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.

As the summer reaches its peak, many drivers are utilizing any available means to stay cool and out of the sun. One of the most common efforts in doing so involves window tinting. Window tinting is utilized for various different reasons, for example: added privacy, prevent damage to the interior of the vehicle, or—as tinting film can reflect incoming light and therefore reduce the glare and heat inside the car—to keep cool.  Although many Californians have their windows tinted, window tinting has always been heavily regulated by law enforcement and can be used a means for initiating a traffic stop. In fact, in 2015, the California Highway Patrol reported a total of nearly 2000,000 tickets issued to drivers for violating California window tint law between January 2015 and August 2017!

Vehicle Code §26708 generally prohibits drivers from placing any material that may reduce or obstruct their view through the windshield. (Ironically, it seems Californians are constantly encouraged to do the complete opposite. Parking permits are a great example. Whether instructed to be placed on the windshield or hung on the rear-view mirror, based on the language of the law, doing so could be construed as a violation.) Also, other regulations address the darkness and location of the tint. For example, despite there being no current limitations on the darkness of rear windows, the front side windows must allow more than 70% of light to pass through into the inside the car, and a car can only have non-reflective tint on the top four inches of the windshield.[1]  

Through the passage of AB  1303, California created a small but important exemption to the window shield tint and object placement prohibition; Californians who obtain a signed certificate by a dermatologist indicating the driver has a sensitivity to UV rays[2]can now tint their windshields. It is important to keep in mind, however, that those utilizing this exemption can still expect to have interactions with law enforcement stemming from their use of tint as officers can still use a perceived violation of the tinting laws as probable cause to initiate a traffic stop.  …And once an officer has probable cause to pull you over, his observations while conducting that routine traffic stop are all fair game.
 
So if you are one of the drivers for whom window tint is medically recommended, by all means take advantage of the new exemption created by AB 1303. But remember, this could potentially result in an increased likelihood of interactions with law enforcement so make sure your other documentation such as license, insurance, and registration are all up to date!
 ___________
[1]Also of note, (1) a driver is required to have dual side mirrors if the rear window of the car is tinted, and (2) a driver cannot use red, amber or blue tint on any window.
[2]For example if the driver has either Lupus or xeroderma pigmentosum

​The California legislature continues its pursuit towards safer roads and its never-ending battle against driving under the influence. Ride-sharing companies such as Uber and Lyft once seen as a tool to combat drunk driving, have lessened the frequency of such criminality, but the cost of a ride can still serve as a disincentive for drinkers to request a ride-share.
 
Prior to the passage of AB 711 this year, alcohol manufacturers were limited to whom they could offer discounted rides(event invite-only guests). However, California sought to change this. AB 711 seems like a win-win proposition that benefits both the manufacturers and the public. Manufacturers can use these rides as marketing tools while the drinking public benefits from free rides and the general public can rest assured that there are potentially less drunk drivers on the road. Manufacturers can now offer discounted–or even free–rides, which many of us would prefer over the typical fare the manufacturers usually try to bribe us with: koozie or bottle openers. From the potential rider’s consumer point, perhaps the best part about AB 711 is that these free or discounted rides cannot be conditioned on the purchase of the manufacturer’s goods.
 
Surprisingly, it took six yearsafter the introduction of companies like Uber and Lyft to the general public for this law to be implemented, allowing California to join the vast majority of states in which this type of “advertising under guise of drunk driving prevention” is legal. So why did it take CA so long to implement AB 711? After all, AB 711 on its face seems like a great idea, eliminating those high costs of the ride that can sometimes discourage a person from requesting a Lyft or Uber, andallowing businesses to advertise through the offering of discounted or complimentary rides. Perhaps the delay in enacting such a law was the result of the many critics who opposes bills such as this one. One critic, Reverend James Butler. the executive director of the California Council on Alcohol Problems, was public in his criticism, positing that “[i]f they get free transportation, maybe instead of two beers they have six.” Further, it’s feared by critics that free transportation incentivizes people to drink morethan they would normally drink. Alcohol Justice, a San Rafael-based nonprofit, opposed the bill as they believe it would promote the “overconsumption of alcohol” and “[i]f AB 711 is passed and signed into law it will negatively impact public health and safety and increase the potential of alcohol-related problems,” such as potentially increasing the occurrence of other offenses that typically involve alcohol such as fights, being drunk in public, incidents of domestic violence, or resisting arrest. 
 
So next time you are out in the town, check to see if the establishment you are in offers the services AB 711 seeks to provide, but if they don’t, make sure to request a ride from a sober driver, or one of the various ride services out there such as Uber, Lyft, or taxis. Remember that although that $20 ride may seem expensive at the time, it is nothing compared to the cost of litigating a DUI charge.

So many times my clients ask me if having a friend, family or community member write a letter on their behalf will help their case.  Sometimes it will, sometimes it won't.  ...But in those cases where a defendant could really benefit from having the DA (while we're in plea bargain negotiations,) or the judge get a glimpse into who "they really are," there are a few things the writer can do to ensure that their letter of support is as effective as possible. 

