My Friend Ken, and Momma Gray

That Thursday April morning began just as the rest of his days at the Budget Inn Motel on Government Street in downtown Mobile. Spring was here and Ken was up and out by 6:45AM, crossing Government Street to McDonald’s for his usual oatmeal breakfast. He would look through the window and watch the world in all its hurry, hustle, and bustle pass by. His mind then drifted to Momma Gray, his furry feline friend who was for all purposes his only family. After breakfast, he made his “catwalk” to find and feed Momma Gray. He loved that old cat. He usually fed her twice a day, once in the morning and again later in the afternoon.  Usually, as lunch would roll around, Ken would visit Popeyes just down the street and order his  2-piece mild with cole-slaw (they give senior discounts, usually 10%). He would routinely dine in, for it was a respite from the old Budget Inn. After lunch, he would return to his room and hang out for a while, watch some TV, and later take a walk to find Momma Gray. Ken would come back to his room late afternoon or early evening. He usually skipped dinner and would turn in early, but today would be different.

I first met Ken routinely walked by my office in the early afternoon hours with a sleeve of turkey. I thought it odd at first.  I figured he must live in the area. And then I would sometimes see him in the morning. Ken, I would later learn, was the son of a World War I veteran. Ken, like his father, served his country. Ken signed up for service when he was just 18 years old. He moved to Mobile because of the beautiful buildings and homes. He was in Air Force for 10 years and later in the Navy  for 3 years . While in the Navy, he served in Scotland and Japan during the height of the Cold War. As a communications technician, he monitored Russians.

He sauntered at his own pace as his years seemed to suggest he was on his own time. My curiosity ended when I saw him in my office parking lot feeding a grey stray cat one afternoon. Her name was Momma Gray, and boy did Ken love that cat. I would see Ken so frequently that I finally invited him in for lunch motivated every bit as much by the curiosity as the hospitality. He always politely declined. My mother, who works with us, really took a liking to Ken. After a few months, Ken became a regular. If we missed seeing Ken, we would be worried something happened to him. Alas, our worries would subside when we would see him the next day. The only creature  who showed more affection than my mother to ole Ken, was Momma Gray.  Momma Gray had many food suitors, but that cat would curl up around Ken’s legs and purr her way into his heart every time I saw them together. Ken loved her, and she loved him, or his turkey.

Soon, I learned that Ken lived just down the street from my office at The Budget Inn Motel on Government Street. I knew then that Ken must be on a fixed income, and at times I worried for his safety. The Budget Inn Motel has been the source of many a moment of high drama in the neighborhood. Just ask the Mobile Police Department and/or Mobile Fire Rescue who have responded to the facility before. Just two months before this, SWAT team members were called to this Budget Inn after a man made threat to local law enforcement and called WPMI NBC 15 promising to “shoot someone to get on TV.”

In April 2016, a white male chased 2 females through the front gate of my office. The females were screaming and the male was yelling that the females had robbed him. Shortly thereafter, the male fell on the sidewalk in front of my office and began seizing. We rushed over to help him, but not before one of the females yelled, “be careful, he’s got HIV!”

 

It was quite an afternoon, as we called 911 and waited for police and emergency responders. While waiting, I noticed a 12 pack of Icehouse beer overturned near the front porch of my office. I guess those must have been too important for them to leave behind at the Budget Inn where they all were staying.

Continue reading My Friend Ken, and Momma Gray

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Mobile Woman Accused of Manslaughtering Own Brother involved in Two Prior High Speed Police Chases

We learned this week that a young woman killed her own brother here in Mobile County, Alabama.She has been charged with manslaughter. According to police and press accounts, 27 year old  Jamie McDole committed a theft at a Family Dollar in Irvington. Mobile County Sheriff deputies happened to be across the street at the time. They attempted to initiate a traffic stop when McDole sped off.

“When the officer hit the blue lights, they hit the gas pedal and they was Gone”

witness carla herrera
Witness Carla Herrera (Photo from WPMI)

WPMI reporter Christian Jennings interviewed  witness Carla Herrera who told her “whoever was driving eased out of the parking lot at first and whenever the officer turned his blue lights on, they hit the gas pedal and they were gone.” You can watch the interview here.

family dollar
Family Dollar where chase began (Photo from WPMI)

The driver was Jamie McDole. After fleeing the scene, she later crashed into a Dodge pickup truck at the intersection of Highway 90 and St. Elmo. The collision was so violent that it ripped McDole’s car in half. McDole’s boyfriend and her brother were in her car at the time.

McDole accident pic
McDole’s vehicle ripped in half

According to press reports  and law enforcement, as her boyfriend was injured and her brother lay dying, McDole abandoned both to steal a truck at a nearby gas station. McDole later crashed this vehicle out into a tree on Jay Drive. An ambulance arrived on scene to treat her for her injuries. Meanwhile a short time later, her brother succumbed to his injuries.

Ms. McDole was later discharged from the hospital and booked into Mobile Metro Jail for manslaughter in her brother’s death, leaving the scene of an accident with injuries x 2, theft of property, 1st Degree, and eluding police.


