Category: News

Utah Governor Gary Herbert Officially Signs HB155, Lowering Utah’s Legal Limit to .05


Utah Governor Gary Herbert has signed HB155, making Utah the first state to lower its legal BAC to under 0.08. This comes as a shocking move to those in Utah and has been met with heavy opposition by citizens and researchers.Researchers and citizens do not feel that the new legal limit will do much to make the roads safer. According to Fox News, 3,818 phone calls, emails, and letters of opposition have been received asking for the .05 limit to be vetoed, citing the targeting of innocent citizens as a major concern. Researchers from the American Beverage Institute have found that 77% of alcohol-related traffic fatalities in Utah come from high-BAC and repeat offenders. This has prompted the ABI to release a statement urging Governor Herbert to veto the bill and instead implement a 24/7 Sobriety Program that targets repeat offenders and those with high-BAC.

Criminal Defense Attorney Darren Kavinoky believes the new law could take citizens who were “driving legally before this legislation and turn them into a convicted criminal, with all the direct and indirect consequences that come from that.”

Kavinoky is not shocked that restaurants and bars are concerned, citing reaching a .05 after “just a single drink” as a major possibility. Kavinoky believes the new law could “have a huge, chilling effect on business, and in the case of Utah, where tourism is a significant revenue source, could mean disastrous results.”

“There’s little debate over the notion that everyone wants to drive on safe roads. At the same time, I would be surprised if ‘Joe or Jane Citizen’ didn’t rebel against the idea of lowering the legal limit yet again.

There’s always a tension between the rights of the individual versus the interest of the government in enacting laws that preserve the safety of its citizens.  In this case, Utah appears to have tipped the scales against long-held notions of personal liberty and freedom.  This could backfire significantly.

“There is definitely a trend in the lowering of the legal limit,” Kavinoky believes, “in California DUI cases, for example, the legal limit for those people 21 and older used to be
.15, then it became .10, and then it was lowered to .08.  When certain states held out on dropping from .10 to .08, the federal government threatened to withhold funding to get them into line.  Those changes weren’t driven by science or safety, but by politics.”

Governor Herbert claims the newly passed law “does not target drinking” but rather makes for “good public policy”. Only time will tell how effective the new policy will be.

References: http://fox13now.com/2017/03/23/utahs-governor-says-he-will-sign-bill-lowering-dui-level-to-05-the-lowest-in-the-nation/

http://www.responsiblelimits.com

 

Southern California’s Privatized Jails are Garnering Serious Attention

“Southern California’s Criminal Law pay-to-stay jail programs are now garnering serious attention” says Criminal Defense Lawyer Darren Kavinoky, founder of 1800NoCuffs.

Convicted criminals can reserve their spot in a Southern California private jail for as little as $25/night. This has sparked controversy over what the LA Times calls a “two-tiered justice system” that allows those convicted of serious crimes to “buy their way into safer and more comfortable jails”.

On average, 87% of pay-to-stay tenants are non-violent offenders, largely California DUI arrests. The other 13% includes those convicted of violence, threats of violence, or sex crimes according to data collected by the LA Times and the Marshall Group.

Private jails have their tenants’ full support. Those occupying and running the private jails have claimed that the private jails provide a safe alternative to county jail, a place where the young, old, rich, and famous are susceptible to mental and physical abuse.

Shane Sparks, a hip-hop choreographer convicted for sexual intercourse with a minor under the age of 16, compared his time spent in jail to a “retreat”. Amenities in the cells include flat-screen TVs, new beds, choice of bedding, and freedom to go to work while being incarcerated.

“While this may seem offensive on its face, the truth is that many criminal defenders are ‘soft,’ meaning that putting them into Los Angeles or Orange County Jail would subject them to all manners of physical, psychological, and emotional trauma. The truth is that our criminal recidivism rates are ridiculous, about 70% depending on who’s study you read. Unless someone goes into a jail environment determined to use it as an opportunity to turn their life around, all we are doing is sending people to a graduate school for crime” says `Darren Kavinoky.

