Monder Law Group - News

What Is Assault and Battery on a Peace Officer?

            The difference between assault and battery involving a peace officer, or with anyone for that matter, is important to recognize. In California, assault is the serious intention to physically harm someone. You don’t necessarily need to do any actual physical harm: a serious threat or missed punch, kick, shove, etc. is still assault. Battery, however, does require some form of physical contact. Battery can be punished with up to 6 months jail time, up to a $2,000 fine, or both.

            The charges are much more serious when a battery involves a peace officer. To clarify, peace officers include police, security guards, firefighters, lifeguards, paramedics, emergency medical technicians, etc. Battery involving a peace officer can drastically raise the punishment to a $10,000 fine, one year in county prison, or up to 3 years in State prison.

            Battery in California occurs more often than you may think. What may have started a simple traffic stop or questioning can often escalate to a major felony. For example, let’s say a young man gets pulled over in his car. He has marijuana in his pocket and the car smells like marijuana as well. When the officer comes by, he smells the drugs and asks you to step out of the vehicle to answer some questions. The man panics and starts to run. He is chased by the officer, eventually tackled, and begins to put him in handcuffs. The man resists arrest and manages to break free from his grip. If at any time the struggle of putting on handcuffs results in the officer observing that he or she is being hit, kicked, spit on, or in any way physically harmed, the man can now be charged with assault & battery on a peace officer. You can see how police encounters can unintentionally escalate to the point of battery on a peace officer.

            Aside from a one-on-one encounter, battery can often happen in group situations like concerts, protests, and sporting events. When police enter big crowds of people to break up fights or calm a situation down, people often spit on officers and push them away from the group. Naturally, the officers begin to arrest the people closest to them assuming those were the people causing physical harm. Luckily, people in these big group events dress the same and thus, are hard to identify. This is what makes “mistaken identity” a great defense.

            Another commonly used defense that can work for a one-on-one encounter is that the battery was an accident. For example, say a man is in a crowd and gets pulled from behind by a police officer. Not knowing it was a police officer, the man pulls the arm off of his shoulder and runs. Although the man will most likely be arrested, he can easily argue that there was no intent on causing physical harm to a police officer.

            Police officers can also exaggerate the truth or lie about the circumstances of the incident in order to better solidify their case. While there are many honest, good police officers, many other fall under the category above. Lawyers should make a motion to the court requesting an officer’s personal record in order to shed light on an officer’s character; therefore, help to reduce the officer’s credibility. These personal records often show officers with a history of complaints involving exaggeration of the truth, excessive force, and lying on the stand. It is human nature to simplify believe an officer’s testimony on the stand, so it is very important to retrieve these personal documents as part of a comprehensive and effective defense.

            Another important thing for a defendant is informing the district attorney of the defendant’s history. The more a district attorney knows about the good in a defendant, the more power a defendant can negotiate a plea deal. For example, a woman with a history of felonies and a past battery on a peace officer convictions would not be as good as a single mom with a clean record and 200 hours of community service. Prior community service can also be huge in negotiating plea deals. If you have already been charged with battery on a peace officer, the best thing you can do while a lawyer is working on the case is doing as much community service as possible. This can almost always be leveraged with the district attorney.

            All of these defenses can be implemented in a complete defense case for a battery on a peace officer: claiming mistaken identify, accidental battery, and uncovering an officer’s personal files. But the most important thing is to find a lawyer that can do this for you. A good lawyer is able to customize the perfect defense based on an individual’s circumstances in order minimize any punishment charged, or even get the cased dismissed all together. A lawyer who is very experienced with battery on a peace officer with a history of dismissals and positive outcomes will be key in ensuring your best possible outcome.

Monder Law Group - News

Are You Allowed to Refuse An Alcohol Prescreening Test In a DUI Case?

Yes. The law that allows this is Vehicle Code 23612(i) and the Constitution. The Fourth Amendment states” “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” And courts have affirmed in earlier cases that the administration of a breath test is a search within the meaning of the Fourth Amendment and therefore subject to the requirements of that amendment.

