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Driving While Intoxicated

• Offenses Involving Alcohol or Drugs (California Vehicle Code Sections 23152 – 23229.1)

California DUI Law Highlights: BAC Levels and Implied Consent (Table 1)

DEFINITIONS:
“Per Se” Blood Alcohol Concentration (BAC) Level
As of August 2005, all states have DUI laws that deem “per se intoxicated” any driver with a blood-alcohol concentration (BAC) at or above .08 percent. This means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.

“Zero Tolerance” Blood Alcohol Concentration (BAC) Level
All states carry “zero tolerance” laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.0), or with negligible BAC levels such as .01 or .02 percent.

“Enhanced Penalty” Blood Alcohol Concentration (BAC) Level
Many states impose harsher penalties on DUI offenders with a particularly high BAC at the time of the offense, typically .15 to .20 percent. DUI offenders with a BAC at or above their state’s enhanced penalty standards will likely face additional jail time, harsher fines, and more severe driver’s license sanctions.

“Implied Consent” Laws
“Implied consent” laws require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver’s license, usually for six months to a year.

California DUI Law Highlights: Selected Penalties (Table 2)

Note: Persons arrested for DUI will be subject to additional criminal law penalties not addressed here — including jail time, fines, and community service. Such criminal penalties are typically more discretionary than those identified in this chart, and are therefore more difficult to accurately predict. Generally speaking, first-time DUI offenders can expect to incur a fine, and face the possibility of jail time. Repeat DUI offenders will incur harsher fines, and will almost certainly be sentenced to a number of days in jail. Penalties will be harsher still if the DUI offender was involved in an accident in which someone else was injured or killed.

DEFINITIONS:
Administrative License Suspension/Revocation
The Administrative License Suspension/Revocation penalties indicated here refer to minimum mandatory penalties imposed on drivers whose BAC is above the state limit for intoxication, or drivers who refuse to submit to BAC testing. Administrative suspension or revocation of a driver’s license is usually carried out by a state agency (such as a Department of Motor Vehicles), distinct from any criminal court penalties. Most states impose harsher penalties for second or third DUI offenses, typically defined as those that occur within five years of a prior DUI offense.

Note: the penalties identified here do not include variations for DUI offenders operating commercial vehicles, or drivers who have violated “zero tolerance” and “enhanced penalty” DUI laws (see Table 1). Most states recognize different sanctions for these types of DUI offenses.

Mandatory Alcohol Education and Assessment/Treatment
Alcohol education and treatment/assessment penalties for DUI offenders can include mandatory attendance at DUI prevention programs, and assessment of potential alcohol dependency problems. Such programs are often made “conditions” of a suspended sentence or probation, meaning that a DUI offender can avoid jail time and payment of hefty fines if he or she completes participation in the program. This chart indicates each state’s utilization of alcohol education and treatment/assessment programs.

Vehicle Confiscation
Vehicle confiscation penalties allow a motor vehicle department or law enforcement agency to seize a DUI offender’s vehicle, either permanently or for a set period of time. Such penalties typically apply only to repeat DUI offenders, and often the return of the vehicle requires payment of fines and significant administrative costs. This chart indicates each state’s utilization of vehicle confiscation as a penalty for DUI.

Ignition Interlock
A vehicle ignition interlock breath-testing device measures a vehicle operator’s BAC, and will prevent operation of the vehicle if more than a minimal amount of alcohol is detected (i.e. BAC level of .02). DUI offenders will usually be required to pay the costs of installation, rental, and maintenance of an ignition interlock device. This chart indicates each state’s utilization of ignition interlock devices as a penalty for DUI.

California Vehicle Code Division 11 – Rules of the Road

Chapter 12. Public Offenses

Article 2. Offenses Involving Alcohol or Drugs

DUI – The Basics

In every state, it is a crime for a driver to operate a vehicle while impaired by the effects of alcohol or drugs. The specific offense may be called driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), and even operating a motor vehicle intoxicated (OMVI). Whatever the specific title, DUI laws make it unlawful for a person to operate a car, truck, motorcycle, or commercial vehicle if:

• The driver’s ability to safely operate the vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or
• The driver is intoxicated at a level above established DUI standards, such as blood-alcohol concentration (BAC).

Field Sobriety and Chemical Tests

When a law enforcement officer makes a vehicle stop and suspects that the driver may be intoxicated, the officer will conduct a “field sobriety” test on the driver, and may ask for his or her consent to some form of chemical test for intoxication.

Field sobriety tests usually involve a police officer asking a driver to perform a number of tasks that assess any impairment of the person’s physical or cognitive ability. Examples of field sobriety tests include having the driver walk a straight line, heel to toe; having he or she recite the alphabet backwards; and the officer’s use of the “horizontal gaze nystagmus” (eye and penlight) test.

Chemical tests can be conducted during the vehicle stop, using a Breathalyzer that measures a driver’s blood-alcohol concentration (BAC), or at a hospital, where urine and blood tests can be performed. Many states allow a driver suspected of DUI to choose which type of chemical test is administered.

Refusing a Chemical Test: “Implied Consent” Laws

All states have “implied consent” laws that require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. The logic behind such laws is that, by assuming the privilege of driving a vehicle on state roads and highways, drivers have effectively given their consent to DUI testing when a police officer reasonably believes the driver is under the influence of alcohol or drugs. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver’s license, usually for six months to a year. Often, license sanctions for test refusal are more harsh than those imposed after DUI test failure. In most states a driver’s refusal to submit to a chemical test may be used to enhance the penalties imposed if he or she is eventually convicted for DUI.

“Per Se” and “Zero Tolerance” DUI Laws

 All states have DUI laws that deem “per se intoxicated” any driver with a blood-alcohol concentration (BAC) above a set limit. In states like California and New York, this means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.

All states also carry “zero tolerance” laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.0), or with negligible BAC levels such as .01 or .02.

Keep in mind that a driver may still be arrested and convicted for DUI without proof of “per se” intoxication, when other evidence of impaired driving is shown. For example, a driver with a .06 BAC level can be found guilty of DUI if an arresting law enforcement officer testifies that he observed the driver’s vehicle swerving badly, and that the driver exhibited both slurred speech and severe inattention during questioning after a vehicle stop.

