Penal Code section 245 is generally referred to as “aggravated assault” or assault with a deadly weapon, but there are actually several variations.

Penal Code section 245(a)(1) - Assault with a deadly weapon

This section covers an assault with a deadly weapon other than a firearm.  Any instrument that is capable of inflicting great bodily injury or death could be considered a deadly weapon.  Even things that are not specifically designed as a weapon could fit this broad category.  Obviously, knives, baseball bats or a 2×4 with nails sticking out would be a deadly weapon as long as it is something that is capable of producing great bodily injury or death.

Penal Code section 245(a)(1) - Assault with force likely to produce great bodily injury

Although under the same Code section, 245 can be charged as an assault by force that could have produced great bodily injury.  Under this section, they don’t have to prove that any substantial injury actually was inflicted, but that it could have been inflicted.  The typical versions of this version of 245 are severe punches, kicks to the head or other vital organs, etc.  It can be the result of being thrown or pushed into something, such as off a balcony or against a wall, as long as the force is sufficient to inflict those substantial injuries.

Penal Code section 245(a)(2) - Assault with a firearm

If an assault was done with a firearm, it’s charged under this section.  An interesting point is that in any assault, a person must have the “present ability” to inflict injury during the assault. That means that an unloaded firearm pointed at someone is NOT capable of inflicting injury.  Is there another crime?  Yes - a misdemeanor charge of brandishing a weapon under Penal Code section 417(a)(2).  The difference between the two is huge.  With all criminal charges, the prosecution must prove all the elements beyond a reasonable doubt, including the “present ability” (a.k.a. loaded) element.

Sentencing range and consequences

All the various charges under 245 are “wobblers” - they can be charged as either a felony or a misdemeanor.  As a felony, they carry up to 4 years in state prison.  As a misdemeanor, they carry up to a year in county jail.

Most importantly, 245(a)(1) - if charged as assault with a deadly weapon - and 245(a)(2) - assault with a firearm are “strikes” under California’s three strikes law.  Assault by force likely to produce great bodily injury is not a strike and any of the sections charged as misdemeanors are not strikes.

Because of the possible consequences and harsh sentences involved, these are not charges to take lightly.  If you’re facing assault charges or are under investigation, let’s discuss your situation further in a face to face consultation.

Joe Dane

info@joedane.com

(714) 532-3600

There are different charges that could be filed in a case involving allegations of keeping a child from a parent or other person with custody of the child.  The specific charge matters here, as does the legal status of the parties.

Child abduction by a person who does NOT have right of custody

If it’s child abduction by a person who does NOT have the right to custody, that’s covered in Penal Code section 278. That’s a “wobbler” meaning it can be either a misdemeanor (up to a year in county jail) or a felony (up to 4 years in state prison).

Child abduction by a person who DOES have a right of custody

If it’s child abduction by a person who does have right to custody (such as visitation orders or other legal right to the child, but who keeps them from the other custodial parent), that’s covered in Penal Code section 278.5. That’s also a “wobbler”, but the maximum on the felony violation is three years in state prison.

In determining what sentence to impose, Penal Code section 278.6 lists factors the court should consider:

• (1) The child was exposed to a substantial risk of physical injury or illness.
• (2) The defendant inflicted or threatened to inflict physical harm on a parent or lawful custodian of the child or on the child at the time of or during the abduction.
• (3) The defendant harmed or abandoned the child during the abduction.
• (4) The child was taken, enticed away, kept, withheld, or concealed outside the United States.
• (5) The child has not been returned to the lawful custodian.
• (6) The defendant previously abducted or threatened to abduct the child.
• (7) The defendant substantially altered the appearance or the name of the child.
• (8) The defendant denied the child appropriate education during the abduction.
• (9) The length of the abduction.
• (10) The age of the child.

Every case is unique, so it’s impossible to say what you should “expect” to receive in any particular case, but because the sentences can include state prison for years, if you are charged with or under investigation of child abduction under any of these theories, contact me immediately for a consultation.  There are defenses and technical aspects to these charges that we need to explore and discuss.

Joe Dane

info@joedane.com

(714) 532-3600

In a recent post, I discussed the various sections of Penal Code section 245.  One of the ways that can be charged is “assault with a deadly weapon.”

So what exactly is a deadly weapon?

Case law through the years has shaped what can be a “deadly weapon” for this code section.  A deadly weapon is one that is capable of producing great bodily injury or death.  Traditional weapons, such as knives and clubs would fall into that category, but so could other common objects.  A tree branch could be a deadly weapon in the right circumstances.

But when can a weapon NOT be a deadly weapon?

A recent case in the California Court of Appeals involved a minor who used a butter knife to try and attack another person.  The kid tried to slash at the victim’s throat, making several swipes.  No matter how much he tried, the injury he inflicted was only a welt, but no cuts.  When he tried to cut the victim’s face and throat a second time, the handle broke off, yet still no injury was inflicted.  At his juvenile trial, the judge found the evidence was sufficient and upheld the charge of 245(a)(1) - Assault with a deadly weapon.

The appellate court overturned that decision, making findings that the butter knife did not qualify as a deadly weapon in this case.  They found that the butter knife was not used “in a manner as to be capable of producing and likely to produce, death or great bodily injury.”  Why?  Because no matter how hard the kid tried to inflict substantial injury, the knife simply wouldn’t cooperate.  It was an object that was unable to inflict the injury required.  He may as well have been using his fingernail.

Why is this one case decision important?  Obviously, for the minor involved, overturning his conviction is important, but it also points out an important point of our criminal justice system.  Not everything is what it seems.  Just because charges are filed does it mean that’s the end of the story.  Even judges get it wrong have to make tough calls sometimes, too.  Level the playing field with your attorney.

The entire case decision can be found here.

Joe Dane

info@joedane.com

(714) 532-3600

The Orange County Sheriff’s Department announced that special “roving patrols” will be out this weekend, looking for impaired drivers.  Specifically, they’re looking to target potential DUI drivers after Super Bowl parties.

