warrantless searches (and not to brag, but I win a lot of those, too. Bc I'm a badass.). So, the quickest & easiest way to head off all these issues w/ dwi tests is to just get a damn warrant authorizing the police to collect a blood, breath, or urine sample.

However, the police & the state & the courts strongly dislike this option. Dwi cases make up a large chunk of criminal cases. And the state gets a shitload of money on the cases. On a misdemeanor dwi case, you can expect a $300-400 fine, $80-85 in "court costs" (aka your fee for using the court system), a $25 alcohol assessment fee (which goes to the state and not to the place where you get an alcohol assessment done), and a $680 license reinstatement fee. That's a lot of money. And it goes up from there. If your test is high enough, you pay the state $680 and you have to get an ignition interlock device installed in your car, which is a few hundred dollars & get the device read every month, which costs at least $100 each time. So, dwi cases are cash cows.

Yes, yes, I realize that drunk driving is a problem & people get hurt or killed. In law school one of my roommates was t-boned by a drunk driver & almost didn't make it. She ended up in a coma for 3 months & had yrs of rehab & still has ongoing problems from it. So I GET IT.

Still, dwi cases are a bankroll for the state. And if the police were required to get warrants, that would slow them down, although with the availability of telephone warrants now, not that much. And it's inconvenient. A lot of dwi arrests occur after bar close or on the weekends. Judges don't want to get constant 3:00 a.m. phone calls to issue warrants.

The fact that it's inconvenient or slows things down doesn't trump the 4th Amendment. At least, it shouldn't. And the courts have said that in the past. But when it comes to dwi cases, that doesn't seem to matter.

So, the answer to the problems w/ the test refusal cluster is "get a warrant" but since the legislature & courts don't like that solution, we get a giant mess. But now that SCOTUS has the Bernard case, hopefully we'll get some clarity.

Sunday, December 06, 2015

Staying afloat

To start, a message for the people who have been leaving me hateful/hurtful comments lately--1) I have comment moderation turned on, so I have to approve your comments before they actually get posted, so no one will ever see your mean words because I'll never approve them. 2) If you dislike me so much, stop reading my blog. Seems fairly simple to me. 3) I actually don't care whether you approve of me or not, so if it means that much to you to say awful things anonymously via the internet, knock yourself out. Seems extremely petty to me, but you do whatever you need to make yourself feel better. 

Moving on...

As I've expressed on here, I'm struggling with my depression pretty badly lately.  I've had my medication dose increased and I've been doing the stuff to try to help myself through this rut--doing things that make me happy like sewing and painting and drawing, spending time with my friends and family, listening to/watching stand-up comedy, working out and eating well, etc. It's definitely better than when I was last going through a serious bout of depression, during my divorce, when all I did was sleep and work and cry and wake up every morning wishing I had died in my sleep.  So, on the positive note, I have learned from my divorce-induced depression stage how to cope with my depression periods much better and how to take care of myself during these periods. At least that's one positive. 

That being said, I really think I need to make a change and get out of this location I'm currently in. I don't particular enjoy living in rural Minnesota, especially when almost all my friends and family live rather far away from me. I would much prefer to live in the metro area. And I think I need to live in the metro area closer to the people I love in order for my mental health to be stable. I feel like if I can get back to the metro, my mental health situation will be much better. Of course,e I'll deal with depression no matter where I'm living. It's just part of who I am, like my thyroid condition or my hypersomnia.  It's just a part of me. I know that I will have difficult periods in the future. But I also know that certain things can aggravate my depression and make it much harder to cope. And one of the major things right now is that I live so far away from people that I care about and that I live in a location that I don't want to be living in. I don't enjoy living in rural areas. I like the city. I feel happiest in the city. 

I live out here because of my job. I love my job and I love my office and the people I work with. I have a fantastic group of people that I am lucky to not only have as co-workers, but also as my friends. I know that I have been extremely fortunate to have these people in my life. But, the only thing I have out here is work and that's not what I want my entire life to be about. Of course, being a public defender is a huge, important part of my life that I wouldn't want to give up, but it can't be the only thing in my life. And right now, it is. Because everything else is too far away. So, I need to be back in the metro. I need to be closer to my family especially. My poor mental health is affecting my ability to do my job, because I am having a hard time focusing on some days and I have difficulty lately feeling motivated. I don't get the same excitement about stuff the way I typically do when I am not dealing with feeling depressed.

Getting out of rural Minnesota is a necessity at this point. All I want to do is be a public defender and also be closer to my friends and family. I don't want to have it be either work or the rest of my life. I want the areas of my life to be in harmony together. 

In the meantime, I am working on trying to keep my head above water and not give in to the sadness and hopelessness that comes with depression. I am trying to make it through each day. 

Saturday, December 05, 2015

I can't settle

I've been trying out online dating again, because apparently I like to torture myself. Dating is miserable & I hate it. Online dating is especially miserable. I have gone on a few dates & I'm pretty much over it now.

One date told me I should be more of a girly-girl. I'm pretty happy with the level of "girly" that I am, thanks. I like to look good, paint my nails & do my makeup & my hair, I like cute clothing, & I own a fair amount of pink items. I also have a sailor mouth, love a good dirty joke, & can't resist a perfect opportunity for a "that's what she said." I am a sassmouth with opinions & I'm brash & I am smarter, sharper, & wittier than most guys. If it freaks them out, too damn bad. I am who I am & I'm not going to be more girly just to appease some insecure dude's ego.

Quite a few guys talked to me online but never actually asked to meet in person. I don't ask men out first. It's my litmus test for their personality. I'm a very strong personality when my initial shyness wears off. If a guy can't get it together enough to ask me out first, he's quite likely going to be a pushover. I need & want someone who can match me in having a strong personality. I've dated guys who aren't a match in that sense & I end up dominating the entire relationship & lose interest in him. So, I never ask men out first.

Another date went decently enough, but there was zero chemistry between us. He was nice & funny & attractive enough, buy I wasn't attracted to him physically or mentally. No spark, no draw, no chemistry. I can't date someone I have no chemistry with. It just feels dull somehow.

In both my relationship w/ YKW & Guy, there was immediate, intense chemistry, and both parties felt it. It was intoxicating to be with them, it made me giddy to have any interaction with them, & I felt dizzy with emotion. I need to have that in a relationship. Of course, that's not enough to sustain a relationship, it takes more than just chemistry to make it work, but I do need that to start a relationship.

People tell me it's extremely rare to have that w/ someone. I know this. I also know that I've been incredibly lucky to have had it twice in my life. But I also know that having experienced it means that I can't settle for anything less. I can't grow into liking someone. I can't develop it after we've been dating for awhile. If I meet someone & the spark isn't there, I'm not dating them. Period. End of story. It's there or it's not.

People tell me I am being unrealistic, that I shouldn't rule someone or just because there's no immediate spark. But I've dated guys in the past that I didn't have a spark with & it's just...flat. Having experienced that spark, anything less feels like listening to a symphony w/ ear plugs in, like touching something with gloves on. It's diluted, dulled, blunted, less enjoyable & less satisfying. Sure, I might still be able to hear the symphony to some extent or get the general feeling of something w/ yr gloves on. But it's significantly diminished. And it's a poor substitute.

I don't want a diminished substitute relationship. I don't want to settle for anything less than the full richness, the full experience. I know this is rare to find it, especially for a third time. And I realize I'll likely be alone because I won't take anything less. But I'd rather that than settle.