Today, the Los Angeles District Attorneys office filed two felony charges against Chris Brown for his recent altercation with Rihanna. While her cooperation remains to be seen, the DA’s office clearly took its time and was likely focusing on the severity and nature of the injuries, as well as issues of proof.  Because it is an informative case relating to domestic violance in california,  we will continue to follow developments as this case progresses.

Recently, I wrote about domestic violence in California – the myths, the consequences and the realities.

A new incident allegedly has Chris Brown beating superstar girlfriend Rihanna while they were on the way to the Grammys last weekend.  Interestingly, the case touches on some of the aspects I discussed last month. There is the celebrity factor–allegedly severe injuries–and although it is reported that Rihanna is cooperating with police, it remains to be seen whether she and Brown reconcile, likely leading her to recant altogether.

The case can progress in a few ways. Either a quick plea bargain is reached as a result of many factors, including overwhelming evidence. Or, there can be a circus like atmosphere and/or a lack of evidence that leads to a vigorous defense and the prosecution overplaying its hand.

It was reported that there was a witness to the incident.  Moreover, Rihanna allegedly suffered severe injuries for which a felony charge may be warranted. On the other hand, the DA’s office is requesting further investigation by the police before filing charges against Brown (something that is not uncommon in high profile cases, but may mean the evidence against him is weak).

As it stands now, Mr. Brown may have an uphill battle ahead of him. There is not much sympathy for domestic violence in Los Angeles, regardless of the troubled childhood Brown allegedly had. Coupled with his celebrity status, rightly or not, he will likely be made an example of. But high profile cases such as these often do not yield typical results. One would hope the legal system is not judged by these type of cases alone–often it seems that it is.

An Austin American Statesman article recently addressed the issue of blood alcohol test refusal. According to the article, in Texas, politicians, prosecutors and judges refused blood alcohol tests 100% of the time when stopped for suspicion of DUI. The average Texan refused to take a test only 50% of the time.

As in Texas, California has its own implied consent law governing the issuance of licenses within the state. A California Licensee agrees to submit to a blood alcohol test as a condition of being issued the license. If he or she refuses, their license is suspended automatically for year–even if the DUI case is dropped or dismissed. In California, certain procedures by the police must be followed before a “refusal” is legitimate.  With competent representation, a license suspension for refusal can often be challenged. However, if the driver refused and the proper procedures were followed, it is likely that they will lose their license for a year–a significant burden in cities like Los Angeles where people are married to their automobiles.

Of course such a license suspension should be weighed against the consequences of taking a blood alcohol test, especially in light of inaccuracies and issues with breathalyzer machines discussed here.  Without such a test, the prosecution usually has no physical evidence of impairment, and is required to rely on the testimony of the officer–significantly weakening the prosecution’s case and raising the issue of reasonable doubt.

The Statesman’s article demonstrates that politicians, prosecutors and judges are aware of DUI laws and procedures, and are therefore able to make informed decisions tailored to their individual circumstances. By contrast, the average citizen is usually unaware that they have two problems to deal with: 1. the criminal case; and 2. the DMV administrative action against their driver’s license; to say nothing of the complex web of other laws and procedures that are inherit in a DUI charge.

Perhaps articles like the ones above will inform and educate the public of their rights and options, so the privileged few are not the only ones “in the know.”

Recent court rulings demonstrate the problems and issues with breath test machines and reliability. If the defense is unable to obtain information about how these machines actually work, and whether they are reliable, how can the legal system rely on them altogether?  It appears maybe they wont…

http://www.heraldtribune.com/article/20090115/ARTICLE/901150357

I often meet parents whose child is in trouble and has a pending criminal matter. Obviously, this can be a stressful time for a parent. They are concerned about their child’s well being and about the potential consequences.  But they are also confused about how the criminal justice system handles juvenile offenses in general. Below are some basics of the juvenile justice system in California.

Juveniles are minors, under the age of 18, and are treated differently from adult offenders. Juvenile offenses can range from shoplifting and drug possession, to serious violent crimes. With certain important exceptions, a minor is generally treated differently than an adult. The process in California provides for a court especially designated for juveniles. Usually only for violent crimes such as murder and rape can a juvenile be treated like an adult.  As in the adult process, a juvenile has similar constitutional rights like:

• Miranda advisement;
• right to have an attorney present during questioning;
• the right against self-incrimination;
• the right to confront the accuser and examine witnesses;
• the right to appeal the court’s decision

A notable difference from the adult system is that there is generally no right to a jury trial in juvenile court. Any trial will be heard by a judge rather than a jury.

There are separate courts, institutions, and rules governing the juvenile process which generally look to the following factors for sentencing and resolution purposes:

• seriousness of the offense;
• prior offenses;
• prior rehabilitation efforts;
• school performance and attendance;
• stability of the child’s home environment

After a close examination of the above factors, their are a number of possible resolutions, including, but not limited to: probation and eventual dismissal of the case (provided a successful completion of the probationary period and terms); youth bootcamp, suitable placement outside the home, and juvenile detention. Of course, the option of taking the case to trial is always avaiable if no satisfactory resolution is reached.

