California Criminal Lawyer Blog

I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the holiday season and we all know we are going to imbibe, just plan to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 or upwards pre-trial to work up your DUI case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless misdemeanor on a felony DUI with injury case that was originally charged as a felony. I also just got an offer of a straight misdemeanor to another DUI with injury case. Both clients were in the Navy, and could not have the felony without it ruining their careers. I recently sued San Diego's top DUI cop in federal court and won a settlement from the City because the cop falsified the basis for his stop. Yes, there are cheap attorneys out there and they will always claim to do cheaply what the best of us do for the cost of our experience. But you get what you pay for. I personally don't hire doctors that hawk themselves as "cheaper than the other guy." Nor would I ever hire an attorney that hawks himself for cheap.

Some cases California DUI can be won. Some California DUI cases cases can't be won. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a novice if you had cancer? Of course not.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over California are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this holiday weekend.

1. If you drive in California during the holiday season, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. DUI officers historically write in their California DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, law enforcement labs don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitation protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather damaging evidence against you. And when you get home call this Southern California DUI Defense lawyer. Dui Defense is hard. But it's not impossible.

Continue reading "CALIFORNIA DUI DEFENSE: HOW TO AVOID A DUI THIS NEW YEAR'S EVE" »

I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the Christmas season and we all know we are going to imbibe, just plan to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 or upwards pre-trial to work up your DUI case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless misdemeanor on a felony DUI with injury case that was originally charged as a felony. I also just got an offer of a straight misdemeanor to another DUI with injury case. Both clients were in the Navy, and could not have the felony without it ruining their careers. I recently sued San Diego's top DUI cop in federal court and won a settlement from the City because the cop falsified the basis for his stop. Yes, there are cheap attorneys out there and they will always claim to do cheaply what the best of us do for the cost of our experience. But you get what you pay for. I personally don't hire doctors that hawk themselves as "cheaper than the other guy." Nor would I ever hire an attorney that hawks himself for cheap.

Some cases California DUI can be won. Some California DUI cases cases can't be won. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a novice if you had cancer? Of course not.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over California are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this holiday weekend.

1. If you drive in California during the Christmas season, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. DUI officers historically write in their California DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, law enforcement labs don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitation protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather damaging evidence against you. And when you get home call this Southern California DUI Defense lawyer.

Continue reading "CALIFORNIA DUI DEFENSE: HOW TO AVOID A CALIFORNIA DUI THIS CHRISTMAS" »

For John Stephens, the injuries have healed, but the memories have yet to fade.

Click HERE to see the video of the news story.

"I remember thinking, 'What is going on here?'" said Stephens, a retired school bus driver and former Navy sailor.

In July 2010, Stephens was summoned to jury at the downtown courthouse. He walked into the courthouse with his wife, and then placed his watch in the basket as he prepared to go through a security checkpoint.

However, Stephens' implants from knee surgery set off the metal detector, so a deputy took him aside and used a hand-held to inspect him. At that point, Stephens said someone grabbed his belongings.

"I looked over and saw this gentleman with my watch and belt, and I said, 'Hey,'" said Stephens.

Stephens' wife, Elizabeth, said, "He never moved his arms down from that position."

Stephens never finished his sentence because he said a deputy surprised him.

"Next thing I knew I was on the floor and the guy was twisting my arm to the point of breaking it … I felt his knee coming into me … next thing I know I'm on the ground. There were three of them twisting every way they could," Stephens told 10News.

The incident left him upset and in pain.

"One arm was bruised and purple for three to four weeks," said Stephens.

Stephens was also handcuffed and under arrest for obstruction. Charges were never filed, but Stephens filed a civil suit against San Diego County for the abuse inflicted on him by deputies and false arrest.

"He clearly was not a danger to anyone. This is the worst case of abuse by [a] sheriff's deputy at the courthouse," said Stephens' lawyer, Civil Rights Attorney Mary Frances Prevost.

Elizabeth Stephens added, "They could have done irreparable damage. It's not right, it's not right."

Stephens said he thought the right thing was going to jury duty. He's not so sure anymore.

"It was astounding. I came down for this? All I'm trying to do is go to jury duty," Stephens said.

County attorneys declined to comment due to pending litigation.

