Saving Clients over $100,000 in Fines

Supreme Court and the Eighth Amendment

Since the Supreme Court unanimously decided the Eighth Amendment applies to the States and not just Federal cases, prohibiting excessive fines and fees especially when State agencies seek to seize property or other assets from individuals charged or convicted of a crime, Boeheim Freeman Law has been able to reduce or eliminate over $100,000 in fines for our clients.

The case before the Supreme Court, Timbs v. Indiana involved the seizure of a $42,000 Land Rover SUV from Tyson Timbs, who was arrested in 2015 for selling heroin to undercover police officers. He pled guilty and was sentenced to one year of house arrest and five years of probation. The Court suggests that it became excessive when the State of Indiana seized his Land Rover, which was purchased with his father's life insurance payout, not with the proceeds of drug sales. The State claimed that they could seize the vehicle because it had been used to commit a crime.

Rule 8 Hearings

At Boeheim Freeman Law, we have been moving the courts for Rule 8 Hearings on all plea deals. This is a hearing where the Judge inquires of the Defendant what physical injuries or ailments would prevent them from working. The Judge also inquires as to the Defendants ability to pay fines and costs due to indigence and pre-existing financial obligations. It is then determined whether, under the circumstances, the Defendant can pay or the fines would be considered excessive on-going punishment.

Conflict of Interest

Local government uses fines and fees as a means to raise revenue, and that creates a perverse conflict of interest between the bureaucracy and residents of the community. Timbs v. Indiana points out how ridiculous overly burdensome fines and civil asset forfeiture can be when abused. Many times the fines and the confiscation of property only hurts the families left behind when a defendant gets convicted and goes to prison. This inevitably propagates a cycle of crime, when a family is left with very few options and bills to pay.

Supreme Court Has Spoken

The Supreme Court and Justice Ginsberg have spoken: Excessive fines are unconstitutional, and civil forfeiture is an additional fine to those who are convicted. If you have been served with a civil forfeiture in connection with a criminal case, please give Boeheim Freeman Law a call at 918-884-7791 and let us help you fight for your constitutional rights.

Women In Recovery Graduation

Graduation

This past Thursday evening I had the privilege of watching the Women in Recovery (WIR) graduation event. This was very special because of it was the 10th anniversary of the WIR program, and we had three (3) of the graduates as clients. (25% of the graduating class) It is a wonderful thing to see how far these courageous women have come, and what an inspiration they are to the next group coming through the program.

Women In Recovery

Women in Recovery (WIR) is an intensive outpatient alternative for eligible women facing long prison sentences for non-violent drug-related offenses. Operated in partnership with the George Kaiser Family Foundation, WIR works closely with the criminal justice system and various community partners to ensure program participants receive supervision, substance abuse and mental health treatment, education, workforce readiness training and family reunification services.

Hard Work

The women that go through this program have to be committed to doing the work necessary to battle their demons. The demons of their addiction, the demons of their past, and the demons of a still uncertain and challenging future. The program provides them with the opportunity to gain skills to stay sober, and cope with the challenges life, but in the end it is their commitment to being a better version of themselves that will make them successful for the rest of their lives.

Proud of our Contribution

We at Boeheim Freeman Law are proud to have helped so many women get into this great program, and stay in the program. It isn’t always easy. Sometimes it takes a great deal of persuasion to get the right parties to agree to give this individual a chance and sometimes a second chance. Too often the DA’s office objected to their entry and demanded prison time for these women who clearly had addiction issues. We overcame those objections and with the hard work and commitment of our clients, the DA’s office was proven wrong. In the past few graduating classes we have had women the DA’s office fought hard to send to prison. One in particular, completed the program sanction free, which is nearly impossible to do. Her hug and whispered “thank you” reminds us how important it is to continue to fight for both women and men who suffer from addiction and mental health issues, so they have an opportunity to get help and not just have their liberty taken.

Valuable Part of Society

Congratulations to the current graduating class and to all of the past graduates who work every day to be the best version of themselves. You should be very proud of yourselves!

Author: Brian J. Boeheim

Boeheim Freeman Law - 918-884-7791

Oklahoma Courts Step Into the 21st Century

Video Conferencing in the Courtroom

The Oklahoma Legislature has recently taken a big step, with a new statute that allows videoconferencing technology to be used in the Oklahoma District Courts for hearings up to, during, and after trial in both civil and criminal cases.  Prior to this, it was unlawful for videoconferencing to be used in the District Courts of Oklahoma.  There are several minimum requirements; here are a few:

• Everyone who is directly involved, i.e. the attorneys, witnesses, judge, defendant, court reporter, and interpreter, can see and be seen and hear and be heard.

