California Criminal Lawyer Blog

Is There A Cover-Up In Oceanside Cop DUI Case?

08-22-08 at 7:33PM

There's speculation about a possible cover-up in the Oceanside Police Department, after word that an Oceanside police officer was booked on suspicion of DUI after a crash that injured a fellow officer.

Oceanside police Officer Dwight Carwell is on desk duty while his DUI incident is being closely investigated. The 46-year-old's life was turned upside down two and-a-half months ago in Del Mar a mile south of I-5's Via de la Valle exit.

According to investigators, Officer Carwell was driving in the number one lane, northbound I-5 between 55 and 65 miles per hour. In a statement to police, Officer Carwell says he was cut off by an unknown vehicle, which caused him to lose control of his 2006 black Nissan Titan pickup truck.

We're told seconds later, around 2 a.m., Carwell swerved across four lanes and an asphalt shoulder before tumbling down an embankment. He and his passenger were taken to Scripps La Jolla Hospital.

Carwell complained of pain, including pinching in the neck. His passenger also complained of pain and suffered visible scrapes on the top of his head, right arm and right side rib area.

News 8 has learned the officer's wreck was taken to a Carlsbad towing company yard. It was released to Liberty Mutual Insurance Company, who then allowed it to be salvaged 38 days after the accident.

Officer Carwell has been booked on suspicion of felony driving under the influence. In California, drunken driving can be a felony if another person is injured.

When we asked the CHP for a copy of the incident report, they refused, saying the media is not a party of interest in the case, nor are we part of the protocol in getting the report. When we wanted to know exactly what Officer Carwell's blood alcohol level was, all authorities would reveal is that it was above the state's legal limit of .08.

Oceanside police officials say they are not aware of any previous DUI incidents involving Officer Carwell.

Meantime, a spokeswoman for the San Diego County chapter of Mothers Against Drunk Driving told News 8:

"Regardless of his officer status, he should be treated as a human being who made a mistake."

Officer Carwell's case is currently being reviewed by the district attorney's office. They would not go on camera and would only say charges have not been filed as of this date.

COMMENT: Now, we all know that San Diego District Attorney Bonnie Dumanis will do whatever she can to avoid charging this police officer. It is the modus operandi of the District Attorney's office not to charge police officers who have committed crimes. And I wonder...if it were just one of my "regular" clients - perhaps a truck driver, a doctor, a homemaker or someother reguar Joe - if MADD would come out and try to soften the blow by claiming this drunk rollover accident was just a "mistake? No, MADD is just as two-faced as our District Attorney when it comes to police committing crimes. Police should be held more accountabel than regular citizens. But they are not. At least in San Diego, they are not.

Continue reading "SAN DIEGO DUI DEFENSE NEWS: SAN DIEGO DUI COP ARRESTED-IS THERE A COVERUP?" »

USING RAP SHEETS TO PROVE PRIORS?

The DA used CLETS rap sheets to prove up the defendant's convictions. Does admission of rap sheets violate Crawford (541 U.S. 36), which bars use of testimonial hearsay unless the defendant had an opportunity to cross examine?

This Court of Appeal says no. They assure us that rap sheets aren’t testimonial, because they aren’t created to use as testimony, they’re just compilations of statistical data.

Of course, pure statistics wouldn’t establish the details of the prior convictions, needed to prove
that the priors qualify.

The Court of Appeal then says that the DA would end up having multiple witnesses to prove up the many levels of hearsay which appear in rap sheets, and might not even be able to figure out what witness should be called.

The Court of Appeal seems to think that this logic supports their point; if you think about it, it clearly wholly undermines their point. It is precisely the unreliable, many levels of hearsay that makes use of rap sheets a violation of the confrontation clause.

People v. Morris; 2008 DJ DAR 13699; DJ, 8/29/08; C/A 4th

San Diego, CA) -- an Diego DUI officers around the county will be concentrating their efforts on drunk drivers this Labor Day weekend. San Diego DUI deputies will be conducting two sobriety checkpoints this Labor Day weekend. There will be a DUI checkpoint in Encinitas tonight. It will be set up from 7:30 p.m. until 1 a.m. There will be another DUI checkpoint in Lemon Grove tonight. It's not clear exactly how long that checkpoint will be in operation.

