San Diego Criminal Defense Attorney Blog

A crash in Vista early on August 13 on westbound State Route 78 left three dead and two injured. The accident occurred when a Jeep Cherokee reportedly swerved onto the right-hand shoulder of the freeway, slamming into the back of a Nissan Altima that had pulled over.

The driver of the Jeep, who was not wearing a seat belt, was thrown out of the car and suffered serious injuries. She was transported to a trauma center, but not before being arrested on suspicion of drunk driving and felony vehicular manslaughter charges. Her passenger, who was also without a seat belt, was crushed and killed.

Under California law, a driver can be charged with murder if, while driving under the influence, someone is killed as a result of that driving.

The driver of the Altima had pulled onto the shoulder because one of the passengers was feeling ill. Both the driver and the sick passenger were killed when the Jeep struck them on the side of the road. One other passenger, Omar Guzman, had stepped away from the Nissan before the crash and avoided injury. A fourth passenger suffered minor scrapes.

According to the San Diego Union-Tribune, including the three killed Friday, 12 people have died in alcohol-related crashes in San Diego County this year on freeways and roads patrolled by CHP. That compares with 49 deaths in DUI collisions in all of 2009 on CHP-patrolled freeways and roads in the county.

If you are arrested here in San Diego for DUI, you'll need an experienced and aggressive California DUI Attorney to handle your case. Contact my office immediately to ensure that you preserve your right to drive.

One common question that arises upon an arrest for a DUI is, "What happens to my license?" If you're represented by a public defender, it's often hard to get a good answer, since public defenders don't handle the DMV hearings in DUI cases and many of them don't know what happens. Thus, one benefit of having a private attorney is the ability to have representation at any DMV hearings.

This is the first part of a series of blogs that will discuss the DMV consequences of DUIs. This first entry with deal with the consequences of a first-time DUI, with a blood alcohol content (BAC) between 0.08% and 0.15%.

Upon arrest for a DUI where it is alleged that you have driven under the influence, in violation of either California Vehicle Code section 23152(b) or section 23152(a), the DMV can take administrative action against your driving privileges. This is different from the criminal court proceedings. What happens in court is separate from what happens with the DMV. The court has no power over the DMV to reinstate your license if the DMV suspends it, even if the charges are dropped, or you are convicted of a lesser charge (such as a wet reckless). You must take care of DMV actions through the DMV and court/criminal proceedings through the court.

The initial driver's license suspension upon arrest is four months. After 30 days of actual suspension, you are eligible to get a 5-month restricted license. You may have a hearing with the DMV regarding the status of your license prior to any court hearings.

If you are convictedof a DUI, a 6-month suspension is imposed. However, it can be converted into a 6-month restricted license upon proof of enrollment in the AB-541, which is the three-month first-offender program, payment of all applicable fees, and filing an SR-22 (a California Insurance Proof certificate). Note that if you have already enrolled in the first-offender program prior to conviction, judges will generally not require you to complete a different program upon conviction.

It is also important to know that, in some counties, a pilot program was initiated on July 1 of this year. This program may require the installation of an ignition interlock device even on a first-time DUI. For more information on this new program, click here.

DUIs may be misdemeanors in most situations, but they can still have a profound effect on your life. Contact my office for a free consultation today if you or someone you know has been arrested and charged with a DUI.

Faced with increasing problems and with no immediate relief in sight, a new California budget plan would require state prisons to remain in county jails.

As it stands now, those sentenced to over one year in custody would go to state prison, as opposed to local jails. However, under the new plan, those convicted of low-level felonies and sentenced to three years or less would remain in the custody of the local sheriff's department. Furthermore, parolees convicted of parole violations--who would normally be sent to prison--would also remain local. For some counties, such as San Diego, this would lead to an overcrowding problem that could potentially mean further early releases. The state is offering approximately $11,500 more per prisoner, but that money would go to probation department, rather than the Sheriff's department, in order to develop more education and employment programs for those in trouble with the law.

What would be the result? "Creative alternatives" to keep inmates in custody, according to San Diego County Sheriff Bill Gore. Such alternatives may include GPS monitoring and house arrest.

Budget negotiations remain underway in Sacramento, despite the new fiscal year having already started last week.

Continue reading "Local jails may soon house felons longer" »

The Fourth Amendment of the United States Constitution provides people "the right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." What this means, in plain English, is that a law enforcement officer cannot search a person--including that person's private property--without either a search warrant, consent, and/or an emergency situation.

