Question Detail: I had an accident. I called the police. They didn’t see me driving but I was taken into custody for driving under the influence. Can I claim that I wasn’t driving and the driver fled?

Answer: Remember that the government must prove beyond a reasonable doubt that you were driving or in actual physical control of a vehicle.  This is usually accomplished through witness testimony.  If they have no witness or the witness can be effectively attacked, that may be one possible defense.  Don’t assume however that if there is a witness that all is lost.  Hire an aggressive attorney to get your best defense.

Question Detail: I received a DUI last Tuesday have never been in trouble in my 37 years less than a year honorably discharged from the Army and I am very afraid of going to jail. I would really like to know what’s going to happen to me here on out. I have a court date on 7 March 2013. What do I do?

Answer: If you have been arrested in Hawaii, you should hire an attorney that will not plead you out and will fight your case all the way.  Try to hire an attorney that is not a “volume” guy that pleads 95% of the cases out.  Hire an aggressive, thorough attorney quickly.

Question Detail: Sitting in the parking lot waiting for my wife to come out.

Answer: The best thing you can do to win a DUI case in Honolulu, is to hire an aggressive attorney that will fight for you and not just plead you out.  The fact that you were on private property and just “sitting” in the car can be used to your advantage provided you hire an attorney that will fight.  Get a free consultation and don’t plead to first time DUI!

Question Detail: Also, do I need a lawyer and is pleading guilty not going to be a good thing?

Answer: In Hawaii there may be other attorneys that tell you that since the alleged BAC is that high you should just plead guilty.  Remember that if you plead guilty you get a conviction and give up your right to appeal.  If you hire an attorney that fights every step of the way, there are countless ways to prevent you from getting a conviction.  Do not necessarily believe that the machine works properly, was working properly that night and that everything else that came before it is not subject to challenge by the defense.  Also remember that the government has the burden of proving you guilty.  Don’t make it easy for them and plead out.  Hire an aggressive attorney to fight for you.

Question: I got a DUI last night, should I get a court appointed lawyer and plead not guilty or own up to my mistake and plead guilty?

Answer: In Hawaii, you should not assume that just because you were arrested that the government can prove their case.  Hire an aggressive attorney who won’t roll over.  If you are committed to not pleading guilty and making the government prove their case, hire an attorney who will fight for you.

Citizens should not be surprised about the government’s approach on this.  As stated in the article, the government does not want you to defend yourself, either with firearms or even in the cyberworld.  Please read this interesting take on defending your own businesses and networks.

Original Posting from Volokh.com

Computer Security: When Seconds Count, the FBI is Years Behind

Ellen Nakashima of the Washington Post has another ground-breaking article on novel approaches to network defense. I’ve blogged before about honey tokens , deceptive files that leave hackers with false data while flagging the intrusion to defenders.  Nakashima’s article suggests that their use is growing, as other defensive techniques prove ineffective:

Brown Printing Co.,…began planting fake data in Web servers to lure hackers into “rabbit holes” in the hopes of frustrating them into giving up. The bait was varied — including bogus user log-ins and passwords and phony system configuration files. Anyone who took it was being watched by Brown, their computer locations tagged and their tactics recorded.

“We’re taking the hackers’ strengths and we’re making it their weaknesses,” said Nathan Hosper, a senior information technology officer at Brown. “They get caught up in this cycle of fake information.”

So far, so good.  What’s sad is the FBI’s reaction, which will be familiar to those who know how big city police departments view homeowners who use guns to defend themselves:

U.S. officials and many security experts caution companies against taking certain steps, such as reaching into a person’s computer to delete stolen data or shutting down third-party servers.

Those actions probably would violate federal law, FBI officials said. The bureau also warns that the use of deceptive tactics could backfire — hackers who identify data as bogus may be all the more determined to target the company trying to con them.

Actually, I’m being too kind to the FBI.  If you call 911 to report a home invasion, at least the police will send someone to your house who is armed and ready to take on the intruder. (Whether they’ll arrive in time is a different question, leading to the familiar saying, “When seconds count, the police are just minutes away.”)