DUI Convictions: Criminal Penalties

A DUI conviction may carry criminal penalties including fines, jail time, probation, and community service. Some state laws impose certain minimum penalties for first-time offenses, then designate increased penalties for each offense thereafter. Severity of criminal penalties will vary according to the circumstances of the offense, including:

• Whether the driver has a history of DUI violations;
• Whether the driver was operating a commercial vehicle at the time of the DUI;
• Whether the DUI violation occurred while there was a child in the vehicle;
• Whether the DUI violation occurred simultaneously with another dangerous moving violation, such as reckless driving;
• Whether the DUI violation involved a car accident in which property damage occurred;
• Whether the DUI violation involved a car accident in which another person was injured or killed; and
• Whether the driver was under the legal drinking age at the time of the DUI violation.

DUI Arrest and Conviction: Driving Privilege Penalties

In addition to potential criminal penalties, a DUI arrest or conviction will have an immediate negative impact on driving privileges.

Most state laws allow a motor vehicle department to immediately suspend the driver’s license of any person operating a vehicle with a BAC above the state limit for intoxication, or any driver who refuses to submit to BAC testing. The driver’s vehicle may also be confiscated or impounded, and the DUI offender will likely incur significant administrative costs. This loss of driving privileges can normally occur even before a DUI conviction. Most states allow a DUI arrestee to obtain a temporary license and request an administrative hearing at which he or she may argue against license suspension, or for restoration of limited driving privileges.

As with criminal penalties, the impact of a DUI arrest or conviction on driving privileges will vary according to the driver’s history of DUI violations and the severity of the offense. An increasingly popular DUI penalty, especially for repeat offenders, is mandatory installation of an “ignition interlock” device on the offender’s vehicle. This breath-testing device measures the vehicle operator’s BAC, and will prevent operation of the vehicle if more than a minimum amount of alcohol is detected, such as BAC level of .02. Where this punishment is utilized, most states require the DUI offender to pay costs of installation, rental, and maintenance of the ignition interlock device. Rental fees alone can amount to as much as three dollars per day, so a DUI offender’s expenses can add up quickly when an ignition interlock device is required.

Plea Bargains in DUI Cases

Due to recent law enforcement trends that focus on preventing DUI by penalizing offenders harshly, most district attorney offices refuse to negotiate plea bargains in DUI cases. This is especially true if evidence of the violation is strong. In fact, many states have enacted laws that prohibit government attorneys from entering into plea bargains with DUI defendants. However, in rare cases a DUI charge may be reduced to a lesser offense like reckless driving or an “open beverage” violation.

Drunk Driving: Elements of the Offense

Most state laws define crimes of drunk driving as follows: driving a motor vehicle on a road or highway while under the influence of alcohol. Newer statutes also provide for a per se offense, which a person commits when driving a motor vehicle on a road or highway with a blood-alcohol concentration of .08 percent.

Several state statutes require that a defendant was driving a vehicle in order to be convicted of a drunk driving offense. Other states use the terms operating a vehicle or being in physical control of the vehicle. These terms are not normally synonymous, and so it is important to determine how an individual state defines the term in the statute.

A number of issues may arise that relate to the “driving” element of a drunk driving offense. For instance, a person may be in a car but has not turned on the ignition. The question in some cases is whether the person was driving or operating a vehicle or whether the person was using the vehicle as a temporary shelter. Courts in various jurisdictions have identified several factors that may be used to determine whether someone has been driving a vehicle. Some of these include the following:

Field evidence may fall into one of five categories, including the following:

• Testimony regarding the defendant’s unusual driving
• Testimony regarding the defendant’s conduct or physical appearance
• Incriminating statements made by the defendant
• Testimony regarding the defendant’s performance during a field sobriety test
• Tapes, film, and/or photographs taken at the scene where the defendant was driving and/or arrested

Police officers will often look at the defendant’s physical appearance and symptoms of drunk driving in order to determine whether the defendant is intoxicated. The following are some of the more common symptoms of intoxication:

• The defendant’s clothes are disheveled
• The defendant has not shaved or combed his or her hair
• The defendant’s eyes appear to be red, glassy, or bloodshot
• The defendant’s face appears to be flushed
• The defendant’s breath smells like alcohol
• The defendant’s speech is thick and slurred

The defendant’s BAC level will be determined through one of three methods. The most common of these methods involves an analysis of the defendant’s breath. Other tests analyze the blood or urine of the defendant. Refinements in the methods by which a defendant’s BAC is determined have strengthened the ability of prosecutors to prove this BAC. However, these tests are not above reproach, and skilled defense attorneys can often successfully attack the methods by which the defendant’s BAC was analyzed.

Drunk Driving Sentencing

A person who is convicted of drunk driving most likely faces some or all of the following in terms of punishment: a fine; time in jail; suspension, restriction, or revocation of the defendant’s driver’s license; probation; enrollment and completion of a course in drunk driving or alcoholism. In addition to these, states have also developed other penalties or requirements that drunk drivers must fulfill.

One requirement that has become more common throughout the nation involves the use of an ignition-interlock device. Such a device captures a driver’s breath and analyzes the BAC of the driver. The device only allows the driver to start the vehicle when the breath analyzer reads below a certain level, such as .02 percent.

Another form of punishment is the impoundment of a drunk driver’s vehicle for a certain period of time. A more serious form of this punishment is the forfeiture of a vehicle, meaning that a court can order the sale of a person’s car after the person has had multiple convictions for drunk driving.

States have also modified their statutes to provide for enhanced sentences under some circumstances. These sentence enhancements may apply when one of the following events occur:

(1) The defendant’s BAC is very high, such as above .20 percent.
(2) The defendant refuses to submit to chemical testing.
(3) The defendant greatly exceeds the speed limit or drives recklessly while drunk.
(4) A child under the age of 14 is in the car when the defendant is driving drunk.
(5) Drunk driving is accompanied with an accident or injury to another person.

