Sacramento Criminal Defense Lawyer Blog

Sacramento County District Attorney Jan Scully this morning announced a new program aimed to prevent and more aggressively prosecute DUI-related automobile crashes involving injury or death. The two-year program is sponsored by a $1 million grant from the California Office of Traffic Safety and the National Highway Traffic Safety Administration.

The program will create a team of deputy district attorneys with specialized training in issues related to these more serious DUIs. Each incident will be prosecuted vertically, meaning that a single deputy DA will handle each case from the filing of criminal charges through trial. (Currently, DUI cases are handled by different deputy DAs at different phases of prosecution.)

Part of the grant will also be used for programs to educate the public on the dangers and consequences of drunk driving, with particular emphasis on educating young people.

As we've said before through this blog, we support all efforts to reduce the incidence of DUI. Given the tough stance on DUIs by district attorney offices throughout the Sacramento region, we encourage everyone to take the steps necessary to keep themselves and others from being the cause of drunk driving related injury or death. Our August 18 post has practical tips to keep yourself and others safe.

Finally, this more vigorous prosecution highlights the need for quality, experienced legal representation for people facing DUI charges.

Press Release on Felony DUI Vertical Prosecution Team

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - Fourth Amendment to the Constitution of the United States

Probable cause is among the most important legal protections U.S. citizens have against the exercise of government power. It is provided through the 4th Amendment because governments at all levels- national, state, and local - have great resources at their disposal to monitor people's activities, search their belongings, invade their residences, and deprive them of their liberty by arresting and jailing them. Citizens rely on the 4th Amendment to protect their privacy from government intrusion and their possessions from government seizure.

While the language of the 4th Amendment focuses on issuance of search warrants, probable cause comes into play in a variety of circumstances. One of the most common is when a police officer in the field suspects someone of engaging in criminal activity and must decide if probable cause exists to make an arrest.

Different definitions of probable cause have been articulated over the years, but they boil down to this: Can a reasonable person deduce from the evidence at hand that a crime has been or is being committed. Though similar to the notion of reasonable suspicion, which pertains to brief detention and questioning by police, probable cause is a more demanding standard, requiring more evidence and greater suspicion of wrongdoing. (See the October 22 post for a discussion of reasonable suspicion)

The difference between probable cause and reasonable suspicion in questioning and arrest can be illustrated this way. Let's say there's been a robbery at a local electronics store. Police may briefly detain and question a person if he is driving a car matching the description of a vehicle seen driving away at high speed from the store at the time of the robbery. Reasonable suspicion is satisfied. But more is needed for probable cause to make an arrest. One way would be for police to verify ownership of the car. If it is not registered to the person driving it, that is a step toward meeting the standard of probable cause. It doesn't prove guilt, but it certainly heightens suspicion. Next, police might look to the behavior of the person driving the car. If that person can't explain clearly where he's been or where's he's going, probable cause is closer to being met. Police, in this example, might also see boxes of what appear to be cell phones and Blu-ray disk players in the back seat. These facts taken together would most likely be enough to satisfy the standard of probable cause and allow police to make an arrest. It doesn't mean that the suspect is guilty; it means that sufficient evidence exists for the government to begin the process of filing formal criminal charges.

Continue reading "Probable Cause" »

As a follow-up to our October 9 post in which we explained the concept of reasonable doubt, today we look at reasonable suspicion. Though the words suspicion and doubt have related definitions in everyday usage, they have vastly different meanings and applications in criminal law when linked with the word reasonable.

Reasonable suspicion derives from the Fourth Amendment's right of the people to be free from unreasonable searches and seizures and pertains to law enforcement's ability to detain, question, or frisk a suspected criminal. A police officer must have more than a hunch. The standard is that a reasonable person looking at all the evidence believes that it is likely that the suspect has committed, or will soon commit, a crime.

What does this mean in practical terms? Here are a few examples. A person could be briefly detained and questioned by police if she/he: matches the physical description of a suspect; is driving the same make and color car that was involved in a crime; is seen running from the vicinity of a crime; is walking down the street with a handgun; or is seen on a surveillance camera leaving a store just after goods were stolen.

Many rules exist that complicate the matter, particularly related to frisking of a suspect, since frisking constitutes such an extreme invasion of privacy. For example, police may frisk a person whose clothing shows bulges that look like hidden weapons. They may not, however, frisk people for the mere suspicion of possessing drugs.

The detention and questioning of suspects has become known as a Terry Stop, because of the Supreme Court's ruling in Terry v. Ohio (1968), in which the Court laid down the principles of reasonable suspicion. The key thing to keep in mind is that each situation is different. Reasonable suspicion derives from the complete set of circumstances that law enforcement personnel encounter.

Our next post will cover probable cause, the standard required for police to obtain a warrant, conduct a search, or make an arrest.

