Episode Transcript
[00:00:00] Speaker A: Foreign.
[00:00:05] Speaker B: Hey, everybody, it's Lacey.
[00:00:07] Speaker A: And I'm Lauren.
[00:00:09] Speaker B: And welcome back to another episode of the Llamas Podcast.
[00:00:13] Speaker A: So in today's episode, we are going to talk about how to survive the holidays without getting arrested, going to jail, all those fun things. And so if you want to hear more fun topics like that, please make sure you subscribe and follow our podcast so you can keep up to date. And like always, we're going to start today with a question. And this time, I think this question we got relates more to Lacey than me. So here is the question.
If I have a criminal case and it gets dismissed, can I sue for, like, wrongful prosecution? Can I sue for damages? Attorneys fees, Tell me about that.
[00:00:52] Speaker B: So, yes, you can. But logic, like, logistically speaking, it's very hard. So. And the reason for that is civil cases like personal injury, think of car wrecks and stuff like that, they typically make their fees off damages, right? So however much damages, however much they get from the insurance company to make their client whole, they take a third, and that is their fee as the attorney. So that's how civil attorneys make their money. So when you file a lawsuit, if your criminal charges dismissed, then you are in civil court because you are seeking monetary damages in criminal court, a lot of criminal attorneys, they either charge by the hour or flat fees per charge. But like I said, a civil attorney is going to get their money based on the amount of damages that you have, how much they can recover, and take a third of that. So one of the reasons it's so hard to sue if your criminal charges dismissed is typically, we don't see a lot of damages.
I mean, there are definitely exceptions. If your criminal case goes on years and you have multiple jobs that have denied you because of a pending criminal charge, maybe you can prove damages to where an attorney may take your case. But I just think, like we were saying with the family court question, remember, always get a lawyer. If you're going through a divorce, we always recommend getting an attorney. So this is another situation where it would be really hard to navigate the court process without an attorney. But a civil attorney most likely is not going to take your case unless you have significant damages from that pending charge.
[00:02:44] Speaker A: And kind of to add on to that, in the civil world, a lot of us will do hourly, but in all reality, with litigation, that's like, a lot of times in the business world, we're asking for things like injunctions and things like that. So there are no damages. We're seeking a contingency fee for, but we're doing it hourly. And litigation is expensive when it's done hourly because you're looking at filing fees, motions. I mean, realistically, even simple cases are 5,000 plus in fees. And most the time we're going to ask for a solid retainer up front because if not, you may never pay us. So even if they're willing to take your case and not do it contingency, if you're going to be paying hourly, you're going to have to have a lot of money out of pocket. And in the civil world, there's obviously no world can we guarantee results. But you could be out of $5,000. And you know, a jury may not see your side or a judge. No matter how great your attorney is, you can't make a jury or a judge always do what you would like them to do. So you could still lose and be out of a lot of money if they're not going to take it contingency. So it's really hard sometimes on those cases.
[00:03:59] Speaker B: On the civil side, yeah, I do know of one case and he practiced law here for a little bit, but from what I heard, he was arrested for disorderly conduct in Five Points, which is if you're not from the Columbia area, it's where a lot of college students go. It's a bunch of bars on a certain street.
So he disputed the case, of course, but when he was arrested and put into jail, I don't know if I'm assuming Alvin Es Glenn, his cellmate, died by suicide in front of him. So once he got the case dismissed, from what I was told, he did file a lawsuit and was successful there. I don't know how much money or anything, but he had significant damages emotionally from witnessing that and his charge was dismissed. And I think they were able to prove that he was innocent as well and not guilty of that crime. So those are the types of damages that an attorney would most likely be looking for when taking a case like that. And I believe to this day he still has PTSD and emotional damage from what he experienced that night in jail. So it's not saying that it can't happen.
Certainly there are certain situations. I know Patrick McLaughlin. You could probably Google him and find some of the cases that he has taken in similar situations. But so. So it happens. But I just think sometimes it's worth it just to be grateful that your charges dismissed and move forward in life.
[00:05:38] Speaker A: Yeah, I would say, like on the civil side of things too, it is like in that case, the emotional damages, so you can get damages for Emotional distress. But his cellmate committed suicide. That's a very stressful situation. But just I had to go through court is typically not going to be enough.