If you call the FBI to report a network intrusion, though, you’ll get a stifled yawn and a request to meet with your CEO for relationship building purposes. Given the government’s feeble capabilities against cyberespionage, discouraging corporate self-help is particularly irresponsible.

Not everything the bureau said was wrong. Shutting down third party servers probably is illegal under the Computer Fraud and Abuse Act. In contrast, I doubt that companies are acting unlawfully when they delete their own files from a hackers’ computer, though I recognize that Orin Kerr has a different view, and the Justice Department may be closer to Orin than to me on this.

But I don’t know anyone who thinks that it violates federal law to deploy honeytokens on your own network.  So when FBI officials caution that using deceptive files that way could make you more of a target, they aren’t giving legal advice.  They’re giving “leave it to the FBI” advice, in a field where leaving it to the FBI is a recipe for failure.

Also, I suspect they’re talking through their, uh, hats. In what way will deploying fake files “backfire”?  OK, fake files may not work forever; the hackers may come back and look harder for the real stuff, but is that really a reason not to deploy them?

Let’s perform a thought experiment: In option A, you don’t use fake files, so bad guys who break into your network steal your data.  In option B, you do deploy fake files, so the bad guys steal bad data, and you find out that you’re a target whose current security isn’t sufficient. After that, either the bad guys are fooled by the bad data and they waste time and money acting on it, or they figure out that it’s bad data and they have to go back and find the real data on a system that you’ve had time to harden. And the FBI thinks that option B is the one that might “backfire”?

(I recognize that it’s also possible that the hackers will get mad about being fooled and will destroy files or take other retaliatory actions that they wouldn’t take if they got the good stuff right away.  But I’m skeptical. First, that’s a big escalation in tactics that we haven’t seen yet from cyberspies, probably for good reason. Second, that would be astonishing advice from a law enforcement ageny, the equivalent of:  ”Better let these criminals steal you blind; otherwise they might burn down the store” or  “Cooperate with hijackers so they don’t have to kill any hostages” or “Resisting a rapist will only get you beaten, stabbed or shot.” If that’s the FBI’s official position on cybercrime, it means they’ve officially given up.)

As a supporter of the Second amendment, while this is interesting, realize that even if firearms, of any sort, were the most used weapon or method of committing homicide, that still doesn’t allow the government to enact most of the firearms laws in place today.  The second amendment protects, at its core, the right to self defense using arms.  That means, to defend one’s self, property, family, home and country, one has the right to keep and bear arms.  Although the courts are still determining the exact contours of this most important constitutional right, various arms obviously must be protected.  Handguns of course are useful in a variety of situations including home defense from burglars.  Before the most recent Supreme Court cases, anti-gunners argued that the Second Amendment pertained to militia use only.  What this implies is that military arms, not military-like or military-style arms, are protected.  This makes sense.  At the founding, the people, who formed up militias, used the most advanced military arms possible.  So, while handguns might be a good option for defending against a burglar, a fully automatic M-16 would probably be better suited for defense against a tyrannical government or foreign invaders, as well as possibly insurrection and riots.  So, despite the numbers listed in the accompanying article, even if the firearms numbers are higher than other methods and weapons used in committing homicides, the government should be powerless to infringe upon the right of generally law-abiding citizens from keeping and bearing arms of their choosing.

Original Posting from Volokh.com

Are Blunt Objects More Common Homicide Weapons Than Rifles?

According to the FBI annual crime statistics, the number of murders committed annually with hammers and clubs far outnumbers the number of murders committed with a rifle…. [For instance, i]n 2005, the number of murders committed with a rifle was 445, while the number of murders committed with hammers and clubs was 605….

