My Life as a Criminal Defense Lawyer

Crack Cocaine Sentences Going Retro

2011-09-16T13:20:00.000-07:00

On August 3, 2010, President Obama signed into law the Fair Sentencing Act. That Act modified the mandatory minimum sentence for crack cocaine by increasing the amount necessary to trigger those mandatory minimum sentences. Under the Fair Sentencing Act, the 5 year mandatory minimum sentence kicks in at 28 grams vs. the original 5 grams under the old law. Also, the 10 year mandatory minimum sentence kicks in at 280 grams vs. the original 50 grams under the old law.

In order to make these changes effective, the United States Sentencing Guidelines published emergency amendments to the crack cocaine guidelines in 2010. The emergency amendments are going to be made permanent on November 1, 2011.

On June 30, 2011, the Sentencing Commission voted to make the amendments to the crack cocaine guidelines retroactive. This means that all defendants who were convicted and sentenced for possession with intent to distribute or for distribution of crack cocaine will be eligible for a reduction in their federal sentence.

Being eligible for a reduction does not mean that all defendants will receive a reduction automatically. In order to receive a reduction, the defendant must file a motion under Title 18, United States Code, Section 3582(c)(2). Most importantly, the defendant must wait until after the November 1, 2011 effective date of the amendment. Any motion filed prior to that time is subject to being denied by the court as premature.

Not all defendants who were convicted of a crack cocaine offense will be eligible to receive a reduced sentence. In certain circumstances, typically based on the quantity of the crack cocaine at the original sentencing, the changes in the guidelines will not result in a reduction in the sentence.

The Law Office of Michael P. Hanle can assist in preparing and filing a motion under 18 U.S.C. 3582(c)(2) in an effort to obtain a reduction of your federal crack cocaine sentence. For more information on the amendments and how they will effect crack cocaine sentences, see the U.S. Sentencing Commissions at
United States Sentencing Commission, FAQs on Crack Cocaine Amendment.

Alabama DUI Laws Just Got Tougher and Raise Serious Questions for DUI Practitioners

2011-07-26T07:59:00.000-07:00

On June 9, 2011, Alabama Governor Robert Bentley signed into law two separate pieces of legislation that dramatically changed the landscape of Alabama's DUI laws. These changes were the result of Act 11-613 and Act 11-621 which will become effective on September 1, 2011. As a result of the changes to the DUI laws, your clients (anyone charged with a DUI) face much stiffer punishment if convicted, both in time and money. Also, the DUI practitioner will need to learn all of the new provisions of the law and navigate through the uncertain times that are ahead in order to protect their clients from the excessive punishment that is coming.

ACT 11-621 "DOUBLE PUNISHMENT"

Act 11-621 adds an entirely new section [32-5A-191(i)] to the existing DUI statute. The new section doubles the minimum punishment which may result from a conviction for a DUI in cases where your client has a breath alcohol concentration of 0.15% or higher, establishes a minimum sentence for misdemeanor offenses, and requires a 1 year revocation of your client's drivers license. This new law, however, creates a direct conflict with the current DUI laws and certain provisions of the drivers license suspension laws.

1. The Act requires that a conviction for DUI that results from a breath alcohol reading of 0.15% or greater "shall be sentenced to at least double the minimum punishment that the person would have received if he or she had had less than o.15 percent by weight of alcohol in his or her blood."

This is a significant change in the punishment faced by those who are convicted of a DUI offense. Since there is no minimum jail sentence required on a first offense, the punishment for most will not be increased by this change to the law. However, for those convicted of 2nd and 3rd offenses with a blood alcohol concentration over 0.15%, the penalties have just doubled to a minimum of 10 days in custody for a 2nd offense and a minimum of 120 days for a 3rd offense.

2. "If the adjudicated offense is a misdemeanor, (including 1st, 2nd, and 3rd offense convictions) the minimum punishment shall be imprisonment for one year, all of which may be suspended except as provided for in Section 32-5A-191(f) [dealing with a 2nd offense DUI conviction] and Section 32-5A-191(g)" [dealing with a 3rd offense DUI conviction].

