Over the past couple weeks, protests over racism and police brutality have erupted in almost every major city throughout the United States. Police have conducted mass arrests for a variety of alleged offenses. Today I wanted to take a minute to provide a quick overview of some of the legal issues surrounding these protests (specifically in California), and the rights that protesters need to understand before they get involved.
The 1st Amendment
The 1st Amendment to the US Constitution enshrines Freedom of Conscience. This includes the right to express yourself, the right to peacefully assemble, and the right "to petition the government for redress of grievances" (the right to protest).
The right to express an opinion is sacrosanct, regardless of how popular or unpopular that opinion might be. Contrary to common belief, the law makes no distinction between "political speech" and "hate speech". All opinions are equally protected, even if you find some expression to be repugnant. The government may never punish or prosecute someone simply for expressing an offensive thought.
Courts draw a distinction, though, between regulating thoughts and regulating actions. Even though all opinions are equally protected under the law, police may enforce reasonable restrictions on the time, place and manner of speech. For example, they may require permits for large gatherings, as long as they do not discriminate in the issuance of permits. They may prevent protesters from blocking traffic and disrupting essential functions of the city, as long as they leave open some adequate alternative methods for protesters to express themselves.
This is going to be a big issue in the coming months, as advocates sue police departments over the heavy-handed tactics that were used to clear out some demonstrations. Courts will have to determine whether police used unnecessary force to stifle dissent, or if they simply enforced the law by regulating the "time, place and manner" of unlawful assemblies.
If you decide to participate in any protest rallies, remember that your words and opinions are 100% protected by law. Your actions, though, are not. You are free to yell "FTP!" in a cop's face, but you will be arrested if you spray paint it on a police car. That's the difference between free speech (protected) and vandalism (not protected, even if it is politically motivated).
Recording the Police
Courts have consistently ruled that filming the police while they perform their duties in public is protected by the 1st Amendment. If we've learned anything over the past couple weeks, it should be the value of cell phone cameras in exposing abusive tactics by law enforcement. The outcry over George Floyd's death was sparked by cell phone footage that showed police kneeling on his neck for over 8 minutes as he did not appear to resist. Without that footage, the officers involved would probably still be on the job.
Since then, cell phone videos have captured police pushing an elderly man to the ground, causing him to strike his head on the pavement. We've seen police push a woman and use profanity against her while she was kneeling. We've seen officers use batons to strike members of the media and peaceful protesters who appeared to be walking away. An officer in New York was recorded removing a man's mask and spraying him in the face with pepper spray. All of these incidents were brought to national attention thanks to the relatively new role of ubiquitous cell phone cameras. These images have helped spread the message that police brutality is a serious problem in the US and that it needs to be addressed by people of all races.
Hopefully, the fear of being filmed will deter bad conduct by police in the future. If you attend any protest rally, make sure that your camera is rolling. If you see police using questionable force, document it and share it. These videos provide a valuable first-hand account of what actually happened, rather than simply taking the officer's word.
Resisting Arrest
Recording the police in public is protected by the 1st Amendment, but interfering with their duties is not. If you choose to record the police, make sure that you do so from a safe distance. Do not put yourself into a position where you could be accused of "delaying" or "obstructing" them. Do not intervene or try to prevent them from performing their jobs. If you get in their way, even briefly, you can be arrested for violating section 148(a)(1) of the California Penal Code, commonly known as "resisting".
To be guilty of resisting, the DA only needs to prove that the police were attempting to perform their lawful duties and that you made their job more difficult or time-consuming than necessary. They do NOT need to prove that you were under arrest before you started resisting, or even that you did anything else illegal. This is a common issue that I hear all the time -- "How can I be charged for resisting arrest if I wasn't arrested until after I resisted?". If an officer was trying to do something else and you got in the way, you will be arrested for resisting.
A common defense to 148(a)(1) charges -- and one that I expect to see used A LOT in the near future -- is that the officers involved were not performing their lawful duties when the defendant resisted. If the police were doing something unlawful to begin with, then a defendant commits no crime when he resists or obstructs them. This argument is going to depend heavily on the individual facts and circumstances of each specific case. It is risky, because it essentially requires the defendant to admit that he committed the act and to argue that the act itself was not a crime.
I plan to continue updating this post as more issues arise. Check back often for the latest. Be safe out there. If you or a loved one has any questions about your right to peacefully protest, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Wednesday, June 10, 2020
Tuesday, April 14, 2020
Orange County Courts Are Partially Open
Orange County courts have reduced their operations in response to the current coronavirus pandemic. The court will not conduct any new out-of-custody arraignments or restraining order hearings until at least April 24, 2020. That closure could be prolonged again.
This doesn't mean that the courts are completely dormant, though. Judges and court staff are working frantically to hear emergency matters and to reduce the over-crowded conditions inside the jails. The California Judicial Counsel recently ordered local judges to reduce bail to $0 in most cases, essentially granting OR releases to many defendants. If you have a loved one who is currently incarcerated in an Orange County jail, now is a great time to apply for a bail reduction or pre-trial release.
