Sacramento Criminal Defense Lawyer Blog

The First Appellate Court of California last week issued a decision that should be heeded by any person facing criminal charges and considering a police offer to reduce or dismiss those charges in exchange for cooperation in an investigation. In short, the court said that only the district attorney has the authority to reduce or dismiss charges. Any defendant offered a deal by police to "make the charges go away" has to ask for explicit confirmation from the D.A.'s office before agreeing to cooperate. Without such approval, a cooperation agreement lacks authority and leaves the defendant with little recourse if the D.A. later decides to press charges.

The appellate court's decision had two parts. First, it said that, though little state case law exists on cooperation agreements, federal case law clearly says that agreements between law enforcement and defendants are not binding without the approval of prosecutors. Thus at the local level, the authority to bring charges against a defendant rests solely with the district attorney's office. To decide otherwise, the court argued, would raise the possibility that a junior member of a police force could on her own negotiate dismissal of charges in exchange for assistance with an investigation.

The second part of the court's decision dealt with constitutional issues. A cooperation agreement could be enforceable without prior consent of the district attorney only if there had been a violation of the defendant's due process rights, such as incriminating himself or forgoing the right to counsel. When there is no "detrimental reliance" involving a constitutional consequence, the cooperation agreement need not be enforced.

Obviously, the problem here is that few defendants are aware of the distinction between police and prosecutor (they're both looked at as part of one law enforcement team) and hardly any defendants will be aware of this appellate court decision. What we can end up with is some police officers taking advantage of this lack of understanding on the part of defendants and convincing them to cooperate without explaining the need for D.A. approval of reduction of charges. And according to this decision, the defendants will have few if any means to enforce a cooperation agreement if the D.A. balks.

Thus, the First Appellate Court's decision is a cautionary tale with a clear moral: If the police offer you a deal in exchange for cooperation, the first thing to do is demand to speak with a lawyer, and the second is demand confirmation from the district attorney's office. Without that explicit affirmation from prosecutors, a deal to help with an investigation in exchange for a shorter sentence or reduced charges is no deal at all.

Cases of this kind require representation by a quality criminal defense attorney. If you have questions about a cooperation agreement, call the Law Office of Nancy King for a free and confidential consultation.

People v. C.S.A.., Court of Appeal of the State of California, First Appellate District

Last week the California Supreme Court gave its approval to arrest warrants that identify a suspect by DNA profile alone. Federal and state laws allow so-called 'John Doe' warrants, which identify a suspect by means other than a name. The question before the Court was whether a DNA profile satisfies the 'particularity' requirement, meaning that it identifies a suspect with sufficient clarity. The Court ruled that the unique quality of each person's DNA serves as an adequately precise descriptor of a suspect and thus is valid for arrest warrants.

The case involved Paul Robinson, who in 2000 was arrested in Sacramento County for a sexual assault that took place in 1994. The Sacramento D.A.'s office had issued an arrest warrant for the case four days before the end of the six-year statute of limitations period. Instead of the suspect's name, the warrant listed his DNA profile, which came from evidence at the crime scene. A few weeks later, an amended arrest warrant was issued, this time with the suspect's name, which had been obtained when the crime scene DNA evidence matched a profile in the state's DNA and Forensic Identification Data Base. Robinson was arrested, subsequently found guilty in Sacramento Superior Court and sentenced to state prison.

Robinson appealed his conviction on three grounds: 1. The original 'John Doe' arrest warrant did not constitute a valid commencement of prosecution within the statute of limitations period; 2. His DNA profile did not satisfy the 'particularity' requirement of an arrest warrant; 3. The police should not have been able to use his DNA profile in their investigation since it was obtained from an invalid application of the DNA and Forensic Identification Data Base and Data Bank Act while he was incarcerated for another offence in 1999.

The Supreme Court's majority disagreed with Robinson on all three issues. First, it affirmed that a 'John Doe' arrest warrant counts as the beginning of a prosecution and thus falls within the statute of limitations. Second, use of a DNA profile to identify a suspect on an arrest warrant is valid. The Court stated that, "For purposes of the Fourth Amendment, we conclude that the arrest warrant in question, which described the defendant by his 13-loci DNA profile and included an explanation that the profile had a random match probability such that there was essentially no chance of its being duplicated in the human population except in the case of genetically identical sibling, complied with the mandate of our federal Constitution that the person seized be described with particularity." Finally, the Court said that though the blood draw that placed Robinson's information in the DNA data base violated provisions of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, law enforcement personnel had made good faith attempts to comply with the law. The DNA evidence, therefore, need not be excluded.

