News Interview – 8/1/17

One of the most important things I have learned as an attorney is to reserve judgment when you read a news story until you have more information.  Informing the public regarding current events is a valuable service the media provides.  However, people’s lives can be drastically affected by one story.

Please remember that criminal charges are not convictions.  One of the cornerstones of American democracy is the freedom of the press.  But, one of the cornerstones of the American justice system is that every individual is presumed innocent.  It is the burden of the government to prove beyond a reasonable doubt that an individual is guilty of a crime.  All too often, in my experience, the “court of public opinion” forgets that part.

For example, recently, I was interviewed regarding a client’s case.  The case involving allegations against Kathryn Navrides has garnered a lot of media attention.  Unfortunately, people tend to jump to conclusions based on soundbytes and incomplete information, and I have seen a lot of negative public reaction to reports on the case.  Although I will not comment on the specifics of an ongoing case, I can say that I think the premature judgment that I have seen is unfair.  As always, there is more than one side to the story.

The video including my interview was posted by KSNV Channel 3 in Las Vegas, and the entire article can be found by clicking here.

 

Domestic Violence Not Guilty Verdict – 9/27/17

The Alleged Crime:  My client was charged with one count of Battery Domestic Violence, a misdemeanor.

The Evidence:  The alleged victim claimed that her then-boyfriend and father of her child grabbed her arm and pushed her to the ground in the driveway of the house where he was living.  When she reported the incident the next night, the police took her statement and photos of her injuries, but did not further investigate the incident.

The Trial:  I cross examined the victim regarding her version of events and was able to show that she had at least four different versions of her story.  For example, on direct examination she claimed that she went home after the incident, where her brother called police about an hour later.  In fact, I was able to show that she did not report the incident to police until over 24 hours afterward.  I was also able to get her to admit that she probably made physical contact with my client first. No evidence was presented that my client pushed the alleged victim to the ground.

In addition, I called two witnesses to testify on behalf of my client.  One of the witnesses saw the alleged incident, but explained that he saw my client grab the alleged victim’s arm only after she swung at him, and only in self-defense.  His testimony came off as credible because he admitted that he felt both parties were in the wrong.  The other witness explained how the alleged victim stayed at the house for several hours after the incident and had no visible injuries at that time.

The Defense:  It was our position that my client acted only in self defense.  When arguing self defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self defense if any evidence of self defense is provided.

The Outcome:  My client was found not guilty of all charges.

What You Need to Know About “Legalized Marijuana” in Nevada

Recreational marijuana became legal in the state of Nevada, but that doesn’t mean that there are no limitations.  The area of law surrounding “legalized marijuana” is still complicated.  Here are some things you should know:

  • You must be at least 21 years old to possess marijuana (unless you have a valid Nevada medical marijuana card)
  • You may possess up to one ounce (1 oz.) of marijuana or 1/8 ounce of concentrated cannabis for personal use only
  • You may only possess or use marijuana in a private residence – no public consumption!
  • “Possession” can be constructive or actual possession
    • actual possession is having or carrying it on your person (like in your pocket or a bag you’re carrying)
    • constructive possession means it is in your dominion or control (like in your backpack that is sitting near you, or like keeping it in a place you have control over, for example your bedroom or your car)
    • the same item may be possessed by more than one person at the same time (for example, if it is kept in the common area of an apartment or home)
  • It is not legal to buy marijuana unless you do so from a licensed dispensary
  • It is legal to grow your own marijuana, but only under certain strict limitations
  • It is still illegal to possess more than one ounce (1 oz.) of marijuana or 1/8 ounce of concentrated cannabis
  • It is still illegal to possess marijuana or concentrated cannabis “for the purpose of sale” (law enforcement and prosecutors utilize a number of factors to support a conclusion that possession is with the intent to sell, including things like proximity to scales, presence of small baggies, owe sheets, and cash in multiple denominations)
  • Selling marijuana is illegal unless you do so appropriately from a licensed facility
  • You should think of marijuana more like alcohol and less like a cigarette when it comes to the law:
    • Do not consume marijuana while driving.
    • If you have marijuana in your vehicle, make sure it is in a sealed container that is not within your reach and is within the legal amount for possession.
    • Providing marijuana to minors, or making it accessible to minors is illegal.
  • You can be charged with DUI (Driving Under the Influence) for driving or being in actual physical control of a vehicle while under the influence of marijuana (NRS 484C.110) on a public roadway
    • You may be charged and convicted of DUI if you have consumed marijuana to any degree, however slight, that renders you incapable of safely driving or having actual physical control of the vehicle.
    • In Nevada, you are per se above the “legal limit” for marijuana while driving if a blood test properly taken shows that you have an amount equal to or greater than 2 ng/ml of marijuana or 5 ng/ml of marijuana metabolite (or a urine test properly taken shows you have an amount equal to or greater than 10 ng/ml of marijuana or 15 ng/ml of marijuana metabolite) in your system.  This is a similar concept to getting a DUI for having above a .08 blood alcohol content.  Even if you are driving “safely,” it is still illegal to drive or be in actual physical control of the vehicle with these levels.
    • Marijuana metabolite is a chemical your body produces after you have consumed marijuana.  Depending on how much and how often you consume marijuana, the metabolite can stay in your system at levels over the per se amount for several days or even weeks.  For example, I have seen individuals who are regular marijuana smokers have blood test results showing metabolite levels near or above 200 ng/ml, which is well above the legal limit of 5 ng/ml.
    • Although research shows that the metabolite levels don’t indicate sobriety or intoxication, the law in Nevada still criminalizes driving with metabolite levels outside a certain range.
    • What this means is that it is possible for a person to be charged and convicted of a marijuana DUI in Nevada even if the person has not recently consumed marijuana and is no longer “high.”
  • Employers can still drug test you and, depending on their policy, you could get in trouble and/or fired for testing positive for marijuana
  • If you are on probation or have an open court case, you should be careful to find out if possession or consumption of marijuana could violate the Court’s orders.  Even though recreational marijuana is legal, courts can still prohibit you from possessing or using it in some situations (like they can with alcohol).
  • Landlords, HOA’s, etc. can further regulate marijuana
  • Municipalities can further regulate marijuana
  • Possession of marijuana is still illegal under federal law
  • Convictions related to marijuana could have a negative impact on things like immigration, obtaining federal student aid, and obtaining employment

