<![CDATA[Sheboygan Criminal Defense Blog]]> tag:www.kirkobear.com,2013-03-21:/blog/82353 2019-08-14T19:13:50Z Movable Type Enterprise <![CDATA[High school students face sexting enforcement]]> tag:www.kirkobear.com,2019:/blog//82353.3811106 2019-08-16T19:13:00Z 2019-08-14T19:13:50Z Police officers were called to Pewaukee High School in southeast Wisconsin at least once a week over the last few years because of alleged "sexting" among students. However, the state does not have laws addressing these types of sex offenses and, as a result, the Village of Pewaukee adopted an ordinance to combat this behavior.

Sexting usually occurs between two consensual people. However, relationships end and one of students in that relationship may share that sexually explicit photograph with other people. The high school in Waukesha County has 800 students. Police were routinely called to deal with teenagers transmitting explicit images of students. According to local police, the volume of calls put a strain on their resources.

]]> The state does not have explicit laws against sexting. Instead, law enforcement officials utilize Wisconsin's child pornography laws, which criminalizes the possession or viewing of a visual depiction of a child engaged in sexual conduct.

Being prosecuted under child pornography laws, however, exposes minors to possible prison sentences and registering as sex offenders. Registration as a sex offender can cause a lifetime of psychological and traumatic stress because registration can impose barriers on employment, housing and education.

Students in grades 9 through 12 engaged in sexting could face fines up to $628 under the ordinance at issue. It is hoped that this will discourage this behavior without minors facing the consequences of a child pornography conviction. Sexting is unexpectantly prevalent. A 2012 study in Texas revealed that 28 percent of 948 students sent a naked image of themselves while 57 percent claimed that they were asked for one. Hawaii, New York, Pennsylvania and South Dakota are among the states that have anti-sexting laws.





<![CDATA[College sex assault charges are defended on different fronts]]> tag:www.kirkobear.com,2019:/blog//82353.3806880 2019-08-09T14:05:00Z 2019-08-07T14:06:02Z Sexual assault charges are usually pursued in a criminal trial court. But, as colleges deal more with sexual assault or harassment allegations, a legal defense against sex offenses must go beyond criminal law. Charges against a high-profile former Wisconsin Badgers football player has involved Title IX and campus legal procedures.

The 21-year-old athlete will be tried in Madison on charges that he sexually assaulted two students in April of 2018. On August 20, he was charged with one felony count of second-degree sexual assault of an intoxicated victim and another felony count of third-degree sexual assault. He may argue that the sex was consensual and that the victims were not intoxicated, as they claimed.

]]> He was also suspended from the football team last summer, but filed a federal lawsuit against the university to prevent expulsion under Title IX laws before his criminal trial. He withdrew this lawsuit and was expelled last semester for violating the university's non-academic misconduct code.

This case, according to some legal experts, reveals the problem facing accused students fighting a civil Title IX investigation while awaiting a criminal trial. They may face the difficult choice of remaining silent and jeopardizing their civil legal defense or waving their constitutional right to remain silent, which can prejudice their criminal defense. This is further complicated because college officials are becoming more aggressive with undertaking Title IX actions because they do not want a potential sexual offender on their campuses.

In this incident, defense attorneys sought a forensics analysis of the victims' phones. They argued that women provided only some text and social media messages and pictures to investigators and that there may be other messages and pictures that would reveal their intentions when they were at the defendant's apartment during the alleged assaults. The attorneys also claimed that there was activity on the women's cell phones at the time of the alleged assaults.

The judge denied this motion and found that it was an unlimited and vague attempt to search for information. But, he also approved a defense request for the testimony of the rape crisis center volunteer who spoke to one of the victims. The counselor-victim privilege did not govern the police interview because the counselor may have guided questions and answers during that interview.




<![CDATA[Synthetic fraud crime under surveillance]]> tag:www.kirkobear.com,2019:/blog//82353.3795631 2019-07-26T14:28:00Z 2019-07-24T14:29:27Z The growing interconnectivity in our economy and new technology has led to expanded federal law enforcement activities. The Federal Reserve recently issued a whitepaper discussing synthetic identify fraud and identified it as the most rapidly growing type of crime in the United States.