Field Sobriety Tests and Sobriety Checkpoints

Researchers have developed a variety of tests that are designed to determine whether a person is likely to be intoxicated. A police officer performs these tests on suspects after the officer has stopped a person on suspicion of drunk driving. These tests allow an officer to observe a suspect’s balance, physical ability, attention level, or other factors that the officer may use to determine whether the suspect is impaired. Officers often record a suspect’s performance of these tests, and this practice generally has been upheld on appeal.

In several states, authorities have set up checkpoints where officers can question drivers in an effort to catch drunk drivers. These checkpoints are often set up during holidays when people are more likely to drink, such as New Year’s Eve. Courts in the majority of states have upheld these checkpoints against challenges that these checkpoints are unconstitutional.

Felony Drunk Driving

Most states have expanded their drunk driving statutes to provide for harsher punishment when drunk driving has resulted in injury to another. Where a person causes injury to another while driving drunk, the person may be charged with a felony, punishable by a term in state prison. In an even more severe expansion of criminal laws, some states now incorporate their murder or manslaughter statutes with their DUI laws where drunk driving results in the death of another. Moreover, in some states, a person may be charged with assault with a deadly weapon for driving a car while intoxicated. In such an instance, the deadly weapon is the car.

All states treat first DUI offenses as misdemeanors. However, in the majority of states, a person’s third offense (or third “strike”) is treated as a felony.

Defenses to Drunk Driving

A person charged with drunk driving usually attacks the arresting officer’s observations or opinions as part of his or her defense strategy. A defendant may also attack witnesses that tested the defendant’s BAC, or the defendant may call on someone who can testify that the defendant was sober.

In addition to these strategies, a defendant could rely on one of several defenses. These defenses include the following:

(1) Necessity, which applies when a person must drive to prevent a greater evil;
(2) Duress, which applies when the defendant drives in order to avoid serious injury or death;
(3) Entrapment, which applies when an officer requests that a person drive drunk;
(4) Mistake of fact, which applies when a person has an honest belief that his or her BAC is below the legal limit;
(5) Involuntary intoxication, which applies when the person has ingested alcohol without his or her knowledge

Individual states take different positions with respect to the availability of these defenses. In general, however, these defenses rely on specific sets of facts and are each very difficult to prove successfully.

If you have any questions about driving while intoxicated contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego DUI Defense

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DUI Checkpoints San Diego

Decision making at the Supervisory Level

The decision to establish a sobriety checkpoint, the selection of the site and the procedures for the checkpoint operation should be made and established by supervisory law enforcement personnel, and not by an officer in [*1342] the field. This requirement is important to reduce the potential for arbitrary and capricious enforcement. (See United States v. Martinez-Fuerte, supra, 428 U.S. at p. 559 [49 L. Ed. 2d at p. 1129].)

Limits on Discretion of Field Officers

Motorists should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or tenth driver should be employed. To permit an officer to determine to stop any particular driver or car when there is no legitimate basis for the determination would be to sanction the kind of unconstrained and standardless discretion which the United States Supreme Court sought to circumscribe in its decisions in Prouse, supra, 440 U.S. 648, Almeida-Sanchez, supra, 413 U.S. 266, and Camara, supra, 387 U.S. 523.

Maintenance of Safety Conditions

Primary consideration must be given to maintaining safety for motorists and officers. Proper lighting, warning signs and signals, and clearly identifiable official vehicles and personnel are necessary to minimize the risk of danger to motorists and police. (Cf. Jones v. State (Fla. Dist. Ct. App. 1984) 459 So.2d 1068, 1079.) The checkpoint should be operated only when traffic volume allows the operation to be conducted safely. Screening procedures may at times be altered consistent with traffic volume, such that, for example, every car might be stopped when traffic is light, but if traffic began to back up, a different neutral formula might be applied, such as every fifth or tenth car, or operations might be temporarily suspended until traffic volume permitted resumption of safe checkpoint operation.

Reasonable Location

The location of checkpoints should be determined by policy-making officials rather than by officers in the field. The sites chosen should be those which will be most effective in achieving the governmental interest; i.e., on roads having a high incidence of alcohol related accidents and/or arrests. (See State v. Coccomo, supra, 427 A.2d 131, 134.) Safety factors must also be considered in choosing an appropriate location.

The Olgaard court’s concern in State v. Olgaard (S.D. 1976) 248 N.W.2d 392. with lack of permanency was solely based on its worry about surprise and lack of publicity in connection with the checkpoint. Although it is not precisely clear from the record in Olgaard, it is inferrable from the circumstances that the Olgaard checkpoint was set up on a surprise basis. The checkpoint was operated by only four officers utilizing nothing but the red flashing lights on several patrol cars. They stopped all traffic in both directions. No lights or signs were used that would have given advance notice of the checkpoint. There was no advance publicity about the checkpoint. The checkpoint plainly also lacked sufficient indicia of legitimacy in terms of staffing strength. In addition, there was no showing who made the decision to set up the checkpoint, or how the location was selected. Thus the Olgaard court appears to have acted with propriety in holding the checkpoint unlawful.

Similarly, the “temporary” border patrol checkpoint at issue in United States v. Maxwell (9th Cir. 1977) 565 F.2d 596, was deficient with respect to notice and indicia of legitimacy. The checkpoint was marked only by a “stop ahead” sign with battery operated blinking yellow lights, half a dozen traffic cones, one ordinary stop sign, and a border patrol car with a flashing red light. Whereas motorists know or may learn of a permanent immigration checkpoint, the checkpoint in Maxwell was in operation on an intermittent basis without advance notice. There were no structures or electrical equipment connections. So far as the motorist was concerned, he was called to a halt on a lonely road by a blinking red light which could belong to anybody. In addition, the location of the checkpoint may have been inappropriate for an immigration checkpoint. The immigration checkpoint in Martinez-Fuerte, supra, 428 U.S. 543, was justified in part by its being placed on a major highway to prevent easy access by illegal aliens into the interior. Just as a sobriety checkpoint would be improper at a location without any significant traffic or incidence of drunk driving, the location of the Maxwell checkpoint on a route without any significant traffic, by illegal aliens or otherwise, may have been improper. ( United States v. Maxwell supra, 565 F.2d. 596, 597-598.)

