Hornsby & Hornsby, Attorneys at Law            (205) 856-1000

          Anyone who has watched an episode of Law & Order, NYPD Blue, or Miami Vice has heard those famous words: “You have the right to remain silent; anything you say can and will be used against you in a court of law....” As you may know, it’s known as “Mirandizing” a suspect, a term coined from the Supreme Court case that ruled that police are required to make these and other disclosures prior to “custodial interrogation.”

          Most attorneys, if given the chance, would advise their client to do just that – remain silent. Little good can come from running your mouth in a situation where the police have already decided that you’re their man (or woman, just to be fair). You’re probably not going to talk your way out of the mess, at least not right then. So both practically and legally speaking, the prudent thing to do is to remain silent.

          But what if your silence could be used against you to demonstrate your guilt to the jury later on? In a case before the Supreme Court, prosecutors in Texas had successfully used a defendant’s silence to help prove him guilty of murder to a jury. The trial court judge had allowed the prosecution to argue that by remaining silent in response to questions by police, the defendant basically admitted his guilt. This particular defendant had been freely talking to police until the officer asked him if certain shell casings were going to match a rifle that he had. It seems that the defendant then realized the possibility of a ballistics match for the first time and also realized he may be in trouble after all. So he did exactly what he thought he had the right to do – remain silent. Importantly, he had not yet been arrested, and therefore had not been advised of his rights (Mirandized), nor were the police obligated to Mirandize him at that point.

          But the issue in front of the Supreme Court is whether or not that right to remain silent extends to the time prior to the arrest. Some of the comments of the individual Justices indicate that there is a possibility that the Court may determine that your pre-arrest silence can be used against you to prove guilt. Is it good policy (or even Constitutional) for the police to be able to question you prior to arrest, and then be allowed to use either your answers or your silence against you in court? It seems that such a ruling by the Court would place future suspects in a Catch-22. Either talk to the police and risk incriminating yourself, or don’t talk to police…and risk incriminating yourself.

          If you have travel plans to New York City coming up, good news! It appears that you will still be able to buy a large soft drink while eating out. Mayor Michael Bloomberg’s administration had famously banned “sugary” drinks larger than 16 ounces from being served in restaurants, street vendors, and other venues within the city. With 20 oz or larger drinks being the norm for most restaurants, this was setting up to be a major problem for consumers and businesses. However, the state court declared that such a ban on large drinks was “arbitrary and capricious” and ruled that the city was permanently restrained from implementing or enforcing the regulation on drink sizes.

          The bottom line is, the judge reasoned that, along with this regulation being difficult to uniformly enforce, the administration’s unelected Board of Health was tasked with issuing regulations to help deal with the imminent threat of disease – and that soft drinks, and the effects they can have on health, didn’t fit the bill. And as soft drink loving citizens all over the country have been arguing since this foolishness came to light, if such a ridiculous regulation is to be the law, it at least should come from the legislature…so that the will of the people has at least a chance of being considered. And maybe so that the lawmakers can be voted out in the next election.

          Is it possible to use a high tolerance for alcohol as a defense to a drunk driving charge? A defendant in a Swedish criminal court did just that. He apparently is in the habit of drinking "six small snapps" of beer and an additional amount of traditional mulled Swedish wine (called glogg) every day before work. He was eventually pulled over for it and, as you would expect, his blood-alcohol content (BAC) was 5 times the legal limit in Sweden. He was arrested and charged with a form of aggravated drunk driving.

          In his trial, he used as his defense the fact that he was such a heavy drinker that he had developed an extremely high tolerance for alcohol and was therefore not inebriated or impaired. The judge apparently agreed and dismissed the charge against him, setting him free. I wonder if he drank six more small snapps of beer as celebration that night....

          So could a similar defense work in Alabama? The short answer is, probably not. Alabama DUI law sets forth five statutory methods to be charged with DUI, and they are found in Ala. Code section 32-5A-191(a)(1) through (a)(5). The first two deal with alcohol related impairment, while the last three deal with other substances used alone or in conjunction with alcohol. We'll focus on the alcohol-related ones here. (a)(1) prohibits being in physical control of a vehicle with 0.08 percent or more by weight of alcohol in the bloodstream. (a)(2) generically prohibits being in physical control of a vehicle while "under the influence of alcohol." In theory, one could argue to a judge that "six small snapps" of beer and an additional amount of traditional mulled Swedish wine does not cause you to be "under the influence of alcohol" however it may be tougher to get past that per se limit of the 0.08 percent limit found in (a)(1). For the most part, if your BAC is 0.08 or above, it's tough to win your case on the argument of how much you have consumed, and your attorney is better off attacking the procedures the police used leading up to the blood alcohol test.

