San Diego Criminal Defense Attorney Blog

Because I defend people accused of driving under the influence (DUI), incidents where alleged drunk drivers are accused of manslaughter always result in some introspection. This weekend, a Torrey Pines High School student was killed, another seriously injured, when a car carrying five classmates crashed on Rancho Santa Fe Road. According to the San Diego Union Tribune, the driver is a 17 year old senior who was not injured. He is being held on suspicion of driving under the influence and gross vehicular manslaughter.

Incidents like these tend to further polarize my social circle. Many of my friends and relatives understand the important work I do to protect against the further erosion of everyone's rights. Some even grasp that I find the work rewarding and fulfilling. More than a few are puzzled that I would want to help someone who would drink, get behind the wheel and put other people's lives at risk.

I'm not sure why God made me a person who, after contemplating the suffering the deceased's family must endure, has compassion left over to be concerned about the life altering event the young driver has experienced. He and his family, blanketed in shame and remorse, are now forced to navigate an unfamiliar and unfriendly minefield - the criminal justice system. There will be few who gather around them for support.

It would be horribly unfortunate if this accident was caused by this teen's drinking. It would be tragic if despite all the MADD posters and assemblies to which he was undoubtedly exposed he didn't choose to avoid such a destructive behavior. Yet even if he did drive under the influence, he still deserves a competent and compassionate defense.

In this, and every DUI case, the prosecutors must be held to their burden to prove every element of the crime beyond a reasonable doubt. This is especially true where the media has been deployed so effectively to vilify drinking and driving. Even more so when the prosecutor will open and close with pictures of a roadside vigil. Juries are predisposed to hand down guilty verdicts in these cases and prosecutors act as if they are under the highest mandate. In situations like this, it is all to easy to look the other way as rights are violated.

My heart goes out to the family of the deceased. I cannot even begin to imagine the sorrow that accompanies the greatest loss one can suffer - the loss of a child at such a young and promising age. My hope is that every life this popular young man has touched will learn from this tragedy and forever drive responsibly. Use a designated driver or call a cab.

My heart also goes out to the defendant and his family. This incident will drive them deep into isolation. The guilt of having a hand in the death of a friend will follow the defendant for life - even if he is completely innocent. Few will be able to look past his faults and offer help.

If you've made a mistake and have been accused of driving under the influence in San Diego County, you need an experienced criminal defense attorney who understands the presumption of innocence and can look past the allegations to help you protect your rights. The earlier in the process you call, the more effective we can be.

Bonnie Dumanis, the San Diego County District Attorney, spoke out recently about budget cuts proposed by Governor Arnold Schwarzenegger. According to Dumanis, the Governor is considering commuting the sentence of illegal aliens incarcerated in State Prisons and turning them over to Immigrations and Customs Enforcement (ICE) for deportation. I think the Governor is spot-on with this proposal.

Many people do not realize that there are immigration consequences for criminal activity. Non-citizens face the prospect of deportation or non-admissibility for many crimes. Aggravated felonies are among the list of crimes which typically result in deportation. When a non-citizen is arrested for a crime with immigration consequences, an ICE hold is usually put in place. This hold will prevent the individual from bailing-out. They'll have to wait in jail until their case is heard. Once there is a disposition in the case and the defendant has served their time, ICE will pick him up and hold him at an ICE facility pending a deportation hearing.

By commuting the sentences of non-citizens held in California Prisons, the Governor will effectively transfer the financial burden of incarcerating a large number of inmates to the federal government - and then eventually to the country from which the inmate came. Dumanis's objection is that these individuals will make their way back to the streets of America. That's not an argument for shedding the burden of incarcerating non-citizens, its an argument for bolstering border security. Housing non-citizens who have committed crimes in this country is a form of foreign aid we simply cannot afford. Kick them out and let the Feds spend the money to keep them out.

Its not like these people will not be deported eventually. Very few non-citizens incarcerated in prison will prevail at their ICE hearings after their state prison term runse its course. And most of those that would prevail will also prevail if their sentences were commuted immediately. The impact on non-citizens that should not be deported would be minimal.

We talk about all the ways illegal immigrants cost California billions of dollars: health care, schools, lost jobs - here's an area with a built-in federally subsidized solution that has the potential to be very effective. If we're concerned about re-entry of deported ex-convicts, then we should stiffen the sentence for illegal re-entry and make that offense ineligible for commuting.

