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

On August 7, 2017 Governor Jerry Brown signed a bill that will now allow military veterans suffering from post-traumatic stress disorder (PTSD) and other mental health disorders associated with their service in the military to apply for pretrial diversion programs if the veteran is charged with a misdemeanor DUI.[1]  Previously, it had been unclear whether diversion programs applied to DUI cases as there had been conflicting language in several California laws[2], and appellate court interpretations of those laws differed. This left active duty military members open to the possibility that even one non-injury DUI offense could ruin their careers.
​
This is an important change in current California law that is expected to have wide-sweeping effects on the lives of those in the veteran community as it is estimated that “at least 1/3 of all persons who seek military diversion are charged with DUI-related violations,” and “DUI’s make up the most common offenses committed by veterans with mental health conditions.”[3]
Passage of this bill will “ultimately help protect public safety and help prevent repeat DUIs, while giving these veterans a more hopeful future,” Senator Hannah-Beth Jackson (D-Santa Barbara,) author of the bill, and a long-time advocate for veterans, opines. “This bill will not only clarify once and for all that these veterans are eligible for pretrial diversion programs, it will also ensure that veterans and service members who have served our country will get the help they need to address substance abuse and mental health issues,” in part by allowing veterans access to treatment options sooner and more effectively.

The pretrial diversion programs relevant here help to connect military veterans with treatment providers and support systems, allowing the veterans to assess, cope with and manage trauma the veteran may have experienced while serving our country.  Such diversion programs are widely supported, as people who receive appropriate treatment for the issues that often underlie substance abuse issues often do not become recidivists.  While the veteran is successfully complying with the terms of the diversion program—during which time the veteran is monitored by a judge, often for between twelve and eighteen months—criminal proceedings are suspended and, upon completion of the program, the criminal charges will be dismissed.  Perhaps even more importantly, the arrest upon which the diversion was based will be deemed never to have occurred. Further, successful completion of the program allows the veteran to “indicate in response to any question concerning his or her prior record that he or she was not arrested or diverted for the offense, except in response to a direct question in a questionnaire or application for a peace officer position.”[4]
 
 “This law serves the dual purpose of restoring veterans to health while protecting public safety,” explained Jude Litzenberger, the executive director for the California Veterans Legal Task Force. “When service members or veterans with PTSD, traumatic brain injury, military sexual trauma, substance use, or other mental health conditions caused by their military service get DUI misdemeanors because they self-medicated instead of seeking mental health treatment, they will be ordered to get appropriate and timely treatment.”
 


[1] At this time, only misdemeanor-level DUIs are covered by the change in the law, and it is important to note that the veteran still is subject to having the DMV suspend their driver’s license.

[2] While the CA Penal Code seemed to established criteria for these veterans to qualify for diversion programs generally, language in the Vehicle Code prohibited diversion in DUI cases.

[3] Report on Military Diversion Program, PC1001.80, of the Superior Court of California, County of San Diego January 1, 2015-December 31, 2016.

[4] SENATE PUBLIC SAFETY COMMITTEE, Senate Floor Analysis, July 19, 2017. 

Often, clients come to me having recently been charged with domestic violence, surprised that what they considered a small spat has resulted in such serious charges.  What they fail to realize is that any "minor or serious injury" can give rise to criminal charges under Penal Code (PC) Section 237.5.  This “injury” could be a little as a reddening of the skin or a scratch.  Basically, if you’ve made physical contact with a person with which you have a certain type of relationship, you open yourself up to Domestic Violence charges, which can be filed as either a misdemeanor or a felony, depending on the circumstances.  The type of relationships that are covered under PC 273.5 are those in which the victim is any of the following:

• The offender's spouse or former spouse,
• The offender's cohabitant or former cohabitant,
•  The offender's fiance or fiancee, or someone with whom the offender has, or previously had, an engagement or dating relationship, or
• The mother or father of the offender's child.

​Law enforcement agencies take domestic violence calls seriously and so does the District Attorney’s Office.  In some cases, where there is probable cause to do so, the police can arrest both participants in the altercation, especially where there are young children living in the house.  And even when the victim doesn’t want to press charges or later has a change of heart, the District Attorney’s Office can still move forward with the case.

If the crime is charged as a misdemeanor, the potential sentence can be as severe as up to a year in jail. And if it’s charged as a felony, the maximum exposure goes up to a potential four years in prison. 