This creates a clear conflict which will have to be straightened out by the Courts or the Legislature in the future. First, this provision conflicts with existing sections of 32-5A-191 which sets no minimum punishment for a 1st offense [32-5A-191(e)], a 5 day minimum sentence for a 2nd offense [32-5A-191(f)] and 60 day minimum sentence for a 3rd offense [32-5A-191(g)]. You can see the confusion that this creates for Judges around the State. If the minimum sentence for a misdemeanor DUI conviction is one year, then does a person convicted of a 3rd offense face a minimum sentence of 120 days [double the 60 day minimum in 32-5A-191(g)] or a minimum sentence of two (2) years if convicted with a blood alcohol level of 0.15% or higher.

3. "the Director of Public Safety shall revoke the driving privileges or drivers license of the person convicted for a period of not less than one year."

Again, this creates a conflict with existing law. First, Section 32-5A-191(e) authorizes the Director of Public Safety to suspend the driving privilege or driver's license of a person convicted of a first offense for a period of 90 days. Second, the Alabama Administrative License Suspension Act [found in 32-5A-304(c)] states that "If a drivers license is suspended under this section for having 0.08 or more weight of alcohol in the blood of the person and the person is also convicted on criminal charges arising out of the same occurrence for violation of 32-5A-191, then the suspension imposed under this section shall be imposed but no period of suspension or revocation shall be imposed under 32-5A-191."

ACT 11-613 "IGNITION INTERLOCK DEVICE"

Act 11-613 amends the provisions of 32-5A-191(e) through 32-5A-191(h) to require the installation of an ignition interlock device installed on their vehicle for a minimum period of two years upon conviction of a DUI under certain circumstances.

First Offense DUI - 32-5A-191(e)

If a person is convicted of a DUI under this section and any of the following factors are present (1) with a blood alcohol concentration of 0.15% or greater; or (2) refuses to take a breath alcohol test; or (3) if a child under the age of 14 is present in the vehicle at the time of the offense; or (4) someone else was injured at the time of the offense, the the Director of Public Safety shall suspend the drivers license for a period of 90 days and require the person to install an ignition interlock device for a period of 2 years from the re-issuance of the person's drivers license.

Second Offense DUI - 32-5A-191(f)

If a person is convicted of a DUI under this section, the Director of Public Safety shall require the person to install an ignition interlock device for a period of 2 years from the re-issuance of the person's drivers license. The 2 year period is doubled if the person refused to take a breath test or had a blood alcohol concentration of 0.15% or higher.

Third Offense DUI - 32-5A-191(g)

If a person is convicted of a DUI under this section, the Director of Public Safety shall require the person to install an ignition interlock device for a period of 3 years from the re-issuance of the person's drivers license. The 3 year period is doubled if the person refused to take a breath test or had a blood alcohol concentration of 0.15% or higher.

Fourth Offense DUI - 32-5A-191(h)

If a person is convicted of a DUI under this section, the Director of Public Safety shall require the person to install an ignition interlock device for a period of 5 years from the re-issuance of the person's drivers license. The 5 year period is doubled if the person refused to take a breath test or had a blood alcohol concentration of 0.15% or higher.

Additional Costs

In addition to the cost of having the ignition interlock device installed and monitored (a cost which has not been determined since there are no certified installers in the State of Alabama), the driver must pay an additional $75.00 per month to the court for the first four (4) months following his or her conviction. This is an administrative fee that will be divided by the Courts and Public Safety.

There will also be an additional fee of not more than $150.00 for the issuance of a special drivers license that lets law enforcement know that you are required to have an ignition interlock device installed on the vehicle that you are operating.

Additional Penalties

If a person is required to have an ignition interlock device installed on their vehicle, the Act establishes additional penalties for ignition interlock driving violation. The person would be guilty of a Class A misdemeanor and an additional six (6) months shall be added to the use of the ignition interlock device if the person is convicted of (1) a breath sample of 0.02% is recorded more than four (4) times in any month; or (2) the ignition interlock device is tampered with or bypassed; or (3) the person fails to have the ignition interlock device serviced or calibrated every 30 days. Upon a second violation, the person would be required to serve a minimum of 48 hours in jail plus an additional six month shall be added to the use of the interlock device. Upon a third or subsequent violation, the person would have to serve a minimum of 5 days in jail and have the period of use extended by a period of 1 year.

