California Criminal Lawyer Blog

Criminal defense attorney and civil rights litigator Mary Frances Prevost has been nominated as a semi-finalist in the San Diego Daily Transcript's "Top San Diego County Attorneys" competition. Prevost received the honor after more than 7,000 San Diego attorneys voted for the best lawyers in several fields.

Click HERE to see the semi-finalist results.

This is the second nomination of Prevost by her fellow attorneys. In 2005, she was also voted a semi-finalist in San Diego's Top Attorneys.

Prevost, a 1991 graduate of California Western School of Law has been practicing state and federal criminal defense for 16 years. Some of the highlights of her career:

* Her investigation into the dangerous and unlawful policy of using unlicensed personnel to draw blood for law enforcement caused the California Department of Health Services to issue a "Cease and Desist Order" to American Forensic Nurses, the agency used by law enforcement to draw blood in DUI cases in San Diego and Riverside counties. As a result of Prevost's challenge to the unlawful use of unlicensed personnel to draw blood in dui cases, the California legislature changed the law to add protections for DUI suspects in cases where their blood was drawn.

* Recusing the Imperial County bench and getting a retired appellate justice to issue a stay of proceedings during trial. Prevost complained to the appeals court that the policy of the Imperial County courts in conducting part time trials in criminal cases was contrary to law and caused severe prejudice to her out-of-town client. Prevost intends to file an injunction in the next few weeks to shut down the illegal practice of conducting part-time trials.

* Getting a reversal in the California Court of Appeal on the trial's court's refusal to produce evidence of misconduct on San Diego's top DUI cop. Prosecutors and police legal advisors alike knew the officer was falsifying reports, but put up roadblocks to protect him

This is the second honor for San Diego Criminal Defense Lawyer Mary Frances Prevost. In 2005 she received such honors from the San Diego Daily Transcript when her colleagues singled out her achievements and placed her in the semi-finals of the San Diego Daily Transcript's Top attorneys competition.

San Diego Criminal Defense Lawyer and Civil Rights Litigator Mary Frances Prevost handles state and federal criminal defense cases throughout California. She also handles select civil rights cases throughout the state. She has taught at the California and Florida State Bar Conventions, the California Public Defender's Association annual seminar, the Minnesota Criminal Justice Attorneys' Annual Criminal Defense Seminar in Las Vegas, and is scheduled as a key speaker at the San Diego Public Defender's Association annual DUI seminar in Monterey in June.

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Minnesota Attorney General Encouraged Concealment of Breath Tests' Critical Flaws Roseville, MN. June 5th, 2008 ---- Criminal Defense Attorney Chuck Ramsay announced today that he will intercede in The Minnesota Department of Public Safety's federal lawsuit against intoxilyzer manufacturer CMI of Kentucky, Inc.

In March 2008, The Minnesota Attorney General's office filed a federal suit against CMI on behalf of the Minnesota Department of Public Safety. The suit alleges that CMI breached the contract for the sale and maintenance of a fleet of evidentiary breath test instruments to be used by the State, for the purpose of investigating and prosecuting the crime of DWI. In that contract, CMI agreed to sell and maintain the fleet of instruments and to release information pertaining to each respective instrument when ordered to do so by the courts. CMI also expressly agreed that any intellectual property material originating and arising out of the contract would become the sole property of the State. CMI breached both of those obligations.

Ramsay claims the state filed suit only in response to judges' complaints of aggressive litigation by criminal defense attorneys demanding access to the software from the courts.

Ramsay states that as early as 2006, the Minnesota Bureau of Criminal Apprehension knew its 200 plus intoxilyzers were malfunctioning. Minnesota's Intoxilyzer 5000 displays a driver's alcohol results on its LED readout; yet sporadically records a higher result on the final test record. The state discovered this and other fatal defects after hastily installing the current Intoxilyzer software in 2005. This prompted the BCA to complain to CMI about the discovered oddities. A BCA employee sent the complaint via email to five CMI representatives and four BCA employees.

This email uncovered by Ramsay exposed what Ramsay calls a smoking gun, evidencing the need for independent review of the Intoxilyzer's software. The State continues to use the bug-riddled software to operate its more than 200 Intoxilyzers, administered to nearly 34,000 drivers annually.

