Should you talk to the police?

May 9, 2011

I still get this question all the time -

“If I’m completely innocent, why shouldn’t I make a statement to the police?”

I’ve written before about calling a detective back and the risks there. But what about answering questions in person if you’re contacted during an investigation?  Should you talk to the police if you “have nothing to hide”?

Probably not.

What if the police mishear you?

Even if the police aren’t out to get you… What about if they simply misheard you? Many police interviews are not recorded, so let’s say you talk to them about your situation. You say X, but they mistakenly hear Y. They write in their report that you said Y and everyone will take it as gospel. Months or years layer when you and your attorney see the police report with a quote from you saying Y, you will have a heck of a time proving you really said X. The officer, having moved on to many other cases in the intervening months, will simply rely on their report and firmly state that you did in fact say Y.

So… Even with no evil intent by the police, making a statement could hurt you.

What about a false ID?

What do you do with a false identification of you by a witness? A witness points you out and says you did it (or were involved). You deny it, since that’s the truth. Now there are two conflicting statements. the police and prosecution will assume you’re lying because you are covering for your involvement. They’ll say, “Why would the witness lie? They don’t have any stake in this.”

You answer truthfully, but the question was flawed

What if the police ask the wrong question, but you answer truthfully? Even that can still hurt you. For example, the officer asks you whether or not you were ar the 7-11 that got robbed during the evening hours of March 10th. You think about it and have an absolute alibi. Yes, you go to that 7-11 often, but you were at your buddy’s poker game on the night he was asking about, so you tell him you were nowhere near that 7-11 when it got robbed. BUT… Turns out that the robbery was actually the night of the 9th, but happened after midnight, so it was technically the 10th. You WERE at the 7-11 that night, but just got a soda and left. Turns out a witness saw your car leave and got your license plate. They call you a liar.

Ever see the movie “My Cousin Vinny”? Funny movie, but if you think about situation like that in real life, not funny at all.  Just ask anyone wrongfully convicted.

Just a couple of examples why talking to the police isn’t a good idea, even if you are 100% innocent.

Joe Dane

(714) 532-3600

info@joedane.com

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Upcoming DUI checks and roving patrols

March 31, 2011

Today, the Orange County Sheriff’s Department announced they will be conducting a “roving patrol” event this Friday, April 1, 2011. They will be saturating the cities of Aliso Viejo, Laguna Hills, Laguna Niguel and Laguna Woods.

Be safe and keep your rights in mind, no matter if it’s a DUI stop or any other contact with the police. You do NOT have to consent to any searches and you do NOT have to incriminate yourself (even if they haven’t read you your Miranda rights, they may not be required to, so any statement you make could only hurt you).

See the links below for more information from previous articles I’ve written about interacting with the police and DUI investigations:

Interacting with the police

Miranda rights

Be safe -

Joe Dane

info@joedane.com

(714) 532-3600

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Drunk in Public - PC 647(f) [Lessons from Christina Aguilera]

March 1, 2011

Not to jump on the “post about celebrities” bandwagon, but just to use a recent arrest as an example…

Singer Christina Aguilera was arrested in West Hollywood in the early morning hours March 1, 2011.  According to press reports, her boyfriend Matt Rutler was stopped and arrested for DUI.  She was subsequently arrested for a misdemeanor violation of Penal Code section 647(f) - public intoxication - a.k.a. drunk in public.  How did this happen?

The elements of the crime

Public intoxication under PC 647(f) requires that the prosecution prove the following:

  • The defendant was willfully under the influence of alcohol and/or a drug or controlled substance;
  • They were in a public place;
  • AND
  • They were unable to care for their own safety, the safety of others or were blocking a public way.

But wasn’t she in a private car?  How could she get arrested for drunk in public?

A public place is a place that is open and accessible to anyone who wishes to go there.  Even case law has said that in a parked car on a city street counts as “in public.” Being a passenger in a car being driven on a public street would also count as “in public” and subject her to arrest.  I’ve read various accounts of her demeanor and condition, but the Sheriff’s Department spokesperson described her as unable to care for herself and incapacitated.  The spokesperson went on to say that the Sheriff’s Department had “no desire” to prosecute her for this offense.

Ultimately, the decision to prosecute is up to the prosecuting agency in that jurisdiction, but what he’s referring to is Penal Code section 849(b)(2).  If a person is arrested for intoxication only and “no further proceedings are desirable,” then they can be released by law enforcement instead of appearing in court.

What Ms. Aguilera should hope for is that they release her under Penal Code section 849(b)(1) instead.  Under that section, law enforcement could determine that there is insufficient grounds for a criminal charge to be issued and release her.  What’s the difference between 849(b)(1) and 849(b)(2)?  If she was released under 849(b)(1), the arrest is essentially undone and it’s now treated as a detention only, not an arrest.  There is no such language that deals with 849(b)(2).

Either way, breathe a sigh of relief on this one, Ms. Aguilera - it looks like no charges are going to be filed.

And, I assume Mr. Rutler is working with a criminal defense attorney on his DUI situation, but in case he stumbles across this post - you only have 10 days from today to request a hearing with the DMV or they’ll automatically suspend your license.  At a 0.09% alcohol level [according to news websites], you may have defenses to these charges.  Time for an attorney.

Joe Dane

info@joedane.com

(714) 532-3600

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How much will my husband/wife/son/daughter/fiancee get?

February 17, 2011

The top question asked is always what somebody is “looking at” for their charges.

There’s so much more than just the charges.  I can tell you what the maximum sentence is and if there are any mandatory minimums, but from there….

Every case is unique. A plea sentence (or a sentence after a conviction at trial) takes into account many factors:

The facts of the case.

Were there aggravating factors in this particular case that make it worse than others of the same type? Were there facts that make it less serious than others? Did it exhibit a great risk of danger to the public or a hypothetical risk? Was there anyone harmed? If so, have they been made whole again through restitution, etc.?


Any prior record.

The presence of any prior convictions - felonies or misdemeanors - matter greatly. I know that’s one of the first things any DA or judge will want to know when evaluating a case - what is the defendant’s record? If there are prior convictions, can they be explained away or is there documentation to put a better spin on them, rather than just the mere conviction?

Does the case resolve by way of a plea deal or did it go to trial?

A defendant in any criminal case has an absolute constitutional right to have the prosecution prove the case against them beyond a reasonable doubt to a jury. They cannot be punished for exercising that right, but they can be rewarded for pleading guilty and “acknowledging wrongdoing” at an early stage of the proceedings. That’s where plea bargains come into things. That brings up the last factor…

What can be worked out?

If the facts and the law start stacking up against the defense, it’s not over.  There may be additional mitigating factors that need to be brought to everyone’s attention to explain the conduct or minimize its significance. There may be legal motions that can be run to suppress evidence, statements or challenge charges.   All that, along with discussions of the merits of the case, trial issues and similar cases and their outcomes all can be discussed.  I know that lots of attorneys bill themselves as “aggressive,” but in many situations, reasonable discussions during plea negotiations go a long way.   My bottom line in every case comes down to one simple question:

What is the very best outcome I can achieve for my client on this case?

It’s a simple philosophy, but one that I keep in mind for every single case. That may mean the very best negotiations or a fight at trial.  I can’t say it enough - every case is unique.  To discuss yours, give me a call.

Joe Dane

info@joedane.com

(714) 532-3600

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DUI Checkpoint Friday 2/11/11 - Lake Forest, Orange County

February 10, 2011

The Orange County Sheriff’s Department announced today that they will be conducting a DUI Checkpoint in the city of Lake Forest on Friday, February 11, 2011 from 6:30 p.m. to 2:30 a.m.

I’ve written many times about these DUI checkpoints.  Obviously, the best bet is to not drink and drive.  Should you find yourself facing a DUI checkpoint, keep some things in mind:

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, Orange County Defense Attorney

info@joedane.com

(714) 532-3600

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