Wednesday, November 22, 2017

Fullerton Police Step Up DUI / Traffic Enforcement

Fullerton Police recently announced that the department has been awarded a $400,000 grant from the California Office of Traffic Safety.  The funds will be used to conduct DUI checkpoints and to fund additional saturation patrols specifically targeting impaired drivers.

Police also announced that they plan to use grant money to compile "DUI Hotsheets" -- lists of DUI offenders with suspended or revoked licenses -- as part of their "court sting" operations.  I actually witnessed a court sting in practice this morning.  I was walking out of the misdemeanor pre-trial department (N-9) of the Fullerton Courthouse and I recognized a Fullerton Police Officer hanging out in the hallway, dressed in street clothes.  The officer was holding a stack of papers.  The papers contained mugshots and case notes.  This cop was waiting for someone with a suspended license to walk out of court.  If the suspect attempted to drive away from the courthouse, the FPD would immediately stop the driver and impound his car.  This should go without saying, but DO NOT DRIVE TO OR FROM COURT WITH A SUSPENDED LICENSE.

Downtown Fullerton is always a hot spot for DUI enforcement, and holiday weekends are especially busy for local police.  DUI doesn't just mean alcohol, either.  The Fullerton Police Department employs "drug recognition experts" who are specially trained and certified to spot drivers who are impaired by marijuana and other drugs.  Now that the Fullerton PD has a some grant money to burn on traffic enforcement, expect an especially heavy police presence on patrol for impaired drivers.  Don't say I didn't warn you.

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

Thanks for reading.

Tuesday, October 17, 2017

How to Apply for a California Cannabis License

California began issuing licenses to the cannabis industry on Monday, January 1, 2018.  Specific state-issued licenses now govern virtually every aspect of the cannabis market, from seed to consumption, including cultivation, manufacture of concentrates, transportation, distribution, operation of testing labs, and retail sales.

If you're interested in getting involved with California's legal cannabis industry, the first step is to decide on a specific product or service you plan to offer.  As mentioned above, each stage of production and distribution will require its own specific license.  There are restrictions on how many different types of licenses any person or entity can control, and how many different licensees may operate on a single lot or parcel of land.  If you want to grow cannabis indoors on a lot smaller than 500 square feet, there is a specific license for that.  If you want to grow outdoors on a lot larger than 10,000 square feet but smaller than an acre, there is a specific license for that, too.

Once you settle on a specific product or service that you plan to offer, you'll need to form a business plan, including your ownership structure and financing.  Unlike our old medical marijuana rules, California now allows marijuana businesses to operate on a for-profit basis, rather than limiting them to non-profit mutual benefit corporations.  For the first time, you may choose to operate a canna-business as a sole proprietorship, an LLC, a partnership or a corporation.  The ownership / financing structure that you choose may have significant implications for your license application.  For example, you may be required to disclose personal details of your financial interest holders, and individuals with serious criminal convictions may be disqualified from holding more than a 20% interest in some marijuana businesses.

The next major hurdle in the application process will be finding a local jurisdiction (a city or an unincorporated part of a county) that actually authorizes your commercial cannabis activity.  The state will not process any applications without a copy of a valid local license, permit or other authorization from the jurisdiction where the business plans to operate.  As of today, very few municipalities in Southern California permit new cannabis-related businesses to open their doors.  Some towns have lax enforcement, some allow a handful of grandfathered locations, and some lack the resources to shut down the illegal dispensaries and grow houses that operate in violation of local ordinances.  If you want to apply for a state license, though, you'll need explicit local approval from your jurisdiction.  Before than can happen, more cities in Southern California will have to update their zoning laws to permit these types of businesses.

Once you have approval from your local city, then we can complete the application process according to the regulations that will govern your specific niche of the industry.  This may include obtaining permits from the California State Water Resources Control Board, applying for a seller's permit, registering as an employer with the Employment Development Department, posting surety bonds, negotiating a labor agreement, etc.

As I see it, the biggest impediment to starting a new canna-business in Southern California is the lack of local jurisdictions that expressly authorize them to operate.  You can't start running your business until you have a valid state license, and you can't get a state license until you have approval from your city, and no almost no city in Southern California will approve you (as of today).  There have been a lot of rumors about which jurisdiction might be the next to revamp their land use regulations, but very little action from city councils and planning commissions.

If you're serious about forming a marijuana-related business in Southern California, I would encourage you to speak with your local representatives on the city council and your local planning commission.  Attend public hearings and comment sessions.  Write letters, circulate petitions, support candidates who will promote commonsense reforms and oppose the dinosaurs who still believe in "reefer madness" ("But won't somebody think of the children?", "Not in my backyard!").