First, understand why the letter matters. Your defense attorney is hoping to use the reference letter demonstrate that their client is a respectful person who leads a full life outside the criminal justice system. The purpose of this letter is NOT to argue that the defendant is innocent. ​

•  EXAMPLE: ​I know Alyssa has pled guilty to being drunk in public. I am writing to offer a glimpse of who she is, and that is someone who is far more than the offense she pled to. 

Second, give the reader a reason to believe that the writer actually does know the defendant is a person worthy of leniency. To do this, the writer needs to explain how he or she knows the defendant, including the context and length of their relationship, and that the writer knows the extent of the legal woes the defendant is facing. 

• EXAMPLE: I have known Alyssa for 22 years, and we met when we were freshman in our college dorm. She and her lawyers have explained to me that she faces up to a year in jail, however I hope to show you she is deserving of a much lower sentence. 

Third, don't just tell the reader that the defendant really is a good person, show them.  Give specific examples of things the defendant has done that prove to you that the defendant is a worthy person. tell a story.

• EXAMPLE: Shortly after we moved into the dorms at Cal Poly, Alyssa told me that she had noticed that one of our dormmates, Nancy, never seemed to have anyone to eat with in the dining hall.  Although we had met this girl in the weeks before and at that time Nancy hadn't stood out as a person who we would really be friends with (she was too introverted and bookish,) Alyssa urged me to reach out to Nancy, and asked me if it would be okay if we invited Nancy to eat with us the next day. Nancy was hesitant to accept at first, but Alyssa kept asking Nancy questions to try to get her to open up to us. Alyssa also told Nancy about her own personal struggles at making friends and adoption to college life, hoping to make Nancy feel more comfortable.  We learned so much about Nancy that day she soon became one of our best friends. 

Fourth, provide a way for the reader to reach out to the writer, if need be.  Although the reader will seldom ever follow up, by providing a full name, and phone number or email address, the writer is not only demonstrating that their commitment to the defendant goes beyond writing a quick letter, it also sends the message that the writer is who they say they are. 

Fifth, in almost all cases, keep the letter to less than one page.  Judges and DA's are busy people and they may not take the time to read or really consider the contents of a longer letter.  Further, by keeping the letter short, it will help the writer keep their focus concise. 

Sixth, close the letter by thanking the reader for their time. 

The following story was cut and pasted from Attorney John T. Floyd's website:

"On the first day of the trial, Judge Gallagher asked [Defendant Terry Lee] Morris to enter a plea, but Morris wanted to make a defense first. Gallagher warned Morris that he would be removed or shocked if he didn’t comply. 
When Morris continued to ignore the warning, Gallagher ordered the bailiff to shock him. After the first shock, Morris said he had a history of mental disorders when Gallagher asked if he would cooperate with the proceedings. The judge then ordered ta second shock.
​After the second shock, Morris said he was being tortured. Judge Gallagher responded to this charge by ordering a third shock. At that point, Morris was taken from the courtroom. A conviction and sentence was handed down without his presence.  
According to the ruling by the Texas Court of Appeals, shocks of 50,000 volts can impair a defendant’s cognitive abilities. The court ruled that Morris was shocked for punishment, not as a method of containment, which was a violation of his rights. The Court had no choice but to overturn the conviction. 
​For anyone who cares about rights and freedoms, this is a great thing. No one should have to be subjected to what is essentially torture – especially when they have not even been proven guilty of the crime they’ve been accused of. What does this mean for Mr. Morris? Well, he’s currently serving time in a Huntsville facility for a 1992 conviction for causing a child to experience bodily injury. On top of that, he will be retried for his 2014 charge."

Misconception #1: You can't be charged with a DUI if you haven’t had anything to drink
When most of us think of about being "DUI," we think of alcohol. However, it is also a crime to drive a vehicle under the influence of any drug (be it illegal, prescription, over-the-counter or a combination of prescription and illicit drugs,) that impairs your ability to safety operate that vehicle. it’s also a crime to drive a vehicle when you are not normal, mentally or physically, due to drugs in your system, regardless of whether they are .

Misconception #2: If you're under the influence of alcohol, you can avoid getting a DUI by riding your bike ...or a horse ...or a golf cart ...or a boat
California punishes the act of being under the influence while operating any of those modes of transport.

Misconception #3: You can just "feel" whether you're over the legal limit or not
I hear this one all the time from clients: "I thought I was okay to drive."  The reality is that the studies have shown that we are all poor judges of our own level of intoxication. While you may have a good tolerance for alcohol, meaning that your performance may not be as affected as a person with a lower tolerance, you can still be prosecuted for a DUI based on your blood alcohol level.
​
Misconception #4:  You have to take the Field Sobriety Tests (FSTs)
The law does not require you to take these tests, and in fact, most attorneys will tell their clients NOT to take them. Why? Because the tests can be difficult for ever a sober person to perform, and when you're under the added stress of being stopped by law enforcement, the chances of doing well is small.  These FSTs include taking a breath test before you are placed under arrest.  That said, here in California, must take a chemical test after arrest or your driver's line will be suspended for a year. 

