Articles Posted in General Information on Criminal Law

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Ever find yourself in court and totally confused on where to go? I recently sent my law clerk to file a petition at the Juvenile Court in Orange, CA. Two hours later he called me frustrated and exasperated! While all he had to do was file a petition with the clerk, he ended up being told by 5 different people to go to 5 different places, until he found himself sitting for 45 minutes outside of a courtroom waiting for someone to finally review his paperwork.

What my clerk found out is something most attorneys already know, that the courts are confusing and daunting to those who have never had to deal with them. For instance, the Juvenile courthouse is a large building with over ten stories, and while there are generic signs directing you around, there is no one you can simply tap on the shoulder and ask for help. You are completely on your own! One of the best reasons to hire an experienced attorney is to make sure you don’t get lost in the morass of hallways and court rules that make up our local court system. Even if you think you can make a great case to a judge or jury yourself, make sure you hire an experienced criminal defense attorney so that you can get your day in court at all!

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Is the State ripping your children away from you? It’s an almost unbelievable situation. First you’re dealing with the trauma of being arrested and accused of something you didn’t do, and then all of a sudden you get released from jail and realize the State has decided to remove your children from your custody! You had no say in the matter, and weren’t there to defend your right as a parent. This can happen when your local Social Services Agency files what’s called an “ex parte order” with the local courthouse. “Ex parte” really just means “one party,” as in only one party gets the chance to come in to court and say anything about what’s going on! It’s no wonder that the State maintains such a high success rate in these types of situations, they have no one to argue against them.

If you have an experienced criminal defense attorney however, he would know that your arrest might have resulted in the loss of custody over your children. He would already be hard at work checking into whether such an “ex parte order” was filed against you, and what the terms of the order are. But most importantly, he would be able to prepare a §388 petition! A §388 petition is where someone asks the court to set aside a previous order or judgment because the judge either didn’t have all the evidence at the time he made the order, or because circumstances have changed so significantly that the order is no longer in the best interests of the children.

It’s important to make sure you retain an experienced criminal defense attorney as soon as possible, especially when your children and their well-being are at risk! Make sure you have an attorney who knows all the consequences of your predicament.

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Feel like you’re being tried in a kangaroo court? Has someone falsely accused you of committing a serious crime and then disappeared before you have a chance to defend yourself in court? It happens more often than you think. You get accused by someone in a “he said she said” situation of committing a serious crime. That person gives a statement to the police or provides testimony in a preliminary hearing against you. Then they disappear! And the District Attorney suddenly says your accuser is “unavailable” for trial.

An inexperienced defense attorney might not know that you have a Constitutional right to confront your accusers in court. Without a chance to have a jury evaluate your accuser’s statements for themselves you might find yourself in jail for a long time. An experienced defense attorney however would know that a District Attorney has to try a little harder than simply saying “they’re gone!” For instance, a District Attorney is required to subpoena witnesses, and even put out warrants for their arrest if they refuse to testify and instead try to disappear. Even if they flee to another country like Mexico, a District Attorney has a duty to use things like U-Visas to get those witnesses back! A U-Visa is a temporary visa that a state or federal official can grant to a witness who has vital knowledge of a crime being prosecuted in the USA.

Before you get railroaded in court by a system that seems stacked against you, make sure you have an experienced attorney on your side to hold the government accountable!

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Are you trying to get your belongings back after the police took them away? It’s an all too common situation to be in. The police have taken you into custody or searched your house. After tearing through your stuff they decide to keep certain things that are valuable to you and probably don’t have much to do with why they’re there. Well, just because they have taken your belongings the police don’t have the right to keep them! Even if you’ve been arrested or the police had a search warrant, an experienced defense attorney has a good chance of getting your property back for you.

Penal Code §1536 commands the police to keep anything they take from you in their custody. They can’t just dump it off at an auction or say they “lost it”! §1536 also says that the court can order the police to release your belongings back to you at their discretion! An inexperienced attorney may not know that the law entitles you to get your possessions back. An experienced attorney can write a §1536 Motion to Return Property and get the judge to order your property returned to you.

This is just another reason why it’s very important to have the right attorney helping you at all times to make sure your rights and your property are respected.

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The Fourth Amendment to the Constitution provides that we have the right to feel safe from unreasonable searches, and where a search warrant is issued, that it must be supported by probable cause and be specific. A search conducted without a warrant is presumptively unreasonable unless it meets one of a number of exceptions carved out by the Supreme Court. In 1966 the Supreme Court decided that it was acceptable for law enforcement to procure a blood sample from a suspect over his objections during a DUI investigation. A fear that the blood alcohol content of a suspect diminishes naturally spurred the Court to agree with law enforcement that there was an “exigent circumstance” supporting this very intrusive and uncomfortable search of the suspect’s body.

The Supreme Court has helped restore some strength to the Fourth Amendment of the Constitution and the protections it provides recently. Their April decision in Missouri v. McNeely strikes down the proposition that DUI investigations necessarily meet the “exigent circumstances” exception relied on in Schmerber. The accused in this case was pulled over by a Missouri State Trooper. When he refused to take a breathalyzer on the spot, he was cuffed and taken to a nearby hospital where his blood was drawn over his objections! In holding that his Fourth Amendment rights were violated the Court focuses on the lack of injuries requiring hospital care, or any other circumstances that would cause unreasonable delay in properly acquiring a warrant before drawing McNeely’s blood.

While Missouri v. McNeely doesn’t mean that warrantless blood draws are always unreasonable, it provides for a totality of the circumstances test that allows for your lawyer to aggressively ensure your rights are respected during a DUI investigation. Simply carting you off to the nearest physician and drawing blood against your will is no longer acceptable!

