Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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I receive lots of inquiries about elder abuse from people who have read my previous blogs and visited my website. Most of the contacts are from folks who believe that their elderly relatives have been either physically or financially abused by strangers or relatives. Since I don’t practice any kind of law other than criminal defense I’m not able to help. If someone is accused of abusing an elder than I have the experience to assist in his or her defense. So, in an effort to assist those not accused of elder abuse I would advise the following to prevent being accused and to prevent the abuse in the first place.

Financial abuse is usually associated with the alleged misuse of monies and property owned by the elderly. If you are in a caretaker position it is vitally important to keep a careful accounting of all monies spent out of the elder’s accounts or from cash kept by the elder. With a clear and concise accounting of any money spent on behalf of the elder, the caretaker is going to be able to defend against the unwarranted accusation of misuse by the family, friends, or government agency who investigates. Failure to keep good financial records can lead to an inability to defend oneself effectively against claims of abuse.

When it comes to physical abuse, the caretaker usually gets into trouble when the elder suffers some physical setback. When family, friends, or the government examine a case for physical abuse it’s always looking in the “rear view mirror”. The accusations of “you should have done this or recognized that earlier” come cascading down on the caretaker regardless of validity. The elder is often difficult to manage physically and emotionally for the caretaker. The elderly don’t like to be told what they can and can’t do and to be required to be washed or moved when they don’t want to be moved. Sometimes there are physical limitations that come on gradually that lead the caretaker to be overwhelmed. The caretaker might fear loss of employment if the family is required to intervene or the senior moved out of the caretaker’s zone of responsibility.

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I have had many clients come to me and say, either jokingly or for real, can’t I pay someone to “take care of this?” I always laughingly say, “This isn’t Chicago with Al Capone and gangsters running the courts”. Apparently, I was wrong. At least 600 cases involving traffic citations, DUI arrests, and other assorted cases being “fixed” are being investigated in the Orange County court system.

Many defendants in Orange County are being called into court to explain how their cases were either dismissed, fines suspended, charges reduced, or otherwise resolved all without anyone actually appearing on their matters. The answer appears to be that a clerk in a supervisorial position in the Orange County court entered into the record fraudulent transactions resolving the cases in return for lots of money.

From many defendants’ point of view the idea of paying someone to handle their case is in line with their cultural beliefs. Many in our community have recently immigrated from countries where paying money to government officials to resolve their matters without going to court is a way of life. Coming to the United States and continuing that practice is not something that is seen as criminal but is a normal manner of dealing with the government. A large segment of the community is not educated in the law and as long as they don’t have to go to court and face a judge, paying more than would be required to a third party is a small price to pay.

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The DA has the right to charge a DUI where injury is claimed, with either a felony or a misdemeanor. What makes it a felony charge or a less severe misdemeanor is the extent of the injury suffered by the victim. Sometimes it’s obvious that a case is a felony. A clear example of this is a DUI driver who runs a red light and injures another driver, cutting off his leg in the collision. The law is clear that, if as a result of a DUI, there’s a collision that is the fault of the DUI driver and there is injury caused by the DUI driver then the DUI driver could e charged with a DUI With Injury (CVC 23153).

The issue of fault is really important because if, for example, a DUI driver is stopped at a stop sign and another driver rear ends him and is injured, the DUI driver can’t be charged with DUI With Injury because the fact he was DUI has nothing to do with the injury.

I recently tried a case with a DUI driver who had a .33 blood alcohol level, who rear ended another driver on the freeway. There was no doubt who was a fault. But, the driver who was hit claimed soft tissue injury. She treated at a chiropractor who she was referred to by her lawyer. The DA bought the “victim’s” story that she was injured and charged my client with a misdemeanor DUI With Injury. I wouldn’t accept the idea that she was guilty of a DUI With Injury and offered to plead her to a straight DUI. We want to trial. There was only one issue; did my client, who was obviously DUI, cause this “victim” injury?

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The jury selection process was dicey. Who among you is open to the idea that the police aren’t telling the truth and the Defendant is? A few hands went up. Most just stared at the Defendant wondering why she was going to trial. Who among you will judge the officers’ testimony just like any other witness? Well, now, this case just might be more interesting than the civil fraud case down the hall. Everybody seemed willing to keep an open mind if the choice is the prostitution trial or listening to a series of bad checks being reviewed.

So twelve citizens who couldn’t think of a good enough reason not to be there were sworn in as the jury. 9 women and 3 men were on the panel.

The detective testified he came into the spa, paid his money, and got an excellent massage until the time when the Defendant started lightly touching his privates. At that point he negotiated a “happy ending” for $30.00. The detective who was in the parking lot listening in on a concealed audio device, come on now, it was hidden in his pants hanging on a chair, heard the bust signal and came rushing in.

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In an effort to stamp out crime, the undercover officer entered the business slowly, looking around for any sign of the criminal activity. He thoughtfully removed a $100 bill and gave it to the suspect. He was directed into the darkness of the back room. Slowly, ever so slowly, he removed every piece of clothing that he had on. Then, all in the line of duty, he laid down on the table, not knowing what to expect next. The suspect came in ready to give him his money’s worth.

The suspect firmly and then with ever increasing pressure massaged the officers not so supple body. After what seemed like an eternity, the officer, who of course now was completely and fully engaged, asked for what he had come for. Will you give me sex? He questioned the suspect again and again. She, not wanting to do anything other then make an honest living, was taken aback. Repeatedly she refused, offering only a legitimate massage.

