Just because a driver is arrested at a DUI sobriety checkpoint – even if he/she actually was driving under the influence – does not mean that he/she will necessarily be convicted of the offense.

This is because experienced California DUI defense attorneys know that if the officers do not follow strict rules and regulations with respect to these checkpoints, any arrests that they make will be considered unlawful.  And if an arrest is unlawful, the subsequent charges will most likely be dismissed.

The Rules and Regulations that Govern Sobriety Checkpoints

1. Supervising officers must be in charge

Supervising officers (as opposed to field officers) must determine where, how, and when California sobriety checkpoints will operate.  Supervising officers usually determine where these checkpoints will be held based on what areas have the highest concentration of DUI-related accidents and/or arrests.

This regulation also includes establishing the criteria for how cars will be stopped.  For example, the supervising officers must determine ahead of time whether field officers will stop every car, every third car, every fifth car, etc.

2. The sobriety checkpoint must be reasonably located

The location of the DUI roadblock must be reasonable.  This means that the sobriety checkpoint must be in a location where there is a high incidence of DUI-related accidents or arrests.  It also means that the supervising officers must consider everyone’s safety when choosing where to set up a sobriety checkpoint.

3. DUI roadblocks must be publicly advertised 

California sobriety checkpoints must be publicly advertised prior to the date of the roadblock and clearly visible to approaching drivers.  With respect to advertising, law enforcement websites, local newspapers, and news stations often report the upcoming checkpoint about a week prior to its operation.

With respect to visibility,

•   warning signs,
•   flashing lights,
•  adequate lighting,
•  marked police cars, and
•  the presence of uniformed police officers

typically satisfy this requirement.

4. Drivers who do not wish to stop at the DUI checkpoint must be allowed to leave

Perhaps one of the most interesting requirements is that you must have the opportunity to drive away from the checkpoint if you don’t wish to stop.  If you choose to exercise this right, you cannot legally be stopped for doing so unless you (1) commit a traffic violation, or (2) display signs of obvious intoxication.

When I have a client who is arrested at a California DUI checkpoint, I not only investigate the charge that he/she was driving under the influence…by exploring all the ‘typical’ California DUI defenses…but I also critically examine the sobriety checkpoint itself to see if all of the legal requirements that relate to these DUI traps are satisfied.  When they are not, I may be able to use these fatal flaws to get the drunk driving case dismissed. Call my office today at (619) 238-1905 for a free consultation.

Despite common misperceptions…due in large part to what we see in television shows and movies…there is no legal requirement for police officers to read Miranda rights during a California DUI arrest.

These rights, which in essence advise you of your “right to remain silent” must only be given if you are (1) in police custody, and (2) being interrogated.

However, if you were in custody and the police interrogated you without first advising you of these rights, your California DUI defense attorney will likely have any statements made during that time excluded from evidence.

What are Miranda Rights in the DUI context?

Miranda rights typically consist of the following statements:  “You have the right to remain silent.  Anything you say can and will be used against you in a court of law.  You have the right to speak with an attorney.  If you cannot afford one, one will be appointed to you at no cost.”

If the above two conditions (that you have been arrested and are being interrogated) aren’t met, then there is no requirement for the officer to advise you of these rights.

However, if these conditions have been satisfied… and the officer asks you questions without first advising you of your Miranda rights…your California DUI defense attorney should be able to have your answers suppressed from evidence.  This is critical when it comes to fighting a California DUI.

But it must be noted that if the officer did advise you of your rights, any statements you subsequently made will be admissible as evidence against you.

The difference between a California DUI “investigation” and a California DUI “interrogation”

A typical California DUI investigation is considered just that…an investigation.  So if the officer legally pulls you over and begins asking you questions such as:

• were you drinking?
• what were you drinking?
• how much did you drink? And
• what time were you drinking?

The officer is well within his/her authority to do.  The little known fact is that you do not have to answer these DUI questions…and it is often better for you if you politely refuse to do so.

The reason that the officer is entitled to question you at this point is because up until you are actually arrested for Vehicle Code 23152a driving under the influence, the officer is simply gathering information to determine whether an arrest is appropriate.  This is what’s known as the “investigation”.

An investigation takes place when legally, though not practically speaking, you are free to leave.  And although you are not allowed to contact an attorney at this stage in the investigation, you can politely inform the officer that you have been advised to remain silent.

Once you are handcuffed…and are therefore no longer permitted to leave…your Miranda rights may kick in.  That is, if the officer asks you more questions that are designed to elicit incriminating responses about your DUI.  This is what’s known as a “custodial interrogation”.

