District Attorneys In the News

The Ventura and Contra Costa District Attorneys have been in the news lately.  Not, however, for anything good.

In Ventura, it has come to light that the District Attorneys had a contest to see which DA could push the most cases to trial before the new year. Story.  The letter was accidentally sent to judges and defense attorneys. Upon realizing that the e-mail initiating the contest was made public, the Ventura County DA sent a letter to the presiding judge stating that the contest was stopped.  This is wrong because prosecutors are supposed to be held to a higher standard, to seek the truth, not aggrandizement by taking the most cases to trial.

In Contra Costa, one District Attorney in the Sex Crimes Unit was suing the supervising DA for date rape.  Story. The prosecution has been dismissed along with the DAs civil case for wrongful termination, but not before some interesting facts came to light: the DA suing reported that the Sex Crimes Unit had sex slumber parties; that the DA she was suing liked hearing the victims stories because it gave him fodder for sexual exploits; that there was a sex club made up of members of the prosecution.

Not all prosecutors are Sam Waterston.  Some are creepy sex perverts and some are egotistical bragging right seeking assholes.  www.Los-Angeles-Defender.com

They're Watching/Listening/Tracking You

A Wall Street Journal Article reports that a Federal Magistrate estimates the State and Federal government track up to 30,000 cellphones a year without a probable cause warrant. Magistrate Smith denied a FBI request for cellphone information based on combining two statutes. One statute allowed for the collection of historical location data without warrant and the other allowed for present data to be released, but not present location. Combining these two statutes, Smith said was creative, but insufficient to establish that cellphone location data deserved a lower standard before being released to law enforcement.

Sure, sure, if you haven't done anything illegal you don't have anything to hide.  Except that plenty of legal, but embarrassing and private information can be gleaned from these kind of searches.

What is the Difference Between Wet Reckless and DUI in California

Question: What is the difference between a wet reckless and a DUI in California?

The difference is essentially that there are lower consequences for pleading to wet reckless (VC 23103 / VC 23103.5).  A DUI carries a mandatory 3 month alcohol class, Wet Reckless a 12 hour class.  There is usually lower fines for wet reckless.  Wet reckless does not have the same insurance consequences. A wet reckless doesn't result in a court ordered suspension of your license, but you may still face a suspension at the DMV.  A wet reckless doesn't result in ignition interlock device (IID) requirements, but if your license is suspended by the DMV you can't get an IID Restricted License. Remember, if the DUI charges are dismissed and you had a DMV hearing you lost, you can get a second DMV hearing by filing a DS 702.

It is plead as a 'wet' reckless because it is priorable as a DUI.  So if you get arrested for DUI again within 10 years, you can be charged as though the wet reckless is a prior conviction of DUI.

Visit my website at www.DUI-Defense-LA.com, e-mail me at edblum@DUI-Defense-LA.com or call me at (213) 479-5322 for more information.

Getting Something Out of Your Trunk Is Not Driving In California

Question: Can I be charged with a DUI if the car was not on? I was outside my car getting something out of my trunk. The cops pulled up on me and asked for identification and I refused. They arrested me and charged me with DUI. They did not witness this vehicle in motion.

You can be charged.  The question is whether the cops need to see you driving for the arrest to be valid.  Except for limited circumstances outlined in Vehicle Code Section 40300.5 they need to observe driving to arrest you for misdemeanor DUI (Penal Code Section 836 requires presence of cops during misdemeanor for arrest).  They did not, you might be able to suppress the arrest and tests.

Also, for the tests to be valid, the cops need to be able to determine when you were driving. They can't do this if they don't see you actually driving.

For more information visit my website at www.DUI-Defense-LA.com or call me at (213) 479-5322.

How Do I Fail A Field Sobriety Test Administered in Los Angeles

Question: What is considered failing on a DUI field sobriety test? I was taken in during a DUI stop after the officer said I "failed" the field sobriety test. I was sure I had passed the test as I did not stumble, fall, or do anything of that sort. Would the fact help in getting my case dismissed?

That is the question that must be asked of the cop on the stand to show the jury how ludicrous his basis for arrest is.  It is a very subjective set of divided attention tests.  (For the record, most DUI Defense Lawyers refer to them as exercises, FSEs not tests).  The officers will always say they aren't passing you or failing you, they are 'looking for CLUES'.

