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.

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.

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 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.

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.

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 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 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

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.

What a mess.

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

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

As with all negotiated pleas, a wet reckless is seen as offering something to both sides. Though the prosecution gives up the chance to get a DUI conviction, it does get a conviction of the lesser charge of reckless driving, as well as the ability to count the wet reckless as a DUI if the defendant gets another DUI within ten years. And though the defendant agrees to plead guilty to reckless driving involving alcohol, he gets the benefit of avoiding some of the harsher penalties that come with a DUI.

Typically, district attorney's offices are open to negotiating a wet reckless when the defendant's blood alcohol level is at or just above the legal limit of .08 and/or the circumstances of the arrest and the quality of the evidence weaken the prosecution's case.

Advantages of a wet reckless over a DUI:

• Jail sentences are typically shorter or waived altogether since a wet reckless does not have a minimum required jail term like a DUI.
• Probation periods can be shorter, reducing the chances that a person will do something to violate the terms of probation and thus incur additional penalties.
• There is no mandated suspension of the driver's license, obviously important for people who drive to work or who drive vehicles as part of their employment, such as truck drivers or delivery company workers.
• People with professional licenses (for example, attorneys, doctors, and pharmacists) can avoid sanctions that would normally come with a DUI conviction.
• Fines are lower, usually half of those for a DUI.

Disadvantages of a wet reckless:

• Like a DUI, a wet reckless can result in increased insurance rates.
• If another DUI is received within 10 years, the wet reckless conviction is treated like a prior DUI conviction when determining penalties.
• The DMV, through its Administrative Per Se hearing, can still suspend the driver's license of someone who accepts a wet reckless plea. (See our November 27, 2009 post for a detailed explanation of DMV hearings.)

It's important to understand that a wet reckless can only be negotiated by your criminal defense lawyer before trial begins. The police cannot arrest you for a wet reckless and it is not a sentencing option after trial. If you've been arrested for a DUI and have questions about a wet reckless plea, call the Law Office of Nancy King at 916-442-1200.

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 defendant in this case, Myrle Dennis McLernon, had filed a 1203.4 motion seeking expungement of his criminal record, which means that his conviction would be changed to a dismissal. (See our post from September 25, 2009, for a detailed look at the expungement process.) In most instances getting an expungement requires a person to complete probation, pay all fines and restitution, not spend time in state prison for the offense, and not currently have any criminal charges pending.

But the law also allows for an expungement if the terms of probation were violated but the court determines that expunging the record would "serve the interests of justice." What this means is that the defendant has the opportunity to submit evidence demonstrating how he/she has become a good citizen and turned away from crime.

In People v. McLernon, though, the Attorney General's Office put forward the fanciful argument that this evidence of changed behavior should only come from the period of probation. In other words, what the defendant did after probation ended should not be considered.

The appellate court dismissed this argument, saying that nothing in the law precludes courts from taking into account actions after the probation period has ended. From our perspective, this is the only position that makes sense, since a change in behavior for the good would in most cases come after the time when probation was violated.

The bottom line is this: a person who wants to expunge his criminal record but failed to complete probation can still have his attorney file a 1203.4 motion and present accompanying evidence of that person's reformed life and commitment to the responsibilities of citizenship. The judge will then weigh the evidence and determine whether the interests of justice call for an expungement of the record.

Obviously, hiring an attorney with experience with expungements is crucial if the motion is to be successful, particularly when there are issues of probation violation. Call the Law Office of Nancy King for a review of your case.

SB 159 and SB 240 - require California motorists to slow down and, if possible, move to a lane away from emergency personnel, CalTrans workers, and tow truck drivers.

AB 576 - defines cities and counties as victims of graffiti, allowing them to seek restitution from taggers.

AB 962 - requires sellers of ammunition to keep a record of sales and ask for identification from purchasers.

AB 58 - defines participation in a sports betting pool (like an office might organize for the Super Bowl) as an infraction, as long as the pool is for less than $2500 (previous law categorized this as a misdemeanor or felony).

And finally our favorite (though it doesn't deal with criminal law), AB 606, which creates the California Blueberry Commission to "carry out programs of education, promotion, marketing, and research relating to blueberries." Believe it or not, the text of this law is over 7000 words! The Blueberry Commission is estimated to cost $1.2 million, paid for by the blueberry industry.

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

Until now, penalties for a 2nd DUI included a mandatory one-year suspension of driving privileges, while a 3rd DUI had a mandatory two-year suspension.

SB 598, which takes effect July 1, 2010, allows people to reduce the suspension time if they agree to have an Ignition Interlock Device (IID) installed on their vehicles and maintain enrollment in a DUI education program. Specifically, someone convicted of a 2nd DUI could get a restricted license after 90 days and someone convicted of a 3rd DUI could get a restricted license after 6 months.

IIDs require that a person blow into an alcohol detection device before starting a vehicle; if any alcohol is detected, the vehicle will not start. Restricted licenses allow people to drive in the course of their employment and to and from their alcohol education classes.

Our reading of the law is that it will apply to all people whose licenses have been suspended, not just those who are convicted after the law takes effect.

The full text of the bill, which amends California Vehicle Code 13352, can be accessed by clicking here.

If your license has been suspended because of a DUI, call the Law Office of Nancy King to learn about your options under this new law.

You can also read about AB 91 - the law which creates an IID test program in Sacramento, Los Angeles, Alameda, and Tulare counties - by reading our October 13 and 14 posts.