•  Participants shall be able to see, hear, and communicate with each other simultaneously;

• Participants shall be able to see, hear, and otherwise observe any physical evidence or exhibit presented;

• Video and sound quality shall be adequate to allow participants to observe demeanor and nonverbal communications and to clearly hear what is taking place to the same extent as if they were present in the courtroom;

• The location from which the trial judge is presiding shall be accessible to the public to the same extent as the proceeding would be if not conducted by videoconference;

• When feasible, a party and the party's attorney should be allowed to communicate privately off the record by use of a private communication facility (cellphone, landline, facsimile, Skype, etc.) during the proceeding, or during a break. The court is not required to provide a private communication facility if none is available.

There are also some exceptions; here they are:

• Situations where its use might create undue prejudice;

• When a person is available, but simply does not wish to be in the courtroom;

• Convenience vs the Value of the Testimony;

• Whether its use would interfere with the full ability to cross-examine a witness;

• In a circumstance where the gravity of being in the actual courtroom will impress upon the witness the importance of telling the truth;

• Whether a physical liberty or other fundamental interest is at stake in the proceeding;

• Whether the judge is comfortable with his or her ability to effectively control what is happening at the remote location;

• Whether a distortion in the technology causes those present in the courtroom to reflect negatively upon the person at the remote location;

• Whether use of the videoconferencing technology will diminish the integrity and fairness of a proceeding in a particular instance;

• Whether the person proposed to appear by videoconferencing presents a significant security risk to transport and present personally in the courtroom;

• The necessity of waivers and stipulations between the parties regarding the use of videoconferencing during a proceeding;

• And anything else that the judge might think is relevant.    

The party that wishes to use videoconferencing technology for the purpose of witness testimony must submit a motion stating their intent at least thirty (30) days prior to the proceeding.  Any party that objects to this must submit their objection in writing within ten (10) days of the filing of the original notice.  

So, what are the advantages of using this new technology in the courtroom?  The cost benefit is particularly relevant to those needing an interpreter or court reporter where none is available to be physically present, and the time, effort, and finances that would be required to get someone to be physically present would be restrictive.  This is particularly true of poorly served and rural areas that lack the same resources as larger metropolitan areas.  

However, there is no rule stating that courts must employ this new technology, and since the initial cost to install the equipment and training would presumably be substantial, it is likely that the areas that are poorly served now, will not be able to afford the equipment that is necessary to meet the requirements set out in the statute.  Furthermore, the statute does not specify who is supposed to pay for the installation and maintenance of the equipment.  Is it the County Treasury?  Is it the State?  Is it the Court Fund?

So, when would the videoconferencing technology be most valuable? Obviously, when used for expert witness testimony.  The ability to bring in the testimony of a nationally, or even internationally, renowned expert without having to pay travel costs would be an enormous cost savings for either side of a litigation.  As mentioned above, the ability to bring in an interpreter for unique and specific languages and dialects, would also provide witnesses and defendants the ability to understand and be understood.  This is not just important, but a Constitutional right.

What about the risks?  Clearly, it is difficult to tell when someone is lying.  Most people find it difficult to tell when they are face to face with someone.  Seeing and hearing them over a video screen will only make that more difficult. Considering that a big part of a jury’s job is to determine the credibility and reliability of each witness, this knew technology leap could get in the way of justice.  The level of personal separation videoconferencing technology provides has the potential to reduce the impact and gravity of the proceedings, creating an insulation or barrier to the stress and impact of a tough and vigorous cross-examination, harming the truth-finding process of witness confrontation.  Furthermore, there are no security measures in place that would ensure that the remote location remains pristine and free from influence or bias that could taint witness testimony.  It is feasible that a person could stand out of view of the camera and coaches a witness without the court’s knowledge.

Technology has invaded every part of our lives.  It has increased the quantity of communication, but not necessarily the quality.  There are efficiencies that would be created for the court system, but for each benefit there comes a possible risk.  So, what stands in the way of this technology leap?  The greatest barrier to this technological leap may be the fact that it requires financial and procedural investment, and the legal world tends to resist investment and resists procedural change even more.

Author: Lauren N. Stanley

DUI and Medical Marijuana in Oklahoma

Can I get a DUI even if I have a Medical Marijuana Card? 

In Oklahoma, the short answer is yes.  According to current Oklahoma Statutes, the ability to legally use a controlled substance for medical purposes does not mean that it is legal to operate a motor vehicle while under its influence (47 O.S. 11-902 (B)). This applies to any substance that might cause impairment, whether it is a prescription or not.  If a substance impairs cognitive function and normal reflexes it is neither safe nor legal to drive.  The legality of the substance is irrelevant.