Misconception #5: (On that same note) you have to answer the officers questions
With the exception of identifying yourself, and providing your license, registration and proof of insurance, you do NOT have to answer any of the officer's questions.  Why? Because you have the right against self-incrimination. So what should you say then? Any of the following will work:

•  “I am not going to answer any questions without first speaking to an attorney.”
•  “I respectfully decline to answer you questions."
•  “My friend/family member/attorney/priest/rabbi/voice in my head told me I should not answer any questions.”

Misconception #6: If you refuse to give a chemical sample, the police will not be able to determine what your BAC is, and therefore you cannot be convicted of a DUI
While you have the right to refuse to give a chemical sample (but be forewarned, the DMV will suspend your license for a year if you had been lawfully arrested at the time of your refusal,) if you are arrested for a DUI the police can and will apply for a warrant to take your blood.  If they can make a case to the judge on-call that there is probable cause to suspect you of a DUI, the judge will grant the warrant, and your blood will be (forcibly, if need be,) collected. 

Misconception #7: A driver has no way to check the validity of the test results
If you are arrested for a DUI, you will have the choice between a breath or blood sample, and the officer is required to inform you that if you choose the breath test, a sample of your breath will not be preserved for retesting. However, if you choose to have a blood test, your attorney can arrange to have the blood retested. Your attorney can also request the accuracy and maintenance records of whatever device tested your breath/blood so that we can make sure the testing device was working properly. 

Misconception #8: Because the officer didn't read you your Miranda rights, you can't be arrested
The Miranda decision only protects defendants from their post-arrest statements being used against them.  Two conclusions can be drawn from this. First, Miranda is not required to be read when you are simply pulled over and the officer is conducting his investigation. Second, as long as there is other evidence of your DUI offense (bad driving, chemical test results, FST results, etc.) you can be successfully prosecuted for a DUI.

Misconception #9: Your driver's license will not be suspended until after you've been convicted
In California, you have only 10 days after an arrest for a DUI to notify he DMV that you want a hearing to determine if the DMV can suspend your license; if you fail to contact them before that deadline, the DMV will suspend your license automatically. Worse, if you are later convicted of the DUI, the court will restart the suspension period. 

Misconception #10: If you are ordered to install an Ignition Interlock Device (IID) on your vehicle after a DUI, you can get around this requirement by driving someone else's car. 
In California, if you are ordered to install and maintain an IID, you cannot operate ANY vehicle that does not have one. 

Prior to 2015 those seeking to protect young, abused children often ran into trouble proving the case when the only witness to the abuse was the child him or herself.  They we got Ohio v. Clark. [1]  In 2010, Darius Clark was convicted of felonious assault and child endangering for abusing a three-year-old boy, his girlfriend’s son. Because the boy was deemed “incompetent” to testify due to his very young age, prosecutors called the boy’s Head Start Program teacher to testify, to provide information as to who had caused the bruises and the swelling on the boy’s face one day.  The teacher stated that when the boy was asked who had hurt him, the boy stated it was Clark.
This case reached the U.S. Supreme Court because Clark claimed that the trial court made an error in allowing the teacher to provide that testimony.  It was an error, he believes, because it denied him his 6th Amendment right to confront his accuser, the young boy.  As a result, the court had to decide whether “out-of-court statements that children make to their teachers about abuse can be used as evidence if a child is unable to testify in person.”
Previously, the court had held that such statements, if made to law enforcement officers, would be hearsay, and thus would not be admissible. Because teachers are legally required to report suspected child abuse to law enforcement, Clark’s attorneys argued that “teachers are in the same position as law enforcement officials when they question children” in these situations. The Ohio state Appeals Court and the Ohio Supreme Court agreed, overturning his conviction. 
In response, the lawyers representing Ohio asserted that the right to confront accusers applies only if (1) it is a government official or one of their agents talking to the child, and (2) the official or agent is talking to the child in preparation for a criminal prosecution.  Where teachers are talking to students, he posited, “it's simply a conversation between a teacher and student;” such conversations are to “protect children from immediate harm and remove them from danger, not to compile evidence for a criminal prosecution.” This is an opinion shared by forty-two other states, citing concerns that to rule otherwise would shield abusers from prosecution. 
SCOTUS held that such statements from a child to their teacher were non-testimonial, and thus their use did not violate the confrontation clause.  This was so because the totality of the circumstances indicated that the main purpose of the conversation was to respond to the “emergency situation” presented to the teacher when a potentially abused child may be sent home to their abusive parents/guardians, not to create an out-of-court substitute for trial testimony. Further, the court stated that as children are relatively unfamiliar with the way our court systems worked, it was improbable that the child thought they were speaking for the purpose of creating evidence.[2]


[1] Ohio v. Clark, 576 U.S. ___(2015).