In recent years, with a rash of tragic incidents and certain hi-profile cases, the consequences and penalties for domestic violence have steadily increased. Police and prosecutors have vigorously pursued and prosecuted such cases. As a result, there has also been misinformation about the nature and circumstance surrounding such a charge.

In California , domestic violence is not only defined as an incident between a husband and wife.  California Penal Code Section 273.5, states that:

Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or he mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

Depending on the nature and extent of the victim’s injuries, Domestic Violence may be charged as a felony or misdemeanor offense. In the case of a misdemeanor, one may face up to a year in county jail or prison, a fine of $2,000, or both, as well as fines and anger management programs.

Commonly, I see two misconceptions about a Domestic Violence charge:

First,  is the belief that if the victim recants or changes his/her original story, the charges will be dropped against the aggressor.   Say a husband and wife get into a physical altercation and the police are called. The wife tells the police that the husband punched and kicked her during an argument. The police subsequently conduct an investigation and arrest the husband.  The husband is charged with a domestic related battery and has a pending criminal case.  The husband and wife often reconcile but still have to deal with the criminal case.  The belief that the case will “go away” if the wife recants or changes her original complaint is common, but generally wrong.  Domestic Violence is aggressively prosecuted in California, even when the victim recants his or her story. There can be various reasons for this, including that: the prosecutor believes the first story is the accurate one; the prosecutor believes the victim was intimidated or is afraid of proceeding against the aggressor; the case can be established with independent witnesses or other evidence.  While having a recalcitrant victim may help a defendant in certain situations,  the case will not usually be dismissed simply as a result thereof.

Second, many believe that only men will be arrested and charged with Domestic Violence. It is true that the vast majority of domestic violence arrests are against men. It is also true that there is a bias by police and prosecutors that the woman must be the victim and the man the aggressor.  Having said that, women can and do get arrested for Domestic Violence. If the circumstances of the altercation (i.e. her demeanor at the scene; the nature of the injuries to the man) points to the woman, or if there are independent witnesses establishing her culpability, then she likely will be arrested and charged.

The bottom line remains that dealing with such a criminal charge can be complicated enough without the myths and misconceptions that seem to surround this area of law.

The holiday season is filled with celebration, good times…and of course, plenty of alcohol. It is no wonder that this time of year experiences some of the highest arrest rates for driving under the influence (DUI). Police agencies often set up check points during this time of year to catch potential violators. One should never drink and drive. But if you or a loved are arrested, understanding the complex legal system related to this area of law is crucial.

Women should be aware of the differences between themselves and men with respect to alcohol consumption and DUI. The difference is not in the law, or how it’s applied, but rather in the fact that women absorb alcohol faster than men because they generally weigh less. A two-hundred pound man, for example, may not be over the legal limit after 2 drinks, whereas a 120 pound woman may very well be. This is not to say that a heavier woman has a free pass to consume more alcohol. There are other important factors such as food intake, metabolism, and duration between drinks, among others, that also play a crucial role in determining blood alcohol level.

In California, fines and penalties for DUI have steadily increased. The California legislature has determined that a DUI violation is a serious violation of the law and has established a complex legal framework for handling these violations. An arrest for DUI can potentially result in severe fines, community service, alcohol programs and jail.

A mistaken belief that there is only a criminal case pending against one arrested for DUI is common. Many do not realize that they now have a battle on two fronts: 1. the criminal case itself; and 2. the Department of Motor Vehicles (DMV) – with respect to the suspension of their driver’s license

When one is arrested for DUI in California, the police confiscate their driver’s license and issue a temporary license for a thirty (30) period. One MUST then contact the DMV within ten (10) days of the arrest to request a “stay” of the license suspension and a DMV hearing to contest the DUI arrest. If one fails to request the “stay” and hearing within ten (10) days, their temporary driver’s license will expire after thirty (30) days, and they are unable to legally drive a motor vehicle.

California Vehicle Code Sections 23152 and 23153, state in part:

• It is criminal violation to operate a motor vehicle on a public roadway with a blood alcohol level of .08 percent or higher.

• It is a criminal violation to operate a motor vehicle with a blood alcohol level of over .01, if you are under the age of 21.

• It is a criminal violation to have an opened container of alcohol in a vehicle upon a roadway, unless the container is kept out of the immediate control of its occupants.

• Anyone arrested for driving under the influence must submit to a chemical test (blood or breath) to determine the alcohol content of the blood. Failure to complete or refusal to take the test will result in suspension of the driver’s license for one year.

The consequences and potential harm one can cause by drinking and driving can last a lifetime. This holiday season, be safe and designate a driver.