Time and Duration

The time of day that a checkpoint is established and how long it lasts also bear on its intrusiveness as well as its effectiveness. For example, a nighttime stop may be more hazardous and possibly more frightening to motorists, but it will also probably prove more effective. While mentioned as a factor in State v. Deskins, supra, 673 P.2d 1174, time and duration have received little attention in the decisions addressing sobriety checkpoints, although most of the checkpoints approved have been operated in the late evening and early morning hours. ( People v. Scott, supra, 473 N.E.2d 1; Little v. State, supra, 479 A.2d 903; State v. Coccomo, supra, 427 A.2d 131; State v. Golden, supra, 318 S.E.2d 693; State v. Deskins, supra, 673 P.2d 1174.) We agree with the assessment of the Court of Appeal that no hard and fast rules as to timing or duration can be laid down, but law enforcement officials will be expected to exercise good judgment in setting times and durations, with an eye to effectiveness of the operation, and with the safety of motorists a coordinate consideration.

Indicia of Official Nature of Roadblock

Those aspects of a sobriety roadblock which evidence its official nature are critical in minimizing its intrusiveness. The roadblock should be established with high visibility, including warning signs, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are such factors important for safety reasons, advance warning will reassure motorists that the stop is duly authorized.

Clearly visible warning lights and other signs of authority have been present in most of the checkpoints upheld by the courts of other states. (See People v. Scott, supra, 473 N.E.2d 1, 3; Little v. State, supra, 479 A.2d 903, 905-906; State v. Golden, supra, 318 S.E.2d 693, 694.) In contrast, most of the checkpoints found unlawful have not provided adequate warning to motorists. (See State v. McLaughlin (Ind. Ct. App. 1984) 471 N.E.2d 1125, overruled in State v. Garcia (Ind. 1986) 500 N.E.2d 158, 162 [holding checkpoints lawful]; Com. v. McGeoghegan (1983) 389 Mass. 137 [449 N.E.2d 349, 353]; State v. Olgaard, supra, 248 N.W.2d 392, 394; State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, 993; State v. Hilleshiem (Iowa 1980) 291 N.W.2d 314 [vandalism roadblock]; cf. State v. Smith (Okla. Crim. App. 1984) 674 P.2d 562, 564.)

The checkpoints in San Diego, CA may not have complied with requirements for proper lighting, signing, and official presence, both in the comprehensive regulations developed for the checkpoint operation and in actual practice.

Length and Nature of Detention

Minimizing the average time each motorist is detained is critical both to reducing the intrusiveness of the stop on the individual driver and to maintaining safety by avoiding traffic tie-ups. As occurred in the Burlingame and CHP checkpoints, each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply.

If you have questions about DUI checkpoints San Diego contact San Diego Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Defense

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Fourth Amendment Protections

The Fourth Amendment of the U.S. Constitution guarantees the RIGHT OF THE PEOPLE to be secure IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, against UNREASONABLE searches and seizures.  U.S. Const. amend. IV.“The Fourth Amendment protects people, not places, therefore the touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy in the place searched or thing seized.” California v. Ciraolo, 476 U.S. 207, 211 (1986)

WHAT IS A REASONABLE EXPECTATION OF PRIVACY?

An expectation of privacy is reasonable if it derives from source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized as reasonable and permitted by society.  United States v. Gamez-Orduno, 235 F.3d. 453 (2000).

WHAT MAY BE CONSTITUTIONALLY PROTECTED?

What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.  Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1976).

WHAT MAY NOT BE CONSTITUTIONALLY PROTECTED?

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.  Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1976).

WHO HAS A CONSTITUTIONALLY PROTECTED REASONABLE EXPECTATION OF PRIVACY?

A person who has a legitimate possessory interest in the property seized, or a legitimate privacy interest in the area searched, or a personal liberty interest that was infringed by the unreasonable search and seizure conducted.  People v. Roybal, 19 Cal.4th 481 (1998).

WHAT IS CONSIDERED AN UNREASONABLE SEARCH AND SEIZURE?

A search or seizure by law enforcement is unreasonable if conducted without a search warrant or without probable cause to believe evidence of a crime is present.  Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1976).

WHO IS CONSIDERED AN OVERNIGHT GUEST?

A visitor who is a social guest and stays overnight in the residence, with the knowledge and permission of an identifiable host, who is a lawful occupant of the residence.  Minnesota v. Olson (1990) 495 U.S. 91.

WHO IS NOT CONSIDERED AN OVERNIGHT GUEST?

A visitor who is in the residence for only a limited time without a prior relationship with the lawful occupant of the residence and whose presence on the premises is purely commercial in nature.  Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469 (1998).

DOES AN OVERNIGHT GUEST HAVE STANDING TO CONTEST AN UNREASONABLE SEARCH?

A visitor who is an overnight guest in a residence has fourth amendment protection against unreasonable searches and unlawful seizures.  Minnesota v. Olson (1990) 495 U.S. 91.

WHAT IF THE OVERNIGHT GUEST IS A DRUG SMUGGLER?

If the person stayed overnight in another’s home as a social guest with the owner’s permission, free of charge, for the purpose of eating and resting, the person has a legitimate expectation of privacy under the Fourth Amendment as an overnight guest.  United States v. Davis (2003) 332 F.3d 1163.

The status of overnight guest alone is enough to show that the person had an expectation of privacy in the home, that society is prepared to recognize as reasonable.  Minnesota v. Olson (1990) 495 U.S. 91.

WHO BEARS THE BURDEN OF PROOF?

The defendant bears the burden of showing that he or she had a reasonable expectation of privacy in the place searched or the thing seized in order to be entitled to suppression of evidence based upon allegedly unlawful search and seizure.  United States v. Caymen, 404 F.3rd 1196, 1199-1200 (9th Cir. 2005).

WHO TO CONTACT?

