Sacramento Criminal Defense Lawyer Blog

With abundant rain this winter, California's lakes, reservoirs, and rivers are quickly filling up. And as the weather gets warmer, more people will take out their boats for a relaxing day on the water. Everyone who enjoys boating, though, needs to keep in mind California's strict laws regarding boating under the influence of alcohol or drugs.

Harbors and Navigation Code 655 lays out the rules regarding operation of watercraft in the California. This law makes it:

• A crime to operate a recreational vessel with a blood alcohol content of 0.08% or higher.
• A crime to operate a commercial vessel with a blood alcohol content of 0.04% or higher.
• A crime to operate a water ski or aquaplane after ingesting any amount of alcohol or drug.
• A crime to use a water ski or aquaplane in a "reckless or negligent manner" that poses a danger to others.

Many people assume that they get a free pass from law enforcement when consuming alcohol on the local rivers because it's not illegal to have an open container on a boat. The reality is different though. BUI is considered especially dangerous because of the speeds that boats can attain, the difficulty of stopping a boat quickly, and the lack of distinct lanes of traffic compared to streets and freeways.

Penalties for BUI are severe with fines up to $1000 and jail time of up to six months. In addition, though a 2008 California Supreme Court case made it clear that the DMV is not allowed to suspend a person's automobile driver's license for conviction of a BUI, a BUI conviction can be counted as a "prior" if the person is arrested for DUI within the next 10 years.

The sheriff's department of each county is responsible for patrolling waterways in its jurisdiction. The Sacramento Sheriff's Department, for example, oversees the Sacramento River north of downtown Sacramento all the way down through the delta region at the county's southern border. The Yolo County Sheriff's Department covers the Sacramento River, Cache Canyon, Putah Creek, and other waterways within the county. The Yolo Sheriff's Department just announced, in fact, that it is using a grant from the state to purchase additional watercraft for law enforcement and rescue operations.

If you have been arrested for boating under the influence, call Nancy King at (916) 442-1200 for a free and confidential consultation.

A report by California Watch and UC Berkeley's Investigative Reporting Program documents the growing number of car impoundments at police checkpoints throughout the state, and presents compelling evidence that this increase has been motivated in large part by the resulting revenue that flows to cash strapped local governments.

Checkpoints conducted by the CHP and local police have increased dramatically in recent years as a means to combat DUI. But many police agencies don't just check drivers' sobriety. They also ask to see a driver's license, and if they find an unlicensed driver, they impound the car for 30 days.

The constitutional problem is this: the Federal Ninth Circuit Court ruled in 2005 that such impoundments constitute an "unreasonable seizure under the Fourth Amendment . . . if the only justification is that the driver is unlicensed." CHP has ceased impounding vehicles since that ruling, but many police agencies - including the Sacramento Police Department - continue the practice.

At checkpoints last year throughout the state, 24,000 cars were impounded, nearly 8 times the number of DUI arrests made. And the irony is that while an unlicensed driver loses his car for 30 days, a drunk driver can retrieve his car after only one day.

To be clear, this doesn't mean that a person who leaves her driver's license at home and goes through a checkpoint will have her car impounded. The focus is on people who are not legally licensed to drive.

Many of those drivers who have their cars impounded are illegal immigrants who simply abandon their vehicles in impoundment. The sale of those vehicles results in additional revenue to local governments.

All of this adds up to big money. In 2009, towing fees, fines, and car auctions generated $40 million, split between towing companies and local agencies. Additionally, $30 million, provided by the California Office of Traffic Safety, went to pay for police overtime to staff the checkpoints.

The Ninth Circuit Court is expected to make another ruling on this issue later this year. We hope that they make it clear that these impoundments violate the Constitution's protection against unreasonable seizures.

"Car seizures at DUI checkpoints prove profitable for cities, raise legal questions," Ryan Gabrielson, California Watch, February 13, 2010

The tortured tale of time credits at the Sacramento County jail seems to finally have come to a close. Judge Loren McMaster on Friday ruled against the request by the Sacramento Sheriff's Deputies Association to block implementation at the jail of a new state law increasing the amount of early release time inmates could earn for good behavior.

The ruling comes after a hearing that saw the sheriff's deputies association on one side arguing against the new law, and the Sacramento district attorney's office, Sacramento public defender's office, and the state attorney general's office all on the other side arguing for it.