Yesterday's post summarized newly passed California state law AB 91, which establishes pilot programs in Sacramento, Los Angeles, Alameda, and Tulare counties requiring people convicted of DUIs to have ignition interlock devices (IIDs) installed on their cars. Today's post explains why we think this new law should be challenged as unconstitutional. While we're sure that supporters of AB 91 are well intentioned and desire only to curtail drunk driving, we nonetheless believe that the law is a violation of the equal protection clause of the 14th Amendment.

Here is our argument: It is one thing for the state to set up general parameters for programs and then let localities decide for themselves the best means of implementation; it is another, and we think untenable, matter for the state to impose harsher penalties on the residents of four counties in the state and leave the penalties for residents of the rest of the counties unchanged. AB 91's IID requirement for Sacramento, Los Angeles, Alameda, and Tulare counties imposes just this sort of inequitable system. Calling it a pilot program doesn't justify or validate the uneven terms of punishment. What's to keep the legislature from passing a law mandating that people living in northern California automatically lose all driving privileges for 15 years after a first-time DUI conviction? Nothing except common sense (which the legislature often lacks) if AB 91 is allowed to stand.

Again, we support programs that reduce not just the number of DUI convictions but also the number of drunk drivers on the road, as long as those programs do not violate our rights granted by the U.S. Constitution. We see this law, no matter how well intentioned, as a violation of the 14th Amendment's promise of equal protection under the law.

We would rather see discretion left with the courts or even a statewide program that gives people convicted of DUI the option of having the IID installed on their vehicles in lieu of a license suspension. Many people lose their jobs when their driver's licenses are suspended as a result of a DUI conviction. The IID would be a good alternative that would keep people from driving while intoxicated, allow them to keep their jobs, and remain productive members of society.

Text of AB 91

We're putting the finishing touches on a post stating our concerns about AB 91, the new California law requiring ignition interlock devices on vehicles operated by DUI offenders, signed yesterday by Governor Schwarzenegger. In a nutshell, our reservations deal with what we see as the law's violation of citizens' 14th Amendment equal protection rights. In the meantime, we're providing this summary of the law's provisions.

AB 91 does nothing to change the current system of license suspensions and other penalties for DUI convictions. It establishes a pilot program in Sacramento, Los Angeles, Alameda, and Tulare counties requiring people convicted of DUIs to have ignition interlock devices (IIDs) installed on their cars. This test program begins July 1, 2010, and expires on January 1, 2016, unless the legislature acts to renew it and possibly expand it to the rest of the state.

People convicted of DUI (California Vehicle Code 23152) will have to install IIDs on all vehicles they operate for these periods of time:
First offense - 5 months
Second offense - 12 months
Third offense - 24 months
Fourth offense - 36 months

People convicted of DUI and causing injury to another person (California Vehicle Code 23153) will have to install IIDs on all vehicles they operate for these periods of time:
First offense - 12 months
Second offense - 24 months
Third offense - 36 months
Fourth offense - 48 months

AB 91 requires that DUI offenders pay for the approximately $75 installation cost of the IIDs and $50 monthly monitoring expense unless they meet these criteria:
100% of the federal poverty level or less - pay 10% of the cost
101 to 200% of the federal poverty level - pay 25% of the cost
201 to 300% of the federal poverty level - pay 50% of the cost

Continue reading "AB 91: California's New DUI Law Requiring Ignition Interlock Devices" »

Last week a Los Angeles Superior Court judge agreed to Mel Gibson's request to have his 2006 DUI conviction expunged from his record. This event allows us to follow up on our September 25 post on the expungement process and drive home a couple key points.

First, Mr. Gibson - like all other applicants for expungement in California - had to meet these criteria to qualify: complete probation, pay all fines and restitution, not have spent time in state prison for the offense, and not currently have any criminal charges pending.

Second, the expungement does not remove any mention of the DUI from his criminal record. Instead, his record will now show a dismissal pursuant to California Penal Code Section 1203.4. This is done so that if Mr. Gibson receives another DUI in the future the courts will have a record of what he did before and be able to impose a stiffer penalty. In other words, it will still be considered a "prior" for the purposes of future DUI arrests.

So the process of expungement exists to allow people who have learned from their past mistakes and deserve the opportunity to move forward with their lives without the stigma of a conviction on their records. It also gives the courts a record of what occurred so that if any crimes are committed after the expungement, more severe penalties can be administered.

Reasonable doubt is one of those concepts we hear so often that it's easy to accept as a truth without considering its precise meaning. As a follow up to our September 29 post on presumption of innocence, today's post will explore what is meant by this fundamental principle of the American justice system.

Before jurors begin hearing testimony and seeing evidence in a criminal case, the judge gives them instructions on topics ranging from confidentiality to note taking to what to do if they have questions. In California, jurors hear this explanation of reasonable doubt: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."