  There are many prescriptions that have side effects that include drowsiness or impaired reflexes and it will say so on the bottle when you receive it.  “CAUTION!!! This medication may cause drowsiness!  Do not drive or operate heavy machinery until you know how it affects you!”  This applies to everything from heavy duty prescription narcotics to over-the-counter Benadryl.  

According to the law, Marijuana is no exception. This exemplifies a situation in which older statutes have not been updated to reflect new laws.  Marijuana is still listed as a Schedule I substance, even though Schedule I substances are considered to be those substances that lack a medical purpose (63 O.S. 2-203 & 63 O.S. 2-204 (C)(12)). The DUI Statute states that having anyamount of a Schedule I drug in your system is a violation (47 O.S. 11-902 (A)(3)). As such, testing positive is sufficient cause for prosecution, and the State does not have to prove that you were impaired, merely that it was in your system.  

This is problematic for those who use legal medical Marijuana due to the fact that it lingers in your body long after its mind-altering effects have worn off.  It can take up to thirty (30) days for your body to completely metabolize it. 

This is a burgeoning issue in law and the administrative and legislative branches of the government are still trying to manage the legalization of Marijuana for medical purposes.  As an individual, be sure to be responsible and take precautions to ensure your protection from a system that is still working out some of the kinks.

If you get stopped, politely decline from making any statements without your attorney present. Do not consent to taking the field sobriety test. Do not consent to a search of your vehicle. If you get arrested for a DUI call an experienced, aggressive, and compassionate team of attorneys that can handle the criminal and DPS issues for you. Why hire an attorney when you can hire a team?

Call Boeheim Freeman Law at 918-884-7791 for your free consultation.

Written by Lauren Stanley

Domestic Violence - Flawed Bill

Rules of Evidence

The rules of evidence are very specific and have been hammered out at the Federal and State levels through years of experience in watching the results of criminal and civil cases. The intent of these rules are to provide for a fair and just outcome. One of the Oklahoma rules, Title 12 O.S. § 2404(A)(1), is to prevent what might be perceived by a jury as a bad character trait, or a previous crime, from being used by the prosecution to prejudice the jury’s opinion of the defendant, instead of letting the facts speak for themselves. There is an exception built right into this rule (Title 12 O.S. § 2404(B)), which says it may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. This is a well thought out and well written statute.

Weakening the Rules of Evidence

In an attempt to once again weaken the rules of evidence and to fix something that is not broken, the Oklahoma State legislature has proposed a legislative bill (HOUSE BILL 1093) that will bypass the above rule in cases of domestic abuse. At first blush, you might say that maybe domestic abuse cases may need some special consideration. However, this poses a very real to the rights of the accused. This increases the risk of sending an innocent person to prison based on perception instead of facts. §2404(B), along with several other exceptions, provide the prosecution ample opportunity to enter this type of evidence to show a pattern of behavior. Furthermore, if a jury was to find a defendant guilty of the crime, then the defendant would be looking at a much stiffer punishment for having previously committed the crime of domestic abuse. This proposed new law does not offer greater opportunity for the truth to come out, but instead plays into the mudslinging insanity that has irreparably damaged innocent lives of late.

Especially Faulty Language in House Bill 1093

Beside the fact that this law is redundant and more effectively handled by the current statutes, it adds dangerous language that opens the door to broad interpretation and possible misuse.

Here is what I mean, look at the words highlighted below from § D of the proposed bill:

D. For purposes of this rule, "domestic violence or abuse" means any incident of controlling, coercive or threatening behavior, violence or other act of abuse against a person in a relationship as specified in subsection C of Section 644 of Title 21 of the Oklahoma Statutes. The violence or abuse may be psychological, physical, sexual, economic or emotional.

The current statutes defining Domestic Assault and Battery couldn’t be clearer. Look for yourself, I have attached them to the bottom of this post.. This bills new definition of domestic violence or abuse would bring in an unrealistic number of normal domestic issues into the fold of what would be considered as domestic abuse. Remember that this applies to the following people: spouse, significant other, former person you lived with, or blood relative. You can no longer threaten those people in any way. No limiting sweets, sex, or spending money without a risk of that relationship being brought before a jury to be judged. You can’t even threaten such limitations.