Long History of Drug & Alcohol Abuse

A review of McDole’s criminal history evidences that of a person consumed by addiction. Her arrest history just in the City of Mobile Municipal Court  includes:

MINOR IN POSSESSION OF ALCOHOL, THEFT OF PROPERTY 3RD DEGREE, PUBLIC INTOXICATION, DISORDERLY CONDUCT, MINOR IN POSSESSION OF ALCOHOL, THEFT OF PROPERTY 3RD DEGREE, PUBLIC INTOXICATION, DISORDERLY CONDUCT,

Jacob McDonald
Killed in McDoles’s crash was her brother Jacob McDonald 

 

CRIMINAL MISCHIEF 2ND, UNAUTHORIZED USE OF VEHICLE, DOMESTIC VIOLENCE 3RD – ASSAULT, OPERATING A VEHICLE WITHOUT INSURANCE,  SEATBELT VIOLATION, IMPROPER TAG,  DUI LIQUOR​/​ DRUNK IN POSSESSION – 1ST OFFENSE, CANCELLED DRIVERS LICENSE, SPEEDING 72 MPH in a 55 MPH zone, NO DRIVERS LICENSE, FAILURE TO SHOW VEHICLE REGISTRATION


Her criminal history in state court includes:

DUI, ASSAULT, 2nd DEGREE, PUBLIC LEWDNESS,  THEFT OF PROPERTY, 3rd DEGREE, RECKLESS DRIVING, ATTEMPTING TO ELUDE POLICE, FILING FALSE REPORT TO POLICE REPORT, DRIVING WITHOUT INSURANCE, DOMESTIC VIOLENCE, 3rd DEGREE-HARASSMENT


McDole’s History of Eluding Police, High Speed Chases, & Leaving Scenes of Accidents

Jamie McDole
MCSO Narrative: She stated she had been smokin’ weed

McDole’s alleged conduct this past Wednesday was not her first time she has led police on high speed chases endangering the public. Mobile County Deputy Sheriff’s narrative relates the following harrowing high speed chase of McDole on March 22, 2008.

03-22-2008 at 00:35 hours

On above date at 0010 HRS I observed a vehicle traveling at a high rate of speed west bound on Half Mile Road between Bellingrath Rd and Padgett Switch Rd with out [sic] lights on. As I was traveling East Bound on Same Road. I then turned my vehicle around on the vehicle (A Gold Ford Taurus) and followed it as it turned North onto Padgett Switch Rd. I then initiated my emergency lights to attempt to stop the suspect vehicle. The suspect vehicle increased speed and continued on turning west onto Highway 90, then North on Louis Tillman Rd to Boe Rd, Running all red lights and stop signs. The vehicle then crossed over March Rd continuing on Boe Rd to Gulf Blvd, then across Hwy 90 South on to Irvington BLB Highway and Ran the Red Light on Gibson Rd and continued to a dirt rd off Gibson where it came to a stop after striking a tree. The driver of the vehicle Ms. Jamie McDole (Suspect 1) jumped out of the vehicle and ran into the wooded area. I then pursued Suspect 1  on foot and apprehended her about 100 ft. from the vehicle. Suspect 1 was then placed into custody and charged with Reckless

reckless endangerment_Page_07
MCSO Incident/Offense Report & Narrative of McDole’s 2010 Marijuana Induced High Speed Chase, Crash, and Leaving Scene of Accident

Endangerment and DUI. Upon Inventory Search of the vehicle, a small Blount containing Marijuana was found on the Drivers [sic] seat. Suspect 1 stated (While in my back seat) that she had been smokin[sic] weed. Suspect 1 had a very slurred speech and her pupils were dilated was transported to Metro Jail and Mizells Towed the vehicle. Upon my arrival to Metro Jail they advised me that because Ms. McDoles [sic] unknown influence of drugs they could not book her until she was seen checked and released by a medical professional. Ms. McDole was then transported to USA Medical Center, upon completion of a medical evaluation. Ms. McDole was then transported to USA Medical Center, upon completion of a medical evaluation Ms. McDole was transported back to Metro Jail. Suspect 2  Amanda Hicks was not charged and was given a ride home by Res. Deputy Emmons.

 


SHOTS FIRED: McDole’s Oxycontin Induced 2010 Prichard  & Mobile Police Chase

In May of 2010, McDole was in a police chase, this time involving two jurisdictions. Police officers even fired on her after she attempted to run them over. According to an AL.COM report:

Jamie McDole

PRICHARD, Alabama — A man and a woman were arrested Thursday morning after leading Prichard Police on a chase that ended in west Mobile, according to a news release.

Driver Jamie McDole, age 22, of Irvington and passenger James Harris, age 49, possibly of Butler were observed by Prichard Police backing into an automobile at Dunlap and Telegraph roads and pursued after leaving the scene, police said. The pursuit continued from Interstate 165 to Interstate 65 before the suspects exited on Airport Boulevard.

