General Information on Criminal Law

Published on: October 10, 2012

Arrested for Driving Under the Influence of Drugs In Orange County, CA??

by Law Offices of Rudolph E. Loewenstein

The usual case of driving under the influence involves alcohol. The claim by the police or District Attorney is that the driver is not only under the influence but has a blood alcohol level of more than the legal limit of .08 percent. More and more often people are being arrested for driving under the influence of prescription drugs that have nothing to do with alcohol.

Many times a doctor prescribes medication for the patient. The patient is told don’t take the medications with alcohol. The patient follows the doctor’s orders but still is arrested for being under the influence of drugs while driving. Can the patient/driver be successfully prosecuted for driving under the influence even if the doctor’s orders are followed and the patient doesn’t intend to drive under the influence? The answer can be, yes. How can this be?

Driving under the influence of drugs is a general intent crime. That means the patient/driver doesn’t need to intend to drive while under the influence of drugs, he/she just needs to willfully drive the car after intentionally taking the medication. There isn’t any specific intent to drive while under the influence needed.

Published on: October 3, 2012

How to Cross Examine A Testifying Co-Defendant

by Law Offices of Rudolph E. Loewenstein

Crimes occur with many participants. Murders, car-jacking, embezzlement, fraud, white collar crime, insurance fraud, and almost any crime you can imagine can happen with more than one defendant. Anytime there is a case involving multiple defendants there is the possibility that one of the defendants will turn “state’s evidence”. In other words, one defendant works out a deal with the District Attorney or United States Attorney for a lesser sentence, lesser charges, or even a complete dismissal in return for testifying against the remaining defendants.

What should the defense attorney do who is faced with the co-defendant who is now cooperating with the prosecutor? Of course, the first thing the prosecutor will do is require the cooperating defendant to “tell the truth, the whole truth and nothing but the truth, no matter who is asking the questions”. The “truth” is an elusive term. Ideally, it means that the testifying co-defendant will, in fact, reveal all to the jury and to anyone who asks the questions.

In reality, for the prosecutor the “truth” means testify to the same statement that the cooperating defendant gave when arrested. When looking to give a deal to one or more defendants, one of the most desirable qualities is that the statement given when arrested is the one the prosecutor wants to use as the “truth” of the case. Then when the testimony is given it is consistent with the earlier statement and makes it easy for the prosecutor to argue to the jury that testimony is the same as the earlier statement and thus is “truthful” since when the first statement was made there wasn’t anything promised in return.

Published on: September 24, 2012

TESTIFYING CO-DEFENDANTS in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

Many times a case has multiple defendants. A crime will occur and several people will get arrested. Some might be friends or they might be strangers to each other. But, like most events in our lives, we do what we do with people we know.

So what happens when several people are prosecuted in the same case? All the defendants have their own lawyers because each defendant has his own point of view, his own measure of responsibility and his own interests in how the case comes out. Because of this, the defendants are often offered a chance to cut a deal with the District Attorney and get a lesser sentence in return for testimony against the other defendants.

Why would the District Attorney agree to make a deal with a defendant in a case? First of all, there may be a lack of evidence. In other words, the District Attorney can’t prove the case without one of the defendant’s help. Second, the District Attorney might see the case as one with different measures of responsibility such that it makes sense to give one or more of the defendants a deal because the defendant is a minor “player” in the case. Finally, if a case simply has too many defendants to efficiently prosecute in a timely manner one or more of the defendants could be allowed to testify against the remaining defendants. This eliminates one more roadblock to the District Attorney’s case.

Published on: August 15, 2012

Orange County, CA, Burglary Suspect Freed After Diligent Pre-Trial Preparation

by Law Offices of Rudolph E. Loewenstein

Defendant was charged with residential burglary. The young man was Hispanic and was known to associate with gang members. He denied being a gang member himself but the police were constantly stopping him and conducting interviews in “consensual encounters”. He wasn’t consenting to being stopped by the police but unless he walked away that’s how the law looks at it.

When the burglary happened in his neighborhood, the police immediately suspected him even though they didn’t have any reasonable basis for their “hunch”. When the burglary occurred, the homeowner was home and frightened the burglar away. The police showed the homeowner two photos of the Defendant one at a time even though after each she could not say he was the one who had committed the burglary. A short time later the police returned with a photo line-up of six photos, only one of which had been shown to the homeowner before. Of course that would be the Defendant’s photo, and lo and behold, she identified him as the perpetrator.

Defendant was arrested three weeks after the burglary and questioned. He gave three different possibilities about where he was the night of the burglary changing his story each time.

Published on: August 9, 2012

Why Thorough Investigation Can Lead to a Dismissal in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

My client was represented by another lawyer for 18 months. Not satisfied with the fact that his lawyer wanted him to plead guilty to stabbing two people at a party (violations of Penal Code Section 245(a)) he hired me. The Defendant told me he had been to a party where one of his friends had brought a NOS tank. NOS is nitrous oxide and is used by many young people to get high. The owner of the house where the party was being held didn’t want the NOS at the party and told the Defendant and his friends to leave. Before the Defendant could leave he was confronted by numerous party goers who decided they would attack him and teach him a lesson.

The Defendant was confronted by multiple individuals who were threatening him. He found a knife near the NOS tank and was waving it in front of him in order to ward off the attackers. He knew he had not stabbed anyone and certainly hadn’t stabbed anyone intentionally. A friendly stranger stepped in and grabbed the Defendant’s hand and led him out of the party to a place of safety across the street. During the trip across the street to safety the stranger noticed his hand had been cut by the knife in the Defendant’s hand. The Defendant apologized for cutting him and left the area. Before he left, he threw the knife in the bushes. After leaving he decided throwing the knife away wasn’t a good idea and he went back to retrieve it. Of course, when he did that he was arrested for a stabbing that had occurred at the party and for cutting the stranger’s hand.

At the police station he was questioned by the police. The reports stated that the Defendant had confessed to stabbing the two victims at the party. My client denied ever having said any such thing. Fortunately, the conversation at the station was recorded. The previous lawyer had not listened to the tape recording so he didn’t know when the police officer testified at the Preliminary Hearing as to what was in his reports, that the report itself was either a lie or just inaccurate. Either way, when I listened to the audio it was clear the client was telling the truth, he never confessed to stabbing anyone and , in fact, had denied it.

Published on: June 21, 2012

EXPUNGEMENTS vs. DISMISSALS AFTER SUCCESSFUL COMPLETION OF PROBATION IN ORANGE COUNTY, CALIFORNIA

by Law Offices of Rudolph E. Loewenstein

In California a Defendant is entitled to a dismissal following successful completion of probation or earlier if discharged from probation before the end of the probationary period. (Penal Code Section 1203.4) However, a dismissal under the provisions of PC 1203.4 does not expunge the conviction from the record. Expungement commonly means: destroy, wipe out, strike from the record or erase the conviction completely from any record. In California there isn’t any expungement available to a Defendant. Once a Defendant has been convicted the conviction is not going to be erased from the public record.

The available relief to a Defendant in a criminal case following a conviction is afforded under PC1203.4. It WILL do the following:

1: Set aside the verdict or plea;

Published on: June 18, 2012

In California How Many Times Can You Be Prosecuted For The Same Offense?

by Law Offices of Rudolph E. Loewenstein

Almost everyone has heard of Double Jeopardy. The Constitution prevents you being tried twice for the same offense. There even was at least one movie called Double Jeopardy. However, what happens when you are arrested for one offense, plead guilty, and then the police discover evidence of a second offense and want to try you for that later discovered crime?

The recent case of People v. Barriga gives us the answer. Mr. Barriga was a passenger in a car that had been carjacked (a violation of Penal Code Section 215). One who is convicted of violating Penal Code Section 215 can be sent to State Prison for up to nine years. It is also a Strike violation under California’s Three Strike Law. Now Mr. Barriga didn’t want to get arrested so he resisted arrest, violating Penal Code Section 148(a). A violation of Penal Code Section 148(a) is a misdemeanor and is only punishable by up to one year in County Jail. Since Mr. Barriga was a passenger in the stolen car, he was only charged with violating Penal Code Section 148(a). He immediately pleaded guilty to the resisting arrest. The difference for Mr. Barriga in the possible sentence between carjacking and resisting arrest was huge.

Following Mr. Barriga’s guilty plea the police discovered cell phone calls that incriminated him in the carjacking itself. Of course, the prosecutors didn’t want to let Mr. Barriga off so easily so they now charged him with carjacking even though he had pleaded guilty to resisting arrest. It wasn’t double jeopardy because carjacking is a different crime than resisting arrest and he wasn’t being charged twice for the same thing. Can the DA get away with this?

Published on: June 4, 2012

Orange County, CA Assault and Battery

by Law Offices of Rudolph E. Loewenstein

Assault is defined in Penal Code Section 240 as “…an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault often is charged at the same time as a Battery, which is defined in Penal Code Section 242. Penal Code Section 242 states, “A battery is any willful and unlawful use of force or violence upon the person of another.”

Assault is commonly referred to as battery that didn’t get completed. If someone tries to batter another person but isn’t successful it’s an assault. The District Attorney charges both crimes in an effort to convict the defendant of at least one crime. For example, if someone swings his fist at another person but misses, it’s an assault but not a battery because no touching occurred.

Fights that occur often result in charges of assault and battery. There might be lots of swings and misses and a few punches connect resulting in the “unlawful use of force or violence upon another”. The violence has to be “unlawful”. If an assault or battery is justified then it’s not unlawful. Righteous use of self-defense or defense of another is a defense to assault and battery. That defense makes the battery lawful and within the acceptable limits of violence allowed by the law.

Published on: May 29, 2012

Prescription Drug Fraud in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

Recently, many law abiding people have been faced with loss of drug insurance coverage or loss of medical benefits altogether. When this happens and they still need prescription medications for severe pain it can lead to the temptation of forging prescriptions for medications. Prescription drug fraud also often occurs when low income individuals with severe pain can’t get prescriptions for medications through valid channels. Additionally, when someone has had a long term pain issue their prescribing doctor may refuse to refill prescriptions for pain medications.

Going into a pharmacy with a forged prescription can lead to multiple felony charges being filed by the District Attorney. Just going into the pharmacy with the intent to use the forged prescription is a violation of Penal Code Section 459-460 (b) (burglary). Then presenting the forged prescription is a violation of Penal Code Section 470(a) (forgery) and more specifically, a violation of Health and Safety Code Section 11368 (forging or obtaining a forged prescription). Three felonies occurred all by the simple act of trying to obtain pain medication under a false prescription. Finally, if one is successful in obtaining the drugs, a charge of illegal possession of a controlled substance can be filed, violation of Health and Safety Code Section `11350(a).

Just because the District Attorney files these multiple felonies doesn’t mean a conviction must be the result. Various diversion programs can be used to obtain dismissal of these charges. If a “real” need for the prescription drugs can be shown many times the District Attorney will recognize the just result for the case is treatment rather than conviction and incarceration. It is vital to demonstrate a medical addiction or some medical condition that requires the drug the client was so desperate to obtain.

Published on: May 9, 2012

Califronia Vehicle Code Section 23152, Driving Under the Influence

by Law Offices of Rudolph E. Loewenstein

What exactly are the elements of a violation of California Vehicle Code Section 23152?

What does it take to prove you are driving in violation of CVC 23152? First of all, a violation of CVC 23152, or commonly called “drunk driving”, can occur in one of two ways. One can violate CVC 23152(a) by being under the influence of alcohol and/or drugs or by having a blood alcohol level of .08 or more at the time of driving.

To prove that a driver is under the influence of alcohol and/or drugs it must be shown that his or her physical or mental abilities are so impaired that he or she cannot drive with the “caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” That is the standard. The method of proof can consist of how the driver is actually driving the vehicle, the observations of the officer once the vehicle is stopped, the performance on the “field sobriety tests”, and the breath test in the field. Some or all of these factors may be present in every case. Also, the chemical test that is obtained after the arrest can be used to infer that, if it’s more than a .08, the driver is under the influence.