Be careful, but keep your rights in mind.  Should you find yourself pulled over, anything you say can be used against you, including the standard questions on the side of the road:  “Have you had anything to drink?’  “Do you feel the effects of the alcohol?”

Unless you’re under 21 or are on DUI probation, you do not have to submit to the field breath test (the PAS device - Preliminary Alcohol Screening device).  That test may be admissible against you, even though it’s not required.  What is required is that if you are lawfully arrested for DUI, you must submit to a chemical test (breath or blood) to determine your alcohol level.  If you refuse the official test after an arrest, then they can tack on additional punishment and license suspensions.

Keep in mind - if you have been arrested for DUI, you only have 10 days to request a hearing with the DMV or they will automatically suspend your license, no questions asked.

Give my office a call to discuss your situation.

Joe Dane

info@joedane.com

(714) 532-3600

For more information, see the following links:

What to do if arrested for DUI

DUI and Miranda rights - Do they have to read me my rights?

DUI and the DMV - You only have 10 days to request a hearing

The Orange County Sheriff’s Department announced today that they will be conducting a DUI Checkpoint in the city of Lake Forest on Friday, February 11, 2011 from 6:30 p.m. to 2:30 a.m.

I’ve written many times about these DUI checkpoints.  Obviously, the best bet is to not drink and drive.  Should you find yourself facing a DUI checkpoint, keep some things in mind:

Escape Routes

Although not absolutely required to be a valid checkpoint, the presence of an escape route for drivers that do not wish to go through may be provided.  If you see warning signs of an upcoming checkpoint and don’t want to be involved, look for a way to avoid it.  The police cannot lawfully stop you for opting out of a checkpoint as long as you don’t break any traffic laws to do so.  You can’t just decide to do a U-turn mid-block over double yellow lines to avoid the checkpoint, but if there is a street that will take you around or past the checkpoint that you can legally and safely take, do it.

Do you have to cooperate?

These checkpoints have been ruled as “regulatory” by the court system, so they don’t need to have the ordinary “reasonable suspicion” to detain you and make you stop at their checkpoint.  Just because they can stop you though, doesn’t mean you have to give up all your rights.  Obviously, a routine question in a DUI checkpoint is going to be, “Have you had any alcoholic beverages tonight?”  If you say yes, you’ve just incriminated yourself.  While it’s not illegal to have had a drink and then drive, it is against the law to have had too much to drink to the point of being unsafe or if you’re over 0.08%.  By admitting to drinking, you’ve given them evidence against you.  There’s nothing that says they can compel you to answer.  If you’re asked, you can politely, but firmly decline to answer their questions until you talk to a lawyer.  I’m sure that will lead them to want to investigate further, but you haven’t incriminated yourself.

What about Field Sobriety Tests? (FSTs)

If they pull you out of the line for further investigation, they’re going to want a full DUI investigation.  While you cannot actively resist, delay or obstruct the officers in the performance of their duties, that doesn’t mean you have to help them gather evidence against you.  They’re going to want you to do field sobriety tests.  What they won’t tell you is that they’re not mandatory.  Field Sobriety Tests (FSTs) are highly subjective agility and coordination tests - ones that will be used against you in a DUI prosecution.  Why would you voluntarily submit to these tests, knowing that any perceived “failure” by the officer will be used as “evidence” of your guilt?  You can respectfully decline if you choose.

Do you have to do the roadside breath test? (PAS device)

What about the roadside breath test?  The Preliminary Alcohol Screening (PAS) device is also not required unless you’re under 21 or are on probation for DUI.  Assuming you’re over 21 and not on probation, you can also decline to blow into the roadside breath machine.  I know the officer will try to convince you to blow with the “Let’s just see where you are.  If you’re under 0.08%, you’ve got nothing to worry about, right?”  WRONG.  Remember, over 0.08% = an arrest for 23152(b) DUI and even under 0.08%, you can still face 23152(a) DUI charges.

You are required to do the “official” test.

You must submit to the official chemical test however.  If you are lawfully arrested for DUI, you are required by California’s implied consent law to submit to a chemical test to determine your blood alcohol level.  That one you must submit to or face an automatic suspension of your license by the DMV and potential increased punishment in court.  If you refuse chemical tests, they can force a blood test from you, use those results against you and you’d still face the allegation that you refused.

And finally, should you be arrested for DUI, you only have 10 days to schedule a hearing with the DMV or they will automatically suspend your license.

To discuss your situation, give me a call.

Joe Dane, Orange County Defense Attorney

info@joedane.com

(714) 532-3600

The top question asked is always what somebody is “looking at” for their charges.

There’s so much more than just the charges.  I can tell you what the maximum sentence is and if there are any mandatory minimums, but from there….

Every case is unique. A plea sentence (or a sentence after a conviction at trial) takes into account many factors:

The facts of the case.

Were there aggravating factors in this particular case that make it worse than others of the same type? Were there facts that make it less serious than others? Did it exhibit a great risk of danger to the public or a hypothetical risk? Was there anyone harmed? If so, have they been made whole again through restitution, etc.?

Any prior record.

The presence of any prior convictions - felonies or misdemeanors - matter greatly. I know that’s one of the first things any DA or judge will want to know when evaluating a case - what is the defendant’s record? If there are prior convictions, can they be explained away or is there documentation to put a better spin on them, rather than just the mere conviction?

Does the case resolve by way of a plea deal or did it go to trial?

A defendant in any criminal case has an absolute constitutional right to have the prosecution prove the case against them beyond a reasonable doubt to a jury. They cannot be punished for exercising that right, but they can be rewarded for pleading guilty and “acknowledging wrongdoing” at an early stage of the proceedings. That’s where plea bargains come into things. That brings up the last factor…

What can be worked out?

