Tuesday, May 24, 2016

What Kinds of Knives are Legal to Carry in California?

Everybody knows that California has some of the most complicated, restrictive gun laws in the country.  Our knife laws are slightly less complicated, but still pretty asinine.  Here's a quick overview of the rules regarding knives in California.

Folding vs. Fixed Blade

California distinguishes between fixed-blade knives and folding knives.  If the knife folds, it may generally be carried concealed, as long as the blade is not extended and locked into place while concealed.

If a blade is fixed, the knife is considered a "dirk or dagger".  In fact, any non-folding weapon that is capable of inflicting injury by stabbing is considered a "dirk or dagger", even if the object itself is not technically a "knife" (a hay hook, a sharpened toothbrush, etc.).  Dirks / daggers are legal to own, possess and carry, but they may not be concealed upon your person.  A knife is not considered "concealed" if it is worn openly in a sheath suspended from a belt.

In short: you may carry a folding knife in your pocket as long as the blade is closed.  If you want to carry a fixed-blade knife or any other stabbing weapon on your person, it must be visible and worn in a sheath attached to your belt.

Size Limits on Knives

There is no statewide size restriction on knives under California law, but some municipalities may have more restrictive local ordinances.  The City of Los Angeles, for instance, prohibits any person from carrying a knife in plain view.  The law includes any knife with a blade of three or more inches in length, any switchblade, and any other sharp stabbing tool affixed to a handle, regardless of length.  The Los Angeles law does not prohibit the concealed possession of knives in public, only their display in plain view.  The precise definition of "in plain view" is probably up for debate.

Check your local municipal code to determine whether or not your town imposes restrictions on knives that are more stringent than the statewide law.

Prohibited Knives

California prohibits the possession of any weapon that is disguised or not immediately recognizable as a weapon.  This includes knives that are hidden inside hairbrushes, lipstick tubes, writing pens, air gauges, belt buckles, canes, etc.

Californians may own switchblade knives in their homes, but they may not carry switchblades on their persons in public or in the passenger area of any car.  They also may not transfer them to any other person.  The same is true for gravity knives and butterfly knives, AKA "balisongs", AKA "batangas".

What Counts as a "Switchblade"?

Until a few years ago, there was a real debate among criminal defense attorneys and prosecutors regarding what actually constituted a "switchblade" knife.  The way the law was previously written, it seemed to prohibit public possession of common "assisted openers".  Assisted openers are pocket knives with spring-loaded blades that pop fully open once the user starts the process and overcomes some initial resistance.  There is no button or release lever, just a thumb stud on the front or on the side of the blade.  Assisted openers are a hugely popular "everyday carry" option for many people because of their ease and convenience, especially when working with one hand (on a ladder, for instance).

To clarify all the confusion regarding what did and didn't qualify as a "switchblade" in California, the legislature revamped section 17235 of the Penal Code by adding one sentence to the law.  The addition, in italics, was intended to clarify that assisted openers are legal to carry in the State of California.  Today, that code section reads as follows:

"A 'switchblade knife' means a knife having the appearance of a pocketknife and includes a
spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever. 'Switchblade knife' does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position."


If you or a loved one have questions regarding knives or other weapons in California, call our office for a free attorney consultation. (714) 505-2468. Ask for John. We have extensive experience in defending against all types of criminal and weapons-related charges. 

Thanks for reading.

Orange County Weapons Lawyer

Thursday, May 19, 2016

Successful Strategies to Defeat a Restraining Order in California

If you've recently been served with a restraining order in California, your head is probably spinning. I've previously written on this blog about the process of seeking or fighting a restraining order. Those posts are available here, here and here.  If you haven't read those already, take a moment to educate yourself on the nuts & bolts of the restraining order process.  Those posts include some helpful tips that you can use to prepare for your big day in court.  If you take the time to wrap your head around that information, then you will have a huge advantage when you stand in front of the judge.

Today, I want to specifically discuss a few different strategies that I have successfully used to defend against restraining orders.  I can't tell you which of these options is best for you and your case.  Of course, every case is unique.  The most advisable strategy will necessarily depend on the facts and circumstances of your situation.

The smartest place to start is with a qualified, local attorney.  He or she can evaluate your case from a neutral, detached perspective to help determine the most advisable course of action.  An experienced professional should understand the rules of evidence and the legal procedures that will be involved in your case. As you're preparing for your court hearing, be aware that your emotions will cloud your judgement. If you're angry, frustrated, embarrassed and confused, you will have a hard time weighing your own case fairly and objectively -- the way that the judge will see it.  Your lawyer can sort through the unique facts of your situation to formulate a winning strategy.

