In California, the Judge is required to tell anyone in a criminal case the consequences of a plea of guilty. Among these consequences re those pertaining to immigration. The Court cannot ask a defendant if they are here legally or what their status is. The Judge must inform everyone as follows:
If you are not a citizen of the United States, you should assume that
your plea of [guilty/no contest] will result in your deportation from the
United States, exclusion from admission to the United States, or denial of
naturalization as a United States citizen. Do you understand that?
It is highly recomended that The court should give the Pen C §1016.5
advisement to all defendants because the court may not inquire
into a defendant’s legal status. See Pen C §1016.5(d); People v
Aguilera (1984) 162 CA3d 128, 133, 208 CR 418.
Sunday, July 27, 2014
Sunday, July 20, 2014
The Problem of Passive Inhalation of Marijuana
In California it is now legal to ingest marijuana if you have a medical condition warranting its use. Many folks are using pot in social settings, restaurants, clubs, bars, etc. Is it possible to be near someone smoking pot and have it enter your system through second hand smoke? Some say yes and it could show up in a urine test that police take in DUI cases.
The amount of THC which the passive inhaler might absorb depends on several factors. Not only the size of the room where the marijuana is smoked important but o is the number of joints smoked and the hours exposed to that smoke. It is possible that a person exposed to passive inhalation in a room with 4 cigarettes smoked could result in that person showing positive for marijuana in a DUI urine test.
In one study, scientists revealed that volunteers subjected to marijuana smoke in a room could show positive results on a test for THC. The experts all agree mor studies need to be done to see if this is a problem in common everyday scenarios where innocent people could be wrongfully accused of smoking pot when they have not done so. The consequences could be dire, not only for those charged with DWI in a criminal context but also within the realm of employee drug tests and the like.
The amount of THC which the passive inhaler might absorb depends on several factors. Not only the size of the room where the marijuana is smoked important but o is the number of joints smoked and the hours exposed to that smoke. It is possible that a person exposed to passive inhalation in a room with 4 cigarettes smoked could result in that person showing positive for marijuana in a DUI urine test.
In one study, scientists revealed that volunteers subjected to marijuana smoke in a room could show positive results on a test for THC. The experts all agree mor studies need to be done to see if this is a problem in common everyday scenarios where innocent people could be wrongfully accused of smoking pot when they have not done so. The consequences could be dire, not only for those charged with DWI in a criminal context but also within the realm of employee drug tests and the like.
Monday, July 14, 2014
Torrance DUI Schools
Torrance has the unique distinction of having more than one choice for dui classes. If you were convicted of a DUI in California you must attend an approved DUI program that is licensed by the state and county. How do you find a DUI school in your area? What is the right class in order to get your license back? There are three basic types of DUI classes that are available and which one you must attend depends on the kind of case you were charged with. First is the SB 1176 program which is 12 hours long and is required if you were convicted in Court of a wet reckless. Second is the AB762 which is six months in duration and is generally required for first time drunk driving offenders whose blood alcohol level is above a .15 BAC. Third is the AB541 and it is the standard program for conviction of a VC23152 a or b offense first time offender. The first offender ab541 program is composed of 10 group meetings, 3 individual sessions or interviews, one in the beginning of the class, one in the middle and the last one in the end. Also, the course requires 6 AA meetings to complete the state guidelines.
Lastly, is the 9 month program required for anyone with a BAC above .20, this program is called the AB1353 class. Essentially, it is the same as the ab541 just more of it, more aa meetings, more group sessions and more one on one interviews with a counselor.
For anyone convicted of a multiple offense DUI, say a second, third or fourth offense or greater, there is the SB38 program, an 18 month DUI school that is very comprehensive in nature.
Torrance DUI classes are accepted by the Courts and the DMV for purposes of reinstatement of driving privileges. California does require that anyone convicted of driving under the influence enroll in and complete an approved education program or risk losing their license until the class is finished.
There are two DUI schools located in Torrance that handle DWI programs:
Driver Benefits, Inc.
Santa Fe Business Park
2370 West Carson Street, Suite 150
Torrance, CA 90501
310-320-9550 (direct)
310-320-9448 (fax)
High Gain Program NCADD Of The South Bay
1334 Post Avenue
Torrance, CA 90501
Phone: (310) 328-1587
Fax: (310) 328-1964
Lastly, is the 9 month program required for anyone with a BAC above .20, this program is called the AB1353 class. Essentially, it is the same as the ab541 just more of it, more aa meetings, more group sessions and more one on one interviews with a counselor.
For anyone convicted of a multiple offense DUI, say a second, third or fourth offense or greater, there is the SB38 program, an 18 month DUI school that is very comprehensive in nature.
Torrance DUI classes are accepted by the Courts and the DMV for purposes of reinstatement of driving privileges. California does require that anyone convicted of driving under the influence enroll in and complete an approved education program or risk losing their license until the class is finished.
There are two DUI schools located in Torrance that handle DWI programs:
Driver Benefits, Inc.
Santa Fe Business Park
2370 West Carson Street, Suite 150
Torrance, CA 90501
310-320-9550 (direct)
310-320-9448 (fax)
High Gain Program NCADD Of The South Bay
1334 Post Avenue
Torrance, CA 90501
Phone: (310) 328-1587
Fax: (310) 328-1964
Monday, July 7, 2014
California Court Rules Hit and Run Driver Not Responsible For Restitution
California has some of the toughest laws on hit and run and DUI, for example in Torrance a conviction may land you in Jail for a long spell. With that being said, occasionally the Court comes down with a decision that makes sense when viewed from a legal standpoint.
In this case, the defendant pled guilty to leaving the scene of an accident , commonly referred to as hit and run, and admitted a probation violation in return for a three-year sentence with a concurrent term for the probation violation. The plea was based on evidence that defendant fled after the 12-year-old victim, who was riding on a scooter, collided with his vehicle in the street. The court sentenced the scofflaw to the three-year term. After a hearing, the court ordered victim restitution of $425,654.63, yes that is correct nearly a half million daollars, following People v. Rubics (2006) 136 Cal.App.4th 452, which held that a defendant fleeing the scene of an accident can be ordered to pay restitution for costs incurred by the victim as a result of a collision.
However, On appeal, the defendant named Martinez claimed the court abused its discretion by imposing restitution for injuries sustained by the victim because he did not plead to any criminal offense regarding the collision that caused those injuries, and there was no factual determination made that he was responsible for the accident. The Court threw out the restitution.. When a defendant is sentenced to prison for a hit-and-run offense, restitution is proper only to the extent that the victim's injuries are caused or exacerbated by the offender's flight from the scene. There was no evidence here that Martinez's flight caused or exacerbated the victim's injuries. Rubics is factually distinguishable from this case, and to the extent that it is not, the court disagreed with its holding. Although Martinez executed a Harvey waiver, there were no other charges in the felony complaint that incorporated any type of criminal culpability for the collision. On remand, the prosecutor may prove that the victim's injuries were exacerbated by Martinez's flight. (CCAP)
This case, though not per se a DUI case, has many angry.
In this case, the defendant pled guilty to leaving the scene of an accident , commonly referred to as hit and run, and admitted a probation violation in return for a three-year sentence with a concurrent term for the probation violation. The plea was based on evidence that defendant fled after the 12-year-old victim, who was riding on a scooter, collided with his vehicle in the street. The court sentenced the scofflaw to the three-year term. After a hearing, the court ordered victim restitution of $425,654.63, yes that is correct nearly a half million daollars, following People v. Rubics (2006) 136 Cal.App.4th 452, which held that a defendant fleeing the scene of an accident can be ordered to pay restitution for costs incurred by the victim as a result of a collision.
However, On appeal, the defendant named Martinez claimed the court abused its discretion by imposing restitution for injuries sustained by the victim because he did not plead to any criminal offense regarding the collision that caused those injuries, and there was no factual determination made that he was responsible for the accident. The Court threw out the restitution.. When a defendant is sentenced to prison for a hit-and-run offense, restitution is proper only to the extent that the victim's injuries are caused or exacerbated by the offender's flight from the scene. There was no evidence here that Martinez's flight caused or exacerbated the victim's injuries. Rubics is factually distinguishable from this case, and to the extent that it is not, the court disagreed with its holding. Although Martinez executed a Harvey waiver, there were no other charges in the felony complaint that incorporated any type of criminal culpability for the collision. On remand, the prosecutor may prove that the victim's injuries were exacerbated by Martinez's flight. (CCAP)
This case, though not per se a DUI case, has many angry.
Sunday, May 25, 2014
Veteran CHP Officer Charged With Felony DUI
A California Highway Patrol officer charged with felony DUI stemming from a January four-car wreck while she was off duty pleaded not guilty today in Shasta County Superior Court.
Redding criminal defense attorney John Kucera entered the not guilty plea on behalf of his client, Doreen Bernice Shaw, 42, of Redding, as she stood next to him.
Shaw, who remains free of jail custody while on her own recognizance, is scheduled to have her preliminary hearing on April 12.
A 17-year CHP veteran, Shaw is charged with felony DUI with injury, a misdemeanor count of resisting or obstructing officers and a series of enhancements.
Shaw was not hurt in the Jan. 14 chain-reaction crash on South Bonnyview Avenue, but five others suffered minor injuries.
It was originally alleged in the criminal complaint that Shaw had a blood alcohol level of at least 0.20 percent, but Kucera said the complaint, which has been amended, now claims that her blood alcohol level ranged from 0.13 percent to 0.16 percent. The legal driving limit is 0.08 percent.
A Redding police report said Shaw, who reportedly admitted she was too drunk to drive, was belligerent, combative and screamed profanities at officers following the wreck. She also allegedly tried to walk away from officers after she was handcuffed and kneed RPD Officer Tyler Lanham in his left thigh before she was forcibly placed in the back of a patrol car, the police report said.
Friday, May 23, 2014
California Court Limits Scope Of Medical Marijuana Laws
With the passage of the marijuana compassionate use laws several years ago there has been a plethora of legal cases defining how far reaching the statute applies to criminal and DUI marijuana offenses, this cases limits the ability of growers and distributors inasmuch as the person cannot simply cultivate and thereafter sell limitless amount of pot with legal immunity.
In People vs. Mitchell, The defendant formed a non-profit corporation to cultivate marijuana and projected being paid as much as 60k annually for the marijuana. He then entered into two contracts to grow marijuana every month and sell it to a for-profit corporation, the K.I.M. Collective, that operated a medical marijuana collective of which he was personally a member. Police discovered his extensive marijuana growing facility and he was convicted of marijuana cultivation (Health & Saf. Code, § 11358). On appeal, he contended that he was entitled to the protections of Health and Safety Code section 11362.775 of the MMPA. Held: Affirmed. Section 11362.775 provides that specified persons "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject" to certain criminal sanctions, including section 11358. However, no individual or group may cultivate medical marijuana for profit.
In this case, the defendant was not convicted solely because of his collective or cooperative marijuana cultivation. He admitted that he intended to gain tens of thousands of dollars from his cultivation operation, expected to live off the income, and expected to be compensated for his expenses. He entered into contracts to provide marijuana to a for-profit corporation and his own corporation had no relationship with the K.I.M. Collective other than as a supplier of marijuana. Additionally, the other principal defenses available under the medical marijuana laws do not apply to the accused because the amount of marijuana he possessed exceeded the amount reasonably necessary for appellant's personal use, there was no evidence he was a primary caregiver, and the defense related to compensation for actual expenses does not apply to violations of section 11358. Thanks to (CCAP)
In People vs. Mitchell, The defendant formed a non-profit corporation to cultivate marijuana and projected being paid as much as 60k annually for the marijuana. He then entered into two contracts to grow marijuana every month and sell it to a for-profit corporation, the K.I.M. Collective, that operated a medical marijuana collective of which he was personally a member. Police discovered his extensive marijuana growing facility and he was convicted of marijuana cultivation (Health & Saf. Code, § 11358). On appeal, he contended that he was entitled to the protections of Health and Safety Code section 11362.775 of the MMPA. Held: Affirmed. Section 11362.775 provides that specified persons "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject" to certain criminal sanctions, including section 11358. However, no individual or group may cultivate medical marijuana for profit.