[2] This argument has faced challenges from legal scholars who note that “ not one state court has previously made a child’s intent or purpose (or lack thereof) the linchpin of a decision.” (See Ohio v. Clark, Response by Professor Joan S. Meier, The George Washington Law Review at https://www.gwlr.org/ohio-v-clark/) 

While most states don’t take such a hard line, California law[1], unfortunately requires doctors to report a patient’s lapse of consciousness to the State Department of Health, which then reports it to the DMV. Under the State’s regulatory framework, which aims to ensure the safety of the public, the DMV is authorized to suspend the driver's driving privilege after receiving such a notification.[2] …And it can be any lapse of consciousness that triggers a suspension; the DMV is authorized to suspend a license for any reason from the patient suffering a seizure all the way down to a person bumping their head, or passing out as a result of being under the influence of a drug.  While the DMV generally does not fully suspend a license of driver’s[3] who have (1) just suffered their first lapse of consciousness, (2) have only nocturnal seizures only, or (3) seizures caused by a physician-directed medication change, the DMV retains wide discretion to ensure the driver poses little risk to themselves or others on the road when they are behind the wheel.
Vehicle Code section 12806c, states "The department may refuse to issue to, or renew a driver's license of, any person who has a disorder characterized by lapses of consciousness or who has experienced, within the last three years, either a lapse of consciousness or an episode of marked confusion caused by any condition which may bring about recurrent lapses." When determining whether to place any type of restrictions—right up to a full-blown suspension—on a driver’s driving privilege the DMV usually looks to: (1) Type & frequency of any lapses of consciousness. (2) the reliability of "warning" signals a driver may get in advance of recurring lapses of consciousness, (3) the length of time which has elapsed since the last lapse of consciousness., (4) whether the driver is complying with their medication schedule, and (5) the driver’s driving history.
However, all hope is not lost for drivers who have been issued an order of suspension or revocation.  If they request a hearing within 10 days of receiving any such orders, the driver is entitled to a hearing. At that hearing, the driver (or their attorney, of course,) can present evidence which demonstrates that the driver does not pose a risk to the safety of other drivers on the road. What the DMV should be looking to assess is whether the driver (1) is afflicted with “a disorder characterized by lapses of consciousness,” (2) experienced, within the last three years, either a lapse of consciousness or an episode of marked confusion caused by any condition which may bring about recurrent lapses, or (3) has any other physical or mental disability, disease, or disorder which could affect the safe operation of a motor vehicle.   What this means is that even if there is a determination that the driver has a disorder or disease which could cause lapses of consciousness, the burden is on the DMV to demonstrate that the condition currently affects his or her ability to drive safely. Further, there must be a direct connection between the condition and the driver’s ability to safely operate a car.
Perhaps the strongest piece of evidence a driver (or their attorney,) can use to prove that the driver should have their license privilege reinstated is a medical evaluation, which is often documented using the DMV’s form DS 326. The information a doctor would present in that form is comprehensive and directly tailored towards helping the DMV hearing officer understand the nature of the issue which caused the lapse of consciousness. 
Upon receiving a ruling from the initial hearing officer, a driver is entitled to a DMV review of the decision, but it needs to be noted that that departmental review is limited to a review of the hearing report and any other evidence presented at that hearing, and the driver is not allowed to introduce any new evidence. The driver can also request a court review of the matter through a process known as filing a writ of mandamus, but that review is also narrow in scope, looking only to whether the DMV abused its discretion in suspending the license.
If your license has been suspended for medical reasons and you wish to contest the suspension, Devina Douglas would be happy to assist you.


[1] Per Health & Safety Code 103900  

[2] Other reasons for suspending a driver’s license include:

• The driver being “involved as a driver in any accident causing death or personal injury or serious damage to property”
• The driver being “involved in three or more accidents within a period of 12 consecutive months.”
• The driver in three consecutive years having “committed three or more offenses which have resulted in convictions involving the consumption of an alcoholic beverage or drug, or both, while operating a” vehicle
• The driver being “a reckless, negligent, or incompetent driver of a motor vehicle.”
• The driver having “permitted an unlawful or fraudulent use of his driver’s license.”
• Any other ground for which a license might be refused, including the driver having been convicted of a crime involving the “use or possession of narcotic controlled substances”.

(Per Vehicle Code section 14100.)

[3] And instead, just place the driver on medical probation.

​Should the police be allowed to take DNA samples from people they arrest on charges related to serious crimes, even if there are no plans to prosecute the arrestee for the offenses? While many of us would like to think not, the U.S. Supreme Court, in a 5-4 decision in Maryland v. King, said they could.[1]
Ginsberg, Sonia Sotomayor and Elena Kagan in the minority.
Before reaching the US Supreme Court, the Maryland Court of Appeals had held that the DNA sample from the Defendant was unlawful. His DNA had been taken after his 2009 arrest on assault charges, and the helped to link him to an old rape case, and he was subsequently convicted of the rape.  
Sustaining the conviction, the US Supreme Court the majority asserted that the collection of DNA samples is merely the 21st-century equivalent of collecting fingerprints.  “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Kennedy wrote.  “There can be little reason to question ‘the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.’ . . . In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.” 
 
That said, however, the court made sure to note that the need for identification alone is not enough to justify a search.
 
As could be expected, not all the justices agreed that the need for identification outweighed the privacy interests at stake, fearing that the court’s ruling could open up the possibility of DNA swabs being collected by law enforcement after making any kind of arrest.  The “judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection,” Scalia wrote. “I, therefore, dissent and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.”


[1] Justice Anthony Kennedy, writing for the majority, was joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer and Samuel Alito. Justice Antonin Scalia, who wrote the dissenting opinion, was joined Justices Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan in the minority.
 

This chart can be helpful in estimating what your BAC would be after a given number of drinks.  