If you have questions about getting involved with California's legal cannabis industry, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Thursday, October 12, 2017

Driving Under the Influence of Drugs in Orange County

The Orange County District Attorney is aggressively cracking down on cases involving driving under the influence of drugs (DUID).

There's a lot of bad information out there regarding DUID cases in California.  Some of my clients are surprised to learn that they can be arrested for driving under the influence of any drug or combination of drugs that affect their ability to drive a car safely.  That includes legal drugs, illegal drugs, prescription drugs, medical marijuana, chemotherapy drugs, sleep aids, even NyQuil.

Everyone knows that the "magic number" with alcohol is 0.08%.  If you drive a car while your blood alcohol concentration is 0.08% or greater, you are guilty of DUI.  With other drugs, though, there is no clearly defined limit in California that tells us how "impaired" is too impaired to drive.  To be guilty of driving under the influence of drugs, prosecutors must prove that you were intoxicated to such a degree that you could not operate a vehicle with the skill and care of a normal, sober driver.  That can be complicated.

If you are arrested on suspicion of drunk driving, you will be given the choice of either submitting to a blood test or a breath test.  If officers suspect that you are impaired by drugs, though, you must give a blood sample (a breath test will not detect drugs other than alcohol).  The Orange County Crime Lab will screen your blood sample for 5 drugs: alcohol, THC (both active delta-9 THC and its metabolites), opiates, cocaine, amphetamine and benzodiazepines (prescription drugs like Xanax).  The presence of one or more of these drugs, though, does not necessarily prove that you are dangerously impaired or guilty of a DUI.  Many drugs have a safe, therapeutic application. Someone who suffers from ADD, for example, might be a safer, more attentive driver after he takes his Adderall.  The fact that he tests positive for amphetamine, then, does not prove that he is dangerously impaired by drugs.

Marijuana is an especially tricky one.  Most people have heard that THC is detectable in the blood for weeks after use.  This is only partly true.  When you smoke weed, delta-9 THC is the chemical that actually causes you to feel "high".  After you consume delta-9 THC, your body metabolizes the drug and produces a chemical called "carboxy THC" (COOH-THC).  Carboxy THC has no psychoactive effect, but it may remain traceable for days or weeks.  Carboxy THC, then, may be evidence of recent marijuana use, but it means nothing if we're trying to determine whether or not a subject is impaired at the moment.  When the crime lab analyzes your blood sample, their report will show your levels of both delta-9 THC (the stuff that is currently making you high), and COOH-THC (evidence of past use).  In some cases, high levels of COOH-THC can actually support your defense.  If you are an experienced user, you might have a high tolerance for the drug.  In that case, even high levels of active delta-9 THC might not necessarily prove that you were dangerously stoned at the time of driving.

If you or a loved one has questions about driving under the influence of drugs in Orange County, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Tuesday, August 29, 2017

Religious Use of Marijuana

There is a pervasive and persistent myth that, somehow, claiming "religious use" is a valid, legal defense to the charge of operating an unlicensed marijuana dispensary.  It is not.

It's frustrating to see decent people taking bad advice and getting themselves arrested.  It's especially frustrating in a place like California, where marijuana is legal.  California currently allows adults to cultivate and possess marijuana for recreational or medical use.  If you follow some simple rules, you can even sell it.  Unfortunately, some shady attorneys, charlatans and various non-attorney posers have been spreading the myth that "rules don't apply to you if you simply pretend that it's your religion."  This is, of course, total nonsense.  As a real attorney, I would strongly discourage anyone from relying on this argument.

Just think about it.  If anyone could successfully disregard the law by simply claiming that XYZ was part of their "religion", what would stop them from founding the Church of Child Pornography?  Or the Church of Bank Robbery?  

Most of the confusion revolves around a pair of federal laws -- the Religious Freedom Restoration Act and the Religious Land Use and Incarcerated Persons Act.  These laws prohibit the federal government from taking any action that "substantially burdens" the free exercise of religion unless authorities can show some compelling interest in doing so.  The RLUIPA further prohibits local authorities from imposing land use restrictions that interfere with the free exercise of religion.  Some advocates have argued that, taken together, these federal laws provide carte blanche to ignore local zoning laws regarding commercial marijuana activity as long as they call their dispensary a "church".

Courts have consistently shot these arguments down.  Instead, they have affirmed the power of local zoning authorities to regulate commercial marijuana activity, regardless of whether or not litigants claim that cannabis is a "sacrament".  Their reasoning has turned on a couple key points.  Keep in the mind that no court has ever ruled that religion is an absolute defense to anything.  The state can always "interfere with the practice of religion" if the regulation is narrowly tailored to address some compelling government interest.  

