Everything You Wanted to Know But Were Afraid to Ask: "Lewd Conduct in Public" Edition

I've previously written here about section 647 of the California Penal Code.  Commonly referred to as "Disorderly Conduct", PC 647 prohibits everything from prostitution to peeping, loitering, sleeping in parks and being drunk in public.  Subsection (a), though, is the topic of today's post.

PC 647(a) makes it a misdemeanor to engage in any "lewd or dissolute conduct" in any public place or in any place that is exposed to public view.  To be convicted of this offense, the prosecutor must establish 5 elements:

• That the defendant willfully touched his or her own genitals, buttocks or female breasts (or the genitals, buttocks or female breasts of another person),
• That the defendant acted with the intent to arouse or gratify him / herself or another person, or to annoy or offend another person, 
• The defendant was in a public place or a place that was open to public view, 
• Someone else who might have been offended was present, AND
• The defendant knew or should have known that another person who might be offended was present. 

That's a lot of unpack, and a lot of elements that may be open to some interpretation and argument.  Put simply though, the DA must prove that the defendant was doing something sexual in public view with the knowledge that he could be seen by someone who might not want to see whatever the defendant was doing.

It's interesting to note that breasts are only considered "lewd" on women.  If a man rubs his own bare nipples (or if someone else rubs a man's nipples) in public, there's no crime.  

In my previous post re: Drunk in Public cases, I explained that the legal definition of "public place" includes any place that is generally open and accessible to members of the public. This includes inside private businesses, on roads, in parking spaces, and even your own front porch.  Since it wouldn't be considered "trespassing" for a salesman to walk up your driveway and knock on your door, those spaces are considered "public places" for the purposes of PC 647.  The same is true for common hallways and courtyards in apartment buildings.  

The next two elements are where a lot of people get tripped up.  To constitute the crime of 647(a), the DA must prove that another person who might have been offended was present.  They do not have to prove that the onlooker was, in fact, offended.  The prosecutor must also prove that the defendant knew or should have known about the onlooker's presence, but they do not have to prove that the defendant intended to be seen.  

Even though PC 647(a) is a non-violent misdemeanor, it may carry heavy penalties, including jail time, probation, mandatory counseling, stay-away orders, fines and community service.  

There are many possible defenses to the charge of 647(a).  The best strategy in your particular case, though, will depend on the unique facts and circumstances surrounding your arrest. 

If you or a loved one has questions about PC 647(a) in California, call us for a free attorney consultation. (714) 449-3335. Ask for John. 

Thanks for reading. 

Fullerton Criminal Defense Attorney

Can I Be Arrested for Being "Drunk in Public" on Private Property?

Section 647(f) of the California Penal Code makes it a misdemeanor to appear in a "public place" while under the influence of alcohol or drugs.

In "drunk in public" cases, the question often arises over what technically constitutes a "public place".  There is a common myth that "drunk in public" laws are unenforceable inside bars because bars are private property.  This is false.

Under California law, a "public place" is defined as any place that is generally open and accessible to anyone who wishes to go there.  This includes private businesses that invite members of the public onto their premises.  Bars are considered to be "public places" in California.

Since roads, highways, and even parking spaces are open and accessible to the public, California courts have ruled that they also qualify as "public places" for the purposes of PC 647(f).  This means that you can be arrested for being drunk in public if you are found intoxicated inside a vehicle while the car is in a public place (on the road or parked somewhere publicly).

In some states, you can be arrested for being intoxicated in a place that is visible to the public.  In California, though, it is not necessarily illegal to be under the influence of alcohol while exposed to public view.  It is perfectly legal for adults to get inebriated inside their own homes in California, regardless of whether or not they are visible to neighbors.

The front lawn of a private residence, however, is a different story.  In the landmark case of People v. Olson (1971) 18 Cal.App.3. 594, a California appellate court ruled that the area between the street and the front door of a private residence (including the lawn and porch) are considered to be "public places" for the purposes of PC 647(f).  Since it would not be considered "trespassing" for a stranger (e.g. a salesman, a Girl Scout, a mail carrier, etc.) to approach the front door of a private home, that area is considered to be "open and accessible", and therefore "public".  This means you can be arrested for being "drunk in public" on your own front lawn.  The same is true for common hallways and courtyards of apartment buildings -- if those areas are generally open to members of the public who may pass through while conducting lawful business, then they are considered to be "public places".

In my view, there are still some unanswered questions here.  What if, for example, your front lawn is enclosed with a white picket fence?  Is that still considered "open and accessible"?  What if you have a "No Trespassing / No Solicitors" sign posted?  How about a super exclusive, members-only bar?  Or a Masonic Lodge?  Are these places "open to the public"?  I could see arguments going both ways.

There are many possible defenses to PC 647(f) charges in California.  The best strategy in your particular case will depend on the unique facts and circumstances.  Our office has extensive experience in fighting "drunk in public" charges throughout Southern California.

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

Thanks for reading.

Fullerton Criminal Defense Lawyer

Drunk In Public on Catalina Island -- What to Expect

In the 9 years that I've been serving clients in the Catalina Courthouse, I have watched the island turn into a hot spot for Drunk in Public enforcement.

Not long ago, local sheriffs would regularly escort drunken tourists back to their hotels.  If an inebriated visitor couldn't remember where he was staying, or if he didn't have accommodations for the night, deputies would even him help book a room.  It took effort to get arrested for PC 647(f) in Avalon.

In the rare case where someone was actually cited and booked for being dangerously drunk, the prosecutor was generous with a plea offer when the case got to court.  A typical deal used to include reducing the misdemeanor charge to an infraction, paying a small fine, and promising not to do it again.

Times have changed, though.  A new crop of deputy sheriffs and prosecutors on the island have recently adopted a zero-tolerance, no-holds-barred approach to disorderly conduct in Avalon.  Today, the Catalina Court imposes some of the harshest penalties in the state for alcohol-related offenses.  Standard offers now include probation, hefty fines, mandatory attendance at AA meetings and significant amounts of community service or hard labor (not to mention, a misdemeanor conviction on your criminal record).  This doesn't mean that the DA always gets what they want, but you and your attorney should be prepared for a fight.

Lawyers from outside of the area may be shocked when they appear in court on the island for the first time.  In most courthouses, "drunk in public" is considered a very petty crime.  Prosecutors in downtown LA, for instance, have bigger fish to fry.  They cannot afford to dedicate significant resources to throw the book at some tourist who got caught staggering back to his hotel.  Catalina takes these cases seriously, though.  You should, too.

Section 647 of the California Penal Code governs a variety of bad behaviors that collectively fall under the umbrella of "disorderly conduct".  Subsection (f) specifically prohibits public drunkenness.  PC 647(f) is a misdemeanor, meaning that the maximum penalty includes 6 months in jail and a base fine of $1,000.00.  After all the mandatory fees and court costs are tallied, the total maximum fine is about $5,000.00.

To be convicted of PC 647(f), the prosecutor must prove 3 elements:

1. That the defendant was under the influence of drugs or alcohol, AND
2. That the defendant was in a public place, AND
3. That the defendant was unable to care for his own safety or the safety of others, OR that the defendant interfered with a sidewalk or public walkway

Each of these elements is subject to some argument and interpretation.  How drunk does someone have to be before he is considered "under the influence"?  What if the person had been "dosed" or was involuntarily impaired?  What counts as a "public place"? etc.  These cases can be more complicated than they appear.  

Of course, the defense in your case will depend on the specific facts and circumstances surrounding your arrest.  Why were deputies summoned in the first place?  Did some witness(es) complain about your behavior?  Was the arrest recorded in any way (audio or video)?  Did the arresting officers conduct any sort of chemical test (e.g. a breathalyzer, etc.)?  Were you cooperative or belligerent?  Do you have a history of alcohol-related arrests?  Do the "interests of justice" dictate that you be harshly punished or that you deserve some lenience?  

Our office defends more cases on Catalina Island every year than any other private attorney in the State of California.  We have extensive experience in fighting against Drunk in Public charges, as well as all other misdemeanors that arise in and around Avalon.  In most cases, we can appear in court on your behalf so that you don't need to worry about traveling all the way back to Catalina for a series of court appearances. 

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

  

Catalina Island Lawyer

How Long Will it Take to Resolve My Criminal Case?