I’m not sure this is right, for a simple reason: The FBI statistics also include “Firearms, type not stated,” which suggests that not all rifle homicides are labeled as such in the FBI data:

It thus seems that local law enforcement reports about 13-20% of all gun homicides to the FBI without indicating what the gun type is — likely because this isn’t clear to the coroner (e.g., the wound was made by a bullet that could have been fired either from a rifle or a handgun) and the crime hasn’t been solved, or perhaps just because the police department doesn’t bother to provide the gun type data even if it knows it. We don’t know what fraction of these homicides involved rifles, but it seems unlikely that the fraction is 0%. If we assume that 5% of the homicides involved rifles (following the breakdown between known handgun homicides and known rifle homicides), then blunt object homicides would still exceed rifle homicides. If it’s 20%, for instance if handgun homicides are more likely to be provably identified as such, but rifle homicides are more likely to seem ambiguous, then rifle homicides would exceed blunt object homicides.

It thus seems that local law enforcement reports about 13-20% of all gun homicides to the FBI without indicating what the gun type is — likely because this isn’t clear to the coroner (e.g., the wound was made by a bullet that could have been fired either from a rifle or a handgun) and the crime hasn’t been solved, or perhaps just because the police department doesn’t bother to provide the gun type data even if it knows it. We don’t know what fraction of these homicides involved rifles, but it seems unlikely that the fraction is 0%. If we assume that 5% of the homicides involved rifles (following the breakdown between known handgun homicides and known rifle homicides), then blunt object homicides would still exceed rifle homicides. If it’s 20%, for instance if handgun homicides are more likely to be provably identified as such, but rifle homicides are more likely to seem ambiguous, then rifle homicides would exceed blunt object homicides.

The Breitbart.com article briefly acknowledges the uncategorized guns problem, without noting its magnitude: “While the FBI makes is clear that some of the ‘murder by rifle’ numbers could be adjusted up slightly, when you take into account murders with non-categorized types of guns, it does not change the fact that their annual reports consistently show more lives are taken each year with these blunt objects than are taken with Feinstein’s dreaded rifle.” But the FBI’s reports don’t show this, because they don’t actually give a count of rifle murders — they give a lower bound for such murders (the cell labeled rifles) and an upper bound (the cell labeled rifles, added to the cell labeled “Firearms, type not stated”), and we don’t know exactly where the actual rifle murder count falls.

In any event, I don’t think one can say with any confidence that rifle murders are less common than blunt object murders. I’m generally skeptical of gun control proposals, whether aimed at handguns or rifles, because I think most such proposals will either have little effect on anyone, or would tend to interfere with self-defense much more than they would interfere with crime. But until we have a better sense of what the “firearms, type not stated” category means, I wouldn’t assume much about rifle murder counts.

Marines and Sailors Face Strict Alcohol Rules

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Question Detail: I’m being accused of aggravated sexual contact by my step-daughter. She made these accusations once she got back to North Carolina with her dad and grandmother who hates the fact that the child calls me dad, and harassed me and my wife over making the child stop calling me dad. My wife took her there in December 2011 because she was being deployed in January 2012. It was in July 2012 when my wife returned home for R&R that my step-daughter made the accusations.

Answer: Contact an attorney that does courts-martial.  My office does courts-martial. Do NOT take a polygraph. Do NOT make or provide any statements nor consent to the seizure of any items or access to anything. Invoke your Article 31 rights.  Call the office immediately and set up an appointment and hire a defense attorney now.

Question Detail: I was breathalyzed the morning after I drank and blew a .119. I only had a couple drinks the night before, is it possible that his machine was messed up?

Answer: There are a number of reasons why a Breathalyzer is not reflecting your true Breath Alcohol concentration.  Some of the various reasons why you should not believe the number relied upon by police include the assumptions of the machine with regard to your breath volume, body temperature and other variables.  Additionally, even if the machine was designed properly, and even if it took into account some of the variables mentioned above, the machine must still be maintained and calibrated properly.  It is highly unlikely that the Honolulu Police Department does this, at least based on the many DUI cases I have taken on and won.  You should hire an attorney that will not just take the breath result at face value and will attack each and every part of the government’s case.