Monday, January 31, 2011

The Facts About Domestic Violence in Orange County

Domestic violence allegations in Orange County are not confined by economics or
geography. Whether you live in Santa Ana, Newport Beach, Fullerton or any other
town, if someone calls 911 reporting a spousal battery-type incident, and the police
arrive on your doorstop, it is almost guaranteed that someone will be arrested. If you
want a mediator DO NOT call the police. Call family or a friend.

Since the O.J. trial, the police will no longer try to moderate or even separate the parties
without arresting one. Who gets arrested? Usually the male, regardless of who called
911, the injuries or the allegations. Of course, it depends on the relationship, the
injuries, the sobriety of the parties and the statements, but let's face it - the female is the
stereotypical "victim" and the male will get arrested. In addition, when the police are
faced with a heterosexual couple, the male is larger and the police assume he is the
aggressor. Sometimes the police are wrong, mistakes are made, the female is really
the aggressor and someone is wrongly arrested and charged with a crime.

Domestic violence is a serious charge with long-lasting consequences: 1) restraining
orders may be issued so that you cannot see your family or live in your house; 2) you
may remain in jail and sentenced to additional jail or prison time; 3) a year-long costly
and timely class may be imposed; 4) you may lose your constitutional right to bear
arms; 5) you may lose your right to vote; 5) you may be labeled as a "wife beater" and
have a criminal record. These serious consequences require that you take serious

If you have not been contacted by the police, do not speak to them without consulting
with an attorney. Remember you have the right to remain silent and what you say may
(WILL) be used against you - invoke your right and remain silent. If you have already
been arrested or your loved one is still in jail, contact a lawyer to help you. The sooner
you speak to a Orange County criminal defense attorney the sooner you can start
preserving evidence and preparing your defense.

Domestic violence allegations range from a simple push (Penal Code section 243(e)(b),
or threat (Penal Code section 422 misd) to the more serious allegations of injury (Penal
Code section 273.5 and 245) or threats of murder (422 fel) or murder or attempted
murder (Penal Code 187) plus a whole range of charges in-between.

Regardless of the charge, if arrested you will sit an Orange County jail unless you post
bail. You will have many court hearings ahead of you such as the Arraignment, possibly
a Bail Hearing (if you are not able to post bail), pretrial conferences, a preliminary
hearing (if charged with a felony), and further arraignments, pretrials and then ultimately
a jury trial if the case does not resolve. In order to fight for the best possible outcome
or an acquittal you need to hire an experienced Orange County criminal defense

Tuesday, December 21, 2010

The Dos and Don'ts of Talking With The Police, Or Just The Don'ts

As a child and even as an adult can you picture times when you have tried to talk
yourself out of a situation? I can remember when I was in the second grade and
brought something of my mom's to school for show-and-tell. It ended up falling off my
desk and breaking. Of course, I wanted to blame it on the kid that walked by and
accidentally hit it with his sleeve.

Can you imagine the police interrogation - "Why did you bring a breakable to school?
Why not choose another item? Where on your desk did you have it? Those desks are
small, right? Why didn't you put it in the middle of the desk? Oh, you were writing. So
you weren't even paying attention to the statute? You didn't actually see the sleeve hit
it, did you? When you were writing in your notebook you could have knocked the
statute to the ground when you moved your notebook, isn't that correct?" BUT I DIDN'T
DO IT - is not going to cut it.

Then the police officer writes up the report which goes to the Orange County District
Attorney's office for the filing of criminal charges. I arrested the suspect for (drugs,
assault, theft, etc) when it became clear that the suspect was evasive in her answers
and had no proof that anyone else was responsible as only her fingerprints were on the
item. She said she did not do it, but after questioning her it was clear that she was
involved. The police report will not be written in your favor. The police have accused
you...and everyone likes to be right.

The correct way to handle this situation is to be cooperative and polite, but request to
speak to an attorney. Regardless, of your innocence or guilt, regardless of the types of
questions or number of questions, the response should be the same, (repeat after me)
"I want to speak to an attorney".

