July 29, 2011

FAILURE TO PROVIDE FINANCIAL RESPONSIBILITY AND FAILURE TO MAKE A DEMAND
The defendant here was convicted of many counts, one of them failing to provide financial responsibility. The California Court of Appeal notes that the statute, Vehicle Code sec. 16028, requires a demand for production of financial responsibility. Here, the only evidence was that the police searched the defendant's car for that and couldn't find it. The Court of Appeal rules that 16028 can't be violated without a demand.

Sometimes I read cases and wonder: Did some city attorney REALLY make that argument and waste thousands of taxpayer dollars fighting something this dumb?

People v. Roldan; 2011 DJ DAR 11032; DJ, 7/22/11; C/A 2nd, Div. 1

July 28, 2011

ENDANGERING A MINOR; CALIFORNIA PENAL CODE SECTION 654

ENDANGERING A MINOR; PENAL CODE SECTION 654

California Penal Code sec. 273a makes it a crime to cause or permit a child to suffer unjustifiable physical pain. Penal Code 273a(a) imposes a greatly enhanced sentence if the conduct was wilful and was committed under circumstances likely to produce great bodily injury (GBI) or death.

The defendant here had his 9-year old daughter penetrate herself with large dildos. The California Court of Appeal says this suffices for 273a(a). Second issue. The defendant
sent child porn pictures many times, some within seconds of each other. The Court of Appeal addresses the defense claim that Penal Code sec. 654 bans separate sentences on crimes done pursuant to a single course of conduct. The C/A finds that each email posting was separate, permitting sentences on every count.

People v. Clair; 2011 DJ DAR 11063; DJ, 7/25/11; C/A 1st, Div. 5

July 28, 2011

CALIFORNIA EVIDENCE: DOG SNIFF AND JUSTIFICATION FOR SEARCHING

During a traffic stop, the police had a "narcotics detection dog" sniff the exterior of the defendant's pickup truck. The dog alerted to a backpack, leading to a search, leading to lots of evidence. First, the California Court of Appeal says that a dog sniff of an exterior of a vehicle is NOT a search at all. The Court of Appeal says that the dog was well trained, and that alone established reasonable cause to search the backpack.

People v. Stillwell; 2011 DJ DAR 11132; DJ, 7/26/11; C/A 3rd

July 26, 2011

LAW OFFICES OF MARY PREVOST: DOG SNIFFING EVIDENCE ADMITTED IN SEARCH CASE

The conviction and sentencing of defendants for drug-related offenses based principally on evidence obtained with the help of a narcotics-detection dog are affirmed where the trial court properly denied motion to suppress over defendants' meritless claims that: 1) the prosecutor failed to prove the narcotics detection dog used to sniff the vehicle was reliable; 2) the alert of a narcotics detection dog standing alone did not establish probable cause for a warrantless search of the backpack in the bed of the pickup truck; and 3) the narcotics detection dog violated defendants' reasonable expectation of privacy when it sniffed inside the bed of the truck.

People v. Stillwell, No. C065324

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July 26, 2011

LAW OFFICES OF MARY PREVOST; CLASS ACTION CERTIFIED FOR CITIZENS' TAX SUIT AGAINST GOVERNMENT

In a class-action dispute concerning whether Government Code section 910 allows taxpayers to file a class action claim against a municipal governmental entity for the refund of local taxes, judgment of the court of appeals affirming trial court's denial of class certification is reversed where, consistent with City of San Jose v. Superior Court, class claims for tax refunds against a local governmental entity are permissible under Section 910 in the absence of a specific tax refund procedure set forth in an applicable governing claims statute.

Ardon v. City of Los Angeles, No. S174507

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July 25, 2011

CALIFORNIA CRIMINAL PROCEDURE: FAILING TO FILE A COMPLAINT 25 DAYS FROM CITING AND RELEASING A DEFENDANT

The defendant was cited (for DUI) and released. The notice to appear was not filed with the court. Instead, 3 months later, the DA filed a misdemeanor complaint. PC 853.6 says that when the officer cites and releases an arrestee, the prosecutor must file a complaint within 25 days of the arrest. Of course, that didn't happen here. This appellate division rules that 853.6 requires any further prosecution to be preceded by a new citation or an arrest warrant. This requires dismissal of the untimely filed complaint, but the appellate division avoids dismissal here by finding sufficient notice to the defendant.

People v. Gourley; 7/22/11; 2011 WL 3017084; 2011 Cal.App. LEXIS
963; OC App. Div.

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July 22, 2011

LAW OFFICES OF MARY PREVOST: LEGALITY OF A DETENTION BASED ON A PARKING INFRACTION

The defendant was parked in a no parking zone. The police approached; the defendant started to drive away. The police ordered the defendant to stop, which he did, then the defendant tossed something on the floor of the passenger side. The police ordered the defendant out.

when the defendant opened his car door, the police saw what they thought was cocaine, and this led to searching and arresting the defendant. The defense argues that the no-parking violation was essentially a civil matter which didn't permit a detention, search, or arrest. California Vehicle Code sec. 40200 and 40202 say that non-misdemeanor parking violations are civil and are subject only to civil penalties.

The Court of Appeal here relies on Whren (517 US 806). We always think about Whren as standing for the proposition that the bad faith of the police in detaining a suspect is irrelevant. But another part of Whren says that the police can make a stop if they have probable cause to believe that a traffic law was violated. The Court of Appeal takes this to mean that ANY traffic violation permits a detention. Glad I don't practice in the Second District, Division 1.

