Denver Bar Association
October 2006
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Alcohol Test on Lawyer Stirs Mistrial
Breathalyzer used in court

by Glenn Puit

Editor’s Note: You may have seen a shorter Associated Press story in the Rocky Mountain News in August, but here’s the full story. Reprinted with permission, Copyright Las Vegas Review-Journal, 2006.

After a lawyer due to defend a man against a kidnapping charge showed up to court late and smelling of booze last week, a Clark County District Court judge ordered the attorney to take a Breathalyzer test in open court, then declared a mistrial when the test confirmed her suspicions.

In a remarkable exchange captured by the courtroom’s video camera, District Judge Michelle Leavitt ordered defense attorney Joseph Caramagno to submit to the test after she smelled alcohol on his breath.

The result indicated that Caramagno’s blood-alcohol level was 0.075. In Nevada, it is illegal to drive with a blood-alcohol level of 0.08 or higher.

After seeing the test results, Leavitt declared a mistrial in the kidnapping trial of Caramagno’s client, Dale Jakuchunas.

"Mr. Jakuchunas is facing a life sentence, so if you came to court intoxicated, you’ve got a problem," Leavitt told Caramagno.

"I don’t think you can tell a straight story because you are intoxicated," Leavitt said.

Caramagno, in an interview Monday, denied being drunk. He said he was in a car accident on the way to court and suffered a concussion, causing him to appear intoxicated when he was not. He said police were not called to the fender bender, so there was no record of it.

"I wasn’t drunk," he said. "I was ready to go forward."

"I’ve always considered myself the consummate professional," he said. "I take all my cases very personally."

Caramagno is well known in Las Vegas legal circles because he was one of the lawyers who helped secure the acquittal of Rick Tabish on a murder charge two years ago. Tabish and his lover, Sandy Murphy, were acquitted of charges of killing Las Vegas gaming mogul Ted Binion. They were convicted, however, of charges stemming from the theft of Binion’s silver.

On Thursday, Caramagno was scheduled to appear in Leavitt’s courtroom for the first day of witness testimony in the trial of Jakuchunas.

Caramagno arrived about 90 minutes late in the company of a young woman wearing a black halter top and tight pants.

On the video recording, Caramagno can be heard slurring his words, and Leavitt asks him what is wrong with him.

"I’m going to tell you, to be honest with you, you don’t look right," Leavitt said.

He told the judge that his car had been rear-ended by another car on Sahara Avenue, causing him a head injury.

But Leavitt said she became suspicious when details of Caramagno’s accident account varied. Leavitt summoned him and prosecutors into her chambers. During this meeting, the judge said, Caramagno told her the woman who accompanied him into court was his ex-girlfriend.

But when Leavitt questioned the woman, she said she had met Caramagno about 20 minutes earlier at the nearby Courthouse Café and had never dated Caramagno.

Caramagno also referred to the woman as Christine. The woman later identified herself in court as Josephine.

"You told me she was your ex-girlfriend," Leavitt said. "Now I’m very upset with you."

"I apologize, your honor," Caramagno said. "She’s a friend of a friend. I was nervous about coming to court late."

"I don’t want to make this a soap opera, and I apologize," Caramagno said.

"Well, you have," Leavitt told him. "I’ve never seen anything like this in my entire life. You’ve turned this into a soap opera."

Leavitt ordered him to be examined by a nurse at the courthouse, and the nurse told the judge that Caramagno said he had shots of tequila hours before court. He subsequently acknowledged in court that he was drinking the night before, but he continued to maintain that he was not drunk.

After another recess, Leavitt ordered Caramagno to take a breath test. He at first resisted. "Judge, I don’t want to submit to it," he said.

"I don’t think you really have a choice," Leavitt said. "If you come to court and you give me reason to believe you are intoxicated, you’ve got to submit."

Caramagno is seen on the courtroom videotape sitting down and blowing air into the Breathalyzer. After the test results were announced, Leavitt declared a mistrial. "For the record, your blood-alcohol content is .075," Leavitt said.

Leavitt did not order Caramagno into custody on a contempt of court finding. It was not clear Monday evening whether Caramagno could face disciplinary proceedings from the State Bar of Nevada.

This is not the first time Caramagno’s actions have drawn the ire of a Clark County District Court judge. Shortly before Tabish’s sentencing hearing in 2005, a letter Caramagno penned in the case surfaced, and in the letter, Caramagno belittled District Judge Joseph Bonaventure.

The letter prompted Bonaventure to openly scold Caramagno in court.

"This is why the public hates lawyers, why lawyers have a bad rap," Bonaventure said at the time.

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