Los Angeles Criminal Lawyer Blog

We are Americans living in a free society. DO NOT believe the hype that "buzzed driving is drunk driving" or that if you've had anything to drink you cannot drive. DUI laws are getting more strict and oppressive because DUI cases result in big money and return on investment for budget-constrained county governments. Do not allow this to infringe upon your right to drink responsibly and drive to and from your house or another location.

Thus, in wishing everyone a safe and happy new year, we also offer this quick-reference guide for what to do if you get pulled over under suspicion of driving under the influence.

THE NUMBER ONE RULE: DO NOT TALK TO THE POLICE. The police are NOT there to help you and they are NOT going to let you go if you seem reasonable. You are obligated to show them identification and your vehicle's registration and that is ALL. Honesty is NOT the best policy; SILENCE is the best policy. NEVER tell the police that you have consumed alcoholic beverages, NEVER tell them that you understand why you were pulled over, NEVER answer any of their questions at all. NO ONE, EXCEPT ANOTHER COP, HAS EVER TALKED THEIR WAY OUT OF A DUI. This is because the police are incentivized to make a DUI arrest and get a DUI conviction. EVERYTHING you say can and will be twisted, misquoted and then used against you in court. Beyond that, if you are talking, the cop will copy/paste the following line into his police report: "Mr/Ms ____'s speech was audibly slurred and when s/he spoke I detected a strong odor which, based on my training and experience, I determined to be an alcoholic beverage."

If you feel uncomfortable just being silent with the police, you may say the following, or, better yet, hand them the following written statement: "Officer, I am not driving under the influence, but I know my rights and I have been advised to not make any statements or take any tests unless I am arrested."

. . . which leads us to the next important area:

UNLESS YOU ARE ARRESTED, YOU DO NOT HAVE TO TAKE ANY TESTS AT ALL. This means neither a breath test or a filed sobriety test (aka "stupid human tricks").

Moreover, a police officer needs probable cause to arrest you. Your statements, your breath sample, and your filed sobriety tests are all ways for the officer to formulate probable cause. If you give them NONE of these, then it is much more likely that you will not be arrested at all. If you are arrested anyway, then it is much more likely that your attorney will be able to get your case dismissed based on a lack of probable cause.

The only exceptions to this are if you are currently on active DUI probation, in which case you are not permitted to refuse any tests or if you are under 21, in which case you must give a breath sample on a preliminary alcohol screening device. For everyone else, DO NOT TAKE ANY TESTS PRE-ARREST.

IF YOU ARE ARRESTED, all of the above rules apply except for one: under CA's "implied consent" law, you are obligated to provide a breath or blood sample if you are arrested for DUI. Failure to provide this will result in the revocation of your driving privilege for one year. Thus, in most situations, it is better to go ahead and give them the sample than to refuse. (There are extreme exceptions to this rule, such as if you have just been in a serious DUI-related accident wherein someone has been injured or killed, or already have multiple DUI convictions in the last 10 years, but in that case you should have already been advised by an attorney on what to do given various scenarios).

After you are released from custody, your best move is to then contact an experienced California DUI attorney, who, if you have followed the rules above, will give you a great chance at beating your DUI case. Do not forget about the 10 DAY RULE, which is that you have 10 days to contact DMV (or retain an attorney who will contact DMV for you) to fight the mandatory license suspension that accompanies a DUI arrest.

In what some might argue is a story epitomizing true meaning of the holiday season, the peace and holiday cheer of one Los Angeles suburb was shattered on Thanksgiving night by a crime of ruthless consumerism.

The backdrop is the idyllic San Fernando Valley hamlet of Porter Ranch. The place is Wal-Mart. Countdown to Black Friday. Pre-Midnight-Madness holiday specials. The smiley-face logo is now sporting a Santa Claus hat, and is plastered throughout the store, wherever a particularly-shocking "price rollback" is occurring on palates of products being freshly moved from the back of the warehouse to the retail floor. Crowds gather where the palates come to rest, eager consumers jockeying for position as employees peel off the layers of Chinese shrink-wrap, releasing the smell of fresh electronics.

Last night, a problem arose when the shoppers spotted employees wheeling out a large palate, with the Smiley-Faced mascot sign already identifying the contents and the impossibly low price the retailer was asking for . . . Xboxes. Word spread through the crowd so rapidly there was an audible murmur as shoppers learned, processed and let out a collective and involuntary sound, which was part joy, part shock, but quickly transformed into a steely-eyed focus on what must be done next.

From the ceiling-mounted security camera, the two employees and their large palate formed a island surrounded by the heads of scores of customers, who would yield to the motion of the palate slowly and reluctantly at the urging of the employee in front.

Finally, the employees, frustrated by and somewhat scared by the crowd of consumers, looked at each other and, though twenty-five feet short of their planned destination, stopped the palate, removed utility knives from the front pocket of their ALWAYS low prices aprons, and began cutting through the shrink wrap and second layer of cushion wrap underneath. Now the crowd started pushing forward, as individuals began committing minor, tolerable misdemeanors upon each other in order to ensure that they would be ultimately walking away with what one of what-might-be-less-than-the-total-number-of-people-surrounding-the-palate, Xboxes.