If the facts and the law start stacking up against the defense, it’s not over.  There may be additional mitigating factors that need to be brought to everyone’s attention to explain the conduct or minimize its significance. There may be legal motions that can be run to suppress evidence, statements or challenge charges.   All that, along with discussions of the merits of the case, trial issues and similar cases and their outcomes all can be discussed.  I know that lots of attorneys bill themselves as “aggressive,” but in many situations, reasonable discussions during plea negotiations go a long way.   My bottom line in every case comes down to one simple question:

What is the very best outcome I can achieve for my client on this case?

It’s a simple philosophy, but one that I keep in mind for every single case. That may mean the very best negotiations or a fight at trial.  I can’t say it enough - every case is unique.  To discuss yours, give me a call.

Joe Dane

info@joedane.com

(714) 532-3600

Not to jump on the “post about celebrities” bandwagon, but just to use a recent arrest as an example…

Singer Christina Aguilera was arrested in West Hollywood in the early morning hours March 1, 2011.  According to press reports, her boyfriend Matt Rutler was stopped and arrested for DUI.  She was subsequently arrested for a misdemeanor violation of Penal Code section 647(f) - public intoxication - a.k.a. drunk in public.  How did this happen?

The elements of the crime

Public intoxication under PC 647(f) requires that the prosecution prove the following:

• The defendant was willfully under the influence of alcohol and/or a drug or controlled substance;
• They were in a public place;
• AND
• They were unable to care for their own safety, the safety of others or were blocking a public way.

But wasn’t she in a private car?  How could she get arrested for drunk in public?

A public place is a place that is open and accessible to anyone who wishes to go there.  Even case law has said that in a parked car on a city street counts as “in public.” Being a passenger in a car being driven on a public street would also count as “in public” and subject her to arrest.  I’ve read various accounts of her demeanor and condition, but the Sheriff’s Department spokesperson described her as unable to care for herself and incapacitated.  The spokesperson went on to say that the Sheriff’s Department had “no desire” to prosecute her for this offense.

Ultimately, the decision to prosecute is up to the prosecuting agency in that jurisdiction, but what he’s referring to is Penal Code section 849(b)(2).  If a person is arrested for intoxication only and “no further proceedings are desirable,” then they can be released by law enforcement instead of appearing in court.

What Ms. Aguilera should hope for is that they release her under Penal Code section 849(b)(1) instead.  Under that section, law enforcement could determine that there is insufficient grounds for a criminal charge to be issued and release her.  What’s the difference between 849(b)(1) and 849(b)(2)?  If she was released under 849(b)(1), the arrest is essentially undone and it’s now treated as a detention only, not an arrest.  There is no such language that deals with 849(b)(2).

Either way, breathe a sigh of relief on this one, Ms. Aguilera - it looks like no charges are going to be filed.

And, I assume Mr. Rutler is working with a criminal defense attorney on his DUI situation, but in case he stumbles across this post - you only have 10 days from today to request a hearing with the DMV or they’ll automatically suspend your license.  At a 0.09% alcohol level [according to news websites], you may have defenses to these charges.  Time for an attorney.

Joe Dane

info@joedane.com

(714) 532-3600

Today, the Orange County Sheriff’s Department announced they will be conducting a “roving patrol” event this Friday, April 1, 2011. They will be saturating the cities of Aliso Viejo, Laguna Hills, Laguna Niguel and Laguna Woods.

Be safe and keep your rights in mind, no matter if it’s a DUI stop or any other contact with the police. You do NOT have to consent to any searches and you do NOT have to incriminate yourself (even if they haven’t read you your Miranda rights, they may not be required to, so any statement you make could only hurt you).

See the links below for more information from previous articles I’ve written about interacting with the police and DUI investigations:

Interacting with the police

Miranda rights

Be safe -

Joe Dane

info@joedane.com

(714) 532-3600

I still get this question all the time -

“If I’m completely innocent, why shouldn’t I make a statement to the police?”

I’ve written before about calling a detective back and the risks there. But what about answering questions in person if you’re contacted during an investigation?  Should you talk to the police if you “have nothing to hide”?

Probably not.

What if the police mishear you?

Even if the police aren’t out to get you… What about if they simply misheard you? Many police interviews are not recorded, so let’s say you talk to them about your situation. You say X, but they mistakenly hear Y. They write in their report that you said Y and everyone will take it as gospel. Months or years layer when you and your attorney see the police report with a quote from you saying Y, you will have a heck of a time proving you really said X. The officer, having moved on to many other cases in the intervening months, will simply rely on their report and firmly state that you did in fact say Y.

So… Even with no evil intent by the police, making a statement could hurt you.

What about a false ID?

What do you do with a false identification of you by a witness? A witness points you out and says you did it (or were involved). You deny it, since that’s the truth. Now there are two conflicting statements. the police and prosecution will assume you’re lying because you are covering for your involvement. They’ll say, “Why would the witness lie? They don’t have any stake in this.”

You answer truthfully, but the question was flawed

What if the police ask the wrong question, but you answer truthfully? Even that can still hurt you. For example, the officer asks you whether or not you were ar the 7-11 that got robbed during the evening hours of March 10th. You think about it and have an absolute alibi. Yes, you go to that 7-11 often, but you were at your buddy’s poker game on the night he was asking about, so you tell him you were nowhere near that 7-11 when it got robbed. BUT… Turns out that the robbery was actually the night of the 9th, but happened after midnight, so it was technically the 10th. You WERE at the 7-11 that night, but just got a soda and left. Turns out a witness saw your car leave and got your license plate. They call you a liar.

Ever see the movie “My Cousin Vinny”? Funny movie, but if you think about situation like that in real life, not funny at all.  Just ask anyone wrongfully convicted.

Just a couple of examples why talking to the police isn’t a good idea, even if you are 100% innocent.

Joe Dane

(714) 532-3600

info@joedane.com

As expected, Orange County police and sheriffs are gearing up for extra DUI patrols this holiday weekend.  The Orange County Sheriff’s Department announced today that DUI checkpoints will be conducted in Brea, Aliso Viejo and Irvine.

On Friday, July 1, The Brea Police Department will conduct a DUI checkpoint from 7:00 p.m. until 3:00 a.m. and the Orange County Sheriff’s Department will also have one from 6:30 p.m. until 2:30 a.m. in Aliso Viejo.  No specific locations for either were announced.