The Court's decision does not mean that there is agreement about this issue. The two justices who dissented in the Robinson case argued that allowing 'John Doe' arrest warrants based on DNA evidence merely allows law enforcement to improperly extend the statute of limitations on a case. We'll have to watch the U.S. Supreme Court to see if it takes up this case or others like it.

If you have questions about arrest warrants, call the Law Office of Nancy King at 916-442-1200 for a free and confidential consultation.

The People v. Paul Eugene Robinson, Supreme Court of California, January 25, 2010

A wet reckless is a negotiated plea bargain that in certain cases is an advantageous outcome to a DUI arrest. The term wet reckless doesn't actually appear in the California Vehicle Code but derives from the provisions of section 23103.5 VC. It is essentially a conviction of reckless driving with alcohol related circumstances.

As with all negotiated pleas, a wet reckless is seen as offering something to both sides. Though the prosecution gives up the chance to get a DUI conviction, it does get a conviction of the lesser charge of reckless driving, as well as the ability to count the wet reckless as a DUI if the defendant gets another DUI within ten years. And though the defendant agrees to plead guilty to reckless driving involving alcohol, he gets the benefit of avoiding some of the harsher penalties that come with a DUI.

Typically, district attorney's offices are open to negotiating a wet reckless when the defendant's blood alcohol level is at or just above the legal limit of .08 and/or the circumstances of the arrest and the quality of the evidence weaken the prosecution's case.

Advantages of a wet reckless over a DUI:

• Jail sentences are typically shorter or waived altogether since a wet reckless does not have a minimum required jail term like a DUI.
• Probation periods can be shorter, reducing the chances that a person will do something to violate the terms of probation and thus incur additional penalties.
• There is no mandated suspension of the driver's license, obviously important for people who drive to work or who drive vehicles as part of their employment, such as truck drivers or delivery company workers.
• People with professional licenses (for example, attorneys, doctors, and pharmacists) can avoid sanctions that would normally come with a DUI conviction.
• Fines are lower, usually half of those for a DUI.

Disadvantages of a wet reckless:

• Like a DUI, a wet reckless can result in increased insurance rates.
• If another DUI is received within 10 years, the wet reckless conviction is treated like a prior DUI conviction when determining penalties.
• The DMV, through its Administrative Per Se hearing, can still suspend the driver's license of someone who accepts a wet reckless plea. (See our November 27, 2009 post for a detailed explanation of DMV hearings.)

It's important to understand that a wet reckless can only be negotiated by your criminal defense lawyer before trial begins. The police cannot arrest you for a wet reckless and it is not a sentencing option after trial. If you've been arrested for a DUI and have questions about a wet reckless plea, call the Law Office of Nancy King at 916-442-1200.

Two trials from southern California this month highlight the dangers of bicycle riding on California's crowded roads and the consequences for motorists who injure or kill bicyclists.

One incident, from 2008, involved Christopher Thompson, a doctor from the wealthy Los Angeles enclave of Brentwood. While driving to work on Mandeville Canyon Road, Thompson apparently became angry at a group of bicyclists, pulled his car ahead of them and then slammed on his breaks, causing serious injuries to two of the riders. Thompson claimed that the cyclists were making it hard for him to pass and making obscene gestures toward him, and he was stopping merely to get a photograph as evidence. The jury nonetheless found him guilty of assault with a deadly weapon and mayhem, and the judge sentenced him to five years in prison.

The other incident, from 2009 in San Diego County, involved a man who was driving his BMW in a bike lane and hit and killed a cyclist. Since the driver claimed to have never seen the cyclist and wasn't under the influence of drugs or alcohol, he was found to be merely negligent, meaning he was inattentive and careless rather than reckless or willfully hurtful. His conviction of misdemeanor manslaughter comes with three years probation, fines of $700, and mandated community service of 100 hours.

