DerryNews.com, Derry, New Hampshire

June 20, 2012

Trash is public property once it's outside

About The Law
Andrew Myers

How do I keep my trash private? I'm involved in a court lawsuit and my trash disappeared before the trucks came and I don't think that's right.

Get a paper shredder. Once trash is placed outside, there's no reasonable expectation of privacy.

It's not a pretty picture, but there have been high-profile divorce cases in which one party grabbed the other party's trash and sifted through looking for evidence which, if otherwise passing the rules of evidence, was admissible in a court of law.

In a California drug case, prosecutors went through a private citizen's trash, found evidence of drugs and, based on that, obtained a search warrant which yielded marijuana and cocaine inside the home. California courts dismissed the drug charges holding the warrantless search through the rubbish violated constitutional protections against warrantless searches and seizures.

But, that's not the law of the land. The U.S. Supreme Court overturned the California courts. The Supreme Court held that it was common knowledge that garbage placed at curbside is "readily accessible to animals, children, scavengers, snoops and other members of the public."

I got pulled over for driving with my lights off. The officer asked me if I had been drinking and I told him I only had a couple, which was true. The police made me get out of the car and do field sobriety tests. I passed, but they still didn't believe that I was not intoxicated. They had me do the breathalyzer and booked me. How do I prove that I was not intoxicated?

The question turns the legal process inside out. You don't prove anything. The burden of proof is on prosecutors to establish each element of the DWI charge. Defense attorneys chip away at the evidence to raise reasonable doubt and that is the short version of the process you face.

More importantly here in New Hampshire, and you didn't ask, is Administrative License Suspension. You more than likely got a pink slip of paper explaining ALS. Many people come to me after stashing the crinkly thin paper away, not reading the fine print that automatically "administratively" takes your license away in 30 days. You have the right to ask for an ALS hearing and hold the officers to their procedural duties, as explained on the back of that form.

Directly answering your question, the only way to really "prove" the negative that you were not drunk would be to hire a toxicologist. If you had an actual blood test at some point after the stop, a toxicologist could draw a time line, calculating what your blood alcohol level would have been at the time the officer stopped you.

Toxicologists use inverse interpolation, a physiological calculation based on body metabolism, weight, age and other factors. The problem here is that the toxicologists I've hired for litigation cost in the range of $3,000 to $5,000.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.