Digby Law Firm Blog
This blog is not intended to replace the advice of an attorney. The purpose of this blog is to give the reader some information regarding the legal issues contained herein. The information presented should not be construed to be the formation of a lawyer/client relationship. Read More.
Excerpts taken from an article, written by Linda Satter on September 20, 2013
After listening to two day of testimony, Pulaski County Circuit Judge, Herb Wright, cited insufficient evidence in throwing out rape and kidnapping charges against Quinton Riley, Jr., without giving jurors a chance to deliberate. Riley is scheduled to stand trial on another set of allegations that he duct-taped and raped a women seven months later.
Judge Wright had ruled earlier that he would permit both women to testify at Riley’s separate trials in each case, after the prosecutor’s had argued that they constituted similar conduct. After prosecutor’s had finished presenting their case, which included the testimony of the 2nd accuser, defense counsel Bobby R. Digby II, challenged the sufficiency of the evidence that had been presented and restated his concerns that the 2nd accuser’s testimony was unfairly prejudicial.
In granting Digby’s motion for a directed verdict, which also cleared Riley of burglary, terroristic threatening and aggravated assault charges, the Judge indicated that the 2nd accuser’s testimony wasn’t appropriate, after all, and should not have been allowed.
The National Highway Traffic Safety Administration has established three tests as the Standardized Field Sobriety Test. You may find a rogue officer who throws something else at you, but because the standardized tests are mostly likely to hold up in court, these are the ones you’ll probably encounter.
The Horizontal Gaze Nystagmus (HGN) Test
You’ve seen this test in movies and public service announcements. It’s the one where the officer has you watch a moving a pen or a flashlight. Nystagmus is an involuntary shaking of the eyes that usually only occurs at the extremes of your periphery. But when a person is intoxicated, it can occur at less steep angles. So the officer will have your eyes follow the object, slowly, back and forth. He or she will be watching for jerkiness in the way your eyes track the object, looking for that telltale shake when they’re off at the sides. If nystagmus occurs within 45 degrees of center, you could be in trouble. A person without nystagmus should be able to follow the object smoothly, and when they look at a still object at 45 degrees, they should be able to do so steadily. If you failed this test, you likely have a blood-alcohol content (BAC) of 0.08 or greater. The NHTSA estimates this test to be 88-percent accurate. But here’s the thing: There are literally hundreds of known causes of nystagmus, most of which have nothing to do with intoxication. Some people’s eyes just behave that way, which must be rather inconvenient for sober people at a DWI check.
The Walk-and-Turn (WAT) Test
You’ve probably seen this one, too. The cop tells you to “walk the line,” taking nine heel-to-toe steps, while looking down and counting out loud. At nine steps, you pivot on one foot, turn around, and walk nine heel-to-toe steps back. You have to keep your hands at your sides, your eyes down, and you can’t stop, waver, or really screw it up at all. This is what’s known as a “divided attention” test. The striatum, a part of the brain linked to multitasking, is compromised when someone drinks to excess. The effect is severe when the attention span is divided between mental and physical tests. The NHTSA website says the officer is looking for eight signs of impairment.
You’re in trouble if you:
- cannot keep balance while listening to the instructions
- begin before the instructions are finished
- stop while walking to regain balance
- do not touch heel-to-toe
- step off the line
- use your arms to balance
- make an improper turn
- take an incorrect number of steps
There are a lot of things to remember here. That’s the idea, in addition checking your balance, the officer is looking at how accurately you can follow instructions. Alcohol has a serious impact on the hippocampus, the part of the brain associated with the creation of new memories. It’s hard to follow multiple instructions if you’re having a hard time remembering what they are. The NHTSA claims the Walk-and-Turn test is 79 percent accurate.
The One-Leg Stand (OLS) Test
Like the Walk-and-Turn test this is a divided attention test that also checks to make sure you won’t fall flat on your face. You are instructed to stand with one foot about six inches off the ground, and count aloud by one-thousands until you’re told to lower your foot. The officer times you for 30 seconds. He or she will look for four main indicators of intoxication: Swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. It is 83 percent accurate.