If you have not been arrested, but have been contacted by the police through a phone
call or a business card left at your door, you need to call a criminal defense attorney
immediately. An attorney can make the contact for you; find out what you are being
accused of; find out if there is a warrant out for your arrest and, if so, have a bail bond
set up while negotiating your surrender. This will save you an enormous amount of
stress and embarrassment.

Most importantly, it will eliminate the police report containing the officers harmful
interpretations and impressions. Your statements will be used against you in a court of
law. You have the right to remain silent - use it.

Wednesday, November 3, 2010

Tis The Season…To Avoid Arrest

The holidays are upon us and the police departments in Orange County are gearing up to enforce DUI laws to make our streets safe…and make lots of money while increasing their statistics.

I hate to break it to you, but the police are going to pull you over for any reason…no front license plate, music too loud, brake light out, license plate light out, registration tag missing…Now is the time to inspect your car and get it to the shop. Prepare for this holdiay season. If you’re driving home after watching football with friends (they know the big game ended too) or you’re coming home from dinner driving down PCH around 10 pm, you better watch out, because it’s not Santa behind you with the red lights flashing. Use your blinker, slow down, stop texting, or better yet take a cab. That fifty dollar cab ride will save you $9,950.

Drunk drivers are not what the Newport, Huntington or Laguna Beach police are looking for – don’t let the misnomer fool you. You do not need to be DRUNK to be arrested. After having a nice dinner with your wife down at Balboa you’re cruising home to Irvine or wherever. You shared a bottle of wine, a couple of steaks and all the trimmings along with that delicious Tiramisu. It’s all good. You know the way home like the back of your hand. The traffic is light and the conversation is easy. Suddenly, lights go on behind you and you’re pulled out of the comfort and into a nightmare. “License and registration please (barks the officer). Do you know how fast you were going? Have you had anything to drink?” It’s over and you don’t even know it. You have had more than your share of the bottle – The indigestion doesn’t help the smell – you’re nervousness doesn’t help you on the roadside tests – and before you know it the officer is putting handcuffs on you while your wife pleads with the officer to let you walk the couple blocks it is to home. “Sorry (not really), we’re taking him in. You can have a sober person pick him up at the Irvine Police Department.” Or worse yet, “he’ll be out sometime tomorrow”- after a cold, smelly, sleepless night at the Santa Ana county jail.

The other scenario that happens to the unexpected driver is when medication is ingested, because of that recent surgery, old basketball injury, persistent back pain; or maybe you’re taking antidepressants or some other prescribed medication. You’re coming home from work and a minor fender bender occurs when the car in front of you stops suddenly, or you come upon a checkpoint. “Drink any alcohol or take any medications today?” - asks the officer innocently – “Just my normal dose of___. “Please step out of the vehicle…and the nightmare begins.

I hear of incidents like this often. If you are taking medications get your doctors written okay to drive and do not mix them with alcohol…yes, I mean one glass of wine or a beer. Do not keep medications in your purse next to your driver’s license, in your pocket or in your center console. And remember silence is golden.

In both of these scenarios you may feel perfectly fine to drive, but unfortunately although the law states differently, you are going to have to prove your innocence in Orange County courts. Juror question, “I don’t understand, the police arrested him or her, they must be guilty of something?”

Beware: on the night before Christmas and all through the year, the police are looking for a reason to add you to their statistics so they can obtain the federal grants and other monies to pay for their DUI task forces and checkpoint operations. The officer with the most arrests also goes to a yearly MADD (Mother’s Against Drunk Drivers) award ceremony. Sure, we need to reduce the amount of accidents caused by drunk drivers, but we also need to educate the public of what exactly that means…and why do bars have parking lots?

Let me get to the crux of the story: One drink is not, sharing a bottle of wine with an endless glass; a margarita that may have a number of shots in it; or a forty-ouncer. Everyone’s metabolism, structure, and individual characteristics make it almost impossible to guess at the amount you can drink and still drive under the law…And let’s face it, when we’re out socializing we’re not counting and measuring. The other problem is that the “science” and devices used to measure your level or impairment are not close to perfect. What is absolutely clear is that DRUNK does not fit into the equation.