The chase finally stopped in the Books-A-Million parking lot at Pinebrook Shopping Center near McGregor Avenue, where the Mobile Police Department was contacted for assistance.

There, the report states that McDole attempted to run over police officers, who fired at the vehicle to get it to stop. There were no injuries as a result, it said.

The subjects were transported back to the Prichard Police Department, where it was discovered McDole had taken a number of Oxycontin tablets. EMS was called and she was transported to USA Medical Center for evaluation.

After being released, she will be charged with a number of charges, including possession of marijuana, attempting to elude police, resisting arrest and reckless endangerment. The other subject, Harris, was charged with 1st degree possession of marijuana and transported to Mobile County Metro Jail.

At the time of this incident, Ms. McDole was out on bond for Theft of Property 1st Degree and Filing a False Police Report (according to the complaint, she falsely reported to police that she had been raped) She later pled to a misdemeanor theft and the false report was nolle prossed.

McDole Leaves Drug Treatment

Perhaps drug treatment may be the answer for McDole one may think?  In 2015, McDole was arrested for assaulting  a police officer and public lewdness. The officer responded to  Carol Plantation Road to find McDole topless in the street.
lewdness complaint
McDole’s Public Lewdness Complaint
After taking McDole into custody for her public lewdness, the officer alleged she then assaulted him.
assaulted officer crop
While in jail, she requested drug treatment and was granted it. She was transported from Metro Jail  to the Haven of Hope for Women. The court file notes that she later left rehab.
LEFT REAHB CROP

2015 PROTECTION FROM ABUSE PETITION

In 2015, the father of McDole’s then two year old child filed a protection from abuse petition against McDole. In his petition he alleged that she claimed to be pregnant and sent for him. He wrote that McDole claimed illness upon his arrival and was abusive to him. The man she was with then hit him in the head with a beer bottle putting him in the ICU. The father alleged that McDole was mentally ill, abusive to herself and others in the past and get this—has run over him with her automobile and bitten him. On February 17, 2016 the judge dismissed the complaint after the father failed to appear in court.
CROP
2015 PFA filed against McDole that was later dismissed after the Plaintiff failed to appear

WEDNESDAY’S CRASH

This all brings us back to last Wednesday and how we got there. I wonder as to the conversation between McDole and her boyfriend and her brother in the moments before she crashed her vehicle ripping it apart. Did she know her brother lay dying nearby? Did she know her boyfriend too was harmed? What prompted Jamie McDole to flee that day? Was it the outstanding warrants? Was it her fear of prison? Was she under the influence of drugs or alcohol? Whatever the motivation, she needlessly endangered countless other motorists in addition to the occupants of her vehicle. It appears this conduct that resulted in the death of her brother was in keeping with a long line of prior similar conduct. I would like to say this was a freak accident by an isolated reckless driver, but unfortunately our roads, streets, highways and interstates are filled with these drivers every day. Two days later on Friday WPMI reported  another innocent motorist injured by a violent crash and motorist who fled the scene of the accident. As a former municipal court judge, I saw this far too often. As an attorney who now represents accident victims, I see it routinely.

 

McDole is set for a preliminary hearing before Judge Jill Phillips on June 28, 2017 on her current charges.

Related Reading: Woman charged with manslaughter in brother’s death

ABOUT THE AUTHOR

Matt Green is a solo practitioner who represents personal injury and victims of criminal wrongdoing. He served as a municipal court traffic court judge in the City of Mobile and the City of Saraland for nearly a decade.Matt Green Before that Matt prosecuted major felonies, traffic homicides, and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel.  Matt also defends the constitutional rights of his clients. He may be reached at 251.434.8500 or by e-mail at mattgreenlaw@comcast.net

police academy lecture

The Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

 

 

Mobile Traffic Safety Checkpoints: Are they Legal? A Roadblock Primer

A former client reached out to me this week asking me how traffic safety checkpoints, or “roadblocks” are constitutional. The issue is a relevant again as the City of Mobile Police Department has renewed its roadblock efforts that were controversial under the Sam Jones administration. Mayoral candidate Sandy Stimpson campaigned against the practice and said that the traffic safety checkpoints were ineffective. Stimpson also said that he didn’t believe they were a solution to the “public safety problem.” Stimpson after his election but before his swearing in noted in August 2013: “Unless I’m convinced otherwise by those on the ground, then that’s where I stand.” Stimpson while

sam-jones-sandy-stimpsonjpg-1d85c2304f920bf7
Mobile Mayor Sam Jones, left, and Mayor-Elect Sandy Stimpson speak to reporters before a working-lunch session at Government Plaza on Aug. 29, 2013. Stimpson will be taking over the mayor’s office on Nov. 5. (Michael Dumas/mdumas@al.com)

not eliminating the practice, scaled back on traffic safety checkpoints to areas of necessity in line with the administration’s “hot-spot” policing efforts. Colby Cooper, the mayor’s then chief of staff noted in 2014, “Checkpoints are a tool in the tool box of policing…The mayor doesn’t want to take off the table the tools our police force needs to make Mobile the safest city in the future…We rely on police to use them judiciously,” Cooper said. “We are not using them in any other matter that doesn’t make this the safest city in America.”

