Articles Posted in General Information on Criminal Law

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How does the NSA surveillance scandal affect you personally? Most people take the attitude that the NSA snooping into everyone’s lives is harmless if you have nothing to hide. The problem is sometimes we don’t know we’re hiding something! There are thousands upon thousands of laws, and it’s impossible for even the most experienced lawyer to know all of them. Everyone at some point in time has made a harmless mistake and broken a law. Merge into another lane without using your blinker? Well it’s not too farfetched to think that in a surveillance state even these small actions might eventually result in harsh punishment and prosecution. But the NSA can’t arrest you! Plus they’re only interested in terrorists! What a waste of time it is to get worked up over this!

Well, while the NSA can’t arrest you themselves, it is becoming apparent that whatever they learn about your life gets passed along to law enforcement. You might be wondering how this is constitutional! They can’t just snoop on you and violate your constitutional rights and then arrest you can they? Well, it turns out that law enforcement agencies use something called “parallel construction” to make it legal.

Parallel construction occurs when the NSA gives a law enforcement agency a “tip”, and this law enforcement agency uses this tip to invade every aspect of your life until they can construct a legal way to introduce that evidence in a case against you. Right now the Drug Enforcement Agency is the biggest culprit. But even the IRS is in on this action! This is the scariest part! Where does it stop? Will the NSA give tips to local and state law enforcement? It’s a brave new world when your government can spy on you at will illegally, and then help law enforcement agencies arrest and convict you legally. So whenever someone says they have nothing to hide, ask them “Who watches the watchers?”

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Are you a defender of the 2nd amendment? One of the most valued personal liberties in the United States is the right to bear arms. Just recently, the United States Supreme Court reiterated that the 2nd amendment guarantees the right to personally possess firearms (http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller). But it’s important to realize that this doesn’t mean you get to carry a firearm wherever you like, whenever you like. For instance, California does not allow a citizen to openly carry a loaded firearm in public (http://codes.lp.findlaw.com/cacode/PEN/3/4/2/1/2/s12031)! In fact, even carrying an unloaded firearm can get you into trouble these days.

But what is most troubling is that you can get in trouble for accidentally having a firearm or some form of ammunition on you. For instance, did you know that if you accidentally bring an empty magazine or even a single bullet into an airport, you can spend up to 6 months in jail? It doesn’t matter if you have a firearm, or the ability to use that ammunition. It doesn’t matter if it was just an accident; you can and will be charged with a violation of the Penal Code! Many people are unsure of where your 2nd amendment rights begin and end. That’s why it’s very important to have a good advocate on your side so you don’t spend 6 months in jail for an accident!

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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!

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Just because you’re guilty of committing a crime with a mandatory jail sentence doesn’t mean you have to serve time in jail! Many crimes in California carry mandatory minimum jail sentences. Most commonly those who receive a second DUI conviction within 10 years of their first will find themselves facing time in the county jail. If it’s mandatory it must mean there’s no way to avoid it right? It must mean hiring a lawyer just isn’t worth it; after all how could they possibly help you?

Well, turns out that in California a savvy criminal defense lawyer would know that secured electronic confinement (SEC) is always an option! SEC can take many forms in California, depending on the county you live in. While many people think it literally means you can only stay in your house, that’s not true. Your lawyer can attempt to get exceptions for work, school, or other necessary tasks you must attend to on a regular basis.

So how does this process work? Let’s say the District Attorney doesn’t want to budge and will only offer a plea deal involving 60 days of jail(!). If the DA will not agree to SEC, your attorney can still ask the Judge if he would be willing to grant some or all of that time as SEC. Even if the *Judge* doesn’t agree, you can ask the jail facility you are taken to if they are willing to release you on SEC. With the jails being so overcrowded in California, these requests are often granted. The problem is, if you don’t know about it then you won’t get it! Yet another reason to make sure you have good counsel, regardless of the charges against you.

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Are you worried that a loved one with mental health issues is being railroaded by the system? As a society our understanding and compassion for those who suffer mental health issues is still evolving. But when a loved one suffers under the weight of such an issue, this evolution can seem painfully slow. For instance, sometimes loved ones suffer from an affliction that robs them of their ability to understand the consequences of their actions, or to even understand what is going on around them at all. Unfortunately, the District Attorney’s office will not take this into account when piling charge after charge against your loved one. In fact, they’re likely to accuse them of “faking it” or “making it up.” No one else will watch out for your loved one’s interests during a criminal proceeding except for their attorney.

For instance, in California, Penal Code Section 1368 allows for an attorney to express a doubt to the court over whether or not their client is competent to take part in criminal proceedings. The Court must hold a hearing if such a declaration is made, and through this hearing your loved one may be given grace to receive treatment for their disease(s). While this does not erase the criminal charges against them, it does mean that they will be assured a stay at a hospital that can effectively nurse them back to health. Only when they’re able to understand the serious nature of the charges against them and provide help in their defense can they be subjected to the stresses of the criminal justice system

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Just imagine this scenario: you get arrested for something, are released from the police station later that day, and never hear anything from the police or district attorney’s office again. Then months or maybe years later you get pulled over for a simple speeding ticket, or try to renew your driver’s license and find out there’s a warrant out for your arrest! This happens all the time! Because our courts are so backed up sometimes District Attorney’s offices simply don’t get around to pursuing and completing a criminal action against you. So without knowing it, you might have missed a court date, or have a warrant for your arrest and are seemingly a fugitive on the run!

But don’t worry! An experienced defense attorney knows that long delays during a criminal prosecution against you can be considered violations of your Constitutional right to a speedy trial. For instance, in California, if the District Attorney waits longer than a year to pursue and complete a criminal action against you, you are entitled to a dismissal! The District Attorney must have very good reasons for delaying in order to avoid this dismissal! Simply saying “we forgot!” or “we didn’t have the time or resources!” won’t work.

This process is known as filing a Serna motion, named after a famous case that established this right. While an inexperienced defense attorney might get caught up trying to argue the facts of your case or settle a plea agreement that is detrimental to you, a good attorney will first file a Serna motion and try to dismiss all allegations against you!

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One of the bedrocks of our justice system is the right to have a fair trial. Part and parcel of this is your right to have a jury of your peers impartially weigh the facts of your case and decide whether they believe you broke the law or not. Sometimes the only way to know whether or not you received a fair trial from a jury is to make sure you get out there and talk to them right after a verdict. A defense attorney or defendant is allowed to interview jurors if they are willing to talk, and this is an invaluable tool in making sure your trial was fair.

Recently I found out through an interview with a juror that my client very likely did not receive a fair trial. This juror was horrified at the behavior of her fellow colleagues. She informed me that some of the other jurors were improperly acting as if they had expert knowledge on certain technical subjects, and were openly persuading their fellow juror members that the experts who testified at this trial were wrong! Not only that, but they were belligerent and forceful! In the end this juror felt horrible for voting the way she did because she felt like she gave in to pressure and someone was wrongly found guilty because of it. She couldn’t believe the bias of her fellow jurors and their willingness to convict someone based on their “intuition” when so much evidence pointed to a different outcome.

Since I’ve been doing this for a long time, I knew instantly that I needed to file a “Motion for New Trial”, and let the judge know that the verdict against my client was improper. But I worry that less experienced or dedicated attorneys would never have caught this huge issue. It takes time and effort and a strong resolve to calmly meet and try to talk with a jury after a verdict, but it’s absolutely necessary to insuring a client received a fair trial by impartial, honest jurors. A good attorney knows that their obligation to a client is a full one, and it continues even after a trial.

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Everyone has heard the term “hung jury”, but what exactly does it mean? In a criminal case in California, the jury verdict must be unanimous. All 12 jurors must agree that either the defendant is either guilty or not guilty. A hung jury happens when the jurors simply can’t reach a unanimous verdict. It doesn’t matter what the split is. It could be 6 jurors for guilty and 6 jurors for not guilty or 11 jurors for one side and only one lone “holdout” juror for the other. Sometimes the jury will come back in and inform the judge that they can’t reach a verdict and the judge will send them back to deliberate further and give them a suggestion as to how to break the deadlock, such as the people who are voting for not guilty argue the other side, and the jurors who want to acquit argue for guilty. In any case, once the judge determines that the jury is not ever going to reach a unanimous verdict a mistrial is declared.

According to The Encyclopedia Britannica, a mistrial is “a trial that has been terminated and declared void before the tribunal can hand down a decision or render a verdict. The termination of a trial prematurely nullifies the preceding proceedings as if they had not taken place. Therefore, should another trial on the same charges, with the same defendants, be ordered, that trial would start from the beginning, with the previous testimony or other findings not necessarily relevant in the new court proceedings.

I recently had a driving under the influence trial that resulted in a mistrial. In the end, the jury split was 10 jurors for guilty and 2 for not guilty. To show you how influential fellow jurors can be on each other, when the jury took their first vote, it was 9 jurors for NOT guilty and 3 for guilty. Clearly there were some very persuasive jurors in the room who argued their case with enough passion to change the minds of 7 jurors who initially thought the defendant was not guilty. This is what trial lawyers hope or fear depending on which side they happen to be on.

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Orange county courts don’t have a reputation for being particularly kind or understanding places. If you are looking for compassion and sensitivity to your needs, court isn’t the first place you would look. However, buried deep inside the court system there is one court that proposes to be just that place.

WIT or Whatever It Takes Court, is just like it sounds, a place where compassion is the order of the day, and defendants in the criminal justice system that are lucky enough to be admitted to WIT are given whatever it takes to help them. So, what does it take to be able to participate in this amazing place? The defendant must be diagnosed with both mental illness and substance abuse. It is common for people with mental health problems to self-medicate by abusing drugs and alcohol. Again, it is not uncommon for these people to commit crimes in order to afford their habits. At last there is a place that wants to help, not just punish, them.

Participants have access to mental health programs, drug and alcohol counselors, and a variety of therapists. Each participant is given a Personal Service Coordinator (PSC) who will provide intensive and personal case management. The goal is to restore each person to be a fully functioning and stable member of society. In order to be admitted to this court, a defendant needs to have a criminal defense lawyer who a) knows that the court even exists and b) knows how to get someone admitted. Unfortunately there are a lot of lawyers out there who are ignorant of the court’s existence, so obviously they aren’t going to be getting their clients the help they need. This is another example that all lawyers are not created equal and the quality of your justice depends, in large measure, on the quality of your lawyer.

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Feel like a cop roughed you up or is lying in his police report? Contrary to popular belief, not every person who is arrested is a liar, and sometimes they’re telling the truth when they tell people the cops beat them up or are lying about what happened. That’s not to say that all cops are bad apples, but some certainly do less than their best in serving the public.

In California, a well-trained criminal defense attorney would know to file a Pitchess motion. A Pitchess motion (named after a landmark California case) is where an attorney asks the local police agency to give them any recent records that a cop may have used excessive force or been reported for lying. Such evidence can be absolutely crucial in establishing that you aren’t just making everything up, and also in making sure a jury knows that just because someone is a cop, they are not an angel! Make sure you hire a criminal defense attorney who is in court every day and is well acquainted with the nuances of criminal defense law. Only that kind of attorney can be counted on to remember all of your rights when you need them most!

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