The law defines a DUI (D – driving, U – under, I – influence) as someone who is at a .08 alcohol level at the time of driving OR someone who is driving while IMPAIRED (a very technical term, not) by alcohol and/or drugs (including medications).
Be careful our there….it is not Santa watching

Tuesday, October 5, 2010

Proposition 19, Proposition 215 and DUI Laws

Proposition 215, The Compassionate Use Act of 1996, decriminalized the cultivation and use of marijuana by ill individuals upon a physician’s recommendation. Although, a medical marijuana card is not required, over 46,000 Californians have obtained a card since 2004 (California Department of Health).

Have DUI laws changed since 2004? The basic elements of “Driving Under the Influence” (DUI) have not changed. The basic element, regardless if there is alcohol, prescription or illicit drugs in the system is whether the person is so impaired by that substance that they are unable to drive like a sober person in like circumstances. This does not change whether the substanc e is alcohol, marijuana, vicodin, cocaine or any other potentially impairing substance.

Have DUI arrest numbers changed since 2004? Comparing the number of DUI arrests between 2004 and now is not a fair comparison, because there are too many variables. Although there may seem to be more impaired drivers on the roadway now then before, one must also keep in mind that the enforcement of DUIs has increased along with the increase in media attention. How many checkpoints are there now compared to 2004? How many news articles are written about DUI arrests now compared to 2004? Even some local newspapers, such as the Daily Pilot in Newport Beach, list the arrestees in the area. Now, there are also DUI task forces, along with the narcotic and gang task forces. MADD and other such organizations have put DUIs in the spotlight as a dangerous crime where numerous innocent people die as a result. Out of the spotlight, however, it is known that DUIs are a huge money-maker for the State, Counties and Cities. How many other crimes pour money into the Department of Motor Vehicles (DMV), the County Courts and local police departments through booking fees, over-time and increased budgets needed to pay for the checkpoints and other tools of enforcement. One has to wonder why the money does not go into better means of transportation in areas such as Orange County where the sprawl goes on for miles and miles away from the bars and restaurants at the cities’ centers in order to reduce the number of drivers.

Will the passage of Propostion 19 increase DUI arrests? It is hard to tell. Proposition 19 is on the Nov. 2, 2010 California ballot. The passage of Prop. 19 would legalize marijuana for all Californians as long as they are 21 years and older. All Californians will legally be able to possess an ounce or less of marijuana, use marijuana in nonpublic places and grow marijuana. Proposition 215 did not result in any noticible increase in DUIs and the expectation would be that Prop. 19 also would not. The headlines do not read “DUI accident kills – marijuana the culprit”. The majority of deaths as a result of DUI accidents are alcohol related.

If Proposition 19 passes will there be a conflict between state and federal law? Yes. The Federal Controlled Substances Act (CSA) is designed to combat recreational drug use making it unlawful to manufacture, distribute, dispense, or possess any controlled substance, Congress has provided that states are free to regulate in the area of controlled substances, including marijuana, provided that state law does not conflict with the CSA. The Courts have found that Proposition 215 does not conflict with CSA, because it does not legalize marijuana, rather California has the power not to punish certain marijuana offenses under state law when a physician has recommended its use to treat a medical condition. However, a number of “liberal” politicians and groups are, surprisingly, not supporting Proposition 19, because of this conflict with federal law. They believe that Prop. 19 may potentially have a negative fiscal impact to the state since it would be in direct conflict with the CSA, and the federal government could withdraw or restrict funding. However, many are supporting this passage of Prop. 19, including a former Judge of Orange County, a former United States Surgeon General, a former President of the American College of Emergency Physicians, Democrats, Republicans, former police chiefs and former District Attorneys. These proponents of Prop. 19 understand that too much money is spent on the enforcement, criminalization and punishment under the current marijuana laws while the local and state governments could actually gain income with the legalization. In addition, they understand that alcohol is more dangerous with regards to driving while incurring more health costs than marijuana. As with other legislature and court rulings, California is often the leader in change for what later is changed across the country.