Both cases draw attention to the need for more bike lanes throughout the state and improved education of drivers of the need to share the road with cyclists. Bicyclists must also be aware of the need to obey all traffic laws. As California's roads become more congested, and more people take to riding their bikes to improve their health and save on transportation costs, we have to figure out how these two modes of transportation can coexist.

"Los Angeles Doctor Gets 5 Years For Injuring Cyclists," Los Angeles Times, January 9, 2010

"Criminal Penalties Limited When Cars Hit Cyclists," North County Times, January 16, 2010

A ruling by the California State Appellate Court for the Second District confirms that expungements may be granted for those people who violated the terms of their probation so long as their conduct since that time demonstrates that they have reformed and become contributing members of society.

The defendant in this case, Myrle Dennis McLernon, had filed a 1203.4 motion seeking expungement of his criminal record, which means that his conviction would be changed to a dismissal. (See our post from September 25, 2009, for a detailed look at the expungement process.) In most instances getting an expungement requires a person to complete probation, pay all fines and restitution, not spend time in state prison for the offense, and not currently have any criminal charges pending.

But the law also allows for an expungement if the terms of probation were violated but the court determines that expunging the record would "serve the interests of justice." What this means is that the defendant has the opportunity to submit evidence demonstrating how he/she has become a good citizen and turned away from crime.

In People v. McLernon, though, the Attorney General's Office put forward the fanciful argument that this evidence of changed behavior should only come from the period of probation. In other words, what the defendant did after probation ended should not be considered.

The appellate court dismissed this argument, saying that nothing in the law precludes courts from taking into account actions after the probation period has ended. From our perspective, this is the only position that makes sense, since a change in behavior for the good would in most cases come after the time when probation was violated.

The bottom line is this: a person who wants to expunge his criminal record but failed to complete probation can still have his attorney file a 1203.4 motion and present accompanying evidence of that person's reformed life and commitment to the responsibilities of citizenship. The judge will then weigh the evidence and determine whether the interests of justice call for an expungement of the record.

Obviously, hiring an attorney with experience with expungements is crucial if the motion is to be successful, particularly when there are issues of probation violation. Call the Law Office of Nancy King for a review of your case.

The new year brings a slew of new laws for Californians, more than 800 in fact. In addition to SB 598, which we profiled in our January 4 post, these new laws include:

SB 159 and SB 240 - require California motorists to slow down and, if possible, move to a lane away from emergency personnel, CalTrans workers, and tow truck drivers.

AB 576 - defines cities and counties as victims of graffiti, allowing them to seek restitution from taggers.

AB 962 - requires sellers of ammunition to keep a record of sales and ask for identification from purchasers.

AB 58 - defines participation in a sports betting pool (like an office might organize for the Super Bowl) as an infraction, as long as the pool is for less than $2500 (previous law categorized this as a misdemeanor or felony).

And finally our favorite (though it doesn't deal with criminal law), AB 606, which creates the California Blueberry Commission to "carry out programs of education, promotion, marketing, and research relating to blueberries." Believe it or not, the text of this law is over 7000 words! The Blueberry Commission is estimated to cost $1.2 million, paid for by the blueberry industry.

The Ninth Federal Circuit Court of Appeals issued a decision last month that sets important limits on the use of Tasers by law enforcement. The court's decision restricts the use of Tasers to situations in which there exists an "immediate threat to the safety of the officers or others." In other words, depending on the circumstances, non-lethal force can still be excessive force.

The ruling came as a result of a 2005 confrontation between Carl Bryan and City of Coronado Police Officer Brian McPherson. McPherson, who was stationed at an intersection checking for seat belt law compliance, saw that Bryan was not wearing a seat belt and ordered him to pull his vehicle over. Bryan became agitated because (1) he had received a speeding ticket earlier that morning, and (2) he had been locked out of his house and was wearing only boxers and shoes. (Click on the link below to read the court's decision and get all the details.) McPherson claims that after some back-and-forth Bryan, who was standing about 20 feet away, took a step toward him. Bryan claims that he did not. McPherson nonetheless fired his Taser at Bryan, who suffered temporary seizure and fell face forward, breaking four front teeth.