According to the BCA employee, the Attorney General's office, fearing an escalation in the so-called source challenge, advised the BCA to wait until the challenge had lost momentum.

Ramsay intends to file a motion to intervene in the federal lawsuit the AG filed against CMI, a Kentucky corporation. "Its clear the AG will not protect the rights of Minnesotan's in that law suit. I'm intervening to ensure justice prevails. Otherwise, the AG will use this case only for appearance."

"These black boxes not only deprive citizens' of their right to drive, but also put innocent people in jail. The Minnesota Attorney General, our state's chief prosecutor, chose to protect the interests of a secretive, foreign company rather than fight for the constitutional rights of Minnesota citizens. Most alarming, is that the AG encouraged the cover-up of a fatally flawed breath machine that the public, police and courts believed, and still believe, to be 100% accurate."

Continue reading "MINNESOTA ATTORNEY GENERAL ENCOURAGES CONCEALMENT OF BREATH TESTS' CRITICAL FLAWS" »

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Posted In: Breath Testing , DUI Defense , Dirty Tricks in the Crime Lab , In The News , Police Misconduct Cases , Prosecutorial Misconduct

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May 26, 2008

EAST COUNTY – Three people are facing drug smuggling charges after Border Patrol agents seized more than 1,000 pounds of marijuana from two vehicles, officials said. Patrol Patrol agents say they stopped this vehicle with large packages of marijuana in the back.

On Thursday morning, agents spotted a Chevrolet Tahoe with two people inside on westbound Interstate 8 near Pine Valley. The SUV was followed to the parking lot of an El Cajon grocery store, where a search of the vehicle netted 96 bundles of marijuana with a total weight of 997 pounds, officials said.

Later that morning, a drug sniffing dog alerted agents to the possibility of drugs inside a Honda Accord at the Border Patrol checkpoint in Pine Valley, officials said. Agents found more than 92 pounds of marijuana hidden in the vehicle's door panels, officials said.

Continue reading "SAN DIEGO DRUG SMUGGLING DEFENSE: THREE PEOPLE FACE CHARGES OF SMUGGLING 1000 POUNDS OF MARIJUANA" »

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May 26, 2008

CHULA VISTA: Nine people were hurt yesterday morning when a woman suspected of drunken driving drove the wrong way on Olympic Parkway and crashed into a sport utility vehicle carrying eight people, Chula Vista police said.

The crash occurred shortly before 3:30 a.m. when a 19-year-old woman drove her Hyundai Accent west in the eastbound lane, police Lt. Tro Peltekian said. Her car collided with a Honda SUV that was heading east on Olympic Parkway near Oleander Drive, Peltekian said.

The 19-year-old was taken to a hospital with serious injuries, police said. Police arrested her at the hospital on suspicion of felony driving under the influence, Peltekian said.

The driver and seven passengers of the SUV also were taken to hospitals. The range of their injuries was described as minor to moderate, police said.

Continue reading "CHULA VISTA DUI DEFENSE: NINE PEOPLE HURT IN SUSPECTED DUI ACCIDENT-DRIVER DROVE THE WRONG WAY" »

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May 21, 2008

ORANGE COUNTY SHERIFF'S DEPUTY CHARGED WITH FILING 18 FALSE POLICE REPORTS IN DNA PROPERTY CRIMES PROJECT

SANTA ANA - An Orange County Sheriff's deputy was charged this morning with filing false police reports with the Orange County Sheriff's Department (OCSD). Jason Christopher Brant, 33, Chino, is charged with 18 misdemeanor counts of filing a false report as a peace officer. He faces a maximum sentence of 18 years in jail if convicted. Brant is scheduled to be arraigned Thursday, May 29, 2008, at 9:00 a.m. at the Central Justice Center in Santa Ana.

In 2005 the Orange County District Attorney's Office and OCSD received a grant from the National Institute of Justice. The grant funded a South Orange County project to determine the effectiveness in using DNA to solve property crimes.

Brant, a sworn deputy, is a 10-year veteran with the OCSD and was selected by the Department to work on this project. He was assigned to follow up on 39 of the 500 property crimes cases that were selected for DNA testing. Brant's job included contacting the victims of 39 cases that occurred between 2005 and 2007, conducting 39 follow-up investigations, collecting contact information from the victims in the event that a DNA match led to an identification of a defendant in their case, and determining the victim's willingness to cooperate in the case.

