Mississippi Lawyer Blog

"It's beginning to look a lot like Christmas,
everywhere you go.
Police have DUI checkpoints all around
and soon you will be found.
With field sobriety tests and machines in which to blow."

Yes, Virginia there is a Santa Claus. And you can bet he won't be taking taking the edge off before he departs on his annual trip to deliver presents. Why? Because he knows the police will have DUI checkpoints all around Madison, Hinds and Rankin Counties during the holidays.

It's not a big secret that police departments set up DUI roadblocks during holidays. They know that people will be out imbibing at holiday parties and then driving. I've got two surefire ways for you to beat a DUI in Mississippi and I'm willing to share it with you right now.

First, don't drink and drive. Second, if you do choose to drink simply call a cab. You'll put all the DUI lawyers, like me, out of business but on the bright side you'll reduce the risk of getting arrested or killing someone. I can live with that.

Continue reading "How to beat DUI's in Mississippi" »

Unless you have been one of the few people living in a hole over the last month, you have undoubtedly heard at least part of the story of former Pennsylvania State University assistant coach Jerry Sandusky, who is charged with multiple counts of sexually abusing young boys. Earlier this morning, attorneys for Sandusky waived his preliminary hearing. There are legal reasons for making this decision, but in Mississippi, this decision could not have been made like it was for Sandusky.

Rule 6.04 of the Uniform Rules of Circuit and County Court Practice discusses the issue of "preliminary hearings" and actually provides the Courts with reasons for conducting such a hearing. When a defendant is charged with a felony and the defendant does not post bond, the defendant is entitled to a preliminary hearing. The purpose of the hearing is to determine whether "there is probable cause to believe that an offense has been committed, and that the defendant committed it." If the Judge finds there is enough evidence, the case will be bound over to the grand jury for their consideration. In Mississippi, once a defendant posts bond, the defendant waives (gives up) his/her right to a preliminary hearing.

If Sandusky's case was in Mississippi, he would have waived his right to a preliminary hearing merely by bonding out of jail as he awaits his trial date.

I have blogged before about the danger of cell phone usage while driving. Now, the National Transportation Safety Board ("NTSB") is urging all states to ban cell phone usage for drivers.

The NTSB recommendation comes after its investigation into an accident in Missouri caused when a 19 year old rammed into a tractor trailer and then was rear ended by two school buses filled with children. The 19 year old had sent or received 11 texts in the 11 minutes prior to the accident. The 19 year old driver as well as one of the high school kids was killed. 38 people were injured.

Continue reading "Cell Phones Cause Serious Automobile Accidents; Ban Upcoming?" »

Law enforcement in Jackson, Hinds County, Madison, Ridgeland, Clinton, and in all the other Municipalities around Jackson are very aggressive in their pursuit of people who they think are guilty. The police officers sit around intersections waiting for people to pass by at late hours in the evening. They follow so close behind the car they are following that if it was an average citizen following so closely, he or she would be ticketed on the spot. When law enforcement forms an individual or collective opinion of another person's guilt, it is often impossible to change their mind.Whether this is zealous law enforcement, or over-zealous law enforcement, is often in the "eye of the beholder."

I have frequently written on a topic I believe is critically important to a free society and that is the American Bill of Rights. The Bill of Rights is a short document but it set the ground work for the creation of a great system of justice. Occasionally the system makes a mistake, but every system administered by human beings is prone to some degree of error. As Americans we need to continuously remember how and why the Founding Fathers forged the Bill of Rights, and remind ourselves that rights ignored or not enforced can easily slip away into the fog of history or be lost to a tyrannical government.

One of the rights I have frequently written about is the Fifth Amendment Right preventing the government from forcing any person to be a witness against himself in a prosecution. From this right comes the "right to remain silent" and the Miranda Warnings. The Mississippi Constitution has a similar provision found in Article 3, Section 26, which provides in part: "...and he shall not be compelled to give evidence against himself...."

When I was a young lawyer I heard a prosecutor jokingly say, "There is no challenge convicting a guilty person, it is the innocent that are the real challenge." That statement turned my stomach. Nowadays with all of the innocent people being cleared by DNA evidence after sitting on death row or spending decades in prison, it is an even more chilling and disgusting statement. It is the main reason why I have said, or maybe even preached over and over, before you speak to any law enforcement officer, speak to an attorney first.

I am going to repeat myself: If you are stopped and you think you are a suspect; if the police begin treating you as a suspect; if they come to your home and start probing into an area that makes you feel uneasy; or if your gut or instincts tell you something does not feel right about the questions the police are asking, respectfully demand your right to remain silent and ask for a lawyer. Once you invoke your right to remain silent and ask for a lawyer, stick with your rights!

There are a few things you need to know about your rights. First, the police can talk to you all day if you are willing to stand there and talk to them. If the police come to your house or work you are not required to talk with them if you suspect they are investigating you. That is your right! If you have a concern about whether you are being investigated, you should invoke you right to remain silent and tell the police you are going to speak to a lawyer first. That is your right!

