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

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

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

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

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

Driving Under the Influence of Drugs in Orange County

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

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

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

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

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

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

Thanks for reading.

Orange County DUI Lawyer

Religious Use of Marijuana

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

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

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

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

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

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

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

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

Fullerton Marijuana Lawyer

Drunk in Public on Catalina Island

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

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

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

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

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

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

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

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

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

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

Thanks for reading.

Catalina Island Lawyer

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

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

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

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

I Wasn't Ready 

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

I'm Not a Lawyer

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

The Petitioner Lied and the Judge Believed It

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

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

Motion to Reconsider a Restraining Order

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

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

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

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

Thanks for reading.

Orange County Restraining Order Lawyer.

Is it Worth My Time to Fight a Restraining Order?

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

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

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

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

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

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

Thanks for reading.

Orange County Restraining Order Lawyer

How to Fight a Restraining Order When the Petitioner is Crazy

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

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

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

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

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

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

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

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

Thanks for reading.

Orange County Restraining Order Lawyer

Can I Get a DUI on Private Property?

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

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

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

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

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

Fullerton DUI Lawyer

How Can I Drop Domestic Violence Charges?

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

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

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

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

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

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

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

Fullerton Domestic Violence Lawyer

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

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

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

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

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

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

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

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

Thanks for reading.

Orange County Criminal Defense Attorney

Send an Offensive Text Message, Lose Your Gun Rights

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

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

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

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

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

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

Orange County Restraining Orders

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

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

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

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

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

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

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

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

Thanks for reading.  

Fullerton DUI Lawyer

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

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

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

The big difference between marijuana and alcohol is that there's no legal limit for THC and no reliable way to determine a driver's degree of impairment with weed.  Blood, urine and saliva tests cannot accurately tell us whether or not a subject is dangerously intoxicated by marijuana.  This means that marijuana DUIs are pretty arbitrary.  They often turn on the police officer's opinion based on his observations before and after the traffic stop.  The factors that I usually see listed in police reports include:

• Bad driving
• Smell of marijuana coming from the interior of the vehicle
• Driver observed smoking in a moving vehicle
• Red, glassy eyes
• Any signs that the driver is disoriented or has difficulty following instructions, etc.

The strongest evidence that the police usually gather in these cases, though, is the driver's own statements.  Way too many of my clients talk themselves into trouble after a traffic stop.  If you admit to consuming marijuana before (or while) driving, you will be arrested on suspicion of DUI. 

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

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

Thanks for reading. 

Fullerton Marijuana Lawyer

Can a Restraining Order be Resolved Before the Court Hearing?

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

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

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

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

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

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

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

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

Thanks for reading.

Orange County Restraining Order Lawyer