AB 327 seeks to change the law to require that a third strike be categorized as violent or serious to result in a 25-year to life sentence. Non-violent or non-serious third felonies would instead result in a doubling of the applicable sentence.

The bill does come with restrictions, however. For example, the 25-year to life penalty would still be imposed for a non-violent, non-serious third strike if either of the previous strikes were for murder, rape, or child molestation.

AB 327 comes as part of a movement to assess the impact of three-strikes laws. The Legislative Analyst's Office reported in 2005, after 10 years of three-strikes enforcement, that there was considerable variation across the state regarding application of three-strikes penalties. Prosecutors in different counties have different policies about seeking sentence enhancements. Judges employ different standards is using their discretion to dismiss prior strikes. And policies within counties change as different district attorneys come into office.

In addition, it's not clear what impact three-strikes laws have had on crime rates. A Center on Juvenile and Criminal Justice report showed that the California counties with the highest rate of imprisonment using three-strikes laws (including Sacramento county) actually saw reductions in crime rates that were SMALLER than the reductions seen in the counties that employed three-strikes most sparingly.

Jones's appeal challenged the government's warrantless use of the GPS device, claiming that it constituted an unreasonable search and thus violated the Fourth Amendment. An appellate court agreed with him and overturned his conviction. The Supreme Court heard arguments in the case last fall.

Though the Court unanimously sided with Jones, it split into two groups that used different rationales for overturning his conviction. The majority opinion, authored by Justice Antonin Scalia, focused on the "physical intrusion" that resulted from the placement of the GPS unit on Jones's vehicle. The Fourth Amendment, the majority said, protects people's property from trespass by government. Attachment of the GPS device constituted a trespass and therefore a search, which requires a warrant. Since the police failed to obtain a warrant, the evidence obtained should have been suppressed at trial. The minority opinion, authored by Justice Samuel Alioto went further, stating that the gathering of information via the GPS unit constituted a violation of privacy.

This decision, and the various arguments offered by the justices, will have ramifications for future cases that involve other electronic data and communication, such as email, texts, and records of cell phone location and website traffic.

The Fourth Amendment of the U.S. Constitution declares that people should be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It falls to the courts to determine which government actions violate this principle. In each case, there is a need to balance the government's need to conduct a search with the invasion of privacy that the search causes.

The issue in Florence v. Board of Chosen Freeholders of County of Burlington is whether a jail can have a policy of conducting strip searches of every person who is arrested. Various federal appellate courts have issued conflicting decisions opinions, with some saying that such all-inclusive strip search policies violate the Fourth Amendment and others saying that they do not.

The Supreme Court will issue its decision later this year.

A wet reckless is a conviction for reckless driving involving alcohol. This can sometimes be negotiated by a defense attorney in cases that have problems or inconsistencies with the evidence or police procedure. The D.A.'s office, because it's not certain to get a DUI conviction, has an incentive to agree to the lesser offense of reckless driving involving alcohol. The defense attorney is willing to consider this option because the evidence, though problematic, still might lead to a DUI conviction if the case goes to trial.

A wet reckless has certain advantages over a DUI conviction, including no court mandated driver's license suspension, shorter probation period, lower fines, and shorter (or waived) jail sentence.

The disadvantages of a wet reckless are the possibility of higher insurance rates, the counting of a wet reckless as a DUI prior if you get another DUI conviction within 10 years, and, most importantly, the possibility that DMV can still suspend your license through its Admin Per Se hearing process.

What has changed as of January 1, 2012, is that a person who has a prior alcohol-related conviction and then gets a wet reckless can now be eligible for a restricted license after 90 days if he agrees to have an ignition interlock device (IID) installed on his vehicle. Prior to this, a person convicted of DUI could install the IID and end the suspension, but someone convicted of wet reckless could not even though wet reckless is considered a less serious offense. Vehicle Code 13353.3 now specifies that the IID option is available for someone who has "no more than two-prior alcohol-related convictions within 10 years."

DUI
AB 1601 gives judges the authority to impose a 10 year driving ban on people convicted of three DUIs within a 10 year period. This new law appears to conflict with Vehicle Code 13352, which allows drivers convicted of three DUIs within a 10 year span to get a restricted license after six months if they agree to install an ignition interlock device. More on this in a later blog post.

Synthetic Cannabis
AB 420 makes it a misdemeanor to possess, distribute, or sell any synthetic cannabinoid substance.

Cough Syrup
It is now an infraction, punishable by a fine of up to $250, to sell to someone under 18 years of age any over-the-counter medication containing dextromethorphan (a common ingredient in cough syrups). Dextromethorphan is sought by some recreational drug users for the high it produces when ingested in larger than recommended amounts.

Vehicle Impoundment
AB 353 bars police at DUI checkpoints from impounding vehicles of drivers whose sole offense is driving without a license. Drivers will now be allowed to move their vehicles off the road and find a licensed driver to take the car away. This law was enacted in response to concern that some local law enforcement agencies were using the impoundments - which far exceeded the number of DUI arrests - as a means of boosting revenues through fees charged for release of the vehicles.

Open Carry of Firearms
People who openly carry an unloaded handgun in public may be charged with a misdemeanor. AB 144, however, does provide a number of exceptions, including police officers, hunters, and people engaging in target shooting or participating in a parade.

United States v. Maynard concerns Lawrence Maynard, who in 2004 came under investigation by the FBI-Metropolitan P.D. Safe Streets Task Force in Washington, D.C., for suspicion of drug trafficking. As part of the investigation, police put a GPS device on Maynard's vehicle and monitored his movements continually for a month. After his arrest and eventual conviction for conspiracy to distribute and possession with intent to distribute a large quantity of cocaine, Maynard appealed to the District of Columbia Circuit Court.

The D.C. Court in its decision in 2010 ruled against the government, stating that prolonged surveillance by law enforcement using a GPS device constitutes a unreasonable warrantless search in violation of the Fourth Amendment. While the court said it is at times reasonable to use a GPS device to track a single journey from one location to another, GPS monitoring 24 hours a day for many days violates a person's reasonable expectation of privacy. In a review of existing law, the appellate court noted that California law already requires police to obtain a warrant before using a GPS device.

We hope that the Supreme Court agrees with the D.C. Circuit Court's ruling and limits the government's ability to use GPS monitoring. These technological advances that bring so much convenience to our lives can also allow government to intrude inappropriately on our privacy. The government's law enforcement duty must always be balanced with the need to preserve our civil liberties.

It's important to keep in mind, however, that the NTSB can only recommend that states enact this policy. In general, under our federal system of government, rules about driving are the province of state governments. Therefore, each state is free to take - or reject - the advice of the NTSB. It's highly unlikely - in fact, almost impossible to imagine - that California legislators would adopt a cell phone ban.

California counties provide people convicted of drug use and possession the option to seek treatment and avoid jail sentences. These programs (click here for more details) are based on the idea that helping people overcome addiction will result in fewer crimes in the future, since many crimes are committed as the result of impairment by drugs or in the quest for money to buy drugs. Data supports the benefits of drug courts. A 2007 NPC Research study concluded that while 67 percent of those who did not participate in drug court were arrested again within two years, only 17 percent of drug court participants were rearrested.

Because of local government budget cuts, Sacramento County's drug court has seen its funding fall in recent years. The problem is obviously worsened by the movement from state prison to county jail of some non-violent drug offenders, some of whom could be helped by drug court but aren't able to participate because of insufficient funds. County officials hope to boost drug court funding in the future, but at the moment Sacramento drug court is not able to help all those who could benefit.

The case concerns Troy Thomas, who was suspected of being involved in several burglaries between 2006 and 2008. While under surveillance on December 1, 2008, Thomas was pulled over for suspicion of DUI. After passing a number of sobriety tests - including blowing into a PAS device - Thomas was allowed to go.

What Thomas did't know was that the officers kept the mouthpiece that Thomas had blown into and subjected it to DNA analysis. When Thomas's DNA profile was compared to DNA evidence obtained at some of the burglary scenes, two matches were found. Thomas was subsequently charged with six counts of first-degree residential burglary. He pled no contest to one count and - because of enhancements for prior felonies - received a state prison sentence of 17 years. He appealed on the basis that the police violated his right to privacy when they used his saliva from the PAS mouthpiece for DNA testing.

The appellate court's decision boils down to this: Thomas had no expectation of privacy because the mouthpiece was a "discarded item" akin to a soda can or cigarette butt. Thomas, the court said, should have wiped off the mouthpiece. Because the police typically throw the used mouthpieces in the trash, they were justified in keeping the one used on Thomas and testing the saliva.

Again, in our view the appellate court has erred in its decision. A PAS mouthpiece - which the police required Thomas to blow into - is not analogous to another item like a can or cigarette that a person clearly possesses and then chooses to discard. It is unreasonable to think that someone blowing into an intoxication device will think he has a right to tell the police he wants to wipe off the mouthpiece, or even keep that particular component.

