E! Online

E! Online

Assuming the driver does not make any statements, does not take the Field Sobriety Tests or the PAS test as discussed in Part I, what happens?

Detain the Driver/Transport to the Station

There are good cops, bad cops, and a whole host in between. The fact that a driver is exercising his rights and not cooperating will frustrate them, but they will proceed with their investigation. If the police suspect drunk driving (based on their observations) then they will detain the driver and transport him to the station for chemical testing.

Whereas there is no requirement for most to submit to the FST’s and PAS test, California’s implied consent law states that a driver, if stopped and requested by police, will consent to a blood or breath test as part of DMV’s issuance of a drivers license in the first place. If the driver refuses to submit to a valid chemical testing request, his driver’s license will be suspended for 1 year by DMV. There are also enhanced criminal penalties for such a refusal as part of the court process. (a discussion of Refusal in more detail will be the subject of Part III).

Accordingly, when transported to the police station the driver will have a choice of a blood or breath test to check the blood alcohol content (“BAC”). Contrary to popular belief, one is not entitled to speak to an attorney at this point. Nor will Miranda rights be read as both of these have been held inapplicable at this stage of a DUI investigation.

If one opts for the blood test, it must be administered in a certain acceptable manner. Since the result may not be known for several weeks, the driver will be booked, charged with a DUI and given a court date. Often, the driver may only find out the results of such blood test when he or his attorney appear on the first court date.

Most people opt for the breath test. It is less accurate than a blood test but provides immediate results.  Generally, the test involves the driver blowing into the machine twice to get a BAC reading. If the reading is a .08 or above, the driver will be booked, charged with DUI and given a court date. Furthermore, ones California driver’s License will be confiscated and he will be issued a temporary license good for  30 days from the arrest. The driver then has ten (10) days from the arrest to contact DMV and request a DUI hearing and a stay of any suspension until after the hearing is completed. If the driver fails to request a DMV hearing within 10 days, the temporary drivers license issued to him will expire after 30 days from arrest and his privilege to driver a motor vehicle will be suspended.

In Part III, we will look at the consequences of a “Refusal” to submit to chemical testing in more detail.

Perhaps the most common question I receive about DUI’s is what to do if your stopped? Many believe there are magic bullets that will prevent them from being charged. Clearly, short of drinking and driving in the first place, the best way I can respond to such questions is to inform people of the rights and responsibilities in such situations. Most people have no idea of what their rights are and therefore they do not properly exercise them.

Since DUI in California is one of the most technical areas of the law, I will try to address the procedures, rights and issues from when one is stopped through the arrest itself. It goes without saying that this is just a cursory review and does not encompass all of the rights, details and issues that may arise.

The Stop

Although drivers are sometimes stopped for “erratic” driving or “straddling lanes,” often one is pulled over for a minor traffic infraction. This usually involves an improper lane change, speeding, red light or some other traffic violation. The officer needs probable cause prior to initiating the stop.

Everyone is aware that the officer will ask for license and registration and that one must present that to the officer.  But depending on the time of day, the location and facts, the officer may believe the driver was drinking and proceed to ask questions like: “where are you going?” “where were you coming from” and “did you have anything drink?"  It is at this point that people are not aware of what they are or are not required to do.

In California, you are not required to make any statements to the police. Short of presenting your license and vehicle information, you are not required to answer any of the above questions or make any other statements. Often, police are waiting for incriminating statements from the driver in order to justify the administration of field sobriety tests (“FST’s”). For example, if a driver responds by saying “yes officer, I had a few beers” then there is cause already to have the driver exit the vehicle and request the FST’s. On the other hand, if a driver politely refuses to make any statements the officer will have to justify cause from his observations (e.g. odor of alcohol, bloodshot eyes, erratic driving etc..) and other facts as to the suspicion of drinking. All of which are considerably less reliable and accurate than incriminating statements made by the driver himself. In short, one is well within their rights to politely refuse answering any questions and let the officer proceed without any such information.

Field Sobriety/Preliminary Alcohol Screening Tests 

If an officer has established cause to detain for suspicion of DUI, he will generally ask the driver to exit the vehicle and perform a variety of FST’s. These range from the “one-leg stand” ; the “walk and turn” test;  the horizontal gaze nystagmus (following the finger with your eyes).

