Sacramento Criminal Defense Lawyer Blog

Brandon Mullock, the Sacramento police officer arrested in January for brandishing a firearm while off-duty - and since that incident accused of filing falsified reports on DUI arrests - has resigned. Mullock had been on administrative leave since his arrest.

During its investigation of the January arrest, the Sacramento Police Department discovered irregularities in reports filed by Mullock on several DUI cases. Specifically, the details in Mullock's reports differed from the evidence provided by audio and video recordings made by equipment in Mullock's police vehicle.

The Sacramento District Attorney's Office has already dismissed charges in two of those cases, and nearly 200 more of Mullock's DUI arrests are under review. The DA's Office is not able to say at this point how many other cases will be affected.

A hearing on the reviewed cases has been scheduled for September 17 at 1:30 PM in department 9 of the Sacramento county courthouse.

Mullock had been with the department for three years and a member of the DUI task force since October 2009.

"Officer Resigns after Criminal Investigation," Sacramento Police Department new release, August 31, 2010

"Prosecutors review nearly 200 cases tied to former officer," Sacramento Bee, August 31, 2010

In recent posts we've covered separately Miranda rights and California DUI law. It's important to be aware, however, how Miranda applies to DUI, including some important limitations.

People often ask these questions: "When I was arrested for DUI, the officer did not read me my Miranda rights. Isn't that a violation of police procedure? Doesn't that somehow compromise the prosecution's case?"

The answers to those questions are usually no and no. Here's why.

Your Miranda rights are the following:

• you have the right to remain silent;
• any statements you make may be used against you in a court of law;
• you have the right to an attorney;
• if you can't afford an attorney, the court will appoint one.

This Miranda warning concerns your rights when two conditions are met: first, you are in police custody (i.e., you've been arrested and detained); second, you are being subjected to an interrogation (the police are asking you questions about the alleged crime).

If the police pull you over for suspicion of DUI, they will pose a series of questions to determine if you are impaired. These questions are considered an investigation that precedes an arrest. Keep in mind the conditions listed above that require police to advise you of your Miranda rights: arrest, detention, and interrogation. Pre-arrest investigative questions do not constitute a Miranda violation.

It's also important to understand that any comments you make during a casual conversation with the officer may be used against you. For example, let's say that you talk with the officer while being transported from the arrest scene to the jail. If the officer has not initiated a formal interrogation about the alleged crime, then Miranda does not apply.

Finally, if you are pulled over for suspicion of DUI, you are within your rights to inform the officer that you do not wish to answer any questions. If the police wish to interrogate you, a Miranda warning should be given and you should seek the advice of an attorney before answering any questions.

If you have any questions about DUI and Miranda rights, call the Law Office of Nancy King at (916) 442-1200.

California's 'hit and run' laws are very specific in their requirement that a person whose vehicle is involved in any sort of accident or collision must stop and identify himself and, if necessary, give aid to injured people. Failure to do so can result in serious criminal charges. It makes no difference if you are not at fault; you must stop.

Today's post focuses on Vehicle Code 20002, which pertains to damage of property, and Vehicle Codes 20001, 20003, and 20004, which pertain to incidents that result in death or injury.

If your vehicle causes damage to any property - including but not limited to other vehicles, road signs, dwellings, fences, and gas pumps - Vehicle Code 20002 requires you to stop and identify yourself to the property owners and law enforcement personnel. Even if you were obeying all traffic laws and were not at fault, you must stop. Specifically, VC 20002 requires you to:

• Identify yourself to the owner of the damaged property and provide your driver's license and vehicle registration information;
• Leave a note with your contact information if the owner of the property can't be located;
• Report the incident to the police or other local law enforcement agency.

In addition to charges that might be filed because of the incident - such as DUI or reckless driving - failure to comply with the requirements of VC 20002 can be charged as a misdemeanor and comes with the possibility of up to six months in county jail and $1000 in fines.

If your vehicle is involved in an incident that results in injury or death to another person, Vehicle Codes 20001, 20003, and 20004 require you to stop, identify yourself, and provide assistance to any injured parties. A violation of these codes can be charged as either a misdemeanor or a felony. A misdemeanor conviction can be punished by up to a year in county jail, while a felony conviction can be punished by a sentence to state prison. Potential fines range from $1,000 to $10,000.