Victims have heavily scrutinized the pay-to-stay options claiming a lack of rehabilitation due to the aforementioned trauma factor being eliminated.

Upon finding out his assailant would be attending private jail due to being “afraid of the general population”, Tanner Mester, a stabbing victim, called these fears “part of jail” and “what makes you not want to go back”.

Multiple victims have stepped up to speak out against the pay-to-stay option for violent criminals, mainly siding with Mester, citing a lack of rehabilitation. Kavinoky adds that “County jail is both for people who have been convicted of misdemeanor crimes and for all people who are awaiting trial for all types of crimes from murder to sidewalk spitting. This means we’re taking someone who’s been pulled over for 1st offense DUI and housing them with someone who’s been charged with murder. Expecting someone who has been pulled for 1st offense DUI to come out ‘new and improved’ in this instance is simply wrong. It’s like rearranging the deck chairs on a ship called the ‘Titanic’. You can feng shui those deck chairs all you want but if you don’t deal with your iceberg problem that ship is going down.”

References: http://www.latimes.com/projects/la-me-pay-to-stay-jails/#nt=oft09a-6gp1

The Gender Gap

Susan Haber, Senior Managing Attorney, The Kavinoky Law Firm

There isn’t a woman who works in the area of criminal law who doesn’t have a story about a time (or 20!) she was the only female attorney in the courtroom.

At the age of 25 I was a first-year prosecutor with the Los Angeles District Attorney’s Office.  Bright-eyed and enthusiastic about the start of my career; I was determined to be a zealous legal advocate for the State of California and the protection of our society.

I vividly recall the day I was prosecuting a 5-defendant felony embezzlement case.  As the judge called the case to be heard, I realized that I sat alone on one side of the attorney table while five middle-aged male defense attorneys sat with their 5 male clients on the opposing side. I felt like Snow White.

The gender gap I have experienced, both as a former prosecutor and now as a criminal defense attorney, is not unique unto myself.  After conducting a bit of research on the subject of female criminal defense attorneys as well as speaking with numerous colleagues over 18 years of practicing criminal law, I am saddened by the stories I have heard and the statistics.

In one article I reviewed, among all attorneys appearing in criminal cases, 67% are men. Looking at attorneys appearing as lead counsel (first-chair), 67% are men (making 33% women). When looking at attorneys appearing as trial attorney, 79% are men and only 21% are women.

Additionally, the study found that there is a great distinction between criminal prosecution work and defense work among women and men. For example, 34% of attorneys who appeared as the lead attorney in criminal cases were for the government (the prosecution) were men as opposed to 66% of the attorneys who appeared on behalf of defendants were men.

In looking at women who appeared as the lead attorney in criminal cases, the ratio is reversed: women were 69% of the attorneys who presented the government and 31% of the attorneys who represented defendants were women.  What is even more interesting from this study is that the percentage of women drop from handling 33% of criminal cases as the lead attorney in a criminal case to 21% as the trial attorneys.

What do all these statistics mean?  I provide you with my impressions; not those who conducted the study.  Women are far less represented as a group in criminal defense as they are in on the prosecutorial side.  I don’t feel that has ANYTHING to do with the morals or values of prosecuting criminals or defending them. I believe this has to do with the lack of equal opportunities available for women attorneys to work in the area of criminal defense private practice.

I am a wife and mother of two school-aged children who wants nothing more than having our society protected from harm.  I want my children to feel safe walking down the street without fear. I also firmly believe that every person on this earth should have the right to competent legal counsel if they are accused of a crime. If you were charged with a criminal offense, wouldn’t you want the very BEST attorney, male or female, to help you?  I would!

Despite the gender gap and all that goes with it, I would never want to practice any other kind of law.  I LOVE the courtroom, the cases, and the people I meet. I hope I am a positive role model for my daughter and son who embodies independence, strength and perseverance, along with poise, femininity and vulnerability (we are all vulnerable to something and should not be afraid to show it!) as I zealously advocate for my family and clients.

Supreme Court rules in favor of Duane Buck

The Supreme Court ruled 6-2 in favor of Duane Buck, a convicted murderer, citing Chief Justice John Roberts’ majority opinion that Buck demonstrated “ineffective assistance of counsel”.

