There are a litany of cases interpreting the application of the Miranda rule in criminal cases. For example, in DUI cases the courts have ruled that questioning about intoxication prior to conducting field sobriety tests does not trigger the advisement of rights required by Miranda. In this recent case the appeals court extends that logic to cases where the questioning is limited to two questions of a handcuffed suspect.
The facts are as follows : Castillo and two others were handcuffed prior to the execution of a search warrant. One officer informed Castillo and the others that they were not under arrest, that they were being detained for the purpose of serving a search warrant, and asked who was responsible for the residence so the warrant could be served. After Castillo responded that he was responsible for the apartment, the officer asked if Castillo was responsible for all the property in the residence and Castillo said yes. The search was conducted, contraband was found, and Castillo was arrested. On appeal, Castillo contended that the officer's questions were intended to elicit incriminating statements and should have been suppressed because they were asked prior to Miranda warnings. Under the totality of the circumstances, Castillo was not in custody for purposes of Miranda. When police execute a search warrant on a residence, they may detain the occupants to prevent flight, minimize the risk of harm to the officers, facilitate orderly completion of the search, and determine the relationship of an individual to the premises.
The justices opined that It is not unreasonable to detain an occupant in handcuffs for the duration of the search of the residence. Based on well established case law, the police properly detained Castillo during the search and he was not in custody when the officer questioned him. The trial court's finding that Castillo was not interrogated was supported by the evidence. Any error was harmless because other evidence found during the search established Castillo's dominion and control over the residence.
These scenarios play out quite regularly when the police investigate criminal activity. Many legal scholars have criticized how far Courts have gone to distiguish cases where Miranda does not apply. One Long Beach Criminal Attorney comments that the police are given way too much freedom to interrogate suspects without advising them of their legal rights. Notwithstanding that sentiment, the law will contiually be interpreted based on the changing times.
Thursday, August 28, 2014
Tuesday, August 26, 2014
Federal Court Upholds Detention Citing Recent DUI Case
In United States v. Edwards the federal court for the ninth circuit has upheld a criminal case citing the recent DUI decision of Navarette. In the opinion, the Justices ruled that a 911 caller provided officers reasonable suspicion to stop defendant; the stop did not become an arrest when officers drew guns on defendant and handcuffed him.
Here are the relevant facts. Police received a 911 call from an unidentified man reporting that a "young black male" was shooting at passing cars, including the caller's. Officers responded to the area and stopped defendant and another man. Defendant was searched and a gun was found. After his motion to suppress was denied, he pled guilty to being a felon in possession of a gun. He appealed the conviction arguing that his fourth amendment rights were violated by the police and, although this was not a dui case, the court followed the reasoning of a US Supreme Court drunk driving decision in ruling against the defendant.
The appeals court upheld the conviction. Saying : "The totality of the circumstances determines whether and when an investigatory stop becomes an arrest." Two components of the detention are examined: (1) the intrusiveness of the stop (i.e., how aggressive were the officers; how much was defendant's liberty restricted), which is considered from the perspective of the person stopped; and (2) the justification for the officers' actions, which is determined from the officers' perspective. Here, the officers actions were intrusive—they drew their guns, forced the defendant to kneel, and handcuffed him. But this does not automatically convert an investigatory stop into an arrest that requires probable cause. The officers' conduct was reasonable because defendant was the only person in the vicinity of the shooter's reported location who fairly matched the 911 caller's description and the 911 caller provided specific facts regarding the shooter's clothing, height, and age. The officers had reason to believe defendant could be armed and dangerous, having possibly just committed a violent crime. Their concern for their safety justified the tactics they used to stabilize the situation before investigating further.
According to Bakersfield DUI Attorney Bruce Blythe, this case is one of a stream of decisions that curtails the liberty we all enjoy on the roads of america. The decision seems to follow the same reasoning in allowing law enforcement to stop citizens on nothing more than an anonymous tip that a crime is occurring and that is indeed troubling to many criminal lawyers who see a slippery slope if this case is followed says Blythe.
