Friday, June 23, 2017

Can I Get a DUI on Private Property?

In California, you can be arrested for DUI on private property, off-road, or even on the water.  

Section 23152 of the California Vehicle Code prohibits anybody from operating a vehicle while they are under the influence of drugs or alcohol. The DA doesn't need to prove that you were on a public road. They don't even need to prove that the vehicle was an automobile.  

I've had clients accused of riding dirt bikes, jet skis and golf carts while drunk (not all at the same time). In California, all of those situations can be treated as "DUI". Hiring an experienced DUI defense attorney can be very helpful in these cases, though. Often, the kind of officers who arrest drunken dirt bikers, boaters or golfers are inexperienced in making those types of arrests. They don't have the training or resources to properly prosecute DUI cases. Park rangers and harbor patrol officers might mishandle evidence or fail to file documents in a timely manner.

You can even be cited for riding a bicycle while drunk in California ("Cycling Under the Influence, or "CUI"), but those cases are treated a little differently. CUI is an infraction only and not a misdemeanor, so the court cannot impose jail time or probation. Bicycles obviously aren't "motor vehicles", so the 0.08% BAC limit doesn't apply, and the DMV will not suspend your driver's license or impose mandatory classes. To be guilty of CUI, the officer must prove that you were so impaired by alcohol and /or drugs that you could not operate a bicycle with the skill and care of an ordinary cyclist (whatever that means). If you are cited for CUI, you may demand a breath or blood test, but you are not required to take one.  

If you or a loved one has questions about DUI in California, call us for a free attorney consultation. (714) 449-3335. Ask for John

Monday, June 19, 2017

How Can I Drop Domestic Violence Charges?

Here's a situation that our office sees very frequently:  A couple (married, dating, etc.) has a big, blowup argument. The police show up and one party accuses the other of domestic violence. Someone spends the night in jail. The police conduct an investigation and the DA files criminal charges against the party that they determine to be "the aggressor".

By the time the case ends up in court, emotions have cooled, the parties have attended some counseling and the "victim" no longer desires the involvement of the courts. She asks prosecutors to drop the case, but they refuse. Instead, the DA pursues the case "full speed ahead", with or without cooperation from the reporting party / "victim". 

Many of my clients are surprised to learn that an alleged victim of domestic violence cannot simply "drop the charges" in California. The decision of whether to file / drop criminal cases is made by the District Attorney's Office. Prosecutors may consult with victims, but they're not legally required to follow a victim's wishes.  

When a victim asks to drop charges (or indicates that she will not cooperate in a prosecution), the DA must decide whether or not they believe that they have a strong case without their victim's testimony. For example, the evidence might include a recorded 911 call in which the victim describes events as they're happening ("He's hitting me now! Help!"). The suspect might be heard in the background shouting threats. The police might have recorded an interview with the victim near the time of the incident in which she discusses her injuries and how they occurred. Cops might have photographed the injuries to corroborate the reporting party's story. Maybe other witness tell police that they saw the suspect personally striking the victim, etc.  In those situations, prosecutors will aggressively follow through with a criminal prosecution even if the victim asks them to dismiss the case. Their reasoning is easy to understand -- they can prove that the suspect has committed a serious, violent crime against the People of the State of California. He shouldn't be allowed to intimidate his victim into recanting her story. Prosecutors have a responsibility to protect vulnerable citizens and to seek justice against those who would do them harm. Plus, they don't need the victim's testimony to win a conviction. There's enough independent evidence to prove the charges even without her cooperation. That much makes sense.  

Most cases aren't that cut and dry, though. A fact pattern that I see more commonly goes like this: Both parties have been drinking and arguing. At some point, one party (or a neighbor, or a stranger) calls police to report something nebulous ("I think they're fighting or something. I heard a loud noise", etc.). When the police show up, one party accuses the other of domestic violence. There are no injuries, witnesses or physical evidence to support the accusations, but cops take a report anyway. By the time the case ends up in court, the accuser changes her story. Maybe she admits that she exaggerated a little, or even that she was the aggressor. In these situations, an ethical prosecutor should consider the interests of justice, the wishes of the parties, the cost to taxpayers, the burden to the court system, and their priorities in general. When those considerations tilt in favor of dropping the case, they should do so. 