In addition to filing criminal charges, you might be subject to an immediate restraining order (called an Emergency Protective Order, or EPO), preventing you from contacting the victim or, potentially, even going back into your own home.  In some cases, this short-term, EPO can evolve into a longer-term restraining order. Further, in those cases in which children are present, it is not uncommon for Child Protective Services to become involved. Further still, if the injury is serious enough, a conviction under PC 273.5 can have immigration consequences as the crime can be considered a crime of moral turpitude. 

Here in Sonoma County, after conviction offenders are often required to participate in what is known as the Domestic Violence Court Program, aimed at helping offenders understand their triggers, and develop stress and anger management skills. As part of this program they are required to complete 20 hours of Community Service, a 52-week batterer’s program, abstain from alcohol and/or other drug use, and complete thirty-six months of formal probation.

Given these potential consequences, if you’ve been charged with domestic violence having a lawyer who understands the law is crucial.  Not only can a lawyer evaluate the case against you, he or she can work to have the charges reduced, or in some cases even dismissed.  As always, feel free to contact Devina if you are facing a DV-type charge. 

Most people have a basic understanding that federal law makes it illegal to possess a firearm if you have been convicted of a (1) state or federal felony, (2) any state felony for which you were in jail for longer than one year, (3) any misdemeanor crime involving domestic violence, or (4) any misdemeanor offense potentially punishable by imprisonment for more than two years.  Unfortunately, your rights to possess a firearm can also be limited in certain situations that do not involve a conviction.  These situations include (1) having been adjudicated to be "mentally defective" within the past five years, (2) having been committed involuntarily to a mental institution within the past five years, (3) your being subject to a restraining order, TRO, or stay way order that prohibits you from stalking, harassing or threatening either your partner, child or your partner's child, (4) you being an undocumented immigrant, (5) you receiving a dishonorable discharge from the military, (6) being currently charged with a felony, (7) having an active criminal warrant, and (8) having an addiction to any controlled substance.  
​
California law again furthers bans you from ever[1] possessing a firearm if you (1) have been convicted of any felony, unless it was later reduced to a misdemeanor, (2) have two or more convictions for brandishing a firearm, (3) are addicted to any narcotic, or (4) have been convicted of any number of "violent" offenses, including murder, rape, lewd acts on a child under the age of 14 years, and felony in which a gun was used, or great bodily injury was inflicted.[2]  Additionally, in California you face a ten-year ban on possessing a gun if you have a misdemeanor conviction for crimes such as assault, battery, assault with a deadly weapon, witness intimidation, threatening public officials, discharging a firearm in a grossly negligent manner, or drawing or exhibiting a firearm in a deadly manner.

The list of crimes, above, affecting your gun rights is not meant to be exclusive, but are merely the most common crimes seen in our area.  If you have a criminal conviction and would like to know for sure whether you are allowed to purchase or possess a firearm you can file an application with the Department of Justice. Once you have completed this form, you need to submit it to the Department of Justice with a copy of your fingerprints. 

What do I need to know if I have a conviction for one of the crimes mentioned above?
If you have a conviction for one of the crimes mentioned above, the first thing you need to understand is what the prohibition on gun possession means.  What it means is that, first and foremost, you should not purchase or attempt to purchase guns or ammunition. You should not live in or stay at a house in which anyone has guns or ammunition on the property.  You should not get into a car with anyone who has guns or ammunition with them.

Further, be aware that having your conviction expunged does not reinstate your right to possess a firearm.

The laws surrounding gun ownership and possession in California can be complex.  In short, if you are unsure if your criminal conviction has affected your rights to own or possess firearms, do not attempt to purchase a gun.

For more information, see www.ag.ca.gov/firearms


[1] If you were convicted of any of the offenses listed here as a juvenile, you are prohibited from possession of firearm until you are 30 years old.

[2] For a complete list of “violent offenses” see California Penal Code § 29905.