​But it is important to remember that one "drink" according to this chart is either (1) 12 oz of a 5% beer (most of the popular microbrews these days have alcohol concentrations much higher than 5%,) (2) a 1.5 ounce shot of an 80 proof liquor, or (3) 5 ounces of wine.

Alcohol is perhaps one of the most widely-used, and most openly-accepted drugs in our society. But as soon as you couple drinking with getting behind the wheel of any sort of motor vehicle, California’s acceptance of a person’s drinking will come to a quick end, as anyone who has ever been charged with a DUI can tell you. 

So how do you go about fighting a charge of Driving Under the Influence (DUI)? The first thing you need to know is that you'll actually have two fights in front of you: first, with the Department of Motor Vehicles (DMV) and, secondly, with the Criminal Justice System. 

As any lawyer worth their bar card will tell you, addressing the battle with the DMV should be your first concern. This is because the DMV can, and almost always will, suspend your driver's license for six months unless you contact them within 10 days of your arrest to request a hearing.  (It is important to keep in mind that the term "arrest" doesn't only mean being taken into custody, it also includes the act of the police giving you a citation for driving under the influence.) The DMV has this power to suspend your driver's license because of what's known as the implied consent law, which, in short, means that in exchange for being allowed to drive on the roads of the state, you agree to obey all the state’s traffic laws, including the law which prohibits a driver from driving with a Blood Alcohol Concentration (BAC) of 0.08% or more.  If you fail to obey this law, the DMV can suspend your license.  Or, if you fail to give a chemical sample after being suspected of being a DUI driver, the DMV can suspend your license. 

At the DMV hearing (called an "Administrative Per Se" or "APS" hearing), the DMV has the burden of proof to prove three elements are met.  First, you were lawfully arrested. Second, you were driving a motor vehicle. And third, you BAC was 0.08% or more. The DMV needs to prove these three elements by "a preponderance of the evidence" or, in other words, more likely than not.  This is a lower standard than in the Criminal Justice System, where a prosecutor needs to prove you guilty "beyond a reasonable doubt." This lower standard makes it difficult for a driver to win at the DMV, but having a qualified attorney defending you can increase your odds.

After contacting the DMV to request this hearing, a hearing date will usually be set for approximately six weeks later. And, perhaps most importantly, the DMV will hold off on suspending your license until after the hearing, allowing you to keep driving until your case resolves.    
 
The fight with the Criminal justice system tends to be a little bit more involved.  In part, this is because there are actually two ways a prosecutor can try to find you guilty of a DUI.   Because the system gives prosecutors "two bites of the apple," if you will, it is not surprising to see a DUI driver charged with two separate violations of the law: a violation of Vehicle Code section 23152, subsection (a), and Vehicle Code section 23152 subsection (b).  While most of the time these are charged as misdemeanors, they can be charged as felonies. (More on that in a following blog post.)

To convict you on the Vehicle Code § 23152(a) count, the prosecutor needs to prove: (1) you were driving a motor vehicle, and (2) you were impaired to a degree that you could not safely operate a motor vehicle. You'll note your BAC doesn't matter at all under this count, something that surprises a lot of DUI drivers.  This means that even if your BAC is 0.07%, under the legal limit of 0.08%, you can still be found guilty of a DUI.  This often occurs in cases where the driver was driving poorly—swerving or not following other rules of the road—or during the field sobriety tests demonstrated a lack of coordination or ability to multitask.  

To convict you on the Vehicle Code § 23152(a) count, the prosecutor needs to prove: (1) you were driving a motor vehicle, and (2) BAC was 0.08% or above.
Because the penalties for a DUI can be severe, up to six months in jail for a first offense, and up to a year in jail for a second offense, it's imperative that if you've been charged with a DUI you have experienced legal counsel in your corner to help ensure you're not being taken advantage of by the legal system.  An experienced attorney can help determine if the officer had lawful authority to approach you, if the officer's police report is accurate, and whether the testing was done in accordance with regulations. 

To schedule a free, no-obligation consultation with Devina Douglas feel free to call her at (707) 408-3529 or get in touch with her online here. 

Believe it or not, California is currently one of only five states which do not require boater certification or a boating license to operate a motorized watercraft, but all of that is about to change, in large part due to the number of reported boating-related deaths plaguing our state.   Due to the passage of Senate Bill 941, which was signed into law by Governor Jerry Brown on September 18, 2014, beginning on January 1, 2018, California require all boaters under the age of 20 to carry a California Boater Card issued by the California State Parks Division of Boating and Waterways while operating a motorized vessel on California waterways (but by 2025 everyone will need one). The new law requires vessel operators to take boater safety education classes as the U.S. Coast Guard reports those who have taken boater education classes tend to have fewer accidents. 

