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Criminal Law In San Diego

For most people, familiarity with criminal law in San Diego comes in fragments — from movies, television, and books. But when we become personally involved in the criminal law system, real-life issues come into focus and the need for information and assistance can arise quickly. This overview discusses the basics of criminal law: criminal statutes, criminal law players and procedure, and the potential outcome of a criminal case. Links to additional introductory information on criminal law are also provided.

Criminal Law In San Diego and Their Sources

When a society and its government decide that certain conduct is dangerous to citizens, or damaging to the society as a whole, such conduct is labeled a “crime” and is made punishable by sanctions such as fines and imprisonment. Most crimes are identified in statutes that have been enacted by federal, state, and local government legislatures, in response to issues that affect the jurisdiction. For example, a city may determine that it is a crime to be drunk in public, while the federal government decides bank robbery is a federal crime, since most banks are federally insured.

Criminal statutes describe the type of conduct that has been deemed a crime, the mindset or intent required, and in some instances, the proper punishment. For example, the following “Burglary” statutes are from the California Penal Code:

Section 459. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, [etc.]…with intent to commit grand or petit larceny or any felony is guilty of burglary.

Section 461. Burglary is punishable as follows:

1. Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. 2. Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison.

People who are found to have violated a criminal law — whether through their own admission by a “guilty” plea, or as a result of a jury trial — can be punished through imposition of fines, imprisonment, probation, and community service, among other penalties.

If you have any questions about criminal law in San Diego contact Top Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Pre Trial Conference

After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge for a pre trial conference — arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.

The Pre trial conference is a tool used by the government and the defense in an effort to set the boundaries for trial, should one take place: What physical evidence and testimony can be used? What legal arguments can and cannot be made? Is there any reason that the defendant should not be forced to stand trial?

What Arguments are Made During Pre Trial Conference Motions?

While specific possibilities are endless, following are some examples of pre trial conference motions that might be made in a criminal case:

• In a drug possession case, the defense asks the judge to “exclude,” or keep out of the case, drug paraphernalia that the defense argues was obtained through an illegal search of the defendant’s apartment.
• The defense argues that the defendant’s confession should be excluded, because it was made in response to questions from a police officer who failed to first read the defendant his Miranda rights.
• The prosecutor argues that one of the defendant’s key witnesses, an elderly neighbor with Alzheimer’s disease, is not legally competent to testify and should be excluded as a witness at trial.
• The defense asks the judge to dismiss the case against the defendant altogether, arguing that the police did not have “probable cause” to arrest the defendant in the first place, or that insufficient evidence exists for any reasonable jury to find the defendant guilty.

If you have any questions about the pre trial conference contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Preliminary Hearing In Criminal Court

Usually held soon after arraignment, a preliminary hearing in criminal court is best described as a “trial before the trial” at which the judge decides, not whether the defendant is “guilty” or “not guilty,” but whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the “probable cause” legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.

What to Expect at the Preliminary Hearing In Criminal Court 

In reaching this probable cause decision, the judge listens to arguments from the government (through a government attorney, or “prosecutor”), and from the defendant (usually through his or her attorney). The prosecutor may call witnesses to testify, and can introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense usually cross-examines the government’s witnesses and calls into question any other evidence presented against the defendant, seeking to convince the judge that the prosecutor’s case is not strong enough, so that the case against the defendant must be dismissed before trial.

Preliminary Hearing In Criminal Court — Not in Every Case

A preliminary hearing In Criminal Court may not be held in every criminal case in which a “not guilty” plea is entered. Some states conduct preliminary hearings only when a felony is charged, and other states utilize a “grand jury indictment” process in which a designated group of citizens decides whether, based on the government’s evidence, the case should proceed to trial. Last but not least, the possibility always exists that any time prior to the preliminary hearing a criminal case will be resolved through a plea bargain between the government and the defendant.

