​We’re hearing more and more about fights on school grounds these days, and the restrictions on what schoolchildren can and can’t do on those same school grounds seem to be getting tighter. It seems that every day school officials are announcing they are at the end of their ropes, and that the criminal justice system is getting involved.  
Years and years ago a program called Scared Straight was introduced to high schoolers, designed to show troublemakers what the inside of a jail really feels like. In the original 1978 documentary, the alleged troublemakers were taken to Rahway State Prison, where a group of inmates sought to "scare them straight" in hopes that the troublemakers would begin taking steps to avoid their own jail sentences. 
While the participants in the documentary were volunteers, recently the California courts sought to clarify whether school resource officers (usually law enforcement officers assigned to a school campus,) could arrest a student as a way of scaring straight uncooperative students. In that case, and in response to an on-going conflict a between group of students, the school’s assistant principle called a meeting with the students, and invited the school’s resource officer (a Sheriff’s deputy,) to attend. When the meeting didn’t go as planned, the deputy formed the opinion that the students were being uncooperative and disrespectful, and within “minutes” of his arrival at the meeting threatened to take all the students to jail to “prove a point.” As he continued to lecture them, he also stated that he didn’t care who was ultimately at fault. Unfortunately, his threats did not convince the students to cooperate with his inquiry so he arrested all the students for a violation of Penal Code 415- Unlawful Fighting. One student was cited and released to her father, the other six were taken to jail.  No disciplinary action was taken against the students at school, and no charges were ever filed in the court system. When the parents of a few of the student sued, our courts were asked to determine the constitutionality of the student’s arrests (a “seizure” under the US Constitution’s 4thAmendment) in this situation. 
 
As it pertains to the 4thAmendment, the US Supreme court has previously held that “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” As a result, school officials, under certain circumstances, can conduct warrantless searches of students, even where the traditional level of probable cause hasn’t been reached. In these cases, whether a search is allowable “depend[s] simply on the reasonableness, under all the circumstances, of the search.”[1]
So, in these situations, what is reasonable? …When there is a “special needs exception” to the general warrant requirement.  In making this determination, the court uses“a twofold inquiry,” which first looks to “whether the search (or seizure) was justified at its inception,” and then whether “the search (or seizure) as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” In these “special needs” situations, the “actual motivation” of law enforcement should be considered.
The court here decided that the arrest of the students was not “justified at their inception,”  because there were only vague allegations of fighting, with no information about who instigated the fights; the school resource officer clearly stated he was arresting the kids to make a point.  As a result, the court held that the student’s arrests were constitutionally unreasonable. “The arrest of a middle schooler . . . cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect.” 


[1]New Jersey v. T.L.O. (1985) 469 U.S. 325. Generally, law enforcement is held to stricter standards, but when they are on campus and acting at a school official’s request the same relaxed standards that apply to the school officials apply to law enforcement officers.