There are two kinds of FSEs: Standard and non-standard. Standard FSEs are those that have been shown to have some correlation to being under the influence in a NHTSA (National Highway Traffic Safety Administration) non-peer reviewed study.  The Standard FSEs are: the Horizontal Gaze Nystagmus (HGN); the Walk and Turn; and the One Leg Stand. The non-standard tests include; Romberg balance, touching your nose with your finger; touching your thumb with your finger; or, reciting the alphabet (backwards or forwards, start with 'Q').

Horizontal gaze nystagmus is the test where the cop holds the pencil or his finger 12-15 inches from your face level with your eyes and moves the it side to side.  The cop will say they are looking for 6 'clues' in this test, 3 in each eye: equal pupil size, lack of smooth pursuit, and nystagmus (jerking) of the eye at the extremes.  There are really about 20 things they are looking for, including failing to follow instructions and swaying from side to side. Exhibiting any 'clue' can be used in determining you are under the influence. 50% of the population has nystagmus at the extremes when sober. There are dozens of things other than alcohol that cause nystagmus, including it being late at night. (Hint: most DUI stops are late at night.)

In the Walk and Turn test you walk 9 steps up, execute a complicated turn and walk nine steps back.  Not standing with your left foot in front of right, missing toe with heel (more than 2"), not turning around with small steps, and loosing balance are all 'clues' that you are under the influence. You are not given the grading criteria during the instruction phase.  Most people can't do this sober.  People with balance, leg or foot problems cannot usually do this. 

In the One Leg Stand the cop instructs you to raise your leg and count until he says stop.  There are 18 'clues' the officer is looking for.  Mostly he is seeing whether you are able to keep your balance past 25 seconds.  In this test you are instructed that if you put your foot down, just to pick it up and keep going.  One of the 'clues' that will be held against you is putting your foot down.

The non-standard tests are even more absurd. 

In the Romberg the cop instructs you to close your eyes and tilt your head back, count silently in your head and estimate 30 seconds.  There are 18 'clues' the cop is looking for here.  Mostly they want to see whether your time sense is affected by being under the influence.  They will judge you on how close to 30 seconds your estimation is. The instructions say that if you are within 10 seconds +/- you pass.

The bottom line is: If you are stopped by the cops, and if the cops ask you to perform these exercises, politely decline to do the FSEs UNLESS you have not had anything to drink at all OR you are on DUI probation.  The results can only hurt you. 

For more information about the FSEs or to set up a consultation with me to talk about your specific case visit my website at www.DUI-Defense-LA.com or call (213) 479-5322.

Conrad Murray Verdict In ... Guilty of Involuntary Manslaughter

What does that mean?  I means that the jury found either (1) that Murray's actions were a crime that posed a high risk of death or great bodily injury or (2) that Murray's actions were legal, but done with criminal or gross negligence. The jury also had to find that Murray's actions cause Jackson's death.

As I understand it, the defense was essential that Murray's actions were legal and not done negligently, but even if they were negligent the actions didn't directly cause Jackson's death because Jackson did something after Murray left the house (ie: inject himself with more Porprophyl).

As Flanagan has said, the hardest thing for them to overcome with the jury was the fact that Porprophyl was found in Jackson's room. 

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What Happens When Your Ex Girlfriend Accuses You of Something, Then Changes Her Mind?

Question: What can I do if I was arrested? I was assaulted by my girlfriend's ex. I called the police and the ex lied to cops and I got arrested. My girlfriend was a witness but left in fear of her ex. She went to the police officers after and told them the story with proof of threats and they told her if she wouldn't have left I wouldn't have been arrested.

That's a hard place to be. For both you and your ex-girlfriend.  First, you are facing false charges.  Even though your ex no longer wants to maintain a case, once she makes a report to the police the case is out of her hands.  In order to get out of this, your ex has to either not testify or change her story.  This opens her up to charges of her own.  Once she makes an appearance in the court, she will be ordered back by the judge and if she doesn't appear, the court will issue a bench warrant for her arrest.

If she does appear she can either change her story and tell the truth now, refuse to testify or maintain the lies she told to the police. If she does the former, she may be charged with filing a false police report or perjury if her former testimony was under oath.  If she refuses to testify, she can be held in contempt.

Bottom line is: both you and her need separate lawyers to walk this tightrope.  Call me, I can help you with this and find someone to represent your ex-girlfriend or visit my website at www.Los-Angeles-Defender.com for more information.