Sacramento Criminal Defense Lawyer Blog

Brandon Mullock, the Sacramento police officer arrested in January for brandishing a firearm while off-duty - and since that incident accused of filing falsified reports on DUI arrests - has resigned. Mullock had been on administrative leave since his arrest.

During its investigation of the January arrest, the Sacramento Police Department discovered irregularities in reports filed by Mullock on several DUI cases. Specifically, the details in Mullock's reports differed from the evidence provided by audio and video recordings made by equipment in Mullock's police vehicle.

The Sacramento District Attorney's Office has already dismissed charges in two of those cases, and nearly 200 more of Mullock's DUI arrests are under review. The DA's Office is not able to say at this point how many other cases will be affected.

A hearing on the reviewed cases has been scheduled for September 17 at 1:30 PM in department 9 of the Sacramento county courthouse.

Mullock had been with the department for three years and a member of the DUI task force since October 2009.

"Officer Resigns after Criminal Investigation," Sacramento Police Department new release, August 31, 2010

"Prosecutors review nearly 200 cases tied to former officer," Sacramento Bee, August 31, 2010

In recent posts we've covered separately Miranda rights and California DUI law. It's important to be aware, however, how Miranda applies to DUI, including some important limitations.

People often ask these questions: "When I was arrested for DUI, the officer did not read me my Miranda rights. Isn't that a violation of police procedure? Doesn't that somehow compromise the prosecution's case?"

The answers to those questions are usually no and no. Here's why.

Your Miranda rights are the following:

• you have the right to remain silent;
• any statements you make may be used against you in a court of law;
• you have the right to an attorney;
• if you can't afford an attorney, the court will appoint one.

This Miranda warning concerns your rights when two conditions are met: first, you are in police custody (i.e., you've been arrested and detained); second, you are being subjected to an interrogation (the police are asking you questions about the alleged crime).

If the police pull you over for suspicion of DUI, they will pose a series of questions to determine if you are impaired. These questions are considered an investigation that precedes an arrest. Keep in mind the conditions listed above that require police to advise you of your Miranda rights: arrest, detention, and interrogation. Pre-arrest investigative questions do not constitute a Miranda violation.

It's also important to understand that any comments you make during a casual conversation with the officer may be used against you. For example, let's say that you talk with the officer while being transported from the arrest scene to the jail. If the officer has not initiated a formal interrogation about the alleged crime, then Miranda does not apply.

Finally, if you are pulled over for suspicion of DUI, you are within your rights to inform the officer that you do not wish to answer any questions. If the police wish to interrogate you, a Miranda warning should be given and you should seek the advice of an attorney before answering any questions.

If you have any questions about DUI and Miranda rights, call the Law Office of Nancy King at (916) 442-1200.

The Sacramento Bee on July 26 published an article that documents the rising abuse of OxyContin by many people in their teens and 20s.

OxyContin is a prescription pain killer that's derived from opium and has been on the market since 1995. Many young people try it because it can be ingested merely by swallowing a pill and lacks the stigma associated with other drugs such as heroine or cocaine. It is highly addictive, however, and can result in a physical dependence within a few weeks.

The Bee's article gives a valuable profile of the dangers of abuse of OxyContin. What we would add is that Diversion (also known as Deferred Entry of Judgment) and Proposition 36 provide alternatives to incarceration for people arrested for illegal use of OxyContin and other prescription medications. These programs - intended for people accused of drug use or possession, not drug manufacture, sale, or trafficking - allow the possibility of avoiding a conviction in exchange for completion of a drug treatment program.

For a complete description of Diversion (Deferred Entry of Judgment), see our July 9 post. For a complete description of Proposition 36, see our July 15 post.

If you have questions about alternative sentencing programs, call the Law Office of Nancy King at (916) 442-1200.

Teens, Young Adults Abuse OxyContin in Northern California, Sacramento Bee, Monday, July 26, 2010

Three local police departments have announced that they will be conducting traffic checkpoints the night of Friday, July 13. The Sacramento, Folsom, and Rancho Cordova police departments are all using grants from the California Office of Traffic Safety and the National Highway Traffic Safety Administration to fund these efforts to check drivers for sobriety, as well as valid driver's licenses.

Folsom PD will run its checkpoint from 7:00 PM to 3:00 AM and Rancho Cordova PD will run its from 8:00 PM to 2:00 PM. Sacramento PD has not stated when its checkpoint will begin and end. At this point, the precise locations for each checkpoint have not been made public.

