In 1966, the Supreme Court ruling of Miranda vs. Arizona created the “Miranda Warning” or more commonly known as the “Miranda Rights.” Police officials inform accused parties of their Fifth and Sixth amendment rights as part of due process of the law.

Being arrested and not read your Miranda Rights does not automatically result in a dismissal of a criminal case but it may help you in determining what charges will be held against you in court. If an officer doesn’t read you your rights and you say anything, any statements made may be dismissed as evidence during a trial.  

What Are The Miranda Rights?

It’s important to know what your rights are as a citizen, particularly when being placed under arrest. The presiding officer should before, during, or after arrest repeat the following:

  • You have the right to remain silent.
  • If you do say anything, it can be used against you in a court of law.
  • You have the right to have a lawyer present during any questioning.
  • If you cannot afford a lawyer, one will be appointed for you if you so desire.

It’s commonly suggested that when being put under arrest that you remain silent and wait to contact an attorney for legal advice.

Following the Miranda vs. Arizona ruling, there were three more important cases that ensure citizens to their fifth and sixth amendment rights. The Miranda Warning is complex. If you were not read your rights and feel If you were arrested and charged with a crime, then Louis J. Goodman could explain your rights and possible defense options. You may call our law office for a free consultation. Call (510) 582-9090 or use our online case review form.

When one thinks of domestic violence, commonly, that violence occurs between either spouses, significant others or family members. But when an assault or battery occurs between two roommates, does this count as domestic violence?

The short answer – no, not typically. And here’s why.

Domestic Violence Laws in California

California’s domestic violence statutes are defined most by penal codes 273.5 and 243(e)(1), which only cover physical attacks against certain people, including:

  • Spouses, whether current or former
  • Fiancés or former fiancés
  • Co-parents of children
  • Current or past romantic partners
  • Cohabitants or former cohabitants

It may seem like roommates are covered under this law – roommates are cohabitants, after all. However, courts have consistently held that the California domestic violence codes only apply to cohabitants that have been involved in some type of romantic or sexual relationship.

To quote one California appellate court:

The term cohabitant “requires something more than a platonic, rooming-house arrangement.” It “has been interpreted ‘broadly’ to refer to those ‘ “living together in a substantial relationship — one manifested, minimally, by permanence and sexual or amorous intimacy.”  – People v. Holifield, 205 Cal.App.3d 993 (1998)

So, if you are accused of battery by a roommate, then you should make it clear to your attorney that you were never involved in any intimate relationship with your roommate. This won’t protect you from battery claims, but it can eliminate any doubt as to whether domestic violence has occurred.

What Do I Do If I Have Been Accused of Battery by a Roommate in California?

Battery accusations can lead to serious penalties, including jail time and expensive fines. You need to speak to a criminal defense attorney to preserve your rights if you have been accused of battery, whether domestic or otherwise. Call us for a free consultation at (510) 582-9090.

If you are accused of domestic violence in California, then you may find yourself the subject of a restraining order (also known as a protective order).

Protective orders are designed to protect a person from abuse, harassment, stalking and threats by the person named in the order. These orders often include provisions prohibiting contact with the protected individual, including things like phone calls, text messages and even interactions on sites like Facebook or Twitter.

Penalties for violating a restraining order can be harsh, depending on whether it’s a first or subsequent violation and whether the victim suffers physical injury. Penalties include court fines, restitution for the victim’s counseling and medical services, and even the relinquishment of your firearms and an inability to legally obtain new ones.

Defenses Against a Restraining Order Violation

There are several potential defenses that your attorney could use in court to have your charges reduced or dismissed. Some of these include:

  • The protective order was never legally issued by a judge
  • You were unaware that a restraining order had been filed against you
  • The violation of the restraining order’s terms was unintentional or unavoidable
  • You are being falsely accused of violating the restraining order

Even if none of the above are true in your case, it is still worthwhile to discuss your case with a criminal defense attorney. If you are facing domestic violence charges or have been accused of violating a restraining order in Alameda County, our law firm can help. Call us for a free consultation at (510) 582-9090.