One of the most common complaints I hear from my clients is that their case is taking much longer to resolve than they had anticipated.  Unfortunately, many defendants unrealistically expect that their complicated legal issues can quickly and easily be settled with a couple phone calls. Some clients believe that a lawyer can simply explain their defense to the judge and the court will immediately dismiss the case and apologize for the inconvenience.  If things were that simple, my job would be a lot easier.

As a criminal defense attorney, part of my job is to explain the process so that my clients know what to expect, and so that they are empowered to make the best decisions in their own cases.  If they do not understand what's going on and why it's taking so long, then I have not done my job.

I think that crime shows contribute to some misunderstandings about the criminal justice system. TV shows tend to oversimplify most of the boring procedural issues so that a complicated, convoluted process fits neatly into a 30-minute time slot.

In today's post, I want to break down the timeline of a typical misdemeanor investigation and prosecution.  Keep in mind, this is typical misdemeanor -- complicated misdemeanors can take longer, and felonies can take even longer than that.

• Day 1:  The incident and arrest  

To make matters simple, let's say you are arrested on suspicion of DUI on New Year's Day, January 1.  You'll probably be taken to jail for the night and released in the morning.  When you are released, the police will assign a court date, usually about 8-12 weeks in the future.  In this case, you might be ordered to appear in court around March or April.

• Day 2 - 60:  The investigation

Between the time of your arrest and your first court date, police will compile reports about the incident.  They will gather all of the relevant evidence and they will forward their findings to the local prosecutor (Note: most misdemeanor prosecutions are conducted by the District Attorney for your county.  They may also be conducted by the local City Attorney, though.  For the sake of simplicity, I will use "DA" and "prosecutor" interchangeably).  Some law enforcement agencies move much faster than others.  The CHP and the Dept. of Fish & Wildlife, for example, move notoriously slowly in their investigations.

• Around Day 60:  The filing of criminal charges

After the prosecutor receives all the reports from the arresting agency, they will make a decision regarding the filing of criminal charges.  Remember, the police do not "file charges", they only investigate crimes and forward their findings to the prosecutor.  Also keep in mind that victims of crimes do not "file charges" either.  Police may ask the victim if he or wishes to file charges, and the DA may take the victim's wishes into consideration, but the ultimate decision of whether or not to pursue a criminal case rests with the prosecutor alone.  The DA ultimately decides what charges, if any, to file.  Similarly, police and victims may not simply decide to "dismiss" a case (since they aren't the ones who filed it in the first place).

In most cases, prosecutors will review the police reports and file their case against you before the date when you were ordered to appear in court.  It's very common, though, for delays to occur at this stage.  You might show up in court on the appointed day and find that your name is not on the calendar.  Maybe the DA had questions after reading the police report and they sent the case back to the arresting agency for a more thorough investigation.  Or maybe the police did not forward their reports to the DA as quickly as they had anticipated.  Or maybe you're just a low priority and your paperwork is still buried under a pile of other cases at the DA's office.  Whatever the reason for the delay, you're left playing the waiting game.  This does NOT mean that you're "out of the woods", or that the charges have been dismissed.  It just means that your case hasn't been filed yet.  In California, prosecutors have up to one year from the date of the incident to file most misdemeanors.  You will be notified by mail when they eventually get around to filing your matter.

• Day 60-90:  Arraignment

For the sake of keeping things simple, let's assume that the police sent their reports to the prosecutor in a timely manner, the DA has reviewed all of the evidence, and they have filed misdemeanor charges against you by the time you appear in court.

The first court appearance is called the "arraignment".  At the arraignment, prosecutors will officially notify you of the charges that you are facing.  Copies of the police reports will be provided to your attorney.  You can either plead "guilty" and resolve your case on the spot, or you can plead "not guilty" and begin the process of fighting your case.

Remember, the arraignment is NOT the time to present your defense.  The court will not hear evidence, argument or witnesses at this hearing.  The arresting officer will not be present.  The arraignment is merely a formality where some preliminary information is exchanged between the lawyers.  This is one area that generates a lot of confusion with some defendants.  As I mentioned above, though, it's my job to clear up any misconceptions so that my clients know what to expect.

Often, defendants want to be heard at the arraignment.  If they can just explain the big misunderstanding, the DA or the judge will immediately throw the case out (they believe).  This impulse is understandable, especially when defendants truly believe that they are innocent of the charges.  As I said, though, this is not the time or the place for argument.  You will have an opportunity to present evidence in your own defense, but not at the arraignment stage.  

• Day 120, 150, 180, etc.:  Pretrial Conferences 

If you decide to plead "not guilty" and to start the process of fighting your case, then the attorneys will schedule a "pretrial conference" approximately 30-45 days after the arraignment, depending on the court's availability.  At the pretrial conference, attorneys will exchange more evidence and they will start to discuss various options to resolve the case.  The DA might have an offer for the defense attorney to present to his client.  The defense attorney might have a counter-offer that the prosecutor needs to discuss with his supervisors.  Your attorney might explain to the DA that the case is weak or that you have some valid defense.  He might also request copies of "supplemental discovery" -- video / audio recordings that are described in the police reports, etc.

This is also the stage where your defense attorney might file motions to dismiss the case for a variety of reasons.  If your lawyer believes that police or the DA has done something improperly during the course of the investigation or the prosecution, there may be valid grounds to ask a judge to exclude evidence or to throw the case out completely.  

Since attorneys are still exchanging evidence, offers and counter-offers at this point, it is common to conduct several pretrial conferences, usually spaced about 30-45 days apart.  Again, this area generates some misunderstanding with clients.  "It's been 4 months and the case still isn't resolved?  What's going on?", they ask.  And again, it's my job as an attorney to keep my clients informed of what I'm working on.  

Eventually, your defense attorney and the DA might reach an agreement.  Either the case is weak and it must be dismissed or reduced, or the case is strong and you should accept a generous plea deal while a good offer is still on the table.

• Day 210+: Trial

If the attorneys cannot make a deal, or if the defendant is not willing to accept an offer, then the case may eventually head to trial.  This is finally your opportunity to present evidence and argument in open court.  

Misdemeanor trials usually last about a week, including the time it takes to select a jury and for the jury to deliberate on their verdict after the evidence has been heard.  

As you can see, it is common for simple misdemeanor cases to last 6 months or more before they are resolved, assuming that there are no delays in the investigation or in filing the initial case.  

Since prosecutors have up to a year from the date of the offense to file most misdemeanor charges, cases may take even longer when the DA or the court is backlogged.  

The take-away is that misdemeanor prosecutions can be a marathon.  They're often longer and more complicated than many defendants expect.  Even when you're 100% innocent, don't expect the case to be resolved with a couple phone calls or a quick meeting with the DA.  

While the case is pending, though, you should feel free to communicate with your attorney so that you understand what he or she is working on.  If your lawyer is not available to speak with you and to provide you with regular updates, get a new lawyer.  Answering phone calls and communicating with clients should be the easiest part of the job.  If your lawyer can't do that properly, then he isn't doing what you hired him to do.  

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

Thanks for reading.  

Orange County Criminal Defense Attorney

Am I Eligible for an Expungement in Californina?

Sections 1203.4 and 1203.4a of the California Penal Code govern process of applying to have an old conviction removed from your criminal record.

If granted, an expungement will result in the dismissal of charges against you.  An expungement will not actually erase the records of your case.  Instead, a successful expungement will change the disposition in your case from a "conviction" to a "dismissal".  Once you've earned a dismissal, you are entitled to honestly state that you have no criminal convictions in your background (for most purposes).

There are a lot of criteria that you must satisfy before you are eligible to have your old case dismissed.  Here's a simplified flow chart:

• Were you convicted of a crime?  If so, keep reading.  If not, then you have nothing to expunge.  There is a separate process to seal arrest records in California if you were arrested and not convicted of any crime, but that's a subject for another blog post.  
• If the crime was a misdemeanor, were you granted probation?  Did you successfully comply with all the terms of your probation for the entire period?  If so, then you are probably eligible for an expungement, but keep reading.  If you ever violated the terms of your probation, then you are not automatically entitled to an expungement, but a judge may still grant one if doing so "serves the interests of justice".  
• Felonies are complicated.  If you completed probation, you are probably eligible.  If you went to prison (or county jail under 1170(h)), there are a lot of factors.  Call us for a consultation to figure it out.  
• If the crime was a misdemeanor or an infraction and you were NOT granted probation, has more than 1 year elapsed since the conviction or since your release from custody?  If so, keep reading. 
• Are you currently on probation for any other case?  You are not eligible for an expungement while you are currently on probation, but you MIGHT be eligible to terminate your probation early.  Once you are released from probation, you may immediately become eligible to apply for your expungement.  
• Do you currently have charges pending or outstanding warrants in any other case?  You are not eligible for an expungement while you are currently fighting another case.  

