Thursday, January 5, 2017

Can I Get a DUI in California if the Police Didn't See Me Driving?

Depending on the circumstances, you may be arrested and convicted for DUI in California even if you were not personally observed driving.

In most cases, police can only arrest someone for a suspected misdemeanor under 3 circumstances: 1) the offense is committed in the officer's presence (the cops see you do it), 2) the police have a warrant for your arrest, or 3) a private person who witnessed the crime signs a declaration under penalty of perjury, swearing that they saw you do it (a citizen's arrest).  

DUIs are treated differently, though. There's a special provision in the California Vehicle Code (section 40300.5) that specifically allows police to arrest suspected drunk drivers, even when they aren't caught in the act of "driving under the influence".  

First, you have to understand that the crime of DUI involves driving a car while impaired. Contrary to popular belief, it is not illegal to sit behind the wheel of a parked car while you're drunk, regardless of whether or not the keys are in the ignition.  It's not even illegal to sit in the driver's seat of a running car while you're impaired.  To be guilty of DUI, the DA must prove that you drove the car while you were under the influence of alcohol.  "Driving" a car involves exercising some control over the vehicle -- moving it even one inch. 

Police often encounter suspected drunk drivers who aren't actually observed in the act of driving, though. Take the example of someone who is found passed out at a green light. Police didn't actually see him commit the offense because they never observed the suspect "exercise control" over his vehicle -- he was asleep when police arrived and the car hasn't moved. Or consider a situation where police find a car wrapped around a tree with the driver trapped inside. Or a car stopped on the shoulder of the road while the driver "sleeps if off". In each of these cases, the suspect was never personally observed committing the offense (driving the car), but the police will arrest him anyway.  

VC 40300.5 permits police to make DUI arrests in situations that strongly suggest a driver must have been impaired at the time of driving, even if they didn't actually see him doing so. This doesn't necessarily mean that the DA has a strong case in court -- and you may have a good defense at trial -- but it definitely means that you're spending the night in jail if you're caught.  

Some of these situations where police are permitted to make arrests under VC 40300.5 include:
  • When a driver is found in or near a car that is blocking traffic (asleep at a green light or in the drive-thru line at a fast food restaurant)
  • When the vehicle has been involved in a collision
  • When a subject is so impaired that he poses a danger to himself or others
  • When the person will not be apprehended unless he is immediately arrested, or
  • When the person is likely to destroy evidence of the crime unless he is immediately arrested.
This last one is the "catch-all".  Since alcohol naturally dissipates in the human body over time, police can always claim that they're afraid evidence will be destroyed unless the suspect is immediately arrested and taken to the station for testing.  

If you're ever questioned by the police about a suspected DUI, you should avoid talking yourself into trouble by politely refusing to answer any questions.  Too many of my clients dig themselves into a hole by explaining to the officer, "Yes, I was wasted, so I pulled over to sleep it off".  That's not a defense, it's a confession.  These types of cases may be very defensible, as long as you don't help the police build their case against you.  We've achieved some great results in cases where our clients were not observed driving.  

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

Thanks for reading. 

Thursday, December 15, 2016

New California Gun Laws for 2017

Between July's "Gunmageddon" and the passage of Prop. 63, California enacted a series of restrictive new gun laws this year.

Some new California gun laws to expect in 2017 include:
  • A ban on the sale / transfer of common, center-fire, semiautomatic rifles with detachable magazines.  
  • A new definition of "detachable magazine", to specifically prohibit the "bullet button".  
  • A ban on the possession of any magazine that is capable of holding more than 10 rounds.
  • The nation's first background check to purchase ammunition. 
  • A ban on importation of ammo from out-of-state.
  • A new requirement that homemade lower receivers ("ghost guns") be serialized and registered with the state.
The definition of "assault rifle" under California law was expanded to include any center-fire, semiautomatic rifle with a magazine that is not "fixed". If the magazine can be removed without disassembling the action of the firearm (pulling the rear take-down pin), it is now considered "detachable".  This effectively bans the bullet button.

If you own a rifle with detachable magazine or a bullet button before January 1, 2017, you may keep it, but you can't sell it, trade it or give it away after that date. If you die, your kids can't inherit it. You are the last person who will ever own it. You must also register your "assault rifle" with the Department of Justice before December 31, 2017. 

Starting July 1, 2017, civilians will be completely prohibited from possessing magazines with the capacity to hold more than 10 rounds. There is no "grandfather clause" for magazines that were owned or possessed before the prohibition. If you own them now, you're expected to turn them in, take them out of state, sell them to a licensed firearms dealer, or destroy them.