People v. Bennett
; 2011 DJ DAR 11027; DJ, 7/22/11; C/A 2nd, Div. 1

July 20, 2011

LAW OFFICES OF MARY PREVOST: TOP NAVY SURGEON SUES CHULA VISTA POLICE DEPARTMENT FOR POLICE BRUTALITY

In 2008 I won a $400,000 settlement for a teenager who was beaten to the ground in his own driveway until he was unconscious. The assailant was a Chula Vista Police Officer. See, http://www.californiacriminallawyerblog.com/cgi-bin/mt.cgi?__mode=view&_type=entry&id=8472&blog_id=76.

Last year, CVPD lost a $2 million lawsuit. Why? It's officers attacked a federal agent.

Now, another Chula Vista Police officer is on the hot spot. http://www.signonsandiego.com/news/2011/jul/20/top-navy-surgeon-files-lawsuit-against-chula-vista/

See, also http://www.10news.com/news/28554452/detail.html

July 18, 2011

"LIKE" my Legal Page on Facebook "Law Offices of Mary Prevost

If you like this blog, then please "LIKE" my legal page on facebook. it is "Law Offices of Mary Frances Prevost". http://www.facebook.com/pages/Law-Offices-of-Mary-Frances-Prevost/26825436846?ref=ts

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July 8, 2011

CALIFORNIA CRIMINAL LAW: KIDNAPPING REVERSED

The defendant actually wins one issue in this death penalty affirmance, not that it does this actual defendant any good. The defendant was convicted, in addition to murder, of kidnapping. In Martinez (20 C4th 225), the California Supreme Court held that the jury is required to consider the totality of the circumstances in determining whether the movement of the victim was substantial enough to qualify as a kidnapping. The previous rule was exclusively dependent on the distance involved. The judge here instructed the jury under the previous rule. The California Supreme Court finds error and reverses the kidnapping conviction.

People v. Castaneda; 2011 DJ DAR 9863; DJ, 7/1/11; Cal. Supremes

July 6, 2011

LAW OFFICES OF MARY PREVOST: U.S. SUPREME CURT GRANTS CERTIORARI IN NEW EVIDENCE CASE POST BULLCOMING

The U.S. Supreme Court has granted certiorari in Williams v. Illinois. The case
is a DNA confrontation case where an expert witness rendered an expert opinion based upon the DNA work of others. The case squarely addresses the issue unresolved by Bullcoming as to whether or not the Confrontation Clause permits an expert witness to render an opinion based upon reviewing what is otherwise testimonial evidence. Also, DNA testing often involves multiple experts. Allowing one expert to testify is in keeping with the dissenters' concerns in Bullcoming.

July 5, 2011

CALIFORNIA CRIMINAL EVIDENCE: WE HAVE THE RIGHT TO CHALLENGE BREATH TESTING

A series of cases being handed down by the U.S. Supreme Court and California Court of appeals are being heralded by prosecutors as "new law." Once such case is the U.S. Supreme Court's decision in Bullcoming. Another is Vangelder, discussed below.

What is frightening about this prosecutorial harkening, however, is that none of this really is new law at all. It's always been the law. It's just that prosecutors and rogue judges' deviate from it. The "norm" has been: Violate Due Process and the evidence code in order to assist the prosecution in obtaining convictions.

But the U.S. Supremes recently, and now the California Court of Appeal, are pinning their ears back. And they better listen.

COURT OF APPEAL SAYS WE HAVE THE RIGHT TO CHALLENGE BREATH TESTING DEVICES

The California Supreme Court has held that we can't challenge the partition ratio used to prove that a defendant was driving at or above .08. Note that we can challenge it on the DUI charge itself, though only if we can show a problem with this specific defendant, not just general problems with partition ratio. (McNeal, 46 C4th 1183.)

Here, the trial judge entirely barred the defense expert from testifying that breath testing devices (PAS and breath testing machines) are unreliable because of problems getting pure data about blood alcohol from the intake of air. The expert would testify to problems affecting the amount of alcohol found in the alveolar air supposedly being tested. The California Court of Appeal says that the exclusion of the expert's testimony was error, with respect to both the .08 and the DUI charges. The California Court of Appeal says that this differs from partition ratios. Big defense win; Chuck Sevilla, San Diego PC, was successful appellate counsel.

People v. Vangelder; 2011 DJ DAR 9949; DJ, 7/5/11; C/A 4th, Div. 1

July 2, 2011

LAW OFFICES OF MARY PREVOST, ORANGE COUNTY DUI DEFENSE: HOW TO AVOID AN ORANGE COUNTY DUI THIS 4TH OF JULY

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 Fourth of July weekend 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 case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in 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 can be won. Some 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 Orange County 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 Fourth of July Day Weekend.

florida-traffic-school-3v.jpg

1. If you drive in Orange County during the Fourth of July weekend, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. Orange County DUI officers historically write in their Orange County 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 Orange County 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 an Orange County 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 Orange County 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. San Diego 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 Orange County 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 inculpatory evidence against you. And when you get home call this Southern California DUI Defense lawyer.

Continue reading "LAW OFFICES OF MARY PREVOST, ORANGE COUNTY DUI DEFENSE: HOW TO AVOID AN ORANGE COUNTY DUI THIS 4TH OF JULY " »

July 1, 2011

LAW OFFICES OF MARY PREVOST, SAN DIEGO DUI DEFENSE: HOW TO AVOID A DUI THIS FOURTH OF JULY

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 Fourth of July weekend 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 pre-trial to work up your case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in 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 can be won. Some 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 San Diego 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 Fourth of July Weekend.

florida-traffic-school-3v.jpg

1. If you drive in San Diego during the Fourth of July 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 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 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. San Diego 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 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 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 inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

Continue reading "LAW OFFICES OF MARY PREVOST, SAN DIEGO DUI DEFENSE: HOW TO AVOID A DUI THIS FOURTH OF JULY" »