I understand that the D.A. wants to maintain control of these people's lives, but control costs money. The system needs to shrink to handle what it can afford to handle. Its not like the California Department of Corrections has ever made a person better.

If you have been charged with a crime in San Diego, and you are not a U.S. citizen, you need to work with a San Diego criminal defense attorney who is familiar with the immigration consequences of the crimes you are charged with. Call now to arrange a free consultation.

The California Court of Appeal recently overturned a conviction for driving under the influence (DUI) of methamphetamine in People v. Torres.  Mr. Torres had been convicted by a jury after being arrested and charged under California Vehicle Code section 23152(a), driving under the influence of alcohol or drugs.

Torres was seen leaving a suspected meth house that was under police surveillance. Police followed him for a short distance and then pulled him over when he overshot the stop sign limit line before coming to a complete stop.  Once pulled over, Torres exhibited symptoms of methamphetamine use including profuse sweating, rigid muscles, chemical odor, bad breath and slow to constrict pupils.  Torres later admitted to using meth within the past two days and submitted to a urine test which came back at fairly high levels.


You would think that Mr. Torres would have taken a plea bargain along the way, but his attorney was smart.  To be found guilty of driving under the influence of a drug, "the . . . drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties." (People v. Canty (2004) 32 Cal.4th 1266, 1278.)

But in Mr. Torres' case, the police did not observe him driving irradically.  The testifying officer admitted that failing to stop at the limit line is not sufficient to establish that the driver is under the influence of a drug.  Further, the arresting officer did no field tests to determine if Mr. Torres' ability to drive was impared.  In fact, the arresting officer admitted to having no training to determine the effects of drug use on driving ability.

So, despite the fact that Mr. Torres was convicted by a jury and likely served most if not all of his 120 day sentence before his appeal was decided, his conviction was eventually reversed.  And that is significant, because most drug users reoffend even if they want and seek out treatment.  A prior conviction can have vast implications in a subsequent case including less willingness on the part of the prosecution to plea bargain and stiffer sentences.

If you have been charged with driving under the influence of a drug in San Diego County, it is essential that you contact a skilled San Diego DUI defense attorney.  A good lawyer will closely evaluate the evidence in your case and determine if the police and prosecution have collected enough evidence to seek and obtain a conviction. 

To the unskilled eye, the facts in Torres' case looked like he should plea to the charges. To a lawyer familiar with the holding in the Torres case and the entire intricate web of DUI case law, the facts presented an opportunity to get the charges dismissed.

Pauletta Santaua of El Cajon was convicted this week of one count of committing a lewd act on a child under the age of 14 (Pen C 288(a)).  The San Diego Union Tribune quotes the judge in the case, Peter C. Deddeh, who confirmed that Santau's involvement was limited to the one incident and that a psychologist determined Santaua was NOT a sexual predator.

So, why was Pauletta Santaua sentenced to register as a sex offender for the rest of her life?  The California Penal Code requires that every person convicted of a lewd act on a child under the age of 14 to register (Pen C 290(c)).  Judge Deddeh had no discretion to waive the registration requirement, even though he took notice of the fact that Santaua was not a sexual predator.

The whole purpose of sex offender registration is to provide law enforcement with up to date and accurate information regarding the location and propensities of people who are likely to reoffend.  An added benefit to the registration system allows every concerned parent to search a national registry for predators in their neighborhood.  When people like Santaua are forced to register, the whole system is watered down.  You can't tell Ms. Santaua's blip on the map of your neighborhood from the serial molestor two doors down. With all these dots, how are the police or concerned parents supposed to keep track of the dangerous predators?

Unlike many criminal defense lawyers, I think there is a place for sex offender registration in our community.  But the way the law is written now, the registration system is completely useless.  Many people don't realize that when Ms. Santaua is 89 years old and confined to wheel chair at the Shady Pines (assuming they will take a registered sex offender) - she will still be required to register.  The law is just ridiculous.

If you have been charged with an offense that has even the slightest of sexual undertones, you need to proceed with your case very carefully.  You will want to work with a skilled San Diego criminal defense lawyer who is very familiar with sex offender registration in California.  Many times a plea agreement can be negotiated with the prosecutor allowing you to plea to an offense which does not carry the mandatory registration requirement.