In Mooney v. Lynch (2016), the 9th Circuit Court of Appeals denied a challenge from the Oklevueha Native American Church.  In that case, a "church" sued the federal government, claiming that laws against marijuana interfered with the free exercise of their religion.  Judges disagreed because, "nothing in the record demonstrated that a prohibition on cannabis forced the plaintiffs to choose between obedience to their religion and criminal sanction, such that they were being coerced to act contrary to their religious beliefs."

To date, nobody has ever convinced a federal judge that laws against selling marijuana actually impose a "substantial burden" on the free exercise of their religion.  There have been a handful of cases in which Native American churches have won lawsuits against the federal government, but those cases turned on technical, procedural issues.  The courts did not actually determine that Native American religious practices trump federal drug laws, and the rulings do not affect other litigants who were not parties to those cases.

As I mentioned above, though, there are legal ways to grow, use and sell marijuana in California -- but claiming that cannabis is a "sacrament" is not your best strategy.  If you or a loved one has questions about forming a legal marijuana farm or dispensary in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thursday, August 24, 2017

Drunk in Public on Catalina Island

According to the Los Angeles Sheriff's Department, deputies arrested several individuals on suspicion of being drunk in public this month.  In my experience, this is probably the most commonly charged offense on the island, other than minor fishing violations.

To convict you for being drunk in public under PC 647(f), the prosecutor must prove that you were so drunk that you could not reasonably care for your own safety, or that you posed a danger to people around you.  To determine whether or not you were "dangerously" drunk, the court will consider the totality of the circumstances -- the condition in which you were found, how / why you attracted attention from the police, objective and subjective observations of the arresting officers, your own statements, statements from other witnesses, audio / video recordings of the incident, etc.

There is no magic number that clearly distinguishes "fun drunk" from "criminally drunk".  The decision of whether or not to make an arrest is generally left to the officer's discretion.  You have a right to take a breath test if you are arrested for being drunk in public, but police are not required to administer one unless you demand it.  If you decide to demand a breath test, that number will be used against you in court.

If you are arrested for being drunk in public in Avalon, deputies will take you to the tiny jail on Sumner street, attached to the local courthouse.  You will be held for several hours and released in the morning.  Being polite and cooperative during this process will definitely speed up your release.  Deputies will also make a note of your attitude in the reports that they prepare.  If your arrest report shows that you were cooperative, that fact will go a long way when your attorney attempts to negotiate a reduced charge or a dismissal in court.

When you are released from custody, the deputies will give you a "notice to appear" in court at some future date.  Regardless of what the deputies told you, your case cannot simply be resolved through the mail or at the Long Beach courthouse.  All misdemeanors arising on Catalina Island are heard at the Catalina courthouse.

If you retain a local attorney, you do not need to travel back to the island for your court date -- your attorney can go for you.  Your lawyer will gather copies of the police reports and any other evidence (photos, videos, etc.), enter a "not guilty" plea, and schedule a series of future court dates to come back and discuss the case with prosecutors.

If the prosecutor recognizes that the evidence in your case is weak, you have a clean criminal record and you were cooperative during your arrest, they might make an offer that's too good to refuse.  A "good offer" might include a reduced charge or a complete dismissal.  If the evidence is strong, or if you have a history of alcohol-related offenses, or if your police report indicates that you were uncooperative, the DA's offers get less generous.  "Drunk in Public" is a misdemeanor, so penalties may include probation, fines, community service, CalTrans labor, mandatory AA meetings, or even jail time.  

Unfortunately, the Los Angeles District Attorney's Office has decided to take an aggressive stand in prosecuting "drunk in public" cases on Catalina.  Lawyers who visit Avalon from out of the area are often shocked by the harsh offers they receive on the island.  In other courthouses, 647(f) cases are routinely reduced to infractions or settled for minimal penalties.  In Avalon, though, standard offers from the DA often include dozens of AA meetings, high fines, 1-3 years of probation, 10-30 days of CalTrans service, or worse.

Our office has extensive experience defending against all types of cases that arise on Catalina Island, including drunk in public.  We offer competitive rates and affordable payments, and we never charge clients for our travel expenses.

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

Thanks for reading.

Tuesday, August 22, 2017

I Lost in Restraining Order Court. Can I Get Another Hearing?