Keep in mind that before this new law went into effect January 25, state prison and county jail inmates in California were already able to earn early release if they met good behavior requirements. All the new law did was increase the amount of credit that could be earned. (See our previous posts for full explanations of this.) The new law was seen as necessary because of the twin problems of budget constraints and overcrowding in jails and prisons.

Throughout this battle, the sheriff's deputies association has made two arguments: the new law was meant to increase time credits at state prisons only, not county jails; and the increased number of prisoners obtaining early release would endanger the public.

In the end, McMaster was not persuaded. County jail inmates will now get one day of credit toward early release for each day they serve with good behavior.

The actions by the deputies' union do raise questions, though, especially after the deputies were opposed in court by their law enforcement partners, the district attorney and the attorney general. It seems clear to us that the new law applies to county jails, not just state prisons. If the deputies want to return to the provisions of the old law, they are better served trying to get the legislature and governor to pass an amended law rather than circumventing the legislative process.

What was their motivation?

The new state law that increases the amount of time a jail sentence may be reduced for good behavior continues to be the subject of an ill-considered legal battle in Sacramento County. (For a review of the law's provisions, see our previous post.)

The superior court judge who last week issued an order blocking enforcement of the law yesterday reversed himself and said that the law must be implemented until county jail inmates are able to bring their legal concerns before the court. "While county jail inmates may not be indispensable parties in the technical sense," Judge Loren McMaster wrote, "they are real parties in interest since the resolution of this matter directly affects them and their status."

While we're pleased that McMaster has temporarily allowed the law to be implemented, we still disagree with his original ruling. The legislature clearly meant for the new law to merely amend a previous state law that already allowed state prison and county jail inmates to be released early for good behavior. All the new law did was increase the amount of credit that could be earned in an attempt to relieve prison and jail overcrowding.

Sadly, McMaster's rulings have only resulted in confusion and inequity. We know of at least one inmate who got caught in the middle of this wrangling and received no credit at all for good behavior, because he entered Sacramento County Jail just as McMaster issued his original injunction blocking the new law, and was released today, just as the injunction was lifted.

At least one issue has been clarified: The California Attorney General's Office has advised the Sacramento Sheriff's Department, which oversees the jail, that the new system of determining time credits should only apply to time served after January 25.

More on this issue as it develops.

"More inmates to be released early as Sacramento judge rescinds earlier order," Sacramento Bee, February 17, 2010

Confusion reigns at the Sacramento County Jail after a Sacramento Superior Court judge blocked implementation of a new state law increasing the amount of time credit inmates at the county jail can get for good behavior.

Judge Loren McMaster issued the injunction on Wednesday in response to a lawsuit brought by the Sacramento County sheriff's deputies union, which claims that the California Community Corrections Performance Incentives Act of 2009 applies only to state prisons and not county jails.

The new law, enacted by the legislature and the governor to deal with overcrowding of California's prisons and jails, was meant merely to modify and expand a previous state law that allowed prisoners, both in the state prison system and county jails, to have their sentences reduced if they met certain good behavior criteria. Under the old law, prisoners were eligible for fifty percent credit, meaning a one day sentence reduction for every two days served. That meant someone sentenced to 60 days could be released after 40 days. The new law increased the opportunity for time credits to one day reduced sentence for each day served, giving a person with a 60-day sentence the chance to get out in 30 days.

The absurdity of this situation comes in many forms:

• The Sacramento Sheriff's Department, along with sheriff's departments in 20 other California counties, has taken the official position of implementing the law. As a result now you have the Sheriff's Department saying it intends to enforce the new law while the sheriff's deputies union fights to block it.
• After Judge McMaster issued the injunction on Wednesday, the Sheriff's Department declared that there would be NO GOOD TIME CREDIT GIVEN AT ALL until the matter is resolved, even though such credit had been granted for 34 years under previous law. So now you have people in custody who would have been granted one-for-two credit for good behavior under the old law, were expecting to get one-for-one credit under the new law, and now find that they get no credit at all.
• Complicating things even more, McMaster on Thursday issued a clarification that said that good time credit would continue to be awarded, but only for the portions of sentences served before January 25, the date the new law took effect.
• And finally, some Sacramento judges are apparently giving out sentences with calculations for credit for time served based on the old law.

The state legislature is apparently working to pass a law that would clarify who should receive credits, but given the shambles that is our legislature (what's happened to Abel Maldonado's nomination for lieutenant governor is a good example) we shouldn't expect quick action. The result is that this has taken away the incentives for good behavior for people serving time in county jail, and exacerbated an already serious problem of jail overcrowding.

What a mess.

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

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

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 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" »

A U.S. Supreme Court decision delivered this past spring has forced states to review the circumstances when crime lab technicians are required to testify in court about their reports. While this ruling has generally been praised by criminal defense attorneys, it has resulted in some confusion as state courts interpret and apply it. In fact, the situation is so muddled in California at this point, that two different state appellate courts - one in Sacramento and one in Los Angeles - have come up with opposite rulings even though the cases they confront are nearly identical.

Here's the background: The U.S. Supreme Court in June delivered its opinion in Melendez-Diaz v. Massachusetts, a case that asked this question: Are crime lab reports akin to business records, factual documents that can be submitted into evidence without cross-examination of the preparer, or are they "testimonial" in nature, with the perspective and bias of any witness for the prosecution, and thus subject to the Sixth Amendment's guarantee that the accused can confront and cross-examine witnesses?

Criminal defense attorneys were pleased when the Court declared that crime lab reports were testimonial and that defendants had to be able to cross-examine lab personnel. This is critical because defense attorneys need the opportunity to question technicians on their overall expertise, as well the procedures used in the preparation of specific lab reports. Though most reports are factually accurate, some are faulty, and defendants and their lawyers need the opportunity to "confront" the government's witnesses.

While many states had allowed lab reports to be submitted into evidence as factual documents (like an accountant's audit, for example) without the testimony of the preparer, California already had the practice of providing defense lawyers the opportunity to cross-examine lab personnel. This was even discussed during oral arguments before the Supreme Court for Melendez-Diaz.

But an interesting repercussion of this decision has already arisen here in California. Two different California appellate courts this summer came up with opposite applications of the Melendez-Diaz ruling. In one case, a state appellate court in Los Angeles ruled that it was okay for a member of the coroner's staff to testify about the contents of a report even though that person had not actually done the analysis. In another case, a state appellate court in Sacramento made the opposite ruling, requiring the person who actually did the lab work and wrote the report to appear in court. This is clearly an issue headed to the state Supreme Court, since one of that court's roles is to ensure uniform application of the law through the state.

It is our view that it is critical to have the report writer in court to testify not only to the data the report contains but also to the processes used, the background and expertise of lab personnel, and even the maintenance procedures followed for lab equipment. Defendants - whether accused of DUI, drug possession, theft, murder, or any other crime - have the right to be certain that law enforcement has followed appropriate safeguards in the acquisition and analysis of evidence and that the data presented in reports is accurate.

Melendez-Diaz v. Massachusetts, U.S. Supreme Court
Oral Arguments for Melendez-Diaz v. Massachusetts
"Court Weighs Use of Crime Lab Reports at Trial," Associated Press, November 10, 2008
"California Appellate Courts Clash Over Coroner Testimony," Law.com, August 27, 2009

The U.S. Supreme Court has articulated important limitations on police officers' authority to search a vehicle after the vehicle's occupants have been arrested. The Court's majority in Arizona v. Gant stated that "Police may search the passenger compartment of a vehicle incident to [after] a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest." In other words, 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.

Through the Constitution's Fourth Amendment, all United States citizens enjoy a protection against unreasonable search and seizure on the part of the government. This limitation is not absolute, however, with exceptions existing for instances when time and circumstance do not permit obtaining a search warrant from a judge, such as when police are chasing a suspect and that suspect enters his home.

The Court has looked to balance the need to preserve evidence and ensure police officer safety with the need to protect individual's privacy. In Gant, the Court ruled that once a vehicle's occupants have been arrested and police officer safety has been secured, police may search the vehicle only when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."

So in practical terms, Gant means this: once a suspect has been arrested and placed in the back of a patrol car, a warrantless search of the suspect's vehicle can only be conducted by the police for evidence related to the particular crime for which the person was arrested. If someone were arrested for a traffic violation, for example, the police can't conduct a general search of the vehicle without first obtaining a warrant. If someone were arrested on drug charges, though, a search for drug related items would be justified according to the Court's decision.

One way that these rules have been circumvented is when a person is arrested and does not have anyone to drive his/her car home. Police can then impound the vehicle and conduct an "inventory search." Evidence discovered in that search might then be used against the suspect.

Continue reading "Limits to Vehicle Searches by Police Upheld by U.S. Supreme Court" »

In yet another opinion that deals a blow to the rights of criminal defendants, the United States Supreme Court has eased some limits on police tactics to obtain incriminating statements after defendants have been appointed legal counsel.

The case of Montejo v. Louisiana involves the arrest of Jesse Montejo for the robbery and murder of Lewis Ferrari. Montejo waived his Miranda rights, and during interrogation by the police eventually admitted to committing the murder. At a subsequent hearing, a judge ordered that Montejo be appointed legal counsel since he could not afford to hire an attorney. Later that day, before Montejo had met with his attorney, police detectives convinced Montejo to accompany them on a search for the murder weapon. After again being apprised of his Miranda rights, Montejo went with the detectives. During that trip he wrote a letter apologizing to the victim's widow. After returning from the excursion, Montejo finally met with his attorney. Though Montejo's attorney objected, the letter of apology was used by prosecutors during trial. After being found guilty, Montejo was sentenced to death.

In subsequent appeals, Montejo argued that since he had not yet met with his court appointed counsel, the police should not have been permitted to talk with him and cajole him into going with them to locate evidence.

The Supreme Court disagreed, stating that Montejo's waiving of his Miranda rights allowed the police to talk with him and ask for his help in locating evidence. The mere appointment of counsel, the Court ruled, does not preclude police from attempting to gather evidence or obtain incriminating statements. The Court did say, though, that once a suspect invokes his/her right to counsel under Miranda, the police must cease interrogation without the presence of counsel.

This ruling highlights the necessity for citizens to closely protect their Fifth Amendment right against self-incrimination and Sixth Amendment right to legal counsel. When being questioned by the police for possible involvement in a crime, it is best to be prudent and say that you will not answer questions without a criminal defense lawyer present. As United States citizens, we are blessed to have our Natural Rights enshrined in our Constitution and embedded in our legal code. This ruling by the Supreme Court, however, provides police with more opportunity to extract incriminating evidence from citizens not familiar with the legal process.

Montejo v. Louisiana, U.S. Supreme Court
"The Supreme Court Moves to the Right, Perhaps Sharply to the Right," California Bar Journal, August 2009

The U.S. Supreme Court has ruled that evidence obtained by police in some illegal searches and arrests may still be used by prosecutors against defendants during trial.

The case Herring v. United States involved Bennie Herring, who was arrested in Coffee County, Alabama, after police there were told by law enforcement personnel from neighboring Dale County that there was an outstanding warrant for his arrest. During the subsequent arrest, police found a weapon and drugs. Charges were brought against Herring for both of these violations. It turns out, however, that the Dale County personnel had made a mistake: there was not actually a warrant outstanding for Herring's arrest

Herring's attorneys filed a motion to suppress, or exclude, the evidence on the grounds that it was obtained illegally. In other words, they argued that if the Dale County personnel had not made a mistake, Herring would never have been arrested and not be facing a prison sentence. Previous Supreme Court rulings, including Mapp v. Ohio, have articulated and upheld this "exclusionary rule" barring improperly obtained evidence.

The Supreme Court ruled, however, that even though there was not a warrant and Herring should not have been arrested, charges could still be brought against him for possessing the weapon and drugs because the police in Coffee County had acted in good faith. That is, they did not intentionally conduct an illegal search. They believed that they were acting on correct information.

Continue reading "U.S. Supreme Court Eases Restrictions on Police Searches" »

The California Supreme Court ruled unanimously in July that drivers arrested for drunk driving may in some cases challenge the legitimacy of Breathalyzer tests.

Under California law, DUI suspects are generally charged with two violations: driving under the influence, which is determined through observation of behavior such as driving erratically or failing a field sobriety test like walking a line [23152 (a)]; and having a blood-alcohol level of .08 percent or higher [23152(b)].

Determination of blood-alcohol content can be done by Breathalyzer or blood test. Breathalyzer tests measure the alcohol level in a person's breath and then use a standard formula to convert that level to an estimate of blood alcohol content.

The problem is that the same formula is used for all people in all conditions. A person's weight, gender, and other physical characteristics, and even the weather conditions at the time of the test, can influence Breathalyzer results.

Because of this, the Court ruled that Breathalyzer results may still be used as evidence, but criminal defense attorneys will be able to challenge those results in defense of their clients, highlighting the importance of quality legal representation when fighting DUI cases.

"California Supreme Court allows challenges to Breathalyzer results," LA Times, July 10, 2009
"California Supreme Court says DUI breath test accuracy can be weighed," San Jose Mercury News, July 9, 2009