Being pulled over by the police can be a scary experience. Recent news stories do not help how the public perceives traffic stops. For instance, there was that one recent story in New Jersey where police pulled over a young man and performed a cavity search for marijuana. Most traffic stops are not this eventful. However, there are certain mistakes you should avoid during a traffic stop. Some mistakes during a traffic stop could result in severe consequences.

  1. Stepping out of the vehicle. Some traffic stop mistakes could put your life in danger. Stepping out of your vehicle is one of those mistakes. Police may believe you are trying to harm them if you exit your vehicle. You should stay in your vehicle and keep your hands on the steering wheel.
  2. Being argumentative or talkative. As difficult as it might be, try to remain calm and polite. If you are argumentative or disrespectful, then it could escalate the traffic stop into an even more uncomfortable situation. You should never try to explain yourself or engage in a conversation about why you are being pulled over. Let the officer do the talking.
  3. Performing the standardized field sobriety test. If officers suspect you are driving under the influence of alcohol or drugs, they may ask you to submit to the standardized field sobriety test (SFST). The SFST is a combination of three tests that you could still fail even if you are sober. These tests are also recorded by police dashboard cameras. If you fail, it will be on tape and possibly used against you by the prosecution.
  4. Submitting to a search. Police can search your vehicle if they have probable cause or a warrant. There are also other limited circumstances where they can conduct a search. Submitting to search could prove to be a very big mistake.
  5. Running away or resisting arrest. Running from the police at a traffic stop could prove to be a life-ending or life-ruining mistake. You could be looking at felony charges. The same could be true if you resist arrest.

What If I’m Arrested?

If you are arrested during a traffic stop, then it is important to remain silent and ask for an attorney. The prosecution may use whatever you say to the police against you if you are facing criminal charges.

Louis J. Goodman is a Bay Area criminal defense attorney with decades of experience. If you were arrested and charged with a crime, then Louis J. Goodman could explain your rights and possible defense options. You may call our law office for a free consultation. Call (510) 582-9090 or use our online case review form.

Last month’s blog discussed how marijuana legalization could change DUI stops in California. Field sobriety tests are a method law enforcement may use to determine if you are under the influence of alcohol or drugs. More can be said about the standardized field sobriety test (SFST) and its weaknesses.

Three consecutive tests, which are sanctioned by the National Highway Traffic Safety Administration (NHTSA), make up the SFST. These three tests are as follows:

  1. Horizontal gaze nystagmus. For this test, a police officer requires you to follow an object with your eyes. An officer is looking for two things: an inability to follow the object and eyeball jerking (nystagmus).
  2. Walk and turn. With this test, officers require to you to take nine paces (heel-to-toe) in a straight line in one direction, and then in the other. A police officer is looking for trouble with balance or an inability to walk in a straight line.
  3. One-leg stand. This test is what it sounds like. You must raise one foot six-inches off the ground for thirty seconds. An officer is looking for trouble balancing.

There are also non-standardized field sobriety tests. You may have heard of these before. Non-standardized tests include reciting the alphabet or touching your finger to your nose.

Can I Fail a Field Sobriety Test While Sober?

You could fail a field sobriety test if you are sober. Certain medical conditions, such as a panic disorder or a bad back, could make it impossible to complete a field sobriety test. Your clothing, the weather and certain medications could also hurt your performance.

Also keep in mind, police cruiser dashboard cameras will record your attempt to pass field sobriety tests. This evidence may be used against you by the prosecution. These are all risks you should keep in mind before agreeing to take a field sobriety test. If you are arrested, then your decision to take the test could make it more difficult to defend yourself from a DUI charge. You can refuse to submit to the field sobriety tests described in this blog.

You should speak to a criminal defense lawyer if you were arrested for a DUI, regardless of whether you took a field sobriety test. If you or a family member were arrested for a DUI, then Hayward criminal defense lawyer Louis J. Goodman could discuss your situation at no cost during a consultation. You can reach Louis J. Goodman by calling (510) 582-9090 or by using our online contact form.

As you already know, recreational marijuana was recently legalized in California. Law enforcement agencies have expressed concern that legalization will lead to more instances of impaired driving. However, there is no state law that defines what qualifies as “impaired” for a marijuana DUI.

In California and other states, you must have a blood alcohol concentration (BAC) of .08 or more to be charged with a DUI (over 21 years old). No such threshold exists for marijuana. In addition, the psychoactive ingredient in marijuana (THC) can stay in your system for weeks or days. A person could be pulled over while sober but could test positive for marijuana they had smoked days or even weeks ago. Furthermore, no such threshold for marijuana impairment has been determined.

California law enforcement officers are developing new ways to catch people who are under suspicion of driving while high on marijuana. Possible changes, some of which have been implemented, include but are not limited to:

  1. Increased use of drug recognition experts. These are law enforcement officials who undergo specialized training to recognize drug intoxication. The California Highway Patrol (CHP) recently announced they are hiring additional drug recognition experts. In addition, CHP has launched an independent study to learn more about how marijuana impairs drivers.
  2. Saliva swab tests. Some California police departments have field-tested advanced saliva swab tests. Officers in San Diego have used the Dräger DrugTest 5000 to detect the presence of up to seven drugs. Like many tests for marijuana, saliva swab tests cannot determine impairment.
  3. Marijuana breathalyzer. We recently published a blog on the “marijuana breathalyzer”. These devices would function in a similar way to alcohol breathalyzers. However, the devices have only been field tested and are not currently in use.
  4. Continued use of field sobriety tests. Officers may use the classic three-part, NHTSA-sponsored field sobriety tests. These are the tests where you must walk a certain number of paces heel-to-toe in a straight line, follow an object with your eyes or stand on one leg and count. You are not required by law to take these tests.
  5. Continued use of blood and urine tests. While not necessarily a change, officers will likely continue to use blood and urine samples in conjunction with other types of tests. However, the officers must have demonstrated probable cause for an arrest to carry out these tests.

Arrested for a Marijuana DUI? Call Our Hayward Marijuana DUI Lawyer

Hayward DUI lawyer Louis J. Goodman has decades of experience practicing criminal defense law. Before establishing his practice, Louis. J Goodman served as a former Deputy District Attorney. If you have questions about your legal rights after a DUI arrest, then you have come to the right place. We charge nothing for an office or phone consultation.

Here’s a weird glitch that has been coming up lately that people should be aware of. It comes up in the context of a DUI conviction following an Ad Min Per Se suspension of the client’s California Driver’s License.

Assume a routine, garden variety DUI and a timely request for an APS hearing. Following the hearing DMV suspends the CDL for 30 days and follows that suspension with a 5 month restriction. Generally speaking this would call for an SR22, proof of DUI school enrollment, $125 reissue fee, and an Ignition Interlock Device (IID – Blow & Go). Assume further that the criminal matter is resolved in Court on the same day as the APS suspension goes into effect.

In theory, the Court should abstract the DUI conviction to DMV on the day of the plea, and the APS suspension and the DMV suspension as a result of the conviction would run concurrent. However, in Alameda County, and I’m told, in other counties using a similarly branded computer system, the abstract is sometimes not sent to DMV until months later. The Court therefore fails to timely update the DMV.

In the meantime, the Client, trying to do the right thing, gets her restricted license and an IID. Some months later, when the Court finally abstracts to DMV, DMV notifies Client that she must put another IID on her vehicle at her own expense. Although the DMV record shows that an IID was in fact installed for the requisite 5 month period, the DMV will not credit that IID time.

Unfair? Clearly. But both DMV and the Court point fingers at each other saying that the other’s computer, procedures, or view is wrong. The Client is caught in the middle without remedy.

I have suggested to clients that they not put the IID on their vehicle until ordered to do so by DMV and following the abstracting of the record by the Court to DMV.

I’d be very interested to know if others have run into this problem and if there is some clever fix.

I apologize for the rather wonky discussion, but it will be pretty straightforward for anyone who has dealt with it.

Despite all the handwringing about driving under the influence of marijuana in the brave new world of legalized recreational pot, little will change in terms of motorist behaviors, arrests, or prosecutions.

As a longtime criminal defense attorney and former prosecutor who has handled thousands of DUI cases, I note that there is a substantial difference in DUI alcohol and DUI marijuana. Marijuana simply does not affect driving as negatively as alcohol. While most DUI alcohol arrests are made because of police stops based on obviously bad driving, most DUI MJ arrests take place after the police have made a stop for some other minor infraction (taillight, registration violation, routine traffic matter), and then smell marijuana in the car.

Despite legalization, incidents of DUI MJ will not significantly increase. Let’s not kid ourselves, people who choose to smoke marijuana have not been much deterred by the fact that it was illegal. Moreover, due to legalized medical marijuana being readily available, there has been a reliable supply of high quality, THC laden, pot available to virtually anyone who wanted it. Legalization is unlikely to significantly increase the number of people who smoke pot, nor for that matter, likely to increase the number who drive while under its influence.

For a prosecutor to win a DUI case, she must prove to a jury that the defendant’s ability to drive was significantly impaired by use of a substance or some combination of substances, beyond a reasonable doubt. Modern legislation deems that anyone with a .08 blood alcohol is driving illegally, whether or not their driving is actually impaired. The .08 level was determined after much scientific research and testing. For a variety of reasons, no such testing has been done on marijuana levels and driving performance, therefore, prosecutors have no reliable blood/marijuana tool at their disposal. Therefore, a DUI MJ case would have to be made on circumstantial evidence: bad driving, accident, smell of pot in the car, poor Field Sobriety Tests, admissions of the defendant, etc. This is not an impossible prosecutorial standard, but it is far more difficult than simply proving .08 or higher. Add that to generally friendly to marijuana use Bay Area juries and it is not hard to see the uphill battle a DUI MJ prosecutor faces.

The reality is that legalization will cause only a marginal increase in marijuana use, a minor increase in DUI MJ, little change in DUI MJ detection and enforcement by police, and not much change in prosecutorial attitudes toward DUI MJ cases.

I recently had a discussion with some friends who expressed frustration about not being able to vote in elections that they cared about because they did not live within the voting jurisdiction. There are lots of ways to influence an election. You can knock on doors, leaflet, make phone calls and you can donate money. Campaigns are expensive and have to be financed by somebody. TV costs money, phone banks cost money, flyers, yard signs, pizza for volunteers, all cost money. In the recent 2016 Republican Presidential Primaries candidates averaged about $40.00 per vote cast. An Alaskan Senate campaign cost the candidates over $100.00 per vote. Local elections are less costly, often coming in at around $12.00 a vote. The point being that running for office is expensive and candidates need financial support. Let’s be clear, money, in and of itself will not win an election (Hillary Clinton vastly outspent Donald Trump.) but no campaign can run without money.

One friend, who is highly educated, well employed, and who I admire very much, said that he believed that a campaign should just be a reasoned debate between candidates and then voters vote on the best person. Money should not come into it. Much as I might like this utopian myth, I recognize that reality dictates otherwise.

Here’s my point: If you like a cause or a candidate, send the campaign some money. It’s easy to do, just go to their website, find the prominently displayed “Donate” button and take it from there. Send what you can, even ten or twenty dollars really helps. More importantly, you and I can say that we participated in the democratic process, even though we did not ourselves get to vote directly, and regardless of the outcome, we made an effort to positively affect government by the people.

 

Police Drones

The New Year will undoubtedly see an increase in the use of surveillance drones by law enforcement. Already in use by an increasingly militarized police community, these tools have the potential for enormous positive and negative impact. As with much new technology what is positive and what is negative is a matter of perspective. And as with much of new technology, numerous companies and designs compete for the attention of the law enforcement dollar. (more…)