If you satisfy these criteria and you are clearly eligible for an expungement (you successfully completed probation without any violations, you are not currently on probation in any other case and you have no pending charges or outstanding warrants), then the process is fairly simple and straightforward.  You or your attorney simply need to fill out the appropriate forms, serve them on the DA, file them with the court, and wait 3-6 weeks for the judge to mail back your signed copies of the court's dismissal order.  

Expungement petitions can also get complicated, though.  As mentioned above, judges have discretion to grant or deny applications when the record shows that you have violated probation (by missing a payment, failing to complete some court-ordered class on time, etc.).  In those cases, the DA will argue that you are not eligible and that the petition should be denied.  When that happens, your attorney must make a compelling argument to convince a judge that granting the expungement serves the "interests of justice".

These cases also get complicated if you are currently on probation.  Again, judges have the authority to release you from probation early, but it can be difficult to convince them to exercise that power.  They always start from the assumption that the sentence you received was fair and appropriate at the time it was imposed.  If you did not agree that the sentence was fair when you accepted it, then you should have taken the case to trial.  You may not simply argue "buyer's remorse" because you believe you got a bad deal.  Instead, you must convince the judge that the deal you accepted is no longer fair.  See the difference?  The judge wants to see that you have been reformed (you've attended a lot of AA, etc.), you have learned your lesson, you have demonstrated exemplary performance during the time that you have been on probation, and most importantly, that there is some important reason why releasing you from probation now actually serves the most good for society.  Valid reasons include job offers, opportunities to join the military, or some proof that being on probation prevents you from going back to college, etc.  

If you or a loved one has questions about clearing up your criminal record with an expungement, or about trying to get off probation early, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton expungement lawyer

Is Open Carry Now Legal in California?

The big news this week comes from the 9th Circuit Court of Appeals in California.  The traditionally (notoriously?) left-leaning federal court delivered its second pro-gun ruling in as many weeks, and pundits on both sides of the gun control debate are losing their minds.  Today, I want to spend a minute breaking down what this ruling actually means, and where we go from here.

On Tuesday, a 3-judge panel of the court announced its decision in the case of Young v. Hawaii.  The State of Hawaii requires citizens to apply for a county-issued license before they may openly carry firearms in public.  The plaintiff in this case had applied for a license and been denied twice.  He argued that the state's restrictive laws regarding carrying firearms in public violated the 2nd Amendment, and court agreed.

To explain their reasoning, the majority cited the recent decisions in Heller and McDonald.  Those two cases established the right of law-abiding adults to keep handguns in their homes for self-defense.  In Peruta, though, the court determined that the citizens do NOT have a right to carry concealed weapons in public.  Since citizens have a constitutional right to "bear" (or "carry") weapons for self-defense, but they DON'T have a right to carry concealed weapons in public, the court reasoned that they must have a meaningful opportunity to carry firearms openly in public places for their own protection.  States can make some reasonable rules and regulations about carrying weapons in public, but they may not simply prohibit the practice.

The 9th Circuit sent the case back to the lower court in Hawaii for further proceedings consistent with the newly-announced rule.  Now, the legal team for the state must decide whether or not to request an en banc ruling, where every judge on the circuit would have an opportunity to hear the matter.  If the case is heard by a full panel of judges in the 9th Circuit, it is very likely that the ruling would be reversed again.  Of course, that would inevitably lead to another appeal to the Supreme Court, where a conservative majority could reverse again and announce a nationwide right to openly carry handguns in public.

For now, this latest ruling from the 9th Circuit only narrowly applies to Hawaii's rules regarding the issuance of "open carry" licenses.  It seems to open the door, though, to more challenges over California's restrictive regulations about carrying weapons in public (or in vehicles, etc.).  Unlike Hawaii, California doesn't even allow law-abiding citizens to apply for a license to openly carry a firearm in public -- all "open carry" is completely banned in the Golden State.  It is virtually impossible for the average citizen to obtain a concealed carry license in most parts of the state, too.  If the ruling in Young withstands the next round(s) of appeals, that might change.

Stay tuned to see how this plays out.

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

Thanks for reading.

Fullerton Gun Lawyer

Get a Felony Off Your Record

A felony conviction will follow you around for the rest of your life, making it difficult (or impossible) to get a job, vote, join the military, earn a professional license, or purchase firearms.  If you've been arrested or convicted for a felony in California, though, there may be options available to get that charge off your record.

If you are arrested and the DA declines to file charges, the mere fact that you were once arrested on suspicion of a felony can cause problems down the road.  Luckily, California now provides a procedure to seal records if your arrest did not result in a conviction.

If you are charged with a felony, your attorney might successfully negotiate a plea deal for a reduced charge.  Depending on the nature of the charge, the strength of the evidence, and your criminal history, the DA may eventually settle for a misdemeanor.  In many cases, prosecutors try to gain bargaining leverage by alleging felonies when misdemeanor charges are really more appropriate.

PC 17(b) 

When the DA is not willing to reduce a felony charge during plea negotiations, a judge may do so in some cases.  In California, section 17(b) of the Penal Code gives judges the discretion to reduce some felonies to misdemeanors when doing so "serves the interests of justice".  If your charge is eligible for a reduction, the judge can exercise that option at any point in the criminal process -- before trial, after trial, or even years after a conviction.  If judge agrees to reduce your felony to a misdemeanor in the interests of justice under PC 17(b), that conviction will forever be considered a misdemeanor for all purposes.  All rights are immediately restored, including the right to purchase and possess firearms.

Prop. 47

Since voters approved Prop. 47 in 2014, many crimes that were formerly classified as felonies or wobblers are now straight misdemeanors.  If you were convicted of a qualifying felony, you may be eligible to retroactively reduce that conviction to a misdemeanor.  Unlike a reduction under PC 17(b), though, a reduction under Prop 47 will not restore your right to purchase or possess firearms.

Prop. 64

Under Prop 64, many marijuana-related offenses were either abolished entirely or reduced from felonies to misdemeanors.  Individuals who have old marijuana-related convictions may also be eligible to have those charges dismissed or reduced.  If an old felony conviction is reduced or dismissed under Prop 64, you may become eligible to restore your gun rights.

PC 1203.4 

The final option to clean up your criminal record in California is a PC 1203.4 Petition for Dismissal (commonly known as an "expungement").  Under PC 1203.4, you may be eligible to have an old case dismissed after you have successfully completed probation.  If you were sentenced to prison, you are probably not eligible for relief under 1203.4, but there are some exceptions. 

If you or a loved one has questions about cleaning up your criminal history or applying to have a felony removed from your record, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Expungement Attorney

How Much Marijuana Can I Legally Grow in California?

Marijuana is now legal in California for medical and recreational use, but there are still plenty of ways to get into trouble if you don't understand the rules.  Police continue to make arrests, and prosecutors continue to file criminal charges when they catch people growing or possessing excessive amounts of cannabis.  The amount that may be considered "excessive" depends on the circumstances, though.

Since voters approved Prop. 64, individuals may grow up to 6 marijuana plants on a parcel of land.  The 6-plant rule applies to each piece of land, not to each adult who lives on the land.  For example, if 4 adults live together in one house, they may cultivate a total of 6 plants in the yard, not 24 plants.  They may give away small amounts to other adults, but they may not sell their crop or trade it for anything of value.

Local cities have specific rules about personal cultivation that may be more restrictive than the statewide rules.  Some cities, for instance, prohibit outdoor cultivation, or require that growers employ certain security measures.

If you are a qualified medical marijuana patient (you have a valid doctor's recommendation to use cannabis), then you may grow and possess as much as your doctor says you need to treat your condition.  Be very wary, though, of quack doctors who sell "99-plant recommendations" for an additional fee.  If you get caught growing 99 marijuana plants, you will be arrested.  If you plan to assert a medical defense, the doctor who wrote the recommendation must convincingly explain to the judge that he actually performed a good faith medical examination, and that he sincerely believes that you need 99 marijuana plants as medicine.  More likely, that doctor will simply testify that he has no recollection of meeting you (if he appears in court at all).