Oftentimes a person will come in our office after being charged with a crime and the first thing they say is "the police did not read me my rights." Well, if the police don't question you they don't have to read you the Miranda Rights. The Miranda Warnings are required anytime the police seize you, hold you, deprive you of movement, or take you into custody and want to question you for a crime. If they don't take you into custody and you voluntarily agree to talk with the police, they do not have to read you your Miranda Warning.

When you are stopped for a traffic violation the police can make inquiries about your driver's license, registration and insurance. The police can also ask general inquiries from you while waiting for the report on your driver's license. They should not however continue to hold you after they receive a report that your driver's license and registration is valid. This is a very complicated and contentious area of constitutional and criminal law because police often believe they have the right to do whatever they want on the street. They frequently use pressure techniques and trained language skills to convince stopped motorists to talk with them or consent to a search of the car or person.

The best and easiest things to remember and which serve as "general rules" are the following:
1. If stopped in your automobile, you do not have to consent to a search of your person or car. That is your right!
2. Should police come to your home and ask to search it, you do not have to consent to a search of your home or any other property. The police must have a search warrant. That is your right!
3. If you are stopped in your car while driving, you should answer questions about your driver's license, registration and insurance, but you do not have to answer questions that might point toward other possible criminal conduct. That is your right!
4. If the police call and want to talk with you, if they come to your home or at work, if they approach you on the street and want to discuss a crime, or something that you have any reason to worry about in the past, you have the right to not speak with the police. You have the right to speak with an attorney first. You have the right to have the attorney speak to the police for you. Follow your instincts. That is your right!
5. Once you have told the police you do not wish to speak, once you have asked for an attorney, you must stick to your rights. If you ask the police a question then it may allow them to start questioning you again.
6. Remember, the U.S. Supreme Court has said in some instances it is okay for police to lie to you. If you want to make full use of your rights, then after you ask for a lawyer, after you tell the police you do not wish to speak with them until you see and talk with a lawyer, do not speak to the police about the facts/case until you talk with your lawyer. That is your right!

The area of constitutional law which involves the Fifth Amendment Right to remain silent also intersects with the Fourth Amendment Right to be free from unreasonable search and seizure. It is often hard to talk about one without the other, because a stop or search often leads to the police wanting to question a suspect, or the questioning of a suspect often leads to the police wanting to search something owned by a suspect. As an American you have the option of waiving and giving up your constitutional rights. You also have the right to invoke or use them. That is your right! Or as I like to say, "These are your rights, Use Them or Lose Them."

Continue reading "You Should Seek Legal Advice Before You Talk To The Police" »

Now that the Republicans have gained control of the Mississippi House or Representatives, they are seeking more tort reform. They are doing this even though the doctors' own insurance company say they no longer need any more! Yes, you read that correctly. The CEO of the doctors' insurance company, Medical Assurance Company of Mississippi ("MACM") was quoted in a Clarion Ledger article as follows: "It would be hard for me to argue more tort reform is needed," Mike Houpt said. "We're content with what we have." Yet the Republicans want to lower the caps on damages AND institute a "loser pays" system which would make the loser of a lawsuit pay the other side's cost. Whose agenda are the Republicans pushing?

The "loser pays" idea is simple. Over the course of a lawsuit, each side spends money on such things as depositions, expert witnesses, copying, etc. Costs can easily reach $10,000 in the most "simple" car wreck cases. "Loser pays" would require the "loser" of a lawsuit to pay the other winner's costs as well as their own. So who is this designed to hurt? To a huge company like State Farm, $10,000 is nothing. To the average Mississippian, $10,000 is more than most folks have in savings. There is not way the could afford to pay this which means they would not file a lawsuit for fear of having to pay this kind of money.

Now, keep in mind that the doctors are "content" with what they have. This is the same group who claimed they were being forced out of Mississippi just 10 years ago. Now things are going so well that the doctors are receiving refunds on their insurance premiums and their insurance company is making a huge profit. I wonder if the quality of health care in Mississippi is going up as well? Are the number of deaths and serious injuries due to medical negligence going down? Oh well, who really cares about that. As long as the doctors are making money and forcing us to wait an hour to see them on every visit then things are fine. But, I digress.

The Republican party is not looking out for Mississippi citizens. If they were, they would fight like hell to make sure that anyone who harms a child or an elderly person or who leaves a family without a mother or father (or both) would have to fully compensate that person or their family. Instead, they are looking out for big businesses and insurance companies. Always have, always will. If your child is harmed don't expect the Republicans to care because they will be supporting the people who harmed him/her.

Sound harsh? Well it's not. Tort reform does not protect us from so-called "frivolous lawsuits". Tort reform is designed to protect big business and insurance companies from legitimate lawsuits. "Frivolous lawsuits" scare no one. If any defendant can show me one "frivolous lawsuit" which has ever gone to trial, received a verdict, and then been affirmed on appeal I will have my partner eat his hat. Big business needs protection when their products or actions seriously injure, maim, or kill innocent people and the Republicans are paid handsomely to help them.

Continue reading "More Tort Reform for Mississippi personal injury and medical malpracitce lawsuits? Thank you sir may I have another?" »