Randy England is a criminal defense attorney
and former Missouri prosecutor.

He writes from Jefferson City on the Missouri justice system: defendants, cops, prosecutors, courts, the legislature, and defense lawyers. Click here for Randy’s law practice website

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It will take your breath away.

For anyone wanting to know exactly WHY this is such good advice, you must watch this excellent video by a law school professor and former criminal defense attorney on why you should never, never, NEVER agree to be interviewed by the police:

Brett had done nothing wrong. He was polite, but not intimidated. The cop’s threats were arrogant and buffoonish, obviously meant to school Brett as to who was the master and who was the servant, but in the end the life lesson belonged mostly to the officer. Thanks to the miracle of electronics  there were the usual tens of thousands of witnesses on YouTube.

Here’s my original post and a link to the story as picked up by CNN:

20 year old to Police: I’m watching you

Almost three years have passed and recently Brett was stopped at a DWI checkpoint. Disappointingly, he did not have his video up and running, but he did manage to audio record until the St Louis County police took his phone away and stopped the recording.  Here is the audio:

Audio of Darrow car stop and phone confiscation

Missouri Cops Harass Video Vigilante A Third Time

It is astonishing how stupid it is to forcibly stop a person recording an encounter with police if they are not interfering. Think about it. The only weapon a police officer has in a courtroom is the truth. The recording is the truth.

The stories that defendants tell about police misconduct are usually dismissed as self-serving lies (unless, of course, it turns out to be on video).  Clearly, a police officer is inviting a jury to dis-believe him once they see how afraid he is of a recording. A good cop is not afraid, but whether good or bad, he might as well assume that he is going to get recorded on video/audio.

Practical note: Mr Darrow is a very savvy fellow in dealing with police. His recordings are very instructive: He is polite, but never gives out information that is nobody else’s business. He says: “I don’t wish to discuss my personal life with you, Officer” and “I don’t want to answer any more questions. Am I free to go?” You cannot imagine Brett Darrow agreeing to a vehicle search. This guy could be giving classes.

Governor Nixon is expected to sign new legislation, HB 1694, which sharpens the teeth in Missouri’s DWI laws. The bill has multiple provisions:

• Creates DWI court combining judicial supervision, drug testing, continuous alcohol monitoring, substance abuse traffic offender program compliance, and treatment of DWI court participants.

• Minimum jail sentences are now mandated for first offenders whose blood alcohol content is above .15% unless they go through a DWI court. (minimum of 48 hours jail for being over .15% and 5 days jail for over .20%).

• Minimum punishments for prior offenders are more than doubled unless the offender can attend DWI court. A serious question still remains about the availability of DWI courts because the bill provides no funding.

• Search warrant procedures are simplified to allow everyday use of warrants to compel blood testing for suspected offenders.

• The bill adds reporting requirements on all Missouri courts, but makes no provision for funding. The bill also singles out municipal judges for additional training, reporting and monitoring by the circuit court. There seems a resolve to make those local judges toe the line.

• Two provisions were (deservedly) dropped from the legislation:

1)  One provision would have allowed police to take a blood sample from suspected drunk drivers and later apply for a warrant. This was almost certainly unconstitutional.

2)  The other dropped provision would have eliminated the section that currently allows a person with a single DWI offense to have the record expunged after ten years had passed.

One hopes that despite a complete lack of funding, the severity of the new law can be offset by incorporation of the DWI courts into the existing drug court structures.

In fact, red light cameras had little to do with the Supreme Court’s opinion at all. It was the City of Springfield’s enforcement scheme that was condemned by the court. The short version is that Springfield’s red light defendants could not get a real trial, nor a proper appeal. “Nice try, Springfield” the court seemed to say, “but you can’t do that.”  Other cities with red-light cameras–such as Columbia, Missouri–may well have judicial schemes that pass muster.

More interestingly, however, the court recounted the facts of the case. The defendant was Adolph Belt, a 30-year veteran of the Missouri State Highway Patrol. Experienced at traffic control, Belt investigated the traffic light cycle at the intersection where he was photographed running a red light. The yellow light lasted about 3.5 seconds (too short a time for most traffic light situations).

It turns out that the city of Springfield prepared for the installation of its red light camera system by slashing the yellow warning time by one second at 105 intersection signals across the city.  A 2005 Texas Transportation Institute study had shown that a “one-second reduction in yellow time resulted in a 100% increase in the number of violations.” See City Lowers Yellow Light Time Before Installing Cameras. Springfield has been noted as one of “6 Cities That Were Caught Shortening Yellow Light Times For Profit“

It doesn’t take a genius to know that if shaving a second off the yellow light doubles the number of “violations” (meaning the number of red lights being run through), then that lost second is CAUSING accidents.

It is beyond argument that when a yellow light is shortened beyond a certain point, it can be impossible to stop safely before running the red light. Not only do cities know this when they shorten their yellow lights, THEY INTEND IT.

To consciously create such a risk is reckless conduct and if a person were killed in this “shortened yellow” scenario, the city and its leaders would be guilty of Involuntary Manslaughter under section 565.024, RSMo.

Perhaps this situation will give a boost to Senator Jim Lembke’s MIssouri Senate Bill 637 which will forbid the use of red light cameras and thereby remove the incentive for this lethal government scam.

It’s easy to understand why messaging is dangerous while driving, but it’s hard to see why it’s more dangerous than sorting your CD collection or putting on lipstick in the rear-view mirror.

