Thursday, October 3, 2019

Ask a Lawyer: How to Fight a "Drunk in Public" Case

There's a lot of misinformation out there about "drunk in public" charges.  If you or someone you love has been arrested or cited for violating section 647(f) of the California Penal Code, stop taking bad advice from your friends -- read this instead. 

Elements of the Offense

Just like the name implies, being "drunk in public" includes 2 elements that must both be established beyond a reasonable doubt: 1) that the defendant was "drunk", and 2) that he or she was "in a public place".  As with many things in the law, though, those terms have special meanings that are a little different from their definitions in normal usage. 

To be considered "drunk" for purposes of PC 647(f), the DA must prove that the defendant was so impaired by alcohol that he or she could not care for their own safety or the safety of others.  Unlike in DUI cases, though, the DA does NOT need to prove the defendant's specific blood alcohol concentration.  In DUI cases, the prosecutor can win by simply establishing that the defendant's BAC was above 0.08%.  There is no specific legal BAC limit for walking around on the street, though. 

To satisfy this first element (that the defendant was "drunk"), the DA will present evidence that the subject was a danger to him / herself or others.  If the defendant was found wandering in the street, passed out, injured or involved in a fight, those facts would support the contention that the defendant was not able to care for his / her own safety.  By law, people who are arrested on suspicion of violating PC 647(f) may demand a breathalyzer test, but they are not required to submit to one.

The second element of PC 647(f) trips up a lot of people who read the statute too literally.  As I mentioned above, the California Penal Code uses some terms with meanings that may differ from their ordinary usage.  "Public place" is one of those terms.  Courts have determined that ownership of the land has nothing to do with whether or not a place is considered "public".  Under PC 647(f), a place is considered "public" if it is open to the public and people are generally free to walk through while conducting legitimate business, even briefly.  This includes the insides of privately-owned bars, private parking lots (including inside cars that are parked in private lots), common areas of apartment buildings, and even the front lawn of your own house.  If a mail carrier or a Girl Scout could walk across your front lawn without being arrested for trespassing, then your front lawn is considered a "public place" for the purposes of 647(f).  This means that you can be arrested for being "drunk in public" on your own front lawn. 

Defenses to the Charge

The most common and obvious defenses to "drunk in public" charges are that the defendant was not drunk, or that the place was not "public". 

I have actually (successfully) defended a case where my client was arrested for being "drunk in public" inside his own living room.  I understand that the law uses an expansive definition of "public place", but this was just ridiculous.  Granted, my client had been dangerously drunk, but he hadn't committed any crimes.  He had weapons and the police wanted to get him out of the house to preventing him from hurting himself or someone else.  If he had actually threatened anyone, he could have been charged with PC 417 (brandishing a firearm) or 422 (making criminal threats), but he hadn't.  The only options police had were to arrest him on a bogus PC 647(f), or else to leave him drunk and alone with his weapons.  Of course, the case was eventually dismissed. 

Even if the defendant WAS dangerously impaired in a public place, "involuntary intoxication" is a defense if the defendant can prove that he was "dosed", or that he had involuntarily ingested some unknown substance.  GHB for instance, is commonly used a "date rape drug".  It can cause symptoms that are very similar to alcohol intoxication (poor coordination, slurred speech, disorientation, sedation, loss of consciousness, etc.).  This is obviously rare, but I successfully defended a case a few years ago where witnesses confirmed that my client had only consumed 2-3 glasses of wine over the course of the night.  One of the glasses had been given to her by a man she didn't know.  Within about a half hour of her last drink, she began acting bizarrely and completely lost her ability to stand on her own feet.  Police found her rolling on the ground in a parking lot.  She appeared to be extremely drunk, but involuntary intoxication was the only logical explanation once the witnesses came forward.  That case was also dismissed. 

Alternatives to Prosecution

Even if the case is strong, there may be options to fight a 647(f) case, or at least to avoid a conviction. 

Depending on a defendant's criminal history, he or she may be eligible for some form of "deferred entry of judgement" program.  The specifics vary by county, but DEJ can satisfy a lot of the "objectives of justice" without hammering first-time offenders.  It usually requires the participant to plead "guilty" in advance.  A "sentencing hearing" will be scheduled several months later.  Between the time of the plea and the sentencing hearing, the defendant will be ordered to satisfy various criteria (take a class about the dangers of alcohol, attend AA meetings, perform community service, etc.).  If all those terms are satisfied before the sentencing hearing, then the case is simply dismissed.  A defendant who successfully completes DEJ is never actually sentenced for the crime.  Since a defendant is not technically considered "convicted" until he or she has been sentenced, successful completion of DEJ is a great way to keep a "conviction" off your criminal record. 