The landmark case on anonymous stops, California v. Navarette, decided earlier in the year continues to have deep and wide spreading impact on the way traffic stops are conducted. Indeed, the Court held that brief investigatory stops are permissible when officers have a particularized and objective basis to suspect a person of criminal activity. When evaluating investigatory stops resulting from telephone tips it must be determined whether the tips "exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." In Navarette v. California (2014) 134 S.Ct. 1683, the Court held an anonymous call provided reasonable suspicion for a stop of a suspected DUI driver because: (1) the caller claimed to be an eyewitness to dangerous activity; (2) the caller reported the event soon after it occurred; (3) the caller used the 911 system, which can be traced to origin, guarding against false reports; and (4) the caller created reasonable suspicion of an ongoing and dangerous crime—drunk driving. Similar to Navarette, here the caller used the 911 system, gave specific details regarding the shooter, had eyewitness knowledge of the shooting, and reported an ongoing emergency situation. This provided officers with reasonable suspicion to stop defendant.
Although the case is not binding on California, its reasoning and logic can have persuasive power on judges in similar cases. Special thanks to CCAP for its analysis.
Here are the relevant facts. Police received a 911 call from an unidentified man reporting that a "young black male" was shooting at passing cars, including the caller's. Officers responded to the area and stopped defendant and another man. Defendant was searched and a gun was found. After his motion to suppress was denied, he pled guilty to being a felon in possession of a gun. He appealed the conviction arguing that his fourth amendment rights were violated by the police and, although this was not a dui case, the court followed the reasoning of a US Supreme Court drunk driving decision in ruling against the defendant.
The appeals court upheld the conviction. Saying : "The totality of the circumstances determines whether and when an investigatory stop becomes an arrest." Two components of the detention are examined: (1) the intrusiveness of the stop (i.e., how aggressive were the officers; how much was defendant's liberty restricted), which is considered from the perspective of the person stopped; and (2) the justification for the officers' actions, which is determined from the officers' perspective. Here, the officers actions were intrusive—they drew their guns, forced the defendant to kneel, and handcuffed him. But this does not automatically convert an investigatory stop into an arrest that requires probable cause. The officers' conduct was reasonable because defendant was the only person in the vicinity of the shooter's reported location who fairly matched the 911 caller's description and the 911 caller provided specific facts regarding the shooter's clothing, height, and age. The officers had reason to believe defendant could be armed and dangerous, having possibly just committed a violent crime. Their concern for their safety justified the tactics they used to stabilize the situation before investigating further.
According to Bakersfield DUI Attorney Bruce Blythe, this case is one of a stream of decisions that curtails the liberty we all enjoy on the roads of america. The decision seems to follow the same reasoning in allowing law enforcement to stop citizens on nothing more than an anonymous tip that a crime is occurring and that is indeed troubling to many criminal lawyers who see a slippery slope if this case is followed says Blythe.
The landmark case on anonymous stops, California v. Navarette, decided earlier in the year continues to have deep and wide spreading impact on the way traffic stops are conducted. Indeed, the Court held that brief investigatory stops are permissible when officers have a particularized and objective basis to suspect a person of criminal activity. When evaluating investigatory stops resulting from telephone tips it must be determined whether the tips "exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." In Navarette v. California (2014) 134 S.Ct. 1683, the Court held an anonymous call provided reasonable suspicion for a stop of a suspected DUI driver because: (1) the caller claimed to be an eyewitness to dangerous activity; (2) the caller reported the event soon after it occurred; (3) the caller used the 911 system, which can be traced to origin, guarding against false reports; and (4) the caller created reasonable suspicion of an ongoing and dangerous crime—drunk driving. Similar to Navarette, here the caller used the 911 system, gave specific details regarding the shooter, had eyewitness knowledge of the shooting, and reported an ongoing emergency situation. This provided officers with reasonable suspicion to stop defendant.
Although the case is not binding on California, its reasoning and logic can have persuasive power on judges in similar cases. Special thanks to CCAP for its analysis.
Sunday, July 27, 2014
Why Is the Judge Telling Me About Deportation For A DUI When I Am A Citizen
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.
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 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.
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