DUI Patrols - Super Bowl Weekend in Orange County

February 4, 2011

The Orange County Sheriff’s Department announced that special “roving patrols” will be out this weekend, looking for impaired drivers.  Specifically, they’re looking to target potential DUI drivers after Super Bowl parties.

Be careful, but keep your rights in mind.  Should you find yourself pulled over, anything you say can be used against you, including the standard questions on the side of the road:  “Have you had anything to drink?’  “Do you feel the effects of the alcohol?”

Unless you’re under 21 or are on DUI probation, you do not have to submit to the field breath test (the PAS device - Preliminary Alcohol Screening device).  That test may be admissible against you, even though it’s not required.  What is required is that if you are lawfully arrested for DUI, you must submit to a chemical test (breath or blood) to determine your alcohol level.  If you refuse the official test after an arrest, then they can tack on additional punishment and license suspensions.

Keep in mind - if you have been arrested for DUI, you only have 10 days to request a hearing with the DMV or they will automatically suspend your license, no questions asked.

Give my office a call to discuss your situation.

Joe Dane

info@joedane.com

(714) 532-3600

For more information, see the following links:

What to do if arrested for DUI

DUI and Miranda rights - Do they have to read me my rights?

DUI and the DMV - You only have 10 days to request a hearing

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When is a deadly weapon not a deadly weapon?

January 28, 2011

In a recent post, I discussed the various sections of Penal Code section 245.  One of the ways that can be charged is “assault with a deadly weapon.”

So what exactly is a deadly weapon?

Case law through the years has shaped what can be a “deadly weapon” for this code section.  A deadly weapon is one that is capable of producing great bodily injury or death.  Traditional weapons, such as knives and clubs would fall into that category, but so could other common objects.  A tree branch could be a deadly weapon in the right circumstances.

But when can a weapon NOT be a deadly weapon?

A recent case in the California Court of Appeals involved a minor who used a butter knife to try and attack another person.  The kid tried to slash at the victim’s throat, making several swipes.  No matter how much he tried, the injury he inflicted was only a welt, but no cuts.  When he tried to cut the victim’s face and throat a second time, the handle broke off, yet still no injury was inflicted.  At his juvenile trial, the judge found the evidence was sufficient and upheld the charge of 245(a)(1) - Assault with a deadly weapon.

The appellate court overturned that decision, making findings that the butter knife did not qualify as a deadly weapon in this case.  They found that the butter knife was not used “in a manner as to be capable of producing and likely to produce, death or great bodily injury.”  Why?  Because no matter how hard the kid tried to inflict substantial injury, the knife simply wouldn’t cooperate.  It was an object that was unable to inflict the injury required.  He may as well have been using his fingernail.

Why is this one case decision important?  Obviously, for the minor involved, overturning his conviction is important, but it also points out an important point of our criminal justice system.  Not everything is what it seems.  Just because charges are filed does it mean that’s the end of the story.  Even judges get it wrong have to make tough calls sometimes, too.  Level the playing field with your attorney.

The entire case decision can be found here.

Joe Dane

info@joedane.com

(714) 532-3600

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Child Abduction (”Child Stealing”) - Penal Code 278

January 27, 2011

There are different charges that could be filed in a case involving allegations of keeping a child from a parent or other person with custody of the child.  The specific charge matters here, as does the legal status of the parties.

Child abduction by a person who does NOT have right of custody

If it’s child abduction by a person who does NOT have the right to custody, that’s covered in Penal Code section 278. That’s a “wobbler” meaning it can be either a misdemeanor (up to a year in county jail) or a felony (up to 4 years in state prison).

Child abduction by a person who DOES have a right of custody

If it’s child abduction by a person who does have right to custody (such as visitation orders or other legal right to the child, but who keeps them from the other custodial parent), that’s covered in Penal Code section 278.5. That’s also a “wobbler”, but the maximum on the felony violation is three years in state prison.

In determining what sentence to impose, Penal Code section 278.6 lists factors the court should consider:

  • (1) The child was exposed to a substantial risk of physical injury or illness.
  • (2) The defendant inflicted or threatened to inflict physical harm on a parent or lawful custodian of the child or on the child at the time of or during the abduction.
  • (3) The defendant harmed or abandoned the child during the abduction.
  • (4) The child was taken, enticed away, kept, withheld, or concealed outside the United States.
  • (5) The child has not been returned to the lawful custodian.
  • (6) The defendant previously abducted or threatened to abduct the child.
  • (7) The defendant substantially altered the appearance or the name of the child.
  • (8) The defendant denied the child appropriate education during the abduction.
  • (9) The length of the abduction.
  • (10) The age of the child.

Every case is unique, so it’s impossible to say what you should “expect” to receive in any particular case, but because the sentences can include state prison for years, if you are charged with or under investigation of child abduction under any of these theories, contact me immediately for a consultation.  There are defenses and technical aspects to these charges that we need to explore and discuss.

Joe Dane

info@joedane.com

(714) 532-3600

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Assault with a Deadly Weapon (Penal Code 245) - Orange County Criminal Defense

January 26, 2011

Penal Code section 245 is generally referred to as “aggravated assault” or assault with a deadly weapon, but there are actually several variations.

Penal Code section 245(a)(1) - Assault with a deadly weapon

This section covers an assault with a deadly weapon other than a firearm.  Any instrument that is capable of inflicting great bodily injury or death could be considered a deadly weapon.  Even things that are not specifically designed as a weapon could fit this broad category.  Obviously, knives, baseball bats or a 2×4 with nails sticking out would be a deadly weapon as long as it is something that is capable of producing great bodily injury or death.

Penal Code section 245(a)(1) - Assault with force likely to produce great bodily injury

Although under the same Code section, 245 can be charged as an assault by force that could have produced great bodily injury.  Under this section, they don’t have to prove that any substantial injury actually was inflicted, but that it could have been inflicted.  The typical versions of this version of 245 are severe punches, kicks to the head or other vital organs, etc.  It can be the result of being thrown or pushed into something, such as off a balcony or against a wall, as long as the force is sufficient to inflict those substantial injuries.

Penal Code section 245(a)(2) - Assault with a firearm

If an assault was done with a firearm, it’s charged under this section.  An interesting point is that in any assault, a person must have the “present ability” to inflict injury during the assault. That means that an unloaded firearm pointed at someone is NOT capable of inflicting injury.  Is there another crime?  Yes - a misdemeanor charge of brandishing a weapon under Penal Code section 417(a)(2).  The difference between the two is huge.  With all criminal charges, the prosecution must prove all the elements beyond a reasonable doubt, including the “present ability” (a.k.a. loaded) element.

Sentencing range and consequences

All the various charges under 245 are “wobblers” - they can be charged as either a felony or a misdemeanor.  As a felony, they carry up to 4 years in state prison.  As a misdemeanor, they carry up to a year in county jail.

Most importantly, 245(a)(1) - if charged as assault with a deadly weapon - and 245(a)(2) - assault with a firearm are “strikes” under California’s three strikes law.  Assault by force likely to produce great bodily injury is not a strike and any of the sections charged as misdemeanors are not strikes.

Because of the possible consequences and harsh sentences involved, these are not charges to take lightly.  If you’re facing assault charges or are under investigation, let’s discuss your situation further in a face to face consultation.

Joe Dane

info@joedane.com

(714) 532-3600

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Privacy, cell phones and police searches - lock up your phones!

January 25, 2011

The United States Constitution protects you from unreasonable searches and seizures.  Under the Fourth Amendment, the police must either have a search warrant or some recognized exception to be able to legally search (and therefore gather evidence to be used against you).

One of the exceptions is a search “incident to an arrest.”  Since 1973, the United States Supreme Court ruled that the police, upon a lawful arrest, are authorized to search a person, including their clothes, any containers (purses, backpacks, briefcases, etc.) at the same time as the arrest.  Sounds logical.  The rationale is that the police should be authorized to search you to make sure you don’t have a weapon or contraband before they take you into a jail facility.  Makes sense, right?  Sure.

One of the basic requirements used to be that the search had to be done “contemporaneous with” the arrest - that is, at the same time as the arrest.  In the recent case of People v. Diaz, the police stopped Diaz for his involvement in a drug deal and arrested him.  A detective then looked through Diaz’s cell phone and found a text message that the detective took to be a message regarding a drug transaction.  When confronted with this evidence, Diaz confessed to dealing in drugs.

The issue became - was this search of Diaz’s phone done 90 minutes after his arrest while safely back in the police station “incident to arrest”?

In a rather convoluted leap of logic, the California Supreme Court decided that the phone was “immediately associated” with Diaz and therefore subject to being searched under the “incident to arrest” exception.

Huh?

What about the idea behind those kind of searches that was to look for weapons or contraband being brought into the jail?  I assume the police weren’t going to let Diaz have his cell phone with him while in the cell, so what danger did his cell phone pose?  Diaz certainly had an expectation of privacy in the contents of his cell phone, didn’t he?  Why didn’t the police need to get a warrant?

The Court wasn’t unanimous on this one.  In a vigorous dissent, two Justices denounced the ruling as going too far and unreasonably invading a person’s privacy rights.

Would it really be too much to ask that the police justify the search of the phone?  It wasn’t going anywhere, so there was no need to rush in and search.  Couldn’t they have applied for a search warrant?

Sometimes, judicial logic and the expansion of exceptions to the Constitution leave me scratching my head, but the ruling also sends an important message:  If you have a smartphone (iPhone, Android, Blackberry, Palm, Windows, etc.), learn how to use any locking features it has.  Password protect it.   Yep, there’s an app for that.

While you’re at it, password protect your laptop, pocket organizer and anything else that may have data on it that you don’t want anyone to see.  Apparently, if you’ve got it near you, it’s fair game if you’re arrested.

And when asked for the password, keep your Fifth Amendment right to silence in mind.  If you give the password, you’re admitting you have access to whatever is on there, so even admitting the item is yours or knowing the password could be against your best interest.

And with every search issue, it’s up to the prosecution to justify the police’s actions.  Let me know if you want to discuss your case and the search issues involved.

Joe Dane

info@joedane.com

(714) 532-3600

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