Mr. Buck was originally sentenced to death in 1997 for shooting his ex-girlfriend. Buck attempted to appeal the sentence, but ultimately had his appeal rejected by the United States Court of Appeals for the Fifth Circuit in 2015. Per the new ruling, Buck has now been granted the right to a new hearing in the Texas Appeals Court, in large part due to previous racial discrimination.

I checked in with Criminal Defense Attorney Darren Kavinoky to further explain the significance of the SCOTUS ruling. Kavinoky believes this case “presents an interesting legal issue, at an especially interesting time in our country’s national conversation around race.”

The 6-2 ruling is not a question of guilt, but rather what Kavinoky calls a “question [of] whether legally inadmissible evidence was introduced during [Mr. Buck’s] sentencing hearing”, referencing the use of race in Mr. Buck’s death sentence.

“There’s no question that Buck committed the murder that has now put him on death row,” Kavinoky says.

“For context,” Kavinoky says, “in capital murder cases, crimes that are eligible for the death penalty, the trial is broken into two phases.” These phases are what Kavinoky describes as “the guilt phase, where the prosecution has the burden of proving guilt beyond a reasonable doubt; and the penalty phase, where the jury deliberates between life in prison and the death penalty.”

“When you get to the penalty phase, those are the only two choices,” Kavinoky says, referencing the jury’s choice of punishment for the defendant, life in prison, and the death penalty. “We are well beyond the point of determining whether someone should be set free”, Kavinoky adds.

“During the penalty phase, the jurors are routinely asked to determine whether factors of aggravation outweigh factors of mitigation or vice versa. This will tip the scales in favor of one of the two punishments”, Kavinoky says.

Kavinoky explains that during the penalty phase, “evidence was introduced that Mr. Buck’s race was an aggravating factor to be considered in determining his criminal punishment.”

While the prosecution is arguing that the defense is, what Mr. Kavinoky calls, “making a mountain out of a molehill by twisting the emphasis on one of many items of evidence, the defense position that this was so facially inappropriate as to render his lawyer incompetent – a very high standard to meet—was enough to make the appellate court sit up and pay attention.”

“Buck now has a date with the appellate court, where he hopes the outcome will be that a new penalty phase sentencing hearing is ordered”, Kavinoky says. “If that happens, he’ll have an opportunity to spare his life. If not,” Kavinoky adds, “Texas has a way of acting very quickly when it comes to carrying out the ultimate criminal punishment”.

Imitation is the Sincerest Form of Flattery

I love the quotes of Oscar Wilde.  One of my favorites both is a nod to my TV show “Deadly Sins,” (now in production for its sixth season for Investigation Discovery):  “Every Saint has a past, every Sinner has a future.” Anyone who has ever seen my keynote speech knows why that’s also so true for me!  But Wilde is also quoted as saying that “Imitation is the sincerest form of flattery that mediocrity can pay to greatness.”

Of course, anyone who has ever heard our long-running radio ads has heard our legally trademarked phrase “1.800.NoCuffs, because no one looks good in handcuffs… unless you’re into that sort of thing.”™

That must be why my phone, texts, and emails all lit up during that big football game last Sunday, when T-Mobile launched its new campaign that “”Wireless pain is fine… if you’re into that sort of thing…”  My friends were wondering whether I intended to sue them for infringing on my mark.  Of course not!

First of all, the fact that their creative team was so inspired by what’s turned out to be the “stickiest” part of our 1.800.NoCuffs radio campaign made my day!  (I was watching the Big Game too!!)

Next, while it’s really close, it’s not a carbon copy, and I don’t think T-Mobile is getting into the criminal defense lawyer business.