The first and most important issue to realize here is that there is no statutory requirement to submit to FST’s in California. Simply put, you are not required to submit to such tests and you may politely refuse. There are no enhanced penalties for refusing the FST’s and although case law is unsettled in this area, defense counsel will generally be successful in suppressing the prosecutions evidence of a refusal to submit to such FST’s should the matter proceed to trial.

The officer may also ask for the driver to blow into a Preliminary Alcohol Screening device (“PAS”). This is a small pocket size device generally administered at the scene of the stop to determine if there is alcohol in the breath.  There is no statutory authority requiring a driver to submit to a PAS test if he/she is not on probation for a prior DUI and is 21 years of age or older (drivers under the age of 21 are required to submit to the PAS test or lose their license for a year if they refuse. The various legal issues facing these under age drivers will not be addressed herein). In fact, the law specifically states the officer will  advise the driver that such a test is not required and that one does not have to take it.  Of course, if a driver does submit to a PAS test and it reads .08 or above, the officer will have cause to believe you were driving under the influence and will take you to the station for further chemical testing.

So what does this all mean? That one doesn’t have to submit to any tests at all and wont be charged with a DUI? No!…in Part II, we will look at what happens from this point on. What chemical tests will be required at the police station; the consequences of refusing those tests; as well as the procedures and penalties for a DUI in court as well as with the Department of Motor Vehicles.

April 30, 2010, – Pilar Marrero – La Opinion

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La gran discusión nacional en torno a la ley ha enfrentado a quienes argumentan que la cláusula que establece "un contacto legal" entre policía y cualquier persona, que requiere o permite a ese policía revisar el estatus migratorio del individuo, daría paso al uso del perfil racial y quienes afirman que no sería así.

Peter Berlin, abogado defensor en Los Ángeles, indica que técnicamente la ley de Arizona tiene un lenguaje tan vago que ofrece numerosas oportunidades a los policías para pedir papeles una vez que entran en contacto con cualquier persona, por cualquier razón.

"Me temo que donde haya policías con la intención de arrestar a la mayor cantidad de personas posibles, veremos muchas razones de ‘sospecha razonable’ y de ‘contacto legal’.Por ejemplo, alguien que cruza la calle por un lugar prohibido puede ser detenido y que se le pidan sus papeles. Hace años, antes que los tribunales lo detuvieran, había policías que separaban frente a los bares para buscar cualquier falla en las personas que salían o ver si se montaban en vehículos. Lo mismo podría ocurrir aquí", dijo Berlin.

…

For the entire article click here.

While it doesn’t seem that any criminal charges are forthcoming anytime soon, an interesting legal issue with respect to the Goldman case (and financial disclosure in general) will be for the SEC to prove that any misrepresentations made by Goldman were "material" in nature so that their investors would not otherwise have purchased these mortgage backed securities had they known the true facts.  In other words, if investors knew of the conflict (or potential conflict) with Goldman client John Paulson betting against them or selecting some of Goldman’s investments to begin with, would the investors have purchased from Goldman? 

Goldman’s investors were not your average run of the mill mom and pop investors. In fact, German state banks were the main investors. So it will be crucial for the SEC to establish that said misrepresentations were material or that the Goldman investors involved were unsophisticated and/or tricked and defrauded.

Police often manufacture "reasonable suspicion" or "probable cause" when they believe  (but cant prove or establish) that some sort of crime may have been committed. Take Driving Under the Influence, for example. Officers routinely create reports with buzz words such as “weaving” or “straddling” lanes of the highway to justify a stop and then question the driver for DUI. Often, there is no violation at all but those words and observations are good enough to stand up in court as a legitimate stop and, ultimately, a DUI charge.

Similarly, the Arizona bill creates bogus conduct and so called "reasonable suspicion" for police who merely want to check someone’s legal status. This will be based on trivial violations such as loitering or jaywalking as a basis to stop and detain the individuals law enforcement ultimately want.

Attorneys are often unable to give detailed answers prior to discussing the facts of a case and reviewing the evidence. All too often, potential clients want answers to questions that I can’t yet answer. That said, below are common criminal law questions I receive and corresponding answers:

Q. Should I Make a Statement to the Police?

A. No!!! If you are under investigation or are arrested, do not make any statements to the police. Although you may feel like you can present your side of the story, often anything you say will be used against you. Do not volunteer information or discuss the facts of the case with anyone other than your attorney.

Q. What is a Search Warrant?

A. A search warrant is a court order authorizing the search of a specific place for certain items and to seize them if found. Your Fourth Amendment rights guarantee that a search warrant may only be issued on oath or affirmation that a crime was probably committed. Evidence obtained without the proper search warrant, may be excluded by the court upon motion and hearing filed by a defendant.

Q. What is Bail?

A. Bail refers to a defendants release from jail upon the proper deposit of money or property securing his future appearance in court. Its purpose is to ensure that the defendant appears in court and does not flee from the jurisdiction. The amount of bail required to secure a defendants release depends on the nature of the offense and is governed by various California Penal Code statutes.

Q. What is an Arraignment?

A. This generally refers to a defendant’s first appearance before a judge wherein he is informed of the charges and is afforded the opportunity to enter a plea. The time of the Arraignment often depends on the nature of the charges against a defendant and whether he is in our out of custody. The Arraignment is a crucial step because defendant’s counsel will usually only then be provided with documents, police reports and other evidence of the charges against his client.

Q. What is a Preliminary Hearing?

A. When a felony case is brought against a defendant, he is entitled a hearing with the ability to confront witnesses and conduct cross-examination. The purpose of this hearing is to determine if there is enough evidence to proceed further with the case against the defendant. Although the prosecution’s burden to move beyond the preliminary hearing stage is quite low, the hearing serves an important function by weeding out groundless or unsubstantiated charges against the defendant. Since the preliminary hearing provides the opportunity to determine the facts and evidence, it is important to have counsel effectively question witnesses and ascertain the evidence against his client.

Q. What is a Pre-Trial Conference?

A. At a pre-trail conference your attorney has the opportunity to continue negotiations with the prosecutor in an attempt to reach a favorable disposition. It is at this stage that your attorney may be able to work out the best plea bargain for you.

Q. What is an Expungment?

A. An Expungment refers to the cleansing or removal of one’s criminal record. This often doesn’t have the results the some may think, but may be worthwhile especially for employment purposes. Many but not all misdemeanors and felonies maybe expunged.

Q. What are My Chances?

A. A case depends on many factors which require a thorough and detailed evaluation. Although an experienced and capable attorney can discuss various aspects of a case in detail, often a complete analysis cannot be achieved until the attorney has access to all relevant documents and witnesses. If an attorney guarantees you a certain result or outcome, or fails to conduct a full investigation, seek the assistance of another attorney immediately.

Charges against Dr. Conrad Murry are finally expected this  Monday in the death of Michael Jackson.  As typical in high profile cases, there may already be unfair treatment of the good doctor.

It is anticipated that Dr. Murray will be charged with involuntary manslaughter surrounding the pop stars death and his attorneys have been diligently working on a surrender deal with the L.A. County District Attorneys office. “Surrender” occurs when a defendant (usually through his attorneys) agrees to present himself to police in order to avoid arrest. Such agreements usually occur when there is a “low risk” defendant and typically (but not always) when there is a non-violent offense involved.  These surrender agreements are quite common and serve valuable functions. Among these are:

A. that it saves law enforcement valuable resources in locating and arresting an individual; and

B. providing the defendant to appear at a police station for booking and immediately arranging for bail–so as to avoid the humiliation of arrest and time in jail.

It appears that negotiations between Dr. Murray’s attorneys and the DA’s office broke down because of the DA’s belief that allowing a surrender would appear  as “special treatment.”  However, with no criminal record, no risk of flight, and the relatively minor charges anticipated, Dr. Murray squarely fits into the typical scenario where such surrender is appropriate. To say nothing of the fact that the Dr. has allegedly cooperated throughout the entire investigation.

The DA’s office apparent zeal to parade Dr. Murray in handcuffs rather than to offer a surrender option is perhaps another example of its overreaching and questionable judgment in another high profile case.

A Judge ruled today that Roman Polanski must return to Los Angeles for sentencing rather than be sentenced in absentia. This ruling will likely be appealed further. And since Mr. Polanski is comfortably resting in his vacation home in the Swiss Alps, it is doubtful that he will return anytime soon pending the appeal of this ruling and his extradition in general.

It is never wise to speak to the police about a crime.  This man took it even one step further:  Pot Grower Calls Police.