<![CDATA[Top five computer crimes]]> tag:www.kirkobear.com,2019:/blog//82353.3789498 2019-07-21T22:00:00Z 2019-07-11T21:20:34Z Any illegal activity that is conducted through digital technology is a computer crime, often known as cybercrime. Computer crimes pose a growing threat to Americans. Last year, over 70% of U.S. citizens said they were afraid they could become a victim of cybercrime. Nearly 30% of citizens said that they had already been affected by data breaches.

In order to protect your data, you should know the top five most common cybercrimes.

]]> 1.   Computer virus. Computer viruses, known as malware, are the most common type of cybercrime. Viruses are electronic systems that are designed to ruin your device. This virus may be used to take control of your computer, tablet, phone, or other devices, giving the criminal full access to any of them. A virus could ruin your device causing it to shut down permanently.

2.   Data breaches/identity theft. Your data could be compromised through a data breach, giving the criminal everything they need to steal your identity. If a cybercriminal accesses your address, phone number, birth date, social security number, or other personal information, they may be able to open accounts in your name and access your money.

3.   Credit card fraud. In addition to traditional credit card fraud, there is electronic fraud. Credit card fraud can occur even when your card is not present. If you enter your credit or debit card number on an unsecured website, a cybercriminal may hack your account.

4.   Stolen passwords. A cybercriminal may have access to your bank account, credit card number, social security number and other personal information if they know or guess one of your passwords. Sharing passwords or having passwords that can be easily guessed, put you at a higher risk of crime. In addition, forgetting to log out of your account or saving your password on your computer makes your account easier to hack.

5.   Phishing. Phishing is a crime that uses encrypted links to gain information. Phishers send out thousands of enticing emails with hopes that you will click on the encrypted link. Once the link has been clicked, the cybercriminal has full access to your device and all the personal information it holds.

If you understand how cybercriminals get access to your information, you may be armed to protect yourself against cybercrime. The first step in protecting your data is being aware of the threat.

How do cybercriminals get caught?

Cybercriminals are especially difficult to catch because they can access your information for any location. What some computer criminals don’t know is that investigators can often track them using their IP address. An IP address is an electronic footprint that follows the hacker’s device and network wherever they go. All devices have IP addresses.

If the cybercriminal has found a way to hide or change their IP address, making it difficult for the police to find them, they may be caught sending money. Because most cybercriminals are monetarily motivated, they may get caught using your credit card number which should lead to an arrest.

<![CDATA[Supreme Court allows blood test from unconscious DUI suspect]]> tag:www.kirkobear.com,2019:/blog//82353.3789798 2019-07-16T15:18:00Z 2019-07-12T15:19:19Z Police do not have an unlimited right to use testing procedures on suspected drunk drivers. There are constitutional protections against invalid or unlawful tests. However, the U.S. Supreme Court issued a surprise ruling in June that allowed Sheboygan, Wisconsin police to administer a blood test to a driver while he was unconscious.

Sheboygan Police received a report that the suspect appeared to be very drunk and drove away in a van. They later located him wandering around a lake and appearing drunk. He exceeded Wisconsin's legal limit by three times in a field sobriety test and was taken to a police station for a blood test and breathalyzer. He lost consciousness at the station before the tests were administered. Police took him to a hospital and administered a blood test without obtaining a warrant. It resulted in a blood alcohol content of 0.222 percent around 90 minutes after his arrest.

]]> The Court ruled in earlier cases that drawing blood was a significant intrusion into a motorist's privacy and that there were more reasonable methods to obtain evidence for suspected drunk driving. In 2013, the Court held that warrantless blood draws to measure BAC were unconstitutional under the Fourth Amendment. In this appeal, however, the Court upheld the warrantless blood test of the driver. It extended its interpretation of implied consent laws. Under implied consent, drivers agree to rough measurements of their blood alcohol concentration levels as a condition of having a driver's license.

The Court also found that this case fell within the exigent-circumstances doctrine that allows police to obtain evidence without a warrant when it is urgent to act and securing a warrant is impracticable. Because the alcohol concentration in a person's blood will dissipate over time, according to the Court, police could use the exigent-circumstances doctrine in this case.