On Saturday, July 2, the Irvine Police Department will conduct a DUI checkpoint from 7:00 p.m. until 3:00 a.m. on Culver Drive in Irvine.

In addition, from Friday July 1 through Monday July 4th, extra DUI “Roving Patrols” are going to be assigned by the following police agencies:

• Brea Police
• Buena Park Police
• Garden Grove Police
• Irvine Police
• La Habra Police
• La Palma Police
• Los Alamitos Police
• Orange Police
• Santa Ana Police
• Yorba Linda (serviced by Brea Police)
• and the California State University Fullerton Police.
• The Orange County Sheriff’s Department will be also sending out extra DUI patrol units into their contract areas.
• The California Highway Patrol (CHP) will assign “all available” officers to patrol their areas beginning 6:00 Friday night until midnight Monday July 4th.

Knowing that they’ll be out there - how do you protect yourself?  Here are some guidelines about DUI checkpoints:

Escape Routes

Although not absolutely required to be a valid checkpoint, the presence of an escape route for drivers that do not wish to go through may be provided.  If you see warning signs of an upcoming checkpoint and don’t want to be involved, look for a way to avoid it.  The police cannot lawfully stop you for opting out of a checkpoint as long as you don’t break any traffic laws to do so.  You can’t just decide to do a U-turn mid-block over double yellow lines to avoid the checkpoint, but if there is a street that will take you around or past the checkpoint that you can legally and safely take, do it.

Do you have to cooperate?

These checkpoints have been ruled as “regulatory” by the court system, so they don’t need to have the ordinary “reasonable suspicion” to detain you and make you stop at their checkpoint.  Just because they can stop you though, doesn’t mean you have to give up all your rights.  Obviously, a routine question in a DUI checkpoint is going to be, “Have you had any alcoholic beverages tonight?”  If you say yes, you’ve just incriminated yourself.  While it’s not illegal to have had a drink and then drive, it is against the law to have had too much to drink to the point of being unsafe or if you’re over 0.08%.  By admitting to drinking, you’ve given them evidence against you.  There’s nothing that says they can compel you to answer.  If you’re asked, you can politely, but firmly decline to answer their questions until you talk to a lawyer.  I’m sure that will lead them to want to investigate further, but you haven’t incriminated yourself.

What about Field Sobriety Tests? (FSTs)

If they pull you out of the line for further investigation, they’re going to want a full DUI investigation.  While you cannot actively resist, delay or obstruct the officers in the performance of their duties, that doesn’t mean you have to help them gather evidence against you.  They’re going to want you to do field sobriety tests.  What they won’t tell you is that they’re not mandatory.  Field Sobriety Tests (FSTs) are highly subjective agility and coordination tests - ones that will be used against you in a DUI prosecution.  Why would you voluntarily submit to these tests, knowing that any perceived “failure” by the officer will be used as “evidence” of your guilt?  You can respectfully decline if you choose.

Do you have to do the roadside breath test? (PAS device)

What about the roadside breath test?  The Preliminary Alcohol Screening (PAS) device is also not required unless you’re under 21 or are on probation for DUI.  Assuming you’re over 21 and not on probation, you can also decline to blow into the roadside breath machine.  I know the officer will try to convince you to blow with the “Let’s just see where you are.  If you’re under 0.08%, you’ve got nothing to worry about, right?”  WRONG.  Remember, over 0.08% = an arrest for 23152(b) DUI and even under 0.08%, you can still face 23152(a) DUI charges.

You are required to do the “official” test.

You must submit to the official chemical test however.  If you are lawfully arrested for DUI, you are required by California’s implied consent law to submit to a chemical test to determine your blood alcohol level.  That one you must submit to or face an automatic suspension of your license by the DMV and potential increased punishment in court.  If you refuse chemical tests, they can force a blood test from you, use those results against you and you’d still face the allegation that you refused.

And finally, should you be arrested for DUI, you only have 10 days to schedule a hearing with the DMV or they will automatically suspend your license.

To discuss your situation, give me a call.

Joe Dane

Orange County Defense Attorney

(714) 532-3600

info@joedane.com

Reasonable suspicion is what they need to detain you. Probable cause is what they need to search. Slightly different burdens and a slightly different analysis.

If you’re contacted by the police, your first question should be, “Am I free to go?” If the answer is yes, then you are free to walk away. If they say no, then you’re detained. The Miranda rules don’t necessarily apply during a detention and there are different rules about searches during a detention, but the bottom line is that you still have your Fourth, Fifth and Sixth Amendment rights to be free from unreasonable searches, against self-incrimination and to an attorney, respectively.

If you are not free to go, you can politely, but firmly decline any request to search or provide a statement. The only thing you must do is provide your TRUE information. You cannot lie or do anything else that may be considered as delaying or obstructing their investigation.

Police: Hi, can I talk to you?
You: Am I free to go?
Police: Sure, but I’d like to talk to you for a minute.
You: No thanks. Have a nice day. (Walk away)

or:

Police: I need to talk to you.
You: Am I free to go?
Police: No - you’re not under arrest, but you’re just detained while I sort things out. Where are you coming from (or what are you doing or other type questions)?
You: I respectfully decline to answer any questions until I speak to my lawyer.
Police: You’re not under arrest - I’m just trying to get to the bottom of things.
You: I understand. I’m still declining to answer any questions until I speak to my lawyer.
[Repeat as necessary]

Same thing with search requests. Under certain circumstances, they may legally be able to pat you down for weapons during a detention, but other than that, you have the right to decline a request to search. Do it politely, but firmly. The typical response is for the officer to say something like, “If you don’t have anything on you, there shouldn’t be any problem, right?” Same response from you. A polite, but firm denial of their request to search.

If they order you to do things, do not resist. That’s when attorneys and motions in court come into play, but the side of the road is NOT the place to argue with an officer about your Fourth Amendment rights.