But these guys didn't get to be overpaid government employees by making reasonable decisions. Often, prosecutors need a little arm-twisting to help them come to their senses. That's where we step in. Our professional staff can help dig you out of a hole without making the hole any deeper. We have extensive experience defending against all types of domestic violence cases in Orange County, Los Angeles, Riverside and San Bernardino. We can deal directly with investigators, witnesses and prosecutors to ensure that your rights are protected. Domestic violence charges may carry harsh, mandatory penalties. They're complicated, emotional matters and they require the attention of an expert. 

If you or a loved one has questions about domestic violence, call us for a free attorney consultation. (714) 449-3335. Ask for John. Thanks for reading. 

The Dani Mathers Case Has Nothing to Do With "Body Shaming"

I've been meaning to write something about this one for a while now.  Sorry if this is last month's news, but I haven't had much free time to spend with the blog lately.

Former Playmate Dani Mathers was convicted last month of violating section 647(j)(3)(A) of the California Penal Code. That law makes it a misdemeanor to violate someone's privacy by secretly photographing or videotaping them while the victim is a partially or fully undressed. Ms. Mathers had snapped a picture of an older woman showering at the gym, then posted the picture to social media with a derisive comment about the woman's physique.

The news media has completely missed the point with this story. The articles I've read keep referring to the conviction as a case of "body shaming", like Ms. Mathers' crime was the act of publicly ridiculing someone for being overweight or unattractive. That's completely wrong. It is not a crime to insult or ridicule fat people. If Ms. Mathers had snapped a picture of a fat person in a public place, posted the picture on social media and captioned the photo with a comment about the subject's weight, there would be no crime. If you're in public, you have almost no "reasonable expectation of privacy". Strangers may photograph you, post those pictures online and comment about your physical appearance. There are some exceptions (using a hidden camera to peek up your skirt, or using the photos commercially, etc.), but I'll save that discussion for another post.

The crime here was the act of intruding upon the subject's "reasonable expectation of privacy". The important fact in this case was that the older woman was photographed without her permission, while she was undressed, in a place where she reasonably understood that she would not be photographed (in a shower at the gym).

If Ms. Mathers had snapped a picture in the shower without the subject's consent and captioned the photo with a positive, complimentary comment like, "Look at this gorgeous grandmother! She looks great for 70!", she would still be guilty of the same crime.

The Dani Mathers case had everything to do with "intrusion upon privacy" and nothing to do with "body shaming".

If you or a loved one has questions about privacy, "revenge porn" or public use of your image, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Criminal Defense Attorney

Monday, June 5, 2017

Send an Offensive Text Message, Lose Your Gun Rights

Many of my clients are shocked to learn how quickly a rude or offensive text message can cost them their gun rights in California. Don't make that mistake. Before you hit "send", think about what you're willing to sacrifice.

California has a very permissive system of issuing restraining orders, especially in cases of alleged domestic violence -- and the definition of "domestic violence" in California is expansive. The court will issue a restraining order when the petitioner can prove "by a preponderance of the evidence" (a very low burden) that the respondent has "harassed" him or her. "Harassment" includes some behavior that we might not consider to be "abuse" or "domestic violence" within the conventional meanings of those terms. Harassment in California includes any course of conduct, directed at a specific person, which serves no lawful purpose, and which would cause a reasonable person to suffer emotional distress.

"Harassment" in restraining order hearings often includes rude, offensive or insulting text messages or emails. Calling your ex-girlfriend a "bitch" in a text message may be the grounds for the court to slap you with domestic violence restraining order, even if you never hurt or threatened anyone. In many cases, a judge may find that an insulting text message meets the definition of "harassment", described above.