[00:05:58] Speaker B: Right.
[00:05:59] Speaker A: It has to be something intense like that. Or, you know, maybe you did get denied a lot of jobs and the only reason was. But for these false charges, because it is emotional distress is just really hard to prove.
[00:06:15] Speaker B: Yeah, agree.
So, moving on with our topic of the day, how to not get arrested at the holidays, I wanted to ask.
[00:06:26] Speaker A: So, Lacy, I kind of thought about this. I want to take you into like a fact pattern like we did in law school, and see your thoughts would be on like maybe two different situations and see how you would answer those.
[00:06:40] Speaker B: She didn't give me a heads up she was doing this at all, by the way. Anyone listen. Putting me on the spot.
Okay.
[00:06:48] Speaker A: I've been at a holiday party with me and my friends. I have had one glass of wine and I ate dinner with this. Like, I had cheesecake. I had. So I'm not. Do not feel drunk in the least bit. One glass of wine for reference. I'm five feet tall and I'm not going to tell you my weight, but I'm pretty sure I could handle one without being considered drunk. So I had this one last time. I'm driving home, I get pulled over. The cop asked me to get out, take a sobriety test, blow all that stuff. What do I do? Because I know I'm not drunk, but I've heard so many horror stories on these sobriety tests. What. What would you, in this hypothetical think about doing?
[00:07:35] Speaker B: So I would absolutely refuse field sobriety test, first off. So even though I've only had one glass of wine, I still would not do field sobriety tests because there's so many factors that could go into play. Right. So one thing I think about is over the holidays is typ. Typically colder. And if you've been to a holiday dinner party, it's probably nighttime, so you're going to be shaking and cold. And. And I have seen officers write down clues and field sobriety tests because they're saying it's impairment when reality. You're cold and you're moving and you're shivering. So for example, and nervous as well. So just think about. Let's think about two. Specifically the walk and turn and one leg. Stand Right. The walk and turn. You have to walk nine steps, heel to toe, turn around, come back nine steps and count.
What shoes are you wearing? Are you going to take your shoes off and be barefoot? Did you wear socks? Are you on gravel? Are you on the road? All these things can go into consideration. They may write it down as a failed clue and the prosecutor's watching the video and it looks like you're swaying when reality, you're shivering so can't walk.
[00:08:44] Speaker A: In heels like me and your feet are hurting.
[00:08:47] Speaker B: So yes. So I would not do filled sobriety test. And at that point I would have them, they would then take you into custody. So you will be placed under arrest and taken to give a breath sample. I also do not fully trust the data master machine. And this is only if I know for a fact I've had one glass of wine. Okay, so let me just stress that out. Two, it changes. But if I know I've had only one, I don't have any other drugs in my system because I don't do anything else. At that point, once they advise me of my implied consent rights, I would request a blood test. A blood test is the most accurate test for alcohol. But also what's going on in my head is how that adds time for my body to process the alcohol that I did have. So once you are taken to the data master room from when you were arrested, that's probably about half an hour. You're thinking, so your last drink now has probably at least been an hour, hour and a half. So your body is processing that alcohol out of your system with time. And so once you get to the jail and they read your imply consent rights, you can wait, you get a 20 minute observation period. I'd probably wait 10, 15 minutes. And at that point say I want the blood test. And at that point they are required to take you to the hospital for a blood draw. And then I would have a blood draw and consent to that once at the hospital. The reasons behind that are if you absolutely refuse everything, it's a license suspension, which I do advise eating the license suspension and taking it if you're at a risk of being impaired. But if I've had one glass of wine and I know for a fact I am not impaired and I'm not going to be over a 0.08, then I don't want that license suspension. I'm not going to want to deal with that extra process. So that's why I would not refuse completely all tests. So once I consent to the blood test and they take you to the hospital, that's more time. So you got to think they have to do it within three hours of the time of your arrest. And most of the time they're almost at that three Hours. So but with travel time and everything. So at that point, I'm thinking, you know, you're probably haven't had a glass of wine in about four hours at this point. You know, three and a half, four hours, depending on how fast they. They get it done. And if it happens to be outside that three hours because they didn't get you to the hospital to get it drawn fast enough, it can't be used as evidence against you, no matter what the number comes back as. And you also get to keep your license because you didn't refuse any tests. Your license isn't suspended for refusing field sobriety. It can just be suspended if you refuse the breath test and blood test.