Conclusion

Who among us is flawless? Who among us has had perfect relationships? When accused, should the prosecutor be able to spread before a jury all of your dirty laundry, or only that which is pertinent to the case at hand? This bill is redundant and flows from the same river that drowns our airwaves with fear mongering, innuendo, and unsubstantiated claims. Haven’t we learned from history? We have more than enough laws and rules of evidence (see below). Let’s focus our legislative energy on improving education and broadening our economic base for a stronger Oklahoma.

The Law

Title 21 O.S. 644(C)

Any person who commits any assault and battery against a current or former spouse, a present spouse of a former spouse, a former spouse of a present spouse, parents, a foster parent, a child, a person otherwise related by blood or marriage, a person with whom the defendant is or was in a dating relationship as defined by Section 60.1 of Title 22 of the Oklahoma Statutes, an individual with whom the defendant has had a child, a person who formerly lived in the same household as the defendant, or a person living in the same household as the defendant shall be guilty of domestic abuse.

Title 21 O.S § 641. Definition of Assault.

An assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.

Title 21 O.S § 642. Definition of Battery.

A battery is any willful and unlawful use of force or violence upon the person of another.

Supreme Court - Unanimous Decision to Limit Fines and Asset Forfeiture

Supreme Court decision provides defendants the ability to challenge outlandish forfeitures and overly burdensome fines.

The Supreme Court has unanimously decided the Eighth Amendment applies to the States and not just Federal cases. This will prohibit excessive fines and fees especially when State agencies seek to seize property or other assets from individuals charged or convicted of a crime.

This decision supports what critics of civil asset forfeiture have been saying for a long time. It also opens another avenue to legally challenge the widely abused practice by which states and local governments can seize cash, cars, homes, and guns that are suspected of being used to commit a crime.

The case before the Supreme Court, Timbs v. Indiana involved the seizure of a $42,000 Land Rover SUV from Tyson Timbs, who was arrested in 2015 for selling heroin to undercover police officers. He pled guilty and was sentenced to one year of house arrest and five years of probation. The Court suggests that it became excessive when the State of Indiana seized his Land Rover, which was purchased with his father's life insurance payout, not with the proceeds of drug sales. The State claimed that they could seize the vehicle because it had been used to commit a crime.

Timbs’ attorneys argued that taking the vehicle was nothing more than an additional and excessive fine. The Indiana Supreme Court rejected that argument, because the U.S. Supreme Court had never explicitly stated that the Eighth Amendment applied to the states.

The Supreme Court overturned the Indiana Supreme Court in an opinion wrote by Justice Ginsberg:

"For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history. . .Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, or can become sources of revenue disconnected from the criminal justice system.”

Local government uses fines and fees as a means to raise revenue, and that creates a perverse conflict of interest between the bureaucracy and residents of the community. The Supreme Court’s decision makes clear that the Eighth Amendment applies to the states. This will make it far easier to challenge unreasonable fines and fees, as well as, asset forfeiture

This case points out how ridiculous overly burdensome fines and civil asset forfeiture can be when abused. Many times the fines and the confiscation of property only hurts the families left behind when a defendant gets convicted and goes to prison. This inevitably propagates a cycle of crime, when a family is left with very few options and bills to pay.

The Supreme Court and Justice Ginsberg have spoken: Excessive fines are unconstitutional, and civil forfeiture is an additional fine to those who are convicted. If you have been served with a civil forfeiture in connection with a criminal case, please give us a call at 918-884-7791 and let us help you fight for your constitutional rights.

Brian J. Boeheim, Partner, Boeheim Freeman Law

Medical Marijuana and Child Custody

Oklahoma Medical Marijuana Law

Marijuana Licensees with Minor Children:

No medical marijuana license holder may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this law, unless the person's behavior creates an unreasonable danger to the safety of the minor.  63 O.S. § 425A(D) (OSCN 2019), Medical Marijuana

Marijuana Licensees - Protect Yourself Against Claims of Neglect

Parents who are licensed marijuana users are expected to act with the same precautions as those who are prescribed other controlled substances.  As with all medications, keep medical marijuana our of plain sight, out of the reach of children, and in properly labeled containers; and take medical marijuana in proper doses and during times when is does not inhibit your ability to parent.  Never drive with children after medicating.  In a home where there are duel patients who are parenting, alternate intake of the medication to ensure that one parent is alert and capable of taking care of an emergencies that may arise. 

Marijuana Licensees - What to do DHS or Family Court Gets Involved

Sensible use and safe storage of prescribed marijuana when children are in the home of the licensee affords protections to the licensee from DHS or family court interference with child custody.  If your licensed marijuana usage becomes an issue in your child custody or DHS case, call the family law attorneys at Boeheim Freeman Law.  918-884-7791