To cultivate marijuana commercially (for sale, or more than 6 plants on one piece of property), you must hold a license from the Bureau of Cannabis Control.  The BCC issues various types of cultivation licenses, depending on the size of the growing space and whether natural or artificial lights are used.

If you're interested in applying for a commercial cannabis license, or if you've been arrested for cultivating marijuana, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Marijuana Lawyer

Can I Get a DUI on a Golf Cart in California?

Section 23152 of the California Vehicle Code prohibits anyone from operating a "vehicle" while impaired by drugs and / or alcohol.  Under the law, "vehicle" is not limited to "gas-powered vehicle" or "automobile" -- the law just says "vehicle".  Courts have determined that this includes any motorized vehicle, including golf carts.

Section 23152 of the Vehicle Code applies everywhere within the state of California, even on private property and off of public roads.  You can be arrested for DUI in a dune buggy in the middle of the desert, or in a golf cart on a private golf course.

There's an important distinction when it comes to bicycles, though.  Bicycles are not "vehicles" for the purposes of VC 23152.  Instead, pedal-driven (non-motorized) bicycles are governed by VC 21200.5.  That code section says that it is illegal to ride a bicycle while "impaired" by drugs and / or alcohol.  The 0.08% BAC limit does not apply on bicycles.  Rather than proving your specific blood-alcohol concentration, the DA must prove that you were dangerously drunk or impaired by drugs.  If you are arrested on suspicion of cycling under the influence, you may demand a breath or blood test, but you are not required to provide one.  VC 21200.5 only applies on public roads -- it is not illegal to get inebriated and ride a bike on private property in California.  A conviction for "Cycling Under the Influence" carries much lower penalties than a DUI in a motor vehicle.

Mopeds and electric bicycles get even more confusing.  Whether they're powered by gas or electric motors, motorized bicycles are both bicycles and motor vehicles.  Which rule applies then?  That depends on whether or not the motor is engaged.  If the cyclist is riding under pedal power, then the bicycle is not considered a "motor vehicle" at the moment.  A rider may legally pedal a moped or an electric bicycle on a public street while his BAC is greater than 0.08%, as long as he can do so safely.  When the motor is engaged, though, mopeds and electric bicycles suddenly become "vehicles" and the 0.08% limit applies.

There are many possible defenses to charges related to driving or cycling under the influence, especially when unconventional "vehicles" are involved.  If you or a loved one has been arrested for some DUI-related offense in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton DUI Attorney

Phones Are Down at Our Office

The phones in our building have been down for over 3 weeks now.  They're currently installing and programming completely new hardware.

I have no idea when they'll will be working again.  The management company has been saying they were "almost back" for approximately 3 weeks now.

In the meantime, you can reach me on this temporary number: 714 348 6443.

I can also be contacted at jbussman@johnwbussman.com, on Facebook, or on Twitter.

Sorry for the inconvenience.  

What to Do if You're Pulled Over for a DUI

If you are stopped by police on suspicion of DUI, your behavior and demeanor can often determine whether or not you will spend a night in jail.  Even if you are arrested, knowing how to interact with police can make a big difference for the outcome of your case in court and with the DMV.

Do Not Talk Yourself Into Trouble

The most common mistake I see clients make is to admit they've been drinking or using drugs.  It is a crime to lie to police, but that doesn't mean that you're legally obligated to talk yourself into trouble.  You can (and should) politely refuse to answer any questions whenever you're being grilled by police.  Virtually nothing you can say will lead to less trouble than you're already in.  If you start talking and your speech sounds slurred or if your breath smells like alcohol, those observations will be noted in the arrest report.  If you admit that you've taken some prescription drugs or consumed marijuana (even medical marijuana), you will almost certainly be taken to the police station for a blood test.

Do Not Voluntarily Submit to Field Sobriety Tests

Field Sobriety Tests (FSTs, or the "roadside Olympics") are a series of standardized tasks that police use to evaluate drivers who are suspected of DUI.  Common FSTs include the "Walk and Turn" test (where subjects are instructed to walk heel-to-toe for 9 steps along an imaginary line, pivot and walk back), the "Rhomberg" test (where subjects close their eyes and tilt their head back without swaying from side to side), and the "Finger to Nose" test (what it sounds like).

Unless you are currently on probation for DUI, you are not legally obligated to participate in any of these tests.  No matter how well you perform on FSTs, the arrest report will always say that you "appeared disoriented", you "had difficultly following instructions", you were "unsteady on your feet", etc.  Those tests not intended to be "passed", they're intended to give the arresting officer plenty of reasons to form a subjective opinion that you were too impaired to drive safely.  Of course, there are plenty of reasons that a perfectly sober person might perform poorly on those tests.  They're not easy.

Do Not Submit to a Breathalyzer Before You Are Arrested

The police officer might ask if you want to voluntarily take a roadside breath test.  Again, you have no obligation to take the Preliminary Alcohol Screen (PAS) unless you are currently on probation for DUI.   Don't do it.  After you are arrested, you must provide a sample for chemical testing, but not before.

Breath Test or Blood Test?

If you are arrested on suspicion of driving under the influence of alcohol, then (and only then) you must submit to your choice of either a breath test or a blood test.  If one test is unavailable, you must take the other.  If you are suspected of driving under the influence of drugs, then you have no choice; you must take a blood test.  Breath machines cannot test for drugs other than alcohol.

The police will read you an admonishment to specifically warn you about your obligation to provide a chemical sample for testing.  If you are lawfully arrested on suspicion of DUI, the police read the appropriate warning, and you refuse to submit to a breath or blood test, your driver's license will automatically be suspended for one year.  The police may even obtain a warrant to take your blood by force if necessary.

If you are given the choice, is it better to take a breath test or a blood test?  In my opinion there are advantages and disadvantages to each.  The blood test will preserve a sample that can be retested at a private facility if you disagree with the analysis that the county crime lab provides.  Retesting that sample may reveal several different reasons that the county's toxicology report is unreliable.  If the blood is contaminated with bacteria or improper preservatives, your attorney might have a good argument to have the sample thrown out entirely.  On the other hand, a blood test will also reveal drugs other than alcohol that can form the basis for a DUI.  If you take prescription medicine, sleep aids or if you have consumed marijuana within about 5 hours before driving, prosecutors may file additional charges.

The breath test does not retain a sample for retesting and it will not reveal other drugs that might be present in your blood.  There are a handful of reasons that a breath test might be unreliable.  Your attorney may challenge the machine's maintenance and calibration, or he might argue that the officer who administered the test failed to follow the manufacturer's instructions.

If you have recently consumed ANY drugs other than alcohol (even legal, prescription drugs) and you are given the option, I would personally opt for a breath test.  If you have NOT taken any other drugs, you might choose the blood test.

To Post Bail or Not to Post Bail?

If you are arrested for a first-time DUI and nobody got injured, you will usually be released on your own recognizance within about 12 hours.  You will be required to sign a "Promise to Appear" in court on a specific date for your arraignment, usually scheduled about 6-8 weeks after your arrest.

If you have previous convictions for DUI, if your case involved a collision, or if you refuse to sign the "Promise to Appear", you might not be quickly released on your own recognizance.  Bail for a first DUI is usually $2,500 - 5,000, but it can be much higher if you are accused of causing an injury.

After You Are Released

You will be given several pieces of paper when you are released from custody.  The pink page is your temporary driver's license.  It is valid for 30 days.  Once that temporary license expires, your license will automatically be suspended.  You have a right, though, to conduct a hearing with the DMV to determine whether or not your license should be suspended before your criminal case is resolved.  You must call and request that hearing within 10 days of your arrest.  If your hearing is scheduled more than 30 days in the future, you may continue driving until you receive the results from that hearing.

A private attorney can handle everything with both the court and the DMV.  If you plan to wait more than 10 days to hire an attorney, though, you should request your DMV hearing immediately.  Once you eventually hire an attorney, he or she can contact the DMV to reschedule that hearing for some time when he or she is available.

If you or a loved one has been arrested for DUI in Orange County, call us for a free attorney consultation.  714 449 3335.  Ask for John.

Thanks for reading.