The court stated that though categorized as non-lethal force, and thus less severe than firearms, Tasers are nonetheless "more invasive" and capable of inflicting greater pain and harm than other methods, such as pepper spray. The X26 Taser used by McPherson shoots steel barbs that deliver a 1200-volt charge that causes extreme pain and temporary paralysis. Tasers can even cause death; eight people have died in the Sacramento region since 2003 after being stunned with Tasers by law enforcement.

In the incident between Bryan and McPherson, the court determined that use of the Taser violated Bryan's Fourth Amendment protection against excessive use of force, which arises from its prohibition of unreasonable searches. The court went on to say that while use of Tasers in some situations is warranted to prevent the need to employ lethal force, many confrontations, including the one between Bryan and McPherson, can be defused through less forceful means.

The bottom line is that the Ninth Circuit Court has made it clear that non-lethal force can still be excessive force in some instances. The decision is effective throughout the Ninth Circuit Court region of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It is possible that the U.S. Supreme Court could take up the issue if it receives requests for appeal on this case or others like it.

If you have questions about his topic, call the Law Office of Nancy King.

Bryan v. McPherson, U.S. Ninth Circuit Court of Appeals, December 28, 2009

"Deaths Following Use Of Tasers," Sacramento Bee, January 6, 2010

A new California law gives state residents convicted of second and third DUIs a new option that allows them to obtain a restricted license sooner than under previous law.

Until now, penalties for a 2nd DUI included a mandatory one-year suspension of driving privileges, while a 3rd DUI had a mandatory two-year suspension.

SB 598, which takes effect July 1, 2010, allows people to reduce the suspension time if they agree to have an Ignition Interlock Device (IID) installed on their vehicles and maintain enrollment in a DUI education program. Specifically, someone convicted of a 2nd DUI could get a restricted license after 90 days and someone convicted of a 3rd DUI could get a restricted license after 6 months.

IIDs require that a person blow into an alcohol detection device before starting a vehicle; if any alcohol is detected, the vehicle will not start. Restricted licenses allow people to drive in the course of their employment and to and from their alcohol education classes.

Our reading of the law is that it will apply to all people whose licenses have been suspended, not just those who are convicted after the law takes effect.

The full text of the bill, which amends California Vehicle Code 13352, can be accessed by clicking here.

If your license has been suspended because of a DUI, call the Law Office of Nancy King to learn about your options under this new law.

You can also read about AB 91 - the law which creates an IID test program in Sacramento, Los Angeles, Alameda, and Tulare counties - by reading our October 13 and 14 posts.

While courtroom dramas on television and in the movies give the impression that most criminal legal cases end up in trial before a judge and jury, the reality is that the vast majority - over ninety percent - are resolved through negotiation. These negotiations, which take place between the defense attorney, prosecutor, and judge, result in a plea bargain, a judgment that falls somewhere between the prosecutor's desire for a conviction on all charges and the defendant's desire for a dismissal or finding of not guilty. District attorney's offices and judges are motivated to negotiate plea bargains because there aren't enough courtrooms, prosecutors, judges, and jurors to have all cases go to trial. Your defense lawyer has to be able to use this to get you the best possible deal.

A plea bargain can take many forms depending on the alleged crime, evidence, and defendant's criminal history. It might be that a charge is dropped from a felony to a misdemeanor or one charge is dropped altogether if there are multiple charges. It could also involve reduced jail time, deferred entry of judgment, jail alternatives, residential treatment, ankle monitoring or work project.

During negotiation, the defense attorney points out weak evidence, questionable aspects of the investigation and arrest, as well as case law that contradicts the prosecution's argument and supports the defendant's, all with the purpose of having the prosecution question the strength of the case. The defense counsel also points to mitigating factors such as a minimal criminal history. The best outcome is to have the charges dismissed altogether. But when that's not possible, the goal is to get penalties reduced to the absolute lowest level that the DA is willing to accept.

The process of negotiating a plea bargain highlights the importance of having an experienced and skilled defense attorney. To get the best deal for her client, the defense attorney needs to have an up-to-date understanding of the law, be familiar with past actions of prosecutors and judges, and possess superior negotiating skills. From our perspective, it's advantageous to have a defense attorney with past experience as a prosecutor, and thus an understanding of how the DA's office approaches the plea bargain process. This "inside" information is valuable negotiating power.

If you have any questions, call the Law Office of Nancy King (former Yolo County Deputy District Attorney).