It’s easy to get excited about the new legal status of marijuana in Nevada, but it’s also important to know your rights and the law. As you can see, legalizing marijuana doesn’t mean you can legally possess or use marijuana whenever and however you want.

If you are charged with a crime, please contact Anderlik Law, Chtd. for a free consultation.  We have experience in defending clients in cases related to marijuana and other drug possession, sale, and DUIs, and we can help you with your case.

The above post is not meant to be an exhaustive explanation of all laws and legal implications and is not legal advice.  No lawyer/client relationship is created by reading this post.

Domestic Violence Not Guilty Verdict – 9/11/17

The Alleged Crime:  My client was charged with one count of Battery Domestic Violence, a misdemeanor.

The Evidence:  The alleged victim claimed that his then-girlfriend struck him.

The Trial:  After cross-examination of the alleged victim, I was able to show that his testimony was not credible.  There were no other witnesses presented at trial.

The Outcome:  My client was found not guilty of all charges.

Murder Case Resolved – 8/3/17

“Kellie Phillips, now 40, stood before District Judge Douglas Herndon on Thursday in a nearly empty courtroom with tears welling in her eyes, then whispered “guilty” to both charges, which carry a prison sentence of between 10 and 25 years.”

August 3, 2017 – 6:36 pm
The full article containing the above excerpt can be found by clicking here.

The Alleged Crime: The client and her co-defendant were charged with several felonies, including First Degree Murder, Second Degree Murder, and Child Abuse and Neglect charges.

The Evidence:  The alleged crimes stem from a complicated set of facts involving the client’s co-defendant.  In summary, the State alleged that the death of a child was the result of abuse and neglect.  Additionally, the co-defendant was charged with sexual abuse-related crimes of which our client was unaware.

The Investigation:  Through investigation, the defense team was able to determine that the client had been the victim of severe abuse at the hands of her co-defendant.  Her actions and omissions were colored by her fear and the level of control that he had over her and the children, as well as her desire to protect the safety of her and her other children. 

The Outcome:  The client accepted a negotiation that allows her to avoid the possibility of a first-degree murder conviction, which could carry a punishment of life without the possibility of parole.  Instead, she agreed to plead guilty to second-degree murder and one count of felony child abuse resulting in substantial bodily harm, where she and the State have agreed to a sentence of 10-25 years in prison.

 

This case is, without a doubt, one of the most emotionally draining and difficult cases I have ever worked on.  What happened in this case was terrible and heart-wrenching.  Yet, it is difficult to know what is fair or right in a situation where the client did not intend for something bad to happen, yet the client’s actions or omissions had such grave consequences.  In the end, I believe that the negotiation is a fair resolution in this case.

Disclaimer: My involvement with this case was not as the lead attorney, however I assisted the lead attorney in preparing the case for trial and discussing the case with the client.

Battery Case Resolved – 7/26/17

The Alleged Crime: The client was charged with one count of (simple) battery, a misdemeanor.  Based upon his situation, it would be possible that a conviction would have negative immigration consequences for the client.  Based upon his prior record, it was likely that a conviction would result in jail time.

The Evidence:  The alleged victim claimed that the client struck him in the forehead by swinging around an object.  Photographs showed an injury to the alleged victim’s forehead which was bleeding at the time police arrived.  At the time of trial, the alleged victim was in court and was maintaining his story when speaking with the prosecutor.

The Catch: Despite the alleged victim’s claims, my client explained to me that he acted in self-defense because the alleged victim broke into his bedroom and tried to attack him.  After speaking with my client and his family, I reviewed evidence they possessed and presented it to the prosecutor.