​We’ve all heard it before: ignorance of the law is no defense. Police officers, prosecuting attorneys and judges alike utter the phrase to hold criminal defendants accountable in cases where the defendant had no idea he or she was breaking the law. But what happens when it is a law enforcement official, not a defendant, who is mistaken about the law?
            U.S. case law and common sense has long held that the courts will not impose criminal liability for a police officer’s mistaken understanding of the law.[1]  For example, the courts would never find you guilty of speeding for driving 45mph in a 50 mph-zone, even if the officer who pulled you over thought the speed limit there was 40 mph. But a U.S. Supreme Court, Heien v. North Carolina, case decided this past year held that the officer’s mistake of the law in the above scenario would still allow him to lawfully pull you over.[2] 
             To understand this decision, one first needs to understand the difference in the legal significant between a traffic stop and a criminal conviction.  While a criminal conviction potentially exposes a person to a significant loss of their freedom or their property, a temporary stop, like a traffic stop, only exposes the person to a brief delay.[3]  Because of this difference, the police need to prove beyond a reasonable doubt that you are guilty of a crime, but only need reasonable suspicion you have committed a crime in order to stop you.  The reason the police need to have a reasonable suspicion, as opposed to “just a hunch” is that the Fourth Amendment states that citizens have the right to be free from unreasonable searches and seizures.[4]  Without a doubt, a traffic stop is a seizure within the meaning of the Fourth Amendment,[5] so the next issue that needs to be addressed is whether it was reasonable for the police to stop a citizen when the citizen was not breaking any laws, yet the officer honestly believed the citizen had.[6]
In Heien, the defendant was driving down a North Carolina street when he was pulled over because he only had one working brake light.  It turned out, however, that in North Carolina, a driver only needs one working brake light and so the defendant had not committed a driving offense.  Once the defendant was pulled over, the police officer discovered cocaine in the car, and the defendant was prosecuted for, and subsequently convicted of, attempting to traffic cocaine.  The defendant appealed his conviction, knowing that if he could prove to a higher court that the traffic stop was unreasonable, the drugs the police found should have been ruled inadmissible, and therefore should not have been used against him.  Claiming that common sense dictates that it must be unreasonable for the police to pull you over for committing what turns out to be a non-crime, he argued the his stop was unreasonable.[7]
A majority of the Supreme Court disagreed.[8]
As there is a strong interest in ensuring the community is adequately protected, the court cited much precedent that supported the idea that even where the police make a mistake of fact, their actions could still be reasonable.[9] For example, if a police officer sees a person driving in the carpool lane, but cannot see anyone else in the car, the officer is allowed to pull the car over, even if the turns out that there are two small children sitting in the back seat, making the driver’s presence in the carpool lane legitimate. But the court here was not faced with determining the outcome of a case based on a mistake of fact, but instead based on a mistake of law.[10]  Because of this difference, the defendant asserted that the reasonableness of a potential mistake not be treated the same way.[11]  While the officers are forced to “mak[e] factual assessments on the fly” and thus are allowed some leeway to make mistakes, the defendant argued that officers should know the law, and therefore should not have to make decisions “on the fly.”[12]  Nevertheless, the Court still held that “to be reasonable is not to be perfect,” especially as the law is often  open to interpretation.[13]
What this means for us is that the police now a little more leeway in deciding whether or not there is probable cause to stop you. It remains to be seen how much leeway the courts are willing to give officers in determining if their mistake of law was “reasonable.”
____________

[1] Heien v. North Carolina, 574 U.S. ___ (2014).

[2] Heien v. North Carolina, 574 U.S. ___ (2014).

[3] See Terry v Ohio, 392 US 1 (1968).

[4] U.S. Const. Amend IV.

[5] Brendlin v. California, 551 U.S. 249, 255–259 (2007).

[6] See Heien v. North Carolina, 574 U.S. ___ (2014).

[7] Heien v. North Carolina, 574 U.S. ___ (2014).

[8] Heien v. North Carolina, 574 U.S. ___ (2014). Justice Sotomayor dissented.

[9] Id.

[10] Heien v. North Carolina, 574 U.S. ___ (2014).

[11] Heien v. North Carolina, 574 U.S. ___ (2014).

[12] See Heien v. North Carolina, 574 U.S. ___ (2014) (Sotomayor, J., dissenting) (quoting Cheek v. U.S., 498 U.S. 192, 199, which stated “the notion that the law is definite and knowable” sits at the foundation of our legal system.)

[13] Heien v. North Carolina, 574 U.S. ___ (2014). 