And that was the position Chief James Barber took as well as he promised to “scale back” the use of traffic safety checkpoints.

Yet now in 2017, we seen renewed efforts by the city’s new chief of police to re-employ the traffic safety checkpoints. There we two checkpoints conducted this week. The results as published on the City of Mobile Police Department website note: “There were 96 tickets issued and 12 vehicles towed. Mobile police made 10 arrests, totaling two felony charges and 24 misdemeanor charges. Below is a breakdown of the results.”

MICHIGAN AT DUVAL ST

AZALEA AT MICHAEL

Are these checkpoints legal? You can find significant litigation over their use. Traffic safety checkpoints are investigative stops based on absolutely no evidence of wrongdoing. This has serious Fourth Amendment implications. The stops are considered “seizures”  under the Fourth Amendment. Ex Parte Jackson, 886 So.2d 155 (Ala. 2004)  These checkpoints are warrant-less and suspicion-less stops of every citizen who happens to enter the designated checkpoint area. With that in mind, you can see why courts eye their propriety with such exacting standards. The Alabama Court of Criminal Appeals went so far as to hold “This Court has long held that license checks, sobriety checkpoints, and roadblocks are not intrinsically unconstitutional. ” See  Mclnnish v. State, 584 So.2d 935, 936 (Ala.Crim.App.1991).

clarence thomas
Justice Thomas doubts  constitutional legitimacy of roadblocks

This is hardly a ringing endorsement of their use. Justice Clarence Thomas has opined, “Indeed, I rather doubt that the framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.” [Justice Clarence Thomas, dissenting  in City of Indianapolis v. Edmond, 121 S.Ct.447,462 (2000)] Like so many other Fourth Amendment issues, the devil is in the details. Keep reading.

PURPOSE OF THE ROADBLOCK

The United States Supreme Court has held that there must be a specific law enforcement purpose apart from general law enforcement concerns. A good example of this was in Hagood v. Town of Town Creek, 628 So. 2d 1057, 1059 (Ala. Crim. App. 1993) where the city police chief said the purpose of their roadblock was to curb criminal activity at a crime infested apartment complex. The chief testified, “We had so much going on at The Town of Town Creek Apartments over there, fighting, drunk and disorderly over there.  The town wanted us to tighten up a bit there and we could catch a lot of it there on the street before it got in there…” The court  invalidated this roadblock. See 4. W. Lafave, Search and Seizure: A Treatise on the Fourth Amendment” §9.7 (b), at 551 (4th ed.2004) “[A] general roadblock ….established on the chance of finding someone  who has committed a serious crime…” is “quite clearly” unconstitutional.

The United States Supreme Court has only authorized roadblocks in four scenarios, and they are based on a specific law enforcement concern:

  1. Stops gathering information concerning a recent crime in the area when the questions asked during the stop did not seek self-incriminating information; (Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004)
  2. Stops the checking driver’s licenses (Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983);
  3. Stops checking sobriety of drivers (Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990)
  4. Stops checking for the presence of illegal aliens.

Beyond these proscribed specific law enforcement concerns (ensuring highway safety and policing the border) , roadblocks for “general law enforcement purposes” are unconstitutional. A roadblock whose primary purpose “is ultimately indistinguishable from the general interest in crime control … violate[s] the Fourth Amendment.” City of Indianapolis v. Edmond, 531 U.S. 32, 48, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). See also Hagood v. Town of Town Creek, 628 So. 2d 1057 (Ala. Crim. App. 1993) (noting that the “general interest in law enforcement simply does not outweigh the liberty interests of those seized, however brief the seizure may be”).

FOURTH AMENDMENT

fourth amendment

The courts have balanced the individual’s privacy and fourth amendment rights against unreasonable search and seizures against law enforcement’s public safety function. Inevitably tension has arisen in striking a fair balance between the two competing interests. Generally speaking the courts have evaluated the propriety of a fixed traffic checkpoint, i.e. its reasonableness under the Fourth Amendment, thru the prism of a three part test enunciated in Brown v. Texas, 99 S.Ct. 2637 (1979):

  1. the gravity of the public concerns served by the seizure;
  2. the degree to which the seizure advances the public interest; and
  3. the severity of the interference with individual liberty.

The Alabama state courts have paid fidelity to this standard as well.  In Cains v. State, 555 So. 2d 290 (Ala. Crim. App. 1989), the Alabama Court of Criminal Appeals  ruled that traffic stops of vehicles at fixed checkpoints are reasonable if:

  1. they are performed according to a neutral and objective plan;
  2. are supported by strong public interest, and
  3. and are minimally intrusive to the individual being stopped

Neutral and Objective Plan

The State must present evidence showing that the checkpoint was “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” More on officer discretion below.

Must the Checkpoint Policy /Plan Be Written?

