California Criminal Lawyer Blog

TEWKSBURY, Mass. -- A judge finds an Andover attorney Ki Yong O not guilty of motor vehicle homicide in an accident that happened last year in Tewksbury.

The 36-year-old struck and killed Anthony Raucci while on the prescription sleep medication Ambien.

The judge in the case said that since O did not know the side effects of the drug, he could not be found guilty.

The accident happened while Raucci was changing a tire in the breakdown lane on I-93.

Raucci's wife and 7-year-old son were in the car at the time and watched the whole scene unfold.

O was also found not guilty on charges of leaving the scene of an accident with property damage.

Continue reading "DUI DEFENSE ATTORNEY NEWS: DUI DEFENDANT FOUND NOT GUILTY IN DUI HOMICIDE; AMBIEN TO BLAME" »

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Posted In: Blood Tests , DUI Defense , Penalties

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California Dui Lawyers: Watch out what you mix over the holidays. Watch what your clients drink. A new study shows that people who mix alcohol and Red Bull at bars can drive drunk and not even know it.

"...The study shows that people double their risk of being hurt, injured, requiring medical attention, driving with an intoxicated driver, being taken advantage of sexually or taking advantage of another sexually. - "Only the symptoms of drunkenness are reduced but not the drunkenness. They can't tell if they're drunk," said Mary Claire O'Brien, lead researcher for the study."

Continue reading "CALIFORNIA DUI ATTORNEYS BEWARE: CLIENTS WHO MIX ALCOHOL WITH RED BULL CAN DRIVE IMPAIRED AND NOT EVEN KNOW IT" »

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Watch this Austin police officer attack an black driver with a taser on Thanksgiving last year. I hope he got sued.

This is a prime example of why we need videos in police cars.

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Posted In: Bad Cop - No Donut , DUI Defense , In The News

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"Knepper claims that the warrantless search of the bedroom where his backpack was recovered was illegal. The district court found that Knepper had abandoned the cottage and thus lacked an expectation of privacy in his former bedroom." That finding is supported by the evidence.

United States v. Knepper, 2007 U.S. App. LEXIS 28064 (9th Cir. November 29, 2007).

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Posted In: Federal Cases , Search & Seizure Cases , U.S.

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Vouching is always bad. It is particularly bad when a snitch tries to gain credibility by vouching that the prosecutor would rip up his plea agreement up if he lied. Right. Like all prosecutors are honest, and they never play to win, right? Wrong. (See my post on this blog regarding Dirty Tricks in the Crime Lab in San Diego and Prosecutorial Misconduct in San Diego).

The Ninth Circuit agreed that vouching is bad. But although it finds such bolstering here, it ultimately holds that such vouching is harmless. Right.

Still, this is an interesting and useful opinion. The Ninth Circuit unequivocally states that the usual questions of a cooperating witness about why they have to tell the truth (i.e. "because I promised and if I lie, the AUSA will tear up the plea and I'll do more time") is vouching and impermissible.

But the Ninth Circuit then goes on to say that this mild form was cured by the court's curative instructions about cooperating witnesses and the overwhelming guilt.

The overwhelming guilt (i.e. lack of prejudice) also plays into the excusing the more serious form of vouching that occurred when the government bolstered its wiretap evidence by eliciting testimony about how DOJ and the courts had to approve such an application. This gave the impression that the defendant was guilty as determined by the agency and court. Again, this is excused only because of the overwhelming evidence.

Question: Did either the District Court or the Ninth Circuit send this prosecutor who engaged in both the mild and muy caliente forms vouching off to the state bar so that he wouldn't try to get away with it again?

U.S. v. Brooks, No. 05-30261 (11-29-07).

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Posted In: Federal Cases

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In the instant case, the sole condition of electronic monitoring does not implicate the Fourth Amendment. It does not violate a reasonable expectation of privacy under the Fourth Amendment.

Electronic monitoring simply alerts law enforcement officials when Ms. Gardner has traveled 100-300 feet away from her home in violation of her curfew restriction. It does not reveal where she is within the home. The system functions as a virtual monitor standing watch outside of Ms. Gardner's home to ensure she complies with her curfew.

Thus, electronic monitoring itself does not invade Ms. Gardner's reasonable expectation of privacy since the system monitors only what would be readily observable to the public eye. See United States v. Knotts, 460 U.S. 276, 281-82 (1983) (concluding that no reasonable expectation of privacy exists where a person travels in public); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Cf. United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) ("[T]here is no reasonable expectation of privacy in the exterior of a car because the exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search." (quoting New York v. Class, 475 U.S. 106 (1986))).