On January 14, 2008, Brant submitted 39 reports to OCSD. Of those 39 cases, Brant is accused of filing 18 false police reports stating that he had contacted each victim by telephone and they had declined to cooperate in the investigation.

Continue reading "ORANGE COUNTY COP CHARGED WITH FILING FALSE REPORTS " »

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Posted In: Bad Cop - No Donut , Civil Rights , In The News , Police Misconduct Cases

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The defendant was on federal supervised release and was drug tested. It was the second test in as many days. This test was "positive" for cocaine. The defendant protested vigorously. Even though she was watched while she gave the sample, the sample registered "diluted" when it was tested.

Despite some questions about accuracy of the test, procedures, and dilution, the court refused to let counsel cross examine the lab technician. The court found defendant guilty of drug use. The 9th Circuit Court of Appeal (Bea joined by Berzon and Gibson) reversed.

The 9th held that the test results here were shown to be unreliable given the observing of the defendant while providing the sample, and questions as to the accuracy, and so cross examination of the lab tech was needed. Denial of that right was error. The defendant needed the chance to contest the results.

The government tried to argue that the reputation of the national lab for probationer drug testing and the expense (it was in Virginia and the defendant in Hawaii) did not require the lab tech to be in person. After all, their super duper labs can never, never, never make mistakes, right?

Yet, as the 9th Circuit pointed out, the lab itself had raised questions about the sample given the unexplained "dilution." The 9th Circuit wondered why the government did not provide a video feed, or arrange for a depo in Virginia, or even a phone cross-exam.

Moreover, the district court erred in disbelieving the defendant solely because of past offenses or drug use. What? Guilt by assumption again?

The 9th Circuit says the focus has to be on the present violation, and not what had happened in the past. The Court keeps stressing that this is an unusual case because the test result on its face was unreliable. Still, it establishes again that proof is required for a violation and defendant has a right to contest it.

U.S. v. Perez, No. 07-10289 (5-16-08).

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In an en banc decision, the 9th Circuit Court of Appeal (Fisher) upheld a district court's discretion, pursuant to Fed. R. Crim. P. 2 and 16, and its inherent authority, to order disclosure of the government's witness list and to hold the government to it.

The court can do so to allow for orderly trial.

The 9th Circuit therefore joins other circuits that have so held. The 9th Circuit also spent a lot of time discussing whether the governement could appeal the district court's order interlocutorily by only citing the barest of justifications ("not for delay" and "substantial proof" is material) under 3731. The 9th Circuit decides that following the sparse language, so long as it is certified by the U.S. Attorney is good enough. Concurring in judgment, Hawkins, Pregerson and Wardlaw would require more than the government's "say so."

U.S. v. W.R. Grace et al., No. 06-30192 (5-15-08) (en banc).

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after affirming trial court denials of recusals of prosecutors in the two cases discussed below, stressing that appellate courts should defer to trial courts, the Supreme has abandoned any
pretense of integrity and reverses the juvenile court's recusal order here.

The DA not only objected to disclosure of the victim's medical and psychiatric records, the DA moved to quash the SDT and filed a writ petition after that motion was denied.

The Supreme Court does not overrule the case (Bullen, 204 CA3d 22) saying that the DA can't actually represent victims or witnesses; they just say that the DA didn't do that here. Right, moving to quash and running a writ wasn't representing the victim? What did the DA need to do, file a formal written notice of appearance?

Anyway, the Supreme Court says that although the DA can't represent the victim, and the DA isn't entitled to participate in a hearing on disclosure of the victim's records, the DA also isn't barred from participating. And sure, the DA may have overdone things with that writ and all, but they were just wrong, and being zealous and even wrong isn't a conflict.

People v. Superior Court (Humberto S.); 2008 DJ DAR 6791; DJ,
5/13/08; Cal. Supremes

Continue reading "NO RECUSAL OF PROSECUTORS FOR REPRESENTING A VICTIM-OUTRAGEOUS" »

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The United States Supreme Court in Doyle found a due process violation if the prosecutor commented on the defendant's silence. The question here is whether the prosecutor could argue omissions in defendant's post-arrest statement before invoking her Miranda rights. The 9th Circuit Court of Appea; (Wilken, D.J., joined by Graber and Berzon) held that the prosecutor could not.