So that's why if I had one glass of wine, just one, I would not do field sobriety tests. I wouldn't be comfortable in myself. And I've practiced those tests. I still would not be comfortable in that. But I would refuse the breath test and then request the blood test at the hospital, because then you would get to keep your license because you didn't refuse the test. And if it does come back over 0.15, they can later suspend it, just so everybody knows. But in that instant moment, they're not gonna be able to test the blood. It takes a couple months for that to come back. So with that, that's what I would do.
[00:12:12] Speaker A: That is crazy. I figured it was like, you know, an hour or two.
[00:12:17] Speaker B: No, no. They have to send it off to sled.
[00:12:19] Speaker A: Wow.
[00:12:20] Speaker B: It's like a kit. Yeah.
[00:12:22] Speaker A: Is make sure you understand what a glass of wine is. And a serving is. Because if you're out and you have a big wine, like say you're at a party with your friends and y'all are pouring your own glasses. If you fill up a cup this big, have one glass of.
[00:12:37] Speaker B: One glass, three.
[00:12:39] Speaker A: And this is sweet tea. This is not any intoxicating substances. Even though this probably does not have the best effect on people with caffeine and all. But I would just make sure you understand what it is, because one can easily be two when you're pouring your own. Yeah. And knowing, you know, it wasn't just that one glass.
[00:12:59] Speaker B: Right. So that's what I would do if it was just absolutely one serving size glass of wine.
[00:13:08] Speaker A: Okay. So I have one more fact pattern to go through, and we're taking it out of the dui. Let's think about cdb, criminal domestic violence in this case.
So we know the holidays are stressful. Honestly, a lot of people, I think, do get arrested for CDVs. A lot of people die during the holidays. I know that's surprising. But a lot of people have heart attacks and it's just a stressful time. Emotions are high. So there's this. Maybe there's this situation and I'm the wife and there's a husband and we're fighting and he does not hit me, but I am pissed off at him and I call the cops and say he did. Because we all know this does happen. We're not saying victims or liars, but this does happen. Sometimes I'm the husband, the cops get called, it's Christmas Eve. What do. What happens? What, what should I do?
Will I go to jail all night on Christmas Eve?
[00:14:06] Speaker B: Most. It's so hard to go by, Right. But this all goes by law enforcement, right? So.
And I'm gonna throw some different fact patterns and add some facts in there, right? So when a victim says something, this is. I get this all the time. Well, they have no evidence. They have no evidence. It's just what she said. Well, guess what? What a wife says in this fact pattern is evidence. It is up to law enforcement officers to determine whether or not that evidence is credible to where it amounts to probable cause. And I think when they come out, they're going to take different things into account when determining whether or not her allegation can be substantiated. Right? So once cops get there, they're of course separate the parties, that's very normal. And talk to them separately. The. If the wife stands by her story that her husband struck her, then they are going to say, do you have any marks or injuries? So in this fact pattern, if by what you're saying, she wouldn't because it didn't actually happen. So they're going to look at that. Another thing they are most likely going to look at, is anybody intoxicated? You know, is anybody drinking? Is alcohol a factor here?
Another thing that they should look at, they don't always look at, but is call into dispatch and see if anything comes back on either party. So, for example, have they been called out there numerous times? Are there numerous allegations by one party saying the other has committed an act of violence of them or arguing or anything like that?
Some law enforcement officers, and this goes for any jobs, right? Attorneys, doctors, teachers, Some law enforcement officers, just like in any typical job, are lazy. They're lazy. And if it's easier just to take them in and let the prosecutor deal with it afterwards and sort it out and determine whether or not this person's guilty, they may arrest the husband and take him into custody, and he would be in jail that night and be able to bond out the next day and then fight the allegations against him. But if an officer is doing his due diligence, it really depends. There have been situations, of course, not my cases, because my cases, when they come to me, they've been charged.
But I have heard, you know, friends of friends where police were called because of arguments, allegations were made, and officers said, hey, separate for the night, you know, so my advice to the husband would be, if you get that cop that does his due diligence and does not believe the wife's statement that she was struck and advises you to separate for the night, do it separate. If law enforcement is called and does not make an arrest, go somewhere else. If you have been drinking, take an Uber, pack an overnight bag and go. Just go somewhere else. Do not come back until the next day. Right. Sleep fresher minds. That will prevail the next morning where you can talk things through.