Nor does electronic monitoring implicate any identifiable common law right to privacy and thus a fortiori does not establish a liberty interest under Paul. The common law tort of intrusion upon seclusion requires that a plaintiff show an intentional intrusion into the solitude or seclusion of another or his private affairs or concerns that is highly offensive to a reasonable person. Restatement (Second) Torts § 652B (1977). Here, similar to the Fourth Amendment analysis, electronic monitoring would not trigger liability since it only provides information that is readily gleaned by the public eye. See id. cmt. c ("[T]here is no liability ... for observing [the plaintiff] or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye.").

United States v. Gardner, 2007 U.S. Dist. LEXIS 87843 (N.D. Cal. November 28, 2007):

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Posted In: Federal Cases , Search & Seizure Cases , U.S.

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The Ninth Circuit here holds that the amendment that allows DNA collection from all felons on supervised release, even those with nonviolent offenses, passes constitutional muster.

The Ninth Circuit looks to the need to monitor the supervisees, combat recidivism, and the diminished expectation of privacy. Mainly though, according to B. Fletcher in dissent, the Ninth Circuit permits it with a "shrug of inevitability."

What Betty? Throw in the towel because you think it's invitable?

Fletcher worries that DNA collection does invade privacy and the breach serves no overriding government purpose given that the defendant here is nonviolent (drug offense) and the record does not support such a need.

But... what the heck.

U.S. v. Kriesel, No. 06-30110 (11-29-07).

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Statements made in a jail sponsored therapy session were not involuntary nor were part of a confidentiality agreement. The petitioner here was a member of a group therapy session where, in response to comments directed at him by other inmate participants, he made statements to the supervising treating doctor about how "he didn't mean to kill" the young victim.

This is one of those clients you wish you could give the "Foot in Mouth" award to. Go directly to jail, do not pass "go."

The Ninth Circuit affirmed the district court's denial of relief on this ground (the matter was a remand for this purpose).

Beaty v. Schriro, No. 05-99013 (11-28-07).

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Planting GPS transmitter on plaintiff's car was not a Fourth Amendment violation
Plaintiff's car was suspected of being at the scene of several burglaries in 2002, and the police decided, after consultation with supervisors, to plant a GPS with a cellphone transmitter on the car. Plaintiff's Fourth Amendment claim failed under Knotts. Morton v. Nassau County Police Dep't, 2007 U.S. Dist. LEXIS 87559 (E.D. N.Y. November 27, 2007):

"A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." United States v. Knotts, 460 U.S. 276, 281 (1983). The use of the GPS Device did not permit the discovery of any information that could not have obtained by following an automobile traveling on public roads, either physically or through visual surveillance (e.g. through the use of cameras or from a helicopter), conduct that neither requires a warrant nor implicates Fourth Amendment rights. "Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afford[s] them." Id. at 282.

In Knotts, law enforcement officials placed a tracking device, or "beeper," inside a barrel of chloroform which was sold to an individual suspected of manufacturing illegal drugs. After the suspect loaded the barrel containing the beeper into his vehicle, the police were able to track his movements. The Court in Knotts held that the law enforcement officials' use of the beeper did not violate the suspect's Fourth Amendment rights, because there is no reasonable expectation of privacy in the movements of an automobile on public roadways, and that the placement of the device did not constitute an unreasonable seizure. Id. Accord United States v. Garcia, 474 F.3d 994, 996 (7th Cir. 2007); United States v. Gbemisola, 225 F.3d 753, 758-759 (D.C. Cir. 2000); ... Alexandre v. N.Y. City Taxi & Limousine Comm'n, 2007 U.S. Dist. LEXIS 73642 (S.D.N.Y. September 28, 2007); ....

Plaintiff attempts to distinguish the instant case from Knotts on the basis that the beeper in Knotts was not actually attached to the suspect's car, but rather loaded by the suspect into his own car, whereas here, the GPS Device was attached to Plaintiff's car by the Defendants. This minor distinction is not sufficient to remove the instant case from the ambit of Knotts.

Thus, the use of the GPS Device was not an unreasonable search or seizure in violation of the Fourth Amendment, and Plaintiff's claims pursuant to the Fourth Amendment are dismissed.

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Posted In: Civil Rights , Federal Cases , Search & Seizure Cases , U.S.