In fact, the Constitution and courts thereafter have maintained that a search of the bidy is more intrusive than a search of one’s home or other property. This means that it is even more protected by the Fourth Amendment. There are many cases on the subject of exigent circumstances permitting the withdrawal of a blood sample in a drunk driving case. The exigent circumstance is that the body quickly metabolizes alcohol, and if time must be taken to obtain a warrant, the evidence will be lost. A search warrant is not required if the defendant is under arrest and withdrawal of the blood is done in a medically approved manner. But if the driver/defendant is NOT  under arrest at the time of the proposed PAS test/search,  then there is no emergency because the police can secure evidence of BAC as a result of the licensed and regulated test after arrest and with implied consent.

But Doesn’t Refusing the Test Imply Guilt?

An individual’s refusal to consent to a warrantless entry of his residence may be open to various interpretations and is not encouraged, however the assertion of the right itself cannot be a crime nor can it be evidence of a crime. This is in direct violation of the innocent unitl proven guilty standard.

A passive refusal to consent to a proposed warrantless search cannot be punished the Constitution. The defendant also has the right to decline the proposed test pursuant to statute. 

If you have any questions feel free to contact San Diego DUI Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney

Monder Law Group - News

Can I Reject a BAC Test?

Pursuant to implied consent to search per V.C. §23612, the police have the right to search a person’s body for evidence of blood alcohol content after a lawful arrest for DUI and could even lawfully forcibly extract a blood test from an arrestee without consent (assuming probable cause and done in a reasonable manner) because there is an exigent circumstance (dissipation of blood alcohol) which dispenses with the warrant requirement. A person who passively insists upon a warrant and does not consent to the police request to search the person cannot be subjected to criminal penalties. Also, a citizen has a privilege to be free from comment upon the assertion of a constitutional right. 

The Constitution, by way of the Fourth Amendment, firther supports this notion; it is the cornerstone of any inquiry regarding governmental conduct involving securing evidence from the accused. And while there is no explicit constitutional right to refuse to take a chemical test, it does not follow that a defendant may be criminally “penalized” when he insists upon the unnecessary warrant and/or by not agreeing to the requested chemical test of his blood.

Can the refusal to consent to a warrantless yet otherwise legally justified search and seizure ever be a crime? 

No, mere refusal to consent to a warrantless search cannot be a crime. The fact that the search and seizure is justified by some exigent circumstance does not permit criminal punishment for not consenting to the search. The Fourth Amendment protects a person’s ultimate authority to passively withhold consent to a government intrusion.

  While it is permissible to suspend a driver’s license (a civil sanction) when an implied agreement to consent to a test has not been fulfilled, the right to passively refuse to consent to a warrantless search and seizure cannot be made criminal.

Constitutional Implications: 

The admission into evidence of the offering of a chemical test for BAC and the Defendant’s response thereto, by necessity, would call for an explanation by the Defendant, thereby denying the Defendant his right not to be compelled in a criminal case to be a witness against himself as guaranteed by the Fifth Amendment of the United States Constitution. This is where Miranda rights stem from.

Therefore, although a warrantless search and seizure of blood or breath for BAC may be legal, it does not follow that a passive refusal to consent to such a warrantless search may be punished as a crime under the Constitution. This is not a wilful refusal, and it cannot be used against you in trial proceedings.

If you have any questions feel free to contact San Diego DUI Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Lawyer

Monder Law Group - News

Can My Silence Actually Be Used Against Me In A Criminal Trial?

No. But you have to make sure it isn’t! 

Take this common scenario at trial: 

The prosecutor cross-examines the defendant about his failure to mention the alibi previously, and argues such a failure in closing argument. The court held the cross-examination and argument are improper because using post-arrest silence against the defendant violates due process. Additionally, if the prosecutor commented on defense counsel not revealing the alibi, it is an “improper disparagement of counsel” and is prejudicial.

The Reasoning: 

California courts have reasoned that the prosecutor’s argument to the jury is unfair because the unstated premise which may be plausible to non-lawyers is that the prosecutor simply would drop all charges because the defense informed the prosecution of the alibi defense. Alternatively, the comments improperly implied defense counsel did not believe the alibi or had participated in its fabrication.

How to Determine If a Violation Took Place:

The first issue is whether the defendant was actually in custody. When it’s a brief and routine traffic stop, the U.S. Supreme Court has held that such a stop doesn’t constitute custody. Although most drivers would not feel free to leave, and the driver’s freedom has been curtailed, the stop is open to the public and not “police dominated.” Police can ask questions (“Have you had anything to drink tonight?”) without first giving Miranda rights, and judges will allow the answers. The answer may be different, however, when the routine stop becomes prolonged, and particularly if scrutiny on the suspect increases. When a person is told he cannot leave, he could reasonably conclude that he’s in police custody—triggering Miranda before any questions should be asked. 

This is a dangerous scenario, and courts have tried to prevent this from happening so the police wont abuse this time to delay questioning in order to create an extended post-custody period, and create intervening silence that could be used against the defendant.

If you have any questions feel free to contact San Diego CRIMINAL Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney

Monder Law Group - News

Blood Test or Breath Test: Do I Have A Choice In A DUI Arrest?

Yes. You have a choice, per Vehicle Code §23612: a person has the choice of whether the test shall be of his blood or breath and the officer shall advise the person that he or she has that choice. And if not provided that choice than the defendant can argue the compelled blood test was obtained without a warrant and was obtained without consent, it was unreasonable, and violated the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 13 of the California Constitution. 

The Typical Scenario:

The defendant, after being pulled over for a minor vehicle code violation,  is  taken to the police station. He or she is then NOT offered a choice of blood or breath test. The police officer told him or her “We’re going to take a blood test from you and we are getting a lady here to do it,” or words to that effect. The defendant cooperated fully. However, he or she was never given a choice of tests, nor did he or she ever consent to the withdrawal of the blood from his or her body. 

How Do I Argue this Violation of My Rights?

Well, you shouldn’t, your lawyer should. And the first thing your lawyer will (most likely) do is file a 1538.5 motion to raise the issue of the unconstitutionality of a search and simply assert the absence of a warrant and make a prima facie case to support that assertion. Consequently, the burden of proof to justify the warrantless search is on the prosecution. And California courts have ruled that even though the moving party has the initial responsibility of raising the suppression issue, “when [he so raises], he makes ‘a prima facie case’ when he establishes that the arrest or search was made without a warrant and… “the burden then rests upon the prosecution to show proper justification. At this point, you just have to poke holes in the prosecution’s arguments, and make sure they never meet their burden of proof. And the defense has this very strong argument in their favor: If an alternative test is readily available and a suspect requests it, police officers may not arbitrarily refuse to administer it simply because the suspect did not have the presence of mind to make a decision more promptly or because he changed his mind. The standard, as always, under the Fourth Amendment, is reasonableness. Defendants (the police) have offered no explanation for the officer’s refusal to comply with (the arrestee)’s request. 

If you have any questions feel free to contact San Diego DUI Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Lawyer

Monder Law Group - News

DUI – Hearsay

What is admissible or not in your DUI Trial 

What Is Hearsay?

Hearsay is an out of court statement, any statement—written or oral, offered for the truth of what is written or said. And this is critical to DUI cases because prescreening tests are usually printed out, and the print out of the results is a “writing.” And according to evidence rules, “the content of a writing may be proved by an otherwise admissible original.” This means that the prosecution would have the officer testify to breath test results without offering the original statement (print out) of said results. 

What is Secondary Evidence?

Secondary evidence is evidence that has been reproduced from an original document or substituted for an original item. For example, a photocopy of a document or photograph would be considered secondary evidence. Another example would be an exact replica of an engine part that was contained in a motor vehicle. If the engine part is not the very same engine part that was inside the motor vehicle involved in the case, it is considered secondary evidence. Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever possible. This approach is called the best evidence rule. 

The rules of evidence also require the court to: exclude “secondary evidence of the content of writing if the court determines: (1) a genuine dispute exists concerning material terms of the writing and justice requires the exclusion or (2) admission of the secondary evidence would be unfair.

This is important if the officer does not print out the PAS test results. The officer cannot offer secondary evidence by way of their testimony of what the results were. This is hearsay. In fact, California courts have already made this analogy, to show how ridiculous this is: Proffering testimony about what the officer claims he saw instead of introducing the data from the machine “is analogous to proffering testimony describing security camera footage of an event to prove the facts of the event instead of introducing the footage itself. And on top of all that: the testimony by the officer of the purported PAS test results is an out of court statement (not under oath) of a “statement” made by a machine, offered for its truth, i.e. classic hearsay upon hearsay.

Monder Law Group - News

DUI – Due Process

Do You Waive Your Due Process Rights, If You Do An Alcohol Prescreening Test?

Short Answer: No. You have the right to determine which test determines your blood alcohol content, and, if the chemical test chosen was breath, to have the Due Process right to obtain a back-up test of blood or urine so that the evidence of BAC is preserved. 

And California courts have held that the denial of a chance to obtain evidence (e.g. a blood test) on a charge of intoxication prevents the accused from obtaining evidence necessary to his defense, and is a denial of due process of law.

The process  due in such instances is where a person is administered a breath test be advised that he or she  has a right to a back-up test of blood or urine, because a breath test does not provide a retestable sample. This is one’s right to evidence.

If the arresting officer arbitrarily and unilaterally, and therefore illegally, deprived the defendant of that right and the court allows the PAS test result to be used for BAC. Then, there was no voluntary and understanding waiver of said right to evidence.

What Should Happen: The officer, by statute, V.C. §23612(i) should advise the driver of the following admonition, which, if given, explains that the PAS test is only a preliminary alcohol screening test to be used for determining probable cause and is not a test for blood alcohol content: “I am requesting that you take a preliminary alcohol screening test to further assist me in determining whether you are under the influence of alcohol. This is not an implied consent test. If arrested, you will be required to give a sample of your blood, breath, or urine for the purpose of determining the actual alcoholic (and/or drug content) of your blood.”

The implied consent law of California creates a liberty interest of a choice of tests (blood or breath) to determine BAC that is entitled to the procedural due process protection of the Fourteenth Amendment. If violated, then Due Process is violated. That is a Constitutional “no, no.”

Monder Law Group - News

DUI – Limited Consent

Limited Consent

Defining Consent:

Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers. 

Limited consent refers to the fact that consent be limited to the purpose defined by law, and explained to the individual. This is highly relevant in prescreening tests in DUI cases. In many cases, the prosecution will want to bring in the prescreening results as evidence of the defendant’s blood alcohol content. This is not constitutional , however, and a skilled defense attorney will know that and know how to get the evidence excluded.

Why Is Limited Consent So Important?

The broad answer: to ensure a just trial and proper law enforcement practices. When pulled over, the police officer should clearly informed the driver that the purpose of the prescreening test is only for establishing probable cause to arrest for driving under the influence, and that a proper BAC test will determine blood alcohol content. The cop must inform the defendant that the chemical test for blood alcohol is different than the prescreening test. Therefore, the defendant consented to the prescreening test only for the purpose of allowing the officer to use the test to assist him in determining whether the driver was under the influence. The driver consented to nothing more; there was only a limited consent to the search of his body; and there was no consent to use the results of the search to determine blood alcohol content. 

The defendant did not “knowingly” and voluntarily consent to the search of his body by way of a prescreening test to determine the amount of alcohol in his blood. No, the consent was limited. And therefore, the prosecution should not be allowed to bring in the results to prove blood alcohol content.

Further, the prescreening test is not held to the high calibration standards the BAC test is. The police agencies are not licensed to maintain and calibrate breath testing devices, conduct training, or do periodic accuracy testing to prescreening devices. Therefore, it is arguable not as accurate. Now the reason for excluding it becomes even more obvious—this is now misleading evidence.

Imagine this horrific scenario and you’ll realize why limited consent is so important: The police searched for DUI evidence. Prior to an arrest, they searched for the amount of alcohol in the defendant’s blood by way of a prescreening test. Later, he cops got a blood test with .09% results. Ordinarily, to justify a search the police must have a warrant. At trial, the prosecution has the burden to justify the warrantless search. There is no exception for the warrantless search by way of a prescreening test if the police did not advise the citizen of the scope of the search. In fact, the cops misled the citizen (e.g., this is “not a test to determine your blood alcohol content”), then the defendant did not “knowingly” and voluntarily consent to the search of his body. Thus, the prescreening test result must be suppressed, and the court has the duty to enforce the Constitution.

Monder Law Group - News

DUI – No Foundation

No Foundation 

For preliminary blood alcohol screenings to be admitted as evidence for DUI charges, the prosecution must first “lay foundation.” This means that the prosecution must authenticate the test results, the test administrator, the credentials, etc. This rule is known as the Adams rule, based from a 1976 California case. The rule requires a showing that:

1. the apparatus utilized was in proper working order;
2. the test was properly administered; and
3. the operator was competent and qualified.

The purpose of this requirement is to protect the fairness of the judicial system and make sure the defendant is given his or her constitutional grants of due process and equal protection under the law.

Now going back to the preliminary blood screenings—remember that these are not meant to determine blood alcohol content, but ONLY in determining if the person is under the influence of alcohol. They are ONLY a tool used for establishing probable cause. In fact, the party told to complete this screening is told this (or should be told this) and they should also be told that if arrested, he or she would be given another test to determine the alcohol content of the blood.

Arresting officers CANNOT be allowed to induce a person to believe this prescreening is going to be used only for the purpose of establishing probable cause and then allowed to use it for a purpose the defendant did NOT consent to. And doing otherwise would be in direct violation of the constitutional grants of due process and equal protection.

This becomes critical when the defendant consents to the prescreening, but not the actual blood alcohol content test. At trial, such defendants typically argue that they satisfied the implied consent law by submitting to the prescreening, and most judges have agreed with this argument. Hence, they do not allow the jury to be instructed that the defendant refused to give a chemical test as required by the implied consent law (thus, preventing the jury from hearing this bias-inducing fact). In fact, Evidence code §352,  provides that the court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice of confusing the issues, or of misleading the jury.

Monder Law Group - News

DUI – Statutes

The principle statute for drunk driving in California is Vehicle Code §23152— (a),(b). These two subdivisions are applicable to cases where the drinking and driving incident does not result in injuries. Vehicle Code §23153—(a), (b)—covers the situations where injuries result. A statutory presumption is also set forth dealing with these types of cases. Statutory presumption means a rebuttable or decisive presumption created by a statute.

Vehicle Code §23152(a) makes it unlawful for any person under the influence of alcohol or drugs or both to drive a vehicle. While, Vehicle Code §23152(b) establishes it is unlawful for any person with 0.08% or more(by weight) of alcohol in his/her blood stream to operate a vehicle.

Note: Subdivision (b) does not apply to individuals driving under the influence of drugs alone, as it clearly specifies an alcohol presence in the bloodstream. Such cases are charged under subdivision (a).

The statutes are obviously all-encompassing. A person might be unsafe to drive under the influence under (a), even if that person has a BAC under that set forth in (b).

Further, Vehicle Code §23153 (a)& (b) mirror Vehicle Code §23152, but apply to cases where the DUI has caused injury. Of note is the nature of the injury required to trigger these subdivisions. In contrast with the enhancement provision for personal infliction of great bodily injury, there is no requirement that the injury rise to the level of great or severe injury—any injury, even a minor one, will suffice to violate these provisions. ON the other hand, the injury must be more than a mere “shaking up,” “fright,” or “minor headache.”

Now let’s go back to the statutory presumption, which provides: in any prosecution under this law, it is a rebuttable presumption that the person ahs 0.08% or more by weight in his/her blood at the time of driving the vehicle. A test must be performed within three hours of driving under the influence to get the most accurate BAC.

This presumption is meant to assist the prosecutor in the case. And it has long been established that it is both fair and constitutional to create this uphill battle for the defense. Therefore, knowledge and skill are critical for defense attorneys.

Stay tuned for more information on DUI charges.