You generally get one bite of the apple in restraining order court. This is why I'm always stressing the importance of showing up to court prepared for your hearing. Part of effectively preparing for your day before the judge includes speaking with a qualified, local attorney as early as possible. Your attorney understands the rules of evidence, how to issue subpoenas, how to properly examine witnesses, and how to effectively present a case in court. You wouldn't operate on yourself; don't try to represent yourself in court.

If, despite your best efforts, you haven't had an opportunity to thoroughly prepare before your court hearing, there's some good news -- you are entitled to at least one free continuance. Maybe you haven't been able to save up the money to retain a qualified lawyer. Maybe you're still trying to locate and interview prospective witnesses. If you need more time for any reason, all you have to do is show up and ask the judge nicely for 2-4 more weeks to get your ducks into a row. The court will give you as much time as you reasonably need to prepare your defense.

That being said, there are a handful of good reasons to request a new hearing if a restraining order is granted against you. First, though, you need to understand a few things that are NOT good reasons to request a new hearing:

I Wasn't Ready 

The court does NOT want to hear that you were simply unprepared. As mentioned above, you were entitled to a continuance before the hearing if you weren't ready to go forward. If you wanted more time, you only had to ask for it. If you announced that you were ready to litigate, though, it's too late to request a postponement now. That ship has sailed.

I'm Not a Lawyer

It is also NOT effective to argue that your hearing was unfair because you aren't a lawyer and you didn't understand the rules. If you choose to represent yourself in court, you will be held to the same standards as a professionally trained and licensed attorney. You will not receive any special considerations or preferential treatment if you appear without a lawyer.

The Petitioner Lied and the Judge Believed It

Finally, you CANNOT argue that the restraining order should be overturned because you disagree with the judge's ruling. Again, the point of the hearing was to present relevant facts and evidence -- that was your chance. If you showed up in court without any evidence and unprepared to explain / deny / excuse the petitioner's evidence, reread the previous paragraphs.

After hearing the evidence, the judge had discretion to determine whether or not harassment has occurred. If the judge heard the facts and weighed the evidence fairly, in accordance with the law, then the issues are settled. The court will not reconsider any new arguments, except...

Motion to Reconsider a Restraining Order

The Respondent MAY ask the court for a new hearing if there are some "new or different facts, circumstances or law" since the first hearing. If the situation has changed since you last appeared in court, you may appear before a judge and explain why the restraining order against you is no longer necessary or warranted.

In a motion to reconsider a restraining order, the judge does not want to hear a better version of the arguments you've already made. Instead, the court wants to hear something new that wasn't available at the last hearing.

Here's the kicker, though: a motion to reconsider a restraining order must be filed within 10 days after the respondent is served with the original order. This is why motions to reconsider are difficult -- you're required to prove some "change in circumstances", but you only have 10 days to do so. Since circumstances are unlikely to change that drastically in 10 days, motions to reconsider restraining orders can be an uphill battle.

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.

Monday, July 31, 2017

How to Recall an Arrest Warrant in Catalina Court

Catalina Island is a tourist destination located about 20 miles off the coast of Southern California. The town of Avalon and its surrounding waters are home to world class diving, fishing, hiking, boating, drinking and getting arrested.

If you've been cited or arrested for a misdemeanor while visiting Catalina Island, you're in for a treat. The local sheriffs will arbitrarily assign a future court date for you to return and appear before a judge. More often than not, that date will be rescheduled. The DA may or may not notify you of the change. If you fail to appear on the proper date, a warrant will be issued for your arrest.

Local police also like to falsely advise people that their criminal cases can be addressed in Long Beach. Most of the time, they cannot. Felony cases are heard on the mainland, but misdemeanors and infractions from Catalina must be heard at the courthouse on the island.

The Catalina court is only open on alternating Fridays. The rest of the time, the building is dark and vacant. You cannot simply appear on an unscheduled date and ask to be heard by the judge.

If you appear at the Catalina courthouse on a date when the court is open but your case is not scheduled to be heard, you will be told to come back another time. The tiny courthouse in Avalon does not store its own files. All records are maintained back in Long Beach. Case files are flown out to Catalina by helicopter on their appointed hearing dates. If you appear on a date when DA left your paperwork back on the mainland, prepare to make another trip.

If you have an outstanding warrant from Catalina, your case must be added onto the court's calendar to be heard at a later date. To be added to the calendar in Catalina, you must speak to the court clerk in Long Beach (because that's where the case files are stored). Once the Long Beach clerk adds your case to the Catalina court's calendar, then you may plan to appear on the appointed date back in Catalina.

