DUI Checkpoint in Laguna Woods February 24, 2012

February 24, 2012

The Orange County Sheriff’s Department has announced a DUI checkpoint “Traffic Safety Checkpoint” (but we all know what that means) in Laguna Woods for today, February 24, 2012.  The planned hours are from 6:30 until 2:30 tomorrow morning.

Knowing that they’ll be out there - how do you protect yourself?  Here are some guidelines about DUI checkpoints:

Escape Routes

Although not absolutely required to be a valid checkpoint, the presence of an escape route for drivers that do not wish to go through may be provided.  If you see warning signs of an upcoming checkpoint and don’t want to be involved, look for a way to avoid it.  The police cannot lawfully stop you for opting out of a checkpoint as long as you don’t break any traffic laws to do so.  You can’t just decide to do a U-turn mid-block over double yellow lines to avoid the checkpoint, but if there is a street that will take you around or past the checkpoint that you can legally and safely take, do it.

Do you have to cooperate?

These checkpoints have been ruled as “regulatory” by the court system, so they don’t need to have the ordinary “reasonable suspicion” to detain you and make you stop at their checkpoint.  Just because they can stop you though, doesn’t mean you have to give up all your rights.  Obviously, a routine question in a DUI checkpoint is going to be, “Have you had any alcoholic beverages tonight?”  If you say yes, you’ve just incriminated yourself.  While it’s not illegal to have had a drink and then drive, it is against the law to have had too much to drink to the point of being unsafe or if you’re over 0.08%.  By admitting to drinking, you’ve given them evidence against you.  There’s nothing that says they can compel you to answer.  If you’re asked, you can politely, but firmly decline to answer their questions until you talk to a lawyer.  I’m sure that will lead them to want to investigate further, but you haven’t incriminated yourself.

What about Field Sobriety Tests? (FSTs)

If they pull you out of the line for further investigation, they’re going to want a full DUI investigation.  While you cannot actively resist, delay or obstruct the officers in the performance of their duties, that doesn’t mean you have to help them gather evidence against you.  They’re going to want you to do field sobriety tests.  What they won’t tell you is that they’re not mandatory.  Field Sobriety Tests (FSTs) are highly subjective agility and coordination tests - ones that will be used against you in a DUI prosecution.  Why would you voluntarily submit to these tests, knowing that any perceived “failure” by the officer will be used as “evidence” of your guilt?  You can respectfully decline if you choose.

Do you have to do the roadside breath test? (PAS device)

What about the roadside breath test?  The Preliminary Alcohol Screening (PAS) device is also not required unless you’re under 21 or are on probation for DUI.  Assuming you’re over 21 and not on probation, you can also decline to blow into the roadside breath machine.  I know the officer will try to convince you to blow with the “Let’s just see where you are.  If you’re under 0.08%, you’ve got nothing to worry about, right?”  WRONG.  Remember, over 0.08% = an arrest for 23152(b) DUI and even under 0.08%, you can still face 23152(a) DUI charges.

You are required to do the “official” test.

You must submit to the official chemical test however.  If you are lawfully arrested for DUI, you are required by California’s implied consent law to submit to a chemical test to determine your blood alcohol level.  That one you must submit to or face an automatic suspension of your license by the DMV and potential increased punishment in court.  If you refuse chemical tests, they can force a blood test from you, use those results against you and you’d still face the allegation that you refused.

And finally, should you be arrested for DUI, you only have 10 days to schedule a hearing with the DMV or they will automatically suspend your license.

To discuss your situation, give me a call.

Joe Dane

info@joedane.com

714.532.3600

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Shoplifting defenses - petty theft information

January 2, 2012

If you have been arrested or cited for petty theft (shoplifting) - you may think the situation is bad.  Don’t just give up and assume there is nothing to do.  You’re facing a possible theft charge that can have devastating effects on your future.

In a shoplifting case, like any other, I look at a case from three ways:

Do you have any factual defenses?

Assuming everything in the police reports is true and accurate, does it all add up to the elements of the charge you’re accused of?  If you’re charged with theft, can they prove that you had the specific intent to steal?  How can they overcome whether or not it was an accident or mistake on your part?  If you’re charged with burglary, can they prove you had the intent to steal before you entered the store?  I know they’re subtle distinctions, but they are necessary elements of the crime the prosecution must be able to prove beyond a reasonable doubt.