As always, we advise you to take the steps necessary to keep yourself and others safe if you plan on going out drinking tomorrow night. That means, choose a designated driver, put taxi phone numbers into your cell phone, hire a limo, or take public transportation. Police and prosecutors in the Sacramento region treat DUIs severely. A few minutes spent planning or a few dollars spent on transportation can save you a lot of money and aggravation by avoiding arrest for driving while intoxicated.

If you have any questions about California's DUI laws, call the Law Office of Nancy King at (916) 442-1200.

Folsom PD press release
Sacramento PD press release
Rancho Cordova press release

Deferred Entry of Judgment under PC 1000 - commonly referred to as Diversion - gives people accused of drug possession or use the opportunity to undergo drug treatment rather than be sentenced to jail or prison, as well as the possibility of keeping a conviction off of their records. The program is designed as an option for those arrested for drug use or possession; it is not available for people accused of selling, manufacturing, or trafficking drugs.

To qualify for Deferred Entry of Judgment (DEJ) / Diversion, the defendant must meet several requirements, including:

• No prior convictions for drug possession;
• No element of violence in the current offense;
• No outstanding probation or parole violations;
• No participation in a diversion or deferred entry of judgment program in the previous five years;
• No prior felony convictions in the previous five years.

Under DEJ, the defendant agrees to plead guilty to the drug possession or use charges in exchange for the deferred entry of judgment from the court. What this means is that the judge agrees to wait 18 months to 3 years before entering the final judgment for the case. During that time, the defendant completes a drug treatment program and maintains a clean criminal record. If these conditions are met, the judge "sets aside" the original guilty plea. This means that no conviction is recorded on the defendant's record.

Successfully meeting the terms of the program even means that the arrest for drug possession or use is considered to have never happened. This can obviously be beneficial in instances when a person is questioned about his/her criminal history, such as when applying for employment. (An exception to this is when a person applies for a position as a peace officer.)

Deferred Entry of Judgment / Diversion is a good option for many people arrested for drug use or possession. If you have questions about Deferred Entry of Judgment programs, contact the Law Office of Nancy King at (916) 442-1200.

A bill that would have substantially increased penalties for DUI convictions was watered down before being passed out of the Assembly Appropriations Committee.

The proposed law, authored by Jerry Hill (D-San Mateo), would have given judges the authority to impose a lifetime ban on driving after three DUI convictions. Instead, the bill gives judges the ability to revoke a license for 10 years. Current state law suspends driving privileges for three years after a third DUI conviction. Also removed by the committee was language that allowed consideration of a driver's lifetime record for DUI conviction. Current law limits consideration to the previous 10 years.

Hill claimed that budget limitations were the primary reason the bill was amended. It was estimated that the bill would have cost $10 million a year to house the additional people who would have been sent to prison due to conviction for felony DUI, which comes after a fourth DUI conviction. Felony DUI convictions would have increased if the bill's provision to allow consideration of a driver's lifetime record had been retained.

The California DUI Lawyers Association argues that a better solution is installation of Ignition Interlock Devices, which require drivers to blow into an alcohol detection device before starting their cars. If any alcohol is present, the ignition will not operate.

If you have questions about DUI laws in California, call the Law Office of Nancy King at (916) 442-1200 for a free and confidential consultation.

San Mateo County Times, May 28, 2010

Last year the California legislature and the governor enacted a new law that establishes test programs in Sacramento, Tulare, Alameda, and Los Angeles counties requiring the installation of Ignition Interlock Devices on vehicles used by people convicted of DUI. (Click here for a summary of the bill's provisions.) That bill (AB 91) has been codified as Vehicle Code section 23700 and has been funded through a grant from the Office of Traffic Safety.

As of this date, the new law will apply only to DUI violations that occur on or after July 1, 2010. What that means is that citations for DUI that occur on or before June 30 will not be subject to the new law even if the conviction occurs after the law takes effect. It also means that people who receive DUI citations in the next month should not feel compelled to resolve their cases before the new law takes effect to avoid the IID requirement.

If you have any questions about the new law or other DUI codes, call the Law Office of Nancy King at (916) 442-1200.

The police departments of Davis, Woodland, and West Sacramento - in cooperation with CHP - will have increased DUI patrols on May 5th. Advertisement of these patrols is meant to discourage people from driving after drinking at Cinco de Mayo celebrations, as well as provide the resources to identify and arrest those people who do drink and drive.