Orange County DUI Lawyer

Fighting Domestic Violence Charges in Orange County

Domestic violence cases are emotional and complicated by nature.  If you or a loved one has been arrested for domestic violence, you probably have a lot of questions.  Today, I want to discuss the process of fighting domestic violence charges and what to expect in court.  

What Kinds of Charges Count as "Domestic Violence"? 

The most common domestic violence charges in California are "spousal battery" (PC 243(e)(1)), and "inflicting corporal injury on a spouse / cohabitant" (PC 273.5).  

To be convicted of spousal battery, the DA must prove two things: 1) that you willfully "used unlawful force or violence upon the person of another", and 2) that you and the victim had ever been married, engaged, dating or you had a child together.  You can be convicted of spousal battery even if the victim was not your spouse.  Spousal battery is a misdemeanor, but it carries some heavy penalties that I'll discuss below.

PC 273.5 is a "wobbler", so it can be charged as either a misdemeanor or a felony.  To be convicted under this code section, the DA must prove that you and the victim had a relationship (currently or formerly married, engaged, dating, or had a child together).  Additionally, prosecutors must prove that you caused some injury that resulted in a "traumatic condition".  

"Domestic violence" also includes some crimes that we don't normally consider to be "violent", like vandalism, stalking, or even making harassing phone calls.  Since California is a community property state, anything that you have earned or purchased during your marriage is technically your spouse's property.  Even you earned the money and purchased an item for your own use, your spouse owns it (my wife technically owns some great fishing gear that she's never seen).  If you get pissed and break your own stuff, you have committed vandalism and your spouse is the victim.  

What is the Penalty for Domestic Violence?

For most misdemeanor domestic violence crimes, the maximum penalty includes a year in jail.  If the judge agrees to grant probation rather than jail time, he is required by law to impose some community service.  

If you are convicted of domestic violence, the court is also required to order a 52-week course of anger management counseling, called the "Batterer's Intervention Program".  If a judge determines that drugs or alcohol were involved, the defendant must attend additional substance abuse counseling.  

The maximum fine for most misdemeanor domestic violence offenses is $2,000.00, plus various state-imposed penalties and assessments.  Once all those court costs are tallied, you're looking at something closer to $8,000.00.  That number does not lawyer's fees, booking fees from the jail or restitution that the court may order you to pay.

A first conviction for felony domestic violence carries a maximum prison sentence of 4 years and a fine of $6,000.00.  Court costs may quadruple that number.  If you have another violent conviction within the previous 7 years, the prison time goes up to 5 years and the maximum fine goes to $10,000.00 plus court costs.  If a weapon was involved, children were present, or if the victim suffered "great bodily injury", the penalties get worse.  

If you are convicted of any felony offense, you will lose your right to purchase or possess firearms for the rest of your life.  Federal law also prohibits anyone from possessing guns if they have ever been convicted of misdemeanor domestic violence against a spouse.  California, though, goes one step farther.  If you are convicted of any misdemeanor domestic violence in California (even against a non-spouse), you will be barred from buying or possessing firearms for the next 10 years.  

Criminal Protective Orders & Restraining Orders

The judge is required by law impose a temporary Criminal Protective Order (CPO) while your domestic violence case is pending.  You will be personally served with the order when you appear for your arraignment (your first court appearance).  The terms of a CPOs can vary, depending on the seriousness of your case.  It may order you to stay away from your own house and prevent you from having contact with the accuser, or it may allow for some limited, peaceful contact.  Once you are served with a CPO, you must surrender any firearms in your possession to the local police or to a licensed firearms dealer within 48 hours.  If you are eventually convicted of domestic violence, that CPO will be extended for the duration of the time that you are on probation (usually 3-5 years).  

A CPO is a lot like a restraining order, but there are some key differences.  For one, a CPO is issued at the request of the DA during criminal proceedings.  A domestic violence restraining order is issued at the request of an individual petitioner in family court.  They have most of the same effects (stay away, have no contact, do not harass, etc.), but the procedures involved are completely different. 

Since CPOs and domestic violence restraining orders are granted by different judges in different courts, it's common to see orders that conflict with each other.  If you are facing a domestic violence case in criminal court and a related restraining order simultaneously at family court, I strongly recommend that you use the same attorney in both matters.  It's important to coordinate your defense strategy in the two separate-but-related cases.  If your attorneys aren't on the same page, it's hard to achieve the best results.

Can I Tell the Judge to Drop the Charges?

Unfortunately, the decision of whether or not to drop charges rests solely with the District Attorney.  It's very common for accusers in domestic violence cases to recant, to admit that they lied, and to ask the court to dismiss the case.  The judge will not throw it out, though, just because victim asks him to.  The victim didn't file criminal charges (the DA did), so the victim cannot simply drop them. 

In cases where the accuser recants or is uncooperative, the DA will press ahead if they believe that they have enough evidence to do so.  Prosecutors might have 911 recordings that captured events as they happened.  There are probably audio and video recordings of interviews with police at the scene, photos of injuries, statements from neighbors, medical reports, etc.  Even without the victim's testimony, the DA might still have enough evidence to put the case before a jury.  

If the accuser is changing his or her story, or if the victim does not wish to cooperate with the prosecution, speak with a qualified, local attorney to discuss your options.  You should not attempt to negotiate or coordinate with the victim on your own.  That could be considered "witness tampering", and may be a violation of the CPO.  

As I mentioned at the top, domestic violence cases are emotional and complicated by nature.  If you or a loved one is facing a domestic violence case in Orange County, call us for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Fullerton Domestic Violence Lawyer

Seal Your California Arrest Records

There's a new procedure in California to seal your arrest records.  This new law will be a huge benefit to anyone who has been arrested but not convicted for a crime.

This is not the same as an expungement.  As I've previously written on this blog, an expungement in California does not completely hide the fact that your case ever happened.  Instead, it simply changes your criminal history report so that your old conviction shows up as a dismissed case.  Expungements are helpful for people who were once convicted of a crime, but later complied with probation and remained law-abiding.  Once an expungement is granted, you can honestly state on most job applications that you have never been convicted of a crime.

The procedure I want to discuss today is a little different.  This new law, PC 851.91, is specifically intended to help people who were arrested but NOT convicted of any crime (i.e., the DA declined to file charges, the case was dismissed, or the petitioner was acquitted by a jury).

Until now, a petitioner who wanted to seal his arrest record had the burden of proving that he was "factually innocent" of the charges for which he was arrested.  That can be nearly impossible.  Being factually innocent is not the same as being "not guilty".  Remember, to be convicted of a crime, the DA must prove the defendant guilty "beyond a reasonable doubt".  That's pretty high burden.  The law doesn't define "beyond a reasonable doubt" in terms of a percentage, but most law school professors will tell you that it is probably the equivalent of being 98-99% sure of the defendant's guilt.  In some cases, though, the DA might only be able to prove that the defendant is "probably" guilty (let's say, 60-75% sure).  In those cases, the DA has failed to carry the burden of proof and the defendant is not guilty.  That doesn't necessarily mean that he's "factually innocent", it only means that the DA could not prove the defendant's guilt with enough confidence to sustain a conviction.  Under the old rule, a defendant who had beaten a criminal case and wanted to seal his arrest record basically had the burden of proving himself innocent (0% guilty), and that was extremely difficult.  As a result, a lot of people were stuck in a weird, gray area -- they had never been convicted of a crime, but they still had an embarrassing arrest record.

Under the new rule, though, you no longer need to prove yourself "factually innocent" to seal your arrest record.  Now, you only have to show that the arrest did not result in a conviction.  If you were arrested and the DA declined to file charges, charges were dismissed, or you were acquitted by a jury, our office can help you ensure that your embarrassing arrest records and police reports are never released to the public.

Even if you were never charged or convicted for any crime, an arrest record can make your life difficult.  When you apply for a job and your prospective employer runs a background check, they are going to see an arrest with no disposition.  They are going to have questions about the case -- were you convicted?  Were you acquitted?  Did you participate in some diversion program?  Good luck getting a job with those records following you around.  The same problem arises when you try to purchase a firearm and your record shows an arrest for some disqualifying offense, like domestic violence or assault.  Plus, it's just embarrassing.  Getting arrested was probably one of the worst nights of your life.  There's no reason that experience needs to be rehashed every time you submit to a background check.  

There are a lot of criteria that you have to satisfy before you're eligible to seal your arrest records, and the process is a little complicated, but we can help.   If you or a loved one has questions about sealing your record in California, call us for a free attorney consultation. 714 449 3335. Ask for John.