San Diego DUI lawyer Mary Prevost provides the following information:

1. A San Diego DUI suspect is not required by law to do any field coordinations tests the San DIego DUI officer asks you to perform at the scene of the stop. You may decline to follow the pen with your eyes, walk the fake line, stand on one leg, recite the alphanet, and blow into a handheld breath machine at the side of the road.

2. A San Diego DUI suspect is not required to inform the officer where they are coming from, where they are going, how much they had to drink, or provide any other information. Just let the officer know you respect what he does for a living, but you do not wish to answer any of his questions.

3. A San Diego DUI suspect MUST take a breath or blood test at the station IF arrested.

4. A San Diego DUI suspect is not entitled to a lawyer at the scene.

Continue reading "SAN DIEGO DUI LAWYER NEWS: DUI CHECKPOINT IN ENCINITAS SCHEDULED FOR THIS EVENING" »

SAN DIEGO -- Four sobriety checkpoints will be held Friday night and Saturday in San Diego County, according to the Sheriff's Department.

Three are scheduled for Friday night and one for Saturday in Vista, sheriff's officials said.

In Del Mar, a checkpoint will be set up from 7:30 p.m. Friday to 1 a.m. Saturday near Camino Del Mar and 11th Street, Sgt. Randy Webb said.

In Santee, a checkpoint will be operating from about 8 p.m. Friday to 2 a.m. Saturday at an unspecified location, Sgt. Dylan Palmer said.

In Imperial Beach, a checkpoint will be set up from 7 p.m. Friday to 1:30 a.m. Saturday near 11th Street and Palm Avenue, Sgt. Jose Sanchez said.

On Saturday, a sobriety checkpoint is to take place Saturday evening through early Sunday at an unspecified location, Deputy Dwain Washington said.

Continue reading "SAN DIEGO DUI LAWYER NEWS: BEWARE OF SAN DIEGO DUI CHECKPOINTS THIS LABOR DAY" »

SAN DIEGO DUI DEFENSE ATTORNEY NEWS:

San Diego law enforcement will step up San Diego DUI enforcement over the Labor Day weekend. Expect Dui chekpoints to pop up all over the county. Expect stepped-up San Diego DUI enforcement from law enforcement.

It's starting now. Memorize these tips. They may come in handy over the holidays.

1. If you drive in San Diego during the Labor Day weekend, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. San Diego DUI officers historically write in their San Diego 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 San Diego DUI 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 a San Diego 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 San Diego 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 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 San Diego 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. 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, San Diego drunk driving defense, San Diego DWi defense])

Continue reading "SAN DIEGO DUI DEFENSE NEWS: HOW TO AVOID A SAN DIEGO DUI THIS LABOR DAY WEEKEND" »

Reasonable suspicion was evident for defendant's stop by police where the vehicle was already stopped at a rest area within one mile of the Mexican border and the desert off-road vehicles were off-loaded from the defendant's vehicle.

United States v. Macias-Encinas, 2008 U.S. App. LEXIS 18353 (9th Cir. August 19, 2008) (unpublished).*

Continue reading "NINTH CIRCUIT UPHOLDS REASONABLENESS OF COP'S STOP AND SEARCH" »

GOOD POST-VERDIN CASE; NO SHRINKING OUR CLIENTS DURING TRIAL

Here is a clear discovery win for the defense, although it is another affirmance of another deathpenalty case.

In Verdin (43 Cal.4th 1096), the California Supreme Court held that the discovery
statutes are the exclusive authorization for discovery orders directed to the defense, barring courts from making up ones not listed in Penal Code 1054.3.

In Verdin, the court said that prior to trial, judges can’t order your client to be “shrunk,” that is, examined by DA mental health experts, even though you put your client’s mental state in issue (with some exceptions).