During a custodial interrogation, you have the right to remain silent.  You also have the right to consult with an attorney before answering any questions.  If you are advised of your Miranda rights…and choose to speak with the DUI officer…any statements you make can be used against you.

If the DUI officer fails to advise you of your Miranda rights…and asks you questions that are designed to elicit incriminating responses…your California DUI defense attorney will most likely prevail on a motion to exclude those responses from evidence.

If, however, the DUI officer fails to advise you of your Miranda rights…and engages you in a casual conversation…any incriminating statements that you make will likely be used against you.  And so it bears repeating…in order to receive Miranda protection, the officer must interrogate you.  This means that a casual conversation (even if contrived) may not rise to the level of this Fifth Amendment protection.

It is also important to note that if you choose to remain silent, your silence cannot be used against you.

If the DUI cops violate my Miranda Rights, does all the evidence get thrown out of court?

Unfortunately, no. Miranda rights only apply to testimonial (that is, verbal) evidence.  This means that in a California DUI investigation, evidence of your

• driving pattern,
• physical appearance (examples include slurred speech, red/watery eyes, and a lack of balance),
• performance on field sobriety tests, and
• blood alcohol concentration (BAC) as reported by a chemical blood or breath test,

are all admissible regardless of whether the officer informs you of your Miranda rights.  Only actual, verbal statements are protected by the Miranda advisement.

If you have additional questions or would like to discuss your case in confidence with a California DUI defense attorney, contact our office at (619) 238-1905 for a free consultation.

While the 2nd Amendment to the Federal Constitution protects the individual right to own firearms, that right is not unlimited. There are laws that regulate when and how we can use those firearms. Due to high volumes of violence related to guns, many states have cracked down against violators of gun laws. Some states have laws that carry mandatory sentencing for specific firearm possession crimes. California has laws that require different sentences based on the defendant’s background, their mental condition, circumstances regarding to the crime, and/or prior convictions.

Possession of a firearm has many specifications and is a complex matter. Even though there a basic laws that apply to these gun policies, someone’s violation could quickly change from a misdemeanor to a felony on the basis of the person’s location, background, intention, and situation context. For Instance, it is illegal for someone to flaunt or waive a firearm in an angry or threatening manner or during a fight. This person may be charged with a misdemeanor. Carrying out this same action in a car could possibly be a felony. Of course, the District Attorney and Judge will look at specifics when determining how to sentence someone.

The most common violation is carrying a firearm without a permit. At least 13 states generally require someone to have a permit, license, or other certificate to purchase or possess a handgun. Assuming the person is not a felon, or mentally disabled, this violation is generally a misdemeanor criminal charge. Misdemeanors carry a sentence of up to one year in jail. In California, purchasing a handgun without a safety certificate is a misdemeanor, punishable by up to six months in jail and/or up to $1,000 in fines.

Another common violation is minors under the age of 18 possessing a firearm. While other states vary, California has a minimum age requirement of 18 years for people who possess a firearm. This violation is considered a misdemeanor and is punishable by up to six months in jail and/ or a fine of up to $1,000.

Federal law generally prohibits convicted felons from possessing firearms. Although most states also carry this guideline, in some states, the prohibition applies only to certain types of felonies.

Penal Code 12021 PC prohibits convicted felons from purchasing, owning, receiving, or possessing a firearm. This section also describes certain misdemeanors that also carry these constraints, as well as people with mental disabilities or drug addictions. Violation of these laws are considered felonies, punishable by 16 months-three years imprisonment, a fine, or both.

Different penalties apply to different circumstances. Higher penalties can result in some circumstances (such as repeat offenders or aggravating circumstances.)

Possession of a firearm can be a serious charge. Hiring an experienced criminal defense attorney to walk you through this process is crucial. If you are facing firearm charges, contact our office today at (619) 238-1905 for a free 30-minute consultation.

California DUIs are “priorable” offenses. This means that the punishment increases with each successive drunk driving conviction that takes place within a ten-year period. This ten-year timeframe period also includes (1) California “wet reckless” convictions, and (2) out-of-state convictions that, if committed in California, would constitute a DUI.

California DUI penalties can be severe, depending on whether you’re facing your first, second, third, or subsequent driving under the influence conviction. Most drunk driving cases are prosecuted as misdemeanors, although certain offenses will rise to the level of California felony DUI.