Seal Arrest Records in Fullerton

Driving Under the Influence of Drugs in Orange County

Everyone knows that it's illegal to drive a car while you are impaired by alcohol.  The legal blood-alcohol limit, 0.08%, is one of those numbers we can all cite off the top of our heads, like 3.14 or 867-5309.  Unfortunately for a lot of my clients, though, the rules about driving under the influence of drugs are still a mystery.  I'll do my best to break it all down in today's blog post.

There's a lot of overlap in the way that courts handle "driving under the influence of alcohol" cases and cases where defendants are accused of driving under the influence of drugs.  There are also enough differences, though, that I thought the subject deserved a post.

Drunk Driving (DUI)

Section 23152 of the California Vehicle Code defines various "DUI" crimes.  VC 23152(a), for instance, says that it is illegal for anyone to operate a vehicle while he or she is "under the influence of alcohol", regardless of the person's actual blood-alcohol concentration.  To be convicted under this section, the DA does NOT need to prove that your blood-alcohol concentration was above the legal limit of 0.08%.  Prosecutors only need to prove that you were "impaired" due to alcohol, and that you could not operate a vehicle with the skill and care of an ordinary, sober person (whatever that means).  To make their case against you, the DA will introduce evidence that you had been observed driving badly, you "appeared disoriented" after the traffic stop, and you performed poorly on field sobriety tests, etc.

VC 23152(b), on the other hand, specifically prohibits anyone from driving a motor vehicle while his or her BAC is greater than 0.08%, regardless of whether or not that person is actually "impaired" by alcohol.  Even if you can "hold your liquor" and you perfectly nail all of the field sobriety tests like a champion, you can still be convicted of violating VC 23152(b) if a chemical test determines that your blood alcohol concentration is above the legal limit of 0.08%.

Starting on July 1, 2018, it will become illegal for anyone who has a BAC of 0.04% or greater to drive a car while a "passenger for hire" is present in the vehicle.  VC 23152(e) includes a definition of "passenger for hire" that makes it clear that this section applies to Uber and Lyft drivers who have a few pops on the clock, but who might still be below the legal limit of 0.08% that applies to other motorists.

Driving Under the Influence of Drugs (DUID)

This is where is gets really interesting. VC 23152(f) makes it illegal for anyone to drive a car while he or she is "under the influence of ANY drug".  "Any drug" means exactly that.  If the DA can prove that you were dangerously impaired by some substance, it is not a defense to argue that the drug was prescribed by your doctor (like Ambien), or that the drug is legal in California (like marijuana).

DUID cases, then, usually turn on a couple of obvious questions: how impaired is too impaired to drive?  And how convincingly can prosecutors prove this driver's exact degree of impairment?  Typically, police officers will testify about their objective observations (swerving, speeding, driving too slowly, etc.).  A certified "Drug Recognition Expert" ("DRE") will also tell the jury that he observed your pupils, your heart rate, your performance on cognitive test, etc., and that he formed the opinion that you were under the influence of some drug or combination of drugs.  A toxicologist from the crime lab will explain how your blood was drawn, stored and tested.  The toxicologist's reports will outline the substances that were found in your blood.  Based on the totality of all these observations from state-appointed "experts", the DA will attempt to convince a jury that you were dangerously impaired by drugs at the time of driving.

Even if the DA can prove that you were on drugs, that's not the end of the story -- and it doesn't necessarily mean that you're guilty of a crime.  In addition to proving that you had consumed drugs before driving, the DA must also prove that those drugs actually made you unsafe behind the wheel.  Of course, some prescription drugs might have the effect of making a driver more attentive or capable behind the wheel when those drugs are used in therapeutic doses under a doctor's supervision.  Some of those same substances might make a driver completely unsafe if they are abused, mixed with other drugs, or if a patient has an adverse reaction.  Adderall, for instance, is essentially an amphetamine.  When used properly, the drug performs wonders for individuals who suffer from ADD.  When abused, though, Adderall is addictive and dangerous.  If a defendant is accused of driving under the influence of Adderall (or Xanax, or Vicodin, etc.), his defense attorney might demonstrate to the jury that the levels of the drug found in his blood stream are within a "therapeutic range", where the driver is actually safer than if he would have been if he hadn't taken his meds that morning.

Allegations of driving under the influence of marijuana are even more complicated, since the drug may affect individual users differently.  Marijuana toxicology reports are especially strange.  Marijuana blood tests typically identify levels of both active delta-9 THC (the chemical that is currently causing impairment in the user, and THC metabolites, sometimes called "carboxy THC", or "COOH-THC". COOH-THC is a chemical that is produced within the body after the user has already metabolized whatever he or she previously smoked.  COOH-THC is not psychoactive.  It remains detectable in the user's blood stream for weeks after his or her most recent use, but it does not indicate that user's current level of impairment.  Delta-9 THC and COOH-THC should not be confused with each other.  Even high levels of COOH-THC are absolutely irrelevant in determining whether or not a suspect is too high to drive.  High levels of COOH-THC may be relevant, however, to prove that the defendant is a regular user and, thus, has a high tolerance to the drug.

In most of the cases I've handled where my clients are accused of driving under the influence of drugs, the DA's strongest piece of evidence is my client's own statement to police.  They admit that they "smoke a little", or a that they took some prescription drugs.  Statements like those can turn a minor traffic stop into a major arrest.  Without a confession, police might not have even suspected drug use.  Even if the officer had believed that the suspect was under the influence of drugs, there might not have been enough evidence to make an arrest or to sustain a conviction.  By talking to cops, though, suspects can make the DA's job very easy.

The Orange County District Attorney's Office has decided to make a priority out of aggressively prosecuting DUID cases.  Their agency actually receives grants from various highway safety groups to specifically target these offenses.  Those grants are used to hire teams of prosecutors who exclusively handle DUID charges.  The Orange Bubble is a bad place to be arrested on suspicion of driving under the influence of drugs.  Local prosecutors like to play hardball with these cases, but that doesn't mean that they have an advantage in court.  In fact, their aggressive attitude toward DUID often means that they choose to pursue weak cases, where the evidence just doesn't support a conviction.

Fullerton is especially a DUI / DUID enforcement hot spot.  The crowds of out-of-towners and college students who fill the bars and clubs between Commonwealth and Wilshire fuel a steady stream of DUI arrests every weekend.  All Fullerton Police officers are actually instructed to swarm the downtown area around closing time, unless they are responding to some other pressing matter.  They are also specifically trained to watch for drivers who are impaired by drugs and / or alcohol.  Fullerton police have reportedly been using a controversial new saliva test that can instantly test drivers for the presence of marijuana.  And just like the OCDA, the Fullerton Police Department receives grant money for traffic safety, which they use for DUI enforcement (which generates more money...).

If you or a loved one has questions about driving under the influence of drugs or alcohol, call us for a free attorney consultation.  714 449 3335. Ask for John.  Our local staff has extensive experience defending against all types of DUI / DUID charges in Orange County.

Thanks for reading.

Fullerton DUI / DUID Lawyer

What to Do if You've Been Served With a Restraining Order

If you've been served with a restraining order, you must immediately begin the process of preparing your defense.  That process should start by consulting with a qualified, local attorney to discuss your options and to coordinate your strategy.  A competent attorney will understand the types of arguments that are likely to be effective, and how to present admissible evidence to support your position.

If you possess firearms, you must surrender them to the local police or to a licensed gun dealer within 48 hours.  You may not simply sell them to a friend or ask a family member to hold them for you.  The police or the gun dealer will prepare some paperwork that you must file with the court.  Before your hearing, the judge will confirm that any firearms registered in your name have been accounted for.

Most importantly, though, you must resist the impulse to make matters worse.  Do not contact the petitioner in any way.  Do not ask someone else to contact the petitioner or to pass along a message on your behalf.  Do not try to "fix" the situation yourself by apologizing or by attempting to "smooth things out".  Remember, a temporary restraining order IS a restraining order.  If you violate it, you will be arrested and prosecuted.  Your violation will also be used against you at your hearing.  If the judge finds that you have violated the temporary order, he or she will almost certainly grant a permanent restraining order against you, even if the original petition was weak or deficient.  As the court sees it, your violation of the temporary order demonstrates that you are impulsive, you don't respect the law, and you are probably dangerous.

