By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com. 

On December 23, Meet the Press host David Gregory held up a gun magazine in asking the NRA's Wayne LaPierre about passing laws limiting magazine bullet capacity size. Were I Gregory's lawyer, I would have advised against displaying the magazine without confirmation that the law allowed its display or that police and prosecutors would refrain from going after him for the display. It appears that possession of gun magazines is completely forbidden by statute in Washington, D.C. -- where he displayed the magazine during the Meet the Press segment -- and that the D.C. police told NBC's inquirer(s) in advance of the program that he would not be allowed to make such a display. 

As I commented on Jonathan Turley's blog entry on the matter: The police will be wasting their time to seek a prosecution so long as those at NBC and LaPierre refuse to talk with the police and so long as the magazine is not recovered. Of course, nobody at NBC may advise anyone not to talk, lest the adviser get charged with obstruction of justice. Unless the police recover the magazine displayed by Gregory, who is to know whether this was but a replica magazine that cannot even hold bullets, thus falling outside the DC criminal law's magazine definition?

The courts are not likely to provide a First Amendment journalists' exception for possessing banned weapons and weapons implements, just as the Fourth Circuit in 2000 refused to give journalist Larry Matthews any journalists' pass for child pornography distribution and possession as part of his reporting investigation into such activity. 

Visit NBCNews.com for breaking news, world news, and news about the economy

Visit NBCNews.com for breaking news, world news, and news about the economy

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

One would think that those driving with contraband would avoid having defective vehicle equipment -- for instance burnt-out headlights and taillights -- to reduce their risk of being stopped for traffic offenses. However, repeatedly my clients tell me that the police correctly reported such defects, leading to arrests for carrying drugs (for instance after a drug dog sniff, or after the defendant fails to assert his or her right to silence when the officer asks about contraband therein) and for drunk driving.

Yesterday, Virginia's intermediate appellate court affirmed a marijuana felony conviction following a stop for a partially illuminated center brake light. Otey v. Va., _ Va. App. _ (Dec. 26, 2012), saying that the mere ability to see the brakelight within five hundred feet did not preclude a stop where the officer had reasonable articulable suspicion to believe the light was defective.

The officer who stopped Otey testified that he smelled unburnt marijuana in the car and asked Otey about drugs therein, and that Otey admitted to having marijuana in various places in the car.

Of course, we will keep seeing suspects run off at the mouth, as then-police officer George W. Bruch explains here starting at minute 27:30.

"Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me" - Publius Terence.

As I tell many of my clients charged with drivin under the influence of alcohol ("DWI"), the only difference between them and me is that they got caught. Of course, I stopped drinking after driving cold turkey over a quarter century ago, and have not imbibed at all for over seven years.

The DWI laws are so draconian that it takes but two people sharing a bottle of wine at a restaurant to make the driver a potential DWI arrestee. When I started practicing criminal defense in 1991, it was a golden age when driving with a 0.10 blood alcohol content ("BAC") in Maryland created but a rebuttable presumption of DWI guilt. Then, the federal government came along -- just like it did in the 1980's, strongarming states to raise the drinking age to twenty-one (but still willing to send eighteen to twenty year olds to war) -- with new legislation conditioning ongoing federal highway funding on a state's making it a crime to drive with a 0.08 BAC.

Unless and until the DWI laws outlaw DRUNK DRIVING rather than outlawing slight impairment from alcohol or a low BAC level of 0.08 -- and nobody know their BAC level in advance of being arrested and tested -- the DWI laws are a farce denigrating respect for the criminal justice system and lining courts' coffers with $millions in fines and costs for DWI convictions.

Now comes along Idaho Republican Senator Mike Crapo with a DWI arrest -- with a January 4, 2013, arraignment -- joining such other public officials charged with DWI as former Wicomico County chief prosecutor Davis Ruark; former Alexandria, Virginia, police chief David Baker; Maryland Delegate Herman Lee Taylor, Jr. (acquitted in court, and prior to his arrest sponsored a bill in 2006 to require a scarlet letter license plate emblazoned with "DUI" for those with over two drunk driving convictions); and Maryland house majority leader Kumar P. Barve, who entered a guilty plea to DUI and received a probation before judgment in Montgomery County.

To this very day, Senator Crapo's official website proclaims: "As a basic principle, any person convicted of injuring another individual should be punished to the highest extent of the law."  Perhaps his recent DUI arest will show Senator Crapo to take a more balanced and in-depth view and action on the criminal laws and criminal justice.

In any event, here are some additional thoughts on Senator Crapo's arrest and prosecution

 - Crapo is presumed innocent and his case may be winnable. For instance, the 0.11 BAC reading could be a false high. These machines can err.

- Crapo's BAC reading will not come into evidence if no arrest probable cause is found.

- The relevant BAC in Virginia is from the time of driving. BAC can rise between time of driving and BAC testing, as alcohol can be absorbing into the bloodstream.

- Breath BAC testing margin of error arises from machine error, operator error, excessive blowing and the machine's assuming a mouth temperature of 33 degrees celsius, whereas most people have a higher mouth temperature than that. The higher the mouth temperature, the higher the margin of error on the breath testing machine.

I wish Mike Crapo the best in his pending DWI case, and hope that this case will enlighten his approach to criminal law in the Senate.

I became a big jazz fan in 1976, when plenty of the key jazz greats from the 1940's and 1950's were still alive. Many American jazz musicians -- Cecil Taylor ultimately rejected the label "jazz", but I do not know of any substitute short description that comes as close to "jazz" -- performed, and even lived, overseas in Europe, with many also performing in Japan, where they would repeatedly draw much larger crowds than in the United States. If excellence determined audience numbers, Roy Eldridge, Dizzy Gillespie, McCoy Tyner, and Horace Silver would consistently fill the same stadiums filled by the biggest rock stars. Instead, I have delighted in seeing all of them in nightlclubs with crowds under one hundred. I have been blessed with experiencing performances by scores of the most key players in jazz history playing at their best, including this listing of people who appeared in the famous "Great Day in Harlem" photo.

In 1978, I travelled to France and studied French with a group of fifty American high school students at a boarding school in Nice, France, which has an annual summer jazz festival. I experienced many of the top names in jazz, and got within a few feet of several, including meeting Dizzy in between practice sessions and being two people away from Bill Evans before learning decades later that he was more amazing than I realized at the time.

The Nice jazz festival showcased musicians performing at their best on three stages among Roman ruins. The choice of which stage to attend was often difficult.

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

All of us have experienced stepping out into the day all exuberant and feeling like nothing can shake us. Then, we are shaken or angered by a car that sprays us with mud, a prosecutor who does something underhanded (for instance, violating the lawyers' ethics rules by telling a non-client witness not to talk with opposing counsel), a lying opposing witness, or a judge barely masking his or her unjust agenda. Each instance calls for action and not weakness, but not anger nor loss of power. The mud splattering justifies considering a calm talk with the driver; the prosecutor acting underhanded needs to be confronted directly or with the appropriate authorities; and the unjust judge at the very minimum calls for a huddle with colleagues about reversing the judge's unjustness, and consideration about whether an effort should be pursued to have the judge brought before disciplinary, impeachment, or re-appointment authorities.

All of the foregoing actions can be done in as calm a manner as the character I watched in a 1950's World War II movie who calmly gunned down Mussolini's soldiers while enjoying chomping on an unlit cigar. As much as I would prefer to present a less violent image, this movie scene exemplifies for me the power of calmness in battle.

A great thing about practicing the taijiquan form daily and taijiquan pushing/sensing hands sparring is that the form helps increase my ability to take action in a powerfully relaxed, centered and harmonized way, and the sparring reminds me that there is no end to the challenges we will face from other human beings, that minor adjustments are often all that is needed to neutralize an attack, and that I am at much less risk of being rattled by what others do by continuing my taijiquan practice.

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

You like potato and I like potahto, You like tomato and I like tomahto;
Potato, potahto, tomato, tomahto! Let's call the whole thing off!

Visit England, and you will hear people calling tomatoes "toe-mah-toes". Instead of the bathroom, you will visit the loo, and in some countries the W.C. (water closet) and in rustic America the outhouse.

On a visit to Biddeford, Maine, high school, two students quibbled over whether the first one asked to close "ah window" or "owah window". A Bostonian economics teacher one day kept on talking about some economist named Rick-Kaa-Doe, and it was not until I read the subsequently-assigned reading assignment that I learned he was talking about Ricardo. A speaker of English from overseas kept testifying about what sounded like "July twentieth" only for his lawyer ultimately to clarify that he was saying "July twenty-eighth", which was a critical difference for what was being contested at trial.

Then add to the mix the people who speak or hear English as speakers of second languages and the risk of the speaker of English as a first language mishearing the speaker of English as a second language, and the risks of the non-native English speaker mis-hearing the native English speaker.

Misperceptions in the courtroom of course are not limited to differences in accents, first and second languages, education levels, socioeconomic backgrounds, and regional speech. Recently when I was arguing an evidentiary issue before a very intelligent and caring judge in a theft-related bench trial, the judge made mention that the witness on the stand had testified that when my client (let us call him "Joe") went to make a purchase at his store, he provided the name George to the sales clerk, perhaps to hide his true identity. Praised be the prosecutor for joining with me in agreement when I told the judge that no such testimony had been presented.

In the foregoing scenario, the factfinder revealed his misperception of the evidence in time for the parties to correct his misperception. The times are probably legion that factfinders, whether judges or jurors, misperceive the evidence and do not share their misperception in advance with the parties, let alone when jury verdicts arise from matters that the opposing lawyers had never considered or had thought to have been minuscule.

How can a lawyer minimize being adversely affected by factfinder misperception of the evidence? Among the things that can be done are the following:

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Mixtec is an Indian language that long predates Spanish's introduction in Mexico. A few years ago, police in Maryland arrested Ramiro Arce Gonzalez for suspicion of rape and murder. Gonzalez v. Maryland, __ Md. _ (Dec. 20, 2012). The police learned early on that Gonzalez's first language is Mixtec, did not understand Spanish well -- not even the words "attorney" and court", which goes to show how poor his Spanish was -- but proceeded to have a Spanish speaking police officer interpret for another police officer in Mirandizing Gonzalez and interrogating him, despite his repeated assertion that he did not understand the Spanish-language Miranda warnings, Miranda v. Arizona, 384 U.S. 436 (1966), which the Spanish-speaking officer tried remedying merely by expounding further in Spanish on the warnings, which sounds like a sad farce straight out of Gilbert and Sullivan, at best.

Standing Miranda on its head -- perhaps giving more weight than Constitutionally permissible to the importance of cops getting confessions than in those confessions passing Fifth Amendment muster -- Maryland's highest court today affirmed the trial court's admission of Gonzalez's confession despite Gonzalez's above-described deep difficulty understanding Spanish, and despite the Spanish-speaking officer's reliance on Gonzalez's co-defendant's sister's (and what were her linguistic and bilingual qualifications?) providing a Mixtec translation of the critical words "attorney" and "court". Worse, the Spanish speaking officer forgot which purportedly Mixtec words he ultimately used for "lawyer" and "court" and did not record those words. Furthermore, it appears that the case record is bereft about any reliability on the co-defendant's sister's ability to translate those words.

Praised be the three dissenting judges among the seven in Gonzalez for seeing through Gonzalez's Miranda charade, and saying point blank that Gonzalez's confession should not have been admitted at trial.

The majority's and dissent's legal analysis and legal rules discussion are discussed in much more detail than in my foregoing blog entry. Maryland's Court of Appeals repeatedly vindicates Constitutional rights in criminal cases, but failed to do so in Gonzalez. 

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

I only attended one Grateful Dead concert, in 1982 near the start of my sophomore college year. Entering the Boston Garden arena, I noticed a sharp reduction of available oxygen, replaced by the heavy stink of marijuana. There, I was a witting consumer of secondhand marijuana smoke, feeling no effects beyond those listed above. I enjoyed the concert, but was a jazz fanatic who did not feel a pull for a repeat performance.

A few years later, I heard about people/person mixing LSD and water in a water pistol and shooting it at people at Grateful Dead concerts. I do not know if that is a mere rumor, nor about how well LSD absorbs through the skin (although LSD founder Albert Hoffmann apparently got an unwitting and wonderful trip from handling a psychedelic with his bare fingers), but I understand that one of the watchwords of LSD consumption is that if it is going to be used, to do so in a comforting and supportive setting. Being sprayed with it and not knowing what is in the spray is likely to lead to a bad trip, at least for someone who has not experienced LSD before.

Now, a recent story from Colorado reports on prosecutions against two college students for allegedly giving pot brownies to a few people without telling them that marijuana was inside. I am curious how the prosecution plans to prove the charge, unless the defendants confessed, or unless one or more recipients had uneaten portions of brownie that tested positive by a chemist for marijuana ingredients. If the latter evidence is the only available physical evidence beyond illness, how will the prosecution be able to show the defendants knew marijuana was therein? Perhaps the defendants were given the brownies by someone else.

In any event, in case anyone was curious, the legalization of marijuana for personal use in Colorado clearly is not going to make it legal to surreptiously slip marijuana into other people's brownies. That goes without saying.

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Over the weekend, I learned that last month's Washington state successful marijuana legalization referendum came with the bitter pill of a risk of guilt for driving under the influence of drugs with a THC concentration exceeding five nanograms per milliliter of blood. This information was available before the referendum voting date, but it is not possible for me to catch all essential news amidst the election season blur of Republicans and meat. Here is the Washington state law on driving under the influence of marijuana, which incporates Washington's marijuana legalization referendum language; I copied this statutory language from Westlaw.

Colorado, which also passed a marijuana legalization referendum last month, is also facing possible legislation setting a presumed level of unlawful THC content.

THC ordinarily stays in the bloodstream for over two weeks, which counters any wisdom to setting blood THC concentration levels that presume driving under the influence of drugs.

Moreover, daily medical marijuana users are going to have THC levels in their bloodstream always. The Marijuana Policy Project points to a study showing a 13 nanogram/mL blood THC level in a man who was not impaired. Criminalizing alcohol, THC and other drug levels makes no sense for impaired driving prosecutions, rather than prosecuting for impairment itself. Instead, the alcohol, THC or drug level should, at worst for the defendant, be part of the totality of the circumstances in determining whether the driver was unlawfully impaired by alcohol, marijuana or drugs. To do otherwise violates criminal defendants' right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution.

The MPP article addresses states setting THC blood concentration limits on drivers as follows:

"Nevada and Montana have per se DUID laws. In Nevada, a driver is per se guilty of DUID if the level of THC in his or her blood exceeds two nanograms per milliliter (ng/mL) of blood. In Montana, the per se limit is five ng/mL for patients. In 2011, the Colorado Legislature debated setting a five ng/mL per se limit similar to Montana’s, but decided against it due to a lack of scientific consensus and concerns that many legal medical marijuana users’ blood would exceed the THC limits even when they are not legally impaired."

California NORML has an article on the relevance of THC blood content levels to impaired driving here.

One important decision that drunk and drugged driving suspects must make in states that allow them to refuse a breath, blood or urine test for impaired driving, is whether to refuse the test. Where I practice, the loss-of-license risks can be severe for refusing the test where the police officer has sufficient grounds for requesting the test. It is critical to consult a lawyer in advance of an arrest for influenced driving, to help decide whether to take such a test if ever asked to do so.