Recent Blog Posts in 2010

Questions Not to Ask a Criminal Attorney

If you're arrested for a theft, driving under the influence, drug charge or other crime, it is often hard to know what questions to ask a criminal defense attorney.  This is the first in a series of articles designed to answer the question of what not to ask.

*What is the worst thing that can happen?

Be prepared to be horrified if you ask a criminal attorney this question. This is because jail time is usually a possibility in all criminal cases.  A first offense DUI could conceivably net 6 months in jail.

A better question: What could realistically happen?

This question may get you an answer that is more applicable to your case and won't cause you to have a seizure!

Criminal Law Update

Driving Under the Influence

-CDL Suspension/Restriction

Further research regarding the recent amendment to CVC Sections 13352, et. al. has answered some questions.  It has, however, also raised more questions.

It appears that amended CVC Section 13352(a)(3) allows a conviction triggering suspension for only some types of DUI convictions (i.e., 2^nd offense driving under the influence of alcohol only). However, it also appears that the APS suspension [§ 13353.3(b)(2)] has remained the same.  This means that an individual cannot get a license after only a 90 day suspension unless he/she wins the APS hearing. 

This amendment seems both pointless and confusing.  Apparently, however, some form of emergency legislation aimed at clarifying this issue is pending.  Please wait to be advised.         

As a continuation of my previous criminal law articles concerning California Driver's License restrictions, what follows is the new California Vehicle Code Section 13352, et.al:

As of July 1, 2010, these new amendments, particularly CVC § 13352(a)(3), indicate that an individual convicted of a 2^nd offense driving under the influencemay, under certain circumstances, be able to reduce his CDL suspension from 1 year to 90 days.

Although no one is happy to have their license suspended for 90 days, there is a big difference between 90 days and 1 year.  The question that will be addressed next is: What effect does this have on the 1 year APS restriction?  

Amendment to California Vehicle Code Section 13352.5(a)(3):  The person completes not less than 90 days of the suspension period imposed under paragraph 3 of subsection (a) ofCVC § 13352. The 90 days may include credit for any suspension period served under subsection (c) of CVC § 13353.3.

This replaces previous CVC § 13352.5 insofar as it changes from a mandatory 1 year suspension to a mandatory 90 day suspension in 2^nd time DUIs.  This may mean that under certain circumstances, an individual may be able to acquire a restricted license sooner - Stay tuned for Part 2 of this discussion.   

[Effective July 1, 2010] Amendments to California Vehicle Code Sections 13352, 13352.5, 23109, 23550, 23550.5, 23552, 23566 and 23568:

The ultimate purpose of these changes will result in some people being able to get their California Driver's License back earlier than before.   

According to California Highway Patrol reports, DUI arrests in Orange County over the July 4^th holiday dropped slightly from 2009. 

While 57 people were arrested for suspicion of drunken driving on Orange County freeways over the 2009 holiday weekend, only 51 were arrested during the same period this year.  Fortunately, no Orange County fatalities within theCHP jurisdiction were reported in 2009 or 2010.  Statewide, however, CHP reported over 1200 people were arrested for driving under the influence and 24 people were killed in alcohol-related accidents (80% of which were not wearing seatbelts) during the 2009 4^th of July holiday weekend.           

Effective July 1, 2010, a new California law applicable in four counties requires those convicted of driving under the influence to install a breathing tube and ignition interlock device on their vehicles. 

The installation of this device, which prevents the vehicle from starting if alcohol is detected on the person's breath, will be required of all first-time and repeat offenders in the Counties of Alameda, Los Angeles, Sacramento and Tulare.

The cost to the DUI offender is estimated to be $125 for installation, $60 per month for maintenance and $45 for administration fees.  A low-income program, however, is available for those who cannot afford these fees.      

Charges of drunken driving were dropped against a 54-year-old Dana Point woman after it was determined she was "not lawfully arrested."

According to the Newport Beach officer's report, the woman was stopped in March 2009 for having a broken rear license plate light.  The arresting officer (a second officer was waiting in the patrol car) indicated he observed the objective symptoms of intoxication, including the odor of alcohol and bloodshot eyes, while speaking with the woman.  A breath test subsequently yielded a .12 blood alcohol level and the woman was arrested for suspicion of driving under the influence. 