Factual Innocence

The best legal defense in any restraining order case is "factual innocence" -- you really didn't do whatever you're accused of doing. Proving factual innocence should always be the priority of your defense team.  Of course, proving a negative can be difficult or impossible.

A common way to prove factual innocence is to provide an alibi -- proof that you were somewhere else at the time that the abuse or harassment occurred.  An alibi can be proven with credit card statements, witnesses, plane tickets, phone records, etc.  Bring those things to court and make sure that they're in some form that can be organized and stored in the judge's files.  If you have text messages, photos or other documents on your phone, print them out before appearing.

Justification

A "justification" is a legal defense in which the respondent admits that he committed the act for which he is accused, but he is able to demonstrate that his conduct was "rightful" under the circumstances.  The respondent must convincingly show that, due to circumstances beyond his control, he actually did a good thing, or that he prevented some greater harm by engaging in conduct that might otherwise be illegal or that might form the grounds for the issuance of a restraining order.

The classic example of a "justification" is self-defense.  Petitioner alleges that Respondent punched him in the face and broke his front teeth.  Normally, punching and injuring a man would be grounds for the issuance of a restraining order.  Respondent admits that he punched Petitioner, but he is able to prove that Petitioner attacked him.  Respondent is further able to prove that he did nothing to provoke the attack, that he had no other options to defend himself, and that he only used the degree of force that was necessary to repel Petitioner's assault.  Here, Respondent's act of punching Petitioner was "rightful" under the circumstances.  The restraining order should be denied.

Excuse

An "excuse" is a legal defense that negates the "wrongness" of some conduct, but stops short of actually "justifying" that conduct.  When an act is excused, we don't say that the accused individual did a good thing, only that the accused does not deserve to be punished for what he did.

An example of a legal excuse might be sleepwalking.  Just like the above example, let's say that Petitioner accuses Respondent of punching him in the face and breaking his front teeth. Respondent admits that he punched Petitioner, but he maintains that he was sleepwalking and that the act was involuntary. Respondent can prove that he has a documented history of sleepwalking and other facts support his defense.  Since the act of punching Petitioner was unknowing and involuntary, the restraining order should be denied.

Sleepwalking is obviously a rare and risky defense to attempt, but I used it to demonstrate one example of a legal "excuse" in practice.  Other legal excuses include:

  • Adequate provocation: "Yeah, I punched him, but he was trying to piss me off and he succeeded".  This is the legal equivalent of arguing that "he was asking for it, therefore he constructively consented to my punch".  It doesn't make the violent act OK, but it removes some of the blame that we might normally assign to the respondent. 


  • Involuntary intoxication: "I accepted a drink from a stranger at a bar.  I believed that the drink contained only cranberry juice.  The next thing I knew, I was taking off my clothes and throwing swings at everybody in sight."  If the accused can prove that he was drugged and that he became intoxicated involuntarily, then he might be less responsible for conduct that is directly attributable to that intoxication.  Keep in mind that this defense does not apply if the accused knowingly consumed drugs or alcohol.  

Denial

No matter what type of restraining order you're facing, the petitioner always bears the burden of proof.  A tie goes to the respondent.  If the petitioner fails to prove his or her case, then the respondent wins.

In restraining orders based on allegations of civil harassment or workplace violence, the petitioner must prove his or her case "by clear and convincing evidence".  This is high burden.  If the evidence is unclear or unconvincing, then the respondent wins.

In restraining orders based on allegations of domestic violence, the petitioner must prove his or her case by "reasonable proof".  This a lower burden than "clear and convincing evidence", but it still requires the petitioner to convince a judge that the alleged violence or harassment occurred.

When the evidence is weak or non-existent, the respondent may prevail by simply denying the allegations.  As I mentioned above, you should speak with an experienced, local attorney to determine whether or not denial is an advisable strategy in your case.  The rules of evidence are complicated and it may be difficult to accurately, objectively evaluate the strength of the evidence in your own case.

If you've been served with a restraining order, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Orange County Restraining Order Lawyer

Monday, May 16, 2016

Catalina Island Court: A Nightmare in Paradise

I was back in court on Catalina Island this past Friday, May 13.

If I've learned anything from my experiences in Catalina court, it's to expect the unexpected.  It doesn't take much to gum up the works at the Catalina courthouse.  Delays and complications are part of the routine.

The Catalina Courthouse, nestled in the beachside community of Avalon, is only open on alternating Fridays.  The judge, prosecutor, clerk and court reporter commute by helicopter from San Pedro when the court is in session.  The slightest inclement weather, however, often means that the helicopters can't fly.  When that happens, cases may be postponed until the court's next available date.  And since the courthouse is only open every other Friday, the next available court date might be weeks or even months away.