Finally, maybe this is an opportunity for T-Mobile to look at the 1.800.NoCuffs business account, and all of the cell phones I pay for each month (we’ve got a big family over here at 1.800.NoCuffs, The Kavinoky Law Firm), and see if they want to make good on their “inspiration”. Okay T-Mobile… I’m waiting…

 

Blood Alcohol Content Monitoring Devices and Junk Science

Blood Alcohol Content Monitoring Devices and Junk Science

Blood Alcohol Content Monitoring Devices and Junk Science
 

Blood Alcohol Monitoring

The latest tech blood alcohol content monitoring device is a wearable that Yahoo reports “from Milo Sensors can let you know when you’ve had one too many.” [1] The high-tech watch works by measuring the alcohol level in your perspiration.
 
1.800.NoCuffs Founding Attorney Darren Kavinoky says, “There’s already so much ‘junk science’ in the world of DUI enforcement that I’m skeptical of yet one more thing that doesn’t meet the scientific rigor we require in the court system. That said, as someone who is a proponent of anything that empowers people to have greater clarity in all of their personal decision making, anything that serves that end is worth considering, as a directional signal if nothing else.”
 
The cartridges inside the wrist wearable that allegedly reads your BAC (Blood Alcohol Content) need to be replaced every 12 hours and are disposable. This could be a drawback since remembering to refill or refresh the cartridge for accurate blood alcohol content monitoring could lead to user error.
 
The wearable device connects to an app on your phone that claims to tell you at what time you will sober up. “This potentially exposes the manufacturing company to liability,” says Kavinoky. “If I am a plaintiff’s attorney, and my client has been injured by or from driving under the influence when they were told by the wearable’s app they were sober, there’s no question I would file a case against the manufacturer. If the app says someone is good to drive after “X” number of hours and following that advice leads to someone being injured, as a plaintiff’s attorney, I would have a strong case against the maker of the app. Regardless of any disclaimers, personal injury attorneys tend to follow the, ‘sue them all and let G*d sort it out’ mentality and go after the deepest pockets.”
 
One feature that could be helpful on the phone app is the ability to send message notifications to your trusted friends, designated driver, and family members when your BAC rises. One could imagine many different circumstances in which this could be helpful.
 
 
Sources
1. Retrieved via Yahoo on January 30, 2017 via “Wristband monitors your blood alcohol content while you drink” https://www.yahoo.com/tech/wristband-monitors-blood-alcohol-content-201325865.html

Alabama Assistant Football Coach DUI Arrest Meaning

Alabama Assistant Football Coach DUI Arrest Meaning

Alabama Assistant Football Coach DUI Arrest Meaning
 
Alabama’s assistant football coach Josh Chapman is likely to feel harsh consequences and realize the DUI arrest meaning in the upcoming days. Josh Chapman, the former Alabama player, was arrested on Sunday morning January 29, 2017, in Tuscaloosa. [1]

DUI Arrest Meaning

Chapman’s arrest is a reminder that a DUI arrest can mean fines, jail time, loss of driver’s license, loss of job, and loss of professional licenses. With the biggest game of the season, the Super Bowl, yet to come, NHTSA reminds the nation that, “Every day, 28 people in the United States die in an alcohol-related vehicle crash—that’s one person every 53 minutes.” [2]
 
In 2015, there were 10,265 deaths from crashes that involved alcohol impairment.
 

A Note from Darren Kavinoky

As I have said before, the week after Super Bowl Sunday is a busy time for our criminal defense law firm.

 
When I was a little kid and it was Thanksgiving, my mom would put a turkey in the oven with a big bright orange button on the side that you pushed down before you stuck the turkey in the oven. You knew the turkey was all cooked when that orange button would pop up. People don’t have those buttons that tell us when we are “cooked.” We don’t have anything that tells us, “Uh-oh. You’ve reached that magic limit so, therefore you shouldn’t be behind the wheel.”

The bottom line is that if you are drinking, you are in a compromised position to judge your own condition. This can lead to a DUI arrest, and as Alabama’s Josh Chapman is likely about to realize, a domino effect of consequences.

Sources
1. Matt Zenitz. January 29, 2017. “Former Alabama standout, current Tide staffer Josh Chapman arrested.” Retrieved via http://www.al.com/alabamafootball/index.ssf/2017/01/member_of_alabama_football_sta.html
 
2. NHTSA retrieved on January 30, 2017 via .

Is the Lethal Injection Process Unconstitutional?