This ruling may have a national impact on drunk driving enforcement. Twenty-seven other states have implied consent laws. Motorists still possess other constitutional protections, which govern police stops and testing. An attorney can help pursue these rights when a motorist is facing drunk driving charges.

<![CDATA[What are the consequences of drunk driving?]]> tag:www.kirkobear.com,2019:/blog//82353.3760777 2019-06-06T13:47:12Z 2019-06-06T13:46:12Z A drunk driving arrest can have life-altering consequences. Drunk driving defense attorneys may be necessary to combat charges and lessen serious penalties.

Police may stop a suspect and have them perform a field sobriety test or preliminary breathalyzer test. A driver can refuse these tests, but there are consequences for an improper refusal.

]]> Police may request a breathalyzer or urine test from a motorist arrested for drunk driving. The penalty for refusing these tests is a one-year driver's license suspension, two years for the second refusal, and three years for the third refusal. A motorist may request a hearing on their refusal.

A test result showing a blood alcohol concentration level of 0.08 percent or higher will result in a citation, and the driver will lose their license for six months. The driver may challenge the results in a hearing.

A first-time conviction can lead to a six to nine-month license suspension, six points added to a driving record, fines, community service work, assessment by an alcohol agency, compliance with treatment recommendations and restitution. A BAC test result of 0.15 percent or higher will require the installation of an ignition interlock device in the driver's car for one year.

The penalty for a second offense within 10 years requires imprisonment of up to six months, license suspension of up to 18 months, fines, installation of an ignition interlock device, and many of the penalties for the first offense. A third offense includes a mandatory sentence of 45 days to one year, fines based upon the BAC level, license suspension of two to three years, installation of an ignition interlock device for up to three years and many of the other penalties for the first offense.

Anyone facing drunk driving charges can face an uncertain future. An attorney can help defend their rights.

<![CDATA[Possessing any amount of marijuana in Wisconsin is too much]]> tag:www.kirkobear.com,2019:/blog//82353.3758566 2019-06-05T13:41:34Z 2019-06-05T13:40:34Z You can visit Wisconsin’s neighboring states and find legalized or recreational marijuana. Unlike 33 other states, however, Wisconsin has yet to legalize either. Maybe someday Wisconsin will join other states in legalizing marijuana for medicinal or recreational purposes.

Until that day comes, it’s a good idea to avoid carrying any amount of marijuana within state lines. Wisconsin views marijuana as a Schedule I substance, which is a fancy way for saying they believe its use has a high potential for abuse and no medical use. Whether you agree or disagree, that’s the law.

]]> Penalties can vary

Wisconsin’s penalties for marijuana possession depend on the number of convictions you have. Possible penalties include :

  • Up to a $1,000 fine and/or up to six months in jail for a first offense as a misdemeanor.
  • Up to a $10,000 fine and/or up to 3.5 years in prison for a second offense as a Class I felony.

You should also know that attempting to purchase or otherwise possess marijuana or substance can lead to these same penalties. Marijuana purchased legally in another state is also illegal to possess in Wisconsin.

Drug charges from other states count in Wisconsin

Even if it’s your first conviction in Wisconsin, a previous conviction elsewhere could land you in significant legal trouble. This is because Wisconsin law explicitly states any other drug or substance-related conviction counts as a prior conviction. It’s especially important to keep this in mind if you have a prior conviction.

Whether you have a prior substance or drug conviction or not, it’s a smart idea to avoid possessing any amount of marijuana in Wisconsin. Many states have legalized marijuana, but Wisconsin is one of the remaining states to have no legalized marijuana. Consequently, possession of marijuana is a serious crime.

<![CDATA[What is honest services fraud?]]> tag:www.kirkobear.com,2019:/blog//82353.3748364 2019-05-24T13:42:44Z 2019-05-24T13:41:44Z Prosecutions of college admissions activities involving celebrity children have focused attention on a surprising crime involving daily and arguably inappropriate conduct with private businesses and organizations. In many cases, federal fraud charges attorneys must deal with an unclear honest fraud services crime.

This offense is related to mail and wire fraud. It is defined as an intentional scheme to defraud including a material deception while using public or private mail carriers or interstate wires which resulted with the derivation of the intangible right to honest services.