If the defendant has several prior convictions and he or she is not eligible for DEJ, we can usually get creative to fashion to some alternative that has roughly the same result.  I always argue that someone with several prior convictions needs treatment even more than a first-time offender.  It doesn't make sense to me that someone with a well-documented history of alcohol abuse would be excluded from treatment-based solutions.  If the defendant is willing and able to comply with some extensive course of alcohol counseling and / or treatment (or if the defendant is ALREADY in a program like that), we may be able to negotiate a deal whereby he or she receives credit for time spent in that treatment.  Obviously, everyone benefits if we can ensure that the same problem is less likely to arise in the future. 

If you or a loved one has been arrested or cited for violating section 647(f) of the California Penal Code, commonly referred to as "drunk in public", call us for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Fullerton Drunk in Public Lawyer

Monday, September 30, 2019

Fight a Hit & Run Case in Orange County

Under California law, any driver who is involved in a vehicle collision must immediately stop and provide his or her contact information to the owner of any damaged property.  If the owner cannot be found, the driver must leave a note in an obvious place and immediately notify the local police or CHP.

Leaving the scene of a traffic accident without exchanging contact information is a crime in California, commonly known as "Hit & Run" (VC 20002).  If the collision involves only property damage, Hit & Run is usually treated as a misdemeanor.  If someone is injured or killed, it can be treated as a felony.

A lot of my clients are surprised to learn that they can be charged for Hit & Run even if they collide with a stationary object and no other cars are involved.  Hitting a stop sign, a guard rail, or a tree, for example, can lead to a Hit & Run charge if public property is damaged the driver fails to immediately report the collision to police.

There are plenty of reasons that people leave collision scenes.  Some of these reasons might even help form a defense to criminal charges.  If the other driver threatened you and you were afraid for your safety, you might have had a valid reason to flee.  If the collision occurred on the freeway, there might not have been a safe place to stop and speak to the other driver.  If the collision was so minor that you didn't even realize you'd hit something, you might also have a good excuse for failing to stop.  These are just a few common examples.

I understand that some drivers simply panic and flee because of adrenaline and emotions.  This isn't a legal defense, but judges and prosecutors may show lenience when the offender is young, inexperienced, and sincerely remorseful.  It also helps if the driver (or the driver's insurance carrier) is able to fully pay for any damage.

Keep in mind also that fault for the actual collision has nothing to do with Hit & Run charges.  It does not matter who was responsible for causing the accident.  Even if some reckless maniac hit you, you are still required to stop and exchange information.

Until recently, Hit & Run cases could be resolved through a process called a "Civil Compromise", or "Civ Comp".  If the victim, the DA and the judge all agreed, the defendant could simply write a check to the victim for any damages and the victim could request that the criminal case be dismissed.  The entire process was usually negotiated by the defendant's attorney.  Courts ended the practice earlier this year, though.  They explained that, when someone commits a Hit & Run, they're not in trouble for causing a collision -- they're in trouble for leaving the scene of the collision.  The "victim" in a Hit & Run case isn't just the person you hit (or the person who hit you); the real victim is the administration of justice.  Simply paying for the property damage doesn't make up for the actual wrongdoing.  Unfortunately, this means that "Civil Compromise" agreements are no longer an option to resolve Hit & Run cases in California.

We still have other options to fight Hit & Run charges, though.  Depending on a lot of circumstances, the defendant may be eligible for some form of "diversion" or "deferred entry of judgement".  Under these deals, a defendant would be ordered to pay some fees, take some classes, perform community service, provide a DNA sample and / or do whatever else is agreed upon.  Once he or she has completed those terms, the case may be dismissed entirely or reduced to a less-serious charge.

Of course, these options are assuming that the defendant is actually guilty of a crime -- and that the DA can prove it.  Hit & Run cases can be notoriously difficult to prove, though.  Even if prosecutors can prove which car was involved and they know the registered owner of that car, they can't always establish who was driving the car at the time of the collision.  To be convicted of Hit & Run, the DA must prove that a specific defendant was behind the wheel.  If someone else used your vehicle to commit a crime, you are not criminally responsible.  And if police ask you questions about who was driving your vehicle at some specific time, you have no legal obligation to answer or to snitch on a family member.  Police may threaten and intimidate you, but they cannot legally compel you to answer questions.

