Fullerton Police Step Up DUI Enforcement

Downtown Fullerton, Orange County's happenin' hot spot for DUI arrests, is heating up.  The FPD has announced plans to take DUI enforcement to the next level.

The Fullerton Police Department recently received a pair of massive grants from the State of California to fund an aggressive new crack-down on drunk driving.  The funds total nearly $200,000.00, with $50,000.00 of that money earmarked for a series of 5 DUI checkpoints.  The remaining $140,000.00+  will be used to fund 90 nights of saturation patrols in the downtown bar area.  The patrols supposedly consist of 2-man teams who comb the streets for suspected drunk drivers.  By my math, that equals $10,000.00 per checkpoint and $1,550.00 per saturation patrol.  

The illustrious FPD has also finally acknowledged the existence of their long-suspected "court sting operation" program.  This is a deal where plain-clothed officers hang out at the Fullerton Courthouse.  They watch for defendants who have had their licenses suspended, then they follow the defendant out to his car.  If their subject gets behind the wheel, they promptly cite him for driving on a suspended license.  Oldest trick in the book, but it still works.  There's nothing unconstitutional about this practice, it just reeks of bored cops.  

Be careful out there, folks.  Don't give the cops something to do.  

Orange County Lawmaker Proposes New Rules for Stoned Driving

Updated June 12, 2013: Correa's proposed law, SB 289, died in committee without any action by the State Senate.  A crucial deadline has passed.  The bill will, therefore, not be heard by the Assembly.  Thank you to all who took the time to tell your State Senators to keep their hands off of medical marijuana. 

State Senator Lou Correa (D - Santa Ana) has introduced new legislation that would create a zero-tolerance "per se" law for driving under the influence of any drug classified in schedules I, II, III or IV of the Controlled Substances Act.  This means that it would be a crime (DUI, to be exact) for ANY person (including qualified medical marijuana patients) to operate a motor vehicle in the State of California with ANY measurable amount of ANY drug in his or her system, regardless of whether or not that drug actually impaired the driver's ability to safely operate a car.

As previously discussed on this blog, a typical "alcohol" DUI includes 2 counts: the "a" count and the "b" count.  The "a" count is the crime of driving a car while "impaired" by drugs, alcohol, or the combined influence of drugs and alcohol.  To be guilty of the "a" count, the DA must prove that drugs, alcohol or their combined influence rendered you "unsafe" to drive a car, regardless of the actual levels of drugs or alcohol in your system.  It is already illegal in California to drive a car while dangerously stoned -- or dangerously impaired by any drug for that matter.  I have defended individuals who were accused of driving while "impaired" by chemotherapy drugs.

The "b" count is the crime of operating a car while your blood-alcohol concentration (BAC) is greater than 0.08 % -- this is called the "per se count".  Obviously, in the typical DUI case, the defendant is guilty of both the "a" and the "b" counts because he is unsafe behind the wheel AND his BAC is > 0.08 %.  A stoned driver is guilty of only the "a" count if he is impaired by marijuana and his BAC is less than 0.08 %.

Marijuana DUIs are obviously tricky, therefore, because there is no legal limit to define when a person is too stoned to drive.  Prosecutors prove marijuana DUIs by introducing evidence of bad driving (swerving, drifting within a lane, stopping at a green light, etc.), by showing poor performance on field sobriety tests (showing that the defendant was disoriented and had difficulty following simple instructions) and by introducing toxicology results showing a specific concentration of THC in a subject's blood.  Since there is no limit for THC in blood and because THC affects individual users so differently, THC levels alone really prove nothing.  The jury must decide whether the defendant was "impaired" by marijuana and, therefore, "unsafe" to operate a vehicle because of marijuana impairment.  If the jury finds that the defendant is "unsafe" because of marijuana intoxication, he is guilty of a DUI with all of the penalties that a DUI conviction carries.

This proposed new legislation would finally create a legal limit to guide the courts in determining whether or not an individual is too stoned to legally drive.  Makes sense, right?  Some clarification of the law could bring uniformity to the way that marijuana DUIs are handled and would give users a better idea of when they are legally prohibited from driving.  Unfortunately, the proposed limit for THC in blood is exactly 0.  Under this law, a person would be guilty of DUI if he or she smoked marijuana last week and any trace of that marijuana were detectable in a blood test.  The DA would not need to prove that the defendant was impaired in any way by the presence of marijuana, only that THC was present in some trace level.

If passed, the proposed law would effectively prohibit medical marijuana patients from EVER operating a car in California since even weekly users would ALWAYS have some measurable traces of THC in their blood.