No specific checkpoint locations have been identified. Rather, officers will be in patrol cars roving throughout their communities.

As always, we provide this information as a reminder of the dangers of DUI and an encouragement to plan ahead to keep yourself and others safe. If you're going to take part in Cinco de Mayo celebrations, we encourage you to identify your designated driver in advance and have the phone numbers of cab companies programmed into your mobile device. Also, be sure to look after your friends and family and ensure that they don't get behind the wheel after drinking.

If you have questions about DUI laws, contact the Law Office of Nancy King at (916) 442-1200.

The Folsom Police Department announced that it will conduct a DUI checkpoint beginning at 7:00 PM on Friday, April 9, and ending at 3:00 AM on Saturday, April 10. The location was not disclosed in the department's press release.

Funding for the checkpoint comes from the National Highway Traffic Safety Administration and the California Office of Traffic Safety. The checkpoint will be staffed by Folsom Police Department officers, with assistance from Citizens Assisting Public Safety volunteers and a Community Service Officer.

As we always advise when providing information about sobriety checkpoints, take the steps necessary to keep yourself and others safe if you plan on consuming alcohol. Choose a designated driver before leaving your house or apartment, put taxi phone numbers into the address book of your mobile phone, or even hire a driver for the evening.

Finally, keep in mind that arrest for DUID (driving under the influence of drugs) is possible after use of legal medications if those substances impair your ability to safely operate a vehicle. Be aware of the effects that medications have on you and ask a family member or friend to drive for you if necessary.

If you have questions about this topic, or any other topic in our blog, call the Law Office of Nancy King at (916) 442-1200.

The California State Assembly's Public Safety Committee approved this week a bill that would substantially increase the penalties that judges could hand out to people convicted of multiple DUIs. Specifically, the bill, introduced by Assemblyman Jerry Hill (D-San Mateo), would make two changes to existing law:

• Current law allows for enhanced penalties when a person receives a third DUI conviction within a 10 year period or fourth conviction overall. AB 1601 would removed the 10 year limitation and give judges the discretion to impose greater penalties for any additional DUIs.
• Judges would be given the discretion to permanently revoke the driver's license of a person convicted of a fourth DUI.

The question that this bill raises is how judges will use this discretion. It's certainly possible that a judge in one case - involving, for example, a person with two DUI convictions 20 years apart - could give out a penalty vastly different than a judge handling another case that had the same set of facts.

The bill's next stop is the Assembly Appropriations Committee.

Contact the Law Office of Nancy King at (916) 442-1200 if you have questions about any aspect of DUI penalties in California.

On St. Patrick's Day, Wednesday, March 17, the Sacramento Police Department DUI enforcement team will partner with the CHP and other law enforcement agencies to substantially increase patrols throughout the city. Anyone considering drinking alcohol on St. Patrick's Day should take these preventive measures:

• Pick your designated driver before you begin celebrating
• Put the local taxi company's number in your cell phone
• If you have an iPhone, load one of the many apps that will help you find a cab
• Hire a limo for the evening
• Go to a restaurant or bar within walking distance of your home
• Associate only with people who will look out for you

Do what it takes to keep yourself and others safe.

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.

The section of the California Vehicle Code that governs driving under the influence of alcohol also sets the rules for driving under the influence of drugs, or DUID. But DUID cases differ from alcohol related cases in several important respects, each of which influences the defense that can be mounted against the charges.

When someone is cited for driving under the influence of alcohol, two criminal charges are filed: 23152 (a) and 23152 (b). Section (a) declares that, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug, to drive a vehicle." Section (b) makes it illegal to drive with a blood alcohol level of 0.08 or greater.

Driving under the influence of drugs lacks the specific measure of intoxication laid out in section (b). Therefore, conviction of DUID rests solely on law enforcement's ability to demonstrate that a person's capacity to operate a vehicle safely was impaired by the presence of drugs in his or her system. In other words, all DUID cases rely solely on section (a) and its prohibition of driving under the influence of a drug.

It is important to note that DUID can arise from impairment by both legal and illegal drugs. Use of marijuana or methamphetamines can lead to arrest for DUID, but so can use of prescription and non-prescription painkillers, anti-depressants, allergy medications, antibiotics, or any other drug. Any chemical that diminishes a person's ability to safely operate a vehicle can be used as the basis for arrest and conviction for DUID.

Continue reading "Driving Under the Influence of Drugs (DUID)" »