So those of you under 20 should probably start studying up.  Boat-Ed.com/California offers a detailed breakdown of the important California boating laws and regulations. If you are required to have a Boater Card and are found operating a motorized vessel the fines can range from between $100-500. 
Of course, there are some exceptions. Non-residents of the state, commercial fishermen, and those granted a marine operator license by the Coast Guard, along with those operating a vessel in an organized regatta or vessel race, or water ski race, will not be required to obtain a California Boater Card. 
To get a Card, you'll need to (1)  Complete a boating safety course, either classroom, home study or online, which is approved by NASBLA and the California Division of Boating and Waterways, and (2)  Apply for the California Boater Card online at CaliforniaBoatingCard.com. ​

In spite of what you may think, or what an over-zealous officer tries to tell you, it is not a crime in California to merely be drink in public.  Instead, in addition to being under the influence, in order to be found guilty of the crime under Penal Code 647(f) you need to either be “unable to exercise care for [your] own safety or the safety of others” or “interfere[] with or obstruct[] or prevent[] the free use of any street, sidewalk, or other public way.” While the first of these options is pretty self-explanatory, people sometimes grapple with the breadth of the second option.  If you are staggering down the sidewalk, impeding other’s ability to use that same street without having to dodge around you, you’re or preventing the free use of the sidewalk.  If you’re angrily yelling at passersby, you’re interfering with the free use of the sidewalk. And, of course, if you’re passed out, on that same sidewalk, you’re obstructing the free use of the sidewalk.

So if you’re charged with a violation of PC 647(f), what are your defenses? The most obvious two defenses are either that you were not in a public place, or not intoxicated.  But keep in mind that “intoxicated” includes being “under the influence of intoxicating liquor, any drug, controlled substance, toluene.” Further, “public place” doesn’t only include sidewalks, streets, and public parks, but rather anywhere that is “open to common, or general use, participation, enjoyment.”  This includes (1) restaurants, supermarkets, and bars, (2) being in a car parked on a public street, (3) in a common hallway in an apartment building, and (4) in the area in front of someone else's house, including the driveway, front lawn and front porch.[1] And it's important to note that it doesn't matter if any other members of the public are actually in the supposedly public place...or even if they are likely to go there. All that matters is that the place actually be open to the public.

That said, you also might have a defense if you were not willfully under the influence, or the police violated your constitutional rights as part of their investigation.  

So how do you know whether you are “unable to exercise care for your own safety or the safety of others?”  Generally, law enforcement looks to see if you are so drunk that you are making decisions that could lead you to hurting yourself or those around you.

When deciding to fight a PC 647(f) charge, it’s important to keep in mind that it is a misdemeanor, a type of crime more serious than an infraction, but not as serious as a felony.  If convicted, you could be looking at six months in custody and a $1000 fine.  And while you might want to chalk a conviction up to being a “youthful indiscretion” it is the type of conviction that will show up if an employer or a state licensing agency does a background check.

​If you've been charges with being Drunk In Public, a qualified lawyer can help you defendant against the charges. 

__________
[1] "Private," non-public-places include private residences and other outbuilding located in a person's yard.
 

​In 2011, California was ordered by the U.S. Supreme Court to reduce the overcrowding in its state prisons.  The state has worked to address to problem by implementing programs aimed at allowing some inmates to earn additional credits that can be applied towards their time served, allowing early release to some inmates, and starting alternative custody programs.
 
Credits
 
Additional credits for non-violent second strikers
Prior to 2014, non-violent[1] second strikers were given 20% credit for the time they served, but that number was increased to 33.3% last year.  For example, under the previous system, an inmate sentenced to one year in prison would have been eligible for release after 304 days, however, under the new system the same inmate would now be eligible for release after serving 273 days in prison.  These credits only apply to inmates serving time for non-violent offenses and offenses which do not require the inmate to register as a sex offender, and only apply prospectively, not retroactively.
 
The CDCR reported that from the time the program was implemented in February 2014 through October 2014 over 2,500 eligible inmates were released from prison under the program.
 
“Milestone” credits
In addition to the program above, non-violent second strikers are eligible to receive up to six weeks of credits once they have completed certain in-prison programs such as academic or vocation training, or a substance abuse program.
 
For more information on the milestone credit program, see this CDRC page.
 
Early Parole
 
Early Parole for non-violent second strikers
The same court order that implemented the programs above, also required the state to change the timetable used to evaluate when non-violent second strikers[2] would be considered for parole.  As of January 1, 2015, non-violent second strikers are now eligible for parole consideration after having served 50% of his or her sentence.  The state has defined “served 50% of their sentence” to mean “actual continuous time served in custody,” and does not take into consideration any credits.
 
As part of the parole review process, the District Attorney from the county in which the offender committed his or her crime and the offender’s victims will be allowed to provide feedback on whether they believe the inmate should be paroled.  This information, along with that contained in the prisoner’s central file will be considered in assessing the inmate’s potential to pose an unreasonable risk to safety.
 
The State estimates that between 5,000 and 6,000 inmates will be eligible for this program in 2015.
 
Elderly Prisoner Parole
This program aims to reduce overcrowding by potentially paroling lifers and determinate-term prisoners who are 60 or older who have already served at least 25 years of their sentence.  At the hearing, the Board of Parole Hearings will evaluate the prisoner’s risk to public safety, giving special attention to the inmate’s age.   As it stands, eligible candidates will have “elderly parole” considered at their next regularly scheduled BPH hearing, but can ask that their case be considered earlier.
 