]]> Defining these criminal elements has been confusing. However, convictions can lead to imprisonment for up to 20 years.

Cases may include conduct that should be resolved in civil courts or employment actions or other private means. These included taking a standardized test for another student, violating procedures and rules contained in an employee manual, employees accepting gratuities from suppliers selling products to their employers, attorneys having a conflict of interest when representing clients and providing a friend with a copy of a magazine before its release to the distributor and not disclosing detailed expenditure information to an employer.

In one Wisconsin case, an employee was prosecuted under this law for awarding a travel agency contract to the lowest bidder because the prosecutor charged that this conduct violated the state's administrative code. However, this conviction was ultimately reversed by an appeals court.

The law's ambiguity have led to inconsistent court decisions. Some federal courts require charges under related state laws before there can be a prosecution under this federal law. Courts disagree on whether a fraudulent intent is needed instead of an intent to obtain personal gain. Courts also split on whether actual harm or that a misrepresentation must be material.

The lack of a uniform national standard, according to defense attorneys, violated due process rights and is unconstitutionally vague. Critics argue that a prosecutor's views on morality determine whether charges are filed across the county.

A person being investigated for honest services fraud should seek legal representation. An attorney can help protect their rights and mount a defense in these cases.

<![CDATA[US Supreme Court reviews DUI case]]> tag:www.kirkobear.com,2019:/blog//82353.3731916 2019-05-09T18:52:41Z 2019-05-09T18:51:41Z Blood testing is an important tool for police in drunk driving cases. Motorists have certain rights when confronted with testing. But, in a Wisconsin DUI case, the U.S. Supreme Court is trying to determine whether police must seek a warrant to draw blood from an unconscious driver.

The motorist appealed a decision from the Wisconsin Supreme Court that determined that drawing blood from the unconscious driver did not violate the Constitution's Fourth Amendment protections against unlawful searches and seizure. Wisconsin, like 24 other states, has a law that assumes drivers automatically consent to breath or blood tests by holding a driver's license. This implied consent exists law even if the driver is unconscious.

]]> This case came from an arrest in Sheboygan County when the driver's neighbor called police and said that the driver drove away in a van and was apparently drunk and possibly suicidal. According to court documents, he took 40 pills, along with vodka mixed with Mountain Dew. He ultimately testified that he was depressed and suicidal.

After stopping the driver, police took him to the hospital. He became unconscious while on the way, and even though they did not have a warrant, police ordered hospital staff to draw his blood for an alcohol concentration test.

The Court heard oral argument on this appeal on April 23. In recent cases, the Court has restricted police from drawing blood without a warrant and without a driver's consent. It has also disapproved of criminal penalties against motorists who refused to give their consent for a blood draw.

Motorists stopped for drunk driving charges face serious legal issues. An attorney can help assure that their rights are protected and that they can defend against these charges.

<![CDATA[Rape kit testing leads to charges against six]]> tag:www.kirkobear.com,2019:/blog//82353.3719048 2019-04-26T15:39:14Z 2019-04-26T15:38:14Z Sexual assault test kits can be compelling and even decisive evidence in criminal prosecutions. However, everyone who is accused of a crime has the right to a defense, and a good defense means questioning the reliability of the evidence.

The Wisconsin Department of Justice's initiative to analyze thousands of untested assault kits has led to the filing of charges against six individuals in cold cases. A legal defense against sex offenses should consider this type of testing and whether its results are accurate and valid.

]]> Tens of thousands of sexual assault kits remain untested in this country. Reasons for this include the prosecution's decision that the case was too weak to prosecute, or the victims would not cooperate. Since 2014, victim advocacy groups have asked states to analyze these kits to identify serial offenders.

Wisconsin received a $4 million federal grant to test the kits in 2015. According to the tests, there was detectable DNA in 1,605 kits and enough DNA in 998 of those to place in the FBI's CODIS DNA database. From those 998 kits, there were 580 matches to profiles in that database.

The Department of Justice is also working with local police department to review cases. The testing has led to charges against six suspects in Milwaukee, Oneida, Rock, Winnebago and Waupaca counties. The DOJ intends to review the remaining cases with new DNA.