No. “Although we hold today that a written plan is not required by the Fourth Amendment, we strongly suggest that having a previously established plan that is in writing before the execution of the checkpoint is the best practice.” Ogburn v. State, 104 So. 3d 267, 275 (Ala. Crim. App. 2012) . See also Connell v. State, 141 So.3d 1108 (Ala.Crim. App. 2013), cert.denied, (October 11, 2013) holding:

Thus, Ogburn stands for the proposition that the State, in sobriety-checkpoint challenges, has the burden of establishing the existence of a “plan embodying explicit, neutral limitations on the conduct of individual officers,” 104 So.3d at 274, and that the State may do so by either submitting a previously established written plan into evidence or by eliciting oral testimony of a witness who can “articulate the full details of the previously established plan.104 So.3d at 275.”(emphasis added)

STRONG PUBLIC INTEREST

Both the state and federal courts have held that the public has an interest in making sure that drivers of vehicles are properly licensed and that the vehicles they are driving are registered and equipped with safety devices. See Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). The Alabama Court of Criminal Appeals stated in Hagood v. Town of Town Creek, 628 So. 2d 1057 (Ala. Crim. App. 1993)]:

  “‘The state’s interest in enforcing its registration and licensing laws and the difficulty in enforcing the laws by any other method” … [has] been held sufficient to outweigh a minor intrusion upon persons stopped at roadblocks conducted for [that] purpose[].’

NTSA claims “Checkpoints enhance the visibility of overall impaired driving enforcement efforts and contribute significantly to general and specific deterrence. Literature reviews show that checkpoints are associated with reductions in alcohol related fatalities—a median decrease of 20 percent.

ARE THEY MINIMALLY INTRUSIVE TO THE INDIVIDUAL MOTORIST?

Manner of Operation of Roadblock

Help.For-DUI.com

The manner in which roadblocks are a source of much constitutional debate and litigation. “The manner of operation and the physical characteristics of a roadbock affect the intrusiveness of  the stop.” Cain v. State, 555 So. 2d 290 (Ala. Crim.App.1989).  In examining this factor, Alabama courts look to a 13 part analysis in determining if the traffic stop is minimally intrusive to a motorist, and therefore reasonable for Fourth Amendment purposes. While no single factor is dispositive, all are relevant and include:

  1. The degree of discretion, if any, left to the officer in the field;
  2. The location designated for the roadblock;
  3. The time and duration of the roadblock;
  4. Standards set by superior officers;
  5. Advance notice to the public at large;
  6. Advance warning to the individual approaching motorist;
  7. Maintenance of safety conditions;
  8. Degree of fear or anxiety generated by the mode of operation;
  9. Average length of time each motorist is detained;
  10. Physical factors surrounding the location, type and method of operation;
  11. The availability of less intrusive methods for combating the problem;
  12. The degree of effectiveness of the procedure; and
  13.  Any other relevant circumstances which might bear upon the test.

These factors are mere guideposts and no one factor is conclusive in this calculus, rather they are “helpful considerations to take into account when determining whether the officers conducted the stop pursuant to an ‘objective standard.'”  Ex parte Jackson, 886 So. 2d 155, 163 (Ala. 2004)- coincidentally this was a Mobile County Sheriff roadblock case.

ROADBLOCK PRESENTATION

Ever wonder why the police give advance notice to the public of where the checkpoints will be? Look no further than #5 above.

notice 1
Advance Notice of Checkpoint Location/Time Published on City of Mobile Police Dept. website

Unfettered Officer Discretion Disallowed

A significant factor in the the intrusiveness/reasonableness of the stop is that the officer must conduct himself pursuant to an established policy strictly limiting the officer’s authority. For instance ask:

  1. What is the policy as to stopping vehicles- is it every car or every third car?
  2. Is there a supervisor not in the field motioning the stopping officer to ensure compliance with the roadblock guidelines?
  3. were officers given any particular instructions before the checkpoint began concerning how they were to conduct the checkpoint or concerning the extent of their discretion (could the officer wave a friend, family member, fellow off-duty officer, judge, prosecutor through while stopping everyone else?)

In short if  officer fails to act in compliance with the pre-approved plan, he acts outside the protection of the law and the privacy rights and liberty of  the motorists he stops are violated.

Who Has the Burden of Proof to Show that Road Block is Constitutional?

The Government has the burden of proof to establish the constitutionality of a roadblock or fixed traffic safety checkpoint. Hagood v. Town of Town Creek, 628 So.2d 1057, 1062 (Ala. Cr. App. 1993).

Can I Avoid a Roadblock?

Avoiding a roadblock gives the police independent grounds, apart from the reasonableness of the roadblock, to stop you. Remember, police do not need probable cause to stop you here. They need no reason to stop you at all provided they comply with the above mentioned guidelines. So if you pull out of a line of traffic for whatever reason, you give the officer a reasonable and articulate suspicion to stop you.