The courts are still accepting new restraining order petitions, but all hearings have been postponed by at least 30 days. This means that individuals who have suffered abuse or harassment can still get the immediate protection of a temporary restraining order. The order can now remain in effect for up to 7 weeks before the restrained party has an opportunity to respond at a court hearing. The restraining order is enforceable during that time.
The Orange County District Attorney and the Anaheim City Attorney are still filing new charges with initial appearance dates after 4/24. Specifically, prosecutors are working to process a wave of domestic violence cases that have spiked during the lock-down. When the Judicial Counsel lowered bail to $0 for most offenses, they specifically excluded domestic violence charges. This means that anyone arrested on suspicion of domestic violence during the lock-down WILL go into custody unless they post bail.
Courts have also been working to adopt some new technology that should facilitate remote appearances. I have been corresponding with judges, prosecutors and court staff by email this week. They tell me that we are going to start using video conferences to discuss settlement offers shortly.
Information is changing quickly, so check back often for updates as they become available.
As always, please feel free to call my office for a free attorney consultation if you have any questions. (714) 449-3335. Ask for John.
Thanks for reading.
This doesn't mean that the courts are completely dormant, though. Judges and court staff are working frantically to hear emergency matters and to reduce the over-crowded conditions inside the jails. The California Judicial Counsel recently ordered local judges to reduce bail to $0 in most cases, essentially granting OR releases to many defendants. If you have a loved one who is currently incarcerated in an Orange County jail, now is a great time to apply for a bail reduction or pre-trial release.
The courts are still accepting new restraining order petitions, but all hearings have been postponed by at least 30 days. This means that individuals who have suffered abuse or harassment can still get the immediate protection of a temporary restraining order. The order can now remain in effect for up to 7 weeks before the restrained party has an opportunity to respond at a court hearing. The restraining order is enforceable during that time.
The Orange County District Attorney and the Anaheim City Attorney are still filing new charges with initial appearance dates after 4/24. Specifically, prosecutors are working to process a wave of domestic violence cases that have spiked during the lock-down. When the Judicial Counsel lowered bail to $0 for most offenses, they specifically excluded domestic violence charges. This means that anyone arrested on suspicion of domestic violence during the lock-down WILL go into custody unless they post bail.
Courts have also been working to adopt some new technology that should facilitate remote appearances. I have been corresponding with judges, prosecutors and court staff by email this week. They tell me that we are going to start using video conferences to discuss settlement offers shortly.
Information is changing quickly, so check back often for updates as they become available.
As always, please feel free to call my office for a free attorney consultation if you have any questions. (714) 449-3335. Ask for John.
Thanks for reading.
Friday, January 3, 2020
Can Fish & Game Wardens Search Me Without a Warrant?
I get a lot of questions about Fish & Game wardens. If you've ever dealt with officers from the California Department of Fish & Wildlife, you probably know that these guys can be nosy. They like to board boats and search coolers. Maybe they've knocked on your door and asked to examine the carcass or antlers of a deer you recently shot. Sometimes, these compliance checks feel a little intrusive and intimidating. Today's post is specifically about the special rules that apply in "administrative searches" conducted by Fish & Game wardens.
First, though, I should acknowledge that the California Department of Fish & Game recently changed their official name to the "Department of Fish & Wildlife". The change reflects the fact that their agency is responsible for enforcing regulations regarding a variety of wildlife, including animals that are classified as "non-game" species. "Fish & Wildlife" just makes more sense. Some of us are still stuck in the habit of using the old name, though. I understand that the agency is called the "DFW", but old habits are hard to break.
The 4th Amendment to the US Constitution assures the right to be free from unreasonable searches and seizures. It does not define the word, "unreasonable", though. Courts have ruled that the reasonableness of a search depends on the specific circumstances. To determine whether or not a search is unduly intrusive, judges balance the interests of the government on one hand, against the individual's interest in privacy on the other. That includes taking into consideration the place searched and the individual's expectation of privacy in that place.
For example, individuals have a high expectation of privacy in their own homes. Consequently, police cannot (usually) barge into a private house and demand to search the place unless they have a warrant, signed by a judge. People have a lower expectation of privacy in their cars, though. Since cars are already subject to heavy state regulations, courts are more likely to approve of warrantless vehicle searches, because the state vs. privacy balance often tips in favor of the police.
When someone voluntarily engages in any activity that is highly regulated by the state (like driving a car, fishing or hunting), they also voluntarily agree to comply with all the relevant laws and regulations. Courts have consistently found that fishers and hunters have a lower expectation of privacy because they choose to participate in a sport that comes with a lot of rules. At the same time, the state has a high interest in performing inspections of anyone who fishes or hunts. Of course, all this means that DFW wardens generally have wide latitude to conduct "administrative searches" of anyone who fishes or hunts in the state.