This Friday, December 18, the Sacramento Police Department will conduct a sobriety and drivers license checkpoint in south Sacramento, while CHP will have one in Rancho Cordova. These are the first of at least eight traffic screenings that law enforcement in the Sacramento region plans over the next two weeks.

Sacramento drivers are receiving particular scrutiny because of data showing that Sacramento ranks at the top of U.S. cities larger than a population of 250,000 in terms of injuries and fatalities caused by alcohol-related traffic accidents.

We strongly advise everyone to not drive after consuming alcohol or ingesting narcotics. The risk of injury to yourself and others is real, and the legal consequences can be severe. Moreover, California law enforcement conducts more DUI checkpoints than any other state and that number is only going to increase throughout 2010, dubbed by public safety agencies as the "Year of the Checkpoint." With district attorney's offices and courts pushing for harsher and harsher penalties for drunk drivers, you are well served to do whatever it takes to keep yourself and family and friends from driving while intoxicated. See our December 11 and August 18 posts for more information.

If you or someone you know is cited for a DUI, get experienced and knowledgeable legal representation. Contact the Law Office of Nancy King if you have any questions.

Sobriety and Drivers License CheckPoint Notification, Sacramento Police Department

CHP to conduct DUI checkpoint on Friday in Sacramento County, Sacramento Bee, December 16, 2009

More checkpoints bolster statewide, Sacramento DUI push, Sacramento Bee, December 17, 2009

With the holidays approaching and many people taking to the roads to visit family and friends, we thought it a good time to provide some highway safety data from Traffic: Why We Drive The Way We Do (And What It Says About Us), by Tom Vanderbilt. If you haven't read Traffic, get a copy and read it this weekend as you stay inside to avoid the rain. It's a tremendously interesting book that uses clear, accessible language to explain research on all aspects of life affected by motor vehicles and roads, including why it's best to form a single line when traffic merges from one lane down to two, the astonishing extent to which people are unaware of what's going on around them as they drive, and why roundabouts are safer than traffic signals.

The part of the book we'll focus on concerns the risk factors that contribute to traffic accidents.

• Speed: People in an accident at 50 miles per hour are fifteen times more likely to die than they are at 25 miles per hour
• Alcohol: Alcohol slows reflexes and diminishes the brain's ability to evaluate risk
• Gender: Men are more likely across all age groups to be involved in auto accidents
• Age: Teenagers are involved in more crashes because they lack experience behind the wheel, underestimate risk, and engage in activities that distract their attention, like talking on a cell phone
• Rural, non-interstate roads: The rate at which accidents occur is higher on country roads than it is on city streets

Interestingly, when analyzing accidents by profession, doctors are among the most accident-prone, perhaps because they tend to rush to and from work and can be fatigued after a long shift. Firefighters and pilots are toward the bottom of the risk list, perhaps because they are attuned to safety and their jobs give them skills that make them better drivers.

So as you enjoy time with family and go to end of the year parties, take it slow and be safe while on the roads. A little caution and some common sense can prevent injury, avoid entanglement with law enforcement, and make for a happy holiday season.

Tom Vanderilt's blog: How We Drive

People who have a "juvenile delinquency adjudication" - commonly referred to as a juvenile record - may petition the court to have that record sealed through the provisions of California Welfare and Institutions Code Section 781. As with expungement for adults, sealing of juvenile records is important for people who violated the law in the past but have since that time maintained a clean record and been contributing members of society.

It's important to understand the difference between juvenile and adult courts. Adult criminal courts in California deal with people 18 years of age and older accused of violating state and local laws. Adults found guilty of misdemeanors or felonies have a criminal record. It is possible at a later date to have this record expunged, whereby the conviction is replaced by a dismissal if specific requirements are met and the court believes that the person has learned from his/her experience. (See all our posts on expungement.)

Juvenile courts deal with minors, people 17 years of age and younger. A person found guilty in juvenile court has a juvenile delinquency adjudication rather than a criminal conviction. The idea is that since young people are not always appreciative of their responsibilities as citizens and understanding of the consequences of their actions, they should not have the stigma of a criminal conviction. Nonetheless, juvenile violations can still hinder people's ability to obtain employment or apply for college, even though they can legally answer no if asked if they have a criminal record. Thus the importance of having juvenile records sealed.

