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 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" »

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 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" »

The defendant was charged with residential burglary based upon entering a house and taking two purses. The DA was able to persuade the judge to allow in evidence of prior thefts by the defendant. The California Court of Appeal holds that admission of these prior acts was error under EC 1101.

The prior conduct was admitted to prove intent. But the intent of the thief in taking the purses was evident. That point wasn't at issue. What was at issue was who did it. The C/A further finds that admission of the prior thefts was prejudicial, given that the evidence that the defendant was the purse thief was weak.

People v. Lopez; 2011 DJ DAR 12587; DJ, 8/22/11; C/A 6th

YES, WE DO HAVE THE RIGHT TO POLICE MISCONDUCT DISCOVERY OF COMPLAINTS MADE AFTER THE ARREST

The defendant was convicted. He appealed and eventually got federal habeas relief. Back in the trial court, the defendant moved for Pitchess (11 Cal.3d 531) discovery against the officers.

The trial court granted the motion, but denied any discovery of complaints made against the officers after the date of the defendant's arrest. Why on this earth judges consistently make up rules to protect the police is beyond me. Yes, I know they all run on "Law Enforcement's Choice" tickets for re-election. But a fourth grader would have enough sense to have granted this public defender's request. I mean, C'mon.

The California Court of Appeal says this is wrong. The defense is entitled to discovery of such complaints, on a showing of good cause.

Blumberg v. Superior Court; 2011 DJ DAR 11477; DJ, 8/1/11; C/A 2nd,
Div. 5

Continue reading "CALIFORNIA POLICE MISCONDUCT: RIGHT TO PITCHESS DISCOVERY OF COMPLAINTS MADE AFTER THE ARREST" »

The victim and the defendant were fighting. The defendant grabbed a knife. The victim lunged at the defendant, at the same time that the defendant thrust the knife forward. The defendant stabbed the victim, killing him. The California Court of Appeal concludes that the evidence demonstrated that the defendant committed an assault with a deadly weapon on the victim, an inherently dangerous felony, causing the victim's death. The California Court of Appeal also says that it was reversible error to fail to give the jury a voluntary manslaughter instruction, in addition to heat of passion and unreasonable self defense. The California Court of Appeal says that there is a third category of voluntary manslaughter. That category, applicable here, is "an
unintentional killing without malice committed during the course of an
inherently dangerous assaultive felony."

People v. Bryant; 2011 DJ DAR 12011; DJ, 8/10/11; C/A 4th, Div. 1

California Penal Code sec.12022.6 adds a year in prison if the amount stolen exceeded
$50,000; this is often called the "great taking" enhancement. The defendant here was convicted of two embezzlement charges. Can the DA add up the losses to get the enhancement?

Yes, but only if the losses to be aggregated were pursuant to a "common scheme or plan." It turns out that there's no definition of "common scheme or plan."

This Court of Appeal engrafts (their term) the definition from Ewoldt (7 Cal.4th 380), the case on California Evidence Code sec. 1101. A common scheme or plan is established where there is a "concurrence of common features that the various losses are naturally to
be explained as caused by a general plan of which they are the individual manifestations.

Further, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual."

Got that? Anyway, the Court of Appeal finds that the two embezzlements here were NOT pursuant to a common scheme or plan.

People v. Green; 2011 DJ DAR 11817; DJ, 8/8/11; C/A 4th, Div. 1

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In 2004, California proposition 69 was enacted, greatly expanding collection of DNA. One of the provisions of Prop. 69 required collection of DNA from anyone arrested or charged with a felony. This Court of Appeal strikes down the provision requiring collection of DNA from anyone merely arrested for a felony. This is a lengthy opinion, well worth reading, for its discussion of DNA as well as the rules governing the constitutionality of statutes infringing on the right to privacy. The California Attorney general argues that DNA collection is a really good way to fight crime. The Court of Appeal says that even if DNA testing of arrestees is demonstrably valuable, that doesn't make it constitutional.

The California Court of Appeal says, "We conclude that the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial
or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment."

People v. Buza; 2011 DJ DAR 11714; DJ, 8/5/11; C/A 1st, Div. 2

Continue reading "CALIFORNIA CRIMINAL LAWYER: MANDATORY DNA COLLECTION FOR FELONY ARRESTEES IS UNCONSTITUTIONAL" »

The prosecution discovery statutes enacted by Prop. 115, Penal Code sec. 1054 et seq., limit discovery to the items listed. But Penal Code sec. 1054.4 provides that nothing in these provisions is to be construed to limit the prosecution from getting nontestimonial evidence. The criminal defendant here is a corporation. The DA issued a subpoena for internal corporate records about the structure of the corporation. The California Court of Appeal rules that this
information is nontestimonial, since it was voluntarily created by the corporation as part of its business. Since it is nontestimonial and since corporations have no 5th Amendment rights, there's no ban against the DA getting it.

Of course, we always thought that nontestimonial information was stuff like being required to stand in a lineup or display tattoos. If this gets thrown in your face, focus on your client
HAVING a 5th Amendment right, unlike this corporation. Incidentally, the California Court of Appeal brushes aside the defense claim of lack of reciprocity. The Court of Appeal says that due process doesn't really require reciprocity, it just requires that the defense not be surprised. Wow.

People v. Appellate Division (World Wide Rush); 2011 DJ DAR 11095;
DJ, 7/25/11; C/A 2nd, Div. 1

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

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

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.

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

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

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

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.

DOES MIRANDA APPLY AT PROBATION VIOLATIONS? NO

This California Court of Appeal holds that statements made in violation of Miranda may be used at a probation violation hearing. There's some case law saying that a 4th Amendment violation doesn't require exclusion of the evidence at a probation violation hearing, unless that violation shocks the conscience of the court. (See Hayko, 7 Cal.App.3d 604.) This Court of Appeal takes that and runs with it. Their exception is the related and perhaps lesser
standard of whether the police engaged in "egregious conduct." This case is just wrong. An officer violating his training and the constitution is always egregious.

People v. Racklin; 2011 DJ DAR 7220; DJ, 5/20/11; C/A 1st, Div. 1

Continue reading "SAN DIEGO CRIMINAL DEFENSE: MIRANDA DOES NOT APPLY TO PROBATION VIOLATIONS" »

Here we have a § 1983 (civil rights) case where a vendor selling goods to the city publicly criticized the city’s procurement practices. He claimed city officials retaliated against him by not giving him some bids and contracts. MSJ granted and reversed.

Here's the holding:

[1] Complaints of government misusing funds is squarely protected by the First Amendment. A question of fact remains whether any causal relationship between Plaintiff's criticism and losing bids, and whether Plaintiff suffered any adverse action. [2] Government act of retaliation need not be severe to qualify as an adverse action sufficient to state a 1983 claim.

Marez v Bassett, 595 F.3d 1068 (9th Cir. 2010)

This is a § 1983 civil rights case regarding "overdetention" of jail inmates.

Here, the Court held that overdetention of 27 hours was not a matter of deliberate indifference (See, Monell 436 U.S. 691) where administrative processing led to 43 overdetentions and 50,957 timely releases, and where new procedures had ‘dramatically decreased’ overdetentions. MSJ properly granted. Law of case did not prevent MSJ where prior appellate opinion dealt with related issues, not issue presented on MSJ [subtle distinction].

Mortimer v Baca, 594 F.3d 714 (9th Cir. 2010)