If you have questions about hit and run laws in California, contact the Law Office of Nancy King at (916) 442-1200.

The arrest in May of Sacramento Kings star Tyreke Evans for driving 130 miles an hour on Interstate 80 threw a spotlight on speeding and reckless driving on Sacramento's freeways - and the penalties that come with a conviction. The Sacramento Bee's Tony Bizjak published an article on Monday detailing the surprising number of people cited for excessive speed (Vehicle Code 22348) and reckless driving (Vehicle Code 23103). It turns out that over 80 people were issued citations by CHP for driving in excess of 100 MPH in May and June on freeways in Sacramento and Stockton.

Speeding and reckless driving convictions come with costly penalties. VC 22348 says that a first conviction for excessive speed (over 100 miles per hour) results in a $500 fine and loss of driving privileges for 30 days, with the amount fines and length of license suspension increasing with each conviction. A reckless driving conviction under VC 23103 can be punished by up to 90 days in county jail and/or fines up to $1000.

If you've been cited for excessive speed or reckless driving, contact the Law Office of Nancy King at (916) 442-1200 for a free consultation.

Triple Digit Speeders Surprising in Number, CHP Figures Show, Sacramento Bee, August 9, 2010

The Miranda warning is an element of the criminal justice system that through TV and movies has become widely recognized among Americans. This warning, which springs from the U.S. Supreme Court's 1966 decision in Miranda v. Arizona, is meant to ensure that citizens understand their constitutional rights if they are arrested and subjected to interrogation by law enforcement. Supreme Court decisions during the past year, however, have placed important restrictions on the scope of the Miranda warning.

In 1963, Ernesto Miranda was arrested for the kidnapping and rape of an 18 year old mentally handicapped woman. During questioning by the police, Miranda admitted to the crime. His confession was used at trial and he was found guilty.

The U.S. Supreme Court agreed to review the case and in its decision said that people must be provided with basic information on their constitutional rights. At the time of Miranda's arrest, the presumption was that this was the responsibility of the individual. The Court ruled, however, that police must provide the following information to anyone arrested and interrogated: they have the right to remain silent; any statements they make may be used against them in a court of law; they have the right to an attorney; if they can't afford an attorney, the court will appoint one. None of this information had been provided to Miranda.

Note that the focus is on instances when someone is arrested and interrogated. Thus, someone who has not been arrested but is merely answering questions posed by police (such as during a traffic stop) need not be informed of his Miranda rights. Incriminating information provided during this sort of questioning may be used as evidence during a trial.

Two recent Supreme Court decisions placed additional important limitations on Miranda rights. In Berghuis v. Thompkins, the Court decided that the burden of invoking the right to remain silent falls on the suspect. That means that if a person does not clearly invoke his 5th Amendment right to silence, police may continue with their interrogation. In the other decision, Maryland v. Shatzer, the Court stated that for suspects who have invoked their Miranda rights and then been released, these protections do not inhibit police indefinitely. The Court declared that a 14 day period was sufficient to allow the suspect to contact a defense lawyer and decide what to do if contacted again by law enforcement. After those 14 days, police may again approach and pose questions to the suspect.

The law surrounding Miranda rights is complex and changing. If you have questions about this topic or others covered in our blog, call the Law Office of Nancy King at (916) 442-1200.

The Sacramento Bee on July 26 published an article that documents the rising abuse of OxyContin by many people in their teens and 20s.

OxyContin is a prescription pain killer that's derived from opium and has been on the market since 1995. Many young people try it because it can be ingested merely by swallowing a pill and lacks the stigma associated with other drugs such as heroine or cocaine. It is highly addictive, however, and can result in a physical dependence within a few weeks.

The Bee's article gives a valuable profile of the dangers of abuse of OxyContin. What we would add is that Diversion (also known as Deferred Entry of Judgment) and Proposition 36 provide alternatives to incarceration for people arrested for illegal use of OxyContin and other prescription medications. These programs - intended for people accused of drug use or possession, not drug manufacture, sale, or trafficking - allow the possibility of avoiding a conviction in exchange for completion of a drug treatment program.

For a complete description of Diversion (Deferred Entry of Judgment), see our July 9 post. For a complete description of Proposition 36, see our July 15 post.