Stephens' wife tracked down the man who took her husband's watch and other items, and was able to get the items back. The man was not charged with theft.

California Civil Rights Attorney Prevost said she believes there is surveillance tape, but has yet to obtain it.

Continue reading "SAN DIEGO CIVIL RIGHTS: JUROR ASSAULTED/ARRESTED BY COURTHOUSE DEPUTY" »

Nystagmus is an actual medical phenomenon that describes an involuntary eye movement. Police officers often call it "a jerking of the eyes." Nystagmus can be difficult to detect even when the observer is well trained. Additionally, it had multiple causes other than alcohol consumption.

Unfortunately, diagnosing both the complex medical condition itself, as well as divining its cause, has been boiled down to a few hours of a two and a half day Field Sobriety Test certification class, and taught to police officers across the United States as the ‘gold standard’ for DWI detection.

I can’t count the number of times I have heard the phrase “the eyes don’t lie” from prosecutors, police witnesses, and others in law enforcement. Well, the truth is that when it comes to DWI detection, they do.

I will attempt to dissect truth from fiction, and explain to you what nystagmus is, what it isn't, what causes it, and why police officers so often believe that what they saw on the scene of an arrest during a DWI investigation really isn’t science at all. Stay tuned…

Continue reading "SAN DIEGO DUI LAWYER: HORIZONTAL GAZE NYSTAGMUS-A LEGAL FICTION FOR IDENTIFYING IMPAIRED PERSONS" »

Individuals convicted of a second or third time DUI in California may obtain a restricted license from the DMV. Vehicle Code (VC) §§ 13352(a)(3) and 13352(a)(5) allows a second or third DUI offender to install an Ignition Interlock Device (IID) and receive an IID restricted license after a mandatory suspension/revocation period, if the most recent violation of VC §23152 occurred on or after July 1, 2010, and did not involve the use of drugs.

Eligible DUI defendants and drivers must provide the following:

Verification of Installation Ignition Interlock (DL920 Form Required).

$45 administrative service fee to the DMV

All other CA DMV established reinstatement requirements and fees.

Second drunk driving Offenders whose violation involved alcohol only may reinstate after a 90-day suspension with proof of enrollment in a DUI program. Third DUI Offenders whose violation involved alcohol only may reinstate after a 6-month revocation with proof of enrollment in an 18 or 30-month DUI program.

Conviction Involving the Use of Drugs—Second or third DUI offenders whose most recent DUI conviction included the use of drugs do not qualify for early reinstatement with the installation of an IID until 12 months of a suspension/revocation has been completed. A DUI Attorney can offer guidance for those in this category.

Term of IID Restriction—The term of IID restrictions remain in effect for the remainder of the original suspension/revocation term. Drivers that fail to comply with the IID requirement will be suspended/revoked for the remainder of the original suspension/revocation term. A DUI Lawyer can help to ensure that all criteria are met in order to qualify for the restriction.

Continue reading "CALIFORNIA DUI DEFENSE: SECOND AND THIRD TIME DUI OFFENDERS IN CALIFORNIA CAN GET RESTRICTED LICENSES" »

The deputy district attorney was able to prove up two counts without the victim, but not four other counts. The defense motion to dismiss under PC 1118.1 was denied. After the defense rested, the DA found the victim and she testified to all counts.

On appeal, the California Court of Appeal rejects the DA's claim that there was substantial evidence on the four counts because the defendant denied these counts but was found by the court to be lying. This comes up occasionally.

The rule, restated by the Court of Appeal is that disbelief of a witness is not affirmative evidence to the contrary. So disbelieving the defendant's denials does not establish the truth of the charges. And of course, the 1118.1 is reviewed on appeal as of the time it was made. So the later curing the lack of evidence by the victim's testimony on rebuttal doesn't alter the fact that at the time the 1118.1 was made, there was insufficient evidence.

Thus, the Court of Appeal reverses the four counts for insufficiency of the evidence.

People v. Velazquez; 2011 DJ DAR 17123; DJ, 11/30/11; C/A 2nd, Div. 4

Continue reading "REVIEWING THE SUFFICIENCY OF THE EVIDENCE ON APPEAL" »

When the defendant has multiple child porn pictures on multiple computers, for how many counts of possession of child porn can the defendant be found guilty? The C/A has ruled that the simultaneous possession of multiple items of one type of contraband constitutes a single violation, and that the simultaneous possession of two types of contraband in the same location constitutes a single violation. (Hertzig, 156 Cal.App.4th 398; see also Manfredi,169 Cal.App.4th 622.)

