Understanding Vandalism Charges

The word vandalism spray painted on a cement wall

If you or a loved one is charged with vandalism in Missouri, whether it be tagging or graffiti or defacing property, the result can be serious charges and severe penalties. If damage resulting from the vandalism is bad enough, you can face steep fines, a criminal record, jail time and even time in state prison.

Many do not realize that parents of minors are financially responsible for the damage that their children cause.  Parents of minors charged with vandalism or tagging need to hire an experienced criminal defense lawyer to handle their case.

Types of Vandalism
  • Carving into a piece of glass or wood such as a table, chair, desk or bench with a knife or any other tool
  • Breaking windows or doors
  • Tagging with markers or paint
  • Damaging somebody else’s property including mailboxes, cars, plants, lawn or other personal property with intent
Difference Between Misdemeanor & Felony Vandalism

For a person to be found guilty of vandalism prosecutors must prove that they maliciously intended to damage or deface personal property of another person.

Charges of Misdemeanor or Felony depend of the severity of the damage caused. Typically damage under the amount of $750 is considered a misdemeanor while damage of $750 and over is considered a felony.

Acts of vandalism will automatically be felonies if they are proved to be “hate crimes.”

An experienced criminal defense attorney can help you understand your case as well as help you get the best possible result in court. In some cases, your case may even be dropped if there is not enough evidence.

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What is a Class A Felony in Missouri?

The Class A Felony is the highest level of classification of crime in the State of Missouri. This is the highest of the high, the most serious level of crime.

This includes cases like Murder in the First Degree, Murder in the Second Degree, Robbery in the First Degree and some drug crimes like Trafficking in the First Degree.

From a lawyer’s point of view these big cases are what the big time lawyers live for. Can they be technical? Yes, but rarely so. It is a common saying that from a legal point of view a DWI can be more difficult to try in a technical point of view than a homicide. There is a lot more science and need for precision in analyzing Standardized Field Sobriety Tests, Breathalyzers and the expert witnesses the officers are holding themselves out to be. Robberies cases do not tend to be scientific in nature. They tend to be more fact base. That makes it less likely to find a technicality to get you or your loved one out of hot water. You need good lawyering more in these high end cases than a routine DWI.

Why do the big time lawyers want these big cases? These cases can be true life changers. These cases are the ones that decide if you are going to be there for your family for the next 10, 20 or 30 years; if you are going to be able to see your five-year-old graduate from high school, or get married, or have kids of their own. These are big time stakes. Big time players want the ball.

You need to be looking for the right kind of attorney to deal with these high end cases. Some of the things you should be looking for in an attorney if you or a family member has been charged with this sort of crime.

Having the compassion to deal with the client and their family. Taking time to explain the situation to them. To talk about the facts. Do they take phone calls and return phone calls?

  • Having the knowledge to deal with the legal issue. To be able to spot where the prosecutor went too far or the detective asked one too many questions. Are they straight out of law school? Are they looking at 1970 law? You need someone up to date but still having the experience.
  • Having the experience to know how the Judge is likely to rule. To be able to predict what is going to happen.
  • Do they try cases? Winning is good, but trying cases is the important part. I once worked for an attorney that said there are two types of attorneys: Cryers and Tryers. If you have a Tryer on your side, you will always beat the Cryer. Being able to stand up and hold the line is an important part of our legal system. Make sure you hire someone that is not afraid to hold that line for you.

Why do you need this kind of lawyer? Because the Revised Statutes of the State of Missouri (RSMo) states that a Class A Felony shall have the punishment as follows:

558.011. 1. The authorized terms of imprisonment, including both prison and conditional release terms, are:

 For a class A felony, a term of years not less than ten years and not to exceed thirty years, or life imprisonment;

Additionally, if you are charged with Murder in the First Degree, the death penalty is also on the table. The stakes do not get higher than this.

Class A felonies will determine the way you live your life for a very long time to come. Do not leave it up to chance.

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Driving Under the Influence of… Caffeine?

California Man Fights DUI Charge for Driving Under Influence of Caffeine
coffee beans spilled around a coffee cup with the chemistry symbol for caffeine in the cup

 

San Francisco, CA. Dec. 24 – Caffeine may be the “nootropic” brain drug of choice in Silicon Valley, but an hour’s drive north in Solano County, California, the stimulant could get you charged with driving under the influence.

That is according to defense attorney Stacey Barrett, speaking on behalf of her client, Joseph Schwab. After being pulled over on 5 August 2015, Schwab was charged by the Solano County district attorney with misdemeanor driving under the influence of a drug.

Almost 18 months later, Schwab is preparing to go to trial. The only evidence the DA has provided of his intoxication is a blood test showing the presence of caffeine.

Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.

The 36-year-old union glazier was given a breathalyzer test which showed a 0.00% blood alcohol level, his attorney said. He was booked into county jail and had his blood drawn, but the resulting toxicology report came back negative for benzodiazepines, cocaine, opiates, THC, carisoprodol (a muscle relaxant), methamphetamine/MDMA, oxycodone, and zolpidem…

“It’s really stupid,” said Jeffrey Zehnder, a forensic toxicologist who frequently testifies in court cases. Over 41 years, Zehnder said, he had never seen a prosecution for driving under the influence of caffeine…

California vehicle code defines a “drug” as any substance besides alcohol that could affect a person in a manner that would “impair, to an appreciable degree” his ability to drive normally.

Making that case with caffeine would be difficult, Zehnder said, because the prosecutor would have to show that impaired driving was specifically caused by the caffeine and not any other circumstances.