​Imagine being at home when the police show up to execute a search warrant for your home, looking for documents, computer records, and electronic information storage devices.  …And you’ve got to use the restroom.  Should a same-gender officer be able to insist on coming into the bathroom with you to watch you relieve yourself, all under the guise of ensuring you don’t destroy or hide evidence while you’re in there? Thankfully, the court said no. 
In Ioane v. Hodges[1],the IRS suspected Mr. Ioane criminal fraud. The IRS sought, and was granted, a search warrant, allowing them to access the Ioane home, looking for documents, computer records, and electronic information storage devices that could be evidence of that fraud. The Ioanes were told then were free to leave, but would not be allowed back into the house if they chose to leave. So they stayed, waiting patiently in the kitchen.  At some point during the search, Mrs. Ioane informed the Agents that she needed to use the bathroom. A female agent accompanied her to the bathroom, told Mrs. Ioane to remove her clothing, and then told Mrs. Ioane to hold up her dress while she relieved herself. Feeling rightfully violated, Mrs. Ioane filed suit in federal court under 42 U.S.C. § 1983. 
First, the court decided that Mrs. Ioane was able to file suit as the female officer was not entitled to qualified immunity from civil liability, after balancing Mrs. Ioane’s right “to hold public officials accountable when they exercise power irresponsibly” with the government’s “need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Generally, the law defaults to finding that the government is entitled to qualified immunity unless the facts demonstrate that the officer’s conduct violated a constitutional right, andthe right was clearly established at the time of the asserted violation. Because this case revolved around the 4thAmendment, and the 4thAmendment always begs in inquiry into the reasonableness of the government’s actions, the court was, in short, asking if the female agent’s demand to actually watch Mrs. Ioane relieve herself was reasonable under the circumstances of that case, specially looking at “(1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted.”
So let’s walk through each of these factors.  First, as us reasonable minds would expect, the court had no trouble announcing that it isa violation of one’s right to bodily privacy to require that person to expose him- or herself to an officer. Because the Court logically reasoned that the “naked body” is the most “basic subject of privacy,” it found that “the scope of the intrusion into [the wife’s] bodily privacy here was significant.” Second, the court found it was important that Mrs. Ioane was not detainedat the time of this intrusion, and thus was entitled to more freedom from the scrutiny of the agent. This was especially so as there was no reason to believe that Mrs. Ioane was in possession of any weapons or evidence at the time she requested to use the bathroom. Lastly, it was noted this intrusion occurred in the Ioane home, and a person’s home has always been held to be a place in which we can expect to heightened level, of privacy. 
Thus, the court held that forcing a person who has not been detained to expose him- or herself to a law enforcement officer, is a Fourth Amendment violation unless the officer has reasonable articulable suspicion that the person be armed, or probable cause to believe he or she is secreting evidence.


[1](9th Cir. Sept. 10, 2018) 903 F.3rd929.

​Let’s say you’re a passenger in your friend’s car when your friend gets pulled over for speeding. Assuming the police have no reason to believeyou’vedone anything illegal, can the officer demand youridentification? Nope!
In United States v. Landeros[1], the court heard the case of a defendant who was told he was required to give the officer his ID under circumstances similar to those above.  In that particular case, the officer felt his demand was justified as he felt it was “standard for (law enforcement) to identify everybody in the vehicle.” When the defendant refused twice, the officer called in backup, told the passenger he was not being “compliant,” and ordered the passenger to get out of the car. After his exit from the car, unfortunately, the police found evidence which led them to believe that the passenger had, indeed, violated the law. 
The 9thCircuit heard the case, and began its analysis stating the well-settled rule that “[a]n officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”[2]An officer canask about other unrelated criminal activity during the traffic stop, but should confine these unrelated inquiries to within the time it takes to accomplish their original task: addressing the potential traffic violation and whether the driver is licensed and insurance, whether the vehicle is properly registered. Anything the officer does that exceeds the time it would have taken to accomplish those tasks is likely to be held to be illegal. And as we have discussed hon this blog before, any evidence unearthed during an “unlawfully prolonged traffic stop” is subject to suppression. The court, therefore, determined that the officer was NOT acting within the confines of the law when he extended the traffic stop by asking for the passenger’s ID, and even went so far as to state that the passenger’s refusal did NOT “provide[]reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders,” (which is a violation of Arizona law, where this case took place.) 
To be clear, a person is not required to identify him- or herself to law enforcement unless law enforcement has a reasonable suspicion the person is involved in criminal activity.[3]


[1](9th Cir. Jan. 11, 2019) 913 F.3rd862

[2]Rodriguez v. United States (2015) [135 S.Ct.1609]

[3]See Kolender v. Lawson (1983) 461 U.S. 352.

​If you post a video to a social media website like Facebook, but are careful to only share the video with your “friends” have you waived your expectation of privacy with regards to that video?  The CA Appeals court says yes, even ifthe posting is automatically deleted within a certain time frame, and even ifit was shared with a small group of friends, one of whom shares it with others or was undercover police officer who had been posing as a “friend.”  
In People v. Pride[1]the court heard a case which arose after a man had been mugged, and the attacker posted a video, shortly thereafter, of him wearing a gold chain stolen from the victim, and bragging about his new acquisition. Unfortunately for the defendant, an undercover police officer had infiltrated his “friend” group on social media, and saw the video. As they tend to do, the police officer preserved a copy of the video, and the prosecution used the video against the defendant during his criminal case. 
The defendant objected to the admission of the video on several grounds, first that the police violated his Fourth Amendment rights when they accessed his social media account under false pretenses: namely that the officer was pretending to be a friend when he was not. The defendant argued that social media was intended for private messages and thus he retained some expectation of privacy in the posting.  Further, his expectation of privacy should also have been protected as the message was set to be automatically deleted once all the intended recipients of the video had watched it. The court noted that the inquiry into whether one’s expectation of privacy had been violated turns first upon whether the privacy right claimed by the defendant is one that “society is prepared to recognize as reasonable.” From there, the Fourth Amendment requires that a warrant, supported by probable cause, be obtained, absent certain extenuating circumstances. 
While other states have discussed this issue, this case represents the first time a California court has sought to determine if California society “is prepared to recognize as reasonable” a privacy right which would prevent law enforcement from posing as a “false friend” to seek out incriminating information. Like the others states which have addressed this issue, California decided that the answer is no.  The court references the Delaware Supreme Court, noting “[T]he Fourth Amendment does not guard against the risk that the person from whom one accepts a ‘friend request’ and to whom one voluntary (sic) disclosed such information might turn out to be an undercover officer or a ‘false friend.’ One cannot reasonably believe that such ‘false friends’ will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.” In short, a person’s legitimate expectation of privacy ends when he shares posts with ‘friends’ because those ‘friends’ are always free to use the information however they see fit.
Of note, the court also addressed the defendant’s assertion that the California Electronic Communications Privacy Act[1](which limits the government’s access to electronic communication information from a certain service providers,) prevented the prosecution’s use of the video. Citing that Act directly, the court noted the Act “…does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.” 
So what lessons can we take from this case? First, don’t accept “friend” requests from people you don’t know.  Second, don’t post anything to any social media sites you wouldn’t send directly to the police themselves. 


[1]P.C. §§ 1546 et seq.

[1] (Jan 10, 2019) 31 Cal.App.5th 133

...At least in the 6th Federal Circuit.  ...For now. 

For the full story, see here.

For an interesting take on why SCOTUS may overturn the decision, see here. 

We’ve seen it used a million times on TV, but in the real world successfully asserting an insanity defense[1]is rare and difficult.[2]
 
When the court looks to whether a person in “insane” for the purposes of a criminal matter, it uses what we call the M’Naghten rule.  In order to be insane, the defendant must no—at the time of the offense—have been able to either understand the nature and quality of his or her act or must not have been able to distinguish between right and wrong.[3]  For example, a person could be held to be insane, and would have a defense to animal abuse charges, if they heard imaginary voices, telling them that the world was going to end shortly unless the defendant sacrifices a goat to the God Anived, so the defendant does, indeed sacrifice the goat. However, if a defendant who suffers from depression or anxiety, and only felt relief when she was hitting her boyfriend would not be able to successfully use the defense, even though the anxiety or depression caused her not to care about the possible consequences of hurting the young man. 
 
Because insanity is a legal defense, it is the defendant, not the government, that bears the burden of proving by a preponderance of the evidence[4]this aspect of a case. At trial, the two issues (first, whether the defendant did the act for which they are being accused, and then second, if they were insane when they committee the act) are heard separately.[5]The issue of guilt is heard first, with this portion of the case being just like what you see on TV: the various witnesses to the crime testify about the evidence. Then, if the jury finds the defendant guilty, the jury decides the issue of sanity. During this portion of the case, usually the only witnesses are qualified medical professionals. 
 