Or, you can have an experienced, local attorney handle the entire process for you. Our firm regularly appears in the Catalina court. We defend more cases in Avalon than any other private law firm in the state. Since we appear in Catalina so frequently, we do not charge our clients for travel time or expenses. In most misdemeanor cases, we can appear without you being personally present. We can save you the time, hassle and expense of returning to the island for multiple court appearances. Our office has extensive experience defending against all types of criminal offenses that are commonly filed on the island, including fishing violations, drunk in public, domestic violence, fighting and drug possession.

If you or a loved one has questions about appearing in court on Catalina Island, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Catalina Lawyer

Thursday, July 20, 2017

Is it Worth My Time to Fight a Restraining Order?

I believe I've posted about this question before, but I still hear it a few times every week. Callers tell me that an ex-girlfriend or a former co-worker has filed a restraining order petition against them. They don't see the petitioner anymore and they have no reason or desire to have further contact with that person. As they see it, a restraining order really wouldn't affect their life in any way -- it wouldn't prohibit them from doing anything that they really want to do. Why take the time and effort to fight it?

There are plenty of good reasons to oppose a restraining order, even if you agree to the petitioner's basic demands (e.g. stay away, have no contact, do not follow or stalk, etc.), and even if you have no interest in doing those things anyway. Having a restraining order issued against you will affect your life in ways that might not be obvious. These court orders are public records. Subjects of restraining orders forfeit various rights that the rest of us enjoy. Being the subject of a restraining order may also lead to some other nightmare scenarios that I've seen, and that I'll describe below.

Even if you're not interested in the restraining order, your employer might be. As mentioned, restraining orders are public records. They're available for anyone to see, with or without your permission. They are easily discovered by a simple background check. Most courts even put this information online now. Being the subject of a restraining order can make you ineligible to hold certain jobs or professional licenses. Good luck getting a security clearance or a Global Entry pass with an active restraining order against you.

Anyone who is the subject of a restraining order is prohibited from owning or possessing firearms. If there's a restraining order against you, you may not even have access to firearms that someone else in your home owns. If you already own guns, you will be ordered to surrender them to local police, or else sell them to a licensed dealer immediately. You may not simply give them or "sell" them to a friend or family member for safekeeping. If your job requires you to carry a weapon in the course of your duties, you might be looking for a new job. Again, good luck finding work with a restraining order on your record.

Having a restraining order issued against you may also make you vulnerable to false accusations or "accidental violations". If the petitioner spots you (or someone who looks like you) in a restaurant or a public place, she is likely to call the police. Even if you haven't "knowingly and willfully" violated the order, you can expect an unpleasant and embarrassing encounter with investigators. I've handled too many cases where my client accidentally butt-dialed an ex-girlfriend, allegedly violating an active restraining order. If your email gets hacked and your account starts sending spam messages to everyone in your address book, you could end up back in court trying to explain yourself.

Take restraining orders seriously, and make the necessary preparations to ensure the best outcome possible for your case. Of course, the best way to effectively prepare for your day in court is to retain a qualified, local expert. If you or a loved one has questions about restraining orders, call us for a free attorney consultation.  (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Monday, July 17, 2017

How to Fight a Restraining Order When the Petitioner is Crazy

One of the inherent problems in restraining order court is that anybody can file a petition against anybody else, at any time.  This often means that the petitioner (the person seeking the protection of a restraining order), is crazy.  He or she may be paranoid, delusional, senile, drug-addled, vindictive, or just plain nuts.

If a crazy person is seeking a restraining order against you, presenting an effective defense can be tricky.  It is not sufficient to simply argue that the petitioner is crazy.  Instead, you must carefully show the judge that your opponent is detached from reality, and that the allegations against you are entirely made up.  The goal here is to prove that the accusations against you are false, not just to prove that the person making the accusations is erratic or afflicted with some mental disease.

This defense strategy can be more complicated and difficult than some people expect.  Even if you have personal knowledge of the petitioner's mental health problems, the rules of evidence will restrict the types of arguments that you're allowed to present in court.  First of all, you may not testify that somebody else told you about the petitioner's diagnosis.  That would be hearsay.  The person who actually made that diagnosis must appear in court to testify.  If that person is the petitioner's doctor, then the rules of confidentiality would prohibit the doctor from revealing the petitioner's medical records.

In some types of restraining order hearings, hearsay is admissible.  Even if this evidence may come in under the hearsay rules, it may still be excluded if you are not qualified to render an opinion on the subject.  Before any evidence is admissible in court, the witness must "lay the foundation" -- that is, you must prove that you possess the knowledge that you're now presenting as fact.  Psychiatric diagnoses are obviously complicated medical issues.  Even if you've personally observed "crazy" behavior by the petitioner, the judge will not allow you to express an opinion about the petitioner's medical condition or mental state because you're simply not qualified to do so.