If you have questions about alternative sentencing programs, call the Law Office of Nancy King at (916) 442-1200.

Teens, Young Adults Abuse OxyContin in Northern California, Sacramento Bee, Monday, July 26, 2010

The Department of Motor Vehicles has issued a memo that states that all people convicted of DUI in Sacramento County - regardless of their county of residence - will be required to install Ignition Interlock Devices on their vehicles as part of a test program created under Vehicle Code 23700. Sacramento County is one of four counties in California - including Los Angeles, Alameda, and Tulare - that were required by the passage last year of AB 91 to establish these DUI test programs for evaluation through 2016.

The memo (Occupational Licensing Industry News - OLIN 2010-08) specifically declares:

Individuals convicted of driving under the influence (DUI) under Vehicle Code (VC) §§23152, 23153, or Penal Code (PC) §191.5(b) in one of the four pilot counties must install a certified IID on any vehicle that he/she owns or operates, before a driver license can be issued, reissued, or the driving privilege reinstated. The IID requirement is determined if the conviction occurs in one of the four pilot counties; not the driver's county of residence.

If you have questions about this new law, or other California DUI laws, call the Law Office of Nancy King at (916) 442-1200.

Occupational Licensing Industry News - OLIN 2010-08

Three local police departments have announced that they will be conducting traffic checkpoints the night of Friday, July 13. The Sacramento, Folsom, and Rancho Cordova police departments are all using grants from the California Office of Traffic Safety and the National Highway Traffic Safety Administration to fund these efforts to check drivers for sobriety, as well as valid driver's licenses.

Folsom PD will run its checkpoint from 7:00 PM to 3:00 AM and Rancho Cordova PD will run its from 8:00 PM to 2:00 PM. Sacramento PD has not stated when its checkpoint will begin and end. At this point, the precise locations for each checkpoint have not been made public.

As always, we advise you to take the steps necessary to keep yourself and others safe if you plan on going out drinking tomorrow night. That means, choose a designated driver, put taxi phone numbers into your cell phone, hire a limo, or take public transportation. Police and prosecutors in the Sacramento region treat DUIs severely. A few minutes spent planning or a few dollars spent on transportation can save you a lot of money and aggravation by avoiding arrest for driving while intoxicated.

If you have any questions about California's DUI laws, call the Law Office of Nancy King at (916) 442-1200.

Folsom PD press release
Sacramento PD press release
Rancho Cordova press release

Effective July 1, 2010, Vehicle Code Section 13352 was amended to incorporate the provisions of SB 598 and SB 895, laws enacted by the legislature and governor providing for shorter license suspension periods for 2nd and 3rd DUIs in exchange for installation of Ignition Interlock Devices. It is important to remember that this is a statewide law and is distinct from the Ignition Interlock Device test program that is being run in Sacramento, Los Angeles, Tulare, and Alameda counties. Click here for details on that program, detailed in VC 23700.

VC 13352(a)(3) states that drivers convicted of a second DUI within a ten year period may get a restricted license after 90 days if they install Ignition Interlock Devices (IID) on their vehicles. (A restricted license allows driving to and from work and in the course of employment, and to and from DUI related education classes.) If IIDs are not installed, the term of license suspension is two years.

VC 13352(a)(5) states that drivers convicted of a third DUI within a ten year period may get a restricted license after six months if they install IIDs on their vehicles. If IIDs are not installed, the term of suspension is three years.

Driving under the influence offenses that involve reckless driving, drugs, injuries, or factors can result in enhanced penalties.

The following requirements must be met to qualify for a restricted license under VC 13352:

• Proof of enrollment in, and continuing satisfactory participation in, an 18 month or 30 month DUI education program;
• Proof of installation of an Ignition Interlock Device;
• Proof of insurance;
• Payment of all related fees and of all administrative costs associated with the new law's provisions.

As mentioned in previous blog posts, we are still waiting for a statement from DMV about to whom precisely the law will apply. We will post that information as soon as it becomes available.

If you have questions about this new Ignition Interlock Device law, contact the Law Office of Nancy King at (916) 442-1200.