As discovered during DMV proceedings, however, the patrol car's own video "clearly demonstrated" the light was on and functioning properly.  No probable cause, thus, existed for the stop making the arrest unlawful. 

While comments are not forthcoming from city officials, the city did agree to reimburse the woman for her attorney's fees and towing costs.      

In a recent decision, the United States Supreme Court ruled a suspect's words can be used against him if he fails to "clearly tell the police that he does not want to talk." 

The case in question involved a male suspect arrested in connection with a shooting, one year prior, outside a Michigan mall which killed one man and left another injured.  According to reports, the suspect was read his rights and verbally indicated he understood those rights but did not sign a waiver of rights form. 

During hours of subsequent interrogation, the suspect said very little; however, when asked "Do you pray to God to forgive you for shooting that boy down?", he responded "Yes."  While he refused to sign a confession or say anything further, he was later convicted of first-degree murder…due in no small part to this single word response. 

In rendering the majority opinion, Justice Kennedy said "[a suspect wishing to invoke his right to remain silent must] do so unambiguously."  Justice Sotomayor, though, strongly dissented, stating "[the ruling] turns Miranda upside down and marks a substantial retreat from the protection against self-incrimination."     

POSSIBLE WAYS TO BE STOPPED FOR DRUNK DRIVING OR
DRIVING UNDER THE INFLUENCE:

While everyone is familiar with the typical probable cause(s) for a DUI stop (i.e., weaving), CVC 23111 provides that "no person or no pedestrian shall throw or discharge from or upon any road or highway or adjoining area, private or public, any lighted or non-lighted cigarette, cigar, match or any flaming or glowing substance." 

Although this section appears to be self-explanatory, the question exists: "Does this apply to flicking an ash out the window?"

A sweep operation, targeting juveniles in violation of curfew laws, was conducted overnight in the city of Buena Park.  Of the 15 minors, ranging in age from 9 to 17, contacted during last night's sweep, 10 were arrested. Of those 10, two were alleged to be in possession of "ecstasy" pills while another was identified as having been convicted of a sex offense.  Additionally, one case of child abuse was uncovered.

According to reports, the operation was a joint effort between the Buena Park Police Department, the Orange County Sheriff's Department and the Orange County District Attorney's Office under the auspices of a recently formed task force known as Park Gang Reduction and Intervention Partnership (GRIP), which is designed to identify at-risk youths and intervene with the goal of increasing school attendance and decreasing gang activity.  GRIP has been instituted in the cities of Anaheim, Orange, San Clemente, San Juan Capistrano and Stanton as well.     

In an effort to discourage individuals from fleeing the scene of an accident, a Newport Beach personal injury law firm has offered rewards of up to $1000 for information leading to the arrest and conviction of hit-and-run drivers.    

According to reports, while the number of individuals injured or killed in hit-and-run accidents statewide as well as in Orange County has declined over the past several years, the rate of such hit-and-run collisions in 2008 were estimated at 17,158 and 1084, respectively.

In 2009, the U.S. Court of Appeals upheld long-established due process principles requiring prosecutors to disclose to the defense any information in the government's possession beneficial to the defendant, including any evidence which may impeach a government witness. 

At issue was the failure of the prosecutor to disclose the criminal history of a witness and the impact such information may have had on the defense's ability to call into question the witness's propensity for truthfulness and honesty.  

While it was unclear as to whether the prosecutor was actually in possession of the information, the Court found his investigators definitely were; thus, the prosecutor could not claim ignorance in order to escape his duty under Brady .

The ruling has led to two Southern California counties having to belatedly send out notices disclosing similar such evidence with regard to a particular criminalist in their employ.  Such impeachment evidence could easily compromise the government's ability to successfully prosecute any cases handled in the crime lab by that criminalist, be they cases involving DUIs, drugs, weapons or murder.         

In a 1999 decision, a California appellate court ruled that a detainee's refusal to consent to a pat-down search does not constitute the reasonable suspicion needed to justify such a search.