Is the Lethal Injection Process Unconstitutional?

Is the Lethal Injection Process Unconstitutional?
 
Is the Lethal Injection Process Unconstitutional?
by Attorney Darren Kavinoky
 
The death penalty and lethal injection are a controversial topic. As a criminal defense attorney, I am sure it is no surprise that I am opposed to capital punishment. So long as DNA continues to exonerate the wrongly convicted, I can’t support a lethal injection process inducing irreversible punishment without irrefutable proof.

According to the Innocence Project, “to date, 349 people in the United States have been exonerated by DNA testing, including 20 who served time on death row. These people served an average of 14 years in prison before exoneration and release.” [1]

In the United States, the wrongfully accused and the innocent who plead guilty to take plea bargains and avoid longer sentences, waste years in prison serving time for crimes they don’t commit. The death penalty and the lethal injection process is an irreversible punishment, and yet history has shown us that finding someone guilty beyond a reasonable doubt, is often times a flawed ruling. (Read the list of innocent prisoners exonerated here.)

To make someone pay for a crime they did not commit with their life goes against the basic principles of our country’s constitution. Especially when we continue to see that the criminal justice system is flawed. As recent as January 19, 2017, Isaiah McCoy was exonerated. Said McCoy, “Two years ago, I was on death row. At 25, I was given a death sentence – and I am today alive and well and kicking and a free man.” [2]

Lethal Injection

Recently, a federal judge declared that Ohio’s lethal injection process is unconstitutional which in turn delays the execution of three upcoming executions. One of those executions, that of Ronald Phillips was scheduled for February 15, 2017. ABC reports, “a federal judge declared [Ohio’s] latest lethal injection process unconstitutional.” [3] I support the examination of the constitutionality of lethal injections.

Phillips is on death row for the rape and murder of “his girlfriend’s 3-year-old daughter, Sheila Marie Evans, in 1993.” Phillips is 43 now. He has spent over half of his life in prison. While the crime for which he is convicted is heinous, as a nation if we want to send the message that killing is wrong, shouldn’t our government stop killing people?

Sources
1. Innocence Project. Retrieved on January 27, 2017 via http://www.innocenceproject.org/exonerate/.

2. Retrieved on January 27, 2017 via http://www.deathpenaltyinfo.org/innocence-cases#157.

3. Andrew Welsh-Huggins. January 26, 2017. ABC News. “Federal Judge Rejects Ohio’s New Lethal Injection Process.” Retrieved via http://abcnews.go.com/US/wireStory/federal-judge-rejects-ohios-lethal-injection-process-45062486.

Oscar De La Hoya DUI Arrest is a Chance to Raise Addiction Awareness

Oscar De La Hoya DUI Arrest is a Chance to Raise Addiction Awareness

Oscar De La Hoya DUI Arrest is a Chance to Raise Addiction Awareness

The Oscar De La Hoya DUI arrest represents a chance to raise addiction awareness, but will it? Or will it instead lead to another celebrity media criminal case circus?

DUI Arrest

Hall of Fame boxer and celebrity Oscar De La Hoya was charged with a DUI in Pasadena, California earlier this week. According to USA Today, after stopping De La Hoya, “the officer detected the odor of alcohol on De La Hoya’s breath.” [1] The report indicates that De La Hoya failed a field sobriety test.

De La Hoya spoke openly about his battles with addiction to alcohol and drugs in 2016. Said De La Hoya, “That was the toughest fight of my life. I could have easily chosen to stay down just like hundreds of thousands if not millions of people choose to stay down and most of the time and sometimes lose their life. It really takes courage to one day say to yourself, ‘You know what? I’m going to change. You have to find that strength to want to fight another round.”

Legal Commentary by Darren Kavinoky

I’ve spent a lot of time talking about addiction and celebrity arrests. Oscar De La Hoya is in the most difficult fight of his life and every day he has to choose again to find the strength, “to fight another round.”