In this case, the defendant was not convicted solely because of his collective or cooperative marijuana cultivation. He admitted that he intended to gain tens of thousands of dollars from his cultivation operation, expected to live off the income, and expected to be compensated for his expenses. He entered into contracts to provide marijuana to a for-profit corporation and his own corporation had no relationship with the K.I.M. Collective other than as a supplier of marijuana. Additionally, the other principal defenses available under the medical marijuana laws do not apply to the accused because the amount of marijuana he possessed exceeded the amount reasonably necessary for appellant's personal use, there was no evidence he was a primary caregiver, and the defense related to compensation for actual expenses does not apply to violations of section 11358. Thanks to (CCAP)
Sunday, May 4, 2014
Torrance DUI Attorney Matthew Ruff: Weekly Case Review
The issue of what constitutes a violation of the right of confrontation in both DUI and criminal cases has been a hot topic in the last few years. The US Supreme Court has handed down no less than 2 major cases on the issue in the last few years and the California Courts are nearly tripling that number. At its core, the right guarantees us all from a witness testifying against us without then in Court with the ability to cross examine them. This recent case examines that right within the context of a drug and gang case.
In People v. Archuleta, A jury convicted the accused of possession of methamphetamine and active gang participation. Police officers received information that a homicide suspect could be found at appellant's residence. At the residence, they found appellant and another suspect in the garage, each holding suspected methamphetamine. (They did not find the homicide suspect.) At trial, the prosecution's gang expert, a sheriff's deputy, testified that appellant was a high-ranking member of and active participant in the East Side Victoria (ESV) criminal street gang. He based his opinion in part on the testimonial hearsay statement of another gang member, Perez. The court considered whether the expert's testimony violated appellant's Sixth Amendment right to confrontation and concluded that federal cases provide the proper standard. Experts may rely on testimonial hearsay in forming their opinions but may not simply parrot the content of such hearsay to the jury on direct examination unless the declarant is unavailable or the defendant had a prior opportunity for cross-examination.
The Justices opined that the question is whether the expert is giving an independent judgment or merely acting as a transmitter of testimonial hearsay. The court found that admission of Perez's out-of-court statement that appellant directed an uncharged robbery of a drug dealer by ESV gang members, as the basis for the expert's opinion, violated appellant's Sixth Amendment rights. The statement essentially was offered for its truth and it was not shown that Perez was unavailable or that appellant had a prior opportunity to cross-examine him. However, the error was deemed harmless because the verdicts on the possession and gang participation charges were unattributable to the statement.
What this effectively means is that although the Court found the evidence inadmissible, they still believed that there was enough evidence to uphold the conviction. This case sheds additional light on this crucial right. There are other cases within the DUI context that disallow an expert to testify about blood tests without being present in Court and available for cross examnation.
In People v. Archuleta, A jury convicted the accused of possession of methamphetamine and active gang participation. Police officers received information that a homicide suspect could be found at appellant's residence. At the residence, they found appellant and another suspect in the garage, each holding suspected methamphetamine. (They did not find the homicide suspect.) At trial, the prosecution's gang expert, a sheriff's deputy, testified that appellant was a high-ranking member of and active participant in the East Side Victoria (ESV) criminal street gang. He based his opinion in part on the testimonial hearsay statement of another gang member, Perez. The court considered whether the expert's testimony violated appellant's Sixth Amendment right to confrontation and concluded that federal cases provide the proper standard. Experts may rely on testimonial hearsay in forming their opinions but may not simply parrot the content of such hearsay to the jury on direct examination unless the declarant is unavailable or the defendant had a prior opportunity for cross-examination.
The Justices opined that the question is whether the expert is giving an independent judgment or merely acting as a transmitter of testimonial hearsay. The court found that admission of Perez's out-of-court statement that appellant directed an uncharged robbery of a drug dealer by ESV gang members, as the basis for the expert's opinion, violated appellant's Sixth Amendment rights. The statement essentially was offered for its truth and it was not shown that Perez was unavailable or that appellant had a prior opportunity to cross-examine him. However, the error was deemed harmless because the verdicts on the possession and gang participation charges were unattributable to the statement.
What this effectively means is that although the Court found the evidence inadmissible, they still believed that there was enough evidence to uphold the conviction. This case sheds additional light on this crucial right. There are other cases within the DUI context that disallow an expert to testify about blood tests without being present in Court and available for cross examnation.
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