Even if the petitioner attempts to contact you while the temporary restraining order is in effect, you may not respond.  This seems unfair, and it is, but remember that the temporary restraining order prohibits you from contacting the petitioner, not vice versa.  If a judge has ordered you not to contact the petitioner, the petitioner cannot simply grant you permission to disobey the judge.

If you have some valid reason why you NEED to contact the petitioner before your hearing (e.g. you need to pick up your medication from her house, etc.), or you want to negotiate a dismissal outside of court, that communication must be done through your attorney.  Your lawyer is the ONLY person who may contact the petitioner or pass along messages to her on your behalf.

If you or a loved one has been served with a temporary restraining order in Southern California, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

How to Fight a Restraining Order When the Facts are BAD

I've previously written on this blog about the process of getting or fighting a restraining order in California.  If you haven't already, take a moment to read some of the basics here.  In these introductory articles, I explain the legal procedures and the issues you should be prepared to discuss at your hearing.

I've also previously written on this blog about a common situation -- fighting a restraining order when the petitioner is crazy.  Defending yourself against a crazy person requires a special strategy, and that's not the focus of this article.

Today's post is specifically about fighting a restraining order when the facts against you are BAD.  Maybe you've said or done things that you're not proud of, and maybe the petitioner has proof (emails, text messages, surveillance videos, reliable witnesses, etc.).  Even if you've behaved badly, and even if we all agree on what happened, it's not necessarily a slam dunk that the petitioner will walk out of court with a restraining order in hand.  There are several effective strategies for fighting restraining orders, even if the facts appear bad at first glance.

There are situations where it may be futile to deny your bad behavior.  If the petitioner has reliable proof, you will harm your own case by disingenuously trying to deny the facts.  You will look like a liar, you will lose your credibility, and you will lose your case.  Of course, that's not to say that you should admit to things you haven't done or confess when the evidence is weak.  I'm speaking specifically about situations where you behaved badly and the petitioner can prove it.

Bad facts must be justified, excused or explained.  A justification is a defense where you essentially argue that you did the RIGHT thing under the circumstances.  Your behavior might have been illegal or improper in other situations, but perfectly proper in that particular place and time.  "Self defense" or "defense of others" are common justifications.  In most situations, for example, it is illegal to threaten someone with a weapon.  If you threaten your neighbor with a bat to make him stop beating his wife, though, you've done a GOOD thing.  If your neighbor then files a restraining order against you for threatening him with a bat, you should admit that you engaged in that conduct (you DID threaten him with a bat), and you should explain to the judge why your actions were justified under the circumstances.

If you can't justify your actions, maybe you can excuse them. An excuse is a defense where you acknowledge that your behavior wasn't "good", but you argue that you don't deserve to accept the blame.  If, for example, you were involuntarily drugged, you might not deserve to be punished for your behavior while you were under the influence.

If your behavior can't be justified or excused, maybe it can at least be explained.  An explanation is a defense where you admit that you did the wrong thing, but you argue that your blame is mitigated or reduced under the circumstances.  For example, maybe you were provoked with offensive insults and you responded with violence.  We don't agree that your violent reaction was appropriate, but maybe we understand why you reacted the way you did.  Your outburst was out-of-character and it won't happen again.

That last part is important -- it won't happen again.  As I've previously explained on this blog, a restraining order is an "injunction".  An injunction is a court order that is intended to prevent some future harm that has not yet happened, not to punish you for some past wrongdoing.  This is tricky.  The issue that the judge must decide at the restraining order hearing is: has the petitioner proven that the respondent has harassed him or her?  Sometimes -- and this is risky -- we must acknowledge that the respondent has committed some act of violence, threats or harassment against the petitioner, but we establish that the harm is not likely to reoccur in the future.  Since we're talking about an injunction and not a criminal violation, the analysis doesn't stop with, "did this happen?".  A restraining order is not appropriate unless the harm is likely to happen in the future.  If the harm has already passed and is not likely to happen again, then a restraining order is not appropriate.  There is valid case law to support this defense, but the proper citations and legal argument must be presented effectively by an experienced, competent lawyer.  Don't try this at home.

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

Thanks for reading.

Orange County Restraining Order Lawyer

What We're Working On Now

It's been a busy couple of months here in the office, and I realize that I haven't posted any updates about some of our recent success stories.  If you've been anxiously holding your breath, good news!  Here's a quick rundown of some of the great cases that we've been working on:

• Driving Without a License / False Info to a Police Officer -- Rancho Cucamonga (San Bernardino County):  Our client had been stopped several years ago for driving without a valid license.  To make matters worse, he gave a false name to the officer.  A month later, police discovered that the name was incorrect and our client was accused of 2 separate misdemeanors. Our client failed to appear in court and he had 2 outstanding warrants for several years. Eventually, the warrants caught up to him and he was going to lose his job. This morning, I met with the DA and they agreed to dismiss both matters entirely. Our client can finally get back to work without being afraid that police would show up at any minute and take him into custody on some ticky tacky old warrants. Greats news for him and his family. 
• Elder Abuse Restraining Order -- Santa Ana (Orange County):  Our client was an elderly man who had been the victim of harassment and financial abuse by his adult daughter. He was seeking a restraining order against her to keep her away from his home and bank accounts. We were able to negotiate an out-of-court stipulation to help both parties achieve what they wanted without going to a full hearing before a judge. As I've written on this blog in the past, stipulations can be a great way for parties to negotiate their disputes in restraining order matters without involving taxpayers and judges. Out-of-court negotiations often allow both parties to achieve 100% of their goals without the risk that a judge will impose some "solution" where neither party is satisfied. 
• Attempted Rape --  Fullerton (Orange County):  Our client is a young alcoholic. He was extremely intoxicated and acting belligerently, including some aggressive behavior toward a female stranger. We all agreed that his behavior was inappropriate, but I did not believe that he intended or attempted to "rape" anyone. After a thorough investigation, the District Attorney agreed that my client was not guilty of attempted rape. He was potentially facing several years in prison, followed by lifetime sex offender registration. Instead, he received the appropriate resolution: mandatory alcohol counseling and NO sex offender registration.  
• Trespassing / Theft -- Fullerton (Orange County):  Our client was a "porch pirate". She was actually captured on camera stealing packages from the victim's doorstep. Package theft is rampant in North Orange County, so police and prosecutors are often eager to make an example when offenders are caught red-handed. Luckily, our client was sympathetic and apologetic. She had no serious criminal history. Most importantly, she had a great defense attorney! In the end, she agreed to a "diversion deal" -- she took a 6-hour class one Saturday and the DA agreed to dismiss the case entirely.  
• Child Abuse -- West Covina (Los Angeles County):  Our client was accused of abusing her boyfriend's child. My client insisted that she had merely used some reasonable methods of discipline to correct behavior in an obstinate child. The defendant was a tough disciplinarian, but I did not believe that the punishments she imposed on the child were excessive or unwarranted. After some further investigation, the DA agreed to dismiss the charges.

These are just a few of the cases where we've recently achieved some great results for our clients. Obviously, the facts of every case are different, so these success stories are not guarantees or predictions of future performance.  

I have a lot more interesting cases that I'll be free to discuss soon. Check back for updates as they become available.  

If you or a loved one is accused of a crime in Orange County, call us for a free attorney consultation. (714) 449-3335. 

Fullerton Criminal Defense Attorney

Catalina Island Special Appearance Attorney

Our office handles more criminal cases on Catalina Island than any other private firm.  If you're scheduled to appear in the Avalon courthouse, save yourself the time and hassle of the trip and allow us to make a special appearance.

Our appearance fee is usually less than the cost of the trip, especially if you factor in the value of your time.  An appearance on Catalina Island takes most of the day.  The Catalina Express leaves from Long Beach at 6:00 AM.  If your case goes smoothly and you can catch the 11:45 boat back, you'll arrive back on the mainland around 1:00 PM.  If the court staff is delayed by inclement weather, cases are often heard in the afternoon, or not at all.  There is nothing quick or simple about a "quick and simple appearance" on the island.

We have extensive experience in defending against the most common charges that arise on Catalina, including fishing violations (undersized lobster, fishing in a protected area, commercial fishing without the necessary permits and endorsements, etc.) and other misdemeanors (drunk in public, golf cart DUI, possession of drugs and domestic violence).