          Does the 4th Amendment protect citizens suspected of driving under the influence from having a blood sample taken without consent and without a warrant? In case you missed that day in your high school Civics course, the 4th Amendment generally protects citizens against unlawful searches and seizures. That means that in order for the police to conduct a search or seize property, the individual must either provide consent, or a judge must issue a warrant based on probable cause. There are many exceptions to the rule (a search incident to an arrest, plain view searches, emergency – or exigent – circumstances, etc.) but for the most part, without prior consent or a warrant, the police are prohibited from conducting a search or seizure of property.

          In the past, blood has been treated as the property of an individual for 4th Amendment purposes, and therefore a warrantless sampling (or seizure) of that blood would be unlawful, and therefore inadmissible in court. However, the Supreme Court is taking a look at a case where a Missouri police officer ordered a hospital lab technician to take a sample of blood from a DUI suspect, even though the suspect had refused to volunteer the sample. No warrant was ever granted, nor even applied for. As you may have anticipated, the suspect’s blood-alcohol content (BAC) was well over the legal limit and the prosecution intended to use the BAC result in the trial. The defense filed a motion to suppress the blood test results, citing an unconstitutional search/seizure. The government argued that the rate of dissipation of alcohol in the blood stream required a quick sample, and was therefore an emergency situation. The Supreme Court must now determine whether the results are admissible, given the nature in which they were obtained.

          Comments from the oral arguments, which occurred today, suggest that a majority of the Justices are skeptical of the constitutionality of a warrantless blood sample. Both conservative and liberal Justices grilled the attorney for the state about the intrusiveness of needles, and the ease at which a warrant could have been obtained if the officer had just picked up the phone. From reading the transcripts of the statements made by the Justices, it appears that most, if not all, are uncomfortable with the 4th Amendment being trumped by the convenience of law enforcement. Of course, as demonstrated last year, until the formal opinion is issued, comments and questions by the Justices should be taken with a grain of salt.

          What is the appropriate response to tragedies such as the one that occurred in Newtown, Connecticut last Friday? Certainly, the best immediate response is to pray for those whose loved ones were ripped away in a matter of minutes. And, of course, to be thankful that your family is safe. But what can we do as a society about these man-made tragedies, which seem to occur over and over again? One argument would be to strengthen gun control. To me, that sounds like taking a pill to treat the symptoms, instead of addressing the disease itself. Mass killings have happened throughout history, long before handguns and semi-automatic rifles existed, or as President Obama would say, back when men fought with “horses and bayonets.” To be sure, knives and swords have surely killed far more people than guns have. So we can’t really blame mass shootings on the weapons themselves. To draw on a tired cliché, guns don’t kill people, people kill people.

          So back to my earlier question. What can we do as a society about these tragedies? It’s not just the Connecticut shooting. It was the Aurora theater shooting back in July. Columbine 13 years before that. The NFL's Javon Belcher's murder-suicide earlier this month. Here in Birmingham, a local restaurant owner recently took his mother’s life and then his own. Just last week in Birmingham, a federal courthouse employee committed suicide in front of his coworkers. Over the weekend, in separate incidents, several gunmen were killed by police, one at a local hospital in Birmingham. A quick reading of the newspaper articles on these events suggests that in nearly all of them, the shooter was suffering from some level of mental disease or distress. That’s not excusing the crimes. All of the shooters likely knew what they were doing at the time. But whether you look at Dylan Klebold and Eric Harris from Columbine High School 13 years ago, James Holmes from the Aurora movie theater massacre, Adam Lanza in the Newtown shooting, or any of the murder-suicides or other recent shootings, there is a thread that seems to connect them all. Extreme mental distress or disease during the period of time leading up to the shooting. An argument can be made that strong restraints on gun ownership could have prevented one or more of these incidents. But an equally strong argument can be made that each of these tragedies would have unfolded in the exact same way. The sad truth is a motivated killer will find a way to accomplish what he wishes.

          In the wake of most of these tragedies, there has been a common theme: those acquainted with the killer either suspected serious mental issues or knew of the fact that the killer was, in fact, a ticking time bomb. It was the case at Columbine, it was the case in Newtown, and, tragically, it will probably be the case in the next shooting, unless we as a society are willing to take responsibility for those around us. Mothers and fathers need to be involved with their children and understand what’s going on in their lives and in their heads. Wives need to be aware of changes in their husband’s behavior, and husband’s their wives. Coworkers need to be familiar enough with other coworkers so that trouble can be spotted before it erupts. Actions must be taken by those family and friends. Warning signs can't be ignored or explained away. To this lawyer and writer, admittedly untrained in the ways of the mind, this seems to be the only viable way to get to the actual disease that has infected society for so long now. I know the solution may not be as simple as I just stated, but it can’t be as simple as taking guns away either.

          When a state passes a law making recreational use of marijuana legal, what does that mean for schools, businesses, and other entities located within that state? This very issue is being raised in several states, such as Colorado, that have recently legalized marijuana. To completely understand the issues at hand, it’s important to realize that marijuana remains illegal under federal law. Even if Colorado state law allows personal marijuana use, federal law does not. To take that a step further, some believe that businesses involved with federal contracts or receiving federal grants, as well as educational institutions/universities could lose their federal funding and research funds if marijuana is used by those employees or other personnel. After Colorado legalized marijuana last month, University of Colorado president Bruce Benson explained that "marijuana threatens to cost the university nearly a billion dollars annually in federal revenue, money we can ill afford to lose.”

          Another issue is whether employers will be able to terminate an employee who tests positive for marijuana in a state where it has been legalized. In some states, like Alabama, an employer has the ability to terminate an employee for almost any (non-discriminatory) reason. Some states, however, specifically forbid an employee from being terminated for any private conduct that is legal. These laws are generally aimed at preventing an employee from being fired for smoking or drinking while away from the office, but with the legalization of marijuana, these employment laws may need to be reexamined, especially given the conflict between an activity that is legal under state law but remains illegal under federal law. Should an employer to be required to retain an employee who (now legally) smokes marijuana after work?

          With every election bringing another handful of states deciding on whether to keep marijuana use criminalized, it will be interesting to see how states move to protect employers and universities, in particular those relying on federal funding, that wish to prohibit marijuana use.

          Most people are aware of the fact that churches (as not for profit entities) risk forfeiting their non-profit status if a pastor urges his congregation to vote in a particular way. It’s why your pastor may have urged you to vote, maybe even in a manner reflecting the specific scripture or tenants of your faith, but stopped short of naming the candidate you should vote for. Here is a link to an interesting read about the Internal Revenue Service’s enforcement (or lack thereof) of these rules prohibiting churches from endorsing specific candidates for political office.

          The rules prohibiting churches or their leaders from political speech are controversial to many people, for both “religious integrity” and free-speech reasons. However, according to this AP article, the IRS has avoided enforcement of these rules for a number of years. Attorneys involved in these types of cases claim that they are unaware of any investigations into partisan statements by churches during this time. In fact, hundreds of pastors have directly endorsed a candidate from the pulpit and sent a recording to the IRS, in an attempt to force the IRS’s hand (and as protest to the IRS rules). So far, the IRS has never investigated, or even contacted one of these pastors. Very interesting, especially given the intense campaign our country is emerging from.

          How far should government regulation go in our lives? Over the course of my lifetime, government regulations on the aspects of our everyday lives have gone from being more or less non-existent to being - arguably – overdone. Wearing seatbelts is mandatory. Nutritional data must be placed on all packaged foods. It seems like construction permits are required by municipalities for anything more complicated than Windexing a window. Of course, some of these regulations are great. They protect individuals from being harmed by other people.

          One of the latest trends in regulations (although it’s actually been going on for decades) is the prohibition against smoking in public places. Restaurants, hotels, retail stores, etc. are typically places where smoking is prohibited by ordinances. Recently, the city of San Rafael, CA banned smoking in private residences that have multiple units within them. My understanding of the law is that free-standing, single-family houses are not subject to the law. However, apartments, condominiums, duplexes, and any other living arrangement that utilizes “shared walls” are subject to the restriction. For the record, I am a non-smoker. Smoking just doesn’t appeal to me, and I generally like the fact that I can go to a restaurant without smelling cigarette smoke. If I were to be totally honest, philosophically speaking, I do have concerns over a privately owned restaurant not having the say so on whether smoking will be allowed by private citizens within its premises. However, I am able to rectify that with the fact that the restaurant (or hotel or retail store), while private property, is open to the public, and thus, perhaps, subjects itself to such regulation. I don’t know that I totally agree with that idea, but I can understand it.