But in Oakland, a little-known city program known as "SMART," which stands for Specialized Multi-Agency Response Team, has given law enforcement officials a way to potentially circumvent the Constitution. The purpose of a SMART inspection, in theory, is to "bring a building into code for a better quality of living." In practicality, it is a way for peace officers to enter and search a person's home without consent or a warrant.

Such inspections have been going on for years; however, it appears that few in Oakland actually know what a SMART inspection is or what justifies one. It is unclear how many inspections have actually led to criminal charges, though one recent inspection led to the discovery of a marijuana growth operation in an Oakland loft. That particular inspection has led to more attention being paid to this program and its constitutionality. What happens next has yet to be determined, but one thing is certain: the way the SMART program currently operates puts private citizens at risk of having their constitutional rights violated.

Protect yourself--know your rights and how to assert them. There is a constant battle between citizens and the police and prosecution regarding your right not to be searched unreasonably. That battle has a front here in San Diego as well.

If you have been charged of a crime here in San Diego, a good defense might start with examining whether your arrest or search of your person or belongings was reasonable under the law. If the actions of the police are questionable, we may want to run a motion to get the evidence in your case thrown out. An experienced lawyer can help you recover your rights.

On July 1, 2010, new legislation went into effect in the counties of Alameda, Los Angeles, Sacramento, and Tulare regarding first-time and repeat DUIs.

The new law requires that both first-time and repeat drunk driving offenders install an ignition-interlock device in their cars. This device prevents cars from starting if alcohol is detected on the breath of the driver.

The law will be in place in those four counties for the next five years before California legislators will decide whether to expand the program statewide.

There are both pros and cons to the new legislation. On the one hand, such a law may reduce the number of drunk driving accidents on the road. On the other hand, the law requires all people convicted of drunk driving to install this device in their cars--on top of court-imposed fines and fees resulting from the conviction, which can range from $1,000 to $5,000. The device costs approximately $125 to install and $60 a month to maintain, with a one-time DMV administrative fee of $45. For first-time DUI offenders, who must have the device installed for five months, this comes out to nearly $500. For subsequent offenders, the device may be required for up to three years. Drunk driving with injury will also increase the amount of time the device needs to be in the car.

Further complicating the matter for convicted drunk drivers is that the DMV has a list of approved "providers" to install the device. Having the device installed by a provider not on the list could result in more problems for drivers.

Continue reading "New DUI Legislation Goes Into Effect in Four CA Counties" »

Recent lawsuits challenging the constitutionality of California's early release program could end soon, if lawmakers have their way.

State lawmakers moved on April 29 to repeal much of the early release program signed into law by Governor Schwarzenegger to ease prison overcrowding and save money on a strained state budget. Senate members voted unanimously to roll back the program, due to concerns about who was being released. (Specifically, they cited a Sacramento man who was arrested on suspicion of rape within hours of his early release.)

The early release program, authorized by Senate Bill 18, went into effect in January of this year. Under the program, many inmates can earn "good time credits" at an increased rate, so that it, in essence, reduces their sentences by half. Previously, these credits only reduced sentences by a third. Under either program, the credits would not apply to certain inmates, such as third-strike offenders or those convicted of certain violent crimes.

Both Democrats and Republicans supported going back to the old system. However, lawmakers have not come up with an alternative plan to ease the original problems should the early release program be repealed, which looks likely to happen.

This is an excellent article over at Popehat. Remember that it is not a crime to assert your rights when stopped and detained by a police officer, nor can that assertion be used as probable cause to search or arrest. However, as Ken at Popehat points out, it's important to do this as calmly and politely as possible, simply as a practical matter. Unfortunately, we don't live in a perfect society where we can express our outrage at being wrongfully detained by the police to those officers. More likely than not, that would simply result in a charge of resisting arrest, which is a misdemeanor. Worse, it could provide the officer with that dreaded "probable cause" to search and even arrest. From there, as many know, it's an uphill battle:

But the reality is that our society largely issues apologies for, not denunciations of, police abuse. The prevailing belief is that claims of abuse are about lawyers or crooks trying to game the system, that people accused of crimes generally committed them, and that cops are heroes of the sort who deserve the benefit of the doubt when their account of a roadside encounter differs from that of a citizen. Our society, for the most part, indulges cops in their expectation that citizens will be subservient. As a result, "don't talk back to a cop" remains tragically apt practical advice.