Combined, the NHTSA claims that those three tests are 91 percent accurate.
Things to Remember
In Arkansas a person is not required to take ANY tests of ANY kind while they are at their vehicle. This includes all FST’s and the portable breath test (PBT). There is no law requiring you to take them and there is no punishment for not taking them. It is probably better for most people not to take any of these tests. The officer will often say that they will let you go if you pass these tests. In all the DWI’s I see, less than 5% of people pass these tests, even the sober people. You are however required to take the blood, breath or urine test at the police station. If you do not take that test, your license will be suspended for 6 months and you will be charged with a refusal. Also, you are not required to answer any questions the officer asks you, except to provide your personal information. Don’t help him convict you. Refuse to answer any other questions he asks. Be polite and state, “I’m not answering any questions.” You have the right to remain silent. Hopefully you will have the ability.
If you are a defendant in a criminal case, by the time you get to Court, you might not think there are many things you can do to help your case. If so, you would be wrong. Appearance and attitude matters. I have been told by many Judges and Prosecuting Attorney’s that the reason they were harder or easier on a particular Defendant, was because of the way that Defendant appeared and acted in Court. Below are some simple tips that may help you out.
Dress Appropriately. If at all possible put on a pair of nice jeans or khaki’s and a pressed button up shirt. It is not necessary to wear a suit in most occasions. If you are charged with a drug offense, don’t come to court wearing a lot of shiny jewelry. If you are charged with any offense involving alcohol, don’t wear a shirt that shows beer or liquor.
Be mindful of your personal hygiene. Make sure you have showered, brushed your teeth, fixed your hair or shaved. Judges and Prosecutors are people too and when they see someone who comes to Court looking like they just rolled out of bed, then they feel like you are not taking your charges seriously and that they may need to get your attention. Much of what happens in Court, happens right in front of the Judge, you want to make the right impression.
Do Not Drink or Use Controlled Substances prior to going to Court. If a Judge thinks you are under the influence of anything improper, then he can and often will order you jailed, until such a time as you are clean and sober. The law says that a person must be able to understand the proceedings and if you are impaired, you cannot do that. If a Court official (excluding your own attorney) smells any alcohol or controlled substance on you, they are obligated to tell the bailiff, who will bring it to the attention to the Court. Also remember, what you drank, smoked, etc. the night before will be on your breath.
Be Respectful to the Court. Courts have a lot of discretion in sentencing and whether to accept negotiated pleas. The last thing you want to have happen is to smart off in front of the Judge before he passes sentence. Judges are people too and they can have bad days. Don’t give them a reason to take part of it out on you.
What is an Expungement?
An expungement is a legal mechanism that allows for certain persons’ criminal records to be “sealed.” What that means is that the criminal conviction(s) are treated as confidential and unless otherwise permitted by legal order or other law. This does not mean that criminal conviction(s) are actually destroyed, just sealed from public view.
What does it mean if my record has been expunged?
It means that you can legally state that the offense/incident/crime never occurred. See Ark. Code Ann. 16-90-902. Its like legal lying. If someone asks you if have ever been convicted of that crime, the law allows you to say, “NO!”
Act 346 vs. Act 531
- Act 346 a.k.a The First Offender’s Act.
- Act 346 can only be used one time and do not apply to bench or jury trials. You have to plead either guilty or nolo contendere to receive the benefits of Act 346.
- You cannot have a prior felony conviction to qualify for Act 346.
- You have to be put on probation for at least 1 year and you cannot violate any terms of your probation or you will lose the benefits of Act 346. You also cannot be fined more than $3,500.00 to qualify for Act 346.
- All crimes are eligible for Act 346 except sex offenders with minor victims and DWI’s (note: you can get the felony aspect of a DWI 4 expunged under Act 531). As long as you are sentenced to probation and the crime isn’t a sex offense or a DWI, then you are eligible for Act 346.
- Can you possess a firearm after an expungement under Act 346? The answer is I don’t know. Arkansas law says that you can possess a firearm AFTER your record has been expunged. Federal law is not so clear. It may still be a violation of federal law to possess a firearm after your record has been expunged under Act 346.
Other Notes: During the period of your probation, you will be treated as if you have a felony conviction. An expunged offense can still be used in calculating habitual offender status should you get charged with a subsequent felony.
Act 531 a.k.a. The Community Corrections/Punishment Act.
- Act 531 is available to anyone who commits a “target offense” as defined by statute. Generally that means any crime that is non-violent and non-sexual in nature.
- You can have ONE prior felony conviction and still qualify for this act, so long as the prior wasn’t certain Y felonies or delivery of a controlled substance to a minor. As noted above this Act will allow the expungement of a felony DWI.
- Act 531 is discretionary with the sentencing court; it is not mandatory with the Court just because you qualify.
- You can be eligible for Act 531 if you are sentenced to incarceration in a Community Corrections Facility. If you are sentenced to probation under Act 531; Act 531 may be revoked if you violate the terms or conditions of your probation.
Other Expungement Provisions
The law does have other expungement provisions, such as Ark. Code Ann. 5-64-413 (for drug offenses); expungement for juvenile offenders; and expungement for certain traffic offenses. Contact an experienced criminal attorney for further explanation of any and all expungement provisions.
Judge Rhonda K. Wood was overturned in a decision handed down by the Court of Appeals on December 1, 2010. The only issue in the case was whether a FINS (Family In Need of Services) case could extend past the minor child’s 18th birthday, absent some limited exceptions not applicable to this case.
At the trial of this matter, appellant’s counsel argued that any Orders of the Court arising out of the FINS case where no longer valid, because the appellant had turned 18 and therefore the appellant could not be held in contempt for violating those orders. Appellant’s counsel relied upon Ark. Code Ann. 9-27-303 for authority. Judge Wood denied counsel’s motion to dismiss wherein she then found the appellant in contempt and pronounced sentence.
In a post hearing motion for reconsideration, appellant’s counsel again argued to the Court that the contempt finding was improper, this time relying on a presentation that Judge Wood had given standing for the same proposition. This too was denied by the Court and appellant was forced to appeal.
The Digby Law Firm was counsel for the appellant at both the trial level and on appeal and while we are very happy that the Court of Appeals did the proper thing in reversing the trial court’s decision and dismissing the case, it is very concerning that a Circuit Judge, one who did run for the Court of Appeals, but was defeated, could make a ruling that is so contrary to the clearly stated law. Of course the other party in the case was a prominent and wealthy citizen of Faulkner County and the trial occurred while Judge Wood was running for the Court of Appeals.
The following article was written by John Lynch and published on May 21, 2010 in the Arkansas Democrat Gazette.
Prosecutors dropped a rape charge Thursday against a convicted murderer whose accuser gave birth to his baby, telling a judge they couldn’t prove the accusation after learning that the accuser once falsely accused another man of rape. “The state has come to the conclusion we cannot meet our burden [of proof] and go forward,” deputy prosecutor Will Jones told a judge Thursday.
The allegations against W.S. received national attention. He was a maintenance worker at the Willow House high-rise at 2500 Willow St. in North Little Rock. He was on parole after being convicted in 1989 along with a second man for first-degree murder and kidnapping over the beating death of a prostitute whose nude body was found at a school playground. Sentenced to 60 years in prison, Small was paroled in 2004.
He denied ever meeting the woman who accused him of rape, let alone having sex with her. The woman, 30-year-old Ronika Jones Bowie, was deaf, which required authorities to use an interpreter to question her. She reported that W.S. had forced himself on her in June 2008 after using a passkey to let himself into her apartment while her husband was running errands. She didnâ€™t know his name but was able to pick him out of a photo lineup. Bowie made her allegations in October 2008 after learning that she was five months pregnant. W.S. was arrested a year ago Wednesday, after Bowie gave birth to a boy in March and DNA confirmed that the child was W.S.’s.
