Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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The Fourth Amendment to the Constitution provides that we have the right to feel safe from unreasonable searches, and where a search warrant is issued, that it must be supported by probable cause and be specific. A search conducted without a warrant is presumptively unreasonable unless it meets one of a number of exceptions carved out by the Supreme Court. In 1966 the Supreme Court decided that it was acceptable for law enforcement to procure a blood sample from a suspect over his objections during a DUI investigation. A fear that the blood alcohol content of a suspect diminishes naturally spurred the Court to agree with law enforcement that there was an “exigent circumstance” supporting this very intrusive and uncomfortable search of the suspect’s body.

The Supreme Court has helped restore some strength to the Fourth Amendment of the Constitution and the protections it provides recently. Their April decision in Missouri v. McNeely strikes down the proposition that DUI investigations necessarily meet the “exigent circumstances” exception relied on in Schmerber. The accused in this case was pulled over by a Missouri State Trooper. When he refused to take a breathalyzer on the spot, he was cuffed and taken to a nearby hospital where his blood was drawn over his objections! In holding that his Fourth Amendment rights were violated the Court focuses on the lack of injuries requiring hospital care, or any other circumstances that would cause unreasonable delay in properly acquiring a warrant before drawing McNeely’s blood.

While Missouri v. McNeely doesn’t mean that warrantless blood draws are always unreasonable, it provides for a totality of the circumstances test that allows for your lawyer to aggressively ensure your rights are respected during a DUI investigation. Simply carting you off to the nearest physician and drawing blood against your will is no longer acceptable!

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It has recently been proposed that the legal blood alcohol limit in the United States for driving be lowered to a .05 from a .08. All 50 states now adhere to the .08 BA level. This would be a radical downward departure from the previous level of .08. How much of this push to lower the legal blood alcohol level is political and how much is scientific is up for debate. A .05 is essentially telling the public that you cannot drink anything at all and drive. Two drinks at dinner could put a driver over the legal limit. Are we prepared as a nation to say if you share a bottle of wine at dinner you cannot drive home? The alcohol beverage lobby is actively fighting against this proposal. MADD (Mothers Against Drunk Driving) supports all legislation that increase the penalties for DUI driving and the lowering of the limit to .05.

Experts will opine that the research in the area of alcohol intoxication while driving is what is pushing the limits lower. However, how many of these experts are truly objective? I question how many of these experts work on behalf of political groups or law enforcement agencies? The push to lower the legal limit to a .05 is not unique to the United States. In fact, many other countries have already done it.

Most European countries have very harsh penalties for driving under the influence. For example, while France is known for it’s wines and often is associated with the spirits and love of the fruit of the vine it takes a very dim view of driving over a .05 BA. Mixing spirits with driving is definitely frowned upon. France requires that every vehicle carry a breathalyzer. In order to legally drive in France a breathalyzer must be present in the vehicle. While in England recently, I purchased a small disposable breathalyzer that would satisfy this requirement in France. It was a single use vial designed to alert the driver when he was over the French legal limit of .05.

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Recently I visited the ongoing trial of a man accused of murder. The defendant was a Hispanic man in his twenties and was an admitted member of a Hispanic gang in Santa Ana. I walked into the courtroom, sat down and took a look at the jury. I almost laughed out loud. Here was this rough and tumble Hispanic gang member and the jury judging him was totally made up of white people. The jury members looked about as far removed from the life the defendant had lived as was possible.

The sixth amendment of the United States Constitution provides in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” It is commonly thought that a defendant is entitled to a “jury of his peers” but that is not what the Constitution guarantees. The Constitution only guarantees an impartial jury, not one that in reality has anything in common with the defendant other than they are all human.

However, the Supreme Court noted over a century ago in Strauder v. West Virginia, the jury should be drawn from a group “composed of the peers or equals [of the defendant]; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds.” This case involved an African American defendant and a jury in which other African Americans were excluded as a matter of law. This was held to be unconstitutional.

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The court system has suffered profound funding losses in the past several years. Year after year the legislature cuts the court’s funding until now it has reached crisis proportions. Layoffs of court personnel have caused delays in access to the court by the public. Delays will soon turn into denial of services. Entire courthouses have been shuttered in an effort to live within the funds allowed. Civil trials have been postponed to allow the waiting criminal trials to take precedence in the few available courtrooms.

Funding the court system isn’t very popular with politicians. After all, when politicians overstep their authority where does the public go to put a stop to excess? The courts are the answer to many societal problems. Where does a civil society settle their individual grievances? It’s the court system that is the glue which holds a civilized society together. The failure to adequately fund the court system won’t just deny criminal defendants their Constitutional Rights but will add to the breakdown of society. What will people do when they don’t have access to a forum to solve their problems?

The California State Legislature must find the money to fund the system adequately. That means in their eyes, the court system needs to be a priority, not just a necessary evil. We will all be very much poorer if the recent trend of cutting the court’s funding continues.

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What happens when just one of twelve refuses to vote for guilty? That juror becomes the Hold Out Juror. It takes twelve guilty votes to convict. A jury has twelve members. All twelve have to agree and vote for guilt before a guilty verdict can be returned.

The Hold Out Juror is the one who won’t go along with the other eleven jurors voting to convict. All kinds of pressure is applied. Shouting at the juror often occurs. Finger pointing in an angry manner is directed at the Hold Out Juror. When this abusive conduct doesn’t succeed in swaying the Hold Out Juror irrefutable logic is attempted. The other jurors usually appoint one of their brethren to explain how it just couldn’t have happened the way the Hold Out Juror sees the evidence. Of course, he will say, logic dictates that the Defendant’s story is full of holes. How could you believe his testimony when it flies in the face of what makes sense to all eleven of us? What is it about you that you don’t get it?

When logic fails to bring the Hold Out Juror into the unanimous fold, it becomes a case of, if we don’t reach a verdict then all of our time, the taxpayers’ money, and all of our effort has been wasted. You, the Hold Out Juror don’t want that do you?

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Recently an 18 year old appeared by way of a video arraignment. She was in jail and the judge was in the courtroom. The original charge was pretty simple. However, she was in jail having just been arrested the night before. The Defendant was standing at the podium in the jail looking at the camera. The judge was Hispanic and spoke with an accent. An older gentleman he had a “no nonsense” approach to his court calendar.

The Defendant giggled and played with her hair. She laughed and was practically twirling when she spoke to the judge. He was set to handle her case very promptly and would have released her from jail in all likelihood had she played her cards right. Instead, after laughing and twirling her hair throughout the process the judge didn’t see anything funny about her attitude and set her bail at $20,000.00. She turned and said “adios” to the judge. After turning away, she realized that her bail had been set at an amount she couldn’t make she protested and told the judge “F….You”. Now this, obviously, didn’t sit well with the judge.

The judge demanded to know if he had heard her correctly. The Defendant not being smart enough to leave well enough alone repeated her unfortunate comment and gave the judge “the finger”. This gesture is universally known to be one exhibiting an extreme amount of contempt towards the recipient. Since the judge was the recipient he took offense. Having taken offense, he found her in direct criminal contempt of court and promptly sentenced her to 30 days in jail. The Defendant was last seen walking out of view still saluting the judge.

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Drones are unmanned flying platforms. From these flying vehicles missiles can be launched, cameras installed so they are aerial surveillance vehicles, and listening devices activated. Developed for the battlefield, they are deadly when used against targets while not endangering their human pilots. The drones are controlled remotely from across the ocean or across the street. The issue for the United States is going to be: are they to be used by law enforcement in this country for surveillance and searches without a search warrant.

Traditionally, a search warrant must be obtained before the area where one has a legitimate expectation of privacy is searched by law enforcement. Probable cause must be established to a judge’s satisfaction that a crime has been committed, is being committed, and that evidence of the crime will be found in the area to be searched. The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures. What happens when a drone as small as a hummingbird is used by law enforcement to perch outside your bedroom window and transport video back to the handlers at headquarters?

In the last decade the protections of the Fourth Amendment have been eroded until they seem to be non- existent. Checkpoints are allowed for all types of potential crimes from driving on a suspended license to driving while under the influence. Motorists are stopped, questioned and detained without a shred of probable cause yet the courts have said such governmental intrusions don’t violate the citizenry’s right to be free from unreasonable search and seizure.

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The recent shootings in Connecticut have been used to call for gun reform. The critics of the Right to Bear Arms guaranteed by the 2nd Amendment are calling for the abolition of gun owners’ right to own firearms. Restrictions on gun ownership are sought in an effort to curb gun violence. These calls are in response to the horrible crimes which have been perpetrated on innocent children and bystanders in our schools and public places. Guns are portrayed as the reason for the violence. I would contend that gun control in the form of restriction of the sale and possession of automatic weapons and weapons that contain multiple shot magazines are already regulated and can be even more restrictive. Not because they are the cause of these shootings, but because no law abiding citizen needs to own a firearm that can fire many times without reloading. We don’t live in a war zone and don’t need to be equipped to do combat. However, guns are not the inherent evil at work in these tragedies. Untreated or under treated mental illness is.

Almost every mass shooting that has been committed in recent memory has been perpetrated by a gunman suffering from mental illness. “Socially awkward” is a phrase used in the press because it is politically correct. In reality, it appears that it is a euphemism for mental illness. Many times individuals who have significant mental illnesses are being under treated or not treated at all. People suffering from mental illness often don’t want to take their medication because of the effect is has on them. Medication also brands the person taking the medication as mentally deficient in some way. Negative social stigma is a deterrent to taking medication or even being diagnosed.

Society has chosen not to invest in mental health for our children or adults. Many of the homeless people on the street suffer from a mental illness. State legislators have chosen to close mental health facilities in order to save money. Instead of saving money, this policy choice has cost more money and lives. We must reexamine our priorities and commit to better funding to meet the mental health challenges of our people. Treating the symptom, such as gun violence, is not the answer. We need to treat the cause, mental illness. If we find more treatment for those afflicted with mental disease we won’t need the draconian gun control measures currently advocated as “the solution”.

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The police reports pain an ugly picture. They clearly show that the Defendant is guilty. What to do? How does your attorney get the District Attorney to reduce or dismiss the charge against you? The experienced trial attorney tries to paint a picture that accurately shows the client for who he is and not just for what he did. Many times good people do something ill-advised or out of character. These “bad judgment” moments can have devastating life-long effects on people who deserve a second chance. How to get the client that second chance?

Most important is the charge against the client. Sometimes no matter who you are, or the devastating effect on your future, or the fact that even millions depend on you, the result is mandatory if you are convicted. However, very often these facts can and do make a difference to a prosecutor who is seeking to do justice and not just gain a conviction. How to reach that prosecutor is the key.

Reaching a just outcome requires the defense attorney to paint a picture. Depending on the circumstances it can be a picture of the facts of the case and establish the facts that lessen the responsibility of the defendant. It might involve proving that there were contributing factors which were not the fault of the defendant or showing the prosecutor the facts dictate the client deserves consideration. The second prong of the defense attorney’s job is to breathe humanity into the ink on the police report from the client’s perspective. The trial attorney needs to show the prosecutor the defendant is human. He is a good person, perhaps he has done community service (before or after the crime), been a role model in the community, or won awards in business and the disastrous effects a conviction will have on his individual future.

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A defendant has a right to a jury trial in most misdemeanor trials and in all felony trials. Many times the case is won or lost in jury selection. A prosecutor told me the other day that he won the case in jury selection after the case was concluded. He realized his case was not rock solid and could have generated a lot of sympathy for the defendant. The important part of what he told me was that he thought about what kind of a juror he wanted before the case started. That means that he didn’t have a “one size fits all” formula of what kind of juror he wanted. Instead, he tailored his efforts to find jurors who fit the mind-set he wanted for that particular case..

Each side’s lawyer is thinking about what kind of juror will vote the way that lawyer is advocating. For example, in a prosecution of police officers the prosecutor might want people who had bad experiences with police officers in the past. The lawyer for the defendant (the police officer) may decide he wants people who have supported the police in the past and sympathize with the difficult and dangerous jobs the police have. For the trial lawyer, figuring out who will understand your case, sympathize with your cause, and vote for your side, is the essence of picking a “good” jury.

The lawyers who have experienced the process of picking a jury know that it is the most important part of the case. It’s not just exploring the attitudes about crime, law enforcement, family relationships to victims, people charged with crimes, or ability to follow the judge’s instructions; it’s about finding the juror who will listen to your side’s facts and argument and believe the “right” thing to do is vote for whatever side you, the lawyer, is advocating.

Contact Information
5031 Birch Street, Suite 100
Newport Beach, CA 92660
Phone: 714.544.9844
Fax: 714.544.4337

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