See also:

Interacting with the Police

In a traffic case, if it’s set for trial, the court issues a notice to appear for the officer. If they’re properly served and don’t show on the trial date, case dismissed. Not so in a DUI, however.

There are several stages of a misdemeanor case such as a DUI. The first court appearance is the arraignment. You’re officially told of the charges against you in a charging document filed by the prosecution. Your attorney is also provided the police reports or other “discovery” (blood alcohol results, etc.). The officer is not required to be present at the arraignment.

If your case does not resolve by way of a motion to dismiss, plea deal or other outcome and is set for trial, the prosecution will then send out subpoenas for the witnesses they feel are necessary for their case. The officers are usually subpoenaed, but placed “on call” so they’re brought in only when necessary.

If the prosecutor cannot confirm the subpoena has been served on the officer, then there are certain ways for them to buy some more time.

In California, a defendant on a misdemeanor has a right to a trial within 30 days of their arraignment if they’re in custody at the time of the arraignment and within 45 days if they’re out of custody. If they waive that speedy trial right, then their case gets set on a particular date, but there is a 10-day trailing period. The day the case is calendared for trial is “day zero”. If for some reason, the prosecution is not ready, they can request to trail within this 10 day window while they get ready. This often happens with an officer not being available on the first day or two of when a trial is set due to vacation or training schedules, but they’ll be back by day 3. The prosecution will ask to trail the case to day 3 and then announce they’re ready for trial. The defendant’s rights are still protected and the case goes forward.

Now - if the officer is unavailable for some reason and the time frame is going to expire, the prosecution may make a motion to continue beyond that time frame based on “good cause”. It can’t be because of negligence like forgetting to subpoena the officer, but for a compelling reason, a judge can continue a case beyond the time frames. For example, if the officer that’s crucial to the prosecutor on the DUI case was injured on duty a week before the trial was scheduled to begin and unable to come testify for a couple of weeks, the prosecution would make a motion to continue the case until the officer is able to return to duty and testify. Such a motion would likely be granted, even over the defendant’s objection. If the case is continued over the defendant’s objection, then the new trial date is THE trial date - no more additional 10 day grace period. Either the case gets underway, it gets continued for a new “good cause” motion or it gets dismissed.

If the prosecution is unable to produce the officer at trial, has run out of any trailing period and their request to continue is not granted, then yes - without the testimony of the officer that made the arrest, the case would be dismissed.

It’s just not as straight-forward as a traffic ticket trial.

My answer will be based on several things: California law (based on my experience as a cop, a prosecutor, a defense attorney and an instructor at a police academy), common sense and tidbits for thought.

First - California law.

There are two different charges for DUI - 23152(a) and 23152(b) of the Vehicle Code. The first - (a) is for driving under the influence. That is the charge that makes it illegal to drive under the influence of alcohol, drugs or a combination of the two. That has nothing to do with any particular blood alcohol level. You could be a complete lightweight, have a blood alcohol of 0.04% (half the legal limit), but if you were all over the road you could be arrested for charged with and convicted of 23152(a) - driving under the influence.

The second charge - 23152(b) - makes it illegal to drive what a blood alcohol of 0.08% or higher. This one has nothing to do with any “bad” driving. For example, you could be stopped for an equipment violation only (something like a burnt out taillight) and if it is determined that you were at or above 0.08% blood alcohol level, even without any bad driving, you can be convicted of this count.

Both of those sections count exactly the same as far as punishment, priorability, and as a DUI on your record. You can be charged with both and potentially convicted of both, but they merge and only count as one conviction with one punishment. [Some attorneys boast claims that they routinely get DUI charges dismissed. What actually happens is that in a plea deal, the prosecutor will agree to drop one of the charges and accept a plea to the other. It's the same net result - a DUI conviction, but the lawyer calls it a "dismissed DUI".... now you know.]

The other law that is important to know is the implied consent law. Under California law, when you get a driver’s license issued to you, you have given your implied consent to submit to a chemical test if you are lawfully arrested for driving under the influence.

So now, you get to the question - what should you do if pulled over for DUI?

I won’t belabor the issues about pulling over safely, not running from the police, etc. I will instead focus on the nuts and bolts.

On the side of the road during a traffic stop, you are considered “detained”. You are not free to go, but you are not “in custody”, so the first thing to keep in mind are your Miranda rights. Because you are not in custody, the officer does not have to read you your rights before asking very incriminating questions. Questions like “have you been drinking?”, “how much?”, “do you feel the effects of the alcohol?” etc. are all very incriminating, so answering them can absolutely hurt you. Even though they have not advised you of your rights, you can still exercise your Fifth Amendment privilege against self-incrimination. You can decline to answer questions. You are required to provide your driver’s license, registration and proof of insurance, but any additional questions that may incriminate you such as the drinking questions you can decline to answer.

In addition to asking you questions about drinking, I’m sure the officer will want to do some field sobriety tests. Those too are voluntary. Will they warn you of that? Of course not.

The field sobriety tests are extremely subjective in interpreting “performance” during them. The officers are trained to look for subtle clues as to whether or not your performance on these tests could indicate that you are under the influence of alcohol. There is no “pass” or “fail” to a field sobriety test. Even an Olympic gymnast probably couldn’t perform the field sobriety tests to an officer’s satisfaction. They are designed to test motor skills, divided attention, and information retention. If you “fail”, the officer will testify that you were unable to satisfactorily perform the field sobriety tests. If you’ve ever seen them administered, realizing what you are being asked to do is a huge task. The officers administer these all the time and are familiar with the instructions they are giving, but to you they are completely foreign. On the side of the road, with traffic whizzing by, lights flashing and you incredibly nervous, they rattle off a series of instructions that they expect you to follow to the letter. If you don’t hear them, they will either assume that you did the test incorrectly and label you as intoxicated. If you ask for clarification, they will assume that you could not comprehend and therefore must be intoxicated. You truly are in a no win situation. Even if you hear them correctly and do them to the best of your abilities, any slight misstep, bobble, or “error” (according to the officer’s interpretation) and you are labeled as intoxicated.