If there was still any question, section 1006 of the California Fish & Game Code explicitly states that the department may inspect "All boats, markets, stores and other buildings, except dwellings, and all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles, or amphibia may be stored, placed, or held for sale or storage," as well as, "All boxes and packages containing birds, mammals, fish, reptiles, or amphibia which are held for transportation by any common carrier." Section 2012 of the code also specifically says that any hunting or fishing gear must be presented for inspection upon demand of any DFW warden.
Those laws give Fish & Game wardens virtually unlimited power to search or inspect anything used to hunt, fish, or to store meat. The only exceptions are "dwellings" and the clothing actually worn by the subject at the time of the search. Wardens can knock on your door and demand to search your truck and any outbuildings on your property (detached garages, sheds, barns, etc.). They can demand to inspect your rifles and anything else that they're curious about, but you do not have to let them into your house.
Even though wardens may generally conduct administrative searches without any warrant or probable cause, courts have also ruled that searches must be conducted in a "reasonable" manner. Again, that word isn't clearly defined, but judges have thrown out cases when wardens used excessive force, for example.
If you or a loved one has questions about dealing with the California Department of Fish & Wildlife, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
First, though, I should acknowledge that the California Department of Fish & Game recently changed their official name to the "Department of Fish & Wildlife". The change reflects the fact that their agency is responsible for enforcing regulations regarding a variety of wildlife, including animals that are classified as "non-game" species. "Fish & Wildlife" just makes more sense. Some of us are still stuck in the habit of using the old name, though. I understand that the agency is called the "DFW", but old habits are hard to break.
The 4th Amendment to the US Constitution assures the right to be free from unreasonable searches and seizures. It does not define the word, "unreasonable", though. Courts have ruled that the reasonableness of a search depends on the specific circumstances. To determine whether or not a search is unduly intrusive, judges balance the interests of the government on one hand, against the individual's interest in privacy on the other. That includes taking into consideration the place searched and the individual's expectation of privacy in that place.
For example, individuals have a high expectation of privacy in their own homes. Consequently, police cannot (usually) barge into a private house and demand to search the place unless they have a warrant, signed by a judge. People have a lower expectation of privacy in their cars, though. Since cars are already subject to heavy state regulations, courts are more likely to approve of warrantless vehicle searches, because the state vs. privacy balance often tips in favor of the police.
When someone voluntarily engages in any activity that is highly regulated by the state (like driving a car, fishing or hunting), they also voluntarily agree to comply with all the relevant laws and regulations. Courts have consistently found that fishers and hunters have a lower expectation of privacy because they choose to participate in a sport that comes with a lot of rules. At the same time, the state has a high interest in performing inspections of anyone who fishes or hunts. Of course, all this means that DFW wardens generally have wide latitude to conduct "administrative searches" of anyone who fishes or hunts in the state.
If there was still any question, section 1006 of the California Fish & Game Code explicitly states that the department may inspect "All boats, markets, stores and other buildings, except dwellings, and all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles, or amphibia may be stored, placed, or held for sale or storage," as well as, "All boxes and packages containing birds, mammals, fish, reptiles, or amphibia which are held for transportation by any common carrier." Section 2012 of the code also specifically says that any hunting or fishing gear must be presented for inspection upon demand of any DFW warden.
Those laws give Fish & Game wardens virtually unlimited power to search or inspect anything used to hunt, fish, or to store meat. The only exceptions are "dwellings" and the clothing actually worn by the subject at the time of the search. Wardens can knock on your door and demand to search your truck and any outbuildings on your property (detached garages, sheds, barns, etc.). They can demand to inspect your rifles and anything else that they're curious about, but you do not have to let them into your house.
Even though wardens may generally conduct administrative searches without any warrant or probable cause, courts have also ruled that searches must be conducted in a "reasonable" manner. Again, that word isn't clearly defined, but judges have thrown out cases when wardens used excessive force, for example.
If you or a loved one has questions about dealing with the California Department of Fish & Wildlife, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Thursday, December 12, 2019
Shoplifting, Commercial Burglary and Theft in California
The act of stealing from a store in California can lead to a variety of different criminal charges, depending on the circumstances. Prosecutors have a wide range of options for dealing with individuals who commit retail theft. The good news, though, is that defendants also have several options to fights these charges.
Grand Theft vs. Petty Theft
Stealing from a retail business is theft (AKA "larceny" -- larceny is just a fancy word for "theft"). If the value of the property is more than $950, the case will be treated as a felony ("grand theft"). Generally, theft of property valued at less than $950 is a misdemeanor ("petty theft").
Grand theft can be punished by up to 3 years in jail. Petty theft, on the other hand, usually carries a maximum sentence of 180 days in jail, plus a fine of $1,000. Petty theft can even be treated as an infraction, which carries no jail time and a fine of only $250.
Shoplifting
Under California law, "shoplifting" is different from the crime of petty theft. To be guilty of shoplifting, the DA must prove that the defendant entered a store during normal business hours with the intent to steal. Prosecutors do NOT need to prove that the defendant actually completed the theft, only that he planned to steal at the time that he entered the store.