This and other scientific evidence should be reviewed to determine whether it was properly tested or processed and whether it was obtained legally. An attorney can help craft a strong defense against criminal charges and help assure that a person's rights are protected in these cases.

<![CDATA[What is the age of consent in Wisconsin?]]> tag:www.kirkobear.com,2019:/blog//82353.3698882 2019-04-10T19:36:23Z 2019-04-10T19:35:23Z Statutory rape occurs when a person has sex with someone who is under the age of consent. Wisconsin's age of consent is 18. Prosecutions for sexual assault of a minor can have serious consequences.

Individuals who are 17 years old or younger cannot legally consent to participate in sexual activity. In other words, it is no defense that an underage participant agreed to have sex. A person violates the state's statutory rape law when a person has consensual sexual intercourse with a person under 18.

]]> Wisconsin, unlike many other states, does not have a close-in-age exemption. These Romeo and Juliet laws exempt individuals from prosecution if they engage in consensual sex when both participants are close in age and at least one of the partners is under the age of consent. It is possible for two underage participants who consent to sexual activity to be prosecuted for statutory rape in Wisconsin. These prosecutions are rare, however. Wisconsin does have an exemption for married couples, but it covers only spouses who are 16 and 17.

The severity of the offense depends on the specific criminal acts and the age of the perpetrator and victim. Sexual assault of a child first degree is punishable by up to life imprisonment or 66 years in jail, depending on whether it is a Class A or B felony. Sexual assault of a child second degree has a penalty of up to 40 years in prison or a fine of up to $100,000 if it is a Class C felony. If prosecuted as a Class F felony, perpetrators may face up to 18.5 years imprisonment or a fine of up to $25,000.

Individuals facing these charges should seek legal representation. An attorney can challenge evidence and mount the best defense under the circumstances.

<![CDATA[What is wire fraud?]]> tag:www.kirkobear.com,2019:/blog//82353.3683284 2019-03-30T20:56:00Z 2019-03-28T19:41:45Z Fraud charges may be filed for alleged crimes that take place through the mail, telephone and electronic media. Attorneys can help defend against federal fraud charges, including wire fraud. Wire fraud occurs when the defendant uses electronic communications or an interstate communications facility to defraud or obtain money after making false promises or representations to the recipient of the communication.

Convictions for this federal crime may result in up to 30 years imprisonment and fines and restitution. Prosecutors must file charges within five years. Where the fraud involves a financial institution, this period is 10 years.

]]> Prosecutors must prove that a person intentionally and voluntarily took part in a scheme to defraud another person or institution out of money; that this was done with the intent to defraud; that it was reasonably foreseeable that interstate wire communications would be used for the scheme; and that these communications were actually used.

People are most familiar with defendants who use the telephone to make numerous calls to many potential victims seeking money. Criminal cases still involve alleged schemes perpetrated through telephone conversations.

Cases now involve allegations that defendants used the internet to find and contact potential victims. Examples include postings of fake photographs, stories of distress and guarantees of financial windfalls or romance to seek money from the recipient.

Charges of wire fraud can have serious long-term legal and personal consequences. Anyone charged with wire fraud or any other federal fraud offense should seek immediate legal representation to help protect their rights.

<![CDATA[What is embezzlement?]]> tag:www.kirkobear.com,2019:/blog//82353.3667518 2019-03-15T02:45:34Z 2019-03-15T02:44:34Z Employees may be entrusted with finances and other valuable assets. However, an embezzlement charges defense law firm may be needed when employees are charged with stealing these assets.

Embezzlement is defined as wrongfully appropriating funds that were entrusted to a person but owned by another person, business or organization. It is widely known as employee theft, but this crime can also cover other individuals who hold a position of trust within an organization, such as a charity or government authority.

]]> Four elements must be proven in an embezzlement prosecution. First, the parties must have a fiduciary relationship and one party must rely on the other. The fiduciary relationship usually involves the defendant taking care of money, property or another asset for the other party.

Next, the defendant must have acquired the property through this relationship. This is often difficult to prove when cash is involved. Third, the defendant must have taken ownership of the property or transferred it to someone else. Finally, it must be shown that the defendant acted intentionally.