It is estimated that less than 100 inmates statewide are eligible for the program.[3]
 
Youth Offender Parole
Under this program, an inmate serving a long sentence for a crime committed while they were underage[4] may be eligible for early release.[5]  The point at which they become eligible for a parole hearing depends on the sentence they received. If the offender received at long determinate sentence, they will be eligible for a hearing after serving 15 years.  If the offender received a sentence of less than 25 years to life, they will be eligible for a hearing after serving 20 years.  If they received a sentence of 25 years to life, they will be eligible for a hearing after serving 25 years. 
 
Although these parole hearings will be similar to other types of parole hearings, it is expected that the hearing officers handling these cases will give more weight to (1) the fact that juveniles are thought to have “diminished culpability” due to their youth and are not as proficient as adults in understanding the risks of committing crimes and the consequences that flow from breaking the law, and (2) the personal growth and maturity of the inmate since the offense was committed.
 
During the program’s first nine months of use, nearly 200 “youthful offender parole hearings” had been held.
 
For more information, see the information sheet here.
 
Alternative Custody Program
Yet another way in which the state is decreasing overcrowding is to allow non-serious, non-violent offenders and non-sex offenders to serve the last portion of their sentences in an alternative custody location.  These locations may include residential homes, nonprofit residential drug-treatment programs, or a transitional-care facilities that offer individualized services based on an inmate’s needs.  The hope is that this program can help reintegrate offenders into their communities.
 
The State chose to implement this program by first focusing on female inmates.  To be eligible, in inmate must volunteer and have 24 months or less to serve in state prison.  An inmate is ineligible if they are incarcerated for committing a serious or violent felony,[6] have a current or prior sex-offense conviction or PC 290 registration requirement, made an escape attempt at any time within the last 10 years, have been cited for certain in-prison misconduct, have an active restraining order filed against them, have any affiliation with a gang, or have a felony or Immigration and Customs Enforcement hold.  Although not determinative, an inmate may be denied access to an alternative custody program if she has current or prior sexual conviction not requiring PC 290 registration, current or prior child-abuse arrests or convictions in which the offense was related to abuse or neglect of a child, or
current or prior convictions for stalking.
 
At this time, it is unclear how the program will expand.
 
For more information, see the CDRC fact sheet here.


[1] As defined by Cal. Penal Code 667.5(c).

[2] Certain inmates are excluded from this program including those serving time for a current violent offense conviction, those who were ever convicted of a crime that requires them to register as a sex offender, those who recently served or are serving a Security Housing Unit (SHU) term, those on “C-status” (inmates who have refused to work or are not assigned to a work program due to misconduct), or have received certain 115 violations.

[3] California To Begin Paroling More Elderly, Medically Frail Inmates, available at http://www.californiahealthline.org/articles/2014/6/17/california-to-begin-paroling-more-elderly-medically-frail-inmates

[4] To be eligible the inmate must have been underage at the time they committed their crime and tried as an adult.

[5] An inmate is not eligible for this program if their sentence was a third strike under three-strikes laws; the result of a one-strike rape, of life without parole.

[6] As defined by Penal Code § 1192.7(c) or § 667.5(c).
 

Currently, 23 states have legalized the use of medical marijuana. But while there is less stigma attached to using marijuana these days, many fear that its widespread use will result in more harm than good to society. One of the strongest arguments against increasing the accessibility of marijuana stems from the fear that those under the influence would be dangerous to others should they get behind the wheel of a car. This danger arises because, despite the research showing that high drivers "tend to be more aware they're impaired than alcohol users,” their reaction time slower.[1]  Because of the dangers high drivers pose to the public, law enforcement agencies and policymakers are working to find a way to accurately correlate a person’s level of impairment—and, thus, their inability to safely operate a motor vehicle—to the amount of THC, the active ingredient in marijuana, in their system similar to the ways in which they can with alcohol.

Research by Marilyn Huestis, of the National Institute on Drug Abuse, has shown that when “a smoker's blood THC level peaks at 13 nanograms per milliliter, [the driver] could be just as a dangerous” as a drunk driver.  As a result, policymakers are eager to find methods to quickly assess a driver’s THC levels.  To date, both Washington and Colorado have passed legislation criminalizing driving with more than 5 nanograms of THC per milliliter in their blood.[2]

As it stands now, if a law enforcement officer suspects a person has been operating a motor vehicle under the influence of marijuana one of two methods can be used to determine the levels of marijuana in the driver’s system: blood test or salvia test.  Both have their issues.

First and foremost, blood tests can take weeks to yield results.  But even then, questions about the reliability of blood tests to infer a driver was impaired remain. Blood tests can detect marijuana in a person’s system several weeks after the drug has been used, but the test is not reliably able to prove how much THC a person ingested in the hours just before driving.  Also, the frequency with which a person uses the drug can affect a person’s ability to eliminate the drug from their bodies.[3]  Generally, occasional smokers can clear the drug from their system within hours, whereas chronic users end up accumulating so much THC in their fatty tissues that it could take weeks for the THC to dissipate.[4] Research has also shown that consuming marijuana in an edible form results in only small amounts of THC making it to the blood stream.[5]  Additionally, “[i]t's been proven you can still measure THC in the brain [where it would cause impairment] even if it's no longer measurable in the blood.”[6]

Then, to complicate matters, because chronic smoking of marijuana “reduce[s] the density of cannabinoid receptors," smokers can end up being “cognitively impaired for up to 28 days after their last use, and their driving might also still be impaired for that long.”[7]

The saliva test is considered relatively cheap and easy to use; as a result, legislation has recently been introduced in California which would allow the police to use a small, hand-held device to test for THC.[8] However there is one major drawback: there are products on the market designed with the sole purpose of helping users beat saliva tests by neutralizing the toxins in a person’s mouth.[9]  Further, Dale Gieringer, director of the California branch of the National Organization for the Reform of Marijuana Laws, notes that saliva testing “is still an unproven technology… Its accuracy has not been demonstrated in controlled, published scientific studies. There's no evidence that oral swab testing results have any correlation to impaired driving.”[10]
​
Should you be charged with driving under the influence of marijuana, a qualified attorney can help you fight the charges. 


[1] Angus Chen, Why Is It So Hard To Test Whether Drivers Are Stoned? (NPR) 2/9/16

[2] Angus Chen, Why Is It So Hard To Test Whether Drivers Are Stoned? (NPR) 2/9/16

[3] Angus Chen, Why Is It So Hard To Test Whether Drivers Are Stoned? (NPR) 2/9/16

[4] Angus Chen, Why Is It So Hard To Test Whether Drivers Are Stoned? (NPR) 2/9/16

[5] Angus Chen, Why Is It So Hard To Test Whether Drivers Are Stoned? (NPR) 2/9/16

[6] Angus Chen, Why Is It So Hard To Test Whether Drivers Are Stoned? (NPR) 2/9/16 (quoting Marilyn Huestis, of  the National Institute on Drug Abuse.)

[7] Angus Chen, Why Is It So Hard To Test Whether Drivers Are Stoned? (NPR) 2/9/16

[8] Patrick McGreevy, Driving while high? Lawmakers want police to be able to check (LA Times) 4/6/2016.

[9]  Ultra Kleen Salvia Cleansing Mouth Wash and Clear Choice Saliva Neutralizing Gum  are two examples.

[10] Patrick McGreevy, Driving while high? Lawmakers want police to be able to check (LA Times) 4/6/2016.

​​There is a common misconception that our criminal justice system only punishes the guilty and protects the innocent, but there are a number of reasons why that is simply just not the case these days.  In this post, I want to focus on how California's bail system is possibly contributing to causing legal inequities between the rich and the poor.  
 
Recently, a study of the bail system at work in six of California's largest counties[1] revealed between “70% to 90% of all misdemeanor or non-serious felony defendants pled guilty and were released before their first possible trial date.”[2]  This is an astonishing amount cases in which the defendant never gets to take advantage of many of the protections Constitutionally guaranteed to him or her.  Of course, you would expect that there would be a certain number of defendants who openly admit they did wrong, want to repay their debt to society, and just get the whole issue put behind them as quickly as possible. But there may be just as many people who feel coerced into pleading to charges for which they have a valid defense, simply because they cannot afford the financial ramifications of defending themselves, as illustrated in a recent L.A. Times article, when they are forced to choose between entering a “not guilty” plea at arraignment—and then subsequently posting bail–or accepting a plea bargain offer and being released from custody that day.[3]
 
If a person is taken into custody at the time of arrest (as opposed to being given a citation,) an initial bail amount is set (generally based on the type of crime committed,) while the prosecutor decides whether or not their office wants to file formal charges.  From there, the defendant is bought into court where a judge decides whether to (1) release the defendant on their own promise to appear at a later court date, (2) release the defendant subject to certain pre-trial release conditions, or (3) require the defendant to post bail (and in what amount) in order to be released.  For defendants who will only be released if they post bail, they are faced with a tough decision: surrender what little money they have available—needed for other necessities of life—to post their own bail, go into debt, or plead guilty.  Those of here in California are especially hard hit as it’s been reported that “California’s median bail rate is five times higher than that of the rest of the country.”[4]
 
 
Defendants are often put in this situation as Prosecutors know that we’ve all got lives outside of the criminal justice system in which people—family, friends, pets, coworkers, neighbors—depend on us, and we depend on a steady paycheck.  As a result, it’s commonly known that defendants in custody are more prone to plead guilty at the earlier stages of the criminal prosecution than are their out-of-custody counterparts. It’s possible that judges, responsible for keeping their court calendars moving and prevent backlogs in the system, take advantage of this fact as well.
 
If you need help assessing your own criminal case, feel free to give Devina Douglas a call.
 


[1] San Francisco, San Bernardino, Alameda, Sacramento, Fresno, and Orange counties.

[2] Plead guilty, go home. Plead not guilty, stay in jail, John Raphling (May 17, 2017) http://www.latimes.com/opinion/op-ed/la-oe-raphling-bail-20170517-story.html

[3] Plead guilty, go home. Plead not guilty, stay in jail, John Raphling (May 17, 2017) http://www.latimes.com/opinion/op-ed/la-oe-raphling-bail-20170517-story.html

[4] Not in it for Justice, Human Rights Watch, https://www.hrw.org/report/2017/04/11/not-it-justice/how-californias-pretrial-detention-and-bail-system-unfairly