But what about DURING trial? The Supremes say that Verdin controls! No court can order our client to submit to a mental health exam, even during trial. Nor can the DA then get a jury instruction or be allowed to argue that your refusal to submit to such an exam shows that your client is guilty.

On a second point, the recent Zamudio (43 C4th 327) case said that the DA could present evidence that an item had been provided to the defense laboratory. Here the prosecution asked the defense expert whether some of the defendant's blood sample had been released for independent analysis. The Supremes make the assumption that the DA's question to its expert about a defense test were erroneous, but find it harmless. Hey, at least they didn't say it was correct.

People v. Wallace; 2008 DJ DAR 12675; DJ, 8/15/08; Cal. Supremes

Continue reading "SAN DIEGO CRIMINAL DEFENSE NEWS: JUDGES CAN'T ORDER PSYCHIATRIC EXAMS ON CLIENTS" »

The Sixth Circuit United States Court of Appeal heard oral argument in June on the issue of whether or not "acquitted conduct" may be used to enhance a sentence after a subsequent criminal conviction. On its face, the practice seems patently unconstitutional.

For more on the matter, including references to recently published article, see:
http://sentencing.typepad.com/sentencing_law_and_policy/

TRYING ONE CASE CONSENTS TO DELAY ON ALL OTHERS, AS ZERO OF TEN

This is a ridiculous case, but not entirely unexpected given the political posture of the day.

Here's the scenerios: You have 3 cases ready for trial. You announce ready on all 3. The California Supreme Court clearly restates that you should announce ready on every case you're ready on - the claim that you can only announce ready on one case is just wrong.

But what happens next? When the judge selects one for trial, or they make you select one, what are the time limits on all the remaining cases?

The California Supreme Court here says you've consented to delay on all those, even if (as here) the first case pled out without commencing trial. And the new date for each of the remaining cases isn't 10 of 10, it's 0 of ten.

They say that the Owens rule (28 Cal.3d 238), that defense delays within the initial 30-45-60 period don't extend the last day, doesn't apply to the 10-day trailing period.

One good thing: your failure to object to prosecution delays during the trailing period doesn't restart the time limits. And this implied consent is inapplicable if the defendant personally objects to the delays.

Then we get into a Johnson (26 C3d 557) situation, where the court tries to find other counsel to try the case within the applicable time period and, if it can't and the delay is caused by the lack of resources, the case gets dismissed. This case is a trainwreck.

Barsamyan v. Superior Court; 2008 DJ DAR 12277; DJ, 8/8/08; Cal. Supremes

Here is a close runner up as "Outrage of the Week." The Courts seem to be getting more and more bold in violating the rules of evidence and defendants' Constitutional rights.

The DA got to present prior domestic violence evidence under California Evidence Code sec. 1109 on count one. The Court of Appeal struggles to justify this, because the count doesn't really charge a domestic violence offense. So they say is sort of does. Huh?

That's bad enough. But then they say that the prior domestic violence evidence comes in on count two, which is clearly not a domestic violence charge, because 1109 uses the word "action," meaning, get this, that if 1109 evidence comes in on one count, it comes in on EVERY OTHER COUNT in the "action" to prove guilt. So if the DA can smuggle a sex offense (Evidence Code sec. 1108) or a domestic violence offense into the information, they get to
use prior sex offenses or domestic violence offenses to prove guilt on, say the murder or robbery.

Objection! Relevance? Overruled on the grounds that we must make the prosecutor win!

People v. Dallas; 2008 DJ DAR 12225; DJ, 8/6/08; C/A 4th

Continue reading "CALIFORNIA FOURTH DISTRICT COURT OF APPEAL MAKES BIZARRE RULING ON USE OF PRIOR ACTS OF DOMESTIC VIOLENCE" »

This case absolutely defies logic and supports the weirdo proposition that defense attorneys have to assist prosecutors when they lose their witnesses. You've got to be kidding!

Okay, so in this case, the DA got to the end of his case. But there was no victim to put on to support counts 3 and 4. The judge granted a dismissal on those counts pursuant to Penal Code sec. 118.1 granted.