Instead, if asked to perform field sobriety tests, my answer would be to politely decline, along with a statement that I believe they are too subjective and not required by California law. (I would make the oral statement at the time, since many officers wear recording devices and it wouldn’t be claimed later that I was only trying to make up an excuse after the fact as to why I didn’t do them).

Regarding the chemical test itself: There are two different stages of chemical testing. The first is a roadside breath test known as a PAS (preliminary alcohol screening) device. If you are on probation for a DUI conviction or are under 21, you must submit to that roadside PAS device test. Otherwise, it is essentially another field sobriety test. Whether or not the result will be admissible in court, why help them build a case against you? If the results are over 0.08%, it adds into their probable cause to place you under arrest. If they don’t have those results, they must independently determine whether or not there is probable cause to arrest you (hopefully without any admissions of drinking, field sobriety tests or PAS results to rely on). If they cannot develop probable cause to believe you were driving under the influence of alcohol, they cannot arrest you. (At least not lawfully) If the arrest is not supported by probable cause, any subsequent chemical test and blood-alcohol result may be excluded by the court in your trial.

If they do develop probable cause to arrest you, then you are required by law to submit to a chemical test. You have your choice of breath or blood. Breath can be more easily attacked in court and there is a built-in margin of error that may work in your favor. However, breath is not preserved. You cannot retest a breath sample. If you choose blood, you and your attorney have a right to have the samples retested by an independent laboratory to determine the accuracy of the government’s test results.

If you refuse the chemical test after being lawfully arrested for DUI, license can and will be suspended by the DMV, they can still force blood from you and use the results against you in court while increasing the punishment for refusing the chemical test. Some people think that refusing a chemical test will help them because there’s no numerical result, but in my experience, your refusal won’t help you. They will force blood and make it worse.

If you are arrested and chemical test reveals that you are 0.08% or more, or the officer believes that your blood test will come back 0.08% or above, they will take away your driver’s license and issue a temporary license to you at the time of your arrest. That license allows you to drive for 30 days following your arrest for DUI. That pink 8.5 x 11 piece of paper also warned you that after 30 days, your license will automatically be suspended for 4 months by the DMV. You have 10 days from the date of your arrest to request a hearing with the DMV to challenge that automatic suspension. If you miss that 10 day window to request the hearing, the DMV is heartless. Your license will be suspended. Instead, if you request the hearing within the 10 days, they will extend your temporary license pending the outcome of the hearing. If you are arrested for DUI, what ever you do - don’t miss that 10 day window.

And of course, contact a local criminal defense attorney that routinely practices in the court where your case will be heard to discuss the issues in greater detail. Hopefully, you’re doing that within the 10 days so your lawyer can arrange for the DMV hearing and prepare to represent you in court.

To discuss your situation further, give me a call.

Joe Dane

info@joedane.com

714.532.3600

If you have been arrested or cited for petty theft (shoplifting) - you may think the situation is bad.  Don’t just give up and assume there is nothing to do.  You’re facing a possible theft charge that can have devastating effects on your future.

In a shoplifting case, like any other, I look at a case from three ways:

Do you have any factual defenses?

Assuming everything in the police reports is true and accurate, does it all add up to the elements of the charge you’re accused of?  If you’re charged with theft, can they prove that you had the specific intent to steal?  How can they overcome whether or not it was an accident or mistake on your part?  If you’re charged with burglary, can they prove you had the intent to steal before you entered the store?  I know they’re subtle distinctions, but they are necessary elements of the crime the prosecution must be able to prove beyond a reasonable doubt.

From there, we know that the reports are not always 100% accurate.  What in the report doesn’t add up?  Are times, sequences or witness statements conflicting with each other?  Are there obvious errors in what happened that can be easily torn apart? When I consult with my clients, we review the facts of the case down to the smallest detail to see where the gaps in the case are.

Do you have any legal defenses?

Because most shoplifting cases involve a “private person’s arrest” (sometimes called a “citizen’s arrest”) by the store personnel, they are not necessarily under the same rules as the police.  Under the Penal Code, they do have a right to detain a person they suspect of shoplifting.  If they search you, they don’t have to have a warrant or probable cause like the police do.  But that doesn’t mean that they can do whatever they want.  The store loss prevention officers (a.k.a. security) must still act within the law and appropriately.  I have had cases where the loss prevention agents spied into dressing rooms - a clear violation of criminal law.  This can absolutely be used to our advantage in your defense.  Similarly, if the store security guards used excessive force, that can lead to a tremendous advantage to you either in negotiating your case or fighting it at trial.

From there, the actions by the police - Miranda warnings, searches or other police procedures can factor into how to defend your case.

If the facts and the law are against you, how can we best protect you?

Assuming the facts and the law are stacking up against you, what can be done?  Often, there can be alternative dispositions worked out, hopefully to avoid a conviction for a misdemeanor theft offense.  Diversion, deferred entry of judgment, reduction to a misdemeanor or non-theft related charge are all potential outcomes.  Every case is unique, but by working together well before your court date, there are things you can do to help get me in the best possible position for a good outcome in your case when I go to court on your behalf.

Don’t wait until the last minute before you are due to appear in court.  Give me a call and we can discuss the details and where we’re headed with your case.

Joe Dane

info@joedane.com

714.532.3600

The Orange County Sheriff’s Department has announced a DUI checkpoint “Traffic Safety Checkpoint” (but we all know what that means) in Laguna Woods for today, February 24, 2012.  The planned hours are from 6:30 until 2:30 tomorrow morning.

Knowing that they’ll be out there - how do you protect yourself?  Here are some guidelines about DUI checkpoints:

Escape Routes

Although not absolutely required to be a valid checkpoint, the presence of an escape route for drivers that do not wish to go through may be provided.  If you see warning signs of an upcoming checkpoint and don’t want to be involved, look for a way to avoid it.  The police cannot lawfully stop you for opting out of a checkpoint as long as you don’t break any traffic laws to do so.  You can’t just decide to do a U-turn mid-block over double yellow lines to avoid the checkpoint, but if there is a street that will take you around or past the checkpoint that you can legally and safely take, do it.