If a person is found to be operating a vehicle without an ignition interlock device, after having been ordered to the use of the device, that person will be taken into custody and their vehicle will be impounded. The law does not say how long the person will remain in custody.

CONCLUSION

For the person charged with a DUI offense in the State of Alabama, the consequences of being convicted after September 1, 2011 have become significant. Not only will a DUI conviction after September 1, 2011 become more expensive in both time and money, but it will also become more burdensome with the inclusion of the ignition interlock device.

For the practitioner, there are a lot of new components in the DUI laws which must be studied and learned. To provide our clients with effective and competent representation, we will need to learn all of the changes and how they impact our future clients. Additionally, we will need to find the weak points in the new laws (the areas where they conflict with existing law) and use those to our client's advantage to minimize the impact that these tougher DUI laws have on our clients.

Being an Indigent Criminal Defendant Just Got a Lot Harder in Alabama

2011-07-25T08:53:00.000-07:00

This summer, the Alabama Legislature passed a comprehensive revision of the laws which provide indigent criminal defendants with legal representation in the courts of this State.* On June 14, 2011, Governor Robert Bentley signed that legislation into law. The Indigent Defense Services Act was touted as a way of insuring that each indigent defendant in this State received quality legal representation by improving the system of delivering those services and the lawyers who provided those services. In reality this legislation was an attempt to control the amount of money that the State of Alabama paid for indigent defense services, an annual expense that most in the legislature found to be excessive and more than a few found to be unnecessary.

The Act establishes the Office of Indigent Defense Services, as a separate office within the Alabama Department of Finance. The Office of Indigent Defense Services will be headed up by a director who will be appointed by the Governor. The director will have ultimate decision making authority over how indigent defendants receive legal representation and how the attorneys who do the work get paid. His initial task will be to create rules and regulations that will cover a wide variety of topics, including the very important process of who is considered an indigent defendant in the State of Alabama.

The Act permits the creation of a contract lawyer system, a public defender office, or a court appointed system in each judicial circuit. These systems are all currently being used in different judicial circuits throughout the State, with the most widely used system being the court appointment system. The system of delivering indigent defense services chosen by each judicial circuit will significantly impact those individual indigent defendants seeking legal representation.

However, the biggest impact on how those services are delivered may not necessarily be the system chosen in any given judicial circuit. The biggest impact may come in the manner in which a person is determined to be indigent and entitled to legal representation funded by the State of Alabama. The Director is required to develop policies and procedures for determining whether a person is an indigent defendant and for those policies and procedures to be implemented across the State. To make things more difficult, the Act provides the Director with a rather complicated template to determine who is indigent and therefore entitled to State funded legal representation. The Act defines an indigent defendant based on a formula that compares that person's income to the most recent United State poverty level, whether the offense is a felony or misdemeanor, whether the person is entitled to a lawyer in their case, and whether it would be a substantial hardship if the person was required to pay for their own lawyer.

Once those policies and procedures have been established by the Director, each and every Judge in the State of Alabama who sits in a criminal court must begin using the new system to determine who is indigent and who is entitled to state funded criminal defense representation.

It has been routine practice in most judicial circuit to provide an attorney to anyone who simply said that they could not afford to hire a lawyer. There were seldom any questions asked about employment and income. The Court did not ask about your bills and how much money you had left over at the end of the month. They simply provided you with a lawyer. Those days will soon be a thing of the past.

After the Act is fully implemented, each Judge will be required to look into the person's income and ability to pay. This will require the indigent defendant to complete and sign an affidavit of substantial hardship and provide the court with documentation to support their indigent status. Those documents may include, but are not limited to, tax returns, pay stubs, W-2 forms, utility bills, mortgage statements, etc. The Judge may also require the District Attorney, the Public Defender, the Sheriff's Office or the Probation Officer to conduct an investigation into that person's indigent status and report back to the Court. The decision on whether a person is an indigent defendant will no longer take 2-3 minutes, but instead may require multiple court appearances over a 4-6 week period of time.

The old system of handing out state funded lawyers to every person who claimed they could not afford to hire a lawyer are over. Indigent defendants in this state better prepare for a long and drawn out process that is sure to limit the number of people who will be granted access to state funded criminal defense representation. Only time will tell if the true savings to the State of Alabama comes at the expense of justice being denied to the poor and indigent of this State.

