Drug crimes

Published on: October 10, 2013

In Orange County, CA, Didn’t Have a Drop to Drink but Still Got Arrested for DUI?

by Law Offices of Rudolph E. Loewenstein

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Were you arrested for DUI but didn’t have a single drink all night? It’s a common misconception that if you have a blood alcohol content under 0.08 you cannot be found guilty of a DUI. This probably comes from Vehicle Code Section 23152(b) which says you can be arrested if you’re BAC is over 0.08. But lots of people are unaware that you can also be in violation of Vehicle Code Section 23152(a), which simply says you’re guilty of driving under the influence (DUI) if an officer thinks that you are unable to safely operate your vehicle because of alcohol or drugs. Not only does this mean that you can be found guilty of DUI if your BAC is below 0.08, but you can be found guilty even if you haven’t touched a drop of alcohol.

What’s worse is that violating Vehicle Code Section 23152(a) doesn’t require you to have a hard drug in your system. While having meth, cocaine, or another hard drug in your system will certainly get you in trouble, many people don’t realize that having everyday prescription drugs such as Xanax, Vicodin, or Ambien put you at just as much risk. Having a prescription doesn’t automatically put you in the clear either! If you’ve taken more than your prescribed dosage for instance, you’re going to have trouble on your hands. And even if you’re within your prescribed range, you can still be guilty of violating Vehicle Code Section 23152(a).

Before you know it your license has been suspended, you’re facing time in a county jail, and you have to pay thousands in court fees and fines — all because you took your prescription medication. If you have an experienced attorney on your side, he will be able to schedule a hearing with the DMV to attempt to save your license from suspension. He’ll be able to analyze the police reports and videos of your incident, and make sure the district attorney’s office is aware of your legal prescription for your medication. If you’ve been arrested for DUI, it’s important to have a good attorney, even if you didn’t drink!

Published on: November 20, 2012

Driving Under the Influence of Ambien in Orange County CA

by Law Offices of Rudolph E. Loewenstein

Ambien is a commonly used sleep aid. What isn’t commonly known is that there are a significant number of reported cases of people “sleep driving” after taking Ambien. In the recent case of People v Mathson a California Court of Appeal, for the first time, has ruled on a defense of sleep driving while under the influence of Ambien.

Mr. Mathson took Ambien at bedtime and later was found guilty by a jury of driving under the influence of drugs, a violation of California Vehicle Code (CVC) Section 23152(a). On appeal, the Court noted that voluntary intoxication is not a defense to driving under the influence. However, if after voluntary ingestion of a drug such as Ambien there is an unconscious act, like sleep driving, is it a crime? The Court stated the non-controversial rule that involuntary intoxication is a defense to CVC 23152(a). The controversial part of the ruling is that the Court suggested there be a jury instruction that states: “A person is involuntarily intoxicated if he or she willingly and knowingly ingested a prescribed drug and did not know or reasonably could not have known of the drug’s intoxicating effects”.

In essence the Court ruled that if the Defendant was aware or should have been aware of the side effect of Ambien, sleep driving, then it isn’t involuntary intoxication (which is a defense). However, if he didn’t know or have reason to know that Ambien could cause sleep driving, then even though Mathson voluntarily took the drug it was involuntary intoxication which is a defense to driving under the influence. Many factual differences occur in every case and while it is now clear that sleep driving can be defended successfully every case will turn on it’s own particular facts.

Published on: November 6, 2012

Driving While Under the Influence of Drugs in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

Many prosecutor’s offices, including the Orange County District Attorney’s Office, now have special Deputy District Attorneys who are designated to prosecute Driving Under the Influence of Drugs cases. The violation of California Vehicle Code Section (CVC) 23152(a) can consist of a combination of alcohol and drugs causing impairment in a driver’s ability to drive. Increasingly DUI charges are being brought against people who have not consumed any alcohol but are solely accused of driving under the influence of drugs.

At first, the image that comes to mind is that of a drug crazed driver who is under the influence of an illegal substance such as methamphetamine or heroin. However, the District Attorney’s Office is targeting not just those drivers but the driver who has taken prescription medication. A driver who takes a prescribed medication that impairs his ability to drive his vehicle safely is also subject to prosecution for DUI. A note written on a doctor’s prescription pad is not being taken as a defense by prosecutors. Even doctors themselves are being prosecuted for DUI if their blood is found to contain prescription drugs following an arrest for DUI.