We hope that other appellate courts and the state supreme court reexamine this issue and come to a different and more reasonable conclusion.

People v. Thomas

The County of Sacramento Probation Department just announced that it has received an OTS grant to increase supervision of people with multiple DUI convictions. The grant of $360,000 will be used for a variety of programs, including random testing for drugs and alcohol, home searches, and office visits. The goal, the department says, is to ensure that high risk individuals are in compliance with the terms of their probation.

A separate OTS grant in Placer County allows a variety of law enforcement agencies in that region to set up DUI checkpoints, warrant sting operations, and extra patrols around times of higher incidence of drunk driving, including the Fourth of July and the winter holidays.

As Thanksgiving, Christmas, and New Year's approach, people are advised to give consideration to how they will transport themselves to and from holiday events. Be sure to arrange for designated drivers to protect your safety and the safety of others.

U.S. v. Sanchez concerns the arrest in 2008 of Arturo Sanchez, a U.S. citizen who was found by border police to have 64 pounds of cocaine in his vehicle. Sanchez said that he was paid to carry the drugs into the U.S. but claimed that he did so only because Mexican drug traffickers had threatened to harm his family if he didn't help them.

At trial, the prosecutor in his rebuttal to the defense attorney's closing argument said sarcastically to jurors, "[W]hy don't we send a memo to all drug traffickers" saying "when you hire someone to drive a load, tell them [to say] that they were forced to do it. . . . [T]hey'll get away with it if they just say their family was threatened."

The appellate court decided this statement was improper because it suggested to jurors that finding Sanchez not guilty would send the message that drug mules could avoid prosecution if they claimed they were merely trying to protect their families. The prosecutor's implication, the court said, was that Sanchez had to be convicted to send the "right" message.

Such an argument, however, violates the rules of trial procedure. When determining whether a defendant is guilty or not guilty, jurors are supposed to consider only the facts of each case, the relevant laws, and instructions given by the judge. The implications of conviction or acquittal - such as any message that might be sent to people considering criminal activity - should remain outside the scope of jurors' deliberations.

As stated above, Sanchez was not acquitted by this ruling. Instead, he faces a new trial, in which jurors will consider the facts of the case without prejudicial comments by prosecutors.

People v. Robey concerns Kewhan Robey, who attempted to send a package through FedEx from Santa Maria to Illinois. A FedEx employee in Santa Maria noticed the odor of marijuana emanating from the package and called the police, per company policy. The officers, both of whom had extensive narcotics training, also identified the odor as marijuana and seized the package as evidence and took it to the police station. When the department's narcotics unit decided to not take up the matter, the officers continued with their own investigation and opened the package, revealing nearly one pound of marijuana.

Robey, who had used a false name on the packing slip, returned to the FedEx office a few days later to find out why the package had not reached its destination. He was subsequently arrested and charged with possession for sale and transportation. Robey filed a motion arguing that his Fourth Amendment rights against unreasonable search and seizure were violated when the police opened the package without a warrant. The trial court denied that motion.

The appellate court, however, agreed with Robey, saying that police should have obtained a search warrant before opening the package. The key to their ruling is that no exigent, or emergency, circumstances existed. Generally, police are required to obtain a warrant from the courts before conducting a search. Under certain emergency circumstances, though, the police may conduct a search without a warrant. For example, police are given greater latitude with warrantless searches of vehicles because the evidence contained in a vehicle could be driven off and disposed of if police are not able to engage in a search immediately, without having to wait for a warrant from a judge.

In Robey, the appellate court said that since the officers had the package in the police station, an emergency situation did not exist. The officers simply needed to go to a judge and request a search warrant based on their observation that the smell of marijuana was coming from the package. Because they did not do this, Robey's Fourth Amendment rights were violated, and therefore the marijuana cannot be admitted as evidence.

Again, this case identifies important restrictions on the power of police to conduct searches. Certain legitimate instances exist when police may search without first obtaining a warrant. But absent those exigencies, our Fourth Amendment rights are preserved through the important check requiring police to obtain a warrant from the judicial branch.

Prison Cell Phones - The issue here was that some prisoners were getting ahold of cell phones, a violation of prison regulations. (A state Senate study, by the way, found that many of these phones were smuggled to inmates by prison guards.) This new law makes it illegal - and imposes criminal penalties - for prisoners to possess cell phones and for anyone to smuggle them into prison.