Contact Monder Law Group to learn more about your Fourth Amendment right do not allow your constitutional rights to be waived. Our attorneys are experienced criminal defense attorneys who will review the specifics of your case to see if you have standing as an overnight guest. If you do qualify as an overnight guest, then you have a legitimate expectation of privacy in your host’s home, where you and your possessions will not be disturbed. Do not allow your privacy to be violated, allow us the opportunity to fight on your behalf.

If you have questions about the fourth amendment protections contact San Diego Criminal Defense Attorney Vik Monder at (619) 405-0063 or visit San Diego Criminal Defense

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Field Sobriety Test

As part of the alcohol influence report form, most police officers will subject a drunk driving suspect to field sobriety tests at the station. In Muniz, the court reaffirmed that requiring a driver to perform field sobriety tests does not compel him or her to provide testimonial evidence. Therefore, there is no right to refuse to perform the test as well as no right to consult with an attorney beforehand. Muniz at 602-03. The Muniz rationale would likely allow the police to instruct an arrested defendant to perform field sobriety tests without having to advise the defendant of Miranda rights.

Note: Although there is no constitutional right to refuse to perform the field sobriety tests, unless there is a penalty, statutory or common law, for refusing to submit to a field sobriety test, there should be no adverse inference drawn from a defendant’s refusal to participate.

In a number of jurisdictions, even if the defendant requests to speak with an attorney, the police officer may still instruct the defendant to perform a field sobriety test prior to permitting the defendant to speak with counsel. See Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982) (court upheld police testimony about the defendant’s performance on field sobriety tests even where defendant had asked for counsel prior to submitting to tests, reasoning that “field sobriety tests do not elicit testimonial or communicative evidence and therefore do not trigger the protection afforded by the Fifth Amendment.”).

Even if the performance of the field sobriety test may not be incriminating, the suspect who performs the physical test in response to police instructions will often make statements that are incriminating. In Muniz, once the arresting officer gave the defendant instructions about the field sobriety tests, Muniz made incriminating statements, some of which suggested the reasons why he could not properly perform the test. The Court held that these statements, made while Muniz was under arrest but before he was advised of his Miranda rights, were admissible because even though they were testimonial, Muniz was not responding to custodial “interrogation.” Muniz at 602-05. The Court reasoned that the “instructions were not likely to be perceived as calling for any verbal response [because they] were not ‘words or actions’ constituting custodial interrogation.”  Id. at 603.

The Court did not decide the “custodial interrogation” status of certain other common practices (occurring in Muniz), such as requesting that the arrestee count aloud from one to nine while performing the “walk and turn” test, or count aloud from one to thirty while balancing during the “one leg stand” test. Therefore, these issues are still open from a constitutional perspective.

Although the police could testify concerning statements made by Muniz not in response to “interrogation,” questions about Muniz’s drinking during the field sobriety tests would have amounted to interrogation, and the answers to those questions would have been suppressed as a violation of Miranda. See Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982) (defendant told police he would not say or do anything without his counsel present, but agreed to submit to a breath test and field sobriety tests after being informed that his license would be suspended if he did not. During testing defendant was asked certain questions regarding his alleged intoxication; to some of those questions he gave incriminating responses, and the court held that the oral statements made by the defendant were elicited in violation of Miranda rights and were properly suppressed); see also State v. Fields, 294 N.W.2d 404 (N.D. 1980); State v. Darnell, 8 Wn. App. 627, 508 P.2d 613, cert. denied 414 U.S. 1112 (1973).

If the defendant has been arrested, the police may require the defendant to perform standard field sobriety tests without giving Miranda warnings, but only those tests that measure physical coordination, reflexes, dexterity and balance. The police may also testify how the defendant performed on the field sobriety tests and what, if anything, the defendant said while performing the tests or refusing to perform them. The police may not, however, attempt to elicit any incriminating response from the suspect. Muniz at 602-05.

Certain Kinds of Field Sobriety Tests Require Miranda Warnings

Some field sobriety tests do require Miranda warnings-those that not only require the defendant to perform physical acts, but also require the defendant to answer certain questions. For example, in Muniz, in addition to the physical field sobriety tests, the police asked Muniz to perform verbal tests, including a request that he give the date of his sixth birthday. He did not know the proper date, and his answer amounted to an incriminating response because it demonstrated a confused mental state. The question was incriminating not only because of the way he answered, but also because of what he said. Id. at 599. See also Allred v. State, 622 So.2d 984 (Fla. 1993). The police also asked this question because they were looking for an incriminating response, hoping that Muniz answer incorrectly and show that he was intoxicated. The court correctly concluded that the question was not a “routine booking question” designed to obtain mere data for case processing, but rather was custodial interrogation intended to produce a testimonial response. Muniz, at 592-600. Since Miranda warnings were not given, and there was no knowing and intelligent waiver of the right, the response was not admissible at trial. Id.

The Court did not have to rule on whether the police testimony concerning counting aloud while performing a physical dexterity test was admissible because Muniz had counted accurately during the “one leg stand” test and he was not required to count during the “walk and turn” test. Therefore, the prosecution did not produce any incriminating evidence.

A number of state courts have held that verbal field sobriety tests, including counting and alphabet tests, are testimonial in nature and implicate the Fifth Amendment privilege against self-incrimination. See Allred v. State, 622 So.2d 984 (Fla. 1993); State v. Fish, 321 Ore. 48, 893 P.2d 1023 (1995); Commonwealth v. McGrail, 419 Mass. 774, 647 N.E.2d 712 (1995). But see State v. Wright, 11 6 N.M. 832, 867 P.2d 1214 (1993).

The cases holding that verbal field sobriety tests implicate Miranda and the Fifth Amendment privilege against self-incrimination are the better reasoned ones. Thus, if the police have failed to give Miranda warnings prior to requesting that defendant perform verbal field sobriety tests, the defense should aggressively move to suppress those responses.