Proposition 36, passed by California voters in 2000, provides some people accused of non-violent possession or use of illegal drugs the opportunity to undergo drug treatment rather than be sentenced to jail or prison. Codified in Penal Code 1210.1, Proposition 36 is similar to Deferred Entry of Judgment - described in the July 9 post - though it differs in several ways. Like Deferred Entry of Judgment, PC 1210.1 is intended only for people accused of drug use or possession. It is not an option for those accused of drug manufacture, sale, or trafficking.

The program works like this. The defendant agrees to plead guilty to the drug possession or use charge, and a conviction is placed on his/her criminal record. Instead of being sentenced to jail or prison, however, the defendant is placed on probation with the stipulation that he/she completes a drug treatment program. Additional requirements - such as counseling or community service - may also be imposed.

If all of the terms of probation are fulfilled, the judge orders the conviction replaced with a dismissal. Significantly, PC 1210.1(e)(1) holds that "both the arrest and the conviction shall be deemed never to have occurred." This means that the defendant does not have to disclose the incident to questions that might arise in the course of an application for employment. (An exception to this is when applying for a position as a peace officer.)

Because the guidelines for PC 1210.1 are complicated, it's important to speak with an experienced defense attorney to see if you qualify. For example, those who do not qualify include people who used a deadly weapon while under the influence of drugs, refused to undergo drug treatment as a requirement of probation, or have undergone treatment twice before under PC 1210.1. Moreover, the program is not an option for many people convicted of serious felonies, though it might be available for them if during the previous five years they have not been imprisoned and have not been convicted of a felony other than a non-violent drug possession.

If you have questions about drug treatment under PC 1210.1 - Proposition 36 - contact the Law Office of Nancy King at (916) 442-1200.

Deferred Entry of Judgment under PC 1000 - commonly referred to as Diversion - gives people accused of drug possession or use the opportunity to undergo drug treatment rather than be sentenced to jail or prison, as well as the possibility of keeping a conviction off of their records. The program is designed as an option for those arrested for drug use or possession; it is not available for people accused of selling, manufacturing, or trafficking drugs.

To qualify for Deferred Entry of Judgment (DEJ) / Diversion, the defendant must meet several requirements, including:

• No prior convictions for drug possession;
• No element of violence in the current offense;
• No outstanding probation or parole violations;
• No participation in a diversion or deferred entry of judgment program in the previous five years;
• No prior felony convictions in the previous five years.

Under DEJ, the defendant agrees to plead guilty to the drug possession or use charges in exchange for the deferred entry of judgment from the court. What this means is that the judge agrees to wait 18 months to 3 years before entering the final judgment for the case. During that time, the defendant completes a drug treatment program and maintains a clean criminal record. If these conditions are met, the judge "sets aside" the original guilty plea. This means that no conviction is recorded on the defendant's record.

Successfully meeting the terms of the program even means that the arrest for drug possession or use is considered to have never happened. This can obviously be beneficial in instances when a person is questioned about his/her criminal history, such as when applying for employment. (An exception to this is when a person applies for a position as a peace officer.)

Deferred Entry of Judgment / Diversion is a good option for many people arrested for drug use or possession. If you have questions about Deferred Entry of Judgment programs, contact the Law Office of Nancy King at (916) 442-1200.

The Department of Motor Vehicles has posted on its website a memo that outlines how it will handle the Ignition Interlock Device test programs that will take effect on July 1 in Sacramento, Tulare, Alameda, and Los Angeles counties. [Click here to read a summary of the new law's provisions.]

The memo states that "The new law - passed by the Legislature and signed by Governor Schwarzenegger in 2009 -- prohibits an offender from being issued or reissued a driver license by DMV following a suspension or revocation for any DUI violation in a pilot county that occurs on or after July 1, 2010, until an offender provides proof of IID installation and pays a $45 administrative service fee, in addition to meeting all other reinstatement requirements."

Note that DMV is taking the position that the test program applies only to violations that take place on or after the law takes effect on July 1.

We will monitor this issue and let you know if this changes. Also, we will watch for DMV's policy regarding the other ignition interlock device (IID) law that takes effect throughout the state on July 1 as well. That new law provides repeat DMV offenders the option to get a restricted license sooner than has been allowed under existing law if IIDs are installed on all vehicles driven by the convicted person.

