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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.

While murder and manslaughter are different charges, some people may not understand what exactly makes them different from one another. In addition, murder charges are usually defined as first or second-degree depending on the severity of the crime. Manslaughter, on the other hand, can be voluntary or involuntary. The main difference between these two charges will be dependent on the state of mind of the person when they committed the violent action.

Voluntary and Involuntary Manslaughter

Manslaughter is the unlawful killing of another person that does not involve the intent to seriously harm or kill. Further, it usually involves less moral blame than murder. There are two types of manslaughter you could potentially be charged with will be either voluntary or involuntary. Voluntary manslaughter, also called a heat of passion crime, happens when a person is strongly provoked and kills someone in the heat of passion because they were provoked. Heat of passion exists only if the provoked party does not have time to cool off. Due to this emotional context, moral blameworthiness is reduced for people who kill in the heat of passion. Involuntary manslaughter, on the other hand, is the unintentional killing of another person due to criminally negligent or reckless behavior. This can be confused with second-degree murder, since extremely reckless behavior that leads to the death of another can be charged as second-degree murder.

First and Second-Degree Murder

First-degree murder is the unlawful killing of another person with the intent to seriously harm or kill. First-degree murder is also planned and committed in a cruel way under special circumstances. Other                                              offenses that can also be included in this charge:

  • Kidnapping
  • Hijacking
  • Robbery
  • Assault
  • Torture

Second-degree murder occurs when criminal negligence leads to the unlawful death of another person. It is also defined as a premeditated murder committed without special circumstances. Second-degree murder is slightly less grave than first-degree murder. Second-degree murder can also be similar to involuntary manslaughter and the extremity of the criminal negligence or reckless behavior may decide which charge will be given.

If you’re facing criminal charges for murder, contact an attorney as soon as you can. The criminal defense attorneys at the Law Office of Louis J. Goodman have years of experienced handling murder and manslaughter cases. Call us to schedule a free consultation today.

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.

When a witness is brought in for questioning, they may be asked to provide evidence that could potentially incriminate them. The Fifth Amendment, however, protects witnesses from sharing incriminating information against themselves should it be invoked, and the witness refuses to answer any more questions. However, it is possible for an investigator to push past this privilege and obtain the information they require. By offering the witness immunity, the witness could avoid prosecution in exchange for a testimony.

The broadest type of immunity that is usually granted is transactional immunity. Also known as “total” or “blanket” immunity, transactional immunity offers complete protection from future prosecution for anything mentioned in the witness’ testimony. Keep in mind, however, that transactional immunity does not protect against prosecution for unrelated crimes mentioned in the testimony. Further, transactional immunity is not offered by the federal system, so it may not be offered as readily as one might think.

Used by both federal and state systems, use and derivative use immunity is a common but narrower type of immunity that could be offered to the witness.  This immunity stops the prosecution from using the witness’ statements or the evidence derived from those statements against the witness. Use and derivative use immunity does not protect against additional investigation, on the part of the prosecution, into crimes mentioned by the witness. Charges could be brought against the witness for their mentioned crime only if independent evidence is provided proving the crime. If independent evidence separate from the testimony is not provided, the judge could block the use of the immunized testimony.

A witness can also waive immunity if they wish. Immunity can be waived using a written statement, testifying before immunity is granted, or by not asking for immunity in a timely manner. When a witness waives immunity, the previously immunized testimony can be used in the case. However, before you consider waiving immunity, meet with criminal defense lawyer beforehand. Our team at the Law Office of Louis J. Goodman can protect your rights and interests as a witness.

A marijuana breathalyzer developed by Hound Labs in collaboration with the University of California, Berkeley finished field testing in California. The breathalyzer, which detects concentrations of THC in a person’s breath, is the latest in cannabis detecting technology to stop drivers from driving high. The device works like the alcohol breathalyzer test. The suspected driver blows air into the device, which then records the concentration of THC in his or her breath. However, it has not yet been decided what amount of marijuana detected in the driver’s breath can be used to establish impairment. The current law states the amount an alcohol breathalyzer can detect before being considered impaired, but not for marijuana. Further, the current blood and urine tests being used reveal whether there is some marijuana in your system. Not how much marijuana is sufficient to impair one’s ability to drive.

Working with California law enforcement, Hound Labs tested the device on driver’s suspected of driving while high. Officers would pull over the suspect and, if the driver failed their field sobriety tests, he or she would then be asked if they would voluntarily blow into the prototype breathalyzer. After recording the driver’s breath, the information would then be relayed to the research team to collect and compare with other results. According to Hound Labs, the device performed well, and they did find a correlation in the amount of THC recorded in comparison to how recently the driver has smoked marijuana. The drivers who failed their sobriety tests were not arrested but rather educated in the dangers of driving high. The drivers were also found alternative transportation to make it home safely.

Due to the promising results, Hound Labs now focuses on improving the size and durability of their breathalyzer. They hope these improvements will make the device easier to handle. At this time, the marijuana breathalyzer is not in use by California police officers. However, this does not mean officers are not on the lookout for driver who may be driving under the influence of cannabis. If you have been charged with a marijuana DUI, the Law Office at Louis G. Goodman can help. Our lawyers have years of experience handling Californian’s changing marijuana laws. We can help protect your rights and defend yourself to the fullest extent of the law.

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.