However, a lot of people do not realize that a defendant whois held to be insanedoes not get a free pass; they are ordered to be committed to a state hospital for treatment, not only to try to rehabilitate the defendant, but also to protect society.[6]A defendant can be held in that mental facility until one of three things happen: (1) doctors believe that the defendant has regained sanity, (2) the maximum term of imprisonment for that crime has expired[7], or (3) the doctors feel that the defendant would be successfully in addressing the underlying issue via outpatient treatment program. 
 _______________
 
[1]Found in Penal Code § 25

[2]Recent statistics claim that only 1% of all defendants assert the defense. 

[3]In the 90s, the legislature amended the law to prevent the court from finding a criminal defendant insane based solely on the basis of  a seizure disorder, a personality or adjustment disorder, or addiction to/abuse of an intoxicating substance.

[4]More likely than not. 

[5]Of course, a defendant can enter a plea of “guilty by reason of insanity,” in which they admit they did the bad thing they are accused of, but claim the defendant should not be held accountable due to the defense of insanity. 

[6]People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485.

[7]That said, a defendant may be further confined, if the person still has a diagnosed mental disease or disorder and is a substantial danger of physical harm to others.
 

Law enforcement is legally allowed to pull you over if they see that you are violating even the most insignificant of laws, even if that minor law violation is merely a pretext for investigating a hunchthat the driver has done something else more sinister. Because of this, it is not uncommon for a DUI driver to have originally been stopped for something trivial like having a taillight out, having something hanging from the rearview mirror, or, as relevant to this blog post, a license plate violation.
 
California law requires that you have both a front and rear license plate on your car, and that that license plate be “securely fastened to the vehicle . . .as to prevent the plates from swinging,” “mounted in a position so as to be clearly visible, and so that the characters are upright and display from left to right,[1]and shall be maintained in a condition so as to be clearly legible.”[2] Further, the license plate can only be covered by (1) a security cover—as long as that security cover does not obstruct any portion of the license plate numbering, or the registration stickers—or (2) a car cover on a parked car, used to protect the vehicle from the weather.
 
Now, speaking of those registration stickers… they need to be attached to the license plate properly, in the correct location: with the “month” sticker on the left, and the “year” sticker on the right.  Should you accidently put the stickers on the wrong side of the plate, (I’ll be honest: I’ve done it!) you’ll need to take extra care in remedying the problem as they stickers have been designed to be especially difficult to remove so that thieves cannot steal a person’s valid registration sticker and put it on their own, non-registered vehicle. Should you try to just peel the incorrect sticker off, don’t be surprised if the sticker rips apart, making itself perfectly unusable.  Should this happen to you, the easiest thing to do it to just order new stickers from the DMV. 
 
Lastly, starting this year[3], when a car dealer sells a car, the dealer will be required to give you temporary license plates, and it is required that you keep both of those license plates on the vehicle until the permanent plates arrive.[4] These temporary license plates must include a plate number, what the DMV calls a “report of sale number,” the Vehicle Identification Number, Year, Model and Make of the vehicle, and an expiration date that is 90 days after the date of sale. As of the time of writing this post, it is expected that each of these valid temporary license plates will include security features, helping to thwart theft of the plates.  
 
In today’s world, when we’re all so busy with the things that “really” matter in life, it’s easy to become complacent about the little things that are wrong with our cars, but ignoring these little things is practically inviting a bored police officer to  run your plate or pull you over, all in the name of simply “doing his or her job.” 
__________________

[1]So don’t be funny and put your license plate on upside down. 

[2]Cal. Vehicle Code 5201.

[3]As the result of the passage of Assembly Bill 516. 
 
[4]If you lose one or both of the temporary plates, you’ll need to go back to the dealerfor replacements. 

One of the scariest parts of any criminal action is the fear surrounding what the potential punishment may be.  Every defendant knows that their crime is often different from a crime committed by someone else, even if the two defendant's actual records reflect the same conviction.  There could have been mitigating circumstances! There could have been life circumstances which may sway a judge to give them a lesser sentence!  The Defendant could have been coerced into committing the crime! Thankfully, California is well aware of all of these possibilities and seeks to have every sentence reflect the seriousness of the particular offense. 

In California, the law requires the preparation of a "probation report" in all cases in which a felony conviction is obtained. This report is prepared by the Probation office after an interview with the defendant, at which time the defendant can do a little more explaining. A defendant him- or herself, often through his or her attorney, can also prepare a "statement in mitigation," which is a more in-depth analysis of all of the relevant factors they hope the judge considers before handing down a sentence. The court should use this Presentencing Report and the Statement in Mitigation in determining the appropriate length of a prison sentence and in deciding whether probation is appropriate. The report can be helpful as it should contain factual findings by the probation officer including, but not limited to, the facts and circumstances of defendant’s crime, recommendations as to a grant of probation and its terms, and any other sentencing recommendations. 

​To help both probation and the defense focus their arguments, California Rule of Court 4.410(a) outlines list of general objectives for sentencing in California:  protecting society, punishing the defendant, encouraging the defendant to lead a law abiding life in the future and deterring him or her from future offenses, deterring others from criminal conduct by demonstrating its consequences, preventing the defendant from committing new crimes by isolating him for a period of incarceration, securing restitution for the victims of the crime, and achieving uniformity in sentencing. Subsection (b) of that same rule provides that “Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case.” Also, California Rules of Court, Rule 4.414 lists several criteria the court can look to when deciding whether to grant probation.  These criteria include facts related to the crime, and facts related to the defendant.

So which factors matter enough to have been expectedly listed in the law? 

Factors relating to the crime include that:

1. The defendant was a passive participant or played a minor role in the crime;
2. The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
3. The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
4. The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;
5. The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
6. The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;
7. The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;
8. The defendant was motivated by a desire to provide necessities for his or her family or self; and
9. The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense

 
Factors relating to the defendant include that:

1. The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
2. The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
3. The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
4. The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
5. The defendant made restitution to the victim; and
6. The defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was satisfactory.

If you would like to speak to an attorney ready, willing and able to help you put the best possible spin on your case, get ahold of Devina Douglas.

One of the first thoughts that run through an arrestee's mind after landing in jail is quite simply "how fast can I get out?"  Usually, the fastest way out is to post bail: your promise, secured by money, that you will appear at the upcoming court dates. 

The Constitution guarantees a person the right to jail in almost all circumstances,[1] and a person's bail is often set by a schedule, a set of guidelines adopted by the government that establish uniform guidelines correlating each crime to a dollar amount of bail.  We have bail schedules to try to ensure the defendants who commit the same crime are held on the same bail throughout the state. But both the prosecution and the defense can request deviations from bail.  When deviating, the court often looks to these factors:

1. The seriousness crime. For example, if  Person A was arrested for Hit and Run after dinging someone's bumper in parking lot and not leaving a note, their attorney might argue their crime is far less serious that Person B who was also arrested for Hit and Run after sideswiping a car on the freeway, as they did 90 mph, thus their bail should be lower.
2. The chances they'll show up to all their court appearances. For example, Person A will likely have a lower bail if they've been involved in the justice system before and has a perfect track record for attending court than Person B who has the same type of criminal history, but has missed several court dates previously, even if Person B still ultimately returned to court. Also considered is the person's flight risk: even if the charges are serious, a person with ties to the area (family here, a job here, has lived in the area for a long time, etc.) stands a better chance of getting a lower bail. 
3. The risk to public safety. This one should be pretty obvious.  

If you are in custody, and want to speak to a criminal defense attorney, give Devina a call. 

________
[1]The exceptions her in California being Capital (a) crimes when the facts are evident or the presumption great, (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others;  or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. The purpose of the exception to the right to bail for capital defendants is to protect the public from those who commit intensely serious crimes. ​
 

​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. 
_____

[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.