Probable Cause

Before anyone can be arrested and charged with the crime of driving under the influence, the officer so arresting or so charging must have had probable cause to stop the vehicle the individual was driving in, require the individual to perform field sobriety tests, administer a chemical test to the individual or search the individual’s person or vehicle. The United States Constitution’s Fourth Amendment, which is applicable to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. Therefore, the police must have probab le cause to stop and question the driver of a car for suspicion of drunk driving before such questioning, and searches incident thereto, will be upheld. Again, as with many of the other motions, a motion based on lack of probable cause can either be brought as a motion to dismiss, (when the evidence obtained, if precluded from production into evidence, will warrant a dismissal of the charges), or, in the alternative as a motion to suppress, (when the evidence obtained, if precluded at trial, will merely prohibit the state from presenting part of its case). The analysis of the cases presented in this section applies either to motions to suppress or to dismiss.

If you have questions about the field sobriety test in San Diego contact Attorney Vik Monder at 619.405.0063 or visit San Diego’s Best DUI Attorney

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Answer Police Questions

The primary area of challenge to the admissibility of statements of the defendant is to those statements made in response to initial questioning by the police just after the defendant has been stopped. Generally, the first question asked by the cop when he smells alcohol on the defendant’s breath is, “Have you been drinking?” The answer is often a significant factor in the prosecution’s case.

Miranda warnings are rarely given before the question is asked. Admissibility then turns on whether or not they should have been given, and that issue turns on whether or not the defendant could have objectively believed he was in custody. Thus the custodial status of the defendant, and the necessary analysis of when probable cause arose to arrest the defendant, is a fact which must be determined preliminary to any decision about suppressing the evidence. Such an analysis falls squarely into the situation dealt with by Evid. C. §402, which allows the determination of a fact which is preliminary to a decision to suppress evidence (People v. Lopez (1985) 163 CA3d 602, 209 CR 575).

Berkemer v. McCarty (1984) 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317, was a drunk driving case from Ohio. The U.S. Supreme Court held that anyone actually arrested for any crime, including a misdemeanor, is in custody; but, when a person is merely detained for the purpose of issuing a traffic citation for an infraction, they are not in custody. Pennsylvania v. Bruder (1988) 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172, was in agreement.

In Green v. Superior Court (1985) 40 C3d 126, 219 CR 186, the California Supreme Court followed Berkemer and stated that, in determining whether or not a defendant is “in custody” for purposes of the Miranda warning requirement, the “ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest…. The test, of course, is an objective one— how a reasonable man in the suspect’s position would have understood his situation…. Would such a person feel that he has been subjected to restraints comparable to those associated with a formal arrest? If so, he was ‘in custody’ and entitled to Miranda warnings before being interrogated.”

Four years after Green, in People v. Boyer (1989) 48 C3d 247, 256 CR 96, the California Supreme Court stated:

In deciding the custody issue, the totality of circumstances is relevant, and no one factor is dispositive. However, the most important considerations include (1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning.

Later, the California Supreme Court tried to change this objective test into one incorporating into factor number (2) (whether the investigation has focused on the subject), the undisclosed intention of the cop to arrest. But they were resoundingly chastised by the U.S. Supreme Court in Stansbury v. California (1994) 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293, which reaffirmed that “custody” is determined by objective circumstances known to the defendant, not the undisclosed intentions of the cops.

So the rule is now clear: The statements of the defendant are inadmissible without Miranda warnings if the defendant is in “custody.” And that is determined by an objective test, based upon an application of the factors mentioned above to the information known to the defendant.

You may be successful in having the defendant’s statements suppressed in a drunk driving case where the defendant was stopped while driving under suspension. Such a person would quickly have a subjective belief, which shortly becomes objectively reasonable, that he is under arrest.

Numerous California opinions have applied Berkemer. [See People v. Ceccone (1968) 260 CA2d 886, 67 CR 499; Ramona R. v. Superior Court (1985) 37 C3d 802, 210 CR 204; and People v. Lopez (1985) 163 CA3d 602, 209 CR 575.] But in People v. Bellomo (1992) 10 CA4th 195, 10 CR2d 782, custody was never really an issue. The court held that Miranda advice was not needed because the defendant was sitting on the curb near his wrecked auto, had not yet been arrested, and the questions were not accusatory.

In People v. Forster (1994) 29 CA4th 1746, 35 CR2d 705, the defendant’s statements made without Miranda advice followed a one-hour detention in the San Ysidro customs office, but were not suppressible. The opinion held that the situation was not reasonably perceivable by the defendant as “in custody” for Miranda  purposes. This despite the fact that the U.S. Customs Inspector who greeted the defendant upon entry to the U.S. at the No. 5 Inspection Lane had, “asked Forster to step out of his vehicle and accompanied him to the customs security office, where [he] subjected Forster to a routine pat-down search and directed him to sit on a bench.” I guess he was actually free to leave, since the customs agent had only asked him to wait around. Remember that next time you cross the border.

If you have questions about whether to answer police questions contact San Diego Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney

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Detained Arrested Difference

“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu (2002) 534 U.S. 266, 273, citing United States v. Cortez (1981) 449 U.S. 411, 417; Terry v. Ohio (1968) 392 U.S. 1, 9.

In People v. Soun (1995) 34 CA4th 1499, 40 CR2d 822, the court clearly spelled out constitutional standards for permissible detentions and arrests:

Any police restraint of the liberty of an individual either by physical force or by an assertion of authority to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave, will constitute a state “seizure” of the individual within the meaning of the Fourth Amendment. Such a seizure is normally characterized as either a “detention” or an “arrest.”

The distinction can be significant, inasmuch as the constitutional standard for a permissible detention “is of lesser degree than that applicable to an arrest”

A detention “‘may be undertaken by the police’ if there is an articulable suspicion that a person has committed or is about to commit a crime”, while probable cause for arrest is said to exist only “when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” Thus in assessing the constitutional propriety of a seizure of the person it is essential initially to determine whether the seizure was a detention, or was an arrest, or was both a detention and, subsequently, an arrest.

If you have questions about detained arrested difference, contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney

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Erasing Arrest Record California

Expungement is a legal process through which an arrest or conviction may be erased from a person’s criminal record. Below you will find links to in-depth information on expungement, and state-specific resources on expungement and criminal records.