If you or a loved one has questions about fighting a Hit & Run case in Orange County, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Hit & Run Lawyer

Friday, September 27, 2019

Court Updates: Domestic Violence Restraining Orders

The courts that handle Domestic Violence Restraining Orders in Orange County got a shake-up earlier this year.  The laws haven't changed, but the names and places have. 

Previously, all Domestic Violence Restraining Orders were heard at the Lamoreaux Family Justice Center in Orange.  Due to overcrowding, though, these hearings are now being conducted at the other branch courts.  Some of the judges who now hear restraining order cases previously handled serious criminal matters and probation violations.

Some DVROs are still being heard at Lamoreaux, but the judges who officiate have all been shuffled.  Judge De La Cruz from L-63 is now at the Westminster Courthouse, and Commissioner Wilson from L-11 is hearing criminal cases in the Harbor Justice Center. 

Some of the forms used in Domestic Violence Restraining Orders were updated earlier this year, with some minor revisions to the DV-109 Notice of Court Hearing and some changes to protect confidential information of minors.  If you're using old forms, it's time to update. 

Restraining Order courts are taking a more active role in ensuring that firearms are accounted for.  If a restraining order is granted against an individual, the restrained party must surrender any firearms in his or her possession within 24 hours.  Weapons may be turned in at a local police station, stored with a licensed firearm dealer, or sold.  Proof that the weapons have been turned in, sold or stored must be filed with the court within 48 hours.  When the case called for a hearing, the judge is now required by law to check with the California Department of Justice to determine whether or not the restrained party has any firearms registered in his or her name.  If weapons are unaccounted for, the respondent can be held arrested.

Local enforcement teams from the California State Department of Justice have also been busy physically going door-to-door and collecting firearms from prohibited individuals.  Most of these actions are "knock and talk" encounters.  If the DOJ believes that someone who is the subject of a restraining order is in possession of firearms, they will simply knock on the subject's door and ask about the weapons.  If the homeowner refuses to hand over the guns, then the DOJ agents may apply for a search warrant, depending on the strength of their evidence. 

Domestic Violence Restraining Orders probably have more serious consequences now than ever before.  If you or a loved one has questions about a restraining order in Orange County, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Orange County Restraining Order Lawyer.

Thursday, September 12, 2019

Cited in Catalina: Summer 2019 Edition

It's been a busy summer in the Catalina Courthouse.  As always, our firm defended more criminal cases on the island than any other private firm (not the Public Defender Panel).  As the most experienced local attorneys in Catalina, we're also still covering cases for other lawyers who are unable to appear on behalf of their own clients on the island.

We got some great results this summer in cases involving controlled substances, illegal fishing, poaching abalone, drunk in public, battery, domestic violence, DUI, vandalism, theft, possession of controlled substances, and just about every other offense arising in and around Catalina Island.

And the season isn't over.  There are still a few big events and concerts slated for September and October (not to mention Buccaneer Days...).  If you're planning to attend one of these, save my number now (714) 449-3335.

As usual, the bulk of arrests in and around Catalina Island this year involved alcohol-related offenses.  "Drunk in public" charges are nothing new.  I keep trying to warn people, but nobody reads this blog until after they've been arrested -- authorities on Catalina treat "drunk in public" cases very seriously.  The LA Sheriff and the District Attorney prosecute these charges aggressively.  A simple PC 647(f) arrest in most places means a night in jail and a stern warning.  In Catalina, the same arrest can lead to probation, community service, mandatory AA meetings, high fines and even jail.  This is a shocker for attorneys who aren't familiar with the local "justice" system in Avalon.

Visitors also need to be aware that golf carts are considered "motor vehicles" in California.  That means the 0.08% blood alcohol limit applies.  Driving a golf cart while impaired by alcohol or marijuana is a DUI.  A lot of tourists learn this lesson the hard way every year ("But isn't that what golf carts are FOR?!?").

Fishing laws are just as complicated and DFW agents are just as aggressive as ever.  They're still busting unsuspecting fishermen who accidentally drift into protected areas, and they're still inspecting coolers for unidentifiable or undersized fillets.  If you are fishing in or around Catalina Island, take a good nautical map, a reliable GPS and an updated copy of the CA DFW fishing regulations.  We're getting close to lobster season, so expect game wardens to be on full-alert.

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

Thanks for reading.

Catalina Island Lawyer

Friday, August 2, 2019

Can I Drop Domestic Violence Charges?

Domestic violence cases can be frustrating for victims (or "alleged" victims).  Police investigators and prosecutors at the DA's office might pick up cases and run with them aggressively before the facts are fully known.  Even when victims come forward and explain that the allegations are exaggerated or completely untrue, prosecutors probably aren't interested in hearing it.  Once they've made up their minds to hammer some defendant, prosecutors can develop tunnel vision and simply fixate on winning their convictions.

Victims of domestic violence often call my office and say that they want to "drop the charges" against their husbands (or boyfriends, girlfriends, etc.).  Unfortunately, I have to explain that DV cases aren't that simple.  The decision to file / prosecute / negotiate / dismiss a domestic violence charge rests entirely with the District Attorney.  Just as individual victims cannot personally file criminal charges, individuals cannot simply dismiss criminal charges once they have been filed by the DA.  That doesn't mean that the case is hopeless or that the defendant will definitely be convicted, though.  It just means that the "victim" has very little control over how the criminal case will proceed.

As the DA sees it, people who hit their partners and spouses don't just commit crimes against those victims, they commit crimes against the "People of the State of California".  If prosecutors believe that the evidence supports a conviction, the DA will aggressively pursue a case regardless of the actual victim's wishes.  In many DV cases, prosecutors can easily prove the defendant guilty even without the victim's cooperation.  If the victim called 911 and described the abuse as it was happening, police arrived and found the victim injured, the defendant was drunk and admitted to the crime, etc., then the DA probably doesn't need a credible victim to establish what happened here.  Prosecutors might have an audio recording of the 911 call, footage from body-worn cameras as police responded and spoke with witnesses, photos of injuries, etc.   Even if the victim refuses to testify in a case like that, the prosecutor can probably prove the crime based on the totality of the other evidence. 

In many DV cases, though, the facts aren't so clear-cut.  Maybe neighbors called the police but they didn't actually see anything.  When police arrived, both husband and wife were drunk, some property was broken and both had scratches on their arms.  If the wife is screaming and the husband is refusing to answer any questions, the husband will probably spend a night in jail.  If the DA picks up the case, they will seek harsh penalties against the husband.  They will not simply dismiss the case just because the wife asks them to.

That doesn't mean the DA always gets what they want, though.  An experienced criminal defense attorney can work with a cooperative "victim" to collect and prepare helpful evidence.  This may include additional witness statements that were not collected as part of the initial police investigation -- and statements that may have "evolved" since they were recorded in the police reports.  It can also include things like audio recordings, text messages, surveillance camera footage, medical records, or anything else that pokes holes in the prosecutor's story.  By the time we're done with a cooperative "victim", the DA's case might be a lot weaker than they initially understood it to be.  Once the case starts to fall apart, prosecutors may be forced to negotiate or even dismiss the case entirely.

If you or a loved one is listed as an alleged "victim" in a domestic violence case, call us for a free attorney consultation. (714) 449-3335.  Ask for John.  Don't ever talk to police or prosecutors without calling us first.

Thanks for reading.

Fullerton Domestic Violence Lawyer

Tuesday, July 16, 2019

What We're Working On Now

It's been a while since I've published an update.  We've been busy and I'm proud of some of our recent results.  Here are a few highlights, if I may brag:

-LF v. GT:  We represented the respondent in a Civil Harassment Restraining Order.  His next door neighbor was seeking protection based on a series of baseless, frivolous allegations.  Most of the petitioner's claims were not actually grounds for a restraining order, and she had no evidence or witnesses to support other accusations she was making.  I warned the petitioner before the hearing that she had exactly zero chance of winning, and I gave her the opportunity to save her own time and mine.  Instead, she chose to waste a bunch of taxpayer resources before leaving the court sad and empty-handed.  My client was happy, though, so I'm happy.

-People v. RR:  My client was arrested last year on suspicion of DUI.  At the time of his arrest, officers found tactical gear, police scanners, a dagger and a replica firearm in his car.  The DUI was reduced down to "wet & reckless" and my client was never charged or convicted for anything related to impersonating an officer.  The items in his car were not contraband and there was no evidence that they were tied to any crime.  This week, a judge ordered the San Gabriel Police Department to return all of those items to my client.

-People v. AO:  My client was visiting Disneyland with her family.  Her mom had previously given her a "self-defense" key chain, with an object that could technically be considered "brass knuckles" attached.  She obviously didn't intend any harm and she had even flown on a commercial flight carrying the item.  Police at Disneyland, though, decided to cite her for a misdemeanor.  This week, the Anaheim City Attorney agreed to reduce the charge to an infraction so that it will not affect her criminal record.