Common examples of embezzlement include a bank teller who keeps deposits, a bookkeeper who takes customer refunds, an attorney using funds from a client's escrow account and a payroll officer who keeps funds that were intended for deposit as employment tax. Retail employees may be accused of taking merchandise, known as shrinkage, or keeping gift cards.

The criminal penalties depend on the amount that was stolen. Penalties may include fines, restitution or even a prison sentence. The employer or other victim may also file a lawsuit against the alleged embezzler.

In addition, charges of embezzlement can cause grievous harm to a person's reputation and career. An attorney should be consulted immediately to defend against these accusations.

<![CDATA[Supreme Court restricts civil forfeiture]]> tag:www.kirkobear.com,2019:/blog//82353.3645778 2019-03-01T01:39:30Z 2019-03-01T01:38:30Z Wisconsin and other states have civil forfeiture laws that allow law enforcement to seize cash, vehicles and other private property that may have been used in crimes, particularly drug offenses. The U.S. Supreme Court, however, unanimously ruled that the Constitution restricts the ability of states and towns to take property involved in crimes. This decision can help a drug charges defense law firm fight this practice.

A criminal conviction or even charges are not required for civil forfeiture. Law enforcement must only submit proof that the property was used in a crime. To seek return of their property, owners must prove that it was not used in a crime or was used without their knowledge. Investigations across the nation revealed many incidents where the property seized was disproportionate to the crime, taken from innocent citizens or targeted by authorities.

]]> This case involved a minor drug offender in Indiana who pled guilty to selling $225 of heroin to undercover police. He was sentenced to one year of house arrest, five years of probation and payment of $1,200 in fees and fines. Indiana law enforcement also seized his $42,000 Land Rover, which was purchased with the proceeds of his father's life insurance policy. The state claimed that it was used to commit the crime.

The Court decided this case earlier this month and ruled that the Eighth Amendment's prohibition against excessive fines is not limited to the federal government. Through the Fourteenth Amendment, this constitutional restriction applies to the states. The Court did not address whether the seizure of the Land Rover was an excessive fine and left that issue to the lower court. However, it suggested that the penalty was disproportionate to the crime and pointed out that the vehicle was worth over four times the maximum $10,000 fine that could have been imposed for this conviction.

The Court also said that all 50 states have constitutions that prohibit excessive fines directly or which require proportionality. However, the Court's decision may have an impact on how state courts interpret these provisions.

The defense attorney for the defendant said that law enforcement will continue to utilize civil forfeitures unless legislatures change these laws. An attorney can help defendants and property owners fight civil forfeiture in court.

<![CDATA[Higher OWI penalties introduced]]> tag:www.kirkobear.com,2019:/blog//82353.3628127 2019-02-15T01:55:52Z 2019-02-15T01:54:52Z Wisconsin motorists may be facing more severe penalties for drunk driving charges. Under one of these proposals, drunk driving defense attorneys may have to now combat some of these charges as criminal offenses instead of civil violations.

Currently, first-offense drunk driving is a civil ordinance violation in Wisconsin. A bill would upgrade this to a misdemeanor that can be punished by up to 30 days imprisonment and a $500 fine. Offenders could petition a court to convert it to a civil violation after five years if the offender does not commit any new OWI violations.

]]> Another proposal, a possible alternative to criminalizing this first offense, would require motorists who receive a citation for first-offense drunk driving to appear in person in court when they enter a plea. If they do not appear, the court would have to find them in default and impose a $300 surcharge.

This may be inconvenient because there are approximately 430 municipal courts around Wisconsin and many of them only transact business for a few hours a week or month and have different schedules. Currently, these first-time offenders for this civil offense can pay their forfeiture by mail or online and do not have to appear in court unless they want to plead not guilty, negotiate a plea or set up a payment plan.

Another bill would require a mandatory prison sentence of at least five years for homicide by intoxicated use of vehicle. Judges could waive this minimum sentence if the person killed was a passenger in the drunk motorist's vehicle and they determined that a lower sentence was in the community's best interest and the public would not be harmed.

Other legislation would require an 18-month prison term for a fifth or sixth drunk driving offense. These offenses currently carry a six-month minimum prison sentence and a $600 fine.

Even existing drunk driving laws have long-term consequences, however. An attorney can help drivers that have been accused of these crimes protect their rights.