Open Carry of Handguns - This law makes it a misdemeanor to openly carry (meaning have visible) an unloaded handgun in certain public places. According to the law's author, Assemblyman Anthony Portantino, law enforcement agencies had requested the new legislation because they were being called by citizens who became concerned when they saw someone carrying a weapon. The agencies say their time can be better spent on matters which are a threat to public safety. Gun rights supporters argue that the new law violates the Second Amendment.

Sobriety Checkpoints - Governor Brown also approved a new law that places limits on the actions of law enforcement at DUI checkpoints. Specifically, police may no longer impound a vehicle solely because the driver is unlicensed. The impetus for this law was that some police and sheriff's departments were using the vehicle impounds as a way of generating revenue. The agencies would charge fees to have the vehicles released to the owners, and would in some instances receive a portion of the fees charged by towing companies. The new law requires that an unlicensed driver must still leave his car at the checkpoint but will have the opportunity to return with a licensed driver (and permission of the car's owner) to take the car away. People who have had their driver's licenses suspended or revoked will continue to have their vehicles impounded. And people who are in violation of state DUI laws will also continue to be subject to arrest and vehicle impoundment. Governor Brown did veto AB 1389, which also dealt with DUI checkpoints but would have dictated in more specific terms the rules for site selection, oversight, and methodology.

The background on this is that in 1996 California voters approved an initiative that allowed the use of marijuana for medical purposes. In the fifteen years since then, medical marijuana dispensaries have proliferated throughout the state. Federal prosecutors assert that some of the people growing marijuana have set up substantial operations that generate significant profits. It is these large scale producers that the feds are targeting.

It's important to bear in mind that this enforcement comes from the Department of Justice in Washington, D.C. Under our federal system of government, national laws are created in Congress and signed by the president, while California state laws come from the state Senate and Assembly and are signed by the governor. Thus, with these two systems, there are times when state and national laws come into conflict. Marijuana laws are an example of this. While California has decided that use of marijuana for medical purposes is okay, the national government continues to outlaw possession, use, sale, or cultivation. (Of course, adding further complication to the issue is that California law changed last year making possession of less than an ounce of marijuana an infraction, akin to a parking ticket.)

The Justice Department has said that it will for the most part not prosecute people who use medical marijuana. It has decided, however, to use its authority to bring charges against people it feels are violating the intent of California's medical marijuana laws by growing large quantities of pot and making substantial amounts of money. These charges would be dealt with in federal court, not California superior court.

The case of People v. Muniz concerns a 2006 incident in which the defendant went with a group to a house, woke up its occupants, smashed car windows, and attacked a teenage girl and boy. Muniz was convicted of vandalism and assault. He challenged his conviction on the grounds that the judge gave jurors improper instructions relating to the reasonable doubt standard, and that information of a prior conviction should not have been admitted as evidence.

The court's majority rejected his appeal. However, a dissenting opinion by Judge Miller agrees with the defendant. We find Judge Miller's arguments persuasive and believe that the court majority made the wrong decision. The discussion below relates to the meaning of "abiding conviction," the focus of Judge Miller's dissent.

The case pivots on the meaning of jury instructions concerning the concept of reasonable doubt. Jurors in California hear this description before a trial begins: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true."

At issue in this case is what the trial judge told jurors after reading that description. First, he said that proof beyond a reasonable doubt "leaves the minds of the jurors in that condition they cannot say they feel an abiding conviction of the truth of the charge." After explaining that jurors must have a "abiding conviction" that the charge is true, the judge went on to say that "abiding conviction" means "a long-lasting belief [that] when you come to a verdict you will be comfortable with it the day you do it, two months or a year from now."

The defense attorney asked the judge to change his instructions, asserting that the judge's explanation lowered the standard of proof needed for conviction. The judge refused to do so.

The appellate court's majority sides with the trial court, saying that the trial judge's use of the word comfortable pertained to the duration of the feeling, not its depth.

Again, we disagree with the majority and think that the dissenting opinion got it right. Judge Miller argues that "abiding" pertains to "how strongly and how deeply [the juror's] conviction must be held." Thus, a juror's belief that a defendant committed a crime must be lasting and permanent and deeply felt. The word "comfortable" does not convey this meaning.

Moreover, Judge Miller wrote, the trial judge created confusion when he initially told jurors that they did NOT need to have an abiding conviction about the veracity of the charges, and then provided the explanation about abiding conviction as a long-lasting belief.

The point here is that the instructions given by judges can have a great impact on how jurors decide a case. Defense attorneys must make sure that the correct instructions are given and that their clients' rights are protected.