"Ignition Interlock Law Takes Effect July 1 - Five-year pilot would study effectiveness in selected counties," Department of Motor Vehicles

SB 895 - legislation intended to clarify the law pertaining to obtaining a restricted license after conviction of a DUI - was signed by Governor Schwarzenegger on Tuesday. As of July 1, people convicted of a 2nd DUI within a 10 year period will be eligible for a restricted license after 90 days, and people convicted of a 3rd DUI within a 10 year period will be eligible after 6 months. These requirements must be met:

• Proof of enrollment in a driving-under-the-influence education program;
• Installation of ignition interlock devices on vehicles used by the convicted person, who is responsible for all installation costs;
• Proof of insurance;
• Payment of all pertinent fines and fees;
• Payment of administrative costs to the DMV for oversight of the installation.

Click here for more information on these new rules regarding DUI.

Click here for the text of SB 895.

Contact the Law Office of Nancy King if you have questions about this topic or others covered in our blog.

The California Health & Safety Code lays out the penalties for use, possession, and sale of marijuana. Depending on the nature of the violation, charges can be filed as either misdemeanor or felony, and penalties can include fines and time in county jail or state prison.

Having a qualified criminal defense lawyer is crucial when facing drug charges. Simple possession charges can often be increased to possession for sale, and the presence of drug paraphernalia can result in additional charges. On the other hand, people facing simple possession charges for marijuana may have the option of having their cases go through drug court, which can result in a dismissal of charges. (See the explanation below for more details.) Contact an experienced defense lawyer for review of the details of your case.

These Health & Safety Code sections pertain to marijuana.

H&S 11357

Simple possession of marijuana is considered a misdemeanor. Possession of an ounce (28.5 grams) or less comes with a maximum fine of $100 and no jail time. Possession of more than an ounce has a maximum fine of $500 and up to six months in county jail, though a jail sentence is rarely given out.

As mentioned above, people facing charges under H&S 11357 may have the option of drug court, which allows entry of a plea of guilty in exchange for a "deferred entry of judgment" from the court. Once proof is provided of completion of a drug treatment program, the charges are dismissed by the court. To qualify for drug court, defendants must have a clean criminal record for the preceding five years, and the current charges must not involve any sort of violence.

H&S 11358

Cultivating and processing marijuana is considered a felony punishable by time in state prison.

H&S 11359

Possession of marijuana with the intent to sell is a felony punishable by time in state prison.

H&S 11360

Transportation and importation of marijuana is a felony punishable by state prison terms of two, three, or four years.

H&S 11364

Possession of drug related paraphernalia - such as bongs and roach clips for pot - is illegal.

If you have questions about laws related to marijuana, call the Law Office of Nancy King at (916) 442-1200.

Last year the California legislature and Governor Schwarzenegger passed a law (SB 598) that would give people convicted of 2nd and 3rd DUIs the option to obtain a restricted driving license sooner than under existing law if they agreed to install ignition interlock devices (IIDs) on their vehicles. (Ignition interlock devices require the driver to blow into a device that tests for alcohol on the breath. If any alcohol is present, the vehicle will not start.) Because of ambiguity in the law's text, however, "clean up" legislation has been introduced to clarify the law's intent.

The confusion stems from the fact that in California people convicted of DUI face two separate processes that can result in suspension of driving privileges. The first takes place in the courts, which upon conviction of Vehicle Code 23152 (a) or (b) can suspend a driver's license. The second takes place through the Department of Motor Vehicles, which through an Administrative Per Se hearing can also suspend a driver's license for driving with a blood alcohol content of 0.08% or higher.

The language of SB 598 focuses on court proceedings and omits mention of the DMV process. SB 895 has therefore been introduced to fix this oversight. Passage of the legislation appears imminent.

What this means is that people convicted of a second DUI within a 10 year period will have the option of getting a restricted license 90 days into their license suspension period if they agree to install ignition interlock devices on their vehicles. People convicted of a third DUI with a 10 year period will have the option of getting a restricted license 6 months into their license suspension period if they install IIDs. A restricted license allows driving related to employment and to and from alcohol education classes.

Our understanding at this time is that the new law will apply only to arrests made on or after July 1, 2010. [Note: This issue remains unsettled as of 6/15/10. We will update the blog as information becomes available.]

If you have questions about this topic, or others covered in our blog, contact the Law Office of Nancy King at (916) 442-1200.