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

How to Legally Grow Marijuana in California

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

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

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

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

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

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

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

Thanks for reading.

Orange County Marijuana Lawyer

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

Clean Up Your Criminal Record: Updated 2017

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

• If you were given probation and you successfully completed the entire term without any violations, you may be eligible to have your old case dismissed. Once a case is dismissed, you may honestly state that you have no criminal convictions for most purposes. A dismissal under this section will not restore gun rights, though. 
• If you were convicted of a misdemeanor and NOT given probation, then you must wait one year from the date of your conviction or your release from custody, whichever came later. You must also prove that you have remained law-abiding since the conviction.  
• If your conviction was for a felony, the charge may be reduced to a misdemeanor in some cases. If an old felony conviction is reduced to a misdemeanor, it may restore gun rights, depending on the circumstances.  
• You must complete probation before you're eligible to apply for a dismissal. If you're still on probation, we can ask the court to terminate probation early. 

The legislature has added some new caveats over the past year to allow more types of cases to be dismissed or reduced:

• Non-traffic infractions are now eligible for dismissal under the same process.  Non-traffic infractions include things like "disturbing the peace" and "urinating in public", for example. Applicants must wait one year from the time of the conviction. 
• A conviction for engaging in prostitution under PC 647(b) can now be dismissed if the applicant can prove that he or she was the victim of human trafficking.
• If you were convicted of a felony and sentenced to county jail rather than state prison, you may now apply for a dismissal.  The waiting period depends on whether or not your sentence included "mandatory supervision".  
• If you were arrested and the case did not result in a conviction, you may be eligible to seal the record of your arrest. 

If you or a loved one has questions about cleaning up an old criminal conviction, call our office for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading. 

Orange County Expungement 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