Sacramento Criminal Defense Lawyer Blog

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.

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.

Sacramento made the pages of USA Today earlier this month after a crackdown by the California Highway Patrol on CUI, cycling under the influence. The story came as result of a CHP sweep of south Sacramento on October 23 that saw seven of 57 DUI arrests made against cyclists.

There is actually a specific section of the California vehicle code that deals with cycling under the influence. Section 21200.5 reads as follows:

• Notwithstanding Section 21200, it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug. Any person arrested for a violation of this section may request to have a chemical test made of the person's blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person's blood pursuant to Section 23612, and, if so requested, the arresting officer shall have the test performed. A conviction of a violation of this section shall be punished by a fine of not more than two hundred fifty dollars ($250).

The key aspects of this code are that no specific blood alcohol level is required to determine CUI. Officers can cite a person for the mere presence of alcohol in the blood, or other evidence that the person has consumed alcohol, such as riding a bike erratically. Because CUI is based on subjective interpretation of events and evidence by police officers, people cited for CUI can benefit greatly from an attorney who can mount an effective defense.

In terms of penalties, though a CUI is listed by DMV on a person's driving record for three years, there are no restrictions on driving or points accrued for auto insurance. The maximum $250 fine is significantly less than what a person would pay for a DUI.

Though CUI can have its humorous qualities, it is still a serious matter that can benefit from legal representation. A conviction, even for a CUI, still ends up on a person's criminal record and can have consequences in the future.

"Calif. Cops Crack Down on Drunken Biking," USA Today, November 1, 2009

California Vehicle Code Section 21200

The United States Department of Justice on October 19 issued new guidelines related to medical marijuana. The federal government will no longer prosecute distributors of medical marijuana in the 14 states, including California, that allow marijuana to be sold for medicinal purposes, as long as those operations are in compliance with relevant state laws. This represents a substantive change from the policies of the Bush administration, which initiated a vigorous federal effort to prosecute medical marijuana distributors

The memorandum detailing the new policy makes it clear that this change does not mean that the federal government gives up its authority to regulate medical marijuana distribution. However, the Justice Department has decided to focus its resources on going after illegal drug traffickers and manufacturers. Moreover, the memorandum states that federal authorities will continue to prosecute medical marijuana facilities that unlawfully possess firearms, sell to minors, engage in violence, sell amounts of marijuana inconsistent with medical use, sell other illegal drugs, engage in money laundering, or have ties to organized crime.

This new policy also does nothing to change California's laws regarding possession and use of marijuana for non-medicinal uses. Possession for personal use is a misdemeanor, with a fine of $100 for less than an ounce. Possession of more than an ounce can bring fines of $500, up to 6 months in county jail, and probation. Possession for sale carries severe penalties, including the possibility of state prison.

The danger for marijuana users, of course, is that they are arrested with marijuana that they claim is strictly for personal use but that the police claim is for sale. In all instances involving arrest for marijuana, legal representation is essential. Even the relatively mild penalties for possession for personal use result in a criminal record, which can have serious consequences when applying for a job.

In an upcoming post, we'll go into more detail on California's marijuana laws. In the meantime, see our September 3 post on California's drug court system.

Memorandum for Selected United State Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana

California Health and Safety Code Section 11357

The Wall Street Journal today had an excellent article on the increasing number of people seeking to expunge their criminal records. These were the main points:

• With fewer job openings because of the recession, competition for jobs is fierce.
• More employers are taking the time to conduct extensive background checks.
• Background data from across the country is readily accessible through online databases.

Employers are allowed to ask applicants if they have felonies on their records or other crimes that affect their ability to perform the duties of the job. Many employers, though, ask about misdemeanor convictions as well. The reality is that people have to be able to answer truthfully that they have no convictions on their records if they want to be competitive in today's job market. For those who meet the criteria - completed probation, paid all fines and restitution, no time in state prison for the offense, and no current criminal charges pending - the expungement process allows them to compete on a equal footing.