If you need an appearance covered on Catalina Island, or if you have questions about what to expect, call us for a free consultation.  (714) 449 3335.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

What is the Statute of Limitations for Sex Crimes in California?

The "statute of limitations" ("SoL") describes the time limit within which prosecutors must bring criminal charges.  If the DA waits too long before filing a case, they may be "time barred" from doing so.  Like everything else in the law, though, this is often more complicated than it sounds.

Before we get started, it's important to remember that the "statute of limitations" refers to the time within which the case must be filed.  Often, prosecutors do file a case within the proscribed time period, but the defendant never appears in court for his arraignment.  When this happens, a bench warrant is issued.  The warrant may remain outstanding forever, or until the defendant is eventually arrested and brought to court.  A warrant will never simply go away on its own.  If an old warrant has been outstanding for several years, the defendant may have a valid argument that his constitutional right to a speedy trial has been violated, but this is different from a "statute of limitations" argument if the case was filed before the SoL expired.

The length of the statute of limitations depends on the maximum sentence for the specific underlying crime.  For most misdemeanors, the SoL is one  year.  That means prosecutors have one year from the date that the crime was discovered (not necessarily the date that the crime was committed) to file charges.  If the crime is a "wobbler" (one that can be filed as either a misdemeanor or a felony at the discretion of the DA), then a longer statute of limitations may apply, even if the case is only filed as a misdemeanor.

If the crime is a felony and the maximum penalty is less than 8 years in prison, the statute of limitations is usually 3 years.  If the maximum sentence is more than 8 years in prison, then the SoL is usually 6 years.  If the crime is potentially punishable by death or by life in prison, or if the crime involves embezzlement of public money, then there is no statute of limitations -- the DA can file charges at any time.

There are many, many exceptions and caveats to the rule that prosecutions must generally commence with within the 1-, 3- or 6-year statute of limitations.  If, for example, a defendant is out of the state when the crime is committed, the SoL can be extended by up to 3 additional years.

Arguments about the statute of limitations get especially complicated in cases involving allegations of child molestation, or "lewd acts with a minor" (PC 288).  Under section 803(f) of the California Penal Code, the SoL may be extended even longer under certain circumstances. The  district attorney can file criminal charges at any time (for up to one year after a report is made) if ALL of the following criteria are met:

• The crime involved child rape, oral copulation, penetration, or other "substantial sexual conduct" with a minor (the victim was under 18 at the time),
• The crime had never been previously reported to police, AND
• There is some independent evidence to support the allegations.  If the victim is over 21 at the time that the crime is reported, that "independent evidence" must be "clear and convincing".

The argument in these cases tends to revolve around the 3rd prong -- that the allegation be supported by "independent evidence" that is "clear and convincing".  Appellate courts have dealt with these issues extensively, and the nuances are intricate.

As I warned in the opening paragraph, issues regarding the statute of limitations can get complicated.  You may have a valid defense based on a filing delay, but the argument must be properly presented and supported by up-to-date citations or it will not be effective.

If you or a loved one is fighting an old sex case, call us for a free attorney consultation. 714 449 3335.  Ask for John. 

Thanks for reading.

Fullerton Criminal Defense Attorney

Can Hands Be Considered "Deadly Weapons" in California?

Is it true that Mike Tyson's hands are considered "deadly weapons"?  If Chuck Norris karate chopped someone in a bar, would Mr. Norris be charged for "assault with a deadly weapon"?  In California, the answer is "maybe".

Section 245 of California Penal Code defines aggravated assault, commonly referred to as "assault with a deadly weapon, or by force or means likely to induce a great bodily injury".  To be guilty of violating PC 245, the DA must prove that the defendant willfully performed some act that would likely injure someone else.

If the defendant uses or attempts to use a weapon against a victim (he swings a baseball bat toward someone, or throws a rock at someone's head, etc.), a jury could convict him of violating PC 245 because those actions are likely to cause injuries, regardless of whether or not the defendant actually harms anyone.  Those are both examples of "assault by force or means likely to result in a bodily injury", even when nobody actually gets hurt.

A defendant can also be guilty of violating PC 245 without actually using any weapon.  Remember, using a weapon is NOT an element of this crime.  A defendant can be convicted for PC 245 if he and a friend (or several friends) cooperate to jump someone.  Even if none of the assailants use weapons, jumping someone in an unfair fight is likely to cause serious injuries to the target of that beating.  Anyone who participates in the beating is guilty of violating PC 245.

Similarly, the DA might file PC 245 charges in a case where a fair fight devolves into a beating.  For example, imagine two men voluntarily choose to fight in a parking lot.  The fight starts fairly and the two men are evenly matched, but one man slips, drops his hands, and gets knocked out.  After he falls unconscious, the other man continues kicking and beating him on the ground.  Obviously, beating and kicking an unconscious man is likely to cause serious injuries.  Even though this confrontation began as a fair fight, and even though the victor never used a weapon, he could still be charged and convicted for violating PC 245.

Back to my example of Mike Tyson or Chuck Norris assaulting someone in a bar fight: if either world-renowned fighter took a swing at a drunken amateur, it is probably likely that the poor victim would suffer some serious injury.  If a jury agreed, then Iron Mike and Master Norris could be convicted of PC 245, commonly known as "assault with a deadly weapon", simply for punching someone with a bare fist.

In the real world, though, cases aren't usually so cut-and-dry.  There are many possible defenses to assault charges, including self-defense.  If you or a loved one has been arrested for assault in California, call us for a free attorney consultation.  714 449 3335.  Ask for John.

Thanks for reading.

Fullerton assault lawyer

The Truth About DUI Lawyers

If you or someone you love has been arrested for a DUI, one of your first decisions must be whether or not to hire a private attorney.  Before you invest thousands of dollars on a stranger, I think it's important to have a good understanding of what a DUI lawyer can (and can't) do for you.

If your expectations of your attorney are unrealistically high, you will be disappointed and angry.  You might feel like your attorney made false promises and then ripped you off.  If your expectations are too low, you WILL get ripped off by an unscrupulous dump truck law firm.  The key, then, is to develop a proper sense of the role that DUI attorneys actually play in the process and how they can help.

At the most basic level, your attorney's job is to collect the facts, to develop a thorough understanding of your case, and to concisely explain how the law fits into those facts.  He should be able to lay out your options, your possible possible defense strategies and the risks associated with each of those strategies so that you are prepared to make well-informed decisions.

Your lawyer should take the time to outline the process so that you understand what to expect at each hearing.  Ultimately, he or she should guide you to the best conclusion possible under the circumstances, depending on your priorities.  If your attorney has done the job effectively, you should walk away with the feeling that you were treated fairly and that you received the best disposition possible.

And speaking of priorities, your attorney must have a good understanding of your goals and what you hope to achieve.  Of course, every client wants to avoid excessive penalties, but no two clients are in the exact same position.  Some defendants want to minimize their fines and fees, for example.  Others have no concern for expense, as long as they can be free from probation as soon as possible.  In addition to explaining various legal concerns, your lawyer should take the time to listen and to understand your personal situation so that you don't get shoehorned into a deal that doesn't fit.  

In addition to court-ordered penalties (probation, fines, mandatory classes, jail time, etc.), a DUI conviction may have "collateral consequences" -- things that the court has no control over.  Collateral consequences of a DUI may include things like discipline at work, an angry spouse, and an increase in the cost of your insurance.  The court will not warn you about these extrajudicial penalties, but your lawyer should.  Again, your attorney must take some time to understand your personal priorities.  

DUI lawyers will save you a lot of time, money and stress.  They will make your court appearances for you so that you don't have to miss work.  They will work to reduce your penalties (ideally by earning a reduction or a dismissal of the charges entirely, if possible).  They will alleviate your stress by ensuring that you understand the process and your options and they will arm you with good information so that you are empowered to make sound decisions.  

It's also important to remember, though, that DUI lawyers are not wizards.  They cannot change the facts of your case.  Despite what you might have seen on TV (and despite what some dishonest attorneys might promise), they cannot simply go golfing with the judge or take the DA to lunch and "make your case go away".  Most of the time, lawyers cannot bury the DA in paperwork or put a cop on the stand and make him admit that he's lying.  Sometimes we do those things, but those cases are exceptional. 

If you or a loved one has questions about a DUI in Orange County, call our office for a free attorney consultation.  714 449 3335.  Ask for John.

Thanks for reading.  

Fullerton DUI Lawyer