Now that I’ve given you some background on casino markers, I’m going to tell you why I think that current prosecutions of casino markers violate the Equal Protection Clause of the Nevada Constitution.  Article I, section 7, subdivision (b) of the Nevada Constitution states in part: “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”  What this means is that the State of Nevada, generally speaking, can’t give your neighbor rights that it doesn’t give you.  Additionally,  Nevada’s equal protection clause states in article 4, section 21 of the Nevada Constitution, “In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the State.”

One of the ways I am challenging the prosecution of casino markers is in the application of the existing law of NRS 205.130, referenced above, which I’m arguing violates the Equal Protection Clause.  Let’s say that you loan your neighbor $50 cash and he gives you a check for $50 dated today but you will deposit in a week.  You have, in effect, given your neighbor an extension of credit.  You then take that check to the bank in a week as instructed and deposit it only to be told that your neighbor’s account has insufficient funds, or that your neighbor had already closed his account, or that he had put a stop payment order on the check.

Let’s change the facts just a bit.  Let’s say that you own a dry cleaner and someone comes to pay you for clothes that you’ve cleaned.  You take a check from the patron for $50 which is the cost of your services, and the check later bounces.  If the patron gives you, let’s say, $7 as a partial payment and promises to the pay the rest but later doesn’t do so, you’re out $43.

Now imagine that you have this worthless check for $50 and you take it to the Bad Check Unit and ask them to prosecute.  The first question they will ask you in the Bad Check Unit packet is, “Was this check that you received for an extension of credit?”  If “yes”, then they will ask you, “Are you a casino licensed with the State of Nevada?”  If the answer is “no”, then you are out of luck and the DA will not prosecute your neighbor for writing that bad check for $50 to you.  But, if you were a licensed casino, you would have answered “yes” to the question of whether  the amount is for an extension of credit and “yes” to being a licensed casino and the DA would prosecute on your behalf.

In our dry cleaner example, the dry cleaner who goes to the Bad Check Unit will be asked, “Have you accepted partial payment for your check?”  If the answer is yes, then you are out of luck, unless you are a licensed casino.  That’s right – the casino, just as in the case above, has more rights than you do and can still have the DA prosecute even though the casino has accepted partial payment after  a casino marker it receives from a patron is bounced.

So how can this be?  How can the DA tell you that they won’t prosecute your neighbor for extending credit to him but they will prosecute the patron who wrote the casino marker when the casino extended credit to him?  How can the DA tell you they won’t prosecute your dry cleaning customer because you accepted a small partial payment, but the casino is allowed to accept partial payment and still go to get the rest of the money through the DA’s office?  My argument is that it can’t because it’s a violation of the Equal Protection Clause.  The law doesn’t permit a corporate casino to have the right to do something that a Nevada taxpayer doesn’t have the right to do.  Let’s look once again at article I, section 7, subdivision (b) of the Nevada Constitution: “A citizen (i.e.,you or a corporation because a corporation is a citizen) or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”  And let’s look again at Article 4, section 21 of the Nevada Constitution: “In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the State.”  The DA’s Bad Check Unit’s policies of favoring casinos in prosecutions for casino marker that bounce violates both these sections of the Nevada Constitution.

How is it that the casino corporation gets the privilege of having the DA’s office prosecute the patron, but you or I don’t get the same privilege extended to the casino if our neighbor writes us a bad check repaying us for a loan or if you or I accept partial payment?  I don’t see how anyone can say that giving the casino corporation the privilege to throw a gambler in jail for not paying a marker doesn’t violate the Equal Protection Clause when you or I can’t do the same to our neighbor who stiffs us with the check I’ve mentioned above, or the dry cleaner can’t do the same to a customer who makes a partial payment and refuses to the balance?

This makes no sense.  This is why I’m litigating this issue and moving to dismiss all cases against my clients who have casino markers.  I’ll be arguing it in Clark County District Court at the end of the month.  I’ll keep you posted.

If you have a casino marker that you’re concerned will be turned over for prosecution or has already been turned over for prosecution, call me at (702)966-5310 and let’s discuss.

You don’t have a right to a jury trial for your probation revocation hearing.  Your right to cross-examine is not as great as in a jury trial, but you absolutely do have the right to cross-examine the police officer who arrested you under your Sixth Amendment rights under the Nevada Constitution and the U.S. Constitution in your probation revocation hearing. This is because of the case of Anaya v. State, 96 Nev. 119 (Nev. 1980).  If the police officer is not available to testify and the prosecutor attempts to prove his or her case in the probation revocation hearing without the police officer, you will very likely be able to avoid revocation assuming that you have no other serious violations.  If the judge permits the probation officer to testify about what the arresting officer said and did in the new arrest, you have a very good chance of getting the Nevada Supreme Court to reverse the judge’s decision to revoke you assuming you have no other violations such as absconding while on probation.

Another important thing to remember is that you have the right to present witnesses in your defense at your revocation hearing.  The Anaya v. State case I referenced above gives you that right to present mitigation evidence on your behalf.  What that means is that you have the right to have your own character witnesses testify before the judge to hear what positive things you’ve done while on probation and that you are a person who is responsible, working or in school, going to AA meetings, etc… and overall doing things to improve the quality of your life and that of your family.

Most lawyers don’t present live character witness in probation revocation hearings because they don’t know that you can do this.  Sometimes this may be the only thing that saves you and convinces the judge that you deserve to be reinstated to probation and that you should get a second chance.  If family members present themselves well, then you may want them to testify about the impact that your getting revoked and going to prison will have on your family.  If the judge likes your family, he or she may decide to give you a second chance so as not to punish your family for the mistakes you may have made while on probation.  Also, you as a defendant have the right to testify in a probation revocation hearing in your own defense.

If you or someone in your family is facing a probation revocation in Nevada state court or facing revocation in federal supervised release, be sure and call me or come visit with me so I can fully explain what options you have and how I can help you.

The usual case is this: the casino decides that on a monthly average that you have, let’s say hypothetically, $40,000 in your bank account.  The casino then will offer you credit in the form of casino markers WAY over the $40,000 you have in your checking account knowing that you’ve never had that amount ever in your account.  It’s not uncommon in this hypothetical where the casino will offer $120,000 which is three times how much you have ever had in your checking account.

The player, in our hypothetical, is given casino markers which are like checks.  The casino marker looks like a check. Once you sign a marker, the casino will print your routing and checking account numbers at the bottom of the casino marker. After you’ve presumably gambled and lost the $120,000, the casino will wait usually about 30 days and then deposit your markers with their bank and then the markers are presented to your bank for payment.  If you don’t have enough in your account to cover the markers, they will bounce and the casino will be notified.  From there, the casino will send you a certified letter telling you that you have 30 days to pay them or they will turn your markers over to the Bad Check Unit at the Clark County District Attorney’s Office.  If you don’t pay them within the 30 days, they will send your markers over to the Bad Check Unit for prosecution.  From there, the Bad Check Unit will send you a demand letter and tell you that you have 10 days to pay the $120,000 plus the Bad Check Unit’s 10% fee for a total of $120,000 + $12,000 = $132,000.  If you don’t pay the Bad Check Unit, they will formally charge you in a criminal complaint for Drawing and Passing a Check Without Sufficient Funds in Drawee Bank With Intent to Defraud, Presumptions of Intent to Defraud in violation of NRS 204.130 and NRS 205.132.

Here’s how the “waiver” argument comes in to our defense.  Let me demonstrate with this hypothetical.  Let’s say you go to the dry cleaner.  Your bill is $50.  Let’s say that you write the dry cleaner a check for $50 and you tell the dry cleaner, “Can you please hold this check for a week and then deposit it?  I don’t have enough in my account right now to cover this $50 check.”  If the dry cleaner accepts your check knowing that you don’t have enough in your account, he has “waived” the right to complain that you didn’t have enough in your account when you presented the check.  In this case, your check is more like a loan and when the dry cleaner goes to deposit the check and it bounces.  This is not a case that the Bad Check Unit will prosecute because the dry cleaner in essence gave you a loan and more importantly, the dry cleaner waived or gave up any right to complain that you didn’t have the money in your account when you wrote the check.  (If you had the money in your account when you wrote the check and then it later bounced, that fact rebuts the presumption of the intent to defraud.)

The ironic thing is that the Bad Check Unit makes a huge exception for the casinos.  If you or I make a loan to someone, and that person writes a check that bounces, we are out of luck and can’t proceed at the Bad Check Unit.  They won’t take the case.  But if the casino makes a loan or extension of credit, then that’s totally fine?  It’s ridiculous.

So back to my “waiver” argument.  The casino, in your case, knew that you didn’t have the money in your account when they gave you the $120,000 line of credit and that you’ve never had that kind of money in your account – and very likely would not have that amount in your account when they deposited the markers with you bank.  So my argument is that they have waived, or given up the right to complain that they were defrauded because you, in essence, told them when they ran a credit check on you, that you didn’t have the money in your account and have never had that kind of money in your account.

Every casino marker that is prosecuted by the Bad Check Unit is dismissed when an amount is negotiated and paid or when the patron pays off the entire amount on a payment plan.  But for those who can’t afford these options, the doctrine of “waiver” may possibly be of assistance in the form of a Motion to Dismiss for Abuse of Process or Unclean Hands which means the casinos have “unclean hands” by waiving the issue of you not having had the money and then later choosing to collect on it through the Bad Check Unit.  The doctrine of waiver may also be a good defense in front of a jury if your lawyer can convince the judge to instruct the jury that they may consider the doctrine of waiver in your defense.

If you have a casino marker that is in warrant or even if it hasn’t been presented to the Bad Check Unit, be sure and call me so we can discuss your options.

Your attorney should demand that he or she be allowed to see the rap sheets of the witnesses the State or the U.S. Government intend to use to convict you before you even go to trial.  Unfortunately, a lot of prosecutors think that you aren’t entitled to know this.  Huh?  That’s not the law.  The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf, including the police.  Kyles v. Whitley, 514 U.S. 419, 437 (1995).  The government [or the State of Nevada] has a duty to “turn over to the defense in discovery all material information casting a shadow on a government witness’s credibility.” United States v. Bernal-Obeso, 989 F.2d 331, 334. (9^th Cir. 1993)  United States v. Blanco, 392 F.3d 382, 397 (9th Cir. 2004).  “Where life and liberty depend upon the testimony of another, it is in the interest of justice that the jury should have before them every fact affecting the credibility of the witness. Otherwise, a party may be deprived of life and liberty by the testimony of a criminal.”  Corbin v. State, 111 Nev. 378, 383 (Nev. 1995) (quoting Williams v. United States, 3 F.2d 129, 134 (8^th Cir. 1924)).  “Moreover, the state possesses and controls information regarding a witness’ prior criminal activity and can more easily determine whether a prior felony conviction exists. The defense, on the other hand, does not have ready access to such information.”  Id. at 383.

Impeachment evidence is exculpatory evidence within the meaning of Brady.   See Giglio v. United States, 405 U.S. 150, 154 (1972); see also United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Brady/ Giglio information includes “material . . . that bears on the credibility of a significant witness in the case.” United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1993), amending 976 F.2d 1235 (9th Cir. 1992) (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988)) (alteration in original). Impeachment evidence is favorable Brady/ Giglio material “when the reliability of the witness may be determinative of a criminal defendant’s guilt or innocence.” Id. at 1458 (citing Giglio, 405 U.S. at 154); see also United States v. Serv. Deli Inc., 151 F.3d 938, 943 (9th Cir. 1998).

Because the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned.  Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc).  “Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor’s hands until the agency decided the prosecutor ought to have it, and by allowing the prosecutor to tell the investigators not to give him certain materials unless he asked for them.” Id. at 480; see also United States v. Monroe, 943 F.2d 1007, 1011 n.2 (9th Cir. 1991) (stating that “the prosecution must disclose any [Brady] information within the possession or control of law enforcement personnel”) (quoting United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985)).  United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004).

What all this means is that the prosecutor can’t stick his or her head in the sand and say that “I don’t know if the witness has a felony conviction or not.”  Each prosecutor has a duty to tell you if the witness does or does not have a prior felony conviction within the past 10 years.  And, if you are charged with a crime of violence, you have the right to know if your accuser has a prior arrest for a crime of violence because that’s relevant to show that your accuser, not you, was the aggressor.

The FBI maintains the National Crime Information Center database (NCIC).  There are two ways to get the NCIC criminal history (rap sheet) of the witnesses the prosecutor is relying on to prove the state or the government’s case against you.  One way is to have the judge sign an order directing the FBI to produce the rap sheet and turn it over to the judge for the judge to review it and tell you if the witnesses have criminal history or not.   Technically, you aren’t entitled to possess the rap sheet, but you have the right to see it or at a minimum have a judge review the rap sheets of your accusers and eyewitnesses against you and tell you what’s in it.  The other way to get the rap sheet is to fight for it.  The first thing I do is demand the prosecutor run the NCIC rap sheets of the witnesses against my client.  If the prosecutor doesn’t turn it over, I file a motion to compel to force the prosecutor to turn it over.  A few years ago, a Las Vegas Municipal Court judge didn’t agree with me that I was entitled to see the rap sheets of the witnesses against my clients.  The city prosecutor said I was “fishing”.  Obviously I wasn’t about to accept that.  I appealed the judge’s ruling to a Clark County District Court judge who agreed with me that I was entitled to see it and he reversed the judge who ruled against me and agreed with me that I was entitled to see the rap sheets. He ordered the municipal court judge to order the city attorney to run the rap sheets through NCIC and turn over the rap sheets for me to review.

If you are represented by a lawyer in a criminal case, make sure you ask your lawyer if he or she has asked the prosecutor to see the rap sheets of witnesses against you.  If you lawyer hasn’t done so, then you need to get a better lawyer.

If the motorist is suspected of driving under the influence of alcohol, he must be advised if he has a prior conviction for DUI within the past 7 years that he cannot choose to give a sample of breath instead of giving a blood sample. However, if the motorist does not have a prior conviction for DUI within the past 7 years, he  may choose to give a sample of his breath or choose to have blood drawn from his arm. If there has been an accident that has resulted in death or serious bodily harm, the motorist is required to submit to a blood test and cannot choose a breath test.  If the person refuses to give a breath sample or a blood sample, the motorist can be held for up to 5 hours and 3 samples of blood may be drawn from his or her arm.

In the above paragraph, I’ve presented you with a simple breakdown of NRS 484C.160 which is the Implied Consent Law. What Nevada law enforcement has done is taken this statute (NRS 484C.160) and butchered it by requiring officers to read the following botched, fatally flawed implied consent warnings:

“You are required to submit to an evidentiary testing of your blood or breath to determine alcohol content.  If this is a first offense, you may refuse to submit to a blood test if breath is available.  If you choose breath you must give two or more consecutive samples.  If this is other than a first offense, or grounds exist to believe you have caused death or substantial bodily harm to another person, you must submit to a blood test.  If the presence of a controlled substance is in issue, you are required to submit to a blood or urine test, or both, in addition to the breath test.  If you fail to submit to the required testing, the law allows me to direct reasonable force to be used to the extent necessary to obtain up to three blood samples from you.  You are further advised that any warning related to having an attorney present before answering questions does not bear on the issue of submitting to evidentiary tests.  You do not have the right to speak to an attorney before testing.”

The above fatally flawed implied consent warnings are what every law enforcement officer reads to motorists detained and suspected of DUI. Here’s what’s wrong with this warning.  The above advisement is a defective implied consent advisement because it is inaccurate and renders the consent of the motorist who gives breath or blood involuntary.  The implied advisory consent form used by Nevada law enforcement officers fails to advise a motorist that he may choose a breath test if he has not been convicted of DUI within the past 7 years.  Specifically, Nevada law enforcement officers read to motorists the implied consent form that states “If this is a first offense, you may refuse to submit to a blood test if breath is available.”  This is an incorrect advisement since it implies that a motorist who has only been arrested and not convicted at any time for any crime in the past may not choose a breath test.  The admonishment is also silent as to the 7 year time limit.  Additionally, the word “offense” is ambiguous since a motorist could conclude that “offense” means arrest and therefore believe that he or she is not entitled to a breath test.  Finally, the word “offense” lacks specificity since the implied consent warning could be believed by a motorist to include any criminal offense in the past not limited to a misdemeanor DUI.

Additionally, the sentence “If this is other than a first offense, or grounds exist to believe you have caused death or substantial bodily harm to another person, you must submit to a blood test” is misleading and inaccurate.  This section is silent as to the 7 year window.  A motorist who has a prior offense, which could be an arrest for a trespass, public intoxication, a DUI conviction over 8 years prior to the arrest, or a DUI charge that was reduced to a reckless driving could easily be misled in to concluding that he or she thus has a prior “offense” and is prohibited from taking a breath test.

Finally, the sentence “If you fail to submit to the required testing, the law allows me to direct reasonable force to be used to the extent necessary to obtain up to three samples of blood from you” is inaccurate and misleading because the statute clearly specifies that up to three samples of blood may only be taken during a 5-hour period immediately after the arrest.  This sentence can mislead a motorist to believe that he or she will be held indefinitely until three samples are forcibly taken from the suspect making the consent involuntary.

The implied advisory consent warning given by Nevada law enforcement is fatally defective and does not even remotely track the statute which is NRS 484C.160 referenced above.  For whatever reason, Nevada law enforcement has chosen to substitute its own misleading implied consent warning to read to motorists and ignore the existing implied consent law plainly spelled out in NRS 484C.160.

Because of the fact that Nevada law enforcement officers mislead motorists with their flawed implied consent advisements, I’ve been filing motions to suppress to throw out the breath or blood results.  Because the Nevada Supreme Court has no cases directly dealing with this issue I’m raising in my motions to suppress, I have to rely on other courts from other states:

“While one of the purposes of the implied consent statute is to provide an efficient means of gathering reliable evidence of intoxication, Blaine v. Suess, 22 Wn. App. 809, 592 P.2d 662 (1979), rev’d on other grounds, 93 Wn.2d 722, 612 P.2d 789 (1980), another purpose is to allow the operator of a motor vehicle to exercise intelligent judgment regarding the effect of such refusal. See generally State v. Whitman Cy. Dist. Court, 105 Wn.2d 278, 714 P.2d 1183 (1986); Welch v. Department of Motor Vehicles, 13 Wn. App. 591, 536 P.2d 172 (1975).  Spokane v. Holmberg, 50 Wn. App. 317, 323 (Wash. Ct. App. 1987).  The test result is but one piece of evidence that can be used to establish that an operator was driving while intoxicated.  The prosecutor is still able to admit other evidence to show that the driver was intoxicated.  While we are inclined to agree with the trial judge who ruled on the basis of ‘no harm, no foul,’ we believe strict compliance is the better rule. Consequently, we reverse.”  Id. at 324.

Other courts across the country have recognized the need for accurate implied consent warnings to be administered to a motorist and have suppressed blood test results.  “Because there is insufficient evidence that [Pilkenton or the other driver] suffered a serious injury so as to invoke implied consent to the tests under O.C.G.A. § 40-5-55 (a), the trial court erred in failing to suppress the test results. Accordingly, the blood . . . test results constituting the only evidence at trial which would support a verdict of guilty of the offense charged, [Pilkenton's] conviction must be reversed. Miller v. State, 219 Ga. App. at 497. See State v. Leviner, 213 Ga. App. 99, 102 (3) (c) (443 S.E.2d 688) (1994) (where information given to a defendant contains substantial misleading, inaccurate, or extraneous information such that the defendant was confused as to her implied consent statutory privileges, the results of any test obtained pursuant to the implied consent statute must be excluded).  Pilkenton v. State, 254 Ga. App. 127 (Ga. Ct. App. 2002).

“To omit reference to the right of the accused to have any additional chemical test performed by qualified persons of his own choosing was a fatal flaw, under O.C.G.A. § 40-6-392 (a) (3), rendering the State-administered test results inadmissible at trial.”  State v. Causey, 215 Ga. App. 85 (449 S.E.2d 639).  Mooney v. State, 221 Ga. App. 420, 425 (Ga. Ct. App. 1996).

As you can see from these cases above taken from other states, these state courts would find that the warnings read to motorists by Nevada law enforcement officers are unconstitutional.  I believe it’s a matter of time before the Nevada Supreme Court addresses this issue and requires Nevada law enforcement officers to do their jobs and to read the correct implied consent advisement to motorists suspected of Driving Under the Influence (DUI). I look forward to continue leading this fight.

The most common perception of entrapment is that if the undercover police officer approaches you and asks you to do something illegal, then it must be entrapment.  Not so.  Often, here in Las Vegas, law enforcement will have female undercover officers posing as prostitutes in casinos.  These undercover officers often approach the unsuspecting tourist and strike up a conversation which leads to the “do you want to have a good time up in your room” question asked by the undercover officer.  Just because the undercover police officer was the first to approach the tourist and just because the undercover police officer was the first to suggest committing the crime of solicitation for prostitution does not make it entrapment.

So if that’s not entrapment, then what is?  Entrapment is a defense that basically means, “Yes I committed the crime, but I would never have done so if the undercover officer (or snitch working for law enforcement) hadn’t convinced me to.”  The most significant entrapment case in the past 20 years has been that of Jacobson v. United States, 503 U.S. 540 (1992).  In that case, Jacobson was a farmer who only had an interest in adult pornography.  Over a 26 month span, the Government, posing as various groups interested in pedophilia, sent correspondence to Jacobson asking him to order child pornography through the mail.  At the end of the 26 month investigation, Jacobson finally ordered the child pornography and was arrested and accordingly charged.  The U.S. Supreme Court found that Jacobson had been entrapped.  The Court found that the Government induced Jacobson to order the child pornography and that Jacobson had not been predisposed to order it before the Government investigation began.

As I mentioned, entrapment has nothing to do with innocence.  Entrapment means that the Government convinced you to commit the crime and that without their doing so, you would never have committed the crime.  If the Government or the State cannot prove beyond a reasonable doubt that you would have committed the crime anyway, you will be found “not guilty” in a successful entrapment defense.  If the prosecutor knows you are raising entrapment as a defense, they will look for evidence that you have a prior conviction for doing what you claim they convinced you to do.  In other words, if you are being prosecuted for fraud, and the government shows that you have a conviction for tax evasion in your past, the prosecutors will argue to the jury that you would have committed the crime anyway based on the fact that you have been found guilty of a fraudulent act and therefore you were predisposed to commit this fraud crime for which you are now charged.  “Predisposed” means that you would have done criminal act anyway without the Government inducing you to do it.  If, in this hypothetical, you don’t have a prior conviction for tax evasion, then it’s much harder for the prosecutor to prove that you were “predisposed” to commit the crime.

Every entrapment defense is different.  In Jacobson, the Government took 26 months to convince Jacobson to order the illegal materials.  That doesn’t mean that you can only raise entrapment if the Government or State police tried to get you to do something illegal that took 26 months.  There’s no magic number of how many times or months the Government or State tried to get you to do something illegal.

Going back to the hypothetical example about the undercover female officer posing as a prostitute in a Las Vegas casino, entrapment can be raised as a defense to the charge of solicitation in violation of NRS 201.354.  In that case, we have the undercover officer approaching the tourist and suggesting a good time.  That’s the easy part.  The harder part is figuring out whether or not the tourist was predisposed to commit the crime.  If the tourist has no prior convictions for sex crimes, has good character, and whether the tourist was observed earlier in the night propositioning prostitutes, are all factors in determining whether or not he would have been predisposed to commit the crime.  If the prosecution can’t prove that the tourist would have committed the crime without their convincing him to agree to pay for sex with the prostitute, then the entrapment defense will succeed and the tourist will be found “not guilty.”

Finally, it’s important to remember the following:  The burden of proof is always on the prosecutor even where you raise an entrapment defense.  It’s up to the prosecution to prove you were predisposed to commit the crime.  It’s not your burden as a defendant to prove that you were entrapped.  If you believe you were entrapped in any type of arrest or investigation, call me and let’s discuss if entrapment is a viable defense for you.

My client had never been in trouble with the law.  He’s a successful businessman and was facing felony child abuse charges for slapping his 16-year old daughter who was disrespecting him in front of his mother and her little brother.  A conviction for something like this would have ended his career.  Imagine being a convicted felon for using reasonable force to discipline your child! Fortunately, he hired me and I got his case dismissed.  But it wasn’t without a long fight.

The first thing that happened was that Child Protective Services opened an investigation to determine whether or not my client was a danger to his daughter for disciplining her with the slap for back talking.  This is a pretty scary thing.  Back when I was growing up, parents and teachers never had to worry about CPS investigating them or the police arresting them for disciplining their child or student.  But those days have passed.

CPS interviewed both my client’s children separately and asked them if my client is violent, has ever done this before, if he uses drugs, drinks, or hits his wife.  Fortunately the children truthfully answered “no” to all those questions.  CPS then, with my consent and with me being present, interviewed my client and his wife about the “felonious” slap.  CPS then came to the conclusion that the action of my client was reasonable and the accusation of child abuse was “unsubstantiated”.  The CPS officer even said she would have done the same thing to her daughter had her daughter acted the way my client’s daughter acted.

So you’d think that would be the end of the matter and the criminal case, which is separate from the CPS investigation, would be immediately dismissed, right?  Guess again!  The DA’s office initially refused to dismiss it despite the fact that I presented them with proof that CPS had found there was no child abuse.  I kept fighting and eventually they did the right thing and dismissed the case – months after CPS had concluded there was no child abuse!

But I don’t want this blog post to be a warning that you can’t discipline your child.  You can use reasonable force.  What is reasonable force?  It’s a mushy definition of “what a reasonable person would do.”  A lot of help and guidance that is!  The California Supreme Court put it this way:

“Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right willfully to inflict personal injuries beyond the limits of reasonable parental discipline….” Emery v. Emery, 45 Cal.2d 421, 429-30, 289 P.2d 218, 224 (1955).

I found numerous cases where hair pulling, arm pulling, spanking a child by hand or with a wooden spoon or lath are examples of reasonable use of discipline.  The problem is that some parents, like my client, are being arrested for doing things that are reasonable in terms of disciplining their children with reasonable corporal punishment.  Yes, I got my client’s charges dismissed and vindicated his good name.  But he and his family have needlessly suffered the stress of defending themselves against serious and unsubstantiated criminal charges.

That’s where “entrapment by estoppel” comes in.  Entrapment by estoppel was mentioned in United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 825 (9th Cir. 1985).  It’s also known as “official misleading.”  Basically, when someone relies on what the government or the state has told him leaving him to believe certain conduct is legal, and then engages in that conduct and is prosecuted for doing so, the prosecuting entity (DA or U.S. Attorney) is barred from prosecuting the person because the person relied on the advice given to him by the government that his conduct was legal.  So my point is that for certain crimes, such as solicitation for prostitution where a guy gets arrested for propositioning an undercover police officer posing as a prostitute, the entrapment by estoppel defense would help him if he was lead to believe that soliciting a prostitute is legal from the “What Happens Here…” commercial.

Of course there are limits to this defense.  The reliance must be reasonable.  In other words, you’d be hard pressed to raise this as a defense in cases of murder or armed robbery.  But for certain crimes like solicitation for prostitution, it’s a powerful argument.  The defense of entrapment by estoppel serves to remind the City of Las Vegas that it can’t have it both ways with this “What Happens Here…” campaign.  In other words, the City of Las Vegas can’t expect to make millions of dollars from this successful advertising campaign and then prosecute people for doing what they’ve been led to believe they can do by this misleading commercial.

And just for the record, solicitation for prostitution is a crime under NRS 201.354 and I’m not encouraging anyone to go out and violate this law!  Solicitation for prostitution is actually a serious crime even though it’s a misdemeanor.  It’s what is called a “crime involving moral turpitude” which means that the crime is one which implies the person convicted of it has bad character.  Other crimes involving moral turpitude are theft and forgery.  It’s not something you want on your record.

If the police pull you over for a traffic violation, the police may run a brief check to determine if you have warrants while they write you a ticket.  The police may not begin searching your car unless they have a reasonable fear for their safety.  And in that case the police may only search for weapons in the car where they would likely find weapons.  In other words, a weapons search can include a pat down of your body and a search inside your car where a weapon could be concealed.  That does not include an ashtray.  Once dispatch advises them that there are no valid warrants for your arrest, they must let you leave.  They cannot continue to keep you detained at the side of the road even if you agree to it.

So needless to say I am baffled that the Michigan State Police have gotten away with this for, from what I’ve been reading, since 2008 when they first ordered these data extraction devices.  These devices even allow the police to break your passwords and retrieve everything in your phone.  Even in my days as a prosecutor over a decade ago, I never saw such an egregious violation of privacy by the police.  Without a validly obtained warrant, the police have no business looking through your Iphone, Droid, or whatever kind of cell phone you have.

But that’s not the end of the story.  The ACLU has filed suit against the Michigan State Police and is trying to get more information about the use of these devices.  The Michigan State Police told the ACLU that they will comply with their subpoena request but it will cost the ACLU over $500,000.  Can you believe this?  Nevertheless, I’m confident that this shameful chapter of police overreaching will be over soon and Michigan State Police will have to scrap this unconstitutional program to copy motorists’ cell phone data during routine traffic stops.

If you are pulled over for a minor traffic offense and the police ask you if they can search your car, you do not have to consent. Even if the police officer tries to make you feel uncomfortable, politely tell the officer, “I do not permit you to search my vehicle.”

Here’s where I’m coming from.  Let’s go back to Blanton which said that DUI is a “petty” misdemeanor.  The lawyers for Blanton argued that DUI is not a “petty” misdemeanor because a defendant faced, among other punishments, suspension of his or her driver’s license.  Unfortunately, the U.S. Supreme Court disagreed.  But here’s where I argue that Blanton shouldn’t control when a defendant is facing charges for domestic violence.  If a Permanent Resident Alien is facing a domestic violence misdemeanor charge, he or she will get deported if convicted of domestic violence.  As we’ve seen in Padilla v. Kentucky, the U.S. Supreme Court said that immigration consequences are no longer collateral rights and are substantive rights.  So my argument is deportation for a domestic violence conviction is anything but “petty”.  Deportation means a person will be sent back to their foreign land even if he or she has their family in the U.S.  Blanton defines “penalty” as follows:  “In using the word ‘penalty,’ we do not refer solely to the maximum prison term authorized for a particular offense. See United States v. Jenkins, 780 F. 2d 472, 474, and n. 3 (CA4), cert. denied, 476 U.S. 1161 (1986).  Blanton v. N. Las Vegas, 489 U.S. 538, 542 (U.S. 1989).”  So, since deportation is a penalty, which is more severe than a 6 month sentence since it involves permanently being separated from your family in the U.S., a legal permanent resident alien should be allowed a jury trial for a misdemeanor charge of domestic violence.  And if a legal permanent resident alien is allowed a jury trial for a misdemeanor charge of domestic violence, then so should a U.S. Citizen be given the same right under the Equal Protection Clause since it would be unfair to give a non-citizen a jury trial right while depriving a U.S. Citizen of the same right to a six-person jury to hear his or her case in a charge of misdemeanor domestic violence.  I’ll keep you posted on my efforts to change the law.  I’m preparing a writ of mandamus, which in Latin means a petition to order the lower court to do something for which it has no discretion.  I’m going to be filing this with the Eighth Judicial District Court in January arguing that it should direct the justice court or municipal court to order a defendant to have a right to a jury trial.

UPDATE: I’ve filed a petition for writ of habeas corpus or alternatively writ of mandamus with the Nevada Supreme Court.  They haven’t ruled on it yet.  If they grant my motion, then all Nevadans accused of domestic violence will get a jury trial.  If they do not, then I will petition the U.S. Supreme Court and ask them to give Nevadans accused of domestic violence a jury trial.  More to come!  As of today, January 8, 2012, the Nevada Supreme Court has not ruled on my writs.  Given their backlog, it will be several months but I will keep you posted once I hear something.