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Even though a court may instruct with CALJIC 12.61.1 which allows the jury to infer that a defendant had a BAC of at least .08% if the test administered within three hours of the stop reveals BAC of .08 or more even if evidence is conflicting... because it only establishes a permissive inference, here there was no rational connection between proved fact and fact to be inferred to justify instruction.

Prejudicial error requires reversal of .08 conviction.

Both prosecution and defense experts opined that defendant's BAC at the time of driving was between .068 to .095 (prosecution) and .06 (defense)/ Therefore, there did not exist proof beyond a reasonable doubt (the requirement when permissive inference is sole evidence used to convict) because the PAS and intoxilyzer taken together indicated that defendant's BAC was rising. "This circumstance is a classic example of the well-recognized defense in DUI cases known as the 'rising blood-alcohol' defense. (Helmandollar v. Department of Motor Vehicles (1992) 7 Cal.App.4th 52, 55; Taylor, California Drunk Driving Defense (3d ed. 2001) Forensic Chemist: Blood-Alcohol, § 11.1.1, pp. 610-611.)

People v. Beltran (C.A. 1st, 11/27/07, A116944) 07 C.D.O.S. 13484

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NIAGRA FALLS, N.Y — A judge who jailed 46 people who were in his courtroom when a cell phone call interrupted proceedings was removed from the bench Tuesday by a state commission.

Niagara Falls City Court Judge Robert Restaino "snapped" and "engaged in what can only be described as two hours of inexplicable madness" during the March 2005 session, Raoul Felder, chairman of the state Commission on Judicial Conduct, wrote in the decision to remove Restaino from the $113,900-per-year post.

A phone rang while Restaino was hearing the cases of domestic violence offenders who had been ordered to appear weekly to update the judge on the progress of their counseling. A sign in the courthouse warns that cell phones and pagers must be turned off.

"Everyone is going to jail," Restaino said. "Every single person is going to jail in this courtroom unless I get that instrument now. If anybody believes I'm kidding, ask some of the folks that have been here for a while. You are all going."

When no one came forward, Restaino ordered the group into custody, and they were taken to jail, where they were searched and packed into crowded cells. Fourteen people who could not post bail were shackled and bused to another jail.

Restaino ordered them released later that afternoon.

Restaino told the state panel he had been under stress in his personal life.

His attorney, Terrence Connors, said Restaino would appeal.

Um, say what? I think what goes 'round should come 'round. Let's toss this nut in the pokey for a day.

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Posted In: In The News , Judicial Misconduct Cases

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San Diego DUI fatalities caused by suspected drivers reportedly under the influence of alcohol on county roads over the Thanksgiving weekend increased in 2007, according to California Highway Patrol statistics.

Meanwhile, county arrests on suspicion of drunken driving decreased, authorities said.

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Posted In: DUI Defense , In The News

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California Highway Patrol statistics showed that while the number of arrests for San Diego DUI arrests fell this holiday weekend in San Diego over the Thanksgiving holiday, the number of road deaths increased.

In San Diego County, 128 people were arrested by CHP officers on suspicion of driving under the influence (DUI), 14 less than over the same period last year. There were 1497 California DUI arrests statewide, compared to 1542 California DUI arrests in 2006. That statewide arrest total is up from 1041 Saturday. The CHP began recording holiday weekend arrests and fatalities at 6 p.m. Wednesday.

Five people were killed on San Diego County roadways during the Thanksgiving holiday, compared to one at this point last year, the CHP report said. The CHP also reports 34 fatalities statewide, three less than the same time period in 2006.

San Diego DUI defense lawyer, San Diego DUI defense attorney, California DUI defense lawyer, California DUI defense attorney, San Diego drunk driving defense

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The California Highway Patrol reported that the number of drunken driving arrests, and fatalities caused by impaired drivers, continued to increase on San Diego County roadways this Thanksgiving weekend.

Five people were killed on San Diego County roadways during the Thanksgiving holiday so far, compared to one at this point last year, the CHP report said. At this time Saturday, only three had died so far this holiday weekend.

The CHP also reports 34 fatalities statewide, three less than the same time period in 2006. As of Saturday, there had been only 21 statewide fatalities.

In San Diego County, 128 people were arrested by CHP officers on suspicion of driving under the influence, 14 less than over the same period last year. As of Saturday, there had been only 92 local drunk driving arrests.

There were 1497 arrests statewide for suspicion of driving under the influence, compared to 1542 in 2006. That statewide arrest total is up from 1041 Saturday.