I'm not sure what this law is based on, but it's sure not science, common sense or compassion.  The proposed legislation appears to be a shameless reach for publicity by an unscrupulous politician with ulterior motives.  It's no secret that Correa has big political ambitions in California.  He has already started raising money to replace Kamala Harris as Attorney General in the next election.  This bill looks like a cheap attempt to get his name into headlines and garner some support from police unions around the state at the expense of seriously ill medical marijuana patients.  Of course, more laws mean more work to keep cops busy, and that means more overtime and more money for the unions.  See how science, common sense and compassion go right out the window in politics?

Tell Correa to leave his hands off of marijuana.  We don't need any more asinine laws to fill our already-crowded jails with even more harmless, non-violent offenders.

Lou Correa can be reached in Santa Ana at (714) 558-4400 or in Sacramento at (916) 651-4034.

I Was Arrested for Shoplifting. Now What?

The following is a guide that I published on Avvo.com a couple years ago.  I still get so many calls on the topic that I've decided to re-publish it here with a few updates.  

Shoplifting is one of the most commonly charged offenses in California, with a huge range of possible penalties.  I wrote the following legal guide to help answer some of the questions that I receive nearly every day on the topic. 

Theft can be much more complicated than it looks on the surface because of the above-mentioned range of possible punishments.  The simple act of walking into a store and taking some goods without paying can be classified as an infraction, a misdemeanor or a felony, depending on a lot of circumstances. 

Before the prosecutor will decide what charges, if any, to file against a suspect, attorneys from the DA's office will take a number of facts into consideration -- What was the value of the thing taken? Was the property damaged in any way? Did the suspect use any force or the threat of force to take the property? What kind of criminal history does the suspect have? Did the suspect enter the store with the intent to commit theft or did the suspect decide to commit theft once he or she was already inside? Can it be proven that the theft was actually intentional or is there a chance that an innocent shopper simply forgot to pay for something? The answers to these questions will guide the prosecutors in deciding what types of criminal charges to file against a person suspected of shoplifting. 

The Value of the Thing Taken

Typically, if the value of the property taken is low, nothing is damaged, the store receives the property back, and the suspect has no significant criminal history, the DA might be willing to reduce the charge to a simple infraction, similar to a speeding ticket.  Depending on the county, the defendant might be required to take some classes, provide a DNA sample or make a financial contribution to a program that benefits victims of crimes before the case will be reduced from a misdemeanor to an infraction.  An infraction will include some fines, but no probation and no jail time. 

If the value of the thing taken is significant but less than $950, the suspect will probably be charged with misdemeanor petty theft.  If, however, the suspect has some history of theft, if force was involved in the crime, or if it appears that the suspect entered the store with the plan to commit a theft, he or she could be looking at more serious charges, described below.

Any theft of goods valued at more than $950 will probably be charged as felony grand theft.  Also, some theft of various agricultural products valued at more than $250 can also be charged as felony grand theft. 

Defendant's Criminal History

Usually, if someone has had a shoplifting conviction reduced to an infraction in the past, the DA will not offer such a favorable deal again.  The suspect will probably be charged with either a misdemeanor or a felony this time.  

A suspect with a prior conviction for petty theft can also be charged with a felony if he or she is convicted of petty theft a second time (petty theft with a prior).  People don't always realize that stealing a candy bar can send them away for years if they've been convicted of stealing candy bars in the past. 

Did the Suspect Use Force or the Threat of Force?

In California, robbery is defined as theft + force (or the threat of force).  If a Loss Prevention Officer  or a store clerk blocks your escape path and you push him, that act can transform a simple infraction into a serious, violent felony.  This is called an "Estes Robbery" (shoplifting with force), and it can carry potential prison time.  

The Civil Demand Letter

If you have recently been arrested for shoplifting, you will probably receive a letter in the mail from the store where you were caught or from the store's attorney.  The letter will inform you that you owe the store a sum of money, usually several hundred dollars.  The letter may contain other threatening language and will appear very intimidating.  Disregard this letter.  DO NOT SEND ANY MONEY.  This is a common scam.  You have no obligation to pay the store a penny, absent a court order to do so.  

A civil demand letter is basically a threat to sue.  The store is claiming that they suffered some loss and that you were responsible for whatever loss they are claiming.  If you refuse to pay and you deny that you caused the store any loss, the store will have to decide whether or not it intends to sue you.  Again, in order for the store to prevail in any civil suit, they will have to prove to the court that you caused them to suffer some actual, financial loss.  If you did not cause the store to suffer any loss (because they received the property back and it was not damaged), then they will lose in a civil suit -- they have no damages and you owe them nothing.  The store and their attorneys understand this basic economics.  They will not waste their time and money to pursue a losing venture in civil court.  

Of course, the civil demand has absolutely no effect on the CRIMINAL case against you.  The DA will pursue the criminal theft charges regardless of whether or not you pay the store's civil demand.  Paying money to the store will not help your criminal case, and refusing to pay the civil demand will not hurt your criminal case -- they are completely independent of each other.  

Since shoplifting can carry such a huge range of possible penalties, you should immediately talk to a local attorney if you are arrested.  Our firm has recently had a lot of success defending against shoplifting charges. Call for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Shoplifting Attorney

Use of Force by Police During the Dorner Standoff: Legally Justified?

This past Tuesday, February 12, deputies from the San Bernardino County Sheriff's Department cornered fugitive murder suspect Chris Dorner in a Big Bear vacation cabin.  Dorner had been on the run for nearly a week after allegedly murdering two people in Irvine and then shooting two police officers in Riverside, one of whom later died from his wounds.  After being surrounded in the cabin, he apparently attempted to shoot his way out at least twice, fatally wounding another officer.  Details are still emerging about the precise timeline of events in the standoff that followed, but it appears that the SBSD eventually opted to deploy some heavy-duty CS gas into the cabin.  Within minutes of deploying the incendiary gas, the entire structure became engulfed in flames.  No attempt was made to extinguish the blaze as the cabin was consumed by the fire.  A body later discovered in the burned out rubble was determined to be Dorner's.

The usual cast of characters has now squared off to allocate blame / thanks / condemnation / praise.  The "back-the-badge" crowd has lauded the bravery of the heroes who selflessly gave their own lives to protect ours.  The good folks over at CopBlock.org blame the militarization of police in general for this debacle.  They accuse the SBSD of acting as judge, jury and executioner and question whether or not any effort was really made to take Dorner alive.

I want to spend some time analyzing the use of force by police in this situation to determine whether or not the burning of the cabin was legal or justified.  Of course, the San Bernardino County Sheriff John McMahon has publicly denied that his deputies intended to ignite the fire.  Transcripts from police scanners at the time contradict this official explanation.  Just before the incendiary gas canisters were deployed, officers were heard saying over their radios, "We're going to go forward with the plan, with the burner...seven burners deployed...and we have a fire".

Of course, not enough information has been made public to determine whether or not the Sheriff's Department started this fire intentionally.  For the sake of discussion, let's assume that they did, or at least that the SBSD knew that launching CS gas into a wooden cabin was likely to ignite a deadly blaze.

First-hand witness accounts also suggest that Dorner actually took his own life with a single self-inflicted gun shot to the head as the cabin burned around him.  I realize, therefore, that Dorner was not DIRECTLY killed by police.  Based on the limited information available, we can surmise that the fugitive died at his own hand, but that the SBSD also deployed their own "lethal force", and it is this use of potentially lethal force by police that I want to examine.

So assuming that the SBSD either intentionally lit the blaze, or else simply ignored the known risks that are inherent when igniting a flammable gas inside a flammable structure (the definition of "recklessness"), was that use of deadly force "legal" or "justified" under the circumstances?  Let's look at the laws.

Starting with the obvious: murder is illegal, even if committed by the police (see previous posts re: Kelly Thomas).  Of course, not all killing is "murder".  There are many circumstances under which police may lawfully employ deadly force in dealing with dangerous fugitives.  CALJIC 5.26 reads in relevant part:

Homicide is justifiable and not unlawful when committed by a public officer...when necessarily and reasonably committed in arresting any person charged with a felony, and who is fleeing from justice or resisting arrest.  

Now we break that down, element by element:

"Public Officer" includes any law enforcement personnel, like deputy sheriffs and local police.

"Necessarily and reasonably committed" is up for some argument.  Were any other options available to the officers?  This is a question that I'm not equipped to answer.  Considering that the cornered fugitive allegedly fired hundreds of rounds at the police during the standoff, killing one, I think that a judge is extremely unlikely to second-guess the tactical decisions of commanders on the ground.  Daylight was fading and officers feared that Dorner might have night-vision goggles, which could have given him a major advantage in the dark.

"Charged with a felony" is pretty self-explanatory.  The District Attorneys from both Riverside and Orange County had filed murder charges against Dorner before the standoff began.

"...who is resisting arrest" also seems pretty well-established.  Again, Dorner was actually shooting at officers who had the cabin surrounded.  He had already killed two other officers during the manhunt and had demonstrated his intent to kill others.

