Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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Who hasn’t heard that lawyers like to hear themselves talk? Lawyers like to talk. Lawyers like to think they give brilliant oratory. Lawyers are “wordsmiths” fashioning eloquent arguments for their clients to receptive juries that don’t even need to discuss the facts or the law in deciding the fate of the defendant after listening to the brilliant words of the lawyer. Well that part is just on television. The fact is, lawyers do like to talk and do like to listen to themselves talk. Many lawyers are their own best fans. But, many lawyers fail in the listening to others department.

Listening to our clients is a skill that is under-appreciated and underutilized by most lawyers. Our clients tell us what happened in their own words. They were there. They know. The client may have expertise in an area that the lawyer doesn’t. A great lawyer knows when to be quiet and just listen.

Recently, two separate instances proved the value of listening. First, the client kept saying that he didn’t confess like the police report says he did. The client’s previous lawyer had obtained but not listened to the client’s recorded statement to the police. The lawyer suggested he take a plea deal for six years in prison because of the confession. When the lawyer wouldn’t listen, the client changed lawyers. The first thing I did was to listen to the client and the second was to listen to the recorded statement. The police reports were just simply not true. The client hadn’t confessed at all. In fact, the client had adamantly denied any involvement in the crime. Once this was brought to the attention of the prosecutor the case fell apart and it was dismissed. The second case involved the client with the “spotty” record. He said he wasn’t at the crime scene when it happened. He told this to the police but was confused about the date since it occurred sometime prior to his interrogation. Careful listening on my part led to even more careful investigation. Interviewing independent witnesses, finding time sheets that confirmed the client’s alibi, and bringing these items to the attention of the prosecutor also led to a dismissal of the “strike” charge against the client.

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When the police arrive at a crime scene the yellow tape goes up securing the scene. We’ve all seen it on the television show, CSI. In fact, according to CSI Los Angeles, Miami, Navy and everywhere on television it’s the science of the crime scene investigation which solves the crime. The rest of the actors are just the means to the end. It’s the DNA, fingerprint analysis, and countless other scientific advances that lead to the solving of the crime. But, what happens to the evidence once it’s collected?

It’s the Crime Scene Investigator’s job to collect the evidence. This evidence can be identified by the first responders, the detectives at the scene, and the CSI people themselves. Some of it is located simply by drawing a chalk mark around it and some has to be found by means of instruments. Once collected it’s placed in collection containers. These can be as simple as paper lunch sacks. For example, bullet casings are often placed into paper lunch sacks. The container is then closed and secured with evidence tape, initialed by the collector, and placed into an evidence locker for later analysis or use in court.

But, what happens if the evidence is collected and then given back to the victim? For example, if a wallet is stolen, and the culprit is found a short time later with the wallet often times the police will give the wallet back to the victim. Sometimes photographs may be taken to preserve the look of the item but the possibility of forensic analysis is lost forever to the suspect. DNA analysis is no longer a possibility once the item is returned without any attempt to preserve the item for analysis.

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There are some cases that can be subject to a resolution process called Deferred Entry of Judgment. This is commonly referred to as DEJ. The process involves the Defendant pleading guilty to the charge(s), continuing sentencing, undergoing some type of education, and staying out of trouble for a specified time. Upon completion of the education and passage of required time, the Defendant can withdraw his plea, enter a not guilty plea, and the case will be dismissed. Additional requirements can be added to the process depending on the circumstances. For example, the Defendant can be required to provide a DNA sample, undergo drug testing, perform community service and anything else that might be appropriate under the facts and circumstances of the case.

DEJ is of great benefit to the Defendant. While it requires a guilty plea there isn’t any conviction because sentencing has not occurred. As long as the sentencing is postponed and does not take place there isn’t any conviction and the guilty plea does not stand as long as the DEJ is finished. However, the major down side to DEJ is the fact that if the Defendant does not complete the ordered tasks, the court will proceed to sentencing and the conviction is entered. No further proof requirement is needed since the guilty plea has already been entered and the court can simply proceed to sentencing.

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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.

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Many of our veterans have returned from service to our country with mental and physical disabilities. Sometimes these service related disabilities result in criminal charges being filed. The search for justice in the criminal justice system for our veterans can be difficult. Many prosecutors give lip service to the returning veterans’ ailments but simply dismiss them as not relevant to the criminal charges before the court.

The key to getting the prosecutor to appreciate the veterans’ symptoms is to provide medical and military documents which substantiate the underlying condition(s). First the defense has to prove to the prosecutor that the veteran is, in fact, a veteran. Then the question is, so what? The answer to that question is that a veteran deserves special consideration because of the service to the country. To translate that fact into action means the defense has to prove to the prosecutor the veteran served and did so honorably. But even more important is the need to prove the criminal conduct is the product of the service.

Crucial to the defense of any veteran charged with a criminal offense is meeting the challenge of showing that whatever disability the veteran is suffering from is the reason he or she committed the crime. Veterans of combat may be diagnosed with PTSD (Post Traumatic Stress Disorder) or TBI (Traumatic Brain Injury). Even after a diagnosis, the key is to prove that the criminal act was caused by the disability. For example, the veteran wants to kill himself. So he takes drugs and intends to kill himself by driving into a wall. Unfortunately, he hits another motorist first injuring that motorist. Why did he want to kill himself? If it’s a combat related mental issue, it can make a difference to a prosecutor who understands the conduct. If it’s a theft case where the veteran steals because of his mental disorder it has to be explained as such. It is the defense attorney’s job to make sure the prosecutor understands this connection.

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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.

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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.

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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.

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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.

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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.

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Newport Beach, CA 92660
Phone: 714.544.9844
Fax: 714.544.4337

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