If the subject takes something valued at less than $950 (or if it can be proven that he planned to take something valued at less than $950), then shoplifting is usually treated as a misdemeanor. If the value of the goods is more than $950, then prosecutors can file felony charges (including Commercial Burglary, below). Shoplifting can also be treated as a felony if the defendant has a prior conviction for a similar offense.
Commercial Burglary
Commercial burglary in California is the crime of entering a store with the intent to commit theft during hours when the business is not open to the public.
As mentioned above, prosecutors can also file Commercial Burglary charges if they can prove that the the defendant entered a store with the intent to steal property valued at more than $950, during normal business hours.
The maximum sentence for commercial burglary is 3 years in jail.
Organized Retail Theft
If prosecutors can prove that more than one person worked together to commit theft, any individual who participated in the plan can be charged with Organized Retail Theft under section 490.4 of the California Penal Code. This includes anyone who actually steals the merchandise, as well as anyone who purchases the goods knowing that they are stolen, and anyone else who assists, organizes supervises or encourages the plan in any way.
If the DA can prove that participants committed more than one organized theft within a 12-month period, and the total value of goods stolen during that time is more than $950, then they can all be charged with felonies. Again, the maximum penalty for Organized Retail Theft is 3 years in jail.
Defense Options
In any criminal matter, the defense attorney's first object is to attack the facts of the prosecutor's case. We try to collect and present evidence that will prove our clients are innocent (or at least not guilty).
Sometimes, though, the evidence is bad. In many theft cases that I've handled, the surveillance cameras conclusively show my client removing tags, concealing items inside other bags, entering the dressing room with several items and emerging with fewer, etc. In these situations, we have to find creative solutions to keep my clients out of jail. Luckily, there are several ways to defeat theft charges without going into custody. The options described below can even result in a total dismissal of charges.
Civil Compromise
Under a Civil Compromise, a defense attorney negotiates a settlement directly with the victim, rather than plea bargaining with the District Attorney. This usually involves writing a check in exchange for the victim's signature on a document requesting that charges be dismissed.
The document must contain some "magic" legal language and should be negotiated only by a qualified attorney. There are a few fine lines between "negotiation", "witness intimidation" and "extortion".
Deferred Sentence
In some counties, courts have implemented a "Deferral of Sentence Pilot Program" ("DOSP"). Under this voluntary program, qualified defendants are given the opportunity earn a total dismissal of all charges after one year.
To take advantage of the DOSP, subjects must plead "guilty" up front. Rather than being sentenced and convicted, though, they are ordered to complete whatever tasks that the judge deems appropriate. These may include community service, AA meetings, counseling, etc. Sentencing is postponed for one year. If the participant completes all terms and remains law-abiding for that year, then charges are dismissed at the time of sentencing. If the participant fails to comply, however, the court already has his or her "guilty" plea on file. The judge can simply impose whatever penalty is appropriate at that time.
DA Diversion
In Orange County, some defendants may qualify for the "DA Diversion" program. Defendants who chose to take advantage of this deal are ordered to attend a 6-hour class about the harms of shoplifting. The class is presented on a Saturday at Santa Ana Community College.
Participants are also required to provide a DNA sample for retention in the District Attorney's database. The sample is collected by swiping a cotton swab on the inside of the subject's cheek. The results are used to crack unsolved cases.
Similarly to the DOSP program, defendants who participate in DA diversion are usually required to plead "guilty" in advance. Once they return to court with "proof of completion", their guilty pleas are thrown out and the case is dismissed. Prosecutors do have discretion, though, to allow defendants into the diversion program without pleading guilty up front. This is usually a selling point for defendants who hold professional licenses (doctors, nurses, etc.), who don't want to disclose a "guilty" plea to their governing boards.
The DA Diversion program is usually fairly quick and easy for defendants to complete. Unlike the DOSP program, in which sentencing is postponed for a full year, sentencing in the DA Diversion Program is usually scheduled about 3 months out.
If you or a loved one has been arrested or cited for theft or shoplifting in Orange County, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Thursday, October 3, 2019
Ask a Lawyer: How to Fight a "Drunk in Public" Case
There's a lot of misinformation out there about "drunk in public" charges. If you or someone you love has been arrested or cited for violating section 647(f) of the California Penal Code, stop taking bad advice from your friends -- read this instead.
Elements of the Offense
Just like the name implies, being "drunk in public" includes 2 elements that must both be established beyond a reasonable doubt: 1) that the defendant was "drunk", and 2) that he or she was "in a public place". As with many things in the law, though, those terms have special meanings that are a little different from their definitions in normal usage.
To be considered "drunk" for purposes of PC 647(f), the DA must prove that the defendant was so impaired by alcohol that he or she could not care for their own safety or the safety of others. Unlike in DUI cases, though, the DA does NOT need to prove the defendant's specific blood alcohol concentration. In DUI cases, the prosecutor can win by simply establishing that the defendant's BAC was above 0.08%. There is no specific legal BAC limit for walking around on the street, though.
To satisfy this first element (that the defendant was "drunk"), the DA will present evidence that the subject was a danger to him / herself or others. If the defendant was found wandering in the street, passed out, injured or involved in a fight, those facts would support the contention that the defendant was not able to care for his / her own safety. By law, people who are arrested on suspicion of violating PC 647(f) may demand a breathalyzer test, but they are not required to submit to one.
The second element of PC 647(f) trips up a lot of people who read the statute too literally. As I mentioned above, the California Penal Code uses some terms with meanings that may differ from their ordinary usage. "Public place" is one of those terms. Courts have determined that ownership of the land has nothing to do with whether or not a place is considered "public". Under PC 647(f), a place is considered "public" if it is open to the public and people are generally free to walk through while conducting legitimate business, even briefly. This includes the insides of privately-owned bars, private parking lots (including inside cars that are parked in private lots), common areas of apartment buildings, and even the front lawn of your own house. If a mail carrier or a Girl Scout could walk across your front lawn without being arrested for trespassing, then your front lawn is considered a "public place" for the purposes of 647(f). This means that you can be arrested for being "drunk in public" on your own front lawn.
Defenses to the Charge
The most common and obvious defenses to "drunk in public" charges are that the defendant was not drunk, or that the place was not "public".
I have actually (successfully) defended a case where my client was arrested for being "drunk in public" inside his own living room. I understand that the law uses an expansive definition of "public place", but this was just ridiculous. Granted, my client had been dangerously drunk, but he hadn't committed any crimes. He had weapons and the police wanted to get him out of the house to preventing him from hurting himself or someone else. If he had actually threatened anyone, he could have been charged with PC 417 (brandishing a firearm) or 422 (making criminal threats), but he hadn't. The only options police had were to arrest him on a bogus PC 647(f), or else to leave him drunk and alone with his weapons. Of course, the case was eventually dismissed.
Even if the defendant WAS dangerously impaired in a public place, "involuntary intoxication" is a defense if the defendant can prove that he was "dosed", or that he had involuntarily ingested some unknown substance. GHB for instance, is commonly used a "date rape drug". It can cause symptoms that are very similar to alcohol intoxication (poor coordination, slurred speech, disorientation, sedation, loss of consciousness, etc.). This is obviously rare, but I successfully defended a case a few years ago where witnesses confirmed that my client had only consumed 2-3 glasses of wine over the course of the night. One of the glasses had been given to her by a man she didn't know. Within about a half hour of her last drink, she began acting bizarrely and completely lost her ability to stand on her own feet. Police found her rolling on the ground in a parking lot. She appeared to be extremely drunk, but involuntary intoxication was the only logical explanation once the witnesses came forward. That case was also dismissed.
Alternatives to Prosecution
Even if the case is strong, there may be options to fight a 647(f) case, or at least to avoid a conviction.
Depending on a defendant's criminal history, he or she may be eligible for some form of "deferred entry of judgement" program. The specifics vary by county, but DEJ can satisfy a lot of the "objectives of justice" without hammering first-time offenders. It usually requires the participant to plead "guilty" in advance. A "sentencing hearing" will be scheduled several months later. Between the time of the plea and the sentencing hearing, the defendant will be ordered to satisfy various criteria (take a class about the dangers of alcohol, attend AA meetings, perform community service, etc.). If all those terms are satisfied before the sentencing hearing, then the case is simply dismissed. A defendant who successfully completes DEJ is never actually sentenced for the crime. Since a defendant is not technically considered "convicted" until he or she has been sentenced, successful completion of DEJ is a great way to keep a "conviction" off your criminal record.
If the defendant has several prior convictions and he or she is not eligible for DEJ, we can usually get creative to fashion to some alternative that has roughly the same result. I always argue that someone with several prior convictions needs treatment even more than a first-time offender. It doesn't make sense to me that someone with a well-documented history of alcohol abuse would be excluded from treatment-based solutions. If the defendant is willing and able to comply with some extensive course of alcohol counseling and / or treatment (or if the defendant is ALREADY in a program like that), we may be able to negotiate a deal whereby he or she receives credit for time spent in that treatment. Obviously, everyone benefits if we can ensure that the same problem is less likely to arise in the future.
If you or a loved one has been arrested or cited for violating section 647(f) of the California Penal Code, commonly referred to as "drunk in public", call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Drunk in Public Lawyer
Elements of the Offense
Just like the name implies, being "drunk in public" includes 2 elements that must both be established beyond a reasonable doubt: 1) that the defendant was "drunk", and 2) that he or she was "in a public place". As with many things in the law, though, those terms have special meanings that are a little different from their definitions in normal usage.
To be considered "drunk" for purposes of PC 647(f), the DA must prove that the defendant was so impaired by alcohol that he or she could not care for their own safety or the safety of others. Unlike in DUI cases, though, the DA does NOT need to prove the defendant's specific blood alcohol concentration. In DUI cases, the prosecutor can win by simply establishing that the defendant's BAC was above 0.08%. There is no specific legal BAC limit for walking around on the street, though.
To satisfy this first element (that the defendant was "drunk"), the DA will present evidence that the subject was a danger to him / herself or others. If the defendant was found wandering in the street, passed out, injured or involved in a fight, those facts would support the contention that the defendant was not able to care for his / her own safety. By law, people who are arrested on suspicion of violating PC 647(f) may demand a breathalyzer test, but they are not required to submit to one.
The second element of PC 647(f) trips up a lot of people who read the statute too literally. As I mentioned above, the California Penal Code uses some terms with meanings that may differ from their ordinary usage. "Public place" is one of those terms. Courts have determined that ownership of the land has nothing to do with whether or not a place is considered "public". Under PC 647(f), a place is considered "public" if it is open to the public and people are generally free to walk through while conducting legitimate business, even briefly. This includes the insides of privately-owned bars, private parking lots (including inside cars that are parked in private lots), common areas of apartment buildings, and even the front lawn of your own house. If a mail carrier or a Girl Scout could walk across your front lawn without being arrested for trespassing, then your front lawn is considered a "public place" for the purposes of 647(f). This means that you can be arrested for being "drunk in public" on your own front lawn.
Defenses to the Charge
The most common and obvious defenses to "drunk in public" charges are that the defendant was not drunk, or that the place was not "public".
I have actually (successfully) defended a case where my client was arrested for being "drunk in public" inside his own living room. I understand that the law uses an expansive definition of "public place", but this was just ridiculous. Granted, my client had been dangerously drunk, but he hadn't committed any crimes. He had weapons and the police wanted to get him out of the house to preventing him from hurting himself or someone else. If he had actually threatened anyone, he could have been charged with PC 417 (brandishing a firearm) or 422 (making criminal threats), but he hadn't. The only options police had were to arrest him on a bogus PC 647(f), or else to leave him drunk and alone with his weapons. Of course, the case was eventually dismissed.
Even if the defendant WAS dangerously impaired in a public place, "involuntary intoxication" is a defense if the defendant can prove that he was "dosed", or that he had involuntarily ingested some unknown substance. GHB for instance, is commonly used a "date rape drug". It can cause symptoms that are very similar to alcohol intoxication (poor coordination, slurred speech, disorientation, sedation, loss of consciousness, etc.). This is obviously rare, but I successfully defended a case a few years ago where witnesses confirmed that my client had only consumed 2-3 glasses of wine over the course of the night. One of the glasses had been given to her by a man she didn't know. Within about a half hour of her last drink, she began acting bizarrely and completely lost her ability to stand on her own feet. Police found her rolling on the ground in a parking lot. She appeared to be extremely drunk, but involuntary intoxication was the only logical explanation once the witnesses came forward. That case was also dismissed.
Alternatives to Prosecution
Even if the case is strong, there may be options to fight a 647(f) case, or at least to avoid a conviction.
Depending on a defendant's criminal history, he or she may be eligible for some form of "deferred entry of judgement" program. The specifics vary by county, but DEJ can satisfy a lot of the "objectives of justice" without hammering first-time offenders. It usually requires the participant to plead "guilty" in advance. A "sentencing hearing" will be scheduled several months later. Between the time of the plea and the sentencing hearing, the defendant will be ordered to satisfy various criteria (take a class about the dangers of alcohol, attend AA meetings, perform community service, etc.). If all those terms are satisfied before the sentencing hearing, then the case is simply dismissed. A defendant who successfully completes DEJ is never actually sentenced for the crime. Since a defendant is not technically considered "convicted" until he or she has been sentenced, successful completion of DEJ is a great way to keep a "conviction" off your criminal record.
If the defendant has several prior convictions and he or she is not eligible for DEJ, we can usually get creative to fashion to some alternative that has roughly the same result. I always argue that someone with several prior convictions needs treatment even more than a first-time offender. It doesn't make sense to me that someone with a well-documented history of alcohol abuse would be excluded from treatment-based solutions. If the defendant is willing and able to comply with some extensive course of alcohol counseling and / or treatment (or if the defendant is ALREADY in a program like that), we may be able to negotiate a deal whereby he or she receives credit for time spent in that treatment. Obviously, everyone benefits if we can ensure that the same problem is less likely to arise in the future.
If you or a loved one has been arrested or cited for violating section 647(f) of the California Penal Code, commonly referred to as "drunk in public", call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Drunk in Public Lawyer
Monday, September 30, 2019
Fight a Hit & Run Case in Orange County
Under California law, any driver who is involved in a vehicle collision must immediately stop and provide his or her contact information to the owner of any damaged property. If the owner cannot be found, the driver must leave a note in an obvious place and immediately notify the local police or CHP.
Leaving the scene of a traffic accident without exchanging contact information is a crime in California, commonly known as "Hit & Run" (VC 20002). If the collision involves only property damage, Hit & Run is usually treated as a misdemeanor. If someone is injured or killed, it can be treated as a felony.
A lot of my clients are surprised to learn that they can be charged for Hit & Run even if they collide with a stationary object and no other cars are involved. Hitting a stop sign, a guard rail, or a tree, for example, can lead to a Hit & Run charge if public property is damaged the driver fails to immediately report the collision to police.
There are plenty of reasons that people leave collision scenes. Some of these reasons might even help form a defense to criminal charges. If the other driver threatened you and you were afraid for your safety, you might have had a valid reason to flee. If the collision occurred on the freeway, there might not have been a safe place to stop and speak to the other driver. If the collision was so minor that you didn't even realize you'd hit something, you might also have a good excuse for failing to stop. These are just a few common examples.
I understand that some drivers simply panic and flee because of adrenaline and emotions. This isn't a legal defense, but judges and prosecutors may show lenience when the offender is young, inexperienced, and sincerely remorseful. It also helps if the driver (or the driver's insurance carrier) is able to fully pay for any damage.
Keep in mind also that fault for the actual collision has nothing to do with Hit & Run charges. It does not matter who was responsible for causing the accident. Even if some reckless maniac hit you, you are still required to stop and exchange information.
Until recently, Hit & Run cases could be resolved through a process called a "Civil Compromise", or "Civ Comp". If the victim, the DA and the judge all agreed, the defendant could simply write a check to the victim for any damages and the victim could request that the criminal case be dismissed. The entire process was usually negotiated by the defendant's attorney. Courts ended the practice earlier this year, though. They explained that, when someone commits a Hit & Run, they're not in trouble for causing a collision -- they're in trouble for leaving the scene of the collision. The "victim" in a Hit & Run case isn't just the person you hit (or the person who hit you); the real victim is the administration of justice. Simply paying for the property damage doesn't make up for the actual wrongdoing. Unfortunately, this means that "Civil Compromise" agreements are no longer an option to resolve Hit & Run cases in California.
We still have other options to fight Hit & Run charges, though. Depending on a lot of circumstances, the defendant may be eligible for some form of "diversion" or "deferred entry of judgement". Under these deals, a defendant would be ordered to pay some fees, take some classes, perform community service, provide a DNA sample and / or do whatever else is agreed upon. Once he or she has completed those terms, the case may be dismissed entirely or reduced to a less-serious charge.
Of course, these options are assuming that the defendant is actually guilty of a crime -- and that the DA can prove it. Hit & Run cases can be notoriously difficult to prove, though. Even if prosecutors can prove which car was involved and they know the registered owner of that car, they can't always establish who was driving the car at the time of the collision. To be convicted of Hit & Run, the DA must prove that a specific defendant was behind the wheel. If someone else used your vehicle to commit a crime, you are not criminally responsible. And if police ask you questions about who was driving your vehicle at some specific time, you have no legal obligation to answer or to snitch on a family member. Police may threaten and intimidate you, but they cannot legally compel you to answer questions.
If you or a loved one has questions about fighting a Hit & Run case in Orange County, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Hit & Run Lawyer
Leaving the scene of a traffic accident without exchanging contact information is a crime in California, commonly known as "Hit & Run" (VC 20002). If the collision involves only property damage, Hit & Run is usually treated as a misdemeanor. If someone is injured or killed, it can be treated as a felony.
A lot of my clients are surprised to learn that they can be charged for Hit & Run even if they collide with a stationary object and no other cars are involved. Hitting a stop sign, a guard rail, or a tree, for example, can lead to a Hit & Run charge if public property is damaged the driver fails to immediately report the collision to police.
There are plenty of reasons that people leave collision scenes. Some of these reasons might even help form a defense to criminal charges. If the other driver threatened you and you were afraid for your safety, you might have had a valid reason to flee. If the collision occurred on the freeway, there might not have been a safe place to stop and speak to the other driver. If the collision was so minor that you didn't even realize you'd hit something, you might also have a good excuse for failing to stop. These are just a few common examples.
I understand that some drivers simply panic and flee because of adrenaline and emotions. This isn't a legal defense, but judges and prosecutors may show lenience when the offender is young, inexperienced, and sincerely remorseful. It also helps if the driver (or the driver's insurance carrier) is able to fully pay for any damage.
Keep in mind also that fault for the actual collision has nothing to do with Hit & Run charges. It does not matter who was responsible for causing the accident. Even if some reckless maniac hit you, you are still required to stop and exchange information.
Until recently, Hit & Run cases could be resolved through a process called a "Civil Compromise", or "Civ Comp". If the victim, the DA and the judge all agreed, the defendant could simply write a check to the victim for any damages and the victim could request that the criminal case be dismissed. The entire process was usually negotiated by the defendant's attorney. Courts ended the practice earlier this year, though. They explained that, when someone commits a Hit & Run, they're not in trouble for causing a collision -- they're in trouble for leaving the scene of the collision. The "victim" in a Hit & Run case isn't just the person you hit (or the person who hit you); the real victim is the administration of justice. Simply paying for the property damage doesn't make up for the actual wrongdoing. Unfortunately, this means that "Civil Compromise" agreements are no longer an option to resolve Hit & Run cases in California.
We still have other options to fight Hit & Run charges, though. Depending on a lot of circumstances, the defendant may be eligible for some form of "diversion" or "deferred entry of judgement". Under these deals, a defendant would be ordered to pay some fees, take some classes, perform community service, provide a DNA sample and / or do whatever else is agreed upon. Once he or she has completed those terms, the case may be dismissed entirely or reduced to a less-serious charge.
Of course, these options are assuming that the defendant is actually guilty of a crime -- and that the DA can prove it. Hit & Run cases can be notoriously difficult to prove, though. Even if prosecutors can prove which car was involved and they know the registered owner of that car, they can't always establish who was driving the car at the time of the collision. To be convicted of Hit & Run, the DA must prove that a specific defendant was behind the wheel. If someone else used your vehicle to commit a crime, you are not criminally responsible. And if police ask you questions about who was driving your vehicle at some specific time, you have no legal obligation to answer or to snitch on a family member. Police may threaten and intimidate you, but they cannot legally compel you to answer questions.
If you or a loved one has questions about fighting a Hit & Run case in Orange County, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Hit & Run Lawyer
Friday, September 27, 2019
Court Updates: Domestic Violence Restraining Orders
The courts that handle Domestic Violence Restraining Orders in Orange County got a shake-up earlier this year. The laws haven't changed, but the names and places have.
Previously, all Domestic Violence Restraining Orders were heard at the Lamoreaux Family Justice Center in Orange. Due to overcrowding, though, these hearings are now being conducted at the other branch courts. Some of the judges who now hear restraining order cases previously handled serious criminal matters and probation violations.
Some DVROs are still being heard at Lamoreaux, but the judges who officiate have all been shuffled. Judge De La Cruz from L-63 is now at the Westminster Courthouse, and Commissioner Wilson from L-11 is hearing criminal cases in the Harbor Justice Center.
Some of the forms used in Domestic Violence Restraining Orders were updated earlier this year, with some minor revisions to the DV-109 Notice of Court Hearing and some changes to protect confidential information of minors. If you're using old forms, it's time to update.
Restraining Order courts are taking a more active role in ensuring that firearms are accounted for. If a restraining order is granted against an individual, the restrained party must surrender any firearms in his or her possession within 24 hours. Weapons may be turned in at a local police station, stored with a licensed firearm dealer, or sold. Proof that the weapons have been turned in, sold or stored must be filed with the court within 48 hours. When the case called for a hearing, the judge is now required by law to check with the California Department of Justice to determine whether or not the restrained party has any firearms registered in his or her name. If weapons are unaccounted for, the respondent can be held arrested.
Local enforcement teams from the California State Department of Justice have also been busy physically going door-to-door and collecting firearms from prohibited individuals. Most of these actions are "knock and talk" encounters. If the DOJ believes that someone who is the subject of a restraining order is in possession of firearms, they will simply knock on the subject's door and ask about the weapons. If the homeowner refuses to hand over the guns, then the DOJ agents may apply for a search warrant, depending on the strength of their evidence.
Domestic Violence Restraining Orders probably have more serious consequences now than ever before. If you or a loved one has questions about a restraining order in Orange County, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Restraining Order Lawyer.
Previously, all Domestic Violence Restraining Orders were heard at the Lamoreaux Family Justice Center in Orange. Due to overcrowding, though, these hearings are now being conducted at the other branch courts. Some of the judges who now hear restraining order cases previously handled serious criminal matters and probation violations.
Some DVROs are still being heard at Lamoreaux, but the judges who officiate have all been shuffled. Judge De La Cruz from L-63 is now at the Westminster Courthouse, and Commissioner Wilson from L-11 is hearing criminal cases in the Harbor Justice Center.
Some of the forms used in Domestic Violence Restraining Orders were updated earlier this year, with some minor revisions to the DV-109 Notice of Court Hearing and some changes to protect confidential information of minors. If you're using old forms, it's time to update.
Restraining Order courts are taking a more active role in ensuring that firearms are accounted for. If a restraining order is granted against an individual, the restrained party must surrender any firearms in his or her possession within 24 hours. Weapons may be turned in at a local police station, stored with a licensed firearm dealer, or sold. Proof that the weapons have been turned in, sold or stored must be filed with the court within 48 hours. When the case called for a hearing, the judge is now required by law to check with the California Department of Justice to determine whether or not the restrained party has any firearms registered in his or her name. If weapons are unaccounted for, the respondent can be held arrested.
Local enforcement teams from the California State Department of Justice have also been busy physically going door-to-door and collecting firearms from prohibited individuals. Most of these actions are "knock and talk" encounters. If the DOJ believes that someone who is the subject of a restraining order is in possession of firearms, they will simply knock on the subject's door and ask about the weapons. If the homeowner refuses to hand over the guns, then the DOJ agents may apply for a search warrant, depending on the strength of their evidence.
Domestic Violence Restraining Orders probably have more serious consequences now than ever before. If you or a loved one has questions about a restraining order in Orange County, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Restraining Order Lawyer.
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