Sacramento Criminal Defense Lawyer Blog

The California Highway Patrol plans increased patrols state-wide for the duration of the Labor Day weekend to deter drunk driving. The heightened enforcement period begins this evening at 6:00 PM and continues until midnight on Monday, September 6. If you've driven on Sacramento's freeways today, you've already seen the electronic message signs flashing the admonition to motorists to call 911 if they see a drunk driver.

Locally, the Sacramento Police Department has announced a DUI and driver's license checkpoint at Florin Road and 24th Street, beginning at 8:30 PM and running until early Saturday morning.

Do what it takes to keep yourself and others safe this holiday weekend. If you plan on going out drinking, choose a designated driver before you leave your house or apartment. Also, take sufficient cash to pay for a cab if necessary. And, above all, look after your friends and family and keep them from getting behind the wheel if they've had too much to drink.

"Sobriety and Drivers License Checkpoint Notification," Sacramento Police Department, September 2, 2010

"CHP Prepares to Launch Statewide DUI Crackdown," Lake County News, August 31, 2010

The arrest in May of Sacramento Kings star Tyreke Evans for driving 130 miles an hour on Interstate 80 threw a spotlight on speeding and reckless driving on Sacramento's freeways - and the penalties that come with a conviction. The Sacramento Bee's Tony Bizjak published an article on Monday detailing the surprising number of people cited for excessive speed (Vehicle Code 22348) and reckless driving (Vehicle Code 23103). It turns out that over 80 people were issued citations by CHP for driving in excess of 100 MPH in May and June on freeways in Sacramento and Stockton.

Speeding and reckless driving convictions come with costly penalties. VC 22348 says that a first conviction for excessive speed (over 100 miles per hour) results in a $500 fine and loss of driving privileges for 30 days, with the amount fines and length of license suspension increasing with each conviction. A reckless driving conviction under VC 23103 can be punished by up to 90 days in county jail and/or fines up to $1000.

If you've been cited for excessive speed or reckless driving, contact the Law Office of Nancy King at (916) 442-1200 for a free consultation.

Triple Digit Speeders Surprising in Number, CHP Figures Show, Sacramento Bee, August 9, 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

The United States Supreme court last week issued a ruling that requires suspects to clearly state that they are invoking their right to remain silent during interrogation by police. If a suspect does not articulate his/her desire to invoke the Fifth Amendment right to remain silent, police may continue with the interrogation.

The Court's decision in Berghuis v. Thompkins concerns Van Chester Thompkins, who was arrested for suspicion of committing a murder and then brought to the local police station. After being read his Miranda rights, he was asked to sign a statement that indicated his understanding of those rights. He refused to sign the form.

Over the next three hours he was questioned by police. He remained mostly silent, except for a few comments not related to questions about the crime. According to the police, he finally said "Yes" in response to two questions asking if he believed in God and if he had asked God for forgiveness for committing the crime. These responses were used in the subsequent trial, which resulted in conviction for murder.

The Court's decision, authored by Justice Anthony Kennedy, means that police do not have to interpret the silence of a suspect as invocation of the right to remain silent. The Court was far from unanimous in its ruling, however. The minority opinion, authored by Justice Sonia Sotomayor, viewed the majority's ruling as a substantial shift away from the protections against self-incrimination that Miranda had preserved for over 40 years.

If you have questions about this post, or other topics in our blog, 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 laws in California concerning theft distinguish between petty theft and grand theft. The point we want to emphasize today is that substantial discretion is given to prosecutors to charge petty thefts as either infractions or misdemeanors, and grand thefts as either misdemeanors or felonies. Since the penalties vary substantially among infractions, misdemeanors, and felonies, it's crucial to obtain quality legal representation to build the best possible defense. In today's post we'll review petty theft, while in a post next week we'll go over grand theft.

California Penal Code Sections 484 to 490 lay out the guidelines and penalties for theft. Petty theft - often called shoplifting - is defined as a taking of property worth less than or equal to $400. Most first time petty theft offenses are charged as misdemeanors. Penalties can include a combination of jail time up to six months, fines up to $1000, restitution, work project, counseling, and probation.

As mentioned above, however, California law gives prosecutors the discretion to reduce a petty theft charge to an infraction or increase it to a felony, depending on the circumstances of the case.

• A petty theft can be charged as an infraction if the value of the stolen property is $50 or less and the defendant has no prior theft convictions. From the defendant's point of view, an infraction is preferable to a misdemeanor since it carries a fine of no more than $250. It's like getting a traffic ticket or littering citation.
• Prosecutors can also charge any second, third, or subsequent petty theft as a felony, which means the possibility of substantially higher penalties.

Because California law gives prosecutors so much discretion in petty theft cases, it's crucial to seek the advice of a quality defense lawyer if you're facing criminal charges. Call the Law Office of Nancy King at (916) 442-1200 for a free and confidential consultation to discuss your case.

Our last post covered the various provisions of California's Business and Professions Code that govern possession and consumption of alcohol by minors. Today we look at sections of the state Vehicle Code that also relate to minors and alcohol.

Possession of Alcohol in a Vehicle

Vehicle Code Section 23224 makes it a misdemeanor for a person under 21 years of age to have any sort of alcohol in a car, except under the supervision of a parent or guardian or as part of the minor's employment. Convictions under this code come with severe penalties, including impoundment of the vehicle for 1 to 30 days, fines of up to $1000, and jail time of up to 6 months. In addition, someone convicted of violating section 23225 is also punishable under Vehicle Code Section 13202.5, described below.

Suspension of Driving Privileges

Vehicle Code Section 13202.5 requires a one year suspension of driving privileges for anyone under 21 convicted of violating Vehicle Code Section 23224 described above or any of the Business and Professions Code sections outlined in yesterday's posts. It also says that if the person convicted of these codes does not yet have a driver's license, the DMV must delay issuing a license for one year after the convicted person become eligible. And each additional violation results in an additional one-year delay in getting a license.

DUI and Minors

Of course, minors are also subject to Vehicle Code Sections 23152 (a) and (b), which make it a crime to drink and drive. Conviction of DUI comes with fines of at least $2000, jail time, and probation. See the October 2, 2010 post for detailed information on DUI penalties.

Free and Confidential Consultation

Nancy King provides quality criminal defense for clients throughout the Sacramento region. Call her at (916) 442-1200 to discuss this topic or any other topic covered in this blog.

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.

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

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

This Friday, December 18, the Sacramento Police Department will conduct a sobriety and drivers license checkpoint in south Sacramento, while CHP will have one in Rancho Cordova. These are the first of at least eight traffic screenings that law enforcement in the Sacramento region plans over the next two weeks.

Sacramento drivers are receiving particular scrutiny because of data showing that Sacramento ranks at the top of U.S. cities larger than a population of 250,000 in terms of injuries and fatalities caused by alcohol-related traffic accidents.

We strongly advise everyone to not drive after consuming alcohol or ingesting narcotics. The risk of injury to yourself and others is real, and the legal consequences can be severe. Moreover, California law enforcement conducts more DUI checkpoints than any other state and that number is only going to increase throughout 2010, dubbed by public safety agencies as the "Year of the Checkpoint." With district attorney's offices and courts pushing for harsher and harsher penalties for drunk drivers, you are well served to do whatever it takes to keep yourself and family and friends from driving while intoxicated. See our December 11 and August 18 posts for more information.

If you or someone you know is cited for a DUI, get experienced and knowledgeable legal representation. Contact the Law Office of Nancy King if you have any questions.

Sobriety and Drivers License CheckPoint Notification, Sacramento Police Department

CHP to conduct DUI checkpoint on Friday in Sacramento County, Sacramento Bee, December 16, 2009

More checkpoints bolster statewide, Sacramento DUI push, Sacramento Bee, December 17, 2009

With the holidays approaching and many people taking to the roads to visit family and friends, we thought it a good time to provide some highway safety data from Traffic: Why We Drive The Way We Do (And What It Says About Us), by Tom Vanderbilt. If you haven't read Traffic, get a copy and read it this weekend as you stay inside to avoid the rain. It's a tremendously interesting book that uses clear, accessible language to explain research on all aspects of life affected by motor vehicles and roads, including why it's best to form a single line when traffic merges from one lane down to two, the astonishing extent to which people are unaware of what's going on around them as they drive, and why roundabouts are safer than traffic signals.

The part of the book we'll focus on concerns the risk factors that contribute to traffic accidents.

• Speed: People in an accident at 50 miles per hour are fifteen times more likely to die than they are at 25 miles per hour
• Alcohol: Alcohol slows reflexes and diminishes the brain's ability to evaluate risk
• Gender: Men are more likely across all age groups to be involved in auto accidents
• Age: Teenagers are involved in more crashes because they lack experience behind the wheel, underestimate risk, and engage in activities that distract their attention, like talking on a cell phone
• Rural, non-interstate roads: The rate at which accidents occur is higher on country roads than it is on city streets

Interestingly, when analyzing accidents by profession, doctors are among the most accident-prone, perhaps because they tend to rush to and from work and can be fatigued after a long shift. Firefighters and pilots are toward the bottom of the risk list, perhaps because they are attuned to safety and their jobs give them skills that make them better drivers.

So as you enjoy time with family and go to end of the year parties, take it slow and be safe while on the roads. A little caution and some common sense can prevent injury, avoid entanglement with law enforcement, and make for a happy holiday season.

Tom Vanderilt's blog: How We Drive