A judge can also issue a domestic violence restraining order when one party has sent repeated, unwanted messages to an ex. Depending on the circumstances, sending annoying text messages may constitute "harassment". The messages don't even have to be rude or insulting. If your ex-girlfriend has asked you to stop calling or texting, you are legally obligated to respect her wishes. If you continue sending her unwanted messages, she may take those screen shots to court and get a restraining order against you.

Anyone who is the subject of a restraining order in California must immediately surrender all their firearms to the local police, or else sell them to a licensed gun dealer. You may not simply "sell" your collection to a friend or have a family member hold your weapons. You also may not buy, possess or even have access to firearms while the restraining order is in effect. If you're a hunter, collector or target shooter, you may be legally barred from enjoying your hobbies for up to 5 years.

The laws and procedures regarding restraining orders in California are complicated. If you or a loved one has questions about the process, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Orange County Restraining Orders

Monday, April 24, 2017

How to Legally Grow Marijuana in California

If you want to grow marijuana in California (and you care about doing it legally), the first step is to stop taking bad advice from your friends. There's a lot of misinformation out there. Despite the recent reforms, people are still calling my office because they've been arrested for some marijuana crime. Cannabis cultivation can be a minefield if you don't understand the law.

A whole new regulatory system is scheduled to take effect after 1/1/18, but here's what you need to know until then. As of today (4/24/17), there are a few ways to legally* grow cannabis in California. Adults age 21 and older may cultivate up to 6 plants for their personal, recreational consumption.  The 6-plant limit applies to each piece of property, not to each adult.  If 3 adults live together in one house, they may collectively cultivate 6 plants in their backyard, not 18.  They can give away small amounts of their crop to friends, but they're still not allowed to sell recreational cannabis or trade it for anything of value.

If you have a doctor's recommendation to use medical marijuana, the 6-plant limit does not apply. You may cultivate as much as your doctor says that you need for your condition. Be very wary, though, of so-called "99-Plant" recommendations that many doctors sell for a few extra dollars. Remember that a rec is only as valuable as the doctor who will actually come to court and testify on your behalf. Do you really trust that your doctor that will show up in court and tell the judge that he examined you in good faith? Do you believe he will testify that, in his professional opinion, you need 99 plants for your personal use?

Also keep in mind that there is no such thing as a "cultivation license" in California today. This will change after 1/1/18, when some provisions of Prop. 63 take effect, but no licenses have been issued to date. Regardless of whatever bad legal advice your doctor gave you, his 99-plant recommendation does not entitle you to grow a large crop or to sell your excess harvest to a local dispensary. There is a legal way to grow medical marijuana for sale (keep reading), but you should not simply rely on your doctor's 99-plant rec as a defense to marijuana charges.

All marijuana sales must still be done through a non-profit medical dispensary. Dispensaries can take many forms -- unincorporated associations, agricultural collectives, or nonprofit mutual benefit corporations (this is the most common form and the method that the California Attorney General recommends). Call us if you have questions about the best formation for your cannabusiness.

A buyer and seller of medical marijuana must be members of the same dispensary; sales from one entity to another entity (or from one club to another club, or from one freelance grower to a collective, etc.) is still illegal. If you want to grow for a medical dispensary, you must be a member of that dispensary, and you should have some written documentation to that effect. You should either be employed by the dispensary as a grower, or else you should have a written contract between yourself and the dispensary wherein you agree to provide cannabis and the club agrees to pay you a salary.

As mentioned above, dispensaries must be operated on a non-profit basis, but they're allowed to pay salaries to employees. As the designated grower, the club can reimburse for you for your expenses (electricity, materials, nutrients, etc.), and they can pay you a salary for the fair market value of your labor. This number might be up for debate, but it must be "reasonable". If your salary is excessive, the court could find that it represents a "profit", and profiting from medical marijuana sales is still illegal. Makes sense?