If you have any questions about a preliminary hearing in criminal court contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense 

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Guilty Plea

As criminal courts become ever more crowded, prosecutors and judges feel increased pressure to move cases quickly through the system. Trials can take days, weeks or sometimes months while guilty pleas can often be arranged in minutes. Also, the outcome of any given trial is usually unpredictable — but a plea bargain provides both prosecution and defense with some control over the result.

For these reasons and others, and despite its many critics, plea bargaining is very common. More than 90% of convictions come from negotiated pleas, which means that less than 10% of criminal cases result in a trial. And though some still view plea bargains as secret, sneaky arrangements that are antithetical to the people’s will, the federal government and many states have written rules that explicitly set out how plea bargains may be arranged and accepted by the court.

In theory, a plea bargain may be negotiated at any time after arrest. In practice, however, the time to plead depends on the court and the jurisdiction — some jurisdictions allow plea bargains only during certain phases of the criminal process. In many other places, however, plea bargains can be worked out virtually any time — from shortly after the defendant is arrested (before the prosecutor files criminal charges) up to the time a verdict is reached — even during trial itself. Also, if the trial results in a hung jury (the jurors are split and cannot make the unanimous decision required), the prosecution and defense may (and often do) negotiate a plea rather than go through yet another trial.

Defendants’ Incentives for Accepting Plea Bargains:

Getting out of jail. Defendants who are held in custody — who either do not have the right to bail or cannot afford bail, or who do not qualify for release on their own recognizance — may get out of jail immediately following the judge’s acceptance of a plea. Depending on the offense, the defendant may get out altogether, on probation, with or without some community service obligations. Or, the defendant may have to serve more time but will still get out much sooner than if he or she insisted on going to trial.

Resolving the matter quickly. This has the intangible benefit, touched on above, of providing resolution to the stress of being charged with a crime. Going to trial usually requires a much longer wait — and causes much more stress — than taking a plea bargain.

Having fewer or less-serious offenses on one’s record. Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offenses looks a lot better on a defendant’s record than the convictions that might result following trial. This can be particularly important if the defendant is ever convicted in the future. For example, a second conviction for driving under the influence (DUI) may carry mandatory jail time, whereas if the first DUI offense had been bargained down to reckless driving, there may be no jail time for the “second” DUI.

Even for people who are never rearrested, getting a charge reduced from a felony to a misdemeanor, or from a felony that constitutes a strike under a “three strikes” law to one that doesn’t, can prove to be a critical benefit. Some professional licenses must be forfeited upon conviction of a felony. Future employers may not want to hire someone previously convicted of a felony. Felony convictions may be used in certain court proceedings (even civil cases) to discredit people who testify as witnesses. Felons can’t own or possess firearms. And, in many jurisdictions, felons can’t vote.

Having a less socially stigmatizing offense on one’s record. Prosecutors may reduce charges that are perceived as socially offensive to less-offensive charges in exchange for a guilty plea. For example, a prosecutor may reduce a molestation or rape case to an assault. This can have a major impact on the defendant’s relationship with friends and family. Perhaps even more critical, sometimes defendants convicted of stigmatizing offenses may be at a greater risk of being harmed (or killed) in prison than if they are convicted of an offense that doesn’t carry the same stigma.

Avoiding hassles. Some people plead guilty — especially to routine, minor first offenses — without hiring a lawyer. If they waited to go to trial, they would have to find a good lawyer and spend both time and money preparing for trial.

Avoiding publicity. Famous people, ordinary people who depend on their reputation in the community to earn a living, and people who don’t want to bring further embarrassment to their families all may chose to plead guilty or no contest to keep their names out of the public eye. While news of the plea itself may be public, the news is short-lived compared to news of a trial. And rarely is a defendant’s background explored in the course of a plea bargain to the extent it may be done at trial.

Keeping others out of the case. Some defendants plead guilty to take the blame (sometimes called the “rap”) for someone else, or to end the case quickly so that others who may be jointly responsible are not investigated.

If you have any questions about accepting a guilty plea in San Diego contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Plea Bargaining Cases

The vast majority of criminal cases are resolved through a “plea bargaining cases”, usually well before the case reaches trial. In a plea bargaining cases, the defendant agrees to plead guilty, usually to a lesser charge than one for which the defendant could stand trial, in exchange for a more lenient sentence, and/or so that certain related charges are dismissed. For both the government and the defendant, the decision to enter into (or not enter into) plea bargaining cases may be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial. Plea bargaining cases are generally encouraged by the court system, and have become something of a necessity due to overburdened criminal court calendars and overcrowded jails.

What Kind Of Plea Bargaining Cases Might Be Made?

To illustrate how a “plea bargain” might be reached in a criminal case: suppose Dan is arrested and charged with two counts of aggravated assault/battery, based on his alleged use of a baseball bat in a street fight. A “plea bargain” might be reached in Dan’s case in one of three ways:

• The prosecuting attorney handling the case approaches Dan and his attorney, and offers to allow Dan to plead guilty to a less serious charge, such as simple assault/battery or even disorderly conduct; or
• Dan agrees to plead guilty to one charge or “count” of aggravated assault/battery, in exchange for dismissal of the second count; or
• The government’s evidence against Dan is so strong, and the injuries suffered by the assault victim so serious, that Dan agrees to plead guilty to the original charge of aggravated assault/battery, in exchange for a less severe sentence than he would likely receive if a jury found him guilty at trial.

Plea bargaining cases actually involves three areas of negotiation:

• Charge Bargaining. This is a common and widely known form of plea. It involves a negotiation of the specific charges (counts) or crimes that the defendant will face at trial. Usually, in return for a plea of “guilty” to a lesser charge, a prosecutor will dismiss the higher or other charge(s) or counts. For example, in return for dismissing charges for first-degree murder, a prosecutor may accept a “guilty” plea for manslaughter (subject to court approval).
• Sentence Bargaining. Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant with an opportunity for a lighter sentence.
• Fact Bargaining. The least used negotiation involves an admission to certain facts (“stipulating “to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence.

The validity of plea bargaining cases is dependent upon three essential components:

1. a knowing waiver of rights
2. a voluntary waiver
3. a factual basis to support the charges to which the defendant is pleading guilty

Plea bargaining cases is not as simple as it may first appear. In effectively negotiating a criminal plea arrangement, the attorney must have the technical knowledge of every “element” of a crime or charge, an understanding of the actual or potential evidence that exists or could be developed, a technical knowledge of “lesser included offenses” versus separate counts or crimes, and a reasonable understanding of sentencing guidelines.

If you have any questions about plea bargaining cases in San Diego contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Arraignment in San Diego

After the arrest, booking, and initial bail phases of the criminal process, the first stage of courtroom-based proceedings takes place — arraignment in San Diego. During a typical arraignment, a person charged with a crime is called before a criminal court judge, who:

• Reads the criminal charge(s) against the person (now called the “defendant”);
• Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney;
• Asks the defendant how he or she answers, or “pleads to”, the criminal charges — “guilty,” “not guilty,” or “no contest”;
• Decides whether to alter the bail amount or to release the defendant on his or her own recognizance (Note: These matters are usually revisited even if addressed in prior proceedings); and
• Announces dates of future proceedings in the case, such as the preliminary hearing, pre-trial motions, and trial.

Also at the preliminary hearing, the prosecutor will give the defendant and his or her attorney copies of police reports and any other documents relevant to the case. For example, in a DUI/DWI or drug possession case, the prosecutor may provide the defense with lab reports of any blood or chemical tests that were performed, and may be used in the case.

The Right to Counsel at Arraignment in San Diego

If a criminal defendant faces the possibility of jail time if convicted for the crime(s) charged, the defendant has a constitutional right to the assistance of an attorney, or “counsel.” If the defendant wishes to be represented by an attorney but cannot afford to hire one, a government-appointed attorney will be assigned at no cost to the defendant. Usually employed as “public defenders”, these government-appointed defense attorneys are responsible for zealously protecting a criminal defendant’s rights at all stages of the criminal process.

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

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Getting Out Of Jail

After a criminal suspect is arrested, the next steps in the case are the processing of the person into police custody (“booking”), and a determination of his or her eligibility for release from custody in exchange for the posting of a set amount of money (“bail”). 

Booking

After arrest, a criminal suspect is usually taken into police custody and “booked,” or “processed.” During booking, a police officer typically:

• Takes the criminal suspect’s personal information (i.e., name, date of birth, physical characteristics);
• Records information about the suspect’s alleged crime;
• Performs a record search of the suspect’s criminal background;
• Fingerprints, photographs, and searches the suspect;
• Confiscates any personal property carried by the suspect (i.e., keys, purse), to be returned upon the suspect’s release; and
• Places the suspect in a police station holding cell or local jail.

(Note: persons arrested for minor offenses may merely be given a written citation and released, after signing the citation and promising to appear in court at a later date.)

For criminal suspects who are placed in jail, the first priority is usually getting out. Except when very serious crimes are charged, a suspect usually can obtain pre-trial release through bail or “own recognizance” release.

Bail: Getting Out of Jail After an Arrest

What you need to know about bail — what it is, how it’s set, and how to pay it.

A person’s first thought upon landing in jail is often how to get out — and fast. The usual way to do this to “post bail.” Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn’t show up, the court keeps the bail and issues a warrant for the defendant’s arrest.

How Bail Is Set

Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting up to five days to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. An arrested person can get out of jail quickly by paying the amount set forth in the bail schedule.

The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to give an arrested person her freedom until she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep her from fleeing before a case is over.

So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose — called preventative detention — is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).

If a person can’t afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing or when the person appears in court for the first time (usually called the arraignment).

Bail: Getting Out of Jail After an Arrest

Paying Bail

Bail can take any of the following forms:

• cash or check for the full amount of the bail
• property worth the full amount of the bail
• a bond (that is, a guaranteed payment of the full bail amount), or
• a waiver of payment on the condition that the defendant appear in court at the required time (commonly called “release on one’s own recognizance”).

A bail bond is like a check held in reserve: It represents the person’s promise that he or she will appear in court when required to. The bail bond is purchased by payment of a nonrefundable premium (usually about 10% of the face amount of the bond).

A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require “collateral.” This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person’s valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.

Getting Out of Jail Free

Sometimes people are released “on their own recognizance,” or “O.R.” A defendant released O.R. must simply sign a promise to show up in court. He doesn’t have to post bail.

A defendant commonly requests release on his own recognizance at his first court appearance. If the judge denies the request, he then asks for low bail.

In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:

• The defendant has family members (most likely parents, a spouse or children) living in the community.
• The defendant has resided in the community for many years.
• The defendant has a job.
• The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
• The defendant has been charged with previous crimes and has always appeared as required.

“Own Recognizance” Release

When a criminal suspect is arrested, booked, and granted “own recognizance” release, no bail money needs to be paid to the court, and no bond is posted. The suspect is merely released after promising, in writing, to appear in court for all upcoming proceedings. Most state criminal courts impose certain conditions on own recognizance release, prohibiting the suspect from leaving the area while proceedings are ongoing, or requiring that the suspect contact the court periodically while the case is ongoing.

As with setting bail, when deciding whether to grant own recognizance release a criminal court judge considers:

• The seriousness of the crime;
• The suspect’s criminal record;
• The danger that the suspect’s release might pose to the community; and
• The suspect’s ties to family, community, and employment.

If a suspect who has been released on “own recognizance” fails to appear in criminal court as scheduled, he or she is subject to immediate arrest, and any chance for bail release is all but eliminated.

If you have any questions about getting out of jail contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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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