A case in point is Smith v State, 515 So. 2d 149 (Ala. Crim. App. 1987) where “Trooper Smith testified that he observed appellant’s vehicle come around a curve in sight of the roadblock and turn rapidly into a driveway approximately 200 yards from the roadblock. This act made Trooper Smith suspect that appellant was attempting to avoid the roadblock and could possibly be guilty of some traffic violation. Thus, his initial investigatory questioning of appellant was justified.” An argument may be made that a roadblock style analysis may not even apply here because defendant was not stopped at a roadblock and therefore has no standing to assert the protections of the Fourth Amendment attendant roadblocks. So avoidance of a roadblock may constitute an independent reasonable and articulate suspicion for the officer to stop you.

But What About Terry?

Warren_Supreme_Court
The Warren Court who gave us Terry v. Ohio

Generally speaking, police may seize you only if they have a reasonable and articulate suspicion that you are engaged in criminal activity [i.e. a “Terry stop” pursuant to Terry v. Ohio392 US 1 (1968)]. In roadblock cases, all cars are stopped (seized) without suspicion. How can this be reconciled with Terry? Some of the leading legal authorities justify it as a less intrusive stop than a traditional Terry stop.

“a principal safeguard in the provision is that the roadblock must be applied to all or most of the cars travelling in a particular direction. Thus the humiliation implicit in being singled out as an object of suspicion is absent. Moreover the expense to law enforcement agencies and public intolerance of the inconvenience impose a check on unreasonable recourse to this power.”[1]

However, the real reason is the courts. The United States Supreme Court has read the suspicion requirement out of the Fourth Amendment in the fixed traffic checkpoint scenario. As the Alabama Court of Criminal Appeals held in Cains v. State, 555 So. 2d 290 (1989):

“In a series of decisions stemming from the immigration control cases, the United States Supreme Court has rejected the individualized suspicion requirement for fixed, non-random automobile checkpoints or roadblock stops, and instead has established some criteria for ‘a plan embodying explicit, neutral limitations on the conduct of individual officers…stops at fixed checkpoints or roadblocks are reasonable if they are carried out pursuant to a neutral and objective plan, are supported by a strong public interest, and are only minimally intrusive to the individual motorist.,”

See why the traffic safety checkpoint plan is so important?

So back to the original question-Are traffic safety checkpoints legal? The answer hopefully by now is crystal clear….Maybe.

DID YOU KNOW?

states that prohibit checkpoints
checkpointusa.org

12 states do not allow traffic safety checkpoints;and most do because state constitution prohibits. These states are:

  1. Alaska
  2. Idaho
  3. Iowa
  4. Michigan
  5. Minnesota
  6. Montana
  7. Oregon
  8. Rhode Island
  9. Texas
  10. Washington
  11. Wisconsin
  12. Wyoming

SHOULD GOVERNMENT BAN DUI CHECKPOINT CELL PHONE APPS?

Despite that fact that notice of checkpoints should be published to the public, recently authorities spoke out against DUI Checkpoint cell phone applications that provided notice to the public of the location of roadblocks. Watch this Reason TV piece. Besides the fact that many police jurisdictions advertise the roadblocks themselves, the authorities presume that everyone who uses the app is guilty of something. Many folks just don’t want to be hassled with the intrusion and delay and are guilty of nothing. Also if the purpose behind the roadblock is too keep impaired drivers from driving, wouldn’t such applications serve that purpose as well? Finally, if the government seeks to regulate this speech, it raises serious First Amendment concerns as well.

cell phone app

[1] Model Code of Pre-Arraignment Procedure 266 (1975)

Here are other state court decisions on the constitutionality of sobriety checkpoints.

Articles of Interest

Sobriety checkpoints open to controversy

ABOUT THE AUTHOR

Matt Green is a solo practitioner who represents personal injury and victims of criminal wrongdoing. He served as a municipal court traffic court judge in the City of Mobile and the City of Saraland for nearly a decade.Matt Green Before that Matt prosecuted major felonies, traffic homicides, and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel.  Matt also defends the constitutional rights of his clients. He may be reached at 251.434.8500 or by e-mail at mattgreenlaw@comcast.net

The Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

JUNIOR & ME: A Mobile Man’s 10 year Quest to get his Driver’s License

I am proud to announce that after ten years, my client James “Junior” Moyers is now a licensed driver in the State of Alabama. Junior retained me to assist in having his driving privileges reinstated. After making an appearance in court for him, speaking with the prosecutor and judge, we were able to clear up the old tickets and get clearance letters. Clearance letters are just letters from the clerk of court that notify the Alabama Law Enforcement Agency (ALEA), formerly DPS, that the person has paid or “cleared” his tickets. You must get your clearance letters to present to ALEA/DPS before the State will allow you pay your reinstatement fee and get your license. Armed with his clearance letters, Junior  drove out to ALEA the same day- on Demetropolis Road (be prepared for a long wait unless you are there by appointment)

How to A Schedule DL Appointment with ALEA

Before just showing up to get your DL, you should consider contacting ALEA to schedule an appointment. The Alabama Law Enforcement Agency is now accepting DL appointments online by clicking here.  Appointments may also be requested by phone during regular business hours. All requests must be made 48 hours prior to the preferred date of test.If you are suspended ALEA can tell you why. Then you should consider hiring an attorney to help you navigate the justice system.

If like Junior and it’s been a while since you had a licence and you need to brush up for the test, you can download the Alabama Driver’s Manual here.

AL DL MANUAL

JUNIOR CAUGHT IN THE THREE YEAR LIMITATION PERIOD

Unfortunately, since it had been so long since he had a valid driver’s license, Junior had to retake both the written (computer) test and actual driving test. An Alabama driver license may be renewed without examination within a three-year period after expiration. Junior could have given up at this point (he had already paid a reinstatement fee of $175), but to his credit he plowed ahead. Junior got a copy of the driver’s manual and went home and studied up. He did his homework. It had been a while so he had to study hard for two days. He studied the next day and early the next morning as is seen in photo below.

IMG_4452
Junior cramming hard Friday morning at Waffle House before taking his driving tests (both written & driving portions) Junior, like most great thinkers, finds inspiration at his local Waffle House.

I am proud to say that late Friday afternoon Junior passed both the written examination and driving test to become a licensed driver for the first time in ten years. Proud of you Junior, and thank you for letting me share you story as an inspiration to others.

DL EDIT
Junior’s Heisman DL Pose

If you have any traffic tickets preventing you from getting your license or if you have any traffic questions, call me. We would like to help you. You can reach our office at 251.434.8500

About the Author:

matt green-

Matt Green is a solo practitioner who likes to help working folks with their driver’s licenses. He served as a municipal court judge in the City of Mobile and the City Saraland for nearly a decade presiding over thousands of traffic cases and trials. Before that Matt prosecuted major felonies, traffic homicides (including drunk drivers who injured innocent victims), and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel on occasion.  He may be reached at 251.434.8500 or by e-mail at mattgreenlaw@comcast.net

The Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

I’ve been Injured by a broke DUI driver, so who pays the bills?

A DUI driver slams into the back of a busload of kids on the way to school. We hear this case far too often. Unfortunately we heard it here this past week in Mobile County. The Mobile County School bus was packed with 20 middle school children when the defendant slammed into the back of the bus. Accounts varied on the injuries but at least one child was reported as suffering from injuries. Mobile County Public School buses do not have seat belts, except for special needs students.

russell mug
Daniel Russell DUI Charge after striking school bus full of middle schoolers. (Photo by MCSO)

The defendant was arrested for DUI and booked into Mobile County Metro Jail. Reports indicated that the defendant was refusing to cooperate with the authorities during the booking intake (not a surprise considering his history-prior resisting arrest charge). And this DUI defendant, like many defendants I prosecuted and judged, is no stranger to the criminal justice system. He has a prior 1997 DUI Conviction for DUI and arrests dating back to 1992 for

  • Domestic Violence
  • Harassment
  • Criminal Trespass
  • Burglary, 1st
  • Improper Signal
  • Driving While License Suspended
  • Possession of Marijuana, 2nd Degree
  • Unlawful Possession of Drug Paraphernalia
  • Public Intoxication (GUILTY)
  • Resisting Arrest (GUILTY)
  • Receiving Stolen Property, 2nd Degree
  • Assault, 3rd Degree

history

According to paperwork submitted by the arresting state trooper, the defendant admitted that he had taken a “Lortab” prior to the crash.

officer narrative2

officer narrative How do the victims of a crime get compensated?

Any victim of a crime is always entitled to file paperwork with the prosecuting authority (whether it be the City of Mobile or the State of Alabama) seeking restitution. Since this crash was in the county and was investigated by a state trooper, the State of Alabama would be the prosecuting authority, so the district attorney would oversee.

MOBILE COUNTY DISTRICT ATTORNEY’S VICTIM SERVICES DIVISION

The Mobile County District Attorney’s office has a victim’s service office and an victim service officer (“VSO”) who can guide you through the process for restitution recovery. Some of the services they offer include are:

  • Court Orientation
  • Helping victims understand their rights
  • Referrals (Counseling, Social Services, etc.)
  • Emergency Services
  • Escorting to Court
  • Restitution
  • Assisting with requests for compensation through the Alabama Crime Victim’s Compensation Commission
  • Crisis Intervention
  • Intimidation Protection
  • Assisting with Victim Impact Statements
  • Public Education

However in a case like this, that may involve multiple victims and a defendant with little or no ability or assets to satisfy the restitution ordered for multiple claimants, collection becomes problematic. Unfortunately this is a very common occurrence victims run up against. What should you do next?

CONSULT A CIVIL ATTORNEY WITH CRIMINAL EXPERIENCE IMMEDIATELY

First and foremost you should contact an attorney (the quicker the better) who specializes in personal injury cases, particularly one who has a good working knowledge of criminal law and who has worked in the criminal justice system. Since your personal injury case is intertwined with a criminal case, there will be a criminal investigation with a collection of evidence.

For instance in this DUI bus crash, the state trooper will take photographs, perform field sobriety tests (taking field notes to quantify the defendant’s compromised ability to safely operate a motor vehicle). The trooper will perhaps administer a portable breath test on the scene, capture and secure video (via body camera or in vehicle camera) of the scene and the defendant and witnesses. The trooper will help book and process the defendant (also filmed at Metro Jail) and administer the breath test approved by the Alabama Department of Forensic Sciences- the Drager Device. He may event interview first responders and witnesses to the crash.  He may retrieve Event Data Recorder information-preserving critical crash data (like speed). If a fatality ensues, an autopsy and toxicology report will be done. All of this is valuable evidence to held you prove your case and obtain a fair recovery.

A good personal injury attorney will give you a free consultation and explain how the cases will proceed, and what to expect when you receive a subpoena for the criminal trial. That’s right there are two cases- the criminal prosecution and the civil case for money damages. Both involve the same facts but both involve differing burdens of proof, different law, and quite different legal dynamics. A good attorney can help you navigate both.

WAS THE DRIVER INSURED?

Usually the Accident Report will have this information. However, if it is missing you can always have your attorney check on this. If the driver is insured that’s’ great. However, in many instances the driver will have minimal coverage in Alabama- $25,000 per person, and $50,000 per accident. So what happens if your damages exceed the policy limits of the driver who injured you, or if the driver who injured you had no insurance at all?

DO YOU HAVE UNINSURED/UNDER-INSURED COVERAGE (UM Coverage)

This is the coverage part of your auto policy you probably know the least about, and yet is the most important coverage you own insurance can offer you. STOP RIGHT NOW and check your policy to see if you have UM coverage. If you do not, buy it now. If you have UM coverage, your own insurance will pay for all damages (other than property) reasonably related to the accident. So if the DUI driver who injures you has no insurance coverage, you would make a UM claim under your own auto insurance policy. The same goes for any injuries you suffer above and beyond the policy limits of the DUI driver who injured you.

If you are seriously injured by an uninsured driver, and you are out of work with no income coming in or drastically reduced, uninsured or underinsured motorist coverage is critical to providing that safety net for otherwise crippling medical bills. TALK TO YOUR AGENT NOW and confirm you have it or get it.

One other point, Alabama UM law does allows what we call the stacking of insurance coverage.  You are allowed to stack 3 cars on one insurance policy. That means that if you have three vehicles with $25,000 in UM Coverage you can stack them to reach $75,000 in UM coverage if your injuries or the nature of the case warrants it. It should be noted that you can stack an unlimited number of insurance policies if your injuries warrant it.

MEDICAL PAYMENT COVERAGE

Many auto insurance companies offer Medical Payment Coverage (MedPay). This is great for those of you injured in an automobile accident (regardless of who is at fault) and either have no medical insurance to cover medical bills, who have out of pocket expenses (co-pays and procedures/tests  either not approved by your healthcare provider or only partially paid by your healthcare provider). Medical payment coverage extends generally to the policyholder, passengers, or a member of the policyholder’s family. This coverage applies if you are riding in another person’s vehicle, using public transportation, or even walking across the street. Here is good explanation of MedPay coverage on State Farm Automobile Insurance Company’s website.

WANTON/PUNITIVE ASPECT OF THE CRIMINAL DEFENANT WHO HARMS YOU

The attorney you consult will explain to you that juries and judges tend to compensate victims more when they are injured by the reckless or wanton conduct. In the above example of the DUI driver who slammed into the school bus, it appears a good claim may be made for wantonness. The driver was arrested for DUI and had a prior history of DUI conviction. Additionally, a closer look at his probation indicates he was ordered to attend and complete a DUI School. DUI school typically involves multiple classes, with each class lasting several hours of instruction on the dangers DUI.

Plus the defendant’s reckless conduct expose at least 20 people to harm, 20 children. A strong case may be made for wantonness and additional damages beyond just your medical expenses and pain and suffering.

Hope this helps.

About the Author:

Matt Green is a solo practitioner who represents personal injury and victims of criminal wrongdoing. He served as a municipal court judge in the City of Mobile and the City of Saraland for nearly a decade.Matt Green Before that Matt prosecuted major felonies, traffic homicides (including drunk drivers who injured innocent victims), and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel.  Matt also defends the constitutional rights of his clients. He may be reached at 251.434.8500 or by e-mail at mattgreenlaw@comcast.net

The Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Local Stories on the DUI Suspect Rear Ending Mobile County School Bus

MCPSS: DUI suspect rear ends Mobile County school bus

 

Yes, even Conservatives have Free Speech Rights

 

Colleges & Universities:  America’s graveyard for the First Amendment?  Witness one university’s war on a conservative in its own Star Chamber.

Student activist Neil O’Brien JOHN WALKER Fresno Bee Staff Photo
Neil O’Brien-Fresno Bee Staff Photo

Continue reading Yes, even Conservatives have Free Speech Rights