Having juvenile records sealed means that the court orders that all documents pertaining to the case - court records, police and probation reports - are sealed and inaccessible. (Exceptions to this are DMV records pertaining to driving violations.) Once the records are sealed, a person may legally say that he has no convictions and the courts and law enforcement must say that they have no record of a violation. Records are destroyed five years after they are sealed.

You may petition to have your juvenile records sealed if:

• It has been five years since your supervision by juvenile court ended or you have reached 18 years of age, whichever comes first;
• Your case began and ended in juvenile court;
• You have not been convicted of an adult court felony, or an adult court misdemeanor involving moral turpitude;
• You have not been convicted of any crimes listed under California Welfare and Institutions Code Section 707(b) after turning 14 years of age, including murder, arson, violent felonies, robbery, certain types of assaults and sex offenses and other serious violations;
• You can demonstrate that you have been rehabilitated;
• You do not have civil actions pending against you related to the incident that you wish sealed;
• You have paid all fines and restitution.

Continue reading "Sealing Juvenile Records" »

Among the most common interactions between citizens and police are traffic stops. Many of these are straightforward: a driver is speeding or doesn't heed a traffic signal and receives a citation from a police, sheriff, or CHP officer. Though the driver is irritated and out a few hundred dollars, nothing more serious results.

Some stops go beyond this, though, with charges of more serious crimes. This is where knowledge of probable cause and rules of search and seizure is so important.

Let's say that while driving home one night you're pulled over by your local police. Because of constitutional protections, police can't pull you over, detain you, or question you just because they feel like it. For an officer to initiate a traffic stop, he has to have probable cause, or some evidence that a crime has been, or is being, committed. (See our October 28 post for a general discussion of probable cause.) That means that he has to see you committing a traffic violation - e.g., driving too fast, weaving, rolling through a stop sign - or observe that some equipment on your car, like a brake light, isn't working.

Assume that the police do have probable cause to pull you over - your left front headlight is out - and during the course of this traffic stop, the officer asks for permission to search the car. Do you have to say yes? The short answer is, NO, and we advise clients to politely but clearly state something like, "I do not give my consent to a search of my vehicle." When police lack probable cause to search your vehicle, they must let you go on your way. Moreover, the officer is not allowed to hold your refusal against you.

Under some circumstances, though, police may conduct a vehicle search without your permission and without a warrant.

Though the Fourth Amendment appears to require that police obtain a warrant to conduct a search, the reality is not so simple. A traffic stop is one of those times when police may, depending on the circumstances, conduct a warrantless search.

The law is complex and ever changing on this issue, but there are some key guidelines to keep in mind. In Carroll v. United States (1925) the U.S. Supreme Court established the principle that police may conduct warrantless searches of motor vehicles if probable cause exists that evidence of a crime is present. The justification for this is that since motor vehicles are mobile, evidence could be carried away and disposed of if police were required to go off and ask a judge for a warrant. In California v. Acevedo (1991), the Court extended the scope of searches to include containers in a vehicle, again because the evidence in the container could be driven away and disposed of. Some limits on warrantless searches were articulated by the Court in Arizona v. Gant (2009) when it ruled that once a person has been arrested and moved away from the vehicle, police may not initiate a search unless that search pertains to evidence related to the crime for which the person was arrested. (See our detailed discussion of Arizona v. Gant in our August 23 post.)

The principles to keep in mind are (1) any warrantless search of a vehicle requires probable cause, and (2) without probable cause police must obtain your permission to conduct a search.

If you have questions or concerns about a traffic stop conducted by the police, sheriff, or CHP, call the Law Office of Nancy King.

A person charged with a DUI in California faces two parallel reviews of his case. One path takes him through the court system in the county where the alleged crime occurred. The district attorney's office looks over the facts of the case and any criminal history of the defendant and determines whether to file criminal charges. If charges are filed, the matter is dealt with in the local superior court, with a defense attorney representing the defendant, the prosecutor trying for a conviction, a jury determining guilt or innocence if a trial is necessary, and a judge overseeing the entire process.