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It has recently been proposed that the legal blood alcohol limit in the United States for driving be lowered to a .05 from a .08. All 50 states now adhere to the .08 BA level. This would be a radical downward departure from the previous level of .08. How much of this push to lower the legal blood alcohol level is political and how much is scientific is up for debate. A .05 is essentially telling the public that you cannot drink anything at all and drive. Two drinks at dinner could put a driver over the legal limit. Are we prepared as a nation to say if you share a bottle of wine at dinner you cannot drive home? The alcohol beverage lobby is actively fighting against this proposal. MADD (Mothers Against Drunk Driving) supports all legislation that increase the penalties for DUI driving and the lowering of the limit to .05.

Experts will opine that the research in the area of alcohol intoxication while driving is what is pushing the limits lower. However, how many of these experts are truly objective? I question how many of these experts work on behalf of political groups or law enforcement agencies? The push to lower the legal limit to a .05 is not unique to the United States. In fact, many other countries have already done it.

Most European countries have very harsh penalties for driving under the influence. For example, while France is known for it’s wines and often is associated with the spirits and love of the fruit of the vine it takes a very dim view of driving over a .05 BA. Mixing spirits with driving is definitely frowned upon. France requires that every vehicle carry a breathalyzer. In order to legally drive in France a breathalyzer must be present in the vehicle. While in England recently, I purchased a small disposable breathalyzer that would satisfy this requirement in France. It was a single use vial designed to alert the driver when he was over the French legal limit of .05.

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Recently I visited the ongoing trial of a man accused of murder. The defendant was a Hispanic man in his twenties and was an admitted member of a Hispanic gang in Santa Ana. I walked into the courtroom, sat down and took a look at the jury. I almost laughed out loud. Here was this rough and tumble Hispanic gang member and the jury judging him was totally made up of white people. The jury members looked about as far removed from the life the defendant had lived as was possible.

The sixth amendment of the United States Constitution provides in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” It is commonly thought that a defendant is entitled to a “jury of his peers” but that is not what the Constitution guarantees. The Constitution only guarantees an impartial jury, not one that in reality has anything in common with the defendant other than they are all human.

However, the Supreme Court noted over a century ago in Strauder v. West Virginia, the jury should be drawn from a group “composed of the peers or equals [of the defendant]; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds.” This case involved an African American defendant and a jury in which other African Americans were excluded as a matter of law. This was held to be unconstitutional.

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The court system has suffered profound funding losses in the past several years. Year after year the legislature cuts the court’s funding until now it has reached crisis proportions. Layoffs of court personnel have caused delays in access to the court by the public. Delays will soon turn into denial of services. Entire courthouses have been shuttered in an effort to live within the funds allowed. Civil trials have been postponed to allow the waiting criminal trials to take precedence in the few available courtrooms.

Funding the court system isn’t very popular with politicians. After all, when politicians overstep their authority where does the public go to put a stop to excess? The courts are the answer to many societal problems. Where does a civil society settle their individual grievances? It’s the court system that is the glue which holds a civilized society together. The failure to adequately fund the court system won’t just deny criminal defendants their Constitutional Rights but will add to the breakdown of society. What will people do when they don’t have access to a forum to solve their problems?

The California State Legislature must find the money to fund the system adequately. That means in their eyes, the court system needs to be a priority, not just a necessary evil. We will all be very much poorer if the recent trend of cutting the court’s funding continues.

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What happens when just one of twelve refuses to vote for guilty? That juror becomes the Hold Out Juror. It takes twelve guilty votes to convict. A jury has twelve members. All twelve have to agree and vote for guilt before a guilty verdict can be returned.

The Hold Out Juror is the one who won’t go along with the other eleven jurors voting to convict. All kinds of pressure is applied. Shouting at the juror often occurs. Finger pointing in an angry manner is directed at the Hold Out Juror. When this abusive conduct doesn’t succeed in swaying the Hold Out Juror irrefutable logic is attempted. The other jurors usually appoint one of their brethren to explain how it just couldn’t have happened the way the Hold Out Juror sees the evidence. Of course, he will say, logic dictates that the Defendant’s story is full of holes. How could you believe his testimony when it flies in the face of what makes sense to all eleven of us? What is it about you that you don’t get it?

When logic fails to bring the Hold Out Juror into the unanimous fold, it becomes a case of, if we don’t reach a verdict then all of our time, the taxpayers’ money, and all of our effort has been wasted. You, the Hold Out Juror don’t want that do you?

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Recently an 18 year old appeared by way of a video arraignment. She was in jail and the judge was in the courtroom. The original charge was pretty simple. However, she was in jail having just been arrested the night before. The Defendant was standing at the podium in the jail looking at the camera. The judge was Hispanic and spoke with an accent. An older gentleman he had a “no nonsense” approach to his court calendar.

The Defendant giggled and played with her hair. She laughed and was practically twirling when she spoke to the judge. He was set to handle her case very promptly and would have released her from jail in all likelihood had she played her cards right. Instead, after laughing and twirling her hair throughout the process the judge didn’t see anything funny about her attitude and set her bail at $20,000.00. She turned and said “adios” to the judge. After turning away, she realized that her bail had been set at an amount she couldn’t make she protested and told the judge “F….You”. Now this, obviously, didn’t sit well with the judge.

The judge demanded to know if he had heard her correctly. The Defendant not being smart enough to leave well enough alone repeated her unfortunate comment and gave the judge “the finger”. This gesture is universally known to be one exhibiting an extreme amount of contempt towards the recipient. Since the judge was the recipient he took offense. Having taken offense, he found her in direct criminal contempt of court and promptly sentenced her to 30 days in jail. The Defendant was last seen walking out of view still saluting the judge.

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