I would also advise the husband to get a copy of the incident report that they file just in case anything else comes up.
I would also probably, if I was the husband and there was a false allegation of this made against me and I was not arrested, I would most likely put, you know, if we didn't have ring cameras. Have ring cameras. And you do, I would tell your wife, you know, for sure. But invest in the plan where it would record anything, because, you know, I think there would be some trust that would be broken there and maybe alcohol was involved and it's never going to happen again. But it would just make me very nervous just because domestic violence in South Carolina is very sad. We have so many cases nationwide. Deaths from domestic violence is very high in our state. So I do believe there's political pressure from, you know, on police to make an arrest, because if they make an arrest, they can at least ensure that both parties are alive the next morning and there's not an escalation. So I do believe there's a lot of pressure to make an arrest and then sort it out and figure out if it's true or not later.
[00:18:17] Speaker A: Well, that's been very interesting stuff that I wouldn't have known. So I think in kind of wrapping this one up, can you give us maybe just some basic tips for the holidays and trying to, you know, do what we should do and not end up in jail?
[00:18:32] Speaker B: Yeah. Biggest thing that gets people in trouble around the holidays is alcohol. I think more things come from alcohol than marijuana, to be honest. So watch Your intoxication levels if you've had more than one drink, I would almost say, especially on holidays like New Year's Eve, even if you've had one Uber or Lyft, that's going to be cheaper than my fee if you call me for a dui.
But that would be. My advice is watch your alcohol consumption. Know that when you are drinking, if you're with friends or your spouse, emotions are heightened. Right. You can have a lot of fun, but one little argument that's so stupid can just get blown out of proportion.
Recognize that and know that. You know, I can admit I've been in arguments with my husband when I have been intoxicated or he has been intoxicated. And I tell myself, you know, this is silly and it's going to be fine in the morning and I'm just going to go to bed. It might be easier to go to bed because neither one of us are thinking clearly in this moment, Right? And I can't even think. I can think of certain arguments that we've had in the past. Some I can't even remember facts for.
No violence occurred. You know, just verbal arguments. I know a lot have been over football and it's so silly, but that's what alcohol does. So, you know, if there's an argument one of you, it might just be best to walk away and just go to bed and know that, you know what, I could be making this worse because I've been drinking and vice versa. So I would definitely advise to watch your intoxication levels.
And, you know, I feel like that goes. I mean, I feel like most allegations, even involving alcohol, are just so, so isolated and just one party could have just walked away and it would have diffused the situation. So just know when to walk away and you've had too much and just watch your impairment.
[00:20:30] Speaker A: And I would say one tip for me, just in general, from what I've seen in the different courts, like probate, even civil court, is be careful what you put on your phone during that time. Be careful what you put on Tik Tok or social media, Snapchat, all of that, because this can come out in court cases. So be really careful what's there, because once it's on the Internet, it might be admissible in your case.
[00:21:00] Speaker B: Yeah. And add one more thing, you know, one thing of this job. Yes, we do see false allegations, but we also see true victims. And I'm a child of domestic violence, which means that I witnessed a lot of that in my childhood. And that too ramps up around the holidays. So if you're listening to this and you are a victim of domestic violence, with the holidays coming up, we encourage, you know, each of you to reach out and seek help and try to find a way out.
You know, no one deserves to go through something like that. So if you are a victim and you're going into this in the holidays, I just wish safety on each of you, and I hope and pray that you find a situation where you can get out of those circumstances. And. And I think, you know, there's so many resources online that I encourage you to reach out to to seek help and, you know, seek a new chapter in your life without violence.
[00:22:05] Speaker A: That is definitely true. There are a lot of resources available for people, and a lot of times we don't know about those. So I think that is a great point, and that will wrap us up for the day, I believe.
And we'll be back again soon. And, Lacey, do you want to wrap us up?
[00:22:25] Speaker B: Yeah. So we wish everybody a happy holidays. Be safe, make good choices, and don't forget to subscribe to our podcast channel, follow us on Instagram, and do all the things that you know to do with social media so you can find our new episodes and follow our lives and where we go next. Bye.