Do you have to cooperate?

These checkpoints have been ruled as “regulatory” by the court system, so they don’t need to have the ordinary “reasonable suspicion” to detain you and make you stop at their checkpoint.  Just because they can stop you though, doesn’t mean you have to give up all your rights.  Obviously, a routine question in a DUI checkpoint is going to be, “Have you had any alcoholic beverages tonight?”  If you say yes, you’ve just incriminated yourself.  While it’s not illegal to have had a drink and then drive, it is against the law to have had too much to drink to the point of being unsafe or if you’re over 0.08%.  By admitting to drinking, you’ve given them evidence against you.  There’s nothing that says they can compel you to answer.  If you’re asked, you can politely, but firmly decline to answer their questions until you talk to a lawyer.  I’m sure that will lead them to want to investigate further, but you haven’t incriminated yourself.

What about Field Sobriety Tests? (FSTs)

If they pull you out of the line for further investigation, they’re going to want a full DUI investigation.  While you cannot actively resist, delay or obstruct the officers in the performance of their duties, that doesn’t mean you have to help them gather evidence against you.  They’re going to want you to do field sobriety tests.  What they won’t tell you is that they’re not mandatory.  Field Sobriety Tests (FSTs) are highly subjective agility and coordination tests - ones that will be used against you in a DUI prosecution.  Why would you voluntarily submit to these tests, knowing that any perceived “failure” by the officer will be used as “evidence” of your guilt?  You can respectfully decline if you choose.

Do you have to do the roadside breath test? (PAS device)

What about the roadside breath test?  The Preliminary Alcohol Screening (PAS) device is also not required unless you’re under 21 or are on probation for DUI.  Assuming you’re over 21 and not on probation, you can also decline to blow into the roadside breath machine.  I know the officer will try to convince you to blow with the “Let’s just see where you are.  If you’re under 0.08%, you’ve got nothing to worry about, right?”  WRONG.  Remember, over 0.08% = an arrest for 23152(b) DUI and even under 0.08%, you can still face 23152(a) DUI charges.

You are required to do the “official” test.

You must submit to the official chemical test however.  If you are lawfully arrested for DUI, you are required by California’s implied consent law to submit to a chemical test to determine your blood alcohol level.  That one you must submit to or face an automatic suspension of your license by the DMV and potential increased punishment in court.  If you refuse chemical tests, they can force a blood test from you, use those results against you and you’d still face the allegation that you refused.

And finally, should you be arrested for DUI, you only have 10 days to schedule a hearing with the DMV or they will automatically suspend your license.

To discuss your situation, give me a call.

Joe Dane

info@joedane.com

714.532.3600

The Orange County Sheriff’s Department announced DUI “saturation patrols” for Lake Forest, Mission Viejo and Rancho Santa Margarita tonight, June 8, 2012. While not a DUI checkpoint, that still means they will have extra units in the area looking for any justification to stop you and start sniffing around (literally) for a DUI investigation.

For another article on what your rights are during a DUI stop, have a look at an article I wrote that was on the Forbes website about DUI stops in California, see this link: What to do if you’re stopped for DUI in California

Keep your rights in mind whenever dealing with the police.  Be safe.

If you do find yourself arrested for DUI, you only have 10 days to contact the DMV and schedule a hearing or your license will automatically be suspended.

Joe Dane

info@joedane.com

Why did they arrest me for DUI?

Often, people are arrested for DUI and are absolutely perplexed why.  They don’t know why they were pulled over, don’t know what their blood alcohol results were, think they did well in the field sobriety tests, were never read their Miranda rights and yet there they are - arrested and charged with DUI.

First - the stop.

In order to validly stop you at all, not just for a DUI case, the police must have “reasonable suspicion” of criminal activity.  They must be able to prove that there was some sort of violation that allowed them to turn on the red light and pull you over in the first place.  If the reason for the stop is not valid, then any evidence obtained after the stop (any smell of alcohol, any statements by you about drinking, field sobriety tests and ultimately the blood alcohol results) can potentially be suppressed by filing a motion in court.  It is not our job to prove the stop was invalid - the prosecution must prove that it was valid.

Next - the investigation.

Do they have to read you your Miranda rights during a traffic stop and DUI investigation?  Unfortunately, not usually.  Because you are just “detained”, they are not required to read you your rights before asking questions that can hurt you - “Have you been drinking?”  ”Do you feel the effects of the alcohol?” etc.

But that’s not an absolute rule.  If they police do certain things, they may turn your detention into what is the equivalent of an arrest, making Miranda warnings necessary.  Without those warnings, any statement could be suppressed.

What about the field sobriety tests?  Those are subjective and are always fair game to be challenged in court - either through a motion or at trial.

Was the chemical test done properly?  If it was the PAS (preliminary alcohol screening) device - a.k.a. the roadside breathalyzer - those results may not necessarily be admissible against you.  The “official” chemical test is the one to really examine.  Were the machines used working correctly?  Were the recently calibrated?  Were there any deviances from the standardized results that gave a false reading in your case?  If you did a breath test, did the officers follow the requirements in order to validly collect a breath sample?  Did they advise you about your right to have a separate blood test so that you could test it through an independent laboratory?

Can this be reduced or dismissed?

This is definitely not going to be a do-it-yourself project.  You’re going to need a local criminal defense attorney that routinely practices in the court where your case will be heard.

The Orange County Sheriff’s Department has just announced the upcoming DUI checkpoints and “saturation patrols” for the upcoming July 4th holiday period.  Here is the information on what they’re planning:

DUI Checkpoint - Placentia

Wednesday, July 4, 2012, the Placentia Police Department will be conducting a DUI/Driver’s license checkpoint from 6:00 pm until 2:00 am.  No specific location has been announced within the city.