As of January 1, 2018, Ammunition buyers will be required to purchase a 4-year permit for $50.00 and undergo a background check. All ammunition sales will be electronically reported to the Department of Justice, and residents will be prohibited from bringing ammunition into California from out-of-state.

If you finish your own 80% receiver in your garage, you must register your "ghost gun" with the Department of Justice and have the part serialized.  Starting January 1, 2017, unfinished receivers will be regulated just like real firearms.  

There are still a lot of unanswered questions about how these new regulations will work in practice. We also expect some tooth-and-nail litigation before some of those questions are resolved. Stay tuned to see how this all plays out over the next year.

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

Thanks for reading.

Orange County Gun Lawyer  

Friday, December 9, 2016

Defending Against False Accusations in a Restraining Order

If you've been served with a restraining order, there's a good chance that the petition is full of lies. They always are. There's also a good chance that you're irate. That's understandable. I would be, too.

Being angry won't fix your problem, though. We have work to do, and that work must be done calmly, coolly, objectively and efficiently.

Of course, no simple, "one-size-fits-all" strategy is appropriate or effective in every restraining order case. It's always a good starting point to consult with a qualified local attorney. Part of being "calm, cool, objective and efficient" is understanding the law, analyzing the facts, and explaining concisely how those facts fit within the law to make your case. That's your attorney's job.

The petition against you probably contains a lot of accusations. Some of those accusations, if proven, could form the basis for a restraining order. These are things like violence, threats, and harassment. Your response should focus on denying, justifying or excusing those claims.

The petition might also include claims that would NOT form the basis for a restraining order. They're not relevant to the judge, even if they paint you in a negative light ("Respondent cheated on me with my sister, he has a bunch of DUIs, and he was emotionally controlling during our relationship", etc.). Do not waste your effort and the court's time by fixating on these types of claims. If the petitioner wants to waste his or her precious time by making irrelevant arguments, let them. Remember, though, the judge is not interested in determining whether or not you cheated during the relationship, who is responsible for your breakup, or whether or not you're a good guy. Those things are not grounds for a restraining order.

This is where a lot of litigants get off track. They get so emotional about defending their reputation or their pride that they lose sight of the actual issue that the court is trying to decide -- whether or not violence, threats or harassment has occurred. They focus too much time and effort in arguing over points that will not affect the judge's decision. I understand the impulse to do so, but you must resist that impulse.

The first step in preparing your defense, then, must be to divide the accusations into two categories: 1) accusations that could (potentially) form the basis for a restraining order if they are proven, and 2) accusations that are irrelevant, even if they sound embarrassing or salacious.

Once we determine which of the accusations could potentially form the basis for a restraining order (claims of violence, threats or harassment), then we can start forming a strategy to refute those accusations.

The most effective way to disprove false accusations is to drill down on each of them methodically and individually. Separate each false allegation and beat it to death with reliable, admissible evidence. Once you have effectively disproved one allegation, then you can move on to attack the next. Stay organized and focused in presenting your case as concisely as possible, without jumping from one point to another. For example, if you're accused of making repeated, harassing phone calls, bring a copy of your call log to prove that the calls didn't come from you. If you're accused of stalking someone on a particular occasion, bring an alibi witness to prove that you weren't in the area.

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

Thanks for reading.

Orange County Restraining Order Lawyer

Tuesday, November 22, 2016

How Will the Trump Administration Treat Legal Marijuana?

By now, we all know that marijuana is a Schedule I controlled substance under federal law. We also understand that federal law trumps state laws where the two conflict. The feds cannot compel the states to enforce federal drug laws, but they can use the FBI and the DEA to bust local growers and distributors, even if those growers / distributors are in full compliance with the laws of their respective states.

At last count, 8 states plus the District of Columbia have fully legalized recreational use of marijuana by adults, and something like 46 states allow some form of medical use. Voters in California overwhelmingly passed Prop 64 on November 8. That initiative will allow adults to cultivate up to 6 plants on private property and possess up to an ounce of flower in public. It will also create a comprehensive system of licensing and taxation to govern commercial sales. National polls consistently show that a majority of Americans support some form of legalization.

The Obama administration mostly took a hands-off approach to enforcement in states with permissive cannabis laws. President Obama personally opposed legalization, but he respected the will of voters in states that chose to permit adult use of marijuana for recreational or medical purposes. A new administration, though, could mean big changes for federal law enforcement priorities. 

On the campaign trail, Trump showed little concern with marijuana. He indicated support for states' rights, suggesting that he would allow individual states to enact their own policies without undue federal interference. Drug policy reformers were cautiously optimistic.

Since the election, though, President-elect Trump has sent some discouraging signals. Last week, he named Senator Jeff Sessions as his pick for Attorney General. As the head of the Justice Department, the AG is responsible for setting the policies and priorities for all federal prosecutors. For the legalization community, the appointment of Sen. Sessions represents a sky-is-falling, worst case scenario. The uber-conservative legislator from Alabama has been a lifelong anti-cannabis crusader. He famously said that "good people don't smoke marijuana", and he once joked that he supported the KKK until he learned that they smoke pot. 

Under AG Sessions, the Justice Department could begin an aggressive campaign to arrest and prosecute state-sanctioned growers and distributors. It could sue to shut down local programs that regulate and tax marijuana businesses and use the full force of federal law to drive cannabis back underground.  

Or the DoJ might follow the lead of President Trump and popular opinion polls. They could work to reform banking regulations so that more legitimate marijuana businesses can finally get a checking account. They might allow law-abiding marijuana users to purchase and possess firearms. They could reform federal tax laws to allow cannabusinesses to deduct their operating expenses so that they're not saddled with prohibitive tax bills. They might even reschedule marijuana to permit more scientific research.  

Right now, the future of marijuana in the United States is completely up in the air.  There are so many unanswered questions that nobody can accurately predict what the landscape will look like after January 20, 2017. If you're concerned about the future of legal cannabis under AG Sessions, call your senators and tell them to reject his appointment.

If you or a loved one has questions about Prop 64 and the future of legal marijuana in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Marijuana Lawyer

Friday, October 28, 2016

Do I Need a Lawyer to Get (or Fight) a Restraining Order?

Do you need shoes to run?  No, but they help.  The same is true for lawyers in restraining order cases.

I've handled more restraining order cases than I can count (on both sides -- representing petitioners and respondents). I've also sat in courtrooms and watched hearings for hours while I waited for my own cases to be called. You don't have to spend much time in restraining order court before you start to notice a pattern, though: litigants who show up with competent attorneys have a distinct advantage over their opponents.

Even lawyers hire other lawyers when they're involved in a restraining order cases. Representing yourself in court is almost always a bad idea. Abraham Lincoln famously said, "The attorney who represents himself has a fool for a client". Even if you knew how to remove an appendix, you wouldn't operate on yourself. Keep in mind that your opponent may be represented by a highly-trained, professional attorney. If you act as your own lawyer, you will be held to the same standards of competence.

A qualified, experienced attorney will understand the rules of evidence -- and the exceptions to those rules. For example, hearsay is inadmissible in some types of restraining order hearings. A trained attorney knows how and when to object to hearsay testimony. He or she also knows the many exceptions to the hearsay rules, and the arguments to support your position that some piece of hearsay should or should not be allowed.

Your lawyer will understand the legal issues that are relevant in your case and they can help predict the questions that the judge is likely to ask. This is crucial. I cannot understate the importance of focusing your arguments on the points that will actually affect the outcome in your case, and ignoring the irrelevant ones. The quickest way to derail your own case is to waste the court's time arguing over something that is just not at issue, no matter how important that point might be to you.

Your attorney knows how to issue subpoenas to compel witness testimony if necessary.  He or she knows how to effectively question and cross-examine witnesses who testify in court.  Your lawyer can also act as an intermediary to correspond with the opposing party and witnesses before the hearing.

Most importantly, your attorney can evaluate your case from a neutral position to identify its strengths and weaknesses. Regardless of what your friends and family are telling you, your case probably has some weaknesses -- every case does. Part of your lawyer's job is to help identify those weaknesses and to form a strategy for dealing with them effectively. It's your attorney's responsibility to "give it to you straight", not to tell you what you want to hear.

It's obviously smart to retain a qualified, local attorney if you can afford to do so. If you or a loved one has questions about restraining orders in California, call our office for a free attorney consultation.  (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Attorney

Tuesday, October 25, 2016

Is it Child Abuse to Spank My Kids in California?

Section 273a of the California Penal Code prohibits child abuse.  Violating PC 273a can be treated as a misdemeanor or a felony, depending on the circumstances.  That code section partially defines "child abuse" as "causing or permitting a child to suffer unjustifiable pain and suffering". The operative word there is "unjustifiable".

Of course, there are situations where you may be entirely justified in causing your child to suffer some pain and suffering.  That's essentially what spanking is -- inflicting a reasonable amount of pain as a form of discipline.

In order to be considered lawful in California, spanking must be done under reasonable circumstances and without using excessive force. I understand that this is a completely subjective standard. What might be "reasonable" in your home might shock a young prosecutor in the DA's office. To determine whether or not a particular case warrants the filing of criminal charges, the DA will consider how and why the child was punished, the child's age, the degree of force that was used, whether or not the punishment caused any injuries, and other relevant considerations. Ultimately, a jury will decide whether or not the spanking was "reasonable" and lawful.

The California Attorney General and case law have affirmed parents' right to spank their children using an object other than their hand (a belt, a wooden spoon, etc.), as long as the punishment is necessary and not excessive under the circumstances.

Regardless of your personal philosophy of parenting and opinions on spanking, be advised that corporal punishment is legal in California as long as it is done by reasonable force and under reasonable circumstances.

If you or a loved one has questions about child abuse or spanking in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Child Abuse Lawyer


Thursday, October 13, 2016

What Counts as "Harassment" in a Restraining Order Case?

The law is full of strange words, like "estoppel", "pretermission" and "res judicata". It's also full of familiar words that carry special, legal definitions which differ from those words' ordinary, everyday usage. One of these common words that carries a special, legal definition -- and one that seems to cause a lot of confusion -- is "harassment".

In normal English conversation, "harassment" may describe behavior that annoys or bothers someone. In restraining order court, though, it carries a much more narrow and specific definition. If you're involved in any type of restraining order proceeding, it's crucially important that you understand how courts define "harassment".

As I've previously discussed on this blog, restraining orders may be granted when the petitioner can prove that he or she has been harassed by the respondent, or that the respondent has committed actual violence or credible threats of violence. Violence and threats are pretty self-defining, so they don't require a lot of explanation here.

As I've also discussed, courts are not in the business of getting involved in every situation where one person is annoyed by another person's behavior. Being the subject of a restraining order may have severe consequences for the person whose behavior is restrained. He or she will be stripped of their right to own or possess firearms. The restraining order will become a public record which may affect the restrained party's employment. It could result in the loss of some professional licenses. Courts don't take these consequences lightly. They will not strip people of their rights just because their behavior annoys or bothers someone else.

To prove "harassment" in a restraining order hearing, the petitioner must establish several elements:
  • That the respondent has engaged in a "course of conduct". Harassment involves a pattern of behavior that takes place over time, not just on a single occasion. That course of conduct must demonstrate a "continuity of purpose".
  • The course of conduct was directed at the petitioner. It is not sufficient to simply prove that the respondent is an asshole in general, has been an asshole to other people on other occasions, or that something he does annoys you. For example, the court will not grant a restraining order just because your neighbor smokes a cigar inside his apartment, the cigar smoke comes through the vents into your apartment, and your neighbor is aggressive towards other people in the complex. The court does not care if you're especially sensitive to cigar smoke or if other people are afraid of your neighbor. Those behaviors might annoy you, cause you distress and interfere with your right to peacefully enjoy the privacy of your own residence, but they're not intentionally "directed at you", so they're not the basis for a restraining order. 
  • The course of conduct serves no lawful purpose except to annoy you or to cause you distress. If your neighbor constantly complains to Code Enforcement over every ticky-tacky parking violation, your neighbor is a whiny asshole. Unfortunately, you cannot get a restraining order against someone for being a whiner. The court will not order someone to stop whining if they have some lawful basis for doing so, no matter how much their behavior annoys you.  
  • The behavior would cause a reasonable person to suffer substantial emotional distress. It's not sufficient to prove that the behavior caused you to suffer emotional distress. The court does not care if you're especially sensitive, fragile, or unreasonable -- those are not compelling reasons to strip someone else of their rights. If you want a restraining order, you must prove that the respondent's behavior was so outrageous that a normal, healthy individual would have been seriously distressed by it. I've been involved in plenty of cases where the petitioner comes to court with stacks of records from their therapist to demonstrate how the respondent's mildly-annoying behavior has exacerbated his or her preexisting health condition (anxiety, insomnia, depression, high blood pressure, etc.). It sounds cold, but the court isn't concerned with any of those things if the respondent's behavior would not have similar effects on an otherwise healthy person. 
  • Also keep in mind that "substantial emotional distress" is more that mere annoyance. I've had plenty of roommates, neighbors, coworkers and classmates whose behavior has annoyed me. We all have. Most of those annoyances, though, are not sufficient grounds for the issuance of a restraining order. At the risk of repeating myself, courts are not in the business of getting involved with every dispute that arises between individuals. They cannot and will not order someone to be polite. If rudeness were a legal cause of action, we'd need a bigger courthouse.  
Harassment can be much more complicated and difficult to establish than many litigants imagine. Even if you have been the victim of harassment, proving it in court with reliable, admissible evidence is another story. 

If you or a loved one has questions regarding restraining orders in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.