Attempts have been made in recent years to clarify jury instructions, but this definition of reasonable doubt can still leave people outside the legal system scratching their heads. To gain a clear understanding, it's best to build backwards, first exploring what is meant by "doubt," then "reasonable," and finally "beyond." Before we do that, a reminder: the burden of proof in criminal proceedings is on the prosecution. Because of the presumption of innocence, the state has to convince the jury that the defendant is guilty. And the standard that must be met is guilt beyond a reasonable doubt.

"Doubt" in this context refers to uncertainty. If I doubt that someone committed a crime, I'm not convinced that he did it. The standard for determining guilt, though, isn't concerned with unreasonable, fanciful doubts. What we care about are "reasonable" doubts, plausible alternative explanations that keep a reasonable person from saying with certitude that a defendant is guilty.

Finally there is "beyond." Though in everyday language beyond might have a connotation of distance, in relation to reasonable doubt it really means "eliminating" or "excluding."

So when we say that the standard in a criminal trial is proof beyond a reasonable doubt, we mean that a reasonable person has looked at the evidence and is left with only one plausible explanation: the defendant did it. If that standard is not met, then a jury must acquit the defendant.

Continue reading "Reasonable Doubt" »

Since Roman Polanksi was arrested in Switzerland two weeks ago, the airwaves, print pages, and blogosphere have been inundated with people voicing either their pleas for Polanski's release or stating their disgust at his crime and satisfaction that he might wind up behind bars. Though this is a criminal defense blog, we feel the need to add to the chorus voicing support for Polanski's extradition.

You're probably familiar with the details, but here is a brief summary. In 1977, Polanski was arrested in Los Angeles for plying a 13 year-old girl with alcohol and drugs and then raping her. He agreed to plead guilty to a lesser charge of unlawful intercourse with a minor and was given a 42-day jail sentence, to be served after completing a film under production at the time. After finishing the project, though, he promptly skipped off to France, where he has citizenship, and remained free for the next 32 years. He was arrest when he traveled to Switzerland to receive a lifetime achievement award at a film festival.

To us, the issue is simple and rests on the constitutional guarantee of equal treatment under the law. Just as the poor, marginalized, and powerless of our society should not be deprived of their constitutional protections when faced with criminal charges, the wealthy, famous, politically powerful, and social elite should not be granted preferential treatment.

A number of entertainment industry titans have said that Polanski should be set free because - pick one - the incident was a "mistake" that happened a long time ago, it wasn't actually a rape, attendees at film festivals should be free from the threat of arrest, and artistic talent trumps culpability for criminal acts.

We are not persuaded. Equal treatment under the law means just that. Everyone gets treated the same. The most disadvantaged person in our society must have the same privileges and immunities as the most powerful. Polanski pled guilty. He needs to face the consequences. End of story.

DUI penalties have become substantially more severe in California over the last 10 years as a result of the nationwide campaign against drunk driving. This makes it imperative that people do what it takes to not drink and drive. For common sense suggestions to keep yourself and others safe, see our August 18 post.

The penalty a person receives for a drunk driving conviction depends on two factors: the number of prior convictions and aggravating circumstances. Here's a basic outline of possible penalties without consideration of aggravating issues.

First offense DUI -- Fines between $390 and $1000, jail time from 48 hours to six months, license suspension for six months, probation from three to five years, and other penalties
Second offense DUI -- Fines between $390 and $1000, jail time from 10 days to one year, license suspension for one year, probation from three to five years, and other penalties
Third offense DUI -- Fines between $390 and $1000, jail time from 120 days to one year, license suspension for two years, probation from three to five years, and other penalties
Fourth offense DUI -- Fines between $390 and $1000, jail time from 180 days to one year, license suspension for three years, and other penalties. A fourth DUI is a felony offense if all previous DUI convictions occurred within 10 years.

For each of the offenses outlined above, keep in mind that fees and penalty assessments can increase fines 500% or more.

Continue reading "DUI Penalties and Prior Convictions" »

A recent ruling by the U. S. Ninth Circuit Court of Appeals brings together federal agents, computer data files, Major League Baseball players, and steroids in a fascinating defense of privacy against unreasonable government searches. Though the court's decision is tailored only to federal law enforcement, it does provide a glimpse of rules that state and local police may be subject to in the future.

In brief, the Ninth Circuit Court's decision in United States v. Comprehensive Drug Testing, Inc. (U.S. v. CDT) says this: (1) a warrant to search through a computer database does not grant federal agents the authority to open all files in that database; (2) federal judges in the Ninth Circuit District granting future search warrants of this type must require federal agents to waive the "plain view" rule as it applies to electronic records; (3) personnel who are not law enforcement agents must review the files in the seized database and then pass along to federal agents information related to the scope of the search warrant.

At this point, only federal warrants in the district covered by the court's decision (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) must abide by these rules.

Here's the background: in 2003, federal agents obtained computer data as part of an investigation into the use of performance enhancing drugs by Major League Baseball players. Federal agents were searching for information on ten players in particular, but during their review of the computer files they came across evidence that incriminated other people as well.

Continue reading "The Fourth Amendment, Search Warrants, and Electronic Evidence" »