The case involved a juvenile detained by an officer for improper lighting on his bicycle.  By all accounts, the juvenile was cooperative until the officer told him he was going to conduct a pat-down search.  At this point, the juvenile refused to consent to the search.  Nonetheless, the officer proceeded with the pat-down, finding a revolver in the juvenile's jacket pocket.

The court reversed the subsequent conviction indicating the reasonable suspicion required to justify the search could not be created by the detainee's attempt to exercise his 4^th Amendment rights.  Further, the court found, under a totality of the circumstances standard, no other specific facts existed to lead the officer to believe the juvenile was armed and dangerous.    

Calling a contrary California Supreme Court ruling in a prior case "wrong", the 9^TH Circuit Court held in 2009 that warrantless entry into a home for the purpose of executing a misdemeanor DUI arrest is not justified under the Emergency/Exigent Circumstance exceptions. 

According to the Court, whose interpretation of the 4^th Amendmentin this case fell in line with that of the United States Supreme Court, there must be an objectively reasonable belief that an immediate need to protect an occupant from serious harm exists…and, in this case, the officer's claim he entered the home to make sure the driver was not injured in the accident was "absurd" considering the law enforcement report noted there was no damage to the vehicle.  The Court further rejected the officer's alternate argument he entered the home without a warrant because he "believed" the man may be suffering from a diabetic coma.

In its decision, the Court explicitly stated that a minor hit-and-run accident without injury does not sanction a warrantless entry into a home.  Additionally, the Court noted, as required under the principles of the Federal Constitution, an officer must have independent probable cause to lawfully affect an arrest authorized by a private citizen pursuant to California Penal Code Section 837.

A 2009 Supreme Court ruling made it unconstitutional to conduct a warrantless search of a vehicle, without probable cause to believe said vehicle contains evidence linked to the arrest, in cases where the driver was in custody and without immediate access to the car's interior.

While promising in theory, law enforcement will likely get around this restriction by simply providing a host of new boilerplate explanations to justify such vehicle searches.    

A 2009 Court of Appeals case ruled partition ratio variability evidence is admissible to defend clients against impairment charges under Vehicle Code Section 23152(a), forcing the California Supreme Court to address this long avoided issue. 

Rather than making a determination as to what constitutes a sufficient foundation to admit such evidence, however, the California Supreme Court left it up to the lower courts to resolve.  In making rulings on admissibility, the courts then are likely to be faced with numerous considerations including: unknown variables (drinking pattern, temperature, hematocrit level, atmospheric pressure, etc.), whether law enforcement can perform experiments on the defendant and, if so, what about the defendant who is a recovering alcoholic trying to remain sober?, whether under the age of 21 defendants will receive a fair trial given they cannot legally participate in scientific experiments and is there evidence by the People that a .08 percent or higher blood alcohol level establishes impairment?

Given the range of variables and replication impossibilities, it is likely only partition ratio variability evidence pertaining to the general population will be admitted in defending against impairment charges in DUI cases, while partition ratio variability evidence pertaining to the individual will be excluded.     

Update:

The Anaheim police officer charged with three DUIs in less than a year, has resigned.

According to reports, the 37-year-old now former officer faces up to 2 ½ years in jail if convicted of the three counts of driving under the influence of drugs alleged in his three pending cases.

According to OC Watchdog, the Orange County Register was overwhelmed with stories regarding DUI arrests of police officers after its recent story about the arrest of an Orange County deputy for suspicion of driving under the influence hit the newsstands. 

The story sparking such response detailed an incident in which an off-duty deputy was involved in a traffic accident then allowed by his fellow deputies to simply drive away after the collision report was taken.  A mere 35 minutes later, the deputy crashed into another car injuring its elderly occupants.  It was only at this point he was investigated and arrested for drunken driving.   

In following up with the tips, OC Watchdog spotlighted what it described as an even worse case involving an Anaheim officer who picked up three DUIs between March 2009 and March 2010. 

According to reports, the officer was first arrested for alleged driving under the influence of prescription drugs on March 18, 2009, after hitting the right shoulder on the 405-Freeway and nearly colliding with a CHP squad car.  While this case was pending, he was arrested twice more on DUI charges.  The officer's January 21, 2010 arrest involved a single-car accident in Huntington Beach while the most recent, occurring on March 2, 2010, involved the officer smashing into 4 parked cars in his Costa Mesa neighborhood.  The impact tore his vehicle's right wheel off its axle and the officer was treated at the hospital for minor injuries.

The officer has been on leave from the Anaheim Police Department, for undisclosed reasons, since November 2008.  Inexplicably, this administrative leave was changed from unpaid to paid in November 2009.                

The Orange County Sheriff's deputy who crashed into a planter in front of Supervisor Bill Campbell's home last December has been charged with DUI and is scheduled to be arraigned next month.

According to reports, the off-duty deputy consumed several alcoholic beverages at a friend's house then lost control of his vehicle while driving home.  His blood alcohol level is alleged to have been 0.13 percent almost two hours after the accident.  He was also found to be in possession of Xanax for which he did not have a prescription.

The Orange County District Attorney's Office has charged the deputy with misdemeanor counts of driving under the influence of alcohol, driving with a blood-alcohol level greater than 0.08 percent and possession of a controlled substance without a prescription.  The deputy has returned to full duty pending a personnel investigation.       

In a February 2010 decision, the California Court of Appeals ruled a defendant cannot be convicted of stealing and receiving the same property.

In the case at issue, Defendant 1 and Defendant 2 were charged with grand theft and receiving stolen property after allegedly stealing a purse containing a credit card as well as a cell phone and, subsequently, using a stolen credit card to purchase items from three different stores.

Defendant 2 pled guilty to the crimes and maintained she was the one who actually made the purchases.  Nonetheless, Defendant 1 was convicted at trial of felony receiving stolen property and misdemeanor petty theft.

The Court of Appeals affirmed Defendant 1’s receiving stolen property conviction, however, overturned the theft conviction.  In its decision, the Court reasoned there was a stronger case against Defendant 1 with regard to the charge of receiving stolen property versus the theft and, as the property was not properly differentiated within each charge, she could not be convicted of both counts.      

A man found guilty of stalking and raping an Orange County woman he met via an online dating service was recently sentenced to 15 years and eight months in prison.

The 54-year-old Oregon man, who initially began communicating with the woman online in 2003, came to Orange County in 2007 to meet her for the first time.  According to prosecutors, after dinner, the man lured the woman inside a hotel by promising her flowers and then sexually assaulted her. 

The victim did not report the rape for the next year and a half during which time the man stalked her through phone calls, emails and unexpected visits to her residence.  It was after the man was arrested and charged with stalking that the victim reported the rape.

At sentencing, the man continued to deny the charges claiming he was suffering from a delusional disorder.            

Another Orange County Deputy Sheriff was arrested earlier this month for suspicion of felony driving under the influence causing injury after crashing into an elderly couple’s vehicle and sending it into a tree in Laguna Niguel.        

According to reports, the deputy, a 13-veteran of the Sheriff’s Department, was also involved in an accident with a Lexus in Dana Point just 33 minutes before.  The deputies responding to this crash, however, simply took a report and sent both drivers on their way. 

An investigation is pending, though, it has been revealed a concerned citizen called 911 that night to report his erratic driving and was following the deputy’s car until police arrived.

This is the second high-profile DUI arrest for an Orange County deputy in less than a year.  The harbormaster was arrested for a DUI and reassigned in April 2009 after crashing an unmarked sheriff’s car into the back of a vehicle at a stoplight.  Her blood alcohol level was said to have been nearly twice the legal limit.         

A 20-year-old San Juan Capistrano man was recently arrested for suspicion of DUI in relation to an accident which killed his passenger.

According to reports, the man lost control of his vehicle on PCH in Dana Point and crashed into a palm tree.  The impact instantly killed his passenger, a 24-year-old man from Lake Elsinore.  The man, meanwhile, was transported to the hospital and remains in intensive care. 

Update:

Suzanne Amelia Carlson, the 27-year-old Mission Viejo woman on trial in the  Orange County Superior Court on charges related to a 2007  DUI crash which killed her passenger, was convicted of second degree murder.  Her sentencing, at which she will face 15 years to life in prison, has been set for June 2010.