Bottom line: know your rights and know how and when to properly assert them. If you're arrested anyway, contact an experienced San Diego criminal defense attorney to help you secure your rights.

If you live in San Diego--or anywhere in California, for that matter--chances are that you have heard something about the John Albert Gardner case (also called the Chelsea King case or the Amber Dubois case). Gardner, a convicted sex offender, was charged with the murder of Chelsea King and was also suspected of being involved in two other crimes, including the disappearance of 14-year-old Amber Dubois.

In a surprise hearing on Friday, April 16, Gardner pled guilty to the murders of Chelsea King and Amber Dubois, as well as assault with intent to commit rape in connection with a December 27 attack on a jogger, Candice Moncayo, near Lake Hodges Gardner admitted to raping, and murdering both King and Dubois. In exchange for his plea, Gardner will be sentenced to two consecutive life sentences without the possibility of parole.

It's safe to say that many expected the death penalty would be sought for Gardner, which is why the plea deal came as such a surprise. However, prosecutors acknowledged that, while they believed they could easily obtain a conviction for Chelsea King, the allegations involving Amber Dubois were much weaker. With this agreement, though Gardner avoids the death penalty, prosecutors were assured of two convictions against Gardner.

Though it might not seem like it at first glance, this is probably the best possible outcome for this case. This plea deal spares both the King and Dubois families the ordeal of trial and the media blitz that would have gone along with it (above and beyond the current media blitz). Furthermore, it saves taxpayers potentially millions of dollars by sidestepping further legal proceedings at both the trial stage and the appellate level. Had Gardner gone to trial and been convicted, an appeal of the conviction would have been likely. Had he been sentenced to death, an appeal would have been automatic and the costs to state taxpayers would have been far greater. As it stands, Gardner has one more court hearing, where he will be officially sentenced, and then he will be put into custody to serve his two life sentences.

Both the King and Dubois families, as well as District Attorney Bonnie Dumanis, recognized the shortcomings of a trial and potential death sentence, calling the death penalty a "hollow" and "empty promise." The agreement was done with the approval of both families.

The bottom line is that, though it might not be the conclusion many people expected or even desired, the plea agreement saves money, gives the King and Dubois families closure, and ultimately allows everyone to begin the process of healing and moving on.

Sources:
"Deal with prosecutors spares Gardner death," San Diego Union-Tribune, April 16, 2010
"State's death penalty: a hollow promise?," San Diego Union-Tribune, April 25, 2010

So you've been arrested and charged with a misdemeanor. What happens next? Here is a very brief overview of the legal proceedings in a misdemeanor case.

What is a misdemeanor? A misdemeanor is a crime that is punishable by a year or less in jail. Common misdemeanor offenses include DUIs, drunk in public, and possession of marijuana for personal use.

An arrest usually triggers further legal proceedings.

1. Arraignment. An arraignment is ordinarily your first court appearance in front of a judge, where you enter a plea of guilty or not guilty. This hearing must take place "without unnecessary delay," which usually means that, once arrested, you must be taken before a magistrate within 48 hours, with some exceptions (Sundays, holidays, etc.).


2. Pre-trial conferences. Between arraignment and trial, there will usually be at least one more court appearance, called a pre-trial conference or pre-trial hearing, where the district attorney (in San Diego, the city attorney) will offer you a plea bargain. This means that, in exchange for pleading "guilty" or "no contest," the DA/CA can drop a charge and/or lessen the punishment for the crime. You can elect to accept the plea bargain or continue to trial.


3. Motions. In some cases, it may be appropriate to file a pre-trial motion. There are different motions that may be filed and you will need to consult with your attorney.


4. Trial. You have a constitutional right to a jury trial, as well as what is called a "speedy trial." For a misdemeanor defendant in custody--meaning a defendant in jail--at the time of arraignment, the trial must occur within 30 calendar days after arraignment. For an out-of-custody defendant, the trial must occur within 45 days after arraignment. You may waive this right to allow your attorney more time to prepare your case.

At trial, you have the right to confront and cross-examine all witnesses against you and present evidence on your behalf. At the close of trial, a jury will deliberate and give a verdict.

Continue reading "Arrested For a Misdemeanor - Now What?" »

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.