From there, we know that the reports are not always 100% accurate.  What in the report doesn’t add up?  Are times, sequences or witness statements conflicting with each other?  Are there obvious errors in what happened that can be easily torn apart? When I consult with my clients, we review the facts of the case down to the smallest detail to see where the gaps in the case are.

Do you have any legal defenses?

Because most shoplifting cases involve a “private person’s arrest” (sometimes called a “citizen’s arrest”) by the store personnel, they are not necessarily under the same rules as the police.  Under the Penal Code, they do have a right to detain a person they suspect of shoplifting.  If they search you, they don’t have to have a warrant or probable cause like the police do.  But that doesn’t mean that they can do whatever they want.  The store loss prevention officers (a.k.a. security) must still act within the law and appropriately.  I have had cases where the loss prevention agents spied into dressing rooms - a clear violation of criminal law.  This can absolutely be used to our advantage in your defense.  Similarly, if the store security guards used excessive force, that can lead to a tremendous advantage to you either in negotiating your case or fighting it at trial.

From there, the actions by the police - Miranda warnings, searches or other police procedures can factor into how to defend your case.

If the facts and the law are against you, how can we best protect you?

Assuming the facts and the law are stacking up against you, what can be done?  Often, there can be alternative dispositions worked out, hopefully to avoid a conviction for a misdemeanor theft offense.  Diversion, deferred entry of judgment, reduction to a misdemeanor or non-theft related charge are all potential outcomes.  Every case is unique, but by working together well before your court date, there are things you can do to help get me in the best possible position for a good outcome in your case when I go to court on your behalf.

Don’t wait until the last minute before you are due to appear in court.  Give me a call and we can discuss the details and where we’re headed with your case.

Joe Dane

info@joedane.com

714.532.3600

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What to do when pulled over for DUI

December 31, 2011

My answer will be based on several things: California law (based on my experience as a cop, a prosecutor, a defense attorney and an instructor at a police academy), common sense and tidbits for thought.

First - California law.

There are two different charges for DUI - 23152(a) and 23152(b) of the Vehicle Code. The first - (a) is for driving under the influence. That is the charge that makes it illegal to drive under the influence of alcohol, drugs or a combination of the two. That has nothing to do with any particular blood alcohol level. You could be a complete lightweight, have a blood alcohol of 0.04% (half the legal limit), but if you were all over the road you could be arrested for charged with and convicted of 23152(a) - driving under the influence.

The second charge - 23152(b) - makes it illegal to drive what a blood alcohol of 0.08% or higher. This one has nothing to do with any “bad” driving. For example, you could be stopped for an equipment violation only (something like a burnt out taillight) and if it is determined that you were at or above 0.08% blood alcohol level, even without any bad driving, you can be convicted of this count.

Both of those sections count exactly the same as far as punishment, priorability, and as a DUI on your record. You can be charged with both and potentially convicted of both, but they merge and only count as one conviction with one punishment. [Some attorneys boast claims that they routinely get DUI charges dismissed. What actually happens is that in a plea deal, the prosecutor will agree to drop one of the charges and accept a plea to the other. It's the same net result - a DUI conviction, but the lawyer calls it a "dismissed DUI".... now you know.]

The other law that is important to know is the implied consent law. Under California law, when you get a driver’s license issued to you, you have given your implied consent to submit to a chemical test if you are lawfully arrested for driving under the influence.

So now, you get to the question - what should you do if pulled over for DUI?

I won’t belabor the issues about pulling over safely, not running from the police, etc. I will instead focus on the nuts and bolts.

On the side of the road during a traffic stop, you are considered “detained”. You are not free to go, but you are not “in custody”, so the first thing to keep in mind are your Miranda rights. Because you are not in custody, the officer does not have to read you your rights before asking very incriminating questions. Questions like “have you been drinking?”, “how much?”, “do you feel the effects of the alcohol?” etc. are all very incriminating, so answering them can absolutely hurt you. Even though they have not advised you of your rights, you can still exercise your Fifth Amendment privilege against self-incrimination. You can decline to answer questions. You are required to provide your driver’s license, registration and proof of insurance, but any additional questions that may incriminate you such as the drinking questions you can decline to answer.

In addition to asking you questions about drinking, I’m sure the officer will want to do some field sobriety tests. Those too are voluntary. Will they warn you of that? Of course not.

The field sobriety tests are extremely subjective in interpreting “performance” during them. The officers are trained to look for subtle clues as to whether or not your performance on these tests could indicate that you are under the influence of alcohol. There is no “pass” or “fail” to a field sobriety test. Even an Olympic gymnast probably couldn’t perform the field sobriety tests to an officer’s satisfaction. They are designed to test motor skills, divided attention, and information retention. If you “fail”, the officer will testify that you were unable to satisfactorily perform the field sobriety tests. If you’ve ever seen them administered, realizing what you are being asked to do is a huge task. The officers administer these all the time and are familiar with the instructions they are giving, but to you they are completely foreign. On the side of the road, with traffic whizzing by, lights flashing and you incredibly nervous, they rattle off a series of instructions that they expect you to follow to the letter. If you don’t hear them, they will either assume that you did the test incorrectly and label you as intoxicated. If you ask for clarification, they will assume that you could not comprehend and therefore must be intoxicated. You truly are in a no win situation. Even if you hear them correctly and do them to the best of your abilities, any slight misstep, bobble, or “error” (according to the officer’s interpretation) and you are labeled as intoxicated.

Instead, if asked to perform field sobriety tests, my answer would be to politely decline, along with a statement that I believe they are too subjective and not required by California law. (I would make the oral statement at the time, since many officers wear recording devices and it wouldn’t be claimed later that I was only trying to make up an excuse after the fact as to why I didn’t do them).

Regarding the chemical test itself: There are two different stages of chemical testing. The first is a roadside breath test known as a PAS (preliminary alcohol screening) device. If you are on probation for a DUI conviction or are under 21, you must submit to that roadside PAS device test. Otherwise, it is essentially another field sobriety test. Whether or not the result will be admissible in court, why help them build a case against you? If the results are over 0.08%, it adds into their probable cause to place you under arrest. If they don’t have those results, they must independently determine whether or not there is probable cause to arrest you (hopefully without any admissions of drinking, field sobriety tests or PAS results to rely on). If they cannot develop probable cause to believe you were driving under the influence of alcohol, they cannot arrest you. (At least not lawfully) If the arrest is not supported by probable cause, any subsequent chemical test and blood-alcohol result may be excluded by the court in your trial.

If they do develop probable cause to arrest you, then you are required by law to submit to a chemical test. You have your choice of breath or blood. Breath can be more easily attacked in court and there is a built-in margin of error that may work in your favor. However, breath is not preserved. You cannot retest a breath sample. If you choose blood, you and your attorney have a right to have the samples retested by an independent laboratory to determine the accuracy of the government’s test results.

If you refuse the chemical test after being lawfully arrested for DUI, license can and will be suspended by the DMV, they can still force blood from you and use the results against you in court while increasing the punishment for refusing the chemical test. Some people think that refusing a chemical test will help them because there’s no numerical result, but in my experience, your refusal won’t help you. They will force blood and make it worse.

If you are arrested and chemical test reveals that you are 0.08% or more, or the officer believes that your blood test will come back 0.08% or above, they will take away your driver’s license and issue a temporary license to you at the time of your arrest. That license allows you to drive for 30 days following your arrest for DUI. That pink 8.5 x 11 piece of paper also warned you that after 30 days, your license will automatically be suspended for 4 months by the DMV. You have 10 days from the date of your arrest to request a hearing with the DMV to challenge that automatic suspension. If you miss that 10 day window to request the hearing, the DMV is heartless. Your license will be suspended. Instead, if you request the hearing within the 10 days, they will extend your temporary license pending the outcome of the hearing. If you are arrested for DUI, what ever you do - don’t miss that 10 day window.

And of course, contact a local criminal defense attorney that routinely practices in the court where your case will be heard to discuss the issues in greater detail. Hopefully, you’re doing that within the 10 days so your lawyer can arrange for the DMV hearing and prepare to represent you in court.

To discuss your situation further, give me a call.

Joe Dane

info@joedane.com

714.532.3600

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If the officer doesn’t show for my DUI case, will it be dismissed?

