Recent Blog Posts in April 2010

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 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.