My thought at the time was that the only way to get convicted of this offense would be to confess to it. Otherwise, it’s difficult to prove you were texting (as opposed to starting a phone call or looking for an address or surfing the internet).

[Teenager tip: Don't text and drive, but if you get stopped for texting, do not confess. DO NOT CONFESS.]

A recent St. Louis Post-Dispatch article noted that in the first five months the law was in effect, the Missouri Highway Patrol has issued just 13 tickets for the offense statewide, resulting in eight convictions. That might as well be ZERO.

The fact that the law has proven useless is not likely to stop another 20 states from joining the dozen states that already have the ban in place. Lawmakers–recognizing that the law is unenforceable–note that it raises awareness of the danger. It’s sort of like the Missouri seat belt law: basically unenforceable, but lawmakers get to be seen on the side of the angels.

Lest the bosses at the Capitol building give themselves too much credit for “raising awareness,” they should recognize that most of us wear seat belts because it’s safer, not because it’s illegal.

This may all be moot, however, since Congress is considering making the bans universal. If Missouri’s $200 fine does not stop this behavior, perhaps time in federal prison would scare us all straight. For our own good.

Instead of offering treatment options that are given to drug offenders, the new law piles on more restrictions to keep offenders from driving at all.

Even if the offender never drinks and drives again, the license revocations are so lengthy, many drivers must choose between obeying the law and losing their jobs. Eventually they end up in jail or prison–not because they hurt or even endangered others–but because they disobeyed their government to make a living.

It’s not all bad. Some provisions of the law make it more likely that convictions are reported fairly and reliably throughout the state. One is that it forces all municipal judges to take remedial training in Missouri’s DWI laws.

One very sad provision of the new law eliminates what many consider a reasonable and merciful provision of our current law. It’s the one that permits a person who gets a first and ONLY DWI conviction to have their record expunged by the court if they go ten full years without any new alcohol-related contact or conviction.

This is a provision that ought to be extended to many misdemeanor crimes: make one small mistake and if you behave for ten years, we’ll forgive and forget. Instead, we are going the other way.

Perhaps our legislature will see this bill as overreaching and fundamentally unfair. We all know friends or family members who have had an alcohol offense. We know most of them are not repeat offenders and are good neighbors–not the sort that make good political cannon fodder.

If politicians want to grandstand, there are easier targets. For example, sex offenders. The public seems not to mind what we do to them, even after they have paid for their crimes. Certainly there are many more stupid demands they might make of sex offenders, things even more ridiculous than having to hide inside their homes on Halloween.

See New law makes sex offenders hunker down for Halloween

Representative Jeff Roorda, A Democrat from the St. Louis area is back again with a bill to protect us from ourselves. His House Bill 1332 creates the crime of Motorcycle Stunt Driving.

Most new criminal laws are unnecessary and this one is especially so. But considering all the possible crimes we could commit, how cool would it be to have a conviction for Motorcycle Stunt Driving? To quote Will Smith’s character in the movie Independence Day: “I have got to get me one of these!”

To get one, you have to complete one or more of the following “dangerous stunts” while riding a motorcycle on a public road (presumably in front of a police officer):

1. Standing on the seat, frame, or handlebars;
2. Performing handstands on the seat, frame, or handlebars;
3. Operating a motorcycle on one tire;
4. Removing both hands from the handlebars

It’s kind of like taking your driver’s test, except there is no requirement that you do it very well.  (Keep in mind–however–it could be embarrassing to get a conviction for attempted Motorcycle Stunt Driving). Afterwards, you pay your fine and tell everyone you know that you have a conviction for motorcycle stunt driving.

You could become famous. There are web sites on how to break into the Hollywood Movie Stunt business.

If you’re really ambitious, move to Hollywood. When the movie producer wants to know your motorcycle stunt driving experience, you can whip out a certified copy and tell him, “Experience, hell, I’ve got a conviction.”

Even if you don’t want to get into the movies, a conviction for motorcycle stunt driving can only bolster your image. Everybody knows the ladies go for the bad boys. If you already have tattoos, then this is the next step. If you don’t have one, get your conviction record tattooed on your chest!

A bill in the Missouri legislature takes a “refusal” to blow to a new level. SB 780, sponsored by Sen Matt Bartle, makes refusing to submit to chemical testing a separate crime, equivalent to a first-time DWI

In view of the heavy administrative penalty (one year revocation) already on the books, I am not certain how useful this provision will be. It creates a bizarre situation with regard to other statutes that still remain in effect. Section 577.041 requires the arresting officer to allow a DWI suspect twenty minutes in which to contact an attorney about whether to take the breath test.

It seems odd to specifically provide extra time for a suspect to call a lawyer to ask if he should commit a crime. This places the attorney in a situation of having to violate ethical rules if he makes any specific recommendation. I can imagine getting a phone call at 3:00 am:

Me: What can I do for you?

Suspect: I’m at the police station and I want to know if I should take the breath test? I got arrested for DWI.

Me: You are asking me if you should commit another crime?

Suspect: The cop said I could call a lawyer to see if I should blow.

Me: OK, here’s the deal. I can’t advise you to commit a crime. I could advise you to obey the law and take the test, but I can’t do do that either, because it could make your situation worse. However–wink, wink–If you do take the test, X will happen. If you don’t, Y will happen. Good luck.

This bill is hardly necessary, and–as the above shows–creates difficulties within the existing law.  It needs to fail.