Oscar De La Hoya’s DUI arrest is an opportunity to raise awareness and highlight issues of addiction. But unfortunately what we see time and time again, is a media obsessed with “Celebrity Justice” and a criminal justice system that ignores the real problem of addiction so as not to appear soft on crime. Instead of using celebrities to insight real change, they are used as an example to impose harsher sentences and punishments.

Of course, there are times when celebrity status works in favor for the accused, as it did for O.J. Simpson. But “celebrity justice” more times than not leads to harsher punishments for those in the public eye. A prime example was Paris Hilton’s early release from jail, which is a normal and often expected outcome in a criminal suit. But with the whole world watching, the justice system was afraid they looked bad releasing Hilton early, and they sent her back to jail for several weeks. As a criminal defense lawyer, I can assure you that such practices in cases like Hilton’s are par for the course. Being forced back into custody following an early release is atypical, and I can’t think of a time when I ever had a client returned to jail under similar circumstances.

What’s especially troubling for Oscar De Lay Hoya is that he is a man who needs help that prison can’t offer. Our criminal justice system needs to address the addiction problem that we have in this country and impose sentences that help prevent recidivism.

Sources
1. Mike Coppinger. January 25, 2017. USA Today. “Oscar De La Hoya charged with DUI in California.” Retrieved via http://www.usatoday.com/story/sports/boxing/2017/01/25/oscar-de-la-hoya-dui-arrest-california-highway-patrol/97054182/.

2. Steve Springer. Special for USA TODAY. May 5, 2016. “Oscar De La Hoya: Fighting addiction ’10 times’ bigger than any bout.” Retrieved via .

UO Assistant Football Coach May Feel Domino Effect of DUI

UO Assistant Football Coach May Feel Domino Effect of DUI

UO Assistant Football Coach May Feel Domino Effect of DUI
 
 
The “Domino Effect” of DUI appears to be playing out in Oregon. David Reaves, the University of Oregon assistant football coach, was arrested on Saturday, January 22, 2017, on DUI charges sources say.  “A spokesman for the university said Reaves has been placed on administrative leave, and the process to terminate his employment has started.” [1]
 
 

Legal Analysis by Attorney Darren Kavinoky

 
 
Unfortunately, the loss of a job is an all too common domino effect of a DUI arrest.  Even before a jury has heard the case, the court of public opinion speaks and individuals arrested on charges of DUI start to experience a quick and harsh fallout.  Remember, a DUI charge doesn’t equal an automatic conviction.
 
Sadly, there is a lot of junk science and user operator error that makes breath tests and blood tests inaccurate. My team has seen hundreds of cases dismissed because the individual arrested was not actually at or above the legal limit at the time of driving or arrest. Some examples of issues we’ve encountered are testing machines that aren’t calibrated properly, people who for medical reasons are not a candidate for roadside gymnastics or a breath test, blood samples that are mishandled, and even outside chemicals in the air that the machine can detect as alcohol like certain cleaning solutions that give skewed and bad results.
 

If you are arrested for a DUI and don’t immediately hire an experienced criminal defense lawyer with a proven track record of winning, aside from facing fines and jail time, you risk losing your driver’s license, a number of professional licenses, and your job. And if the DUI leads to you being let go from a job or jail time it can have devastating effects on the financial security of your home and family life. This is what we at 1.800.NoCuffs call the “Domino Effect.”
 
Choosing a lawyer who will fight your DUI charge is one of the most important decisions you’ll ever make. When people ask me if it’s possible that they can defend themselves, my standard reply is, “It’s possible for you to remove your own appendix but that doesn’t mean it’s a good idea!”
 
If you want to avoid the “Domino Effect” of a DUI, hire a criminal defense attorney right away. Look for someone with years of experience, memberships in professional organizations, specialized training, a track record of success and team with the expertise and know how to prove the junk science wrong.
 
For more information click to watch the video below:
1800 No Cuffs Domino Effect of DUI

Domino Effect of DUI

 
Sources
1. Staff. January 22, 2017. KOIN 6. “UO assistant football coach charged with DUI, to be fired.” http://koin.com/2017/01/22/uo-assistant-football-coach-charged-with-dui/.