• Expungement Basics – Introductory information on expungement and its legal effects.
• Eligibility for Expungement – An arrest or conviction usually must meet certain standards in order to qualify for expungement.
• The Expungement Process – A number of steps must be taken before an expungement is granted.

Expungement Basics

Expungement (also called “expunction”) is a court-ordered process in which the legal record of an arrest or a criminal conviction is “sealed,” or erased in the eyes of the law. When a conviction is expunged, the process may also be referred to as “setting aside a criminal conviction.” The availability of expungement, and the procedure for getting an arrest or conviction expunged, will vary according to the state or county in which the arrest or conviction occurred.

Legal Effect of an Expungement

An expungement ordinarily means that an arrest or conviction is “sealed,” or erased from a person’s criminal record for most purposes. After the expungement process is complete, an arrest or a criminal conviction ordinarily does not need to be disclosed by the person who was arrested or convicted. For example, when filling out an application for a job or apartment, an applicant whose arrest or conviction has been expunged does not need to disclose that arrest or conviction.

In most cases, no record of an expunged arrest or conviction will appear if a potential employer, educational institution, or other company conducts a public records inspection or background search of an individual’s criminal record.

An expunged arrest or conviction is not necessarily completely erased, in the literal sense of the word. An expungement will ordinarily be an accessible part of a person’s criminal record, viewable by certain government agencies, including law enforcement and the criminal courts. This limited accessibility is sometimes referred to as a criminal record being “under seal.” In some legal proceedings, such as during sentencing for any crimes committed after an expungement, or in immigration / deportation proceedings, an expunged conviction that is “under seal” may still be considered as proof of a prior conviction.

Expungement Eligibility

When expungement of an arrest or conviction is an option in a state or county, in most instances a person’s criminal record must meet certain standards in order to qualify for the process.

Whether or not a person is eligible for expungement will usually depend on a number of factors, including:

• The amount of time that has passed since the arrest or conviction
• The severity and nature of the event for which expungement is sought (i.e. a conviction for a sex offense may lead to a denial of expungement)
• Events in the applicant’s criminal record (including arrests or convictions in all jurisdictions, not just the offender’s state/county)
• The severity and nature of other events in the applicant’s criminal record

Depending on the state and/or county, special eligibility rules might exist for expungement of arrests or convictions that occurred while the offender was a juvenile, and arrests or convictions for sex offenses.

The Expungement Process

Where available to persons who have been arrested or convicted, expungement does not happen automatically, and is never guaranteed. A person seeking to have an arrest or criminal conviction expunged from their record must usually fill out an application or petition, and submit the paperwork to the proper criminal court for a judge’s review and decision. In most jurisdictions, a fee must be paid in conjunction with the filing of the application.

The expungement process can be complicated. For example, some jurisdictions require an applicant to deliver (or “serve”) papers on district attorneys, while others require the applicant to prepare the legal document (or “Order of Expungement”) which will be signed by the judge. In some cases, a court hearing is required, after which a judge will decide whether to grant the expungement.

If you have any questions about erasing arrest record California contact San Diego Criminal Attorney today at 619.405.0063 or visit San Diego Criminal Attorney

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Juvenile Charges in San Diego

When minors are eligible for juvenile court, and what to expect in juvenile court.

“Juvenile justice” is an umbrella term for the special procedures set up by every state to deal with young people whose cases belong in juvenile court. Juvenile courts handle most of the cases in which young people (usually called “juveniles” or “minors”) are accused of committing crimes.

Eligibility for Juvenile Court

There is no set age by which a child is accountable in the juvenile court system. In general, a child under seven years of age is considered too young, while a child 14 or older is considered accountable for their crimes, either in juvenile or adult court. Children between the ages of seven and 14 occupy a middle ground, and prosecutors must demonstrate that the accused child is capable of forming the guilty mind required to be accountable in the juvenile court system.

Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about “getting tough on crime,” the conflicting opinions on how to deal with minors accused of crimes are greater still.

Not every young person who commits an offense ends up in juvenile court. A police officer who suspects that a minor has committed a crime may:

• detain and warn the minor against further violations, and then let the minor go free
• detain and warn the minor against further violations, but hold the minor until a parent or guardian comes for the minor, or
• place the minor in custody and refer the case to a juvenile court.

Whether Case Goes to Juvenile Court

If the police refer a case to the juvenile court, a prosecutor or a juvenile court “intake” officer (often a probation officer) must then decide whether to:

• dismiss the matter
• handle the matter informally, or
• “petition” the matter by filing formal charges.

In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. (For more information, see Avoiding Formal Charges, below.)

When a Minor Commits a Crime

Informal Charges

A decision to proceed informally often means that the minor must appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or after-school classes, repay the victim for damaged property or pay a fine, perform community service work, or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, the officer may also initiate proceedings to remove the minor from the custody of his or her parents or guardians.

Formal Charges

If the intake officer decides to proceed formally, the officer files a petition and the case is placed on the juvenile court’s calendar. At that point juvenile cases typically flow through the juvenile justice system in this manner:

• The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or, if the crime or the juvenile’s personal characteristics indicate that the case should be handled in regular court, the judge sets the case for a “fitness hearing.”
• At the hearing, the judge will determine whether the minor should be tried as a juvenile or as an adult in regular court. As younger and younger minors commit ever more violent crimes, these fitness hearings are becoming more common.
• If the case remains in juvenile court, the minor either enters into a plea agreement or faces trial (often called an “adjudication”).
• If, after trial, the juvenile court judge “sustains the petition” (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition).
• Post-disposition hearings may occur. For example, a judge’s disposition order may require a minor to appear in court periodically so that the judge can monitor the minor’s behavior.

Juvenile Court Procedure

The procedure and organization of the juvenile court system is different from the adult system. After committing an offense, juveniles are detained rather than arrested. Next, a petition is drawn up which outlines the jurisdiction authority of the juvenile court over the offense and detained individuals, gives notice for the reason for the court appearance, serves as notice to the minor’s family, and also is the official charging document.

Once in court, the juvenile case is adjudicated, and a disposition is handed down. Records from juvenile courts are sealed documents, unlike adult records which are accessible by anyone under the Freedom of Information Act. Like diversion, this measure is designed to protect the juvenile so that one mistake does not follow the juvenile for life. Juvenile records may also be expunged upon the juvenile’s eighteenth birthday provided the juvenile has met certain conditions, such as good behavior. Juvenile court procedure is also far less formal than adult court procedure.

The disposition of a juvenile case is based on the least detrimental alternative, so the legacy of parens patriae is still evident. However, one major controversy in juvenile dispositions is the use of indeterminate sentencing, which allows a judge to set a maximum sentence. In such cases, juveniles are monitored during their sentences and are released only when the judge is satisfied that they have been rehabilitated or when the maximum time has been served. Critics argue that this arrangement allows the judge too much discretion and is, therefore, not the least detrimental punishment.

Juvenile courts are typically organized in one of three ways:

1) as a separate entity
2) as part of a lower court, such as a city court or district court
3) as part of a higher court, such as a circuit court or a superior court

The organization model varies state by state, and some states, for example, Alabama, allow each county and city jurisdiction to decide which is the best method of organization. Where the juvenile court sits has profound implications for the juvenile process.

What to Expect: Juvenile Court Chronology

If your child is arrested or referred to the juvenile court by some other means-perhaps even by you-you will undoubtedly face a flood of emotions and have a multitude of questions. An attorney experienced in juvenile law can answer your questions and walk you through the process, while helping to ensure the best possible outcome for you and your child. Although the juvenile court process can vary somewhat from state to state, or even county to county, the following summary outlines the basic steps that you can expect if your child should become involved with the juvenile justice system.

• A juvenile court matter comes to the court’s attention when the police apprehend a minor for violating a statute or a school official, parent, or guardian refers a problem with a juvenile to the court.
• The court intake officer then evaluates the case to determine whether further action is necessary, whether the child should be referred to a social service agency, or whether the case should be formally heard in juvenile court.
• If the situation is serious enough, the juvenile may be detained in a juvenile correction facility pending resolution of the matter or he or she may be sent to an alternative placement facility such as a shelter, group home, or foster home.
• If the intake officer decides that a formal hearing in juvenile court is not necessary, arrangements may be made for assistance for the child from school counselors, mental health services, or other youth service agencies.
• If the intake officer decides that the case should be heard in juvenile court, a petition is filed with the court setting forth the statutes that the child is alleged to have violated.
• In cases of serious offenses such as rape and murder, the matter may be referred to the district or county attorney’s office, after which the juvenile may be charged as an adult, tried in the criminal courts, and even sentenced to an adult correctional facility.
• If the matter proceeds to juvenile court and the child admits to the allegations in the petition, a treatment program is ordered.
• If the child denies the allegations in the petition, a hearing like an adult criminal trial is held. The child has the right to be represented by counsel at this hearing. Rather than trying the case to a jury, however, a judge hears the matter and decides whether the juvenile has committed the acts alleged in the petition.
• If the allegations have not been proven to the court’s satisfaction, the judge will dismiss the case.
• If the judge decides that the allegations have been proven, he or she may rule that the child is a status offender or a delinquent.
• A second juvenile court hearing is then held to determine the disposition of the matter. If the juvenile is not considered to be dangerous to others, he or she may be put on probation. While on probation, the juvenile must follow the rules established by the court and report regularly to his or her probation officer. Serious offenders, however, may be sent to a juvenile correction facility.
• Other treatment options include community treatment, like making restitution to the victim or performing community service; residential treatment, in which a juvenile is sent to a group home or work camp, with a focus on rehabilitation; and nonresidential community treatment, in which the juvenile continues to live at home but is provided with services from mental health clinics and other social service agencies.

If you have any questions about juvenile charges in San Diego contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Petty Theft With Priors

What is Petty Theft (P.C. 484 & 488)?

Petty theft is the unlawful taking of another’s property, that is valued at $950 or less, was not taken directly off of the person, and the property taken was not a car or a firearm.

What is Petty Theft with a Prior (P.C. 666)?

A repeat theft offender with three or more qualifying prior convictions or with one qualifying prior conviction and either a prior sex crime conviction, serious felony conviction or violent felony conviction, who is subsequently convicted of a petty theft offense under P.C. 484 and 488. 

What is an Enhancement?

An enhancement is an increase penalty for a subsequent petty theft conviction, if three or more priors meet the conditions under P.C. 666. If the conditions are met then the misdemeanor charge of petty theft is enhanced to a wobbler offense in California.

What is a Wobbler Offense?

A wobbler in California is an offense that the prosecution may choose to charge as either a misdemeanor or a felony.  The prosecution looks to the underlying circumstances of the offense and the person’s criminal history to make the determination.

What kind or prior convictions qualify for enhancement under P.C. 666?

The following theft related offenses qualify for enhancement of petty theft:

P.C. 211 for Robbery, P.C. 215 for Carjacking, P.C. 459 for Burglary, P.C. 487 for Grand Theft, P.C. 488 for Petty Theft, P.C. 496 for Felony Receiving Stolen Property, and V.C. 10851 for Grand Theft Auto.

What must the prosecution prove to increase the penalty for a subsequent petty theft conviction?

The prosecution must prove that the person has qualifying prior convictions for a theft offense and as a result of each conviction the person served time in jail. 

What are the penalties for Petty Theft?

A misdemeanor conviction for petty theft may result in a maximum fine of one thousand dollars and up to six months in county jail.

What are the penalties for Petty Theft with a Prior?

A felony conviction for petty theft with a prior may result in an increased penalty of sixteen months, two years or three years in prison.

What legal defenses exist for Petty Theft? 

No Intent to Steal: You did not intend to take or permanently deprive the person of his or her property.

Rightful Owner: You took the property but you have an honest belief that you are the rightful owner of the specific property that you took. While your believe may be mistaken, so long as it is honest, it will be a defense to the theft charges against you.

False Accusation: You are innocent, wrongly mistaken for the shoplifter and wrongfully accused of the taking of another’s property.

If you have any questions about a petty theft with priors under PC 666 enhancement contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense