Changes to Mississippi's DUI law - Part 1

You may have heard that there are going to be significant changes to Mississippi's DUI laws taking effect on October 1, 2014.  Well that's true, and here are a few of the major changes the public should know about.

1. Ignition interlock comes to Mississippi - Long a staple of DUI laws in other states, the ignition interlock device will now be a major part of DUI cases in Mississippi.  An ignition interlock device is a breath test machine that is wired to a car's starter system, making it impossible to start a vehicle's engine if alcohol is detected on the driver's breath.  People convicted of DUIs in Mississippi after October 1, 2014 will be forced to have these devices installed on their cars for a period of 90 days.

2.  Non-adjudication returns - Under certain circumstances, a person facing a DUI charge in Mississippi will be eligible for non-adjudication.  This is a program under which a person charged with DUI enters a plea of guilty to the DUI charge, but is not found guilty of DUI.  Instead, the DUI defendant must undergo a period of probation, pay all court costs and fines that they would have paid if convicted, pay a $250 non-adjudication fee into the Interlock Device Fund of the State Treasury, attend the Mississippi Alcohol Safety Education Program (MASEP), and have an ignition interlock device installed on their car for 120 days.  Upon completion of these conditions, the DUI charge is dismissed, and can be removed from the person's record.

3.  Expunction (a.k.a "expungement") will be available for DUI - In the past, a person could not remove a DUI from their criminal record.  That will change come October 1, 2014, so long as certain requirements are met.  First, at least five (5) years must have passed since the person successfully completed of all terms and conditions of their DUI sentence.    Second, the person cannot have refused to submit to a blood or breath test when stopped for the DUI.  Third, if there are test results available from the blood or breath test, the person's BAC cannot have been higher than 0.16%.  Fourth, the person cannot have any other DUI conviction or pending DUI charge.  Finally, the person must provide the judge with a reason why the conviction should be expunged.

There are several other very important changes, and more to the ones listed above.  I'll post more about the new DUI laws in the near future.

No such thing as "misdemeanor accessory before the fact" in Mississippi

A question arose today about whether or not someone could be charged with being an accessory before the fact to a misdemeanor crime.  Here's the language of Miss. Code Section 97-1-3:

Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not. (Emphasis added.)

As you can see, in order to be charged with accessory before the fact, the principal's charge must be a felony, not a misdemeanor.  The same is true with accessory after the fact.

The felony requirement does not apply to conspiracies, though.

Mississippi statutes concerning murder substantially altered

There was a lot of activity this session in the Mississippi Legislature regarding our criminal statutes. One of the interesting bills to make it through the process was SB2377, which lessened the penalty for depraved heart murder.

Starting July 1, Mississippi juries will begin deciding between "first-degree" murder and "second-degree" murder. Previously, these crimes were known as "deliberate design" murder and "depraved heart" murder, respectively. The difference is much more than cosmetic, as the penalty for first-degree (née deliberate design) murder remains life without parole, while the penalty for second-degree murder is life if fixed by the jury, or 20-40 years if set by the judge.

To understand why this legislation is important, you first need to understand the difference between the two types of murder. Depraved heart murder is defined as a killing "when done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual." Deliberate design murder is defined as a killing "done with deliberate design to effect the death of the person killed, or of any human being."

The difference, in short, is one of intent, that all important element of criminal law. Depraved heart murder has long been considered a "manslaughter plus" that was something in between deliberate design murder and manslaughter. Unfortunately, the penalties for depraved heart murder and deliberate design murder have been exactly the same for quite some time now: life in the penitentiary without the possibility of parole. This will now change on July 1, 2013.

The effect will be to allow for much more plea bargaining in homicide cases.  Prior to this law, the outcomes for a murder trial were essentially 1) guilty of murder, 2) guilty of manslaughter (if the evidence warrants the instruction), or 3) not guilty of anything.  The maximum penalty for manslaughter is 20 years with the possibility of parole, leaving a huge gap between murder and manslaughter.  That gap in possible penalty made prosecutors very reluctant to offer plea bargains in homicide cases.  Now that criminal law practitioners have something to fill that gap, expect to see new attempts to resolve the "hard" cases.

As a result, having skilled and experienced trial counsel that is up to speed on the new law is all that much more important.

Don't expect the Mississippi Rules of Criminal Procedure any time soon

Over the past 2 days, I've had the pleasure of hearing multiple Supreme Court justices discuss the current status of the proposed Mississippi Rules of Criminal Procedure. The consensus is that they are undergoing fairly significant revisions, and that they will again be let for comment prior to promulgating the Rules.

My guess is that we are still over a year away from the Rules becoming effective.

A reminder: cops are not entitled to search your cell phone text messages without a warrant

I'm seeing this a good bit lately, so I figured I'd put this out there as a public service announcement.  Here's the scenario:

Person gets arrested for possession of some illegal drug.  Cocaine, pills, whatever.  Sometimes it's only a misdemeanor amount of marijuana.  Officers then grab the person's cell phone and begin looking through the text messages.  Officers find a text message or fifteen that look like drug deals being set up.  Person is then charged with possession with the intent to distribute making the charge much more serious (up to 30 years in the penitentiary).

Now, in the above scenario, the officer will, without fail, testify under oath that the person he arrested gave him permission to search that cell phone.  And unfortunately a lot of times, the officer will be telling the truth.

So here's what you, John Q. Public, should do.  First, don't break the law by possessing or selling drugs.  But if you're going to, please don't talk about said drugs via text message.  And if you can't manage to do that, make sure you have a password on your phone that prevents Officer Busybody from digging around on your phone without your consent or a warrant.  And never give that officer permission to search your phone.

Remember: A lot of men and women have died to secure your rights against self-incrimination.  Please respect them and utilize it.

BREAKING - MSSC says house burglary NOT a per se crime of violence

In the case of Mark Kee Brown v. State, the Mississippi Supreme Court has ruled this afternoon that for purposes of the habitual offender statute, house burglary is not a crime of violence.  For the purposes of plea negotiations and determining whether or not a trial is worth the risk, this is a big development in Mississippi criminal law.  Congratulations to Hunter Aikens and Leslie Lee of the State Defender's Office for winning this victory!

How cops spy on you

I first started seeing cell tower location data being used by local law enforcement in Mississippi in 2007.  All the police have to do is send a subpoena to the cell phone company, and the cell phone company will send over the information showing where a person's cell phone was at any time of the day or night.  That subpoena isn't signed by a judge, and it certainly isn't given to the person who is the target of the investigation.

That means that if you're like most people and carry a cell phone with you everywhere, the police may well know the answer to the question "Can you tell me where you were last night?" before they even ask it.  Given the increased ability of police to track your every move without you even knowing it, it is more important than ever to utilize your 5th Amendment right to silence and your 6th Amendment right to counsel immediately if you are being questioned by police.  The last thing you want to do is to make your plight worse by telling the cops something they can later prove as false.

And it doesn't stop with cell phone tower locations.  The website ArsTechnica has a good article about what police can obtain without your knowledge and how easily they can obtain it.  It's a good read, and something to always keep in mind when sending things you might not want to advertise to the world.  Here's the article: emails, text messages, and IP addresses, oh my.