Continue reading "CALIFORNIA DUI ARRESTS UP FOR HOLIDAY SEASON" »

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Former lawyers, clients of San Diego's Pacific Law Center challege unethical activity
By Greg Moran
UNION-TRIBUNE STAFF WRITER

November 25, 2007

With its highly visible, nonstop advertising, the four-year-old Pacific Law Center in La Jolla has made itself one of San Diego's best-known law firms.

By the firm's estimate, it has represented 10,000 clients in drunken-driving and other criminal cases, bankruptcy, and personal injury lawsuits since opening here in 2003.

The advertising campaign promises aggressive representation and “little or no money down” and features testimonials for the center and its lawyers.

But in recent months, that picture has been clouded by lawsuits, a judge's ruling and action by the Better Business Bureau. [for more articles on PLC, click on No.1 and No.2]

Former clients say it was difficult to get enough time with an attorney. Some say they were given unrealistic assessments about their cases.

Lawyers formerly employed by the firm have alleged in lawsuits and in sworn statements that Pacific Law Center uses unethical practices, such as allowing unlicensed clerks to sign up clients and give out legal advice. Two attorneys sued, claiming that they were fired after objecting to that.

Lawsuits filed by former Pacific Law Center attorneys depict a business where lawyers have caseloads so large that it is difficult for them to provide the kind of representation the firm advertises. Instead, they say, the emphasis is on settling cases as quickly as possible.

The Better Business Bureau, a business ethics and consumer protection agency, downgraded its rating of the firm from satisfactory to neutral after fielding 38 complaints over the past three years.

A judge ruled in June that the firm appeared to be “gouging” local taxpayers by seeking public funds to hire experts in two cases for which the firm already had collected thousands of dollars in fees from the clients.

“We have a lot of attorneys and a lot of clients,” Arentz said. “It's easy to find individuals who have individual complaints about their individual situation.

“Overall, the majority of our clients are extremely happy with their representation.”

Arentz spoke from the Phoenix office of the law firm Phillips & Associates, which is affiliated with Pacific Law Center, where he often works.

Jeffrey Phillips, an attorney with the Phoenix firm that bears his name, is listed on the articles of incorporation for Pacific Law Center filed with the California secretary of state. Phillips is not licensed to practice law in California.

Arizona state bar records show that Phillips was censured in September 2002 and placed on two years' probation because he “failed to adequately supervise subordinate attorneys and non-lawyer specialists.”

The records say non-lawyers who first met with prospective clients failed to say they were not lawyers and did not adequately describe the firm's “little or no money down” payment plan.

Phillips completed his probation in January 2005. Complaints of aggressive intake clerks and hard-sell tactics are now being made against Pacific Law Center.

Phillips said potential clients are told repeatedly that the intake clerks are not lawyers, but assistants.

“We don't believe there is any way any of our people are doing anything wrong here,” Phillips said during a recent interview.

Click below to read more on Pacific Law Center...
...

Continue reading "FORMER CLIENTS AND LAWYERS FOR SAN DIEGO'S PACIFIC LAW CENTER SLAM FIRM'S BUSINESS PRACTICES " »

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Posted In: DUI Defense , In The News

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SAN DIEGO DUI DEFENSE ATTORNEY NEWS:

Southern California law enforcement will step up DUI enforcement over the holidays. It's starting now. Memorize these tips. They may come in handy over the holidays.

1. If you drive during the holidays, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. Police historically write in their 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 officer to pull over by the officer for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If an 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 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 New Year's day 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. 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, SDPD and Sheriff's 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 sanitations protocol in place. Why risk infection?

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 tonight. 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 inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

(San Diego DUI Defense, Chula Vista DUI Defense, Vista DUI Defense, El Cajon DUI Defense, Imperial County DUI Defense, El Centro DUI Defense, Orange County DUI Defense, Riverside DUI Defense, San Bernardino DUI Defense, Los Angeles DUI Defense, San Diego DUI Defense Attorney, San DIego DUI Defense Lawyer, California DUI Defense, Murrieta DUI Defense, Temecula DUI Defense, Riverside DUI Defense, Chula Vista DUI Defense, El Cajon DUI Defense, Vista DUI Defense, Temecula DUI Defense, Brawley DUI Defense, El Centro DUI Defense)

Continue reading "WHAT TO DO WHEN THE SAN DIEGO DUI OFFICER STOPS YOU DURING THE HOLIDAYS; A SAN DIEGO DUI LAWYER GIVES YOU PROVEN TIPS TO HELP DEFEND YOU FROM A SAN DIEGO DUI CONVICTION" »

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