December 30, 2011

In a traffic case, if it’s set for trial, the court issues a notice to appear for the officer. If they’re properly served and don’t show on the trial date, case dismissed. Not so in a DUI, however.

There are several stages of a misdemeanor case such as a DUI. The first court appearance is the arraignment. You’re officially told of the charges against you in a charging document filed by the prosecution. Your attorney is also provided the police reports or other “discovery” (blood alcohol results, etc.). The officer is not required to be present at the arraignment.

If your case does not resolve by way of a motion to dismiss, plea deal or other outcome and is set for trial, the prosecution will then send out subpoenas for the witnesses they feel are necessary for their case. The officers are usually subpoenaed, but placed “on call” so they’re brought in only when necessary.

If the prosecutor cannot confirm the subpoena has been served on the officer, then there are certain ways for them to buy some more time.

In California, a defendant on a misdemeanor has a right to a trial within 30 days of their arraignment if they’re in custody at the time of the arraignment and within 45 days if they’re out of custody. If they waive that speedy trial right, then their case gets set on a particular date, but there is a 10-day trailing period. The day the case is calendared for trial is “day zero”. If for some reason, the prosecution is not ready, they can request to trail within this 10 day window while they get ready. This often happens with an officer not being available on the first day or two of when a trial is set due to vacation or training schedules, but they’ll be back by day 3. The prosecution will ask to trail the case to day 3 and then announce they’re ready for trial. The defendant’s rights are still protected and the case goes forward.

Now - if the officer is unavailable for some reason and the time frame is going to expire, the prosecution may make a motion to continue beyond that time frame based on “good cause”. It can’t be because of negligence like forgetting to subpoena the officer, but for a compelling reason, a judge can continue a case beyond the time frames. For example, if the officer that’s crucial to the prosecutor on the DUI case was injured on duty a week before the trial was scheduled to begin and unable to come testify for a couple of weeks, the prosecution would make a motion to continue the case until the officer is able to return to duty and testify. Such a motion would likely be granted, even over the defendant’s objection. If the case is continued over the defendant’s objection, then the new trial date is THE trial date - no more additional 10 day grace period. Either the case gets underway, it gets continued for a new “good cause” motion or it gets dismissed.

If the prosecution is unable to produce the officer at trial, has run out of any trailing period and their request to continue is not granted, then yes - without the testimony of the officer that made the arrest, the case would be dismissed.

It’s just not as straight-forward as a traffic ticket trial.

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What is the difference between reasonable suspicion and probable cause?

November 30, 2011

Reasonable suspicion is what they need to detain you. Probable cause is what they need to search. Slightly different burdens and a slightly different analysis.

If you’re contacted by the police, your first question should be, “Am I free to go?” If the answer is yes, then you are free to walk away. If they say no, then you’re detained. The Miranda rules don’t necessarily apply during a detention and there are different rules about searches during a detention, but the bottom line is that you still have your Fourth, Fifth and Sixth Amendment rights to be free from unreasonable searches, against self-incrimination and to an attorney, respectively.

If you are not free to go, you can politely, but firmly decline any request to search or provide a statement. The only thing you must do is provide your TRUE information. You cannot lie or do anything else that may be considered as delaying or obstructing their investigation.

Police: Hi, can I talk to you?
You: Am I free to go?
Police: Sure, but I’d like to talk to you for a minute.
You: No thanks. Have a nice day. (Walk away)

or:

Police: I need to talk to you.
You: Am I free to go?
Police: No - you’re not under arrest, but you’re just detained while I sort things out. Where are you coming from (or what are you doing or other type questions)?
You: I respectfully decline to answer any questions until I speak to my lawyer.
Police: You’re not under arrest - I’m just trying to get to the bottom of things.
You: I understand. I’m still declining to answer any questions until I speak to my lawyer.
[Repeat as necessary]

Same thing with search requests. Under certain circumstances, they may legally be able to pat you down for weapons during a detention, but other than that, you have the right to decline a request to search. Do it politely, but firmly. The typical response is for the officer to say something like, “If you don’t have anything on you, there shouldn’t be any problem, right?” Same response from you. A polite, but firm denial of their request to search.

If they order you to do things, do not resist. That’s when attorneys and motions in court come into play, but the side of the road is NOT the place to argue with an officer about your Fourth Amendment rights.

See also:

Interacting with the Police

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