Category Archives: Fifth Amendment

Three Years in Prison for Refusing Breathalyzer Test

This is one of the most outrageous articles I have read:

A South Euclid man who became the first person in Summit County to be found guilty of tampering with evidence for refusing to take a Breathalyzer test was sentenced to three years in prison in Summit County Court.

Apparently there is a new law in Ohio that equates refusing the Breathalyzer with tampering with evidence. According to Summit County Prosecutor Sherri Bevan Walsh:

The law is now clear that drunk drivers cannot refuse to take a breath test,” she said in a news release. “It is mandatory, and the jury agreed that Mr. Simin broke that law and deserved prison time. Bottom line: It doesn’t pay to refuse to cooperate. It will increase your sentence.

I can’t figure out how refusing to take a test is the same as tampering with evidence. Especially since we know that these tests are unreliable. I welcome any comments that might help explain what happened to the Fifth Amendment.

H/T: Dane Johnson


Filed under DUI/DWI, Fifth Amendment

Update on Paxton Lawsuit

For the background story on UK ace pitcher, James Paxton, click here.  He wanted to know what the NCAA wanted to talk about. I suspected it was about the draft process and Paxton’s advisor.  According to John Hale at BluGrass Baseball, we now know that:

Paxton is almost certainly under investigation by the NCAA for violating the no-agent rule.

That should come as no surprise based on comments from the Blue Jays interim manager that Paxton’s agent negotiated with the team. If that happened, that was a violation of NCAA rules. With violations come sanctions.

Aaron Fitt of Baseball America speculated last week that Paxton’s best chance to play in the 2010 season would be to admit he violated the no agent rule. Then he would probably receive a suspension of  six games. That’s not an option. The NCAA sanction is permanent ineligibility.

Since writing that, I have learned that the NCAA changed the presumptive penalty for violating the “no agent” rule to permanent ineligibility…. The NCAA has the option to reduce the penalty from permanent ineligibility if there are extenuating circumstances, but don’t expect Paxton to gamble on the NCAA’s mercy. Coming clean about a violation of the “no agent” rule is not a tenable option for Paxton.

What is a tenable option for the UK ace? His lawsuit. He sued the university seeking to enforce his rights of due process under the student code of conduct. Under the code, Paxton has the right to remain silent and his silence can’t be used against him. Fitt also points out that it is unlikely that anyone from the sports agency or the Blue Jays will give a statement against Paxton so there will be no evidence to support any sanctions. Sounds pretty simple to me.

UK’s position on the other hand, is that by failing to comply with the interview, he has violated NCAA rules and therefore, subject to sanctions.

Paxton’s expert points out that UK is missing a huge point. Paxton is not a member of the NCAA. Therefore, only UK can sanction him and can only do so under the code of conduct.

This case looks incredibly similar to a criminal trial. I also want to point out that there has been no evidence produced yet that would indicate that Paxton did anything wrong. Even though this is not a criminal case, I hope that we can all presume him not guilty.

I wish Paxton well. His team opens the 2010 season here in Conway. I hope to see him pitching in the opening game.

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Filed under Coastal Carolina Baseball, Fifth Amendment, Sixth Amendment

Paxton files Reply

James Paxton’s attorneys filed his Reply yesterday to UK’s Response to his Motion for an Injunction. The background of the story is that officials at UK told Paxton he had to interview with the NCAA.  Unfortunately, the officials refused to tell Paxton what the sit down was about. To make it worse, an official from UK told Paxton not to discuss the issue with his parents or his attorney.

Many people would have followed the university’s instructions. Paxton didn’t. He contacted his lawyer who filed suit. UK responded and now we have Paxton’s Reply.

From the Kentucky Kernel:

Paxton’s attorneys believe their client, under the Code, had a right to be informed of the allegations the NCAA had brought against him before asking him to submit to an interview, and that he does not have to submit to an interview if he is not informed of the allegations against him beforehand.

That makes sense to me. If you want a sit down interview to discuss something, tell me in advance. There can’t be any harm in that. For what ever reason UK did not disclose the issue. They did say, however, that Paxton remains on the team. What they did not say, at least initially, was that the university can keep him from playing if he has “unresolved eligibility questions.” I don’t know what that means. He can be on the team but not play? All the more reason to inform him of the nature of the inquiry I would think.

The police do this kind of stuff all the time. Sometimes they call a person up and ask him to come in and talk about something. Sometimes they will even pick the person up and give him a ride. Just to talk. “No, you don’t need a lawyer. We just want to clear something up. We’ll talk about it at the police station.”

Usually nothing good ever happens in those situations.

Still I wondered what all this business was about. Obviously, it had to concern questions about the draft process. Players are allowed to consult with advisors, but the advisors are not allowed to contact the team. Simple enough; it happens every year.

The problem could be with Paxton’s advisor, Scott Boras.

According to an Aug. 18 newspaper article included in UK’s 87-page response, Toronto Blue Jays interim president Paul Beeston said Boras negotiated with the team after Paxton was taken with the 37th overall pick in baseball’s 2009 amateur draft.

Well, now we know at least part of what the NCAA wants to talk about. UK put it in the court pleadings. I wonder if they also put in the reason they simply didn’t tell Paxton before he filed suit.

Usually something good always happens when you have a lawyer.

One of Paxton’s lawyers, Richard G. Johnson, told the Kernel in a phone interview on Dec. 4 that neither Paxton nor Boras can be forced to disclose whether Boras negotiated for Paxton, because it would be a violation of the attorney-client privilege.

We could find out soon. The next court date for the case is set for Jan. 15, 2010.

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Filed under Fifth Amendment, Sixth Amendment

Tiger Woods Hires Lawyer

Tiger Woods has hired a criminal defense lawyer according to John Wesley Hall, Jr.:

Every public figure should have one of us on retainer.

From DUI

Just because Woods has hired a well-known and able defense lawyer does not mean that he is guilty or even that he has anything to hide. In fact, a smart innocent person with the means to do so would hire a criminal lawyer when investigated or suspected of any crime for which he or she is innocent.

Should it be national news that the number one golfer in the world has hired a lawyer? Probably not, but it is Tiger Woods.  He is a celebrity and with fame and fortune go gossip and innuendo. And sometimes, questions from the police.

Good advice from Mr. Hall. Bravo to Mr. Woods. I am not the first to say this, but here I go. Whether rich and famous or poor and unknown, no one should ever talk to the police without a lawyer.

It happens too many times. A person is a suspect and for whatever reason he or she decides they can get it cleared up without a lawyer. It almost never works out the way that person thought it would. It is far better to hire a lawyer and let the public think that you are guilty than to go it alone. The innocent person that goes alone is usually the innocent one that is convicted.

I look forward to a time when the public does not presume a person guilty because he or she hired a lawyer before questioning.  I hope for a time when the public simply thinks that the person who did not is an idiot.

I would also like to add to the dui attorney comments that even though a person may not have the means to hire a lawyer, he or she still has the right to remain silent and not answer the questions. Hopefully, he or she even has the right to a lawyer.


Filed under Fifth Amendment, Sixth Amendment