There are facts and circumstances that, if present at the time you are arrested for driving under the influence, will increase your county jail or state prison sentence. These aggravating facts will increase your DUI penalties, regardless of whether you’ve been convicted of a first, second, third, or subsequent DUI.

The most common of these include:

• Having a blood alcohol content (BAC) of 0.15% or higher
• Refusing to submit to a chemical test
• Causing an accident
• Driving at excessive speeds
• Having children under the age of 14 in the car (also known as Penal Code 273a child endangerment)
• Being under 21 at the time of your DUI offense

What type of enhanced penalty you receive for any of these aggravating factors will depend on (1) the exact circumstances of your California DUI arrest, and (2) your criminal history (with emphasis on your prior DUI history).

If you would like to discuss your case with a DUI defense attorney, call our office today at (619) 238-1905 for a free consultation.

Public defenders are usually very dedicated and committed attorneys. In fact, they are usually more dedicated and more hard-working than many private criminal defense attorneys. They have to be after all, by becoming public defenders they are agreeing to take on five-times the workload of a private criminal defense attorney for less than half the pay. Most of the people who are willing to do that are motivated by a concerted dedication to indigent defense.

In any organization, however, you will always find “bad apples.” Some public defenders in some offices might just be “treading water” – i.e. using the job solely to gain experience and biding their time until they have enough to leave the public defender’s office and go out on their own. The real problem public defenders have is not lack of experience or lack of dedication, it is a lack of time (or limited time) and resources. The average public defender has a case load that is five times higher than the maximum case load recommended by the American Bar Association. Also, public defender offices have very limited resources to spend on investigations, gathering evidence, hiring experts and so on. A private defense attorney is likely to have far more resources to dedicate to these areas because he will expect you, the client, to pay for them up front.

Therefore, the “problem” with public defenders is not that they don’t work hard. It’s just that they have very limited time and resources to spend on each individual case, and having so many cases to handle there is only so much time that they have in their day for all of the clients that they get assigned to by the court. Since the most important case for any defendant is, of course, his own, the limited time a public defender has to devote to it often makes it seem as if they’re not working very hard on it. In fact, unless you happened to get one of those rare “bad apples” assigned to you, this is not the case. There working hard, it just that they don’t have enough time to devote to your case that a paid private attorney, who is representing YOU, and not the other 30 to 50 people in court that day, it’s just common sense.

If you need an experienced criminal defense attorney, who will take the time to focus on your specific case, call the Law Office of William Daley at 619-238-1905 for a free consultation.

IF YOU ARE STOPPED FOR QUESTIONING

• Stay calm. Don’t run. Don’t argue, resist or obstruct the police, even if you are innocent or police are violating your rights. Keep your hands where police can see them.
• Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why.
• You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. In some states, you must give your name if asked to identify yourself.
• You do not have to consent to a search of yourself or your belongings, but police may “pat down” your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect you later in court.

IF YOU ARE STOPPED IN YOUR CAR

• Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
• Upon request, show police your driver’s license, registration and proof of insurance.
• If an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent.
• Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.

IF YOU ARE ARRESTED

• Do not resist arrest, even if you believe the arrest is unfair.
• Say you wish to remain silent and ask for a lawyer immediately. Don’t give any explanations or excuses. If you can’t pay for a lawyer, you have the right to a free one. Don’t say anything, sign anything or make any decisions without a lawyer.
• You have the right to make a local phone call. The police cannot listen if you call a lawyer.
• Prepare yourself and your family in case you are arrested. Memorize the phone numbers of your family and your lawyer. Make emergency plans if you have children or take medication.

IF YOU FEEL YOUR RIGHTS HAVE BEEN VIOLATED

Remember: police misconduct cannot be challenged on the street. Don’t physically resist officers or threaten to file a complaint.

Write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. If you are injured, take photographs of your injuries (but seek medical attention first). File a written complaint with the agency’s internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish.

If you feel your rights were violated, call the Law Office of William Daley at (619) 238-1905 for a free consultation.

The 4th Amendment to the U.S. constitution places limits on the power of the police to make arrests, search people and their property, and seize objects. These limits are the foundation of search and seizure law. That means that a police officer cannot arrest you, search your person, search your property, or seize your property unless he has probable cause to do so. Probable cause can be defined as sufficient facts that would lead a reasonable person to believe that a crime has been committed.

The Fourth Amendment to the U.S. Constitution reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The search and seizure provisions of the Fourth Amendment are all about privacy. The Fourth Amendment applies to a search if, and only if, a person has a valid “expectation of privacy” in the place or thing being searched. In order for there to be a legitimate expectation of privacy, any reasonable person would have to also expect privacy given the same circumstances. If you do not have a reasonable expectation of privacy in the place searched or in the items seized, there is no Fourth Amendment violation.

On the other end,  the Fourth Amendment does permit searches and seizures that are considered reasonable. This means that the police may conduct a search, regardless of your privacy concerns, if:

• they have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or;
• the particular circumstances of your case justifies the search without a warrant.

A search warrant permits California police to search you, your home, your car and any other specified area that they suspect has evidence of illegal activity. The search warrant allows them to seize that evidence if they find it. It is up to the defendant to prove that the search was illegal. They can do this by:

• proving that the officer who requested the search warrant purposely misled the judge about the facts justifying the warrant;
• proving that the warrant was not specific enough with regards to the place to be searched or the things to be seized;
• and/or proving that the judge who issued the warrant made a bias decision and did not contain a neutral role.

However, police are permitted to conduct searches without a warrant, in the following situations:

1. “Exigent circumstances.” These are circumstances that would cause a reasonable person to believe that entry (or other relevant action) is necessary to prevent physical harm to the officers or other people, the destruction of relevant evidence, the escape of the suspect, orsome other consequence.
2. When a person freely and voluntarily consents to a search.
3. Inspections: security searches, border searches, health inspections, and California DUI sobriety checkpoints/ driver’s license checkpoints (part of the “automobile exception” to warrant-less searches).
4. The “automobile exception”. For the most part, the automobile exception provides that warrant-less searches of automobiles are permitted when the police reasonably believe a vehicle holds evidence of a crime. It is based on the fact that drivers have a reduced expectation of privacy in a car and that cars are mobile, allowing the chance for evidence to be easily moved and destroyed.
5. The “plain view” doctrine. Once the police have the authority to search an otherwise “protected” area, the police are permitted to seize any items that are in “plain view” where there is probable cause to believe that the item is evidence.
6. There is no reasonable expectation of privacy. If one does not have a reasonable expectation of privacy in the place searched or items seized, there is no Fourth Amendment protection.
7. Immediately following an arrest. At that time an officer is allowed to search the arrested individual and the area “within the individual’s immediate control” in order to seize any weapons or evidence.

So what happens if a police officer conducted a search illegally and violated your fourth amendment rights? If a court finds that an unreasonable search occurred, any evidence seized as a result of the search cannot be used as direct evidence against the defendant in a criminal prosecution, state or federal. This is known as the “exclusionary rule.”

The “fruit of the poisonous tree” doctrine stems from the “exclusionary rule.”  It states that any evidence obtained during an illegal search, cannot be used to obtain other evidence. The “tree” would be the evidence that was illegal seized first, and the “fruit” would be any evidence seized because of the “tree.” For example, if the police unlawfully searched a home and found a key to a gym locker (tree), and then later found drugs in the locker (fruit), both would be inadmissable at trial.

Although the evidence is inadmissable, some defendants believe that if they can show that a search was illegal, the case must also be dismissed. Unfortunately, this is not true. If a prosecutor has enough other evidence to prove the defendant guilty, the case can continue. If the case does continue, the judge can later use the evidence when deciding sentencing. It can also be used against you in civil and deportation.

Each state defines summary offenses differently, but it does have a basic, standard meaning. A summary offense is considered a minor offense. It is not considered a criminal conviction.

Sometimes referred to as petty offenses or infractions, summary offenses are crimes that are considered less serious than misdemeanors.

These offenses do not need to be tried before a jury. They are generally handled by a judge or magistrate. Usually, the judge has discretion in determining what constitutes a summary offense.

So what are summary offenses? Each jurisdiction has discretion over which crimes they will consider a summary offense. Some examples can include speeding, minor assaults, minor property damage, some forms of harassment, open lewdness, violation of some dog laws, disorderly conduct, trespassing or contempt of court. Depending on the jurisdiction, some offenses will be considered a summary offense where they would be considered a misdemeanor elsewhere. New York and Pennsylvania, for example, sometimes consider simple marijuana possession a summary offense, rather than a misdemeanor.

Although it is still a serious matter, summary offenses do not usually carry harsh punishments. The difference of degree is what dictates the measure of punishments. Different jurisdictions have created different categories of summary offenses, with different levels of punishment. The punishments typically are fines but in some cases can result in no more than 90 days in jail.