The defendant informed his lawyer that he knew where the victim was and wanted her called on the remaining counts. Hide and seek! The court was outraged, and vacated its 1118.1 dismissal, resuscitating the dismissed counts.

Ironically, the jury acquitted on counts 3 and 4. So, then, why the outrage?

But the California Court of Appeal is outraged at this malfeasance by the defendant. He's estopped from claiming double jeopardy because of forfeiture by wrongdoing.

This is an extreme case: the court claimed the defendant intentionally interfered with the trial process with his incredibly transparent ploy. If you're scratching your head, join the group. What, exactly, did the defendant do wrong? When the DA announced that he couldn't find the victim, was the defendant supposed to jump up and announce that he knew where she was?

Has the C/A heard of the 5th Amendment?

So, when the prosecutors lose their witnesses next time, make sure you get up and give them directions. This is just another example of judges trying to help inept prosecutors.

People v. Pearson; 2008 DJ DAR 12035; DJ, 8/4/08; C/A 2nd, Div. 6

The defendant here pled guilty pursuant to a plea bargain which contemplate a setnece of 365 days. The court imposed the 365-day sentence.

Four months later the defendant returned to court and asked that the probation condition of 365 days in jail be modified to 360 days in jail in order to prevent the conviction from qualifying as an aggravated felony for federal immigration purposes.

The court denied the motion, stating that it didn't have the power to do so, because it would violate the plea agreement. The California Supreme Court agreed.

People v. Segura; 2008 DJ DAR 12174; DJ, 8/4/08; Cal. Supremes

Continue reading "SAN DIEGO CRIMINAL DEFENSE: COURT CAN'T MODIFY PLEA AGREEMENT AFTER IMPOSITION OF SENTENCE" »

The Department of Homeland Security has now made it clear that they will search laptops at the border. See the Washington Post article published today: Travelers' Laptops May Be Detained At Border / No Suspicion Required Under DHS Policies:

Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

"The policies ... are truly alarming," said Sen. Russell Feingold (D-Wis.), who is probing the government's border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

DHS officials said the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

The California Supreme Court held last week that appellate courts have to do a comparative juror analysis on Batson (476 U.S. 79)/ Wheeler (22 Cal.3d 258) challenges.

What that means is that courts must compare jurors who have been kicked off with jurors who have been left on by the DA.

More importantly, this case contains a statement encouraging trial judges not to limit your voir dire. In fn. 16, the Supremes note the trial judge's power to limit the time for your voir dire, but go on to say, "Nevertheless, in exercising that discretion, trial courts should seek to balance the need for effective trial management with the duty to create an adequate record and allow legitimate inquiry."

Since most courts - mostly former prosecutors - limit our voir dire to the point where we can barely start developing our "for cause" challenges, we must use this this case to resist time limitations on our voir dire.

People v. Lenix; 2008 DJ DAR 11396; DJ, 7/25/08; Cal. Supremes

Continue reading "TRIAL COURTS SHOULD NOT LIMIT VOIR DIRE" »

Finally, here is a Batson (476 U.S. 79)/ Wheeler (22 Cal.3d 258) win! The DA kicked off all the Hispanic jurors who spoke Spanish, on the basis that he was concerned about whether they would accept the interpreter's version and not interpret themselves.

The Court of Appeal holds that this IS group bias and is racist. Reversed!

People v. Gonzales; 2008 DJ DAR 11966; DJ, 8/1/08; C/A 3rd

The defendant was arrested. He is transported to the police station. An hour after the arrest, the police seize the defendant's cell phone. Thirty minutes later, during interrogation of the defendant, the police access the phone's text message folder and retrieve an incriminating message.

The Court of Appeal has no trouble with this as a "search incident to arrest". You can see that the search wasn't contemporaneous with the arrest, but the Court of Appeal assures us that this doesn't matter. Searches incident to arrest are just fine, to protect the officer and to search for evidence of the crime.

People v. Diaz; 2008 DJ DAR 11973; DJ, 8/1/08; C/A 2nd, Div. 6