The defendant was arrested coming cross the border with cocaine in the gas tank. She at first waived her Miranda rights and made a statement that she had lent her car, and had just gotten it back, and was going to drive it to L.A. After seven minutes or so, she then invoked her Miranda rights. At trial, the agent who took the post-arrest statement acknowledged changes in his notes and cross-outs. The defendant testified and was crossed on inconsistencies. There were also corroborating witnesses to her version.

In closing, the prosecutor hammered on omissions in her post-arrest statement, and the inconsistencies with her trial testimony, implicitly commenting on her invocation of silence. This was a due process violation. It was not harmless given the focus on her credibility.

U.S. v. Caruto, No. 07-50041 (5-12-08).

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SAN DIEGO DUI DEFENSE ATTORNEY NEWS:

Southern California law enforcement will step up DUI enforcement over the summer. Law enforcement will really step it up over the holidays, starting with Memorial Day weekend, and simmering down after Labor Day.

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

1. If you drive during the summer 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. 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)

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THE QUESTION POSED IN THIS AMAZING CASE IS: Can an AUSA's reckless disregard for constitutional discovery obligations serve as a basis for a dismissal of an indictment with prejudice? Yes! United States v. Chapman __ F.3d __, 2008 WL 1946744 (9th Cir. May 6, 2008). Decision by Judge Kim Wardlaw; joined by Judges Hawkins and O’Scannlain.

Facts: Chapman was prosecuted for running a “box job;” a stock-fraud scheme involving shell corporations and dummy directors. Although in ‘04 the government promised to disclose Brady, Giglio, and Jencks information prior to trial, in ‘06 – the day before trial – it suddenly revealed for the first time it would call its case agent for whom no discovery had been disclosed. As the trial progressed, priors of two prosecution witnesses were disclosed for the first time on direct.

When this happened a third time during trial, the government disclosed (for the first time) over 650 pages of rap sheets, plea agreements, and cooperation agreements. A frustrated district judge declared a mistrial, and after briefing on the discovery violations dismissed the indictment.

Issue(s): “The district court dismissed an indictment . . . after the prosecution admitted that it failed to meet its obligations to disclose over 650 pages of documents to the defense. We must decide whether the government’s appeal of the dismissal is precluded by the Double Jeopardy Clause . . . [and] whether the dismissal was proper.”

Held: 1. Double Jeopardy: “[W]e hold that the ‘manifest necessity’ exception [to the Double Jeopardy Clause] applies to this case . . . . We conclude that the Double Jeopardy Clause does not bar the government’s appeal under the circumstances presented here . . . .”

Discovery Sanction: “[W]e affirm as to . . . the dismissal of the indictment . . . .” I

Of Note: Chapman stands out for the Ninth’s endorsement of a severe discovery sanction, but the case is also of interest for its discussion of the “manifest necessity” concept for mistrials and Double Jeopardy. In essence, if there is a mistrial after the jury is empaneled but before a verdict, a defendant can be tried again for the same crime if 1) “he consents to the dismissal,” or 2) “if the district court determines that the dismissal was required by ‘manifest necessity.’” The classic example of “manifest necessity” is a deadlocked jury – but as shown here, the doctrine can defeat a Double Jeopardy claim when there is a mistrial because of government misconduct. It is a complicated concept: for example, evidence that the government sought a mistrial to gain tactical advantage earns the “strictest scrutiny” on appeal, instead of a review for “abuse of discretion.” Chapman is worth a spot in a trial binder to remind of Double Jeopardy ramifications of a mistrial, and how to make the appellate record when a mistrial arises.

How to Use: The Very Important Rule of Chapman is this:

A district court can exercise its supervisory powers and dismiss an indictment with prejudice even when the AUSA has committed no intentional discovery violation, if there is “reckless disregard for the prosecution’s constitutional obligations.”

One of the AUSA’s major sins here was his failure to keep a discovery log. It is rare to catch a prosecutor in a deliberate discovery violation, but sloppy, “inadvertent” failures to disclose are as commonplace as government discovery logs are rare. Particularly in complex, large-discovery cases – like wiretaps, big fraud conspiracies, and SEC-related prosecutions – Chapman finally puts some teeth in criminal discovery rules. In these big cases, the Chapman opinion should figure prominently in initial discovery letters and defense discovery motions.