We have certainly seen evidence of this increase in interest in expungements. What's interesting as well is that we represent people from across the socio-economic spectrum. We see people who are trying to turn their lives around after a series of missteps. We also see people who committed a single crime during their younger days, paid the consequences, and then went on with their lives building families and establishing careers. Now, for a variety of reasons, they are looking for new jobs and their convictions from 20 years ago are limiting their job options. Expungement is vital in allowing them to continue to lead happy and productive lives.

For a more detailed discussion of the expungement process, see our September 25 post.

"More Job Seekers Scramble To Erase Their Criminal Past," The Wall Street Journal, November 12, 2009

The previous post described the process when someone is charged with a misdemeanor. Today's post reviews the process for a felony charge. Though the basic outline is the same, some important steps are added since felonies constitute more serious offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.

The felony process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation. In others, police will make an arrest as a result of evidence that comes before them in the field; the incident reports are then submitted to the district attorney's office for filing of a criminal "complaint." In still other cases, the police do not make an arrest but instead submit the investigation to the district attorney's office, which will then request an arrest warrant after filing a complaint.

First Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel and trial by jury. If the defendant is in custody, bail is set.

Preliminary Hearing: This must occur within 10 court days of the first arraignment unless "time is waived" by the defense [see explanation below]. The preliminary hearing requires the judge to determine whether sufficient evidence exists to maintain the criminal charges against the defendant and continue to the trial phase. While the standard used at trial is guilt beyond a reasonable doubt, the standard at the "prelim" is probable cause. The prosecution calls witnesses and presents evidence in an attempt to convince the judge that there is good reason to believe that a crime was committed and that the defendant committed it. The defense attorney may cross-examine the prosecution's witnesses and call her own witnesses and present evidence to challenge the charges. There is no jury at the prelim; the judge makes the final ruling whether the case should move forward as a felony, be recharged as a misdemeanor, or be dismissed altogether.

Waiving time: The defense frequently waives time between the arraignment and the preliminary hearing, meaning that the prelim may be scheduled later than 10 court days after the arraignment. This gives the defense attorney time to conduct an investigation, gather information, and negotiate with the district attorney.

Second Arraignment: After the preliminary hearing the district attorney files what's called an Information. The defendant is again brought before the judge to be arraigned on the Information, to hear the charges, and to enter a plea of guilty or not guilty.

Continue reading "Steps in the Criminal Justice Process: Felonies" »

Crimes are divided into three categories: infractions, misdemeanors, and felonies. (See our September 21 post for a detailed description of each of these.) Though each is dealt with according to the same general rules as it winds its way through the criminal justice system, more severe crimes follow a more complex and lengthy path.

Infractions like traffic tickets are pretty simple. Since no arrest is made, people cited for infractions can either pay the fine or contest the citation in court. Generally, defense lawyers and prosecutors are not involved. Instead, a judge handles review of the matter, determines whether the infraction was properly issued, and sets appropriate fines, if any are necessary.

Misdemeanors and felonies, because the potential penalties are more severe, involve more people and have more stages before a final decision - or verdict - is made. Today's post outlines the misdemeanor process. Our next post will review the felony process.

In each of these processes, a wide variety of people are involved: judges from the judicial branch of government; police/sheriff/CHP, prosecutors, and probation officers from the executive branch; defense attorneys; jurors. All play a different role as the allegation is reviewed and determination of guilt or innocence is made.

Misdemeanors - such as petty theft, reckless driving, first time DUI, simple assault and battery, possession of less than one once of marijuana, and under age drinking - carry penalties of up to one year in county jail, fines of up to $1000, counseling, and/or work project.

These are the stages in the misdemeanor process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation; in others, police will make an arrest as a result of evidence that comes before them in the field (e.g., they see someone selling drugs or committing a battery). The incident reports are then submitted to the district attorney's office for filing of a criminal "complaint."

Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel. Bail may be set, though misdemeanors generally have low bail requirements; often defendants are released on their own recognizance.

Continue reading "Steps in the Criminal Justice Process: Misdemeanors" »