Depending on the jurisdiction, summary offenses may or may not appear on a person’s criminal record. In general, petty or summary offenses do not appear on a person’s criminal record, though this is not always the case in each state. Please note, that any time a person is involved in the criminal justice process, a record of that may or may not appear on their record.

1. Although the French wine, “Fat Bastard,” is now distributed in 22 states in the US. both Texas and Ohio have banned its sale within their borders.
2. The Bureau of Alcohol, Tobacco and Firearms (BAFT) bans the word      “refreshing” to describe any alcohol beverage.
3. A  young adult college student studying in Italy can’t have a glass of Chianti with dinner, according to the Drug Free Schools and Campuses Act. Students under the age of 21 are prohibited by the federal government from conforming to the drinking laws and customs of the countries in which they are studying. This, of course, is contrary to the educational goals underlying international education or study abroad programs.
4. It is a violation of the California Alcoholic Beverage Control Act for producers of alcohol beverages to list the names of retailers or restaurants that sell their products in advertising or even in newsletters.
5. A person can be sent to jail for five years for merely sending a bottle of beer, wine or spirits as a gift to a friend in Kentucky.
6.  Maryland now requires that alcohol beverage writers be certified as experts by an agency of the state before they can receive product samples, which it limits to three bottles per brand.
7. Anyone under the age of 21 who takes out household trash containing even a single empty alcohol beverage container can be charged with illegal possession of alcohol in Missouri.
8. If a law enforcement officer is having a drink in a bar in Iowa and an employeepours water down the drain, the water is legally considered an alcohol beverage intended for unlawful purposes.
9. Don’t plan on running a “tab” in Iowa; it’s illegal.
10. Druggists in Connecticut must pay $400.00 each year for a license in order to use alcohol in compounding prescriptions.
11. No alcohol beverages can be displayed within five feet of a cash register of      any store in California that sells both alcohol and motor fuel.
12. It’s illegal in Michigan for a person under the age of 21 to give a gift of      alcohol beverage to anyone, even to a person of legal age.
13. A server in California can be convicted of selling to a minor if the purchaser uses a false or altered ID to buy the alcohol.
14. An owner or employee of an establishment in Iowa that sells alcohol can’t      legally consume a drink there after closing for business.
15. Public intoxication is a crime in Pennsylvania but specifically not a crime in Minnesota.
16. It’s illegal in New Jersey for parents to give their children under the age of 18 even a sip of alcohol.
17. Permitting diners to take home an unfinished bottle of alcohol beverage, rather than  consuming it all before leaving to prevent “waste,” encourages      moderation and discourages intoxication. However, this is prohibited in      Michigan.
18. The entire Encyclopedia Britannica is banned in Texas because it contains a recipe for making beer that can be used at home.
19. It’s illegal in Indiana for liquor stores to sell milk or cold soft drinks. They can, however, sell uinrefrigerated soft drinks.
20. Texas state law prohibits taking more than three sips of beer at a time while      standing.
21. Nebraska state law prohibits bars from selling beer unless they are simultaneously brewing a kettle of soup.
22. State law of North Dakota prohibits serving beer and pretzels at the same time      in any bar or restaurant.

In a Supreme Court ruling on Wednesday, April 17,2013, has made an impact in DUI rules. In an 8-1 decision, The Supreme Court ruling limited the ability of police officers to take involuntary blood samples from suspected drunken-drivers without a search warrant in most cases.

When stopped for a DUI, drivers have the option of taking either a breath or blood test to measure the level of alcohol or drugs in their system. If they refuse to take either, their license can be automatically suspended for a year.

Usually, when one refuses the breath test, they are automatically given a blood test. The court said that taking blood samples without the driver’s consent violated the Constitution’s protection  against “unreasonable searches and seizures”. This means the police usually need a warrant from a magistrate before invading a person’s privacy. And Justice Sonia Sotomayor stated that sticking a needle into someone’s veins “is an invasion of bodily integrity [that] implicates an individual’s most personal and deep-rooted expectations of privacy.”

The ruling stemmed from a Missouri court’s decision to dismiss the blood tests of a Missouri resident suspected of drunk driving. The gentlemen refused to undergo a breath test and was then handcuffed and taken to a hospital where his blood was drawn and BAC was almost twice the limit.

Police need a warrant to take a suspect’s blood except when a delay could threaten a life or destroy potential evidence, the Missouri court said. The justices noted it is usually simple and quick for an officer to get a warrant by phone or computer.But she also said that police sometimes need to act fast and in these cases they do not need to wait for a magistrate. Even then, these emergencies should only be the exception.