FilAm in deportation wins drunken driving case - with excellent lawyer

by Atty. Emmanuel Samonte Tipon

In the good old days, many lawyers were called “abogado de campanilla” (literally “lawyer with a bell”) who gained their reputation by fighting every case. Today, most lawyers are “abogado de plead guilty”. They do not fight. They surrender – even without reading the police report and interviewing the defendant and potential witnesses. This is especially true where the lawyer is not paid by the defendant, although there are cases where defendants have hired private attorneys who after being paid a big amount – like $15,000 – advise the defendant to plead guilty, saying that they have no chance of winning and can get them a good deal. They do not even tell them about the deportation consequences. These lawyers are reminiscent of Gone With the Wind where Clark Gable sneered at Vivien Leigh: “Frankly my dear, I don’t give a damn.”

A young Filipino with an expired student visa was driving home with his fiancée after midnight on Halloween after consuming a few beers. They came upon a police roadblock. (See my earlier article “Avoiding police roadblocks”). A policeman stopped them and asked whether he had been drinking. He had three choices. Answer “yes,” “no,” or “I refuse to answer on the ground that it might incriminate me.” He answered “Yes.”

The policeman ordered him to pull over and subjected him to a field sobriety test (FST) - breathing into a breath sample device, walking heel to toe, etc. At the precinct, he was subjected to a breathalyzer test showing a blood alcohol level of 0.11 (3 points above the Hawaii legal limit of 0.08). He was booked, detained, and charged with driving while intoxicated. His fiancée bailed him out. Hawaii police don’t need an Arizona-type immigration law requiring police to ask arrestees their legal status. Hawaii police are smarter. They apparently notify immigration authorities where an arrestee’s place of birth is a foreign country and let immigration make that determination

Three immigration agents took him away in handcuffs amidst tears from his distraught parents. He spent a week in Federal Detention Center while we arranged his release on bond. He later married his fiancée so he now has a bridge to America. She petitioned for him and when it is granted he will apply for adjustment of status. His deportation case for overstaying is pending and is expected to be dismissed. A drunk driving conviction could have been a negative factor.

In the drunken driving case, we drafted a motion to suppress the evidence because (1) the warrantless search and seizure of defendant’s person and property was illegal, (2) he was deprived of his Miranda rights, and (3) the police roadblock was illegal. My son, Noel, a lawyer who was a Major in the U.S. Marine Corps and saw action in Iraq, argued the motion in court. The judge granted our motion and dismissed the case.

POLICE STOP WITHOUT SUSPICION OF CRIMINAL CONDUCT ILLEGAL

The police violated the young man’s rights under the Constitution of the United States (4th and 14th Amendments) and Hawaii (Article I, Section 7) guaranteeing that the right of the people to be secure in their persons, houses, and effects against unreasonable searches, seizures and invasions of privacy shall not be violated.

Hawaii decisions hold that warrantless searches and seizures are presumed unreasonable, invalid, and unconstitutional, and that the government must prove that their conduct falls within an exception.  In State v. Heapy, 151 P.3d 764 (2007), written by Justice Acoba, a Filipino, he declared in a similar case that “the purported investigatory stop by the police of defendant’s vehicle violated Article I, Section 7 of the Hawaii Constitution inasmuch as it was not supported by a reasonable suspicion that Defendant was engaged in criminal conduct.” In State v. Kim, 68 Haw. 286 (1985), the court held that a police officer must have cause before ordering a driver out of a vehicle after a traffic stop.

MIRANDA WARNING NOT GIVEN

The young Filipino was not given adequate and timely warning of his right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966).

POLICE ROADBLOCK ILLEGAL

The police roadblock did not comply with the requirements of the Hawaii statutes because no proper advance warning was given, except a press release dated 2 months earlier which did not specify when and where the roadblock would be and was not shown to have been actually published.

PRACTICE TIP. Get an effective lawyer who cares about you, will thoroughly investigate the case and question witnesses, will demand that the police produce all the evidence against your client so he can counter attack, and will go to the library and research the law and precedent decisions.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com, and www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most witty, interesting, and informative radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)