          However, I cannot understand how a private residence can be subject to such restrictions. Nothing about a condominium or duplex is open to the public, even if there are “shared walls.” Certainly, there may be instances where the ventilation between two units causes problems with smoke, but isn’t that just the nature of having neighbors? Should we also ban the cooking of ethnic food in units with “shared walls” and “shared ventilation” systems? Unless and until the government decides to completely ban the smoking of cigarettes (which is unlikely due to the revenue gained from cigarette taxes, not to mention constitutional issues), it seems unfair and hypocritical to whittle away at the locations that a person can smoke. After all, a man’s home is his castle, even if the castle walls are shared by another king.

          Hold your breath. After a flurry of landmark decisions in June of this year, the Supreme Court is back in session…and with plenty more landmark cases in store. By its very definition, the Supreme Court of the United States only hears “important” cases. It’s not likely that my dispute with my homeowners association over who should repair my mailbox light would ever be deemed worthy of the Supreme Court. However, many of the cases decided by the Supreme Court only impact a select few citizens, or maybe only those directly involved in the case. The unique thing about the June session was that so many of those decisions directly impacted all of us. The Court issued rulings on healthcare and illegal immigration, just to name a couple. The October session kicks off with a case on affirmative action (use of racial factors in determining college acceptance), and also is scheduled to address the federal Defense of Marriage Act, which, among other things, allows states to choose not to recognize a gay marriage from another state and federally defines marriage as between a man and a woman for purposes of federal benefits and rights. If the Defense of Marriage Act is overturned, states could be forced to adjust their treatment towards gay marriages.

          One important case that won’t get as much attention as some of the others but impacts our lives just as much is our right to resell an item to another person. We’ve all done it – maybe on eBay, half.com, Amazon, or the old fashioned yard sale. You don’t use that video game console anymore. You haven’t worn that shirt in years. Resell them and make a little money. A long-standing concept called the “first sale” principle has been recognized to allow citizens to resell this property as they see fit, once it has been purchased. After all, it is yours. The U.S. Circuit Court of Appeals ruled that for foreign made items (almost everything in your house, as it turns out), the “first sale” principle does not apply. So in order to resell the foreign-made item without violating laws, the owner must obtain permission from the manufacturer. Good luck getting Sony to grant you permission to sell that Playstation 3 on eBay. And I’m sure getting permission to sell those shirts made in Thailand at your yard sale for $3 will be a breeze.

          I can’t help but think that the Supreme Court will issue its ruling in a way to preserve our freedom to resell our own stuff, and thus prevent eBay and the like from going out of business. The last thing our country needs right now is a whole sector of the economy to be deemed “illegal.” As we’ve seen, regardless of the evidence presented and the letter of the law, our Supreme Court is more than happy to manipulate the law to achieve whatever result it wants, and I think they will do the same here.

          Not that you would ever do such a thing, but anybody driving through Center Point can run red lights without the fear of a discreet camera snapping your picture and sending you a ticket. For the last year or so, these cameras have given hundreds of tickets to drivers, who are not even aware that they have been caught until it arrives in the mail. Now, the city has “voluntarily” turned off the cameras while the courts are straightening out the procedures for handling the tickets and fines.

          The camera ticketing process begins when a sensor senses a car in the intersection during a red light. A camera snaps a picture and transmits the offense to the city clerk, who mails a ticket to the car’s registered owner. Unlike regular tickets, the offense costs no points on the driver’s abstract, but also is not handled in court, in the event the owner disputes the offense. Instead, an administrator in Center Point would hear the case. So why have the cameras been turned off? Judge Lichtenstein of the District Court in Jefferson County, who handles appeals from municipalities, has ruled that in order for the administrator to have authority, an amendment to the state constitution is required. So the city has turned the cameras off because after Judge Lichtenstein’s order, there would be no ability for a citizen to appeal one of these mailed tickets.

          An issue I would like to see addressed is how these mailed tickets can be issued without any evidence proven in court. Even a picture is not typically admissible in court without some form of foundation – some showing of how the picture came into being, who took it, etc. This foundation is a basic principle of the rules of evidence and these rules have apparently been cast aside in the realm of intersection cameras. Nobody actually takes the photo of the offender, and I doubt whoever is behind the technology of the camera will travel from California to testify in a case. So it’s the word of the offender against…nobody. I’m interested in what the result of a case would be if a frustrated and stubborn citizen (like myself) refused to pay the ticket and demanded a hearing on the evidence, based on his due process rights. How would the prosecutor go about proving a case with no testimony whatsoever regarding the who, what, when, where, and how?