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.