-People v. MA:  Our defendant is a mentally ill homeless man who was charged with several counts of trespassing and being drunk in public around Orange County.  He had at least one case with the Orange County District Attorney, and a handful of others that were prosecuted by the Anaheim City Attorney.  Defendant's family got him into a residential alcohol treatment facility.  We were able to coordinate a deal with both prosecuting agencies so that our client would receive "credit for time served" in treatment.  Some counts were dismissed and others were given a "terminal disposition" (time served, no probation).

-JS v. KC:  We represented an elderly man in a restraining order that his (also elderly) wife had filed against him.  After prolonged negotiations, she agreed to dismiss the case entirely and to seek couples' therapy jointly with my client.

-People v. JG:  Our client was accused of a laundry list of felony charges, including domestic violence, child endangerment and false imprisonment.  By the time we were done, he pled to a misdemeanor with no jail time.  I call that a "win".

We're currently fighting some really interesting cases, but I can't comment while they're pending.  I hope to share some more good news soon.  Stay tuned for future success stories as they become available.

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

Thanks for reading.

Orange County Criminal Defense Attorney

Monday, July 15, 2019

Arrested in Catalina: What to Do Now

Cops on Catalina don't mess around.  If you're reading this, you probably learned that the hard way.

Every summer, hundreds of thousands of visitors flock to Catalina to enjoy everything the island has to offer.  For many, that includes alcohol.  For some, that also includes a night at the Avalon Sheriff's Station.  If you were cited or arrested while visiting Catalina Island, this blog is for you.

Our office defends more cases on Catalina every year than any other private attorney or law firm.  Only the Public Defender handles more Catalina cases than us.

Catalina court is it's own world, too.  Most visiting attorneys are shocked by how "differently" things are done there.  Among other peculiarities, the building is only open on alternating Fridays.  If you show up on a Thursday, the doors will be locked.  Plus, no case files are kept on site -- they're stored in Long Beach.  That means the judge probably can't accommodate you if you show up unexpectedly when your case is not scheduled to be heard on the day's calendar.  Adding a case onto the court's calendar (to recall a warrant or to request an extension, etc.) can be an ordeal in itself.

The court staff, including judge, prosecutor, recorder and clerk fly out by helicopter from San Pedro for each appearance.  The bailiff, defense attorneys and most of the defendants travel by boat from Long Beach.  Any sort of inclement weather on either side of the channel can completely foul up everything.  Sometimes, the helicopters are flying but the boats aren't running, so the court staff shows up but none of the defendants appear.  Sometimes the opposite happens and the judge calls in over the phone.  Either way, it doesn't take much to gum up the works.

Despite what the deputy or game warden told you, your case will not be heard in Long Beach.  All misdemeanors and infractions arising in and around Catalina are prosecuted on the island.  Felonies are filed in Long Beach, though.  The most commonly charged crimes on the island are probably drunk in public, DUI, various fishing violations, possession / under the influence of a controlled substance, assault / battery, domestic violence, fighting and shoplifting.  As I've previously written on this blog, you can be arrested for DUI on a golf cart.

Another unusual thing about the Catalina Courthouse is their general hostility toward alcohol-related offenses.  Every court in every county has its own priorities (as determined by the elected District Attorney for his own political reasons).  Some courts are lenient with firearms but harsh on domestic violence, for instance.  The Catalina court is exceedingly harsh on offenses like "drunk in public".  In most parts of California, a 647(f) arrest means a night in jail and a stern warning.  In Catalina, the DA's standard offer for a 1st-time drunk in public charge includes probation, community service, AA meetings, and fines.  Jail is even on the table for repeat offenders and exceptional cases.

About half of the defendants in Catalina court are there for some fishing-related offense.  Fishing inside a protected area is a big one, along with a million other ticky tacky minor infractions -- some of which carry disproportionate fines.  The minimum fine for an abalone violation, for instance, is over $60,000.

The good news in all this is that, for most misdemeanor cases in California, you do not need to personally appear in court.  A private attorney like myself can appear in your place for most hearings.  I can save you the time and expense of traveling all the way back to Catalina for a series of routine appearances.

If you or a loved one has been cited or arrested while visiting Catalina, call our office for a free attorney consultation.  Ask for John.  (714) 449-3335.

Catalina Island Lawyer