DUI “Saturation Patrols”

Both Tuesday and Wednesday, July 3 and 4 there will be extra patrol officers assigned specifically for DUI enforcement in the following cities:  Brea, Buena Park, Fullerton, Irvine, La Palma, Orange, Placentia, Seal Beach, Westminster and on the CSUF (California State University Fullerton) campus.  The Sheriff’s Department will be deploying extra officers to the cities they patrol as well, including Villa Park, Stanton, Dana Point, Laguna Hills, Laguna Niguel, Lake Forest, Mission Viejo, San Juan Capistrano and San Clemente - plus the unincorporated areas of the county served by the Sheriff’s Department.

CHP “Maximum Enforcement Period”

The Fourth of July holiday is a notorious one for the CHP and this year is like every other - they will be putting all available officers on duty from Tuesday, July 3 at 6:00 pm through midnight July 4.  Every freeway, toll road, unincorporated road and highway falls within the California Highway Patrol’s jurisdiction and you can expect they will be out in full force.

Should you find yourself being stopped:

Remain calm, but also remember your rights.  There is a full, detailed blog post about your rights when stopped for DUI in California you may want to review.

And if you’re arrested:

You only have 10 days from your arrest to contact the DMV and schedule a hearing to fight the automatic suspension of your license.  Don’t let those 10 days slip by.  Give me a call or send an email so we can discuss your situation and what your options are.

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Joe Dane

714.532.3600

info@joedane.com

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What’s the difference between simple theft and burglary?

One word:  intent.

Burglary (Penal Code 459) is entering a structure with the intent to steal or commit a felony inside. They must prove that you entered a structure (residence, building, business, etc) and at the time you entered, you had the intent to steal or commit a felony.

For example, if you’re standing outside Target, look in and say to yourself, “I think I’ll go steal a few DVDs” then step in, you just committed burglary. Even though the elements of the crime are there, how would they ever prove it without something more? So how do they prove your intent? They can potentially do it with circumstantial evidence. If you brought an empty shopping bag that you put the DVDs into before leaving with them, that’s circumstantial evidence that you intended to steal when you went in and that’s why you brought the bag.

If they cannot prove that you had the intent to steal before you entered, they cannot prove burglary. In my Target example, if you are standing outside, step in, then say to yourself “I think I’ll go steal a few DVDs”, that’s not burglary since the intent to steal wasn’t formed until AFTER you entered. If they can’t prove that the intent to steal was there before you entered, the most you would face is theft.  Shoplifting (or other theft) is divided into two levels - petty theft (under $950) or grand theft (over $950 or theft of certain things like guns, autos, certain livestock, etc.)  Petty theft (Penal Code section 484 and 488) is a misdemeanor.  Grand theft (Penal Code 487) can be either a felony or a misdemeanor.

Burglary can be either first degree (residential) or second degree (all others - commercial, auto, etc). First degree is a straight felony and cannot be reduced to a misdemeanor. It is also a strike under California’s Three Strikes law. Second degree is a “wobbler” and can be either a felony or a misdemeanor.

That’s the main difference between burglary and theft.  Obviously, it makes a huge difference in what they can charge and prove, but even if your case is “just a petty theft,” don’t take it lightly.  A theft conviction can haunt you for years to come.

To discuss your situation further, give me a call or send an email.

Joe Dane

info@joedane.com

714.532.3600

California Penal Code section 977

If you’re charged with a misdemeanor by the District Attorney or City Attorney’s office, you may never have to appear in court on your case.  The California Penal Code allows an attorney to appear on behalf of their client on most misdemeanors.  By retaining an attorney before your court date, you may not have to take time off from work or school to appear in court.  There are a couple of exceptions.

Domestic Violence allegations [Penal Code 273.5, 243(e)]

If you are charged with a domestic violence charge, you will be required to be in court for your first appearance (the arraignment).  In many cases, the prosecution can request that the judge issue a criminal protective order against you while the case is going on.  Because you would have to be personally served with a copy of the restraining order, you have to be in court on your first court date.  What is that restraining order?  It can potentially kick you out of your house, prevent you from contacting your spouse or partner, kids, etc.  If you and your attorney are prepared for this court appearance, there may be things you can do before that day to either prevent a restraining order from being issued against you or at least trying to make it a “peaceful contact” order.  If the judge makes it a peaceful contact order, you can still go home and be in contact with your spouse/partner, but will be ordered not to have any violent contact.  If you’re facing an upcoming court date for domestic violence in Orange County, give me a call so we can discuss your options and what can get us in the best position for a good outcome - even from your first court date.

Violation of a domestic violence restraining order (Penal Code 273.6)

If you’re accused of violating the terms of a domestic violence protective order, you must appear at your first court appearance.  It is highly likely that the judge will issue a new protective order and set certain terms for to allow you to remain out of custody.  Many of these allegations are based on technical violations or are flat-out false.  When facing an allegation that you violated the terms of a restraining order, early investigation by the defense may lead to the charges being dismissed.

Driving under the influence (DUI) in an “appropriate case”

Although for most first time DUI cases [Vehicle Code 23152(a) or 23152(b)] an attorney can appear on behalf of their client, if you have a prior conviction for DUI within the past 10 years (including a conviction for vehicular manslaughter (Penal Code 191.5), DUI (23152) or DUI with injury (23153), the Penal Code says that a judge can require you to be present at your arraignment.  If you have already posted bail, that may be sufficient to allow your attorney to appear.  Often, the DA’s office does not file your case until months later and your bail will have already expired.  What do you do then?  Depending on the facts of the case, we may want you to attend self-help meetings (AA meetings) to show the judge you’re not at risk of drinking and driving and to allow you to remain free without having to repost bail.

In any criminal case, not just misdemeanors, early contact with a criminal defense attorney can set the stage for a good outcome.  Defense investigation, counseling, meetings or other affirmative steps can make the difference.

If you’re facing criminal charges - arrested, under investigation or with a court date pending - give me a call to discuss your case and what your options are.

Joe Dane

info@joedane.com

714.532.3600