Incredibly, this Calidornia Court of Appeal says those case are limited to child porn found at the same time and in the same location. Here, the defendant had child porn pictures on a computer in his backpack and on a different computer in his storage shed. Yep, they uphold convictions on two counts.

Second issue. The court found that a Florida burglary prior qualified as a strike prior. But the crucial facts necessary to qualify the burglary as a serious felony as defined in California law came from stuff the DA said during the plea. The California Court of Appeal relies on that adoptive admission nonsense rejected in Roberts (195 Cal.App.4th 1106), which said that a failure to dispute a factual assertion by a DA could never qualify as an adoptive admission. The California Court of Appeal says the latter point was dicta and tries to distinguish Roberts factually, based apparently on the timing of the DA's statement. Craziness.

People v. Sample; 2011 DJ DAR 16690; DJ, 11/21/11; C/A 4th, Div. 1

The defendant pled guilty. He admitted a factual basis for the plea. He then moved to withdraw his plea, on the basis that with respect to two of the victims, there were no facts showing that the sexual acts (on minors) were done by force or duress; if this were true, there would be insufficient evidence on those counts. The California Court of Appeal says that the defendant's plea, especially in light of the admission that there was a factual basis for it, precludes any appellate review of the sufficiency of the evidence.

People v. Voit; 2011 DJ DAR 16727; DJ, 11/21/11; C/A 6th

Read on about how the US Supreme Court's GPS tracking case may compromise your cell phone security. Big brother is watching.

http://www.aclu.org/blog/technology-and-liberty/how-supreme-courts-gps-tracking-case-can-affect-your-cell-phone-privacy

the defendant was convicted of violating California Vehicle Code section 23123, which, as you
all know, bars use of cell phones while driving (unless it's hands free). The defense was that the defendant was using it while he was stopped at a red light and thus he wasn't "driving" at the time. You'll be stunned to hear that we lose. The defense analogizes this case to Mercer (53 Cal.3d 753). The Supremes in Mercer held that a
defendant was not driving for purposes of DUI where the defendant was sleeping in a car parked at the curb in a residential neighborhood, even though the engine was running. The California Court of Appeal rejects application of Mercer to these facts, in an exhaustive opinion suitable for a death penalty case, fully 24 pages long; and there's a concurring opinion! Their point? This IS driving, but what happened in Mercer wasn't.

People v. Nelson; 2011 DJ DAR 16531; DJ, 11/15/11; C/A 1st, Div. 1

The defendant was convicted of rape of an unconscious person. He argues that he should have been entitled to a jury instruction on the lesser-included offense of simple battery. The California Court of Appeal disagrees. They say that the elements of rape of an unconscious person do not include use of force or violence. The California Court of Appeal concludes that this means that the elements do not include a harmful or offensive touching at all. Thus,
battery is not an inherent lesser offense. I can't really make sense of this; somehow, the unquestionable touching involved in a rape was NOT offensive? Huh?

People v. Hernandez; 2011 DJ DAR 16460; DJ, 11/11/11; C/A 2nd, Div. 1

Continue reading "RAPE OF AN UNCONSCIOUS PERSON AND LESSER INCLUDED OFFENSES" »

This is a per curiam, summary reversal by the U.S. Supremes.

Essentially, it's an AEDPA (Antiterrorism and Effective Death Penalty Act) decision, reversing the federal appellate court because the trial court judge's rulings weren't obviously wrong. Of note is the court's discussion of Missouri v. Seibert (542 US 600). In Seibert, the U.S. Supremes invalidated a confession where the police deliberately failed to give Miranda warnings, got a confession, then gave Miranda and got the defendant to repeat her confession. The court distinguishes Seibert factually. Here, the defendant's first statement was a denial. Plus, there was a break before the second interview.

Bobby v. Dixon; 2011 DJ DAR 16237; DJ, 11/8/11; US Supremes

Continue reading "SAN DIEGO POLICE MISCONDUCT: DELIBERATELY VIOLATING MIRANDA TO GET A CONFESSION" »