Remember also that even crazy people have the right to be free from civil harassment and domestic violence.  If your defense is that the petitioner is crazy, you must be careful not to blame the victim for your harassment.  You must be extremely mindful not to argue that the petitioner deserves to be harassed because she is crazy.  Instead, you must argue that you have not harassed anybody.  If the petitioner believes that you have harassed her, you must prove that she is mistaken and that her false beliefs are rooted in delusions.  This is done by effectively cross-examining the witness in court.  A qualified attorney knows how to ask probing questions, drill down on the details, let the witness discuss her false beliefs, and give her enough rope to hang herself.  A lawyer who is experienced in the art of cross-examination will not argue with the witness or become confrontational.  Instead, the witness should have the opportunity to destroy her own credibility.

Last, and most important, is to always consider the relevance of any argument that you want to present.  The big question in restraining order court is always whether or not the petitioner can prove that the respondent has engaged in harassment or domestic violence.  The court is not interested in determining whether or not you're a good person, or whether the opposing party is a bad person, or whether someone has lied about something unrelated in the past, or who was responsible for the breakup, or even if one party suffers from a mental illness.  Those issues might be important to you, and they might be loosely related to something in your case, but the court simply does not care.  It might be tempting, but you must not waste the court's time and your own by focusing on details that are legally irrelevant.

Every piece of evidence that you present as the respondent must support the fact that you have not engaged in conduct that would legally justify the issuance of a restraining order.  If your argument is that the petitioner is crazy, you must prove that the allegations against you are untrue.  The petitioner's mental health issues are not an excuse for your bad behavior.  Instead, those delusions help explain why the petitioner falsely believes that you have done something inappropriate.

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.

Friday, June 23, 2017

Can I Get a DUI on Private Property?

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

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

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

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

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

Monday, June 19, 2017

How Can I Drop Domestic Violence Charges?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanks for reading.

Orange County Criminal Defense Attorney

Monday, June 5, 2017

Send an Offensive Text Message, Lose Your Gun Rights

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

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

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

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

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

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

Monday, April 24, 2017

How to Legally Grow Marijuana in California

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

Since voters approved Prop 63, adults age 21 and older may cultivate up to 6 plants for their personal, recreational consumption.  The 6-plant limit applies to each piece of property, not to each adult.  If 3 adults live together in one house, they may cultivate a total of 6 plants in their backyard, not 18.  They can give away small amounts of their crop to friends, but they're still not allowed to sell it or trade it for anything of value.

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

Also keep in mind that doctors cannot issue "cultivation licenses" in California.  Regardless of whatever bad legal advice your doctor gave you (and regardless of whatever worthless piece of paper he sold you), his 99-plant recommendation does not entitle you to grow a large crop or to sell your excess harvest to a local dispensary.  There is a legal way to grow marijuana for sale (keep reading), but you should not simply rely on your doctor's 99-plant rec as a defense to marijuana charges.

There are currently 2 ways to legally sell marijuana (or to exchange it for anything of value) in California.  The first option is to apply for a license from the California Bureau of Cannabis Control.  The BCC issues specific licenses for indoor and outdoor grows of various sizes.  If you hold a valid, state-issued cultivation license, you may grow marijuana and sell it for profit, subject to some complicated regulations.  Call our office if you have questions about applying for one of these licenses. 

The other option to legally cultivate cannabis for sale is through a non-profit medical marijuana dispensary.  Dispensaries can take many forms -- unincorporated associations, agricultural collectives, or nonprofit mutual benefit corporations (this is the most common form and the method that the California Attorney General recommends).  Buyers and sellers of medical marijuana must be members of the same non-profit dispensary; sales from one entity to another entity (or from one club to another club, or from one freelance grower to a collective, etc.) is still illegal.  If you want to grow for a medical dispensary, you must be a member of that dispensary, and you should have some written documentation to that effect.  You should either be employed by the dispensary as a grower, or else you should have a written contract between yourself and the dispensary wherein you agree to provide cannabis and the club agrees to pay you a salary.

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

Thanks for reading.

Thursday, March 9, 2017

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

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

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

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

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

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

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

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

Thanks for reading.  

Monday, February 20, 2017

Clean Up Your Criminal Record: Updated 2017

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

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

Thanks for reading. 

Tuesday, February 14, 2017

What if I Get Pulled Over and My Car Smells Like Weed?

There's a lot of misinformation on this topic.  Unfortunately for a lot of my clients, that often means that they call me after they've been arrested for DUI.  Don't make that mistake.