* The Act also applies to indigent defendants in the Juvenile Courts of Alabama, however, my practice is limited to criminal defense and that will be my focus in this blog post.

A Happy Ending - Finally

2009-03-05T12:06:00.000-08:00

When D. W. was found not guilty of murder back in January, you would have thought that the weight of the world had been lifted from his shoulders. NOT GUILTY. That is what the jury had said. Very loud and very clear. It only took 30 minutes to decide that he was not guilty.

Unfortunately, D. W. had been sitting in a jail cell for over 13 months at that time. NOT GUILTY did not equal GET OUT OF JAIL.

The same Judge who presided over D.W.'s trial had revoked his probation 11 months prior to his trial. The Judge had imposed a very long sentence becaue he had already decided that D.W. was guilty.

This wrong had to be righted.

After the acquittal, I filed two seperate post conviction documents. First, I filed a Rule 32 Petition setting forth actual innocence. Second, I filed a Renewed Motion to Reconsider the revocation of his probation. I wanted the Judge to rule on the motion immediately. But no, he still believed that the jury got it wrong and my client was guilty. The motion was set for a hearing the end of February - 3 weeks away.

Finally, the hearing date arrives. The family is assembled in the court room. The D.A. who proceeded over the trial is not in court. A substitute D.A., one who I consider a friend, has agreed to handle the hearing. After discussions with the D.A., he agrees - the jury said not guilty - let him go home.

With some resignation, the Judge issues an order immediately releasing my client and returning him to probation. Everyone gets a copy and we all scramble off to arrange for my client's release.

Problem is that the Department of Corrections needs to get the order from the court. To accomplish this the following has to happen:

The court file needs to go back to the clerk's office.

The clerk's office needs to input the order into the computer and produce a sentencing transcript.

The sentencing transcript and releasing order need to be faxed/emailed to the Administrative Office of Courts in Montgomery.

The Administrative Office of Courts then transmits the information to the Department of Corrections.

DOC then releases my client to his family.

Long story short. After waiting 13 months in jail for a trial. After being found not guilty. After waiting another 5 weeks for a hearing on a motion. After the court issues a releasing order. It still took another 5 days to get out of jail.

FREE AT LAST. FREE AT LAST

Holidays are Tough

2009-02-18T09:01:00.001-08:00

Why is it that the day after a holiday is such a pain in the butt?

I am not referring to the inevitable hangover that many of you might be suffering from. I am referring to the choas that seems to develope when people have an extra day off.

Monday was President's Day. A local, state and federal holiday. That means that the courts and schools were closed. I took the day off and spent time with my kids. We hiked down by the Cahaba River and generally had a good day.

However, when I returned to work on Tuesday, the world had changed for the worse yet again. The stock market crashed (again) and clients would not stop calling with problems. Job security is nice, but it never fails. I just don't get it.

Anyone out there have an answer? Please enlighten me.

Mission Impossible - Atlanta, Georgia - The run continues

2009-02-11T14:45:00.001-08:00

Mission Impossible

The Date: February 3, 2009

The Scene: United States District Court, Atlanta, Georgia

The Mission: Get a probationary sentence for a career offender involved in an internet pharmacy conspiracy.

The results: Downward Variance of 8 levels. Three years probation. One happy client.

Over the past couple of weeks, I have been working on the AUSA in an effort to secure his assistance in getting the District Court to grant a probationary sentence. Leading up the the sentencing, I continued to discuss probation with the Assistant U.S. Attorney. Never got him to agree with me, but never figured he would come right out and say so.

Friday before sentencing. Client is getting nervous now. I am finally finished with my sentencing memo. I have 6 letters from the client's employers, mother, girlfriend and drug rehab graduate counselor. I have brand new U.S. Supreme Court law (Nelson Read more... and Spears Read more...) which I am hoping will convince the Judge to he can put my client on probation despite the impossible odds. The problem is that my client has 3 prior drug distribution/conspiracy convictions. He is looking at a sentence of between 3 1/2 and 4 years in prison. No wiggle room under the United States Sentencing Guidelines.

Knowing where to fight the battle is the biggest part of winning the war. I chose not to fight the guidelines. Instead I focused my attention and all of my efforts on winning the battle over the sentencing factors contained in the U.S. Code. By focusing on the law, I was able to cut the probation officer out of the equation and limit her input in the process. I was also able to get the prosecutor to agree with each and every point I made about my client's very limited involvement and lack of financial gain. Finally, I was able to focus on the amazing transformation that my client had been through. From a broke and homeless drug addict to a clean, sober, manager at one of the biggest dealerships in the city. After getting the general manager and owner/partner to advocate and testify during the sentencing hearing, I knew things were starting to shift in our favor.

By the time I finished with my argument for a probationary sentence and the AUSA essentially seconded my argument there was little else the Judge could do.

In what was discribed as "a scene out of a movie" the Judge granted my motion for a downward variance. After moving downward in the sentencing guidelines by 8 levels, the judge placed my client on probation for a period of 3 years. You could have heard a pin drop in the courtroom before the Judge finally imposed sentence.

As my client perfectly stated, the sentencing was a MIRACLE. Based on the steep odds facing us when we walked in that afternoon. I would tend to agree. Another great result.

What a Month - January 2009

2009-02-11T14:23:00.000-08:00

Well it has been a wild and crazy month. Very productive and very successful though.

We started off the month on January 5th with a bang. Three different clients, three different courts, in two different parts of town.

On Wednesday of that week, I was involved in a federal bank fraud sentencing. The client was looking at a prison sentence of between 2 1/2 and 3 years. I pre-filed a very extensive sentencing memorandum with the court setting out my argument for a probationary sentence. Following an hour of argument, the court agreed with me. To place my client on probation, the court varied downward by 10 offense levels. What a glorious day for everyone involved.

On Friday, in another federal social security fraud case, I was able to get a second judge to place a client on probation. Funny thing about this case was the Judge's comments to my client after sentencing. The U.S. District Court judge told my client that she was happy to see me with such a nice client for a change. She said she was tired of seeing me come into her courtroom with bad clients facing long sentences. It was refreshing.

The next week, on January 12th, I started a murder trial in the Jefferson County Circuit Court. Client was accused of beating a man to death. According to the State he did it because the victim took some money ($35.00) out of his mother's car. The State's evidence was contradictory and we had a real jerk as the chief investigator. I tried to warn the State that its' witnesses were not going to help the case. But no, the State did not believe me. The jury got the case at 4:45 p.m. on January 14th. The judge asked if they wanted to break for the evening and start fresh in the morning. They told the judge no, they wanted to get started. FIFTEEN MINUTES later they entered the courtroom. With a thumbs up the jury told the STate that my client was NOT GUILTY of MURDER. What a GREAT VERDICT. It is such a fabulous feeling to see all of your hard work and preparation pay off in such an important case.

Progress continues on my Atlanta, Georgia Federal internet pharmacy case. Sentencing is coming up the first week of February and my discussions with the Assistant United States Attorney are beginning to get the desired results. More on that next month.

A Case of Murder or the Death of the State's Case

2009-01-25T07:55:00.000-08:00

What a couple of weeks it has been. Trial work has to be some of the most exhaustive work that an attorney can handle. The mental and emotional toll on the body is beyond description. Knowing that your clients' future is in your hands is enought to scare some lawyers away. However, the truely great lawyer (not me) relish the chance to champion the case to the jury.

In my recent murder trial, I tried to convince the State that they were dealing with bad facts and even worse witnesses. Did they listen? Not one little bit. After the Judge shot down all of my suppression issues (identification) we started into the State's witnesses. One after the other, I was able to get them to shot holes in the State's theory of the case - my client beat the victim over $35.00 taken from his mothers' car the day before.

Finally, it came time for the State's key witnesses - the eye witness. By the time I finished my cross examination, the Judge was beginning to question the witness and his completely inconsistent identification of my client as the person who committed the crime.

Despite the Judge's best efforts to resuscitate the State's dying case, the Jury made short work of the verdict. In just under 30 minutes, the jury returned a NOT GUILTY verdict, complete with a thumbs up from one of the jurors as they returned to the box to announce the verdict.

What a great feeling. To know that all of the work and effort paid off in the long run. It doesn't happen often, but when it does . . . WOW.