The United States Supreme Court handed down a decision this month that changes the rules regarding when a police officer may search a vehicle incident to the arrest of a vehicle occupant.  Prior to this decision, a San Diego Police officer or California Highway Patrol officer could search a vehicle after arresting a recent occupant of the vehicle for the purpose of securing the officer's safety.  You can read the opinion here: Arizona v. Gant.

The Fourth Amendment to the Constitution of the United States protects people from unreasonable searches and seizures.  In many instances, that means police must get a warrant prior to conducting a search.  The warrant requirement is subject to several exceptions.  There is a well used exception for vehicles, no warrant is required.  Police can search a vehicle as long as they have probable cause.

So what does the new decision change?  Let's say you are stopped for not having current vehicle registration and then arrested for drunk driving (DUI).  After your arrest, you are placed in the back of the police car.  It used to be that the police could search your car while you are safely locked up in the back of there's.  If they just happened to find a kilo of cocaine - your arrest just got more serious. 

Under the new rule in Gant, the police cannot search your car under those circumstances without probable cause.  And if they have probable cause that they will find an open container, for instance, that will not support a search for drugs in the trunk.

The California Penal Code provides for a hearing to determine whether the evidence in your case was legally obtained by the police.  If the judge at this suppression hearing finds that the police acted illegally, then the evidence might be thrown out. If evidence is thrown out, the prosecution may not have enough evidence to move forward with the case against you.  Even if there is still sufficient evidence to support the charges, your success at a suppression hearing will likely lead to a better plea offer.

The rules that protect you from unreasonable searches under the Fourth Amendment are extremely complex.  If you've been arrested and the police searched you, your house, your car or your belongings, you need a skilled California criminal defense lawyer who is familiar with the complex body of search and seizure law.

Continue reading "Supreme Court Limits Police Search of Cars" »

Once upon a time you did something stupid and managed to get charged and convicted of a crime in San Diego.  Once you have completed your probation, California Law allows you to petition the court to dismiss the original charges brought against you. This is sometimes called expungement. 

You can petition the San Diego Superior Court yourself to have your conviction expunged by downloading and submitting the appropriate forms (here for misdemeanors and here for felonies) and representing yourself at a hearing... or you can hire a criminal defense lawyer to help you.

To complete the forms, we will need to know the court file number and date of your conviction.  If your case is more than 10 years old, the courthouse probably won't have a record of your conviction.  In that case, you will need to provide a certified copy of the complaint, conviction, and clerk's minutes. But you probably don't have and can't get these documents.  Don't sweat it, you can get your criminal record from the California Department of Justice (DOJ).  The record is free, but you will have to pay up to $20 to have your fingerprints taken at a LiveScan location.

The court can charge you up to $120 for the services related to the petition, but that might be waived if you can demonstrate financial need.

Expungements are not overly complicated but they do have some significant limitations and involve jumping through some hoops.  If you are interested in cleaning up your criminal record but are intimidated by the prospect of representing yourself at a hearing in front of a judge - consider hiring a skilled California criminal defense attorney to complete the paperwork and appear on your behalf. 

You've done your time - let us help you put your past mistakes behind you.

On April 1st, 73 year old Virginia Kelly of San Ysidro was arrested at her home on felony charges of grand theft and embezzlement.  The San Diego District Attorney's Office alleges that Kelly has been hoarding toys from the Toys for Tots program and the Child Abuse Prevention Foundation.  More toys were allegedly donated directly to Kelly for distribution to children.

Investigators, acting on a warrant, painstakingly added up every marble, happy meal give-away and nail polish bottle they seized to announce that Kelly was in possession of 11,000 toys.  They even made a video to convey the "shocking" discovery to the jury pool.  Bonnie Dumanis, the San Diego District Attorney, made herself available immediately to try this case in the press saying, "Stealing from a charity and depriving needy children in San Diego of the chance to get a new toy is despicable."

It will be that video and Dumanis' cries of injustice that stick in the minds of every sound-bite junky in the San Diego County.  The even-handed article telling Virginia Kelly's side of the story that appeared in the dwindling circulation of the San Diego Union Tribune on April 7th will likely have little impact.  Public responses to that article, "Woman says she didn't sell toys," are already drawing parallels to the Grinch that Stole Christmas!

Continue reading "San Ysidro Senior Citizen Accused of Grand Theft... Stealing Toys from Children" »