Driving under the influence of marijuana is a DUI in California, just like driving under the influence of alcohol.  It doesn't matter if you're over 21 or if you have a doctor's recommendation to use medical marijuana.  Think of weed like alcohol -- just because you're allowed to possess it doesn't mean that you're allowed to operate a vehicle while you're under the influence.

The big difference between marijuana and alcohol is that there's no legal limit for THC and no reliable way to determine a driver's degree of impairment with weed.  Blood, urine and saliva tests cannot accurately tell us whether or not a subject is dangerously intoxicated by marijuana.  This means that marijuana DUIs are pretty arbitrary.  They often turn on the police officer's opinion based on his observations before and after the traffic stop.  The factors that I usually see listed in police reports include:
  • Bad driving
  • Smell of marijuana coming from the interior of the vehicle
  • Driver observed smoking in a moving vehicle
  • Red, glassy eyes
  • Any signs that the driver is disoriented or has difficulty following instructions, etc.
The strongest evidence that the police usually gather in these cases, though, is the driver's own statements.  Way too many of my clients talk themselves into trouble after a traffic stop.  If you admit to consuming marijuana before (or while) driving, you will be arrested on suspicion of DUI

Without your admission of recent marijuana use, the police might not have enough evidence to arrest you.  If you keep your mouth shut and the police arrest you anyway, we'll have a much stronger defense when we appear in court.  

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

Thanks for reading. 

Wednesday, February 1, 2017

Can a Restraining Order be Resolved Before the Court Hearing?

As I've previously discussed on this blog, obtaining a restraining order in California is a 2-step process. First, the petitioner files a "Request for a Restraining Order". Within 24 hours, a judge will determine whether or not to grant a temporary order based on the facts alleged in the petition. Next, a hearing will be scheduled within 3 weeks. At the hearing, both sides will have an opportunity to present their arguments and a judge will decide whether or not to extend the order for a longer period (up to 5 years in cases involving domestic violence, or up to 3 years in cases involving civil harassment).

Unfortunately, this 2-step process often means that nonsense restraining orders are issued for 3 weeks before the respondent has an opportunity to present his side of the story in court. During this time, the respondent's life can be turned upside down. He can be barred from his home, separated from his kids and denied access to his belongings. By the time he has a chance to defend himself, the damage may be done.

Clients often ask me about resolving their restraining orders before their scheduled court hearings. Luckily, it may be possible to start negotiating a dismissal immediately, but this must be done properly. Disregarding the court's temporary orders can make a bad situation much worse. If the respondent calls the petitioner to discuss the case while the temporary order is in effect, he can be arrested. Any violation of the temporary order can also be grounds for the issuance of a permanent order, even if the petition itself was inadequate.

If you are the subject of a temporary order, you must absolutely abide by it until the time of the hearing. That means do not contact the petitioner in any way, directly or indirectly. Don't ask someone else to pass along a message. Don't send an email or a text message. Don't leave a note on her car. Don't even respond to a message from the petitioner if he or she attempts to contact you.

Your attorney may contact the petitioner to discuss your case, though. Any communication between you and the petitioner must be done through your counsel. If you need your work uniform or your medication, talk to your attorney about reaching out to the petitioner to arrange a hand-off.

Your lawyer can also start the process of trying to negotiate a dismissal before the hearing. Restraining order hearings are often arbitrary and unpredictable. No matter how strong you believe your case is, there's a pretty good chance that the judge will disagree. Whenever you choose to fight it out in court, there's a 50/50 chance that you'll lose. Stipulated dismissals (where both parties agree to resolve the case privately, rather than in court) can be a great way to ensure that both sides get 100% of whatever they want. Usually, the petitioner wants some assurance that the respondent will stay away, and the respondent wants to avoid a restraining order and everything that comes with it.

Stipulated dismissals work like this: the parties make an informal, written agreement through their attorneys. Typically, the respondent promises to stay away from the petitioner, to stop calling, to return the petitioner's iPad, etc., and the petitioner agrees to dismiss the case. If the respondent ever violates this agreement, the petitioner can go back to court and reopen the case. She'll simply show the judge the written contract and she'll explain how the respondent has violated it. Now she has a slam dunk case, and she's much more likely to win a restraining order. If the respondent demonstrates that he's unwilling or unable to abide by his promise to stay away, then the judge will see him as dangerous or unstable, and the court will grant the petitioner's restraining order. Of course, if the respondent complies with the agreement and he stays away as promised, then everybody wins.

If you've been served with a restraining order, call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience litigating restraining orders in all Southern California courts.

Thanks for reading.

Orange County Restraining Order Lawyer

Thursday, January 19, 2017

Is Civil Disobedience a Defense to Criminal Charges?

With everything in the news these days, there's been a lot of talk about "civil disobedience", free speech, the right to protest, and the 1st Amendment.  Before you get yourself arrested, please take a moment to read this article.  Make sure that you understand your rights and, more importantly, the limits of those rights.  Then call my office.

The 1st Amendment to the US Constitution guarantees the right to free speech.  The government may (almost) never punish you simply for expressing an unpopular opinion.  The content of your speech is virtually sacrosanct under American law, no matter how offensive.  In this country, you are free to deny the holocaust or to make racially offensive slurs.  You might lose friends or even your job, but the state  may not sanction you for saying stupid things. 

The time, place and manner of your speech is another story, though.  The government may constitutionally restrict when, where and how you express yourself, as long as they have a good reason to do so.  The police may not arrest you simply for yelling, "F*ck the police!", but they absolutely may arrest you if you scream it repeatedly late at night in a residential area (or if you torch a police car, block an intersection, disrupt traffic, damage property, etc., even if those actions are political speech).

So turn out, protest, make signs, and yell whatever you want.  But please don't block the freeway or light anything on fire.

If you choose to engage in some civil disobedience, be advised that "civil disobedience" is not a defense to criminal charges.  The term "civil disobedience" was coined in the middle of the 19th Century by Henry David Thoreau.  Thoreau had served a night in jail for refusing to pay a tax, in protest of the Mexican-American War.  He was a staunch opponent of the war and of slavery.  In his famous essay, Thoreau argued that men have a moral responsibility to resist unjust enactments, and to break the law if necessary.  He also emphasized, though, that they must be willing to accept the consequences of their unlawful behavior.  Thoreau willingly served his time in jail and he never argued for lenience or claimed that his actions were protected by the 1st Amendment.

If you or a loved one has questions about civil disobedience or the 1st Amendment, call us for a free attorney consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

How to Prepare for an Appearance in Criminal Court

If you have a court date approaching, I know that the anxiety can be overwhelming.  Hiring a qualified, local attorney can help reduce the stress associated with appearing in court.  Your lawyer can explain the process so that you know what to expect.  He or she can stand by your side so that you understand your options and to ensure that you're not railroaded into any bad deals.

Your first court appearance is call the "arraignment".  No evidence or argument is presented at the arraignment.  This is not the day for your trial.  The arraignment is a formality, where your attorney will receive copies of the complaint (the document that explains the charges), and the initial discovery (police reports).  In most cases, you are not entitled to receive copies of the police report until the arraignment.  This is your attorney's first opportunity to read the details of the accusations against you.

At the arraignment, you may either plead "guilty" and resolve your case on the spot, or you may plead "not guilty".  If you plead "not guilty", then further court appearances will be scheduled.  These subsequent appearances are called "pretrial hearings".  At pretrial hearings, your attorney will meet with the DA to discuss the evidence and will attempt to negotiate a fair deal to dispose of your case (after your attorney has had a chance to thoroughly read the police reports).

You should make damn sure that you show up on time when you appear for the arraignment.  Every courtroom has its own specific procedures for conducting arraignments.  Most courtrooms start the morning with an "advisement of rights".  This is what it sounds like.  They will explain the various legal and constitutional rights that apply during the criminal process.  Some courtrooms lock the doors during the presentation to ensure that everyone hears this important information.  If you show up one minute late, you will be locked out, a warrant will be issued for your arrest, and you'll have to come back another day.  Give yourself plenty of time to park and to go through the security screening.

Dress appropriately when you appear in court.  This should go without saying, but I'm amazed at the clothing I see in court every day.  Your arraignment is the most important thing you'll do today -- dress accordingly.  Wear long pants (not shredded jeans or yoga pants) and closed-toe shoes.  Put on a collared shirt.  There is no such thing as overdressing for court.  Act like you're taking your case seriously.  Courts have dress codes.  If your attire is not appropriate, you may be kicked out and told to come back another day.  Simply dressing appropriately is the easiest part of "preparing" for your arraignment.

To recap, here's how you can prepare for your first appearance in criminal court:

  • Retain a qualified, local attorney
  • Show up on time
  • Dress appropriately
If you or a loved one has a court date approaching in Orange County, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John

Thanks for reading.

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".  

To make sense of VC 40300.5, 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 intentionally exercising some control over the vehicle (e.g. moving the car 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" or pees in the bushes.  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 metabolized 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 in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading.