​I have repeatedly posted warning here against drinking and driving, but I realized the other day that I have only given my readers a scant amount of information that can help them decrease their alcohol consumption.  So, as we are in the midst of the “drinking season”—a time of the year when going out with friends for a drink or two (or three of four,) always seems like a more inviting idea than during the rest of the year, or maybe dealing with the stress of force family interaction causes us to act out a bit—I thought I would share a post aimed at helping us all manage to get through the holidays without alcohol. Here are a few suggestions: 

• Use this time of year to branch out: find a new non-alcoholic drink to be you go-to this holiday season.[1]
• Identify those holiday stressors in your life. Hate battling the mall crowd? Shop online. Hate dealing with the line at the post office?  Pay a little more for that custom wrapping job and then direct ship your gifts to their recipients. Is your family as kooky as mine?  Set limits for how long you are planning on staying over (or spring for a hotel so you have a place to get away from the family during longer trips.)
• Give the gift of allowing others to drink and be the designated driver when you and your friends or family go out. 
• Start new family traditions.  You’re never too old for a snowman building contest? Or baking more cookies than anyone in your household will ever be able to eat. Look for nearby hikes. Volunteer. Go out to see that newly released movie. 

 
I realize that I may be asking too much of you to have an entirely sober holiday season, so here are a few more tips to keep you safe if you decide to go the less-than-sober route. 

• Plan ahead and figure out how you’re going to get home before you leave home. 
• Make sure your account info on your Uber or Lyft app is up to date.
• Designate a designated driver.
• Stick to a limit for yourself on how many drinks you’ll allow yourself to have.
• EAT! 
• Make sure you are WELL under the legal limit before you drive. Those pocket BAC machines can be handy, but they are not always accurate, so ensure you give yourself plenty of room for error if you are relying on one to test yourself. Also check out apps such as DrinkTracker(an app that estimates the user’s blood alcohol content based on the number of drinks consumed and other personal details) or Intoxicheck(which gives users six challenges to gauge their reaction time, memory, judgment and dexterity. Note: you have to first perform the tests sober before you can use it to gauge your level of impairment after drinking.) Or for you real DUI nerds, there’s BreathalEyes(which tests the user’s eye’s involuntary movement, mimicking the Horizontal Gaze Nystagmus, one of the standard feidl sobriety tests.) 
• Obey the traffic laws. The chance of accident (and being pulled over,) increases with your speed. 

 
Be safe out there! 
 


[1]Want to drink at home? Look no further than this site.  Or this one.  Or this one. And for you Pinterest fans, I give you this.
            

​Fall and winter have always been one of my favorite times of the year (mainly because this time of year includes not only my birthday, but also Thanksgiving and Christmas!) It’s the time we see beloved family and friends, gorge on food we otherwise couldn’t justify, have a perfectly good excuse to curl up on the couch for some serious binge-watching, and celebrate old traditions. For some, these traditions include office gift exchanges, holiday parties, ugly sweater parties, building snowmen, sledding, and decorating the tree. Sadly, there’s another tradition that few like to think about: the documented rise in DUIs. 
 
We all know the chances of getting into a collision go up if there are more cars on the road and when the weather is bad, when you factor in an increased number of DUI drivers the chances of getting in an accident go off the charts. The National Highway Traffic Safety Administration (NHTSA), notes that, on an average, day 36 fatalities occur per day in the United States in which an alcohol-impaired driver is involved. However, during the holiday season that average gives to 45 fatalities per day, and over New Year’s weekend, that number jumps even higher to soared to 54 per day![1]No surprise, the highest incidences of DUI arrests occur late November through very early January, and some bartenders refer to the Wednesday before Thanksgiving as “Black Wednesday” as that is their busiest night of the year. 
 
So please be careful out there this time of year.  And while I always welcome the business, and appreciate that my clients have chosen me to help them defend against a DUI, it always breaks my heart to see a client walk through the door because someone was injured or killed as a result of their drinking and driving. 

________
[1]In case you’re curious, the Fourth of July is considered the deadliest day of the year. 

​The fact that California is activity trying to resist the Trump administrations’ immigration policies is news to no one. Here’s what you need to know about California’s recent response to Federal Immigration policy.
 
Existing federal law states that any authorized immigration officer can issue what’s called an “Immigration Detainer-Notice of Action” to any other federal, state, or local law enforcement agency. This detainer advises these other law enforcement agencies that the Department of Homeland Security (DHS) is seeking to take an alien presently in the custody of thatagency, into the custody of the DHS for the purpose of arresting and deporting the alien.[1]In short, it is a request that such that the other agency advise the DHS, prior to release of the alien, so that the DHS can arrange to pick up the alien.[2]  This is commonly referred to as an “immigration hold.” The other law enforcement agency is then supposed to maintain custody of the alien for a period not to exceed 48 hours[3].
 
However, there have been fears that Trump’s Executive Orders and other related Department of Homeland Security memorandums amount to essentially an “outline [for] a mass deportation strategy that will encompass a broad category of immigrants.”[4]  The proponents of this bill back up these statements by citing statistics indicating that deportations have increased 40% and approximately 10,800 of these deportations were of aliens whose only criminality was either entering or staying in the county in violation of law. 
 
In response, California passed SB 54. This change in the law now makes it so no California law enforcement agency can use agency or department money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes.  This includes prohibitions on usingagency or department money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes.  This includes prohibitions on (1) inquiring into an person's immigration status, (2) detaining a person on the basis of an immigration hold request, (3) providing non-public information regarding a person's release date unless such information release is in response to a notification request that where the person meets specified criteria regarding their current or past offenses[5], (4) providing non-public personal information about a person, including, but not limited to, the individual's home address or work address; (5) making or intentionally participating in arrests based on civil immigration warrants, or (6) assisting immigration authorities in the specified activities allowed under federal immigration law or performing the functions of an immigration officer. 
 
Perhaps equally as important, California Law Enforcement Agencies cannot transfer a person to immigration authorities unless the transfer has previously been authorized by a judicial warrant or judicial probable cause determination, or if the individual meets specified criteria regarding their past offenses. 
 
Law enforcement, however, can still (1) investigative and enforce violations of federal law for illegal reentry after removal following conviction of an aggravated felony, (2) respond to a request from federal immigration authorities for information about a person's criminal history, (3) participating in a joint law enforcement task force, if the primary purpose of the task force is not immigration enforcement, or (4), or give immigration authorities access to interview an individual in law enforcement custody. 


[1]Other law also states that notwithstanding any other provision of law, a Federal, State, or local government entity or official may not in any way restrict a government entity or official from sending or receiving Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

[2]Federal law also allows the Secretary of Homeland Security to enter into agreements that delegate immigration powers to local police, with the negotiated agreements between ICE and the local police being documented in some form of memorandum of agreement (MOA). 

[3]excluding Saturdays, Sundays, and holidays

[4]Senator De Leon, as noted in the Assembly Floor Analysis of SB 54 dated September 15, 2017. 

[5]In this particular situation, responses are not required, but permitted, provided they do not violate any local law or policy. 

​Prior the passage of Senate Bill 1391, the Public Safety and Rehabilitation Act of 2016, which was enacted by Proposition 57, allowed the district attorney to make a motion try a minor in the adult criminal court (1) if  the minor is alleged to have committed a felony when he or she was 16 years of age or older, or (2) in a case in which a serious offense is alleged to have been committed by a minor when he or she was 14 or 15 years of age.  This bill would repealed the authority of a district attorney to attempt to try the minor as an adult  in the latter of these two cases, unless the minor was not apprehended prior to minor’s 18thbirthday.
 
In the 1960s, the Arnold-Kennick Juvenile Court Act established 16 as the minimum age for which a minor could be transferred from juvenile court to adult criminal court. Over 30 years later, the law changed, lowering the age at which a minor could be transferred to adult criminal court from 16 to 14 years of age, in large part due to concerns of increasing crimes of violence being committed by teens. In 2000, once again citing public safety concerns, legislators passed Proposition 21, increasing sentences for specified gang-related crimes, authorizing a prosecutor to file charges against a juvenile offender directly in criminal court for specified felonies, prohibiting the sealing of juvenile records involving Welfare and Institutions Code section 707(b) offenses, and designating additional crimes as violent and serious felonies.
 
However, over the last several years there have been a series of U.S. Supreme Court cases[1]recognizing the inherent difference between juveniles and adults for purposes of sentencing.  These cases have relied on research on brain and adolescent development which suggests that juveniles have diminished culpability and greater prospects for reform.  The Supreme Court held that they have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking,. Further, they “are more vulnerable . . . to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings.[2]
 
So how does the system work in these cases? After the DA’s office makes the decision that they feel the minor should be tried as an adult, the DA is required to make a motion to have the case moved from juvenile court system to the adult criminal justice system. From there, it is ultimately the court’s (the judge’s) decision whether or not to allow the transfer.  In reaching that decision, the judge is required to consider certain factors.  
 
First, the degree of criminal sophistication exhibited by the minor.  This factor tends to hinge on the minor’s age. maturity, intellectual capacity, physical, mental and emotional health at the time he committed the crime, the minor’s impetuosity or failure to appreciate the consequences of his actions, the effects of the minor’s family environment, and whether there had been any sort of childhood trauma. Second, the circumstances and gravity of the offense. Third, whether the minor can be rehabilitated prior to the minor’s 18thbirthday, and previous attempts by the juvenile court to rehabilitate the minor.  And fourth, the minor’s prior criminal history.
 
While the passage of the bill was widely celebrated throughout the state, it was not without it’s critics who that some crime are so horrific that this change in the law does not respect victims and coddles teens who are the types of offenders who will never be reformed. 


[1]The main cases include:  Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1138, 161 L.Ed. 2d]; Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011, 176 L.Ed. 825]; J.D.B. v. North Carolina (2011) 564 U.S. 261 [131 S. Ct. 2394, 180 L.Ed. 310 ]; Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed. 2d 407].)

[2]For an opposing position see this 2015 Law Review article. 
 

​As you would expect, suffering a DUI conviction results in a myriad of punishments. Despite having to pay fines and fees in the neighborhood of $2,000-2,500 and do some mandatory jail time, for those of us here in CA who are dependent on our cars to get around, carry out our daily tasks, get to work, go to medical or dental appointments, and visit family, perhaps the harshest penalty is the mandatory suspension of our driver’s license. For a driver who suffers a standard first DUI, the DMV will suspend his or her driver’s license for 4 months. A standard second offense within 10 years will cause that same driver to lose his or her license for two years, and that driver  will be without a license for 3 years for a third offense. These penalties get harsher if the driver refused to take a breath or blood test after the arrest or was under 21 at the time of arrest.
 
However, California allows a person who has been convicted of a DUI to applyfor a restricted license, allowing them to drive (1) to and from their worksite, and driving they need to do for work, (2) a dependent child to school, (3) to necessary medical appointments, and (4) to any alcohol-education or self-help classes. A driver (in most DUIs) is allowed to apply for a restricted license after 30 days if convicted of a first offense DUI, 90 days if convicted of a second offense DUI, or 180 days if convicted of a third offense DUI. As part of the application the driver must also submit proof of enrollment in an appropriate Driving and Driving Education Program (DDP)[1], and submit proof of current financial responsibility (an SR-22 form.[2]) …And, of course, the DMV will charge a license re-issuance fee of $125. 
 
Once both the DMV-ordered and court-order suspension period has elapsed, a driver is eligible to apply for their full driving privilege back. To have a full license reinstated, the driver will need to show proof ofcompletion of the DDP class and, once again, pay a $125 reissuance fee. 
 
As the application for both of these licenses requires a driver to personally appear at a DMV office, and DMV waiting times have become exceedingly long, it is strongly suggested that drivers schedule their appointments as early on in the process as possible. 
 
Obtaining a restricted license if a complicated legal process. Obtaining an experienced attorney to guide you and ensure all your documentation is in order will ensure your driving privileges are reinstated as quickly as possible after a DUI conviction. 
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[1]  The length of the DDP program is dependent on the facts of the case. One common factor that determines the length of the program is the level of your Blood Alcohol Content (BAC). In California, these programs typically run for 3, 6, or 9 months. A second or third offense will require a driver to complete an 18-month class. 
 

[2] You can obtain an SR-22 from your current insurance carrier (if they do not cancel on you) or from a different insurance company (if you were dropped). Obtaining an SR-22 can be costly as the DUI conviction is strong evidence to the insurance carrier that you are a high-risk driver. Generally, you must maintain an SR-22 on file with the DMV for about 3 years, however, it can vary case by case.

So you got a DUI and now need to install an ignition interlock device (IID) in your car.  Here's everything you need to know:

On which cars do I need to install an IID?   
An IID needs to be installed on any car you drive or have registered to you.  If
a family member often drives a car registered to you, it may be advisable to go down to the DMV and have the title transferred to that family member so that your loved ones do not need to bear the burden of having to use an IID as well.  When the transfer is interfamily, the transfer fees can be low. 

How do I find an IID provider?  
These programs are recognized by the state:

• Lifesafer Interlock 
• Guardian Interlock
• Intoxalock Ignition Interlock 
• Low Cost Interlock
• Smart Start Interlock 
• Ignition Interlock Service Center 
• Drive Right 

How much is this going to cost?  
Costs vary by provider.  That said, installation costs usually run between $75 and $100+, (the cost can be affected by the type of car you drive; as you could expect, it's a lot easier to add technology to some cars than it is to others,) and then there are monthly monitoring fees which run anywhere from $50-100 per month.  Overall, the costs usually come down to about $3-4 a day. 

How long do I need to have the IID in the car?  
Usually the length of the IID requirement is govern by the court orders, however, as of 2019, an IID will need to be installed in your vehicle for at least 6 months after a 1st offense DUI, 1 year after a 2nd offense, and 2 years after a 3rd offense. Keep in mind, however, that having an IID installed in your car may qualify you to get a restricted license from the DMV sooner. 

How embarrassing! Ways to disguise that IID:  
There are several products on the marker to help you disguise the IID installed in your car. Check out these sites: 

• For coffee junkies. 
  

• For soda junkies. 

Is this really the law on the subject?  
Yes. If you want to read the law, see the text here. 

One of the most common and, arguably, most dangerous criminal offenses is driving under the influence of drugs or alcohol. A DUI driver poses a risk not only to themselves, but to the general public as well. Because of the possible severe consequences of a DUI, California imposes severe punishments. Here’s a quick list of tipson what to do and what not to do if arrested for a DUI.
 
Don’t:

1. DO NOT: Drink and Drive. Obviously, it is the first one. There are several ride-sharing services available that can ensure your safety and the general publics as well. Know them. Download the apps onto your phone BEFORE you go out.  Make sure your payment information within those apps is up to date. 
2. DO NOT: Refuse chemical tests. Per California Implied Consent law, when a person obtains their driver’s license, they are agreeing to submit themselves to a chemical test in advance. Refusing a chemical test carries additional punishments, such as a 1 year license suspension, and negatively affects possible defenses for the case.
3. DO NOT: Lie. When you admit to drinking one beer (in most cases a lie) it provides an officer a pre-text to ask you Field Sobriety Questions. Officer’s commonly hear “I had one beer” and instinctively know that it is false. Officer’s will also catch inconstancies in your story. So, if you can, politely refuse to answer any questions. 
4. DO NOT: Argue with the officer. These circumstances can be crucial to a defense, as an aggravated driver will definitely not have their offense mitigated down, whereas a compliant driver might. 
5. DO NOT: Forget to tell the officer of any medical conditions you may be suffering from that could impair your performance on the Field Sobriety Tests, your ability to hear the officer, or your ability to comply with any of the officer’s directions.

 
DO’s

1. DO: Have all your paperwork ready prior to the officer arriving. 
2. DO: Refuse the Preliminary Alcohol Screening Test (PAS). You are not legally required to consent to this test, so if offered, you are legally allowed to refuse to provide a breath sample. However, a breath or blood test, once you have been arrestedcannot be legally declined.
3. DO: Be polite. All facts regarding the situation are vital to potential defenses.
4. DO: Have your vehicle properly maintained. Although swerving is a common pretext for an enforcement stop, an officer pull you over if he has probable cause to believe you have violated ANY law. Although you may be driving perfectly, having a broken tail light or expired registration could potentially be the pretext for an officer to initiate an enforcement stop. An officer does not know that a person is intoxicated untilthey make contact, so don’t give them a reason to contact you.
5. DO: Contact a lawyer. From the enforcement stop, to the jail booking, each fact of your situation is important. Defending against a DUI charge is a complicated process and a conviction can carry severe punishments. Ensuring you have an experienced attorney could be the difference between an acquittal and a conviction.

It is a common misconception to group assault and battery as one in the same even though they are typically charged jointly. The California Penal Code defines “assault” and “battery” differently, making them two distinct criminal acts that require their unique set of requirements. Assault is defined under California Penal Code Section 240, whereas battery is defined under section 242.

Assault is defined under Penal Code Section 240 as, “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault seeks to protect pure psychological injuries because every person has the right to be free from apprehension of a potential injury. What does this mean? As stated in Penal Code Section 240, assault is the unlawful attemptto commit an injury. This means that no actual injury is required, rather the simple attemptto commit the injury is sufficient. For example, shouting profanities at someone does not constitute assault, as mere words are not enough. They do not create a justified apprehension of harm. However, if the words are coupled with physical actions such as balling your fists, or grabbing for a bat, then it could be deemed sufficient. It is the justifiable fear that a person can create towards another from their actions that assault seeks to protect against. 

Battery, on the other hand, is taking an assault a step further. Penal Code section 242 defines “battery” as any willful and unlawful use of force or violence upon the person of another. Battery seeks to protect the bodily integrity of the person. Unlike assault, battery requires that physical contact be made. But what type of physical contact? Typically, this refers to person-to-person contact, such as punching or pushing. However, courts over the years have expanded the meaning of physical contact. The courts have even held that making physical contact with an item that the other is holding, if in close proximity, injures their bodily integrity. Here’s an example, A slaps a plate out of B’s hand. Although A did not make physical contact with B, the plate is considered part of B’s bodily integrity because he was holding it. Another way the courts have expanded the physical contact element is by considering an alleged victim’s particular personal preferences, but only if that preference has already been articulated to the would-be batterer.  An extreme example: B is afraid of being hugged. A, knowing of this, lunges at B to hug him. Although hugging is normally a socially acceptable act, B’s prior verbal communication of his sensitivity makes it unacceptable to him. If A hugs B, A had committed a crime.
 
As always, the intricacies of assault and battery charges depend on the facts. Make sure you find an experience lawyer to assist you, as both assault and battery carry severe penalties if convicted.