The officer, feeling unsatisfied, gave the secret arrest signal anyway.

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Who-Says-Crime-Doesnt-Pay1.jpgRené “Boxer” Enriquez was a high level Mexican Mafia crime figure. His life was based on intimidation, murder, drug sales and evil. Boxer was a made member of the Mexican Mafia. What’s a made member you ask? It’s somebody who has killed for the Mexican Mafia and is such a trusted comrade that he proudly wears the black hand tattoo.

Sentenced to life in prison for murder and other crimes which he committed on behalf of the Mexican Mafia, he never expected to see the light of day. However, after numerous attempts on his life by other Mexican Mafia gang members, he left Pelican Bay in a helicopter escorted by the FBI and other law-enforcement agents.

What was his destination? It was a new life as a consultant on the government payroll earning thousands of dollars as an informant and an expert witness against his former brothers in the Mexican Mafia. All this while in protective custody housed in a federal prison for a California life sentence. He now writes books, lectures college students and even attends benefit lunches escorted by law-enforcement. In his spare time he testifies as an expert witness for the government in a variety of prosecutions.

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Wyoming-Prison.jpgRecently an inmate in Wyoming was released after serving 24 years in prison for a crime he did not commit. Many states recognize the injustice suffered by the wrongfully imprisoned and require the state compensate the victim. When our system of justice fails it can have disastrous consequences for those victimized. The criminal justice system is not infallible, and when it makes a mistake that costs a person most of his adult life there is a method of providing monetary compensation.

In Wyoming the State Legislature decides if the innocent is worthy of compensation and how much. In this case, Mr. Andrew “A.J.” Johnson had a criminal record prior to his being incarcerated for 24 years for a crime he did not commit. You might think that spending 24 years in prison is worth some kind of compensation. You might think that 24 years of your life spent wasting away in a prison cell, when you are innocent of the crime charged, would be worthy of some type of compensation by those who wrongfully took your freedom and liberty away. In Wyoming, you would be wrong.

You see, Mr. Johnson had a criminal record prior to his being wrongfully accused and convicted and put away. He had a record for theft and burglary. In Wyoming that means the legislature does not feel it necessary to compensate him for the 24 years spent in prison. In fact, Mr. Johnson was awarded nothing. He was given no compensation for losing most of his life to a criminal justice system that failed him.

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Ever wonder just how a case gets filed? Let’s say you and a neighbor get into a shouting match and the police are called. You are interviewed by the police, as is the other guy. You are not cited for anything, nor is the other person. 3 months later you receive a letter in the mail informing you that you have a date to appear in court to answer charges of assault and battery stemming from the incident. How did that happen?

Once the police are called to the scene, whether anyone is arrested or not, a police report is taken. At this point the police officer can make a judgment call as to whether to forward the police report on to the District Attorney’s office. If the officer decides that a crime has NOT taken place he will simply file the report and nothing more will come of it.

If the officer determines that, in his opinion, a crime has occurred, her report will be sent to the District Attorney’s office. That report will land on the desk of the filing deputy district attorney and it will be that person’s job to determine whether he or she thinks a crime has been committed and whether there appears to be enough evidence to prove a crime.

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Stephen Collins, the actor, told the truth to his therapist. He wanted help with a disease. He felt sick and needed guidance. So he told his therapist about touching young girls in a sexual manner thinking it was a very private and emotional moment. He hoped it would lead to greater understanding by him and help in his therapy.

Big surprise! Not everything you tell your psychologist or psychiatrist is private. In fact, the mental health professional was under an obligation to report such behavior to law enforcement. Instead of leading to help, opening up to your therapist can land you in jail. Just ask Stephen Collins after the police arrested him.

A therapist is required to report acts of child molestation to law enforcement unless it’s already been reported and he is willing to rely on that as satisfying his reporting obligation. You might think that this would have a chilling effect on individuals seeking treatment. You would be right on that score.

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The media has reported a rise in the number of prescription drug DUI arrests in recent months. It is important to know that if you take a prescription drug which impairs your ability to drive you can be charged and convicted of a DUI just as much as if you were drinking and driving under the influence of alcohol. With that in mind, millions of us take a popular sleep aid, Ambien.

If you drive your vehicle after taking Ambien and the Ambien has not made it’s way out of your system, you run the risk of being charged with DUI. I recently had a client who had taken Ambien and intended to go to sleep. However, instead of going to sleep, he drove his vehicle to a nearby shopping center and got into a collision. He was arrested for DUI and put into jail. Six hours later he was released from jail while still under the influence. Unfortunately, the cab driver took him back to his car and he attempted to drive home. Of course, he didn’t make it out of the parking lot before he collided with… the cab. The same police officer who had arrested him the first time came to the scene and was surprised he was out of jail because he was still clearly impaired by the Ambien. The client was arrested again and faced not one but two DUI charges.

How to defend a charge of DUI under these circumstances? It was difficult but not impossible. A little publicized fact about Ambien is that out of the approximately 26 million prescriptions that are written every year for Ambien approximately 1% of the people who take it have an adverse reaction. Ambien can cause a person to engage in complex behaviors such as: sleep walking, sleep sex, and sleep driving. These complex activities occur when the person is not unconscious but in an altered state of consciousness. To top it off, Ambien comes with an amnesic affect. That is, the person who does these activities has no memory of it. People have had sex, walked to various locations and even sleep driven and when they woke up they had no memory of their actions.