For Further Reading: The federal bench has been buzzing about the recent Qualcomm civil discovery sanctions: over $9 million in fines and a half-dozen attorneys referred to the California State Bar for disciplinary action. See Qualcomm v. Broadcom, 05 CV 1958-RMB (BLM), Ord. (S.D. Ca. Jan. 7. 2008).

By contrast, what happened to the AUSA(s) after their "flagrant" discovery violations in Chapman? Actually, who were the AUSAs in Chapman? A liberal latté on me, for anyone who finds their names in the opinion. (Wasn’t it just a week ago that the Ninth lectured us on the “public’s right to know” the names of wrong-doers in published opinions? See United States v. Stoterau, 2008 WL 1868997 (9th Cir. Apr. 29, 2008)).

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75 students arrested in San Diego State University drug bust
By ALLISON HOFFMAN – 50 minutes ago

SAN DIEGO (AP) — Dozens of San Diego State University students were arrested after a sweeping drug investigation found that some fraternity members openly dealt drugs and one even sent a mass text message advertising cocaine, authorities said Tuesday.

Two kilograms of cocaine were seized, along with 350 Ecstasy pills, marijuana, psychedelic mushrooms, hash oil, methamphetamine, illicit prescription drugs, several guns and at least $60,000 in cash, authorities said.

Of the 96 people arrested, 75 were students. Eighteen of the students were arrested Tuesday when nine search warrants were executed at various locations including fraternities, said Jesse Rodriguez, San Diego County assistant district attorney.

The undercover probe, dubbed Operation Sudden Fall, was sparked by the cocaine overdose death of a student in May 2007, authorities said. As the investigation continued, another student, from Mesa College, died Feb. 26 of a cocaine overdose at an SDSU fraternity house, the DEA said.

Those arrested included a student who was about to receive a criminal justice degree and another who was to receive a master's degree in homeland security.

"A sad commentary is that when one of these individuals was arrested, they inquired as (to) whether or not his arrest and incarceration would have an effect on him becoming a federal law enforcement officer," said Ralph Partridge, special agent in charge of the U.S. Drug Enforcement Administration in San Diego.

Some defendants were scheduled to appear in state court to face charges Tuesday.

During the probe investigators discovered that in some fraternities most members were aware of "organized drug dealing occurring from the fraternity houses by its members," the DEA said in a news release.

"Undercover agents purchased cocaine from fraternity members and confirmed that a hierarchy existed for the purpose of selling drugs for money," the DEA said.

The district attorney's office said search warrants were served in San Diego and suburban La Mesa, including the Theta Chi fraternity house and several apartments.

A member of Theta Chi sent out a mass text message to his "faithful customers" stating that he and his "associates" would be unable to sell cocaine while they were in Las Vegas over one weekend, according to the DEA. The text promoted a cocaine "sale" and listed the reduced prices.

Theta Chi's San Diego chapter declined to comment.

"We're talking to our advisers," said John Phillips, a past president of the chapter.

Dale Taylor, the fraternity's national executive director, said he was "obviously shocked and saddened" by the allegations.

Theta Chi has prohibited the San Diego chapter from group activities like parties or sports and will investigate additional disciplinary measures, up to expulsion of members or the entire chapter.

Theta Chi, based in Indianapolis, has 131 chapters in the U.S. and Canada and more than 161,000 initiates. It was founded in 1856.

The San Diego chapter was founded 61 years ago and has 65 members.

"They were on the upswing," Taylor said. "They had improved their recruitment. They were trying to raise money for a new house."

University police and federal drug agents worked together in the investigation, making more than 130 undercover drug buys at locations including fraternity houses, student parking areas and dormitories, authorities said.

Shawn Collinsworth, executive director of the national office of Phi Kappa Psi, said he was told by two of the SDSU fraternity chapter's leaders that four of its members were arrested. He said the fraternity is cooperating with the investigation.

"It isn't behavior becoming of Phi Kappa Psi," Collinsworth said.

San Diego State is one of the largest schools in California's state university system with about 34,000 students. The campus has an active network of fraternities and sororities.

Continue reading "75 STUDENTS ARRESTED IN SDSU DRUG BUST-GUNS INVOLVED" »

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