W.S. has since been returned to prison on a parole violation. His attorney, Bobby Digby II, said W.S. would likely be released July 27, his next parole hearing, although Digby planned to petition authorities to release his client earlier.
W.S. was not present at Thursday’s hearing, where the deputy prosecutor explained to Pulaski County Circuit Judge Marion Humphrey the decision to drop the charge. Jones said prosecutors’ investigation hit its first roadblock on the eve of W.S.’s first trial date in April, when they learned that Bowie had made a previous rape allegation involving a Willow House worker three years earlier. No one was arrested in that case, Jones told the judge, but Bowie claimed that an acquaintance had forcibly raped her in her apartment after a Willow House security guard let the man inside her residence. But Bowie recanted the rape accusation when questioned by police, saying that she’d made up the claim because she was angry that the man was calling her names. She actually had sex with that man in exchange for money, Jones told the judge. In questioning, Bowie denied making any rape allegations against anyone else, Jones told the judge. But investigators discovered two more occasions, in 1996 and 1998, when she’d made rape accusations that couldn’t be proved by police, he said. With Bowie’s credibility in question, prosecutors concluded that they couldn’t prove the accusation against W.S. beyond a reasonable doubt, the standard required for a conviction. Because of his criminal history, W.S. had faced an automatic life sentence if convicted.
After the hearing Thursday, Digby commended prosecutors for their diligence. His client had lied about knowing Bowie because the Willow House has a strict no-fraternization policy that bars even casual friendships between workers and tenants, Digby said. W.S.’s criminal history makes it hard for him to get a job, and he was afraid of getting fired, Digby said. He said the sexual encounter between the pair was consensual and that Bowie made up the rape claim to explain her pregnancy to her husband. Police said she hadn’t had intercourse with her husband that would’ve accounted for her pregnancy. If W.S. had told police about the sexual encounter at the time, “he might not have been prosecuted,” Digby said.
During earlier proceedings in the case, Digby had questioned the woman’s motives for accusing W.S., suggesting that she was seeking a financial settlement from the North Little Rock Housing Authority or the U.S. Department of Housing and Urban Development. He noted that Bowie waited months to report being attacked and declined offers from authorities to move to another apartment complex.
W.S. was the target of vicious accusations, Digby said, but he hoped people would learn from the case to give criminal defendants the benefit of the doubt. “People should wait for the facts to come out before rushing to judgment,” he said.
DWI punishment ranges are based upon the number of prior offenses, that have occurred in the last 5 years. The 5 year time period is measured from offense date to offense date, e.g. from the dates written on the tickets.
1st Offense DWI
1 day to 1 year in jail, Fines: $150-$1000, DL Suspension for 6 months, with interlock device
2nd Offense DWI
7 days to 1 year in jail, Fines: $400-$2000, DL Suspension for 24 months, with interlock device available after 45 days.
3rd Offense DWI
90 days to 1 year in jail, Fines: $900-$5000, DL Suspension for 30 months.
4th Offense DWI
A 4th offense is a felony. 1 year to 6 years in the Arkansas Dept. of Corrections, Fines: $900-$5000.
All the fines are in addition to Court Costs ($305.00)
A law professor explaining to a class of future lawyers why we never talk to the police.
A former police officer further explaining to a class of future lawyers why he wanted you to talk to him.
Y Felony: 10-40 Years or Life.
A Felony: 6-30 Years in the Arkansas Department of Corrections (ADC)
B Felony: 5-20 Years (ADC)
C Felony: 3-10 Years (ADC)
D Felony: 0-6 Years (ADC)
A Misdemeanor: 0-1 Year in County Jail (Jail), Fines $0-$2,500.00.
B Misdemeanor: 0-90 days in Jail, Fines $0-$1,000.00
C Misdemeanor: 0-30 days in Jail, Fines $0-$500.00
Violations: Fines $0-$1,000.00
All the above fines are in addition to Court Costs, which vary by crime and court. If you are charged with a felony and you are a habitual offender, you are subject to an increase in maximum punishment time.