Based on the letter of the law, I believe that the police were legally justified in using deadly force against Dorner.  I am not a tactical expert and have never served on a SWAT team, so I will leave all counter-factuals to other armchair quarterbacks.  Rather than arguing the strategic merits of burning down the home, I want to focus on the law of the matter.  Did the police "murder" Dorner (or at least break the law by intentionally employing deadly force)?  I don't believe that they did.

Mark your calendars: I am defending the police here.  And I'm not alone on this one.  David Klinger is a use-of-force expert at the University of Missouri at St. Louis.  He told the LA Times, "What difference does it make if one of the officers puts a round in his head, drives the armored vehicle over his body when they're knocking the building down, or he dies in a conflagration?  If he is trying to surrender, you can't do any of those things.  But if he is actively trying to murder people, there's no doubt that deadly force is appropriate and it doesn't matter which method is used to deliver it".

Sorry, CopBlock.org.  No hard feelings, just the law.  I gave you a couple links if that helps.

Am I missing the point?  Feel free to comment below.  Thanks for reading.

The Gun Control Debate: Some Statistics

The latest hot topic in the news these days has been the debate over gun control.  At issue is who should be allowed to possess which weapons, and under what circumstances?  Everyone seems to have a strong opinion backed by their own handpicked (and often conflicting) statistics.

This post is not intended to resolve the debate over gun control.  In fact, it's not even intended to persuade you either way.  Pick a side, either side, I don't care.  Rather, I've taken this opportunity to disseminate some facts that you can use next time you hear someone making up their own numbers to prove whatever point they're trying to make.  Knowledge is the best weapon.  I'm here to arm you with some fully-automatic, armor-piercing truth.

In the past couple weeks, I have heard such varying numbers from zealots on both sides of the debate that I decided to devote some time to doing my own research.  Luckily, the FBI publishes detailed yearly reports on virtually every aspect of any imaginable crime perpetrated anywhere in the country.  The reports are available for free at FBI.gov.  The following are some numbers that the FBI reports.

In 2011 (the last year for which stats are available), there were 12,664 murders in the US.  That number does not include "justifiable homicide" (e.g. police who lawfully kill suspects in the line of duty, etc.).  Of those 12,664 murder victims, 6,329 were Black (49%) and 5,825 were White (45%).  The remaining 6% of victims were some other race.  9,829 were male (77%).  The remaining 23% were female or undetermined.

Firearms were the most common weapons used to commit murder.  8,583 people were murdered by guns in 2011 (67% of all murders).  Of those gun murders, 6,220 involved handguns (72% of all gun murders and 49% of murders overall).  Rifles were only used in 323 US murders from 2011 (only 3.7% of gun murders and 2.5% of murders overall).  18 states had 1 or fewer murders involving rifles.  There are no available stats to indicate how many of the rifle murders involved "assault-type" rifles vs. traditional hunting rifles.  According to the FBI, you are 5x more likely to be stabbed to death, and 2x more likely to be beaten to death, than you are to be killed with a rifle.

The FBI also sorts their murder numbers by region.  If you want to decrease your chances of getting stabbed, move to the Midwest.  Only 9% of their murders involved knives or cutting weapons.  Compare that to the Northeast, where 16% of the murders involve stabbing.  While the Midwest claims the lowest relative murder rate by stabbing, they have the highest relative murder rate by firearms (71% compared the national average of 67%).

California had the highest number of total murders at 1,790 (take that, Texas!).  Hawaii had only 7 murders all year.  Of California's 1,790 murders, 1,220 involved firearms (68%).  866 of those involved handguns (48%).

So what have we learned?  The biggest stat that jumped out at me was how FEW people are actually killed with rifles every year in the US.  I found that surprising.  Spree killers armed with high-capacity assault rifles grab headlines, but they are responsible for only a negligible, statistically irrelevant number of killings every year.  As I mentioned above, there were 18 states in the US that experienced 1 or fewer rifle murders for the entire year of 2011.  Guess how many people were killed by sniper attack in the US last year.  Give up?  1.  1 person in the entire country was murdered by a sniper in 2011.  According to the American Journal of Medicine, about 16,500 people are killed every year by Aspirin.  You heard it here first: you are 16,500x more likely to be killed by Aspirin than you are to be killed by a sniper.

Regardless of your position on gun control, we can probably all agree that 8,583 gun-related murders are too many.  We should also agree that limiting access to rifles is not the most efficient way to reduce the overall number of gun deaths in this country.  Disagree?  As always, please feel free to comment below.  Thanks for reading!

If you or a loved one has questions about the law regarding firearms in California, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.

Santa Ana Gun Lawyer