The Fourth Amendment protects us against unreasonable searches and seizures by the government.  However, it is well established within the law that the police are allowed to come to our front doors without a search warrant. Why? Because it is implicit in our social contract that visitors, including the police, are free to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”[1] In short, although the police are able to search parts of your property when they enter to approach the front door, that search is presumptively reasonable. Although the police need to be careful not to exceed the scope of this limited license to enter our private property, any evidence they gather or observations they make as part of walking to and from our doors can be used against us. 
Also, the police are allowed to use drug-sniffing dogs to detect narcotics, concealed in all types of containers, when you are out in public. This is so, the Supreme Court states, as the dog sniff provides very limited information to officers and citizens have no legitimate private interest in contraband. Because no privacy interest is violated, these types of searches are also reasonable.[2]
But are the police allowed to bring a drug-sniffing dog to your door?  Would that type of search still be deemed “reasonable?”  In Florida v. Jardines, decided in 2013, the U.S. Supreme Court answered “no.” The case arose in 2006 when the Police Department received an anonymous tip that Joelis Jardines was growing marijuana his home.  In response, two officers and a trained drug detection dog went to the house, and the dog almost immediately alerted to the scent of marijuana. Armed with this knowledge, the police applied for and received a search warrant.  After discovering drugs were, indeed, being grown there, Mr. Jardines was charged with trafficking marijuana.
At trial, Jardines’s lawyer moved to suppress the evidence seized from the home, arguing that the drug dog's sniff at the front door was an unreasonable search under the Fourth Amendment, so any evidence that resulted from that sniff—including the resulting search warrant—was “fruit of the poisonous tree,” and thus inadmissible. This issue went all the way to the Supreme Court with the defendant arguing that the dog’s sniff was a substantial government intrusion into the home—albeit only onto the porch—and therefore constituted a search, and the government stating that as the police were free to go to a person’s front door, and it is not a “search” under the Fourth Amendment for a dog to sniff a person’s belongings in public, no illegal search had occurred. 
 Drawing a crucial distinction between the luggage at an airport[3], a car on a public street,[4] and the home, Jardines was quick to point out that the Supreme Court has always afforded privacy within the home the highest levels of protection, allowing intrusions against this privacy only with a valid search warrant. Thus, while the police can lawfully arrive at a person’s front door, and can lawfully use a specialized “tool,” a trained dog in this case, to investigate into the contents of containers outside the confines of a residence, the police need a warrant to use that same “tool” to investigate the contents of a home.[1]  As Justice Scalia stated “To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”[2]
__________

[1] Support for this decision also came from Kyllo v. United States, a case which held that the police could not use a thermal imaging device to investigate the inside of a home. That case noted that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” is a search for Forth Amendment purposes.

[2] Florida v. Jardines (2013) 133 S.Ct. 1409, 1416. 
​
[1] Florida v. Jardines (2013) 133 S.Ct. 1409, 1415.

[2] See United States v. Place, City of Indianapolis v. Edmond, and Illinois v. Caballes.

[3] See City of Indianapolis v. Edmond.

[4] See Illinois v. Caballe.

California adopted legislation that allows the state to parole some categories of very ill prisoners[1] before the end of their sentence.[2] This system was recently expanded in 2014 as part of the State’s on-going efforts to reduce prison overcrowding.
​
Under the program, prison medical staff are responsible for assessing prisoners for potential release, looking to whether the inmate suffers from “a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care.”[3] Generally, these inmates are those who have been diagnosed as having six months or less left to live. Although it is prison medical officials who are primarily responsible for initiating referrals into the compassionate release program, prisoners themselves, a prisoner’s family, or any other appropriate agent of the prisoner can ask the prisoner’s primary care provider to conduct an evaluation as to whether “the prisoner meets the criteria for medical parole.”[4] If the prisoner’s application is approved by the prison’s Chief Medical Executive, the application will then be evaluated by a Classification and Parole Representative, this time looking to the level of dangerousness the prisoner poses if released.   From there, the application will need additional approval from either the warden or chief deputy warden.

After review by the warden, the case is next reviewed by the Board of Parole Hearings (BPH). This office looks once more to the inmate’s potential dangerousness. This time, however, the case is debated in a hearing format, heard by a two- or three-person panel, and the inmate is entitled to legal representation. The inmate is able to hire an attorney to represent him or her, or will have a criminal defense lawyer appointed. The BPH states that it expects to be able to hold a hearing between 45 and 120 days after receiving the referral from the prison.   If the panel decides to grant a medical release, the BPH will review the decision made be the panel at the same time that prison staff work to locate a nursing facility able to take the prisoner.

Concerns to the community?
In order to address concerns from the community, inmates released as part of the compassionate release program may be subject to the certain conditions on their release. These conditions can include electronic monitoring and physical examinations. Should the parolee violate any conditions of release, pose a danger to the community, or recover to the point where he or she is no longer qualified for medical parole, the parolee can be returned to prison.