I usually take the Catalina Express ferry to and from the island, but it's not much more reliable than the helicopter.  I've been stranded on the island for days because boats couldn't cross the channel due to high winds, rough seas, or debris in the Long Beach Harbor.

Even when the weather cooperates, the human element is an unpredictable variable.  I've had cases continued (routinely) because the DA or the court staff forgot to bring a file or some important paperwork from the mainland.  It's all part of the experience when you go to court in Avalon.

This week, the culprit was fog.  The helicopter was grounded due to poor visibility, so the court staff was stranded in San Pedro.  The courtroom in Catalina was full of attorneys and defendants with cases on calendar, but nothing happens in court until the judge shows up.  So we waited. And waited. And waited a little longer for the marine layer to burn off.

The court staff appeared around 11:45.  The good news is that we were able to hear our cases without unnecessary continuances.  The bad news is that everybody in court missed the boat that was supposed to take us back to the mainland at 12:15.

The next boat on the day's schedule left at 3:30, so we had a few hours to kill.  I made myself comfortable at the Marlin Club.  There are worse places to be stranded for a day.

There are plenty of great activities to enjoy on Catalina Island, but going to court is not one of them.  If you're arrested or cited on Catalina, hire a local attorney to make your court appearances so you don't have to.  I can save you the time, hassle and expense of experiencing this adventure for yourself.  I appear in Catalina regularly, and I even make appearances for other attorneys who are unavailable to make the trip.

If you have questions about appearing in court at the Catalina courthouse, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Catalina Island Lawyer

Thursday, May 5, 2016

Is Hearsay Evidence Admissible in Restraining Order Hearings?

The answer in California is, "sometimes".

To understand how it all works, you have to first understand the legal definition of "hearsay". Hearsay is any out-of-court statement, when the statement is offered for the truth of the matter asserted (Bill testifies, "Ted told me the red car ran the light", as proof that the red car ran the light).  Hearsay also includes signed affidavits from witnesses who are not present in court to answer questions about their statements.

Hearsay evidence is considered unreliable for obvious reasons.  Generally, it is inadmissible in court unless some exception applies, and there are lots of exceptions.

Civil harassment restraining order cases are one such exception to the general rule that says hearsay is inadmissible.  The law describing civil harassment restraining orders in California specifically says that, at the time of the hearing, "the judge shall consider any testimony which is relevant".  Courts have interpreted this rule as allowing the admission of hearsay evidence in civil harassment restraining order hearings as long as that testimony is relevant (that it generally relates to the facts at issue).

And since the laws regarding workplace violence restraining orders basically mimic the language that governs civil harassment hearings, courts have also determined that hearsay evidence is admissible in workplace violence proceedings.

Domestic violence restraining orders are treated a little differently because they are governed by the Family Code rather than the Code of Civil Procedure.  The language in that code does not include the specific instruction that judges must receive all relevant evidence.  Since no hearsay exception applies in domestic violence restraining order cases, the usual rules of evidence apply and hearsay is excluded.

Even when hearsay is admissible, it is almost always advantageous to bring live witnesses to court rather than signed affidavits.  The judge may have questions and the witness may be needed in case unexpected issues arise.

If you or a loved one has questions about restraining orders in California, call our office for a free attorney consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Orange County Restraining Order Lawyer

Wednesday, April 13, 2016

What's New in California Gun Laws?

AB-2459

This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years.  It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.

The measure is working its way though the Assembly committee process.  It was watered down a little in the Committee on Public Safety last week.  Now it's headed back to the Committee on Privacy & Consumer Protection.

A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled.  It also would have mandated that the store owner maintain all footage on site for a period of 5 years.

As amended, the latest version of the proposed law would only require gun dealers to record transactions.  The video footage must be in color and of sufficient definition to record the facial features of all buyers.  The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored.  The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.

The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself.  The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations.  Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person.  All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print.  The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file.  A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.

Current Status of Peruta v. San Diego

This is the case that turned California's CCW licensing scheme on it's head.  It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.

Here's a little background:  Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license.  A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.

Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense.  His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public.  The Federal District Court in San Diego agreed.

Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.

The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet.  An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.

Until the court provides some guidance, we're left in a sort of legal purgatory.  The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court.  Things are likely to get even muddier before we see any clarity.  Check back often for updates as they become available.


AB-1663 & AB-1664

These two proposed laws would effectively ban the "bullet button" in CA.  I've written about them previously, here.

Both measures are currently working their way through the committee process in the State Assembly.  They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.

If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk.  Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.


8,500 CCW Permits in Orange County, 0 Incidents of Misuse

Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.

According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County.  Of the 8,500 people who carry concealed weapons daily, not a single one has pulled out his / her piece in a road rage incident or bowling dispute ("Mark it '0'! He was over the line!").


Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure

Lt. Gov. Newsom and a coalition of gun control groups claim to have collected enough signatures to qualify their proposal for the November ballot.

The initiative would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.

California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them.  Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.

Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.

And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage.  No other state currently requires background checks to purchase ammo.

The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year.  Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime.  As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will.  News flash: felons are already prohibited from possessing firearms and ammunition in California.  This law will not prevent bad guys from gaining access to guns.  It will, however, make shooting sports more expensive and inconvenient for the rest of us.

If you or a loved one has questions about guns or weapons in California, call our office for a free attorney consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Santa Ana Gun Lawyer

Thursday, April 7, 2016

Fullerton Police Use New Oral Swabs to Test Drivers for DUI


The Fullerton Police Department has been participating in a pilot program to test some new anti-DUI technology.  Since 2013, the agency has experimented with oral swabs that supposedly detect the presence of marijuana, cocaine, amphetamine, opiates and benzodiazepine (Xanex) in a suspect's saliva.

The tests may indicate the presence or absence of specific drugs in the suspect's saliva, but they do not reliably measure the quantity or concentration of those drugs.  Since they cannot accurately quantify the drugs that they detect, they are not very helpful in determining the suspect's actual degree of impairment. Clinical tests have also delivered very mixed results regarding the reliability of the new tests. The vice president of one company that manufactures the machines claims that his product is 99% accurate.  The Sacramento PD, however, has had another experience.  In one study, the department tested 34 drivers.  Of those 34, 6 tested falsely positive and one tested falsely negative for drugs.

For now, the new oral swabs are only used as an investigative tool to help the police establish "probable cause" to make an arrest.  Once the police have a good reason to believe that their suspect is driving a car while impaired, the suspect is arrested and transported to jail, where more reliable blood tests can be administered.

In California, there is currently no legal limit to clearly define when a driver is "impaired" by THC, amphetamine or other drugs.  In order to sustain a conviction for driving under the influence of drugs, prosecutors must prove that the driver was so impaired by some substance -- or by some combination of substances -- that he could not operate his vehicle with the skill and care of an ordinary, sober driver (whatever that means). Typically, police will draw blood from subjects who they've arrested on suspicion of drugged driving.  They will prepare reports to detail their observations of the subject.  Those reports will describe the subject's driving and performance on field sobriety tests. Based on the results of blood tests, combined with the totality of the officer's personal observations, prosecutors will attempt to prove that the subject was too impaired to safely drive a car.

The new oral swabs are one more piece of the puzzle that prosecutors will now use to combat drugged driving.  Driving under the influence of drugs is one of the hottest, most talked-about issues in local policing today.  Somebody recently decided that "Satanic death cults" are passe. "Driving under the influence of drugs" is the new danger lurking in suburbia.  The Orange County District Attorney has deputies specifically assigned to prosecute these kinds of cases full-time. They receive grants from MADD to fund their efforts.  The grants create a financial incentive for law enforcement agencies to devote disproportionate resources to combat a problem that may or may not actually exist (and to convict people who may or may not actually be dangerous).

If you or a loved one is accused of DUI or driving under the influence of drugs in Orange County, call us for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Orange County Drug DUI Lawyer

Thursday, March 31, 2016

Announcing New Collaboration with Thekindland.com

I'm proud to announce my partnership with thekindland.com.  I've contributed a few columns to their online magazine over the past year, but we recently finalized an agreement for a regular, long-term collaboration.  My "Ask a Weed Lawyer" features will appear each Sunday until the complaints become intolerable or until the robot apocalypse, whichever comes first.

As the title of my column suggests, I will be answering common marijuana-related legal questions. If you have specific questions that you'd like answered, please feel free to leave your suggestions in the comments, below.

If you don't already read thekindland.com, you should start now.  It's a free online magazine dedicated to cannabis culture and lifestyle.  Think High Times meets Vanity Fair.  And it's not all weed.  Daily articles include a roundup of bizarre news from the internet, commentary on arts / current events, and a feature they call "Chill / No Chill", where readers can vote on the divisive topic of the day (e.g. compression pants, hemp sneakers, pizza delivery robots, etc.)  Enter your email address on their homepage to get all the headlines delivered to your inbox every morning.

I will continue updating this blog while I work with the thekindland.com.  Most of my nationally-relevant, marijuana-related posts will go up over there, and the California-specific posts will stay here.  I'll also do my best to keep this blog freshly stocked with non-marijuana-related news and analysis.

Thanks for reading.