If you or a loved one has questions about legally growing marijuana in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

*Cultivating any amount of cannabis remains completely illegal under federal law.  There's no such thing as "medical marijuana" in federal court.

Orange County Marijuana Lawyer

Thursday, March 9, 2017

Can You Be Arrested for DUI if Your Blood Alcohol Level is Below 0.08%?

Many drivers are surprised to learn that they can be arrested for DUI in California even if their blood alcohol concentration (BAC) is below the legal limit of 0.08%.

In California, "DUI" is actually several distinct crimes: 1) driving while unsafely impaired by alcohol, 2) driving with a blood alcohol concentration of 0.08% or greater, 3) driving under the influence of drugs, and 4) driving under the combined influence of alcohol and some drug(s).  A driver might be charged with a single count or with multiple counts, depending on the circumstances.  

Police often encounter drivers who appear to be impaired by some substance, even when their blood alcohol level is low. The driver might be a "lightweight" who is especially sensitive to alcohol, or he might be intoxicated by some drug(s), or by some combination of alcohol and drugs. If police have probable cause to believe that the driver is impaired by any substance or combination of substances to such a degree that he cannot operate a vehicle safely, he will be arrested on suspicion of DUI and taken to the police station for a blood test.  

Depending on the results of that blood test and the totality of the circumstances, the DA will decide whether or not to file criminal charges against the driver. If prosecutors believe they can prove that the driver was dangerously impaired by alcohol, they will charge the driver with violating VC 23152(a), regardless of his BAC. If his BAC is above 0.08%, they may additionally charge the driver with violating VC 23152(b).  

If a blood test shows that a driver is impaired by drugs, he may be charged with violating VC 23152(f). This includes legally prescribed drugs, illegal drugs and medical marijuana -- any substance(s) that may impair a driver's ability to operate a vehicle with the skill and care of a normal, sober person. These cases are complicated because it's often hard to prove a driver's precise degree of "impairment", especially when the driver has extensive experience and a very high tolerance for some prescription medication that he has taken for years. Our firm has even represented individuals who were accused of driving under the influence of chemotherapy drugs.

To further complicate matters, the DA can charge a driver with violating VC 23152(g) if they believe that he is impaired by the combined influence of alcohol AND drugs.  

There are many possible defenses to DUI charges, but only a qualified professional can fairly evaluate your case. If you or a loved one has questions about DUI in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading.  

Monday, February 20, 2017

Clean Up Your Criminal Record

I wrote a post last year about the many options that can be pursued to clean up your criminal record in California.  Here's the short version of that piece:

  • If you were given probation and you successfully completed the entire term without any violations, you may be eligible to have your old case dismissed. Once a case is dismissed, you may honestly state that you have no criminal convictions for most purposes. A dismissal under this section will not restore gun rights, though. 
  • If you were convicted of a misdemeanor and NOT given probation, then you must wait one year from the date of your conviction or your release from custody, whichever came later. You must also prove that you have remained law-abiding since the conviction.  
  • If your conviction was for a felony, the charge may be reduced to a misdemeanor in some cases. If an old felony conviction is reduced to a misdemeanor, it may restore gun rights, depending on the circumstances.  
  • You must complete probation before you're eligible to apply for a dismissal. If you're still on probation, we can ask the court to terminate probation early. 
The legislature has added some new caveats over the past year to allow more types of cases to be dismissed or reduced:
  • Non-traffic infractions are now eligible for dismissal under the same process.  Non-traffic infractions include things like "disturbing the peace" and "urinating in public", for example. Applicants must wait one year from the time of the conviction. 
  • A conviction for engaging in prostitution under PC 647(b) can now be dismissed if the applicant can prove that he or she was the victim of human trafficking.
  • If you were convicted of a felony and sentenced to county jail rather than state prison, you may now apply for a dismissal.  The waiting period depends on whether or not your sentence included "mandatory supervision".  
If you or a loved one has questions about cleaning up an old criminal conviction, call our office for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading.