Law Office of Louis J. Goodman

A new case just came down from the California Court of Appeal, People v. Borzakian, cite as 2012 DJDAR 1923 (until the actual opinion is published in the advance sheets).

The case holds that: "Police officer is not qualified to authenticate photographic evidence of traffic violation where private company was contracted to maintain and service automated system."

OK, what does that all mean.  It means that if you have been cited on a camera ticket in Alameda County, where they have a private company that maintains the camera system you cannot be convicted unless there is substantial change in the trial procedure now being used in the courts.

Right now the police send an officer in with the computer and the pictures to show your car going through the red light and your beautiful mug in the photo.  The company that maintains the equipment is not in court.  This case says that the company must have a representative that knows what's going on in court.  Since the Australian company is in Arizona that may be easier said than done.

So set your case for trial and cite the case above to the judge.  You'll be glad you did,  you'll save yourself $480 in fines, and a point on your driving record.

As always consult a lawyer if you have questions about the specifics of your case.

I am asked this all the time, so here's the answer:

A plea of no contest is the same as a plea of guilty except that it cannot be used against the defendant in a civil case, based on the same facts, if the plea is to a misdemeanor.  If one pleads no contest to a felony it is admissible against the defendant in a civil action.

A plea of not guilty is a denial of all charges and requires the prosecutor to present evidence to a judge or jury in order to obtain a conviction.

Consult a local attorney before entering any plea in a criminal matter.

Have you been arrested for a DUI?

Did the officer give you a pink temporary license?
Have you read it?
Have you called DMV to schedule a hearing?

These are important things.  I can't tell you how many people have been given misinformation about this.  They call DMV and DMV tells them that they should wait until the court date to do anything.  WRONG!  Do that and you'll lose your right to a hearing.  How about this? Only ask for a hearing if you are disputing the reason for the stop? WRONG! You should always ask for a hearing.

I really get upset when people call DMV to get some information in a time of need and just get run around or given bad info.

Here's what you need to do:  Call DMV within 9 days of the stop and ask for a hearing. Get the name of the person you talk to at DMV. Write down the date and time of the conversation.  Here's the phone number for Driver Safety in Oakland, California.  If you were arrested in Alameda County this is where you need to call:  510.563.8900.

Have your pink temporary license with you when you call.  Be polite and businesslike.  Do not argue with clerk.  Just get your hearing date and give them the information they request.

Call a local attorney to get representation specific to your case. The attorney can call DMV for you.  But under no circumstances should you allow the 10 day window to pass without protecting this important right.

I went by Frank Ogawa Plaza this morning to check on Occupy Oakland.  There's far fewer tents than were there last week and far fewer people.  It's interesting that there are any tents at all.  It seemed to me that all the violence of the other night had to do with clearing the plaza of tents, but now the plaza is open and tents are pitched, once again, in front of City Hall.

Are you fed up with what you see in Washington, Sacramento, or your local community government? Join the club.  Are you thinking of joining Occupy Wall Street? OK, I'm all for it.  Are there people you want to vote for but you don't live in their jurisdiction? No problem.

Here's what I'm suggesting if you want to do something meaningful: Research candidates that you like and send them a contribution. Even $10 or $20 can be very helpful to candidates that have to raise money to run.

I don't care what your politics are, but don't leave the money to someone else.  If we, as individuals do not make a financial contribution to candidates we support, we leave the field open for large corporate interests  to take the field in its entirety.

Someone just asked me whether he has been convicted of a crime if he was cited for petty theft as a juvenile but then received a letter saying that no court appearance would be necessary and no further action would be taken. He was concerned because a college application asked whether he had been convicted of any crime, felony or misdemeanor.

This brings up several issues.  For a juvenile case there is technically not a criminal conviction only a finding by the court.  That finding in a misdemeanor can almost always be sealed upon the juvenile turning 18.

In the specific case mentioned above, it is unlikely that there is any record, criminal, juvenile, or otherwise and if asked about it on a college or work application the correct answer would be: "No." (I've never been convicted of a crime.)

Here's a scam that even the local judges are getting irritated about:

Someone is arrested for a garden-variety petty theft (costume jewelry from a department store, tool from a big hardware store, clothing from a discount store); they receive a citation to appear in court.  Then they receive a demand for payment for "security services" from an out-of-state law firm that threatens civil litigation.  The demand is typically for $300 to $500. What happens?

About a third of these letters get returned as undeliverable, some are just ignored, and some actually are responded to with money enclosed. If you are the someone arrested and receive one of these letters what can you expect?  First of all the firm has no way of knowing whether or not you received the letter.  You have no obligation whatsoever to pay the amount demanded or any other amount.  Paying will not help you with your criminal case and paying is not a civil compromise of your criminal case. (To be fair, and to their credit, most of these letters say this up front.)  If you do nothing there is almost a zero chance of any follow up in an attempt to collect these fees.

What the judges are upset about is that law firms are taking advantage of people who are uninformed about the law and using the empty threat of litigation to collect fees. One judge told me that, to that judge's knowledge, no lawsuit or small claims action had ever been filed on one of these demands.

Bottom Line: If you get one of these demands - ignore it.

Note: Do not ignore the court date in the criminal matter. Consult with a local attorney before your court date.

Louis J. Goodman
Attorney at Law
1290 B Street, Suite 307
Hayward, California 94541
510.582.9090

www.louisgoodman.com

Addiction is a chronic brain disorder that should be treated like any other chronic disease, according to a new definition from the American Society of Addiction Medicine.

In a public policy statement, the group emphasized that neurological mechanisms -- disruptions in neurotransmission, interruptions in the reward system, failure of inhibitory control -- are the key drivers of addiction.

"At its core, addiction isn't just a social problem or a moral problem or a criminal problem," ASAM past president Michael Miller, MD, said in a prepared release. "It's a brain problem whose behaviors manifest in all these other areas."

see Med Page Today: http://www.medpagetoday.com/Psychiatry/Addictions/28070

 

This is a subject that really interests me.  Most people who get caught up in the criminal system have substance issues.  Alcohol is clearly number one.  As a criminal defense attorney I spend a lot of time educating judges and prosecutors about the nature of addiction.  I do not see addiction as a defense, but it is often an explanation for the circumstances surrounding criminal conduct.  If we are serious about cutting our crime rate we need to be serious about how we deal with our alcohol and other substance addictions.

 

 

Here’s a really interesting story in the New York Times.  It describes how federal prosecutors in multi-million dollar fraud cases against banks and Wall Street firms are allowing these cases to be resolved by deferred prosecution.  What deferred prosecution means is that prosecutors clearly have enough evidence to proceed in a criminal case but allow the defendant to not plead guilty or go to trial so long as the defendant is on good behavior for a year or two and complies with certain conditions (perhaps paying some restitution and promising not to engage in similar conduct during the period of deferral). 

 

As a criminal defense attorney, I’m all for deferred prosecution and have successfully gotten deferred prosecutions for some of my clients. But I have to say that is the exception, not the rule.  What I find so interesting is that large corporate million dollar criminals are allowed off the hook while so many regular individuals are forced to accept criminal pleas or go to trial in minor cases.

 

http://www.nytimes.com/2011/07/08/business/in-shift-federal-prosecutors-are-lenient-as-companies-break-the-law.html?_r=1&scp=1&sq=deferred prosecution&st=cse

 

On a related subject, I was in court this morning and one of the judges was expressing great irritation and exasperation to me regarding the behavior of corporate “victims” in petty theft cases.  Here’s what happens:  Someone gets arrested at a big store for petty theft, (and to be fair about it, the arrest is usually for good reason and the arrestee is usually guilty). In any event, the store has a contract with an out-of-state law firm that sends the arrested person a letter demanding $350 to $500 for “reimbursement of security expenditures.”  The judge was upset because the judge recognized that this is a pure money grab from people who are uninformed about the law.  No one is obligated to pay these fees, the law firms and corporations know this, and they have not once attempted to collect these fees in court.

 

How about some deferred prosecution and legal and intellectual honesty for the rest of us.

The sexual assault case against Dominique Strauss-Kahn is crumbling. Was there a shakedown? A conspiracy?

We're going to find out.  The point is just because there's an accusation, an arrest, a "victim" making a statement, and the police making an arrest -- That does not mean there is a crime.

This is why we have lawyers and it is why I believe doing criminal defense work is the highest legal calling.  Criminal lawyers question everything all the time, and sometimes the answers to those questions bring about some unforeseen results.  A few weeks ago DSK was all but convicted, drawn and quartered in the press, now he's out of custody on the motion of the District Attorney! To the government's credit, ethical prosecutors continued to investigate this case and began to ask the same questions as the defense attorneys.

What will be interesting to watch is the plea negotiation process.  Will the DA dismiss the case or will they try to get a misdemeanor plea to a lesser offense?   DSK has a lot to lose or gain, if the case is dismissed will he still run for President of France, and if so, how will this case affect his political fortunes? 

A lot to think about on a number of levels.  We'll continue to watch.

Controlling drinking

NOW THAT the government has appropriately mandated graphic warning labels for cigarette packaging, can we expect similar appropriate warnings on alcohol packaging?

If a six-pack of beer or a bottle of liquor came with a photograph of a DUI death victim, side-by-side photos of healthy and alcohol-damaged livers, an accurate recitation of alcohol-related crime statistics, and/or some accounting of the enormous social and societal costs of alcohol addiction, perhaps Americans would make better choices when it comes to the frequency

and volume of alcohol consumption.

As a lawyer, in practice for 30 years as both a criminal prosecutor and defense attorney, I note that 80 percent of the cases I have handled involve the drinking of alcohol.

Any attempt to get crime under control will necessarily require getting drinking under control. A bit of public education is long past overdue.

Louis J. Goodman

Hayward

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