It was when the employees removed the first layer of shrink-wrap and cushioning only to find, to their own frustration along with that of their crowd of spectators, that there was yet another layer of shrink-wrap, this one containing a large amount of what struck them as excessive, superfluous cushioning, that the crowd -- perhaps in a collective, unconscious calculation (or was it primordial, "brain-stem recognition?") that the palate now contained much more shipping material and far fewer Xboxes than their previous estimate and, with the stakes now raised, their previous positions would have to be adjusted correspondingly -- surged forward. The employees, recognizing that the efficiency of their utility knives had been suddenly surpassed by the frightening effectiveness of a thousand consumer claws tearing at the Chinese packing materials, retreated quickly away from what was now a 400 square foot field of chaos. Incidents of increasingly severe degrees of California Penal Code sections 240-245 were now occurring: holding, grabbing, pushing, hooking, interference, and, now transforming a fun game of full-contact shopping into a police investigation, pepper spray.

A positionally-disadvantaged woman produced a canister of the caustic concoction and released it on her fellow patrons, clearing her path to the palate of gaming consoles.

Reports are that the woman walked away with an Xbox. Since none were reported stolen, it is presumed that she proceeded to the registers and paid for it. It is now up to police to review the store security video and see if the woman's identity can be determined. If so, Los Angeles County Prosecutors will likely charge her with felony assault, felony battery, and other pepper-spray-specific violations for each of the individuals affected by her chemical warfare.

If the identity of this pepper-spraying mother of an Xbox fan can be determined, she will need a good lawyer for her holidays to be happy.

In a reversal of its previously announced policy, the Obama Justice Department recently fired the first shots in what will likely end up a war on California's medical marijuana law, the Compassionate Use Act.

Supporters and detractors of the Compassionate Use Act must both admit that one thing it has NOT resulted in is an increase in violent crime. However, by re-implementing Prohibition, the U.S. Federal government is making California a literal battleground for law enforcement to fight it out with those suppliers who will step in to replace the businesspeople who currently supply California with cannabis, and who the Feds are now forcing out of the market.

Regardless of the legality of cannabis under whatever law/policy of the moment the government is trying to pursue, the market for the substance will remain strong. This is similar to the market for alcohol prior to Prohibition going into effect in 1920. In California, cannabis became legal for medical use in 1996, and has since grown in legality to the point where now anyone over 18 who wants to consume cannabis can do so legally. This has been due to a number of factors, including the usage patterns of cannabis consumers, which point to cannabis being used in ways less similar to recreational drugs and more similar to medicine. Combine that with the fact that the active ingredient in cannabis, THC, is essentially a harmless substance to the physical structure of the human body and brain (though the debate about the harmlessness of some of the cannabis delivery systems, e.g., smoking, and whether the substance causes collateral nonphysical harm continues), and physicians have realized that their potential liability for recommending cannabis to patients is extremely low. As a result, physicians have become increasingly willing to write recommendations for individuals who may appear "healthy" to detractors of the Compassionate Use Act.

The bottom line is that where a large market exists, economic principles dictate that supply will follow, whether legal or illegal. If legal, then the supplying is done in the open, and subjected to government regulation and taxation. If illegal, it is done by clandestine means, and the money that would be captured by the government through taxation will instead be captured by the suppliers of the product. Whether sacrificing this tax revenue for what is viewed as the greater good of making it more difficult/expensive to obtain THC is a value judgment that is made every time the government makes (or keeps) any product illegal.

In other words, in a Prohibition situation, the government has to choose between allowing the free market to supply and consume THC, or to expend revenue on artificially raising the price on the product, for the purpose of pricing certain users out of the market and/or acquiescing revenue to special interest groups such as law enforcement or pharmaceutical companies who have a financial interest in making THC illegal.

Much of the Mexican drug cartel problem is attributed to corruption in the Mexican government that allows it to happen. As this violence spreads north because of the United States' newly-announced policy of Prohibition, it should be clear that its advance is also attributable to government: in this case the American government allowing it to happen. For America, it is not hidden corruption, but it is a value judgment that is inherent in the publicly announced Prohibition policy. For our Federal government, and the millions of lobbying dollars at stake, the few hundred more dead children, dead parents, dead cops and destroyed families, are a price worth paying to ensure that it is more difficult for Californians to get their hands on a substance that, by any objective standard, is less harmful than alcohol.

On October 18, Jackeline Lopez will appear in court to answer charges related to her practice of witchcraft. This court appearance is not in Salem, Massachusetts, but in L.A.'s own Antelope Valley, at the Michael D. Antonovich Courthouse in Lancaster. Ask any L.A. resident to guess which section of the county a witchcraft-related charge comes from, and the Antelope Valley would probably be their first guess -- or certainly in their top three -- but this case is not your typical Lancaster Witch Trial. Instead, the accusation is that Lopez posed as a witch for the purpose of extorting $10,000 in jewelry.

According to the L.A. County Sheriff, the crime began in August, when a 12-year-old girl started hanging out with a new friend from school along with that new friend's mother, Lopez, who is a self-proclaimed psychic. Lopez's garage, Sheriffs say, was "decorated" with candles, replicas of human skulls, cauldrons, and other staples of witchcraft décor, though there was no mention of broomsticks, cobweb-draped candelabra, or black housecats.

Sheriffs allege that Lopez schemed to have her daughter's new 12 year-old friend steal jewelry from her own family, by telling her the jewelry was necessary for a ritual that would lift a curse from the 12-year-old's family. When the curse could not be lifted by placing the jewelry in one of the cauldrons and chanting the de-cursing spell, Lopez allegedly told the girl more jewelry was needed. Though they did not state this, it is presumed that the Sheriffs are alleging that