Saturday, August 28, 2010

Domestic Violence Does Not Discriminate

Domestic violence, also known as spousal abuse, domestic abuse, or initimate partner abuse is common in all economical, environmental and racial classes of society. Like the DUI, domestic violence does not discriminate. It is as common in the three million dollar home in Newport Beach as in the eight hundred dollar apartment in other areas of Orange County. It wears a tie or a uniform, it works 9-5, not at all, or is a CEO. It is a fact of society.

Domestic violence may be charged in a criminal complaint, when brought to the attention of law enforcement, in various formats. When an injury occurs, the most common charge filed is a violation of Penal Code section 273.5, willful infliction of corporal injury. This charge requires that there be some sort of dating relationship, or past dating relationship between the parties. It also requires that there is an injury, whether minor or serious, caused by physical force. A defendant in a criminal matter may be facing the less serious of charges, a misdemeanor or, the most serious, felony charges. The determination of whether a misdemeanor or felony is charged may depend on the nature of the injury and/or the person’s previous record – has the person been arrested and/or charged with a similar charge in the past.

If the accused is charged with a felony, the sentence may include a prison sentence of two, three or four years. However, if there are sentencing enhancements also alleged, the person may be facing a longer prison sentence. Sentencing enhancements would be if the injury was considered “great bodily injury”, or if a gun was used, or if the person has a previous felony record which may increase the prison term.

If the injury is minor, more often then not, the accused shall be charged with a misdemeanor offense. This particular defendant may face a fifty-two week batter’s treatment program, community service, fines to the court and to the county’s domestic violence shelter, along with a county jail sentence.

There are a number of additional charges that may also be filed in a domestic violence case such as battery, stalking, tampering with a phone line, terrorist threats, child abuse, to name a few.

Regardless of the charges, a person accused in a domestic violence case should be aware of their rights, the possible consequences they are facing, and the various defenses. The accused should not have the attitude that they “just want to get it over with”. This is a situation that may haunt the suspect for life by way of the penalty, the restraining order that the Judge will order which will not allow contact between the parties, and the criminal record that will remain with the person for life. If you find yourself in this situation and need help, please contact me immediately for a free consultation.

Wednesday, August 11, 2010

Proposition 19, the legalization of marijuana in California

Proposition 19, the legalization of marijuana in California, would allow for the possession, cultivation and transportation of marijuana by those who are 21 years of age or older. Although legalization will result in regulation and taxation, these are necessary in order for the decriminalization of marijuana to occur. Compare this to the prohibition of alcohol – would one rather drink alcohol without taxation and regulation, but subject to arrest, prosecution, jail, and a criminal record tainting your future; or be subject to marijuana taxes and regulations?

Currently, simple possession of marijuana (less than an ounce) consists of an initial detention by law enforcement which could culminate in a variety of additional charges. For example, one is stopped by the police for speeding. “I smell marijuana” says the officer, “everyone out of the car”. John has less than an ounce in his pocket and is given a citation. Bob, Mr. Tough Guy, decides to run, is tackeled, fights back, and ends up in jail for battery on a police officer. Jane has an outstanding warrant and is arrested, and Sue, the driver, has been held at the scene and now is late. If Proposition 19 passes this scenario would not happen unless Sue was under the influence of marijuana and then arrested for a DUI.

The sentence for possession of less than an ounce of marijuana may be a fine and a class, but the criminal record is the real punishment. Employment and other such licensing or educational applications may be affected by what was a “simple” possession. In addition, one plant in your home or garden is a felony without any applicable statute available for misdemeanor prosecution. More than an ounce is also a felony offense. Proposition 19 would decriminalize these fact patterns.

Many defendants who are charged with simple marijuana offenses may find that going to court without a criminal defense attorney is more economical. However, what seems like a simple resolution (a fine and/class) may affect ones future.

How are you going to vote – for or against prohibition?

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