The other path for a DUI, less well known to the public, takes the defendant through the Department of Motor Vehicles and what's called an administrative per se hearing. The purpose of the admin per se hearing is strictly to determine whether DMV will suspend the defendant's driver's license. It does not determine whether a person is guilty of a crime and has no bearing on a person's criminal record. The DMV hearing is completely separate from what occurs in the court process described above. In fact, a jury could find a defendant not guilty of a DUI and DMV could still suspend the driver's license.

This is what happens leading up to the hearing:

• All people arrested for DUI in California automatically have their driver's licenses taken by the police/sheriff/CHP and receive a temporary driving permit good for 30 days.
• The default action after that is that DMV will automatically suspend defendants' driver's licenses, with the length of the suspension depending on whether the defendant has had previous DUI violations and whether he submitted to a blood alcohol test.
• To avoid this automatic license suspension, DUI defendants must submit a request to DMV for an admin per se hearing within 10 calendar days of the arrest.
• Once the hearing has been requested, DMV issues another temporary license that's good until the outcome of the hearing.

The hearing is overseen not by a judge but by a DMV Hearing Officer. There is no jury and no prosecuting attorney. The Hearing Officer reviews the evidence, listens to the arguments presented by the defendant's attorney, and decides whether to suspend the license. The standard used by the Hearing Officer is different than that used in court. Where court trials use the demanding standard of guilt beyond a reasonable doubt, DMV hearings use preponderance of evidence. This means that all that is needed to suspend the driver's license is for the Hearing Officer to believe that more evidence of guilt exists than does evidence of innocence. Moreover, different rules of evidence apply to the DMV hearing compared to a court trial. For example, hearsay statements - when one person describes statements made by another person - are prohibited in court trials but are admissible in DMV hearings.

Because of this complicated process and the less stringent evidence standards, an experienced and knowledgeable defense attorney is critical to presenting the best possible case for preserving a defendant's driver's license. If you have questions about the DMV hearing process or other issues related to California DUI law, call the Law Office of Nancy King.

As the holidays approach, it's a good time to review California state and local laws relating to fireworks. While few people set off fireworks over Thanksgiving, many do on New Year's Eve and some find themselves facing criminal charges because they don't know what's legal and what isn't.

The California Department of Forestry and Fire Protection has an extensive compilation of the text of California's fireworks laws in a report titled Laws and Regulations for Transportation, Use, and Storage of Fireworks in California. A searchable database of fireworks laws, and all California laws, can be found at www.leginfo.ca.gov, the Official California Legislative Information website.

While California's fireworks laws have many details, the broad outline is simple.

• Consumer fireworks approved by the State Fire Marshall as "safe and sane" may be sold to the general public only between June 28 and July 6.
• State law does not impose limits on when consumer fireworks may be used.
• Counties and cities, however, have the authority to impose more stringent limits on consumer fireworks, including limiting their sale and use and instituting an outright ban.
• All other fireworks - those classified as dangerous by the State Fire Marshall - may not be sold to the general public, and people who possess and use them face criminal charges.

Section 12505 of the California Health and Safety Code has a lengthy list of fireworks considered dangerous and therefore illegal. Among these are:

• Fireworks that contain arsenic sulfide, magnesium, zirconium, and numerous other chemicals
• Firecrackers, skyrockets, roman candles, chasers, large sparklers
• Any other firework that the State Fire Marshall deems "unsafe for use by any person not specially qualified or trained in the use of fireworks"

Sections 12677 and 12700 make the mere possession of these dangerous fireworks unlawful, with fines and jail time dependant on the amount and type of fireworks involved and whether the defendant has previous violations.

As mentioned above, local governments may enact more restrictive regulations on the sale, possession, and use of fireworks, and the Sacramento region is a patchwork of different policies. For example, "safe and sane" consumer fireworks may be sold and used in Roseville but are illegal in unincorporated areas of Placer County, including Granite Bay. In the city of Sacramento, approved consumer fireworks may be used only between June 28 and July 4, while El Dorado County bans consumer fireworks altogether.

Fireworks displays - like you see at the State Fair or Disneyland - require a special license issued by the State Fire Marshall, approval of local authorities, and insurance.

As the end of the year approaches, take the time to understand the state and local laws regarding fireworks. If you have any questions or are facing criminal charges related to fireworks, call the Law Office of Nancy King.