Sacramento Criminal Defense Lawyer Blog

When a person is arrested, it is not a certainty that criminal charges will be filed. The police department of each city (and at the county level the sheriff's department) has the authority to investigate crimes and make arrests. But it is the district attorney's office in each county that actually files criminal charges. This placement of authority in separate agencies serves to protect us against abuses that can arise when government power is concentrated.

In certain cases, letters of reference can be useful in attempting to persuade the district attorney to not press charges, or to dismiss charges that have already been filed. The circumstances that would merit these sorts of letters are varied, but an experienced criminal defense attorney will be able to advise you.

To illustrate, here's an example similar to cases we've defended. One night a man in his early twenties - call him Michael - takes his buddies out joyriding in his car. Michael pulls up to a liquor store and waits outside while his friends go inside. All of a sudden he sees them running from the store with bottles of alcohol that they've just stolen. As Michael's friends climb in the car, he panics and drives away at high speed. The entire incident is recorded by a security camera, however, and within a few days everyone involved is arrested.

Two years go by without the district attorney filing any charges. But then Michael receives notification that he is being charged with theft, conspiracy, and aiding and abetting.

This is where letters of reference can be helpful.

Continue reading "Letters of Reference Requesting Dismissal of Charges" »

California Penal Code section 1203.4 provides people who were convicted of certain crimes the opportunity to have a 'conviction' replaced with a 'dismissal' on their criminal record. Expungement, as the process is commonly called, is possible after fulfillment of all the terms of sentencing, including payment of fines and restitution and completion of probation. (Click here to read a detailed description of the expungement process.)

If you're requesting an expungement, your defense attorney may ask for letters of reference to help strengthen your case. Since an expungement substitutes a dismissal in place of a conviction, the judge reviewing the expungement petition needs evidence that you have been rehabilitated and have turned away from criminal activity. Letters of reference from family, friends, and even co-workers should attest to your good character and positive influence in the community.

It is very important that reference letters be authentic. They should never be written by the person seeking the expungement or copied from websites. Only ask someone to write a letter if you're certain that he/she will have good things to say about you.

A good reference letter should have these elements:

Format

• Typed and dated
• Addressed to the judge handling the expungement petition
• Written in direct, succinct, and grammatically correct language

Information

• The reference's name, address, age, occupation, and relationship to the person requesting the expungement
• Specific examples of the petitioner's good character and community contributions
• Specific ways that the petitioner has matured since being convicted

Good letters of reference can be extremely beneficial to an expungement petition. If you have questions about these letters - or the expungement process in general - call the Law Office of Nancy King at (916) 442-1200.

Our last post covered the similarities and differences between a DUI involving alcohol and a DUI involving drugs. Today's post explains the role of the Drug Recognition Expert (DRE) in DUID.

Typically, a DUID evaluation begins after a driver has been pulled over for erratic driving and the officer, after administering a breath alcohol test, determines that the driver has not ingested alcohol.

In DUID cases, law enforcement relies on two things: 1) blood or urine tests to determine if drugs are present in the person's system, and 2) observations of the person's physical condition and behavior. Because of the technical nature of this type of investigation and evidence, police and the CHP rely on Drug Recognition Experts, or DREs, officers who receive special training in recognition of the influence of drugs.

The DRE follows a 12-step protocol to assess the situation:

1. Breath alcohol test
2. Interview of the arresting officer
3. Preliminary examination and first pulse reading
4. Eye examination
5. Divided attention psychophysical tests similar to field sobriety tests
6. Vital signs and second pulse reading
7. Examination of eye pupils
8. Examination of muscle tone
9. Check for injection sites and third pulse reading
10. Subject's statements and other observations
11. Analysis and opinions of the evaluator
12. Toxicological examination from urine, blood, or saliva

If the officer making the traffic stop is trained as a DRE, he simply follows the 12-step protocol. If he isn't a DRE, he calls for one to come to the scene to conduct the investigation. The DRE's evaluation is then used by the district attorney's office in its attempt to gain a conviction.

If no DRE is available, the arresting officer takes detailed notes of what he observed. If the case goes to trial in that instance, the district attorney can have a DRE testify as an expert witness and give his or her interpretation of the arresting officer's notes. But without direct evaluation by a DRE, conviction of DUID becomes much more difficult.

All of the issues highlighted in the previous post regarding defense against DUID charges are pertinent to the DRE's evaluation. The rate at which drugs leave the system, impairment through use of medications, the role of fatigue and emotional distress, and inconsistencies in the application of the 12-step protocol by the DRE should all be evaluated by your attorney in devising a defense strategy.

Call Nancy King at 916-442-1200 if you have questions about DREs, DUID, or other topics discussed in this blog.

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

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

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

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

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

Over the last month here in Sacramento, we've witnessed two members of local law enforcement accused of DUI. In August, CHP arrested a Sacramento police officer for drunk driving, and just this past Sunday an off-duty Sacramento County deputy sheriff was arrested for driving under the influence of prescription medication and crashing her vehicle into a Starbuck's and injuring an 80-year old woman.

We bring up these incidents not to ridicule these officers. Rather, they are an important reminder that anyone can find himself in the position of these public servants: humbled and facing prosecution.

These incidents also illuminate the critical role of the defense attorney.

When people hear of incidents such as those described above, they have a mix of emotions but often feel deeply angry. They demand justice to right any wrongs and to punish the accused as examples to discourage others from doing the same thing.

But in our system we don't live by mob rule. Instead we live by the rule of law. We take the power to prosecute away from individual citizens and place it instead in the hands of the District Attorney's Office. Thus the deputy district attorney assigned to each case is law enforcement's advocate, looking at the evidence from that prosecutorial perspective.

To protect the rights of each person from the force of the larger society and the power of the government, our legal system, rooted in our Constitution, says that each of us has the right to a speedy trial, to confront witnesses against us, to be protected against unreasonable searches, and to not be deprived of life, liberty, or property without due process of law. And in addition to these enumerated rights, we have our legal tradition of presuming a person innocent until proven guilty.

That's where the defense lawyer comes in. Where the prosecutor looks at a case from the perspective of law enforcement, the defense attorney looks at it from the perspective of the accused. The defense attorney protects each defendant's rights. She makes sure that all relevant evidence and arguments are brought forward to explain the incident as the accused experienced it. Juries make final decisions about guilt and innocence and judges, if necessary, determine sentences. But a defense attorney is crucial to ensuring a fair and balanced interpretation of the facts of each case. Without defense counsel, justice cannot be served.

"Sacramento Police Officer Accused of DUI," August 18, 2009, KCRA.com
"Sacramento County Deputy in Crash Has Used Painkillers," September 9, 2009, Sacramento Bee