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.
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 rayscan 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!
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.
For example if the driver has either Lupus or xeroderma pigmentosum
There's an interesting discussion taking place surrounding the jail sentence of Julie Eldred. The following info was cut and pasted from this site.
"Julie Eldred [originally convicted of theft-related charges] was a drug addict on criminal probation – which required her to stay clean. She was trying to. But as so often happens, she couldn’t. The judge sent her to jail for 10 days. Is that what our society ought to do? Is relapse a crime requiring time behind bars – or a symptom of disease requiring treatment? ..."
"The irony is both dark and profound: Only in death do drug users become victims. Until then, they are criminals. In addition, a vast majority of American prisons deny opioid addicts access to medication-assisted therapy, or MAT, which uses Food and Drug Administration-approved medications that can relieve opioid cravings and withdrawal symptoms. Most addiction specialists say MAT is far and away the most effective treatment for opioid use disorder."
One "argument, which is shared by many medical professionals, is that incarceration poses a threat to the recovery process—not that court-ordered drug treatment or testing is unfair, or that criminal sanctions shouldn’t be imposed on probationers who don’t comply with treatment. Eldred had been on a regime of anti-craving medicine, Suboxone, for five days when she relapsed.
'From a therapeutic perspective, it is very disruptive to put somebody in a position where they’re afraid if they talk about relapse—or even talk about cravings to relapse—they could be jailed,' said Newman-Polk, who previously worked as an addiction counselor. 'If the court feels that addiction treatment is a necessary probation condition, then the court system shouldn’t interrupt the treatment process.'”
The case, set to decide if requiring probationers to remain clean is constitutional is currently pending in the Massachusetts Supreme Court.
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.
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.
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.
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:
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.
We all know that being under the influence of any drug can affect our behavior. But while a person may
know how cocaine or alcohol affects him or her independently, not very many people are aware of how a combination of the drugs may influence their behavior and harm their health. Why? Because when a person ingests this combination, the body produces a metabolite called cocaethylene (also known as ethylbenzoylecgonine,) in the liver about two hours after the person has ingested the second of the two drugs. This chemical can cause a longer lasting and more intense symptomology for both drugs due to the cocaethylene both (1) being harder to eliminate from the body (the liver isn't as efficient at filtering it out,) and (2) slowing the reuptake of dopamine.
Studies have shown that people who use these two drugs together often binge drink, which then causes additional heath issues such as: (as you would expect) liver damage, alcohol poisoning, general poor judgment, and (as you may not expect) cardiovascular issues and nerve damage.
In the context of criminal law, a potential defendant should be aware that when under the influence of cocaethylene, they may suffer from increased anxiety, impulsivity, and aggression. Further, they are at a greater risk of stroke, heart attack (because it negatively impacts the heart muscle's ability to properly to contract,) can increase the potential for long-term ever damage, and may suffer from seizures. In fact, the chances of suffering from a sudden death increase between 18-25 times higher than using cocaine alone.
(Perhaps) Surprising results from NHTSA's 2014 NATIONAL ROADSIDE SURVEY of Alcohol and Drug Use by Drivers
All of the following text and statistics have been taken from the NHTSA's website:
Prescription drugs, over-the-counter medications, and illegal drugs may cause impairment alone or in combination with each other and/or with alcohol. In every State and the District of Columbia, impaired driving is illegal. Whether by drugs — legal or illegal — alcohol, or a combination of both drugs and alcohol, impaired driving puts the driver, their passengers, and other road users at risk. In NHTSA’s National Roadside Survey conducted in 2013-2014, 20 percent of drivers surveyed tested positive for potentially impairing drugs.
[That study] found an increase in the number of drivers testing positive for marijuana and other drugs that can impair driving skills compared to the 2007 survey findings. In the 2013-2014 survey, nearly one in four drivers tested positive for at least one drug that could potentially affect safe driving skills.
** Overall, 22.3 percent of daytime drivers were drug-positive and 22.5 percent of nighttime drivers were drug- positive in the combined oral fluid or blood.
** The Midwest had the highest percentage of daytime drug-positive drivers...
** The percentage of daytime drug-positive drivers was significantly higher in the Midwest than in the West...
** The Midwest had the highest percentage of nighttime drug-positive drivers as well (30.4%) which was significantly higher than in the West...
** Nighttime drivers in the South (22.9%) were also significantly more likely than drivers in the West to be drug-positive...
** Results of overall drug prevalence by time of day and gender  reveal no statistically significant differences...
** Both males and females aged 21-34 had the highest rates of drug presence....
** Comparisons by race and ethnicity  show that the prevalence of drug positive driving was significantly lower for Asian drivers compared with White drivers in the daytime sample (23.4% versus 6.4%, respectively, ), but not in the nighttime sample...
** The prevalence of drug-positive driving was significantly lower for Hispanic drivers compared with White drivers in the nighttime sample (13.5% vs. 22.2%, respectively)...
** There were no statistically significant drug prevalence differences among daytime drivers of various vehicle types . At night, pickup drivers had a lower drug prevalence than passenger vehicle drivers, which was statistically significant (16.5% versus 24.3%, respectively.)...
** The prevalence of THC-positive, THC-positive-only, and THC-positive plus any other drug in the Midwest was significantly higher than in the West among both daytime and nighttime drivers...
** In the daytime, there was a significantly higher prevalence of THC-positive and THC-positive-only among male drivers than female drivers (12.1% males versus 5.5% females, and 9.7% males versus 4.1% females, p < .05). Males also had a significantly higher THC-positive and THC-positive only prevalence in the nighttime sample (14.6% males versus 9.4% females, and 11.7% males versus 7.4% females, p < .05) There were no other statistically significant differences by drug class, gender and time of day.
... The prevalence of illegal drugs-only was significantly higher among males compared with females among both daytime and nighttime drivers
The full report can be found here.
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.  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.
 Ohio v. Clark, 576 U.S. ___(2015).
 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/)
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