Many medications commonly warn of possible driving impairment after ingestion. However, the fact that a driver has consumed the medication and it is found in the blood is not the end of a driver’s defense to a charge of DUI. The blood must be tested to determine if the level of the prescribed drug in the blood is above the therapeutic level. If it is above the therapeutic level it can lead to the conclusion that the symptoms the driver is exhibiting is the result of the medication. However, even that is not the last word in the defense of DUI drug cases. If a driver has taken the medication found in the blood for some time or suffers from a severe form of whatever the medication is prescribed for, the above therapeutic level amount may be explained as not being the cause of the symptoms the officer is seeing at the time of the arrest.

Published on: November 16, 2011

Orange County, CA Veterans and the Criminal Justice System – Part 2

by Law Offices of Rudolph E. Loewenstein

Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) is a real problem in our veterans returning from combat deployments. Many times the conditions are not diagnosed until the veteran becomes a defendant in the criminal justice system. How the criminal justice system deals with these defendants is a great challenge in the future.

The Veteran’s Court has been instituted in some courts in California in an effort to acknowledge the veteran’s service and deal with it in an organized, comprehensive fashion complete with Veteran’s Administration participation. Yet, what happens to the veteran who doesn’t qualify for Veteran’s Court? While Veteran’s Court is a great alternative when available, in some jurisdictions, Veteran’s Court doesn’t even exist. Now Veteran’s Court funding, as all the system’s funding, is at risk.

The prosecutor who is willing to consider the defendant’s service in a meaningful way has many options at his disposal, short of entry into Veteran’s Court. A criminal defense attorney needs to present a creative alternative to a conviction or a jail sentence to the prosecutor. For example, a criminal case could be delayed with the requirement that the defendant attend counseling, job training, and medical evaluation. Community service is an option that could be added to any delay or continuance of the proceedings. The goal of the delay would be to show the prosecutor that the defendant deserves a second chance. The defendant must be willing to meet his obligation to overcome the issues that brought him to the criminal justice system’s attention. If drugs or alcohol are the cause of criminal conduct, the defendant has to meet the challenges that addiction brings. In-house residential treatment instead of jail time should be considered as an option. Out-patient follow up with vocational training showing the prosecutor that this defendant is not likely to re-offend is a must.

Published on: November 14, 2011

Orange County, CA Veterans and the Criminal Justice System — Part I

by Law Offices of Rudolph E. Loewenstein

Veteran’s Day is celebrated once every year by the country. Yet the sacrifice by our veterans is not always so easily recognized any day in the current criminal court system.

Often times I represent men and women who have served our country both in actual combat and in supporting roles. These individuals find themselves traumatized by their service experience to the United States of America. When they come home, all too often there are difficulties coping with day to day life. Sometimes hurdles seem too high to overcome. Depression can set in. Self-medication with drugs and alcohol can become an unhealthy and illegal fix to problems that seem overwhelming.

Once the veteran turns to drugs and alcohol he encounters the criminal justice system. When that happens, what role should the veteran’s military service play in the disposition of the case? I think that the veteran deserves every consideration possible under the law. The prosecutor should evaluate the case understanding that the veteran’s (defendant’s) service has helped protect the very system he now finds himself in.

Published on: December 29, 2010

California Penal Code 647 (a) Entrapment… Could it Happen to You?

by Law Offices of Rudolph E. Loewenstein

The basic rule of entrapment (California Penal Code 647a) is that to qualify as a defense, the police have to actually plant the idea of the crime in your head. They must do this by engaging in some type of enticement. One of the ways this is done is to make the reward so lucrative the police essentially overcome your free will. This can also be accomplished if the defendant is in an especially vulnerable position. Entrapment can be a complete defense to charges of wrongdoing.

This will be easier to understand by looking at an example. In the early 1980’s, James DeLorean, the man who invented the DeLorean car was in danger of losing his automobile company because he was in deep financial trouble. The FBI and Drug Enforcement officials devised a sting operation in which informants and undercover FBI agents came to DeLorean and wanted him to sell 55 pounds of cocaine. DeLorean had no prior record and no history of drug sales.

Lawyers for DeLorean argued that he was in an especially vulnerable position in that his company was on the brink of disaster. In addition, they argued, the agents offered an amount of money that was so huge that no reasonable person would be able to turn it down. DeLorean, they argued, never had any intention of selling drugs until the FBI agents planted the idea in his head. A jury agreed with the defense and acquitted DeLorean of the charges. This was reported in Time Magazine.