The Outcome:  Based on the evidence I presented to the prosecutor and the argument I was able to make, I convinced the prosecutor to make an offer that would allow my client to leave custody and to complete requirements to earn a “dropdown” to a conviction of Disturbing the Peace rather than Battery.  This offer allowed my client to avoid risking a conviction of the potentially deportable conviction of battery (so long as he completes his requirements).

Making News

A case that I previously posted about on the blog has been featured in a recent Las Vegas Review Journal article!

You can view the article by clicking on the linked quote below:

“A Las Vegas attorney received five years’ probation Thursday for engaging in a sex act with a client who was jailed at the Clark County Detention Center.”

July 6, 2017 – 6:34 pm
Ben Nadig, my mentor as a criminal defense attorney, worked hard on this case to help the client secure the best possible outcome for his case.  I’m happy to have been able to contribute to achieving that result by authoring a successful motion to suppress the client’s statement when police chose not to read him mandatory Miranda rights.
Holding the State to its burden and holding law enforcement accountable are some of the most important aspects of my job as a criminal defense attorney.  I’m committed to working diligently to make sure my clients’ rights are respected throughout the process, and I’m pleased that this case serves as an example of success in that area.
Disclaimer: My involvement with this case was not as the lead attorney; however, I assisted the lead attorney in preparing the case for trial and drafting the motion discussed in this post.

Anderlik Law, Chtd., is moving!

Anderlik Law, Chtd., will be leaving its first office at 324 South 3rd Street, Suite 200.

Beginning July 1, 2017, the office will be located at:

228 South 4th Street, 3rd Floor

Las Vegas, NV 89101

The updated fax number is: (702) 825-2683.

All other contact information, including phone and e-mail, will remain the same.

Not Guilty Verdicts in Felony Jury Trial – 6/6/17

The Alleged Crimes:  The client faced nine felony counts, including Burglary While in Possession of a Firearm (Category B), Robbery with Use of a Deadly Weapon (Category B), Attempt Robbery with Use of a Deadly Weapon (Category B), and First Degree Kidnapping with Use of a Deadly Weapon (Category A).  The charges included three separate events at three separate locations.  Prior to trial, an Amended Indictment was filed, dropping two counts of First Degree Kidnapping with Use of a Deadly Weapon.

The Evidence:  The State alleged that the three separate events were robberies committed in a series, and linked them by the clothing worn by the suspect in each event.  At trial, the State produced evidence including testimony of several witnesses and surveillance video footage from each event.  As to the first event, the State was unable to produce any physical evidence directly tying the client to the crime.

The Jury Trial:  I worked with another criminal defense attorney, Jess Matsuda, during the trial.  Together, we were able to effectively cross-examine witnesses, including alleged victims, police officers, and expert witnesses such as DNA and Fingerprint Analysts, to show the weaknesses in the State’s case.

The Outcome:  After deliberation, the jury returned a verdict of NOT GUILTY on one count of Burglary While in Possession of a Firearm and one count of Robbery with Use of a Deadly Weapon.  The jury was unable to reach a unanimous decision on the remaining five counts.  Mr. Matsuda’s and my careful preparation, cross-examination, and argument allowed our client not to be found guilty on any of the seven Category A and B felony counts in this case.

Not Guilty Jury Verdict

 

Note: The State has announced its intent to retry the five counts for which the jury was unable to reach a verdict, and a new trial date has been set as to those counts.  Because those counts are still open, I have not included detailed information regarding those portions of the case.  Because the jury found our client NOT GUILTY on two of the counts, the State cannot retry the client as to those counts.

 

Disclaimer: My involvement with this case was not as the lead attorney; however, I served as second-chair at trial, including by assisting the lead attorney in preparing the case for trial, discussing the case with the client.

Successful Motion Leads to Sought Resolution

The Alleged Crime: A client faced one count of a Category D felony.

The Evidence:  The alleged crime was caught on video.  The alleged victim gave a recorded statement to police.  The client was also interrogated by police, which was recorded, but he was not read Miranda rights.

The Motion:  I drafted a motion to suppress the client’s recorded statement based upon the Miranda violations.  Because the client was in police custody at the time he was interrogated, but was not read his rights as required by Miranda and other case law, the State conceded in its filed response that all statements he made after a certain point in the process were inadmissible in court because of the violation.

The Outcome:  Because of the fact that the client’s statements were no longer admissible at trial, the State made a new, lower offer of negotiation to the client, which he accepted.  Now, the State has agreed to probation and, if he is successful, he will not have a felony conviction on his record (also known as a drop down).  My careful review of the record and discovery in this case, even after it passing through several attorneys previously, allowed me to file a motion to protect the client’s rights and push the State to offer the resolution he had been seeking.

 

 

Disclaimer: My involvement with this case was not as the lead attorney; however, I assisted the lead attorney in preparing the case for trial and drafting the motion discussed in this post.