“There are no studies that demonstrate that driving is impaired by caffeine, and they don’t do the studies, because no one cares about caffeine,” he said.

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DWI Field Sobriety Testing: Post 1 of 3 Post Series – HGN (Eye) Test

Aside from blood alcohol tests, the most important evidence of impairment that police, prosecutors, judges, and juries rely on in driving while intoxicated cases are the results of the field sobriety tests. Most of these tests are difficult for most anyone to pass, whether sober or impaired. The key to successful defense against possible false accusations by police or prosecutors is to know and understand the tests before you decide to comply with the officer’s request and take them. Over the next few weeks, I am going to go into each of the three standard field sobriety tests in detail in an effort to provide the information and knowledge necessary so that people can be better prepared if encountered with a roadside test.

Of the three standardized field sobriety tests (SFST’s) that are routinely conducted in DWI cases, the one that is the least understood by the general public, judges, and prosecutors alike is the dreaded eye test, technically known as the Horizontal Gaze Nystagmus Test (HGN). It is by far the most scientific test of the three, and it can actually be the most reliable. However, if it is conducted improperly, the results can be severely compromised. Because of this, although the results can be very reliable to determine whether there is alcohol in the blood stream, the test is only as good as the person administering it.

Many people believe that when an officer is conducting the test of the eyes they are simply checking to see whether the subject’s head is moving or whether the subject can follow simple instructions. In reality, the officer is checking for “nystagmus” which is an involuntary jerking of the eye. There are several types of nystagmus, but only alcohol and a few other drugs actually cause horizontal gaze nystagmus. When under cross-examination by a skilled defense attorney most officers will not know the difference between HGN and other forms of nystagmus such as fatigue nystagmus, optokinetic nystagmus, or nystagmus caused by a previous head injury. Of course, if the trained police officer doesn’t know the difference, neither will the judge or jury. That is why it is important for the officers to be cross-examined on these details in order to impeach their credibility. If they don’t know whether what they are seeing is caused by alcohol or whether is it caused by something else, how can a judge or jury be convinced beyond a reasonable doubt?

During the test, the officer is looking for six potential clues of impairment. In each eye the officer is looking: 1) to see whether the eye moves smoothly from side to side or does it jerk noticeably (this portion of the test is known as lack of smooth pursuit); 2) whether the eye jerks distinctly when it moves as far to the side as possible and is kept there for a minimum of four seconds (this part of the test is known as distinct and sustained nystagmus at maximum deviation); and 3) whether the subject’s eye starts to jerk noticeably as it moves toward the side prior to it reaching a 45 degree angle (this is known as onset of nystagmus prior to 45 degrees). If all six of these clues are present, studies show that the test has a 77% accuracy rate at detecting subjects at or above a 0.10 BAC.

Although potentially 77% accurate, the test must be conducted precisely according to protocol. If not, the results are substantially compromised. When conducting a roadside field sobriety test, the officer’s patrol car is usually equipped with a dashcam that is recording the entire incident on both video and audio. Unfortunately for those who have been pulled over it is up to the individual officer to save the video as evidence. It is not unheard of to see an officer fail to do so because the video is often the only way that their performance in conducting the HGN can be impeached. Do not be afraid to ask the officer to save the dashcam video of the arrest. There is still nothing that requires the officer to do so, but it is worth asking because the evidence can be critically important.

In conducting the HGN, the following protocol must be followed:
The stimulus (finger, tip of pin, etc.) must be held approximately 12-15 inches from the tip of the subjects nose.
The officer must check to make sure that the eyes track equally, that the pupils are of equal size, and that there is no resting nystagmus. The presence of any of these things could mean there was a previous head injury by the subject or resting nystagmus could detect the presence of a disassociative drug such as PCP, which can be dangerous for the officer.

First Clue – Check for Smooth Pursuit – Check suspect’s left eye first. Begin from center of the nose to the maximum deviation in approximately 2 seconds. Then check the right eye by moving back across the subjects face to a maximum deviation at approximately a 4 second pace. Then go back to center approximately 2 seconds. You then must repeat the process always doing the test twice for each eye.

Second Clue – Check for Distinct and Sustained Nystagmus at Maximum Deviation – Check the left eye first. Eye must follow stimulus to maximum deviation (no white showing in corner of eye). Eye must be held in this position for at least 4 seconds in order for this clue to be scored. Check the right eye. Again, repeat in each eye.

Third Clue – Check for Angle of Onset Prior to 45 Degrees – Check the left eye first once again. The eye must follow the stimulus from the center of the suspect’s nose to near the edge of the suspect’s shoulder to a 45 degree angle, leaving some white showing in the corner of the eye, at approximately a 4 second pace. Check the right eye, and repeat the entire cycle again in each eye.

The final steps of the test includes checking for vertical gaze nystagmus, which is the same process as checking for smooth pursuit only up and down, and the last thing to do is to check for lack of convergence. Both VGN and lack of convergence are not clues to be scored during the HGN test, but could aid the officer in developing suspicion of either a high level of alcohol in the blood or other types of drugs as possible intoxicants. If each of the above steps are conducted appropriately, the test should take no less than 64 seconds and realistically probably longer for a good, accurate test.

Once again, if this test is conducted properly by the arresting officer it can be very solid evidence of the presence of alcohol in a person’s system. However, to uncover poor administration of the HGN, and any other FST, it takes a skilled criminal defense attorney who is knowledgeable in the area of DWI defense.

Over the next couple of weeks, posts 2 and 3 of the series will cover the Walk and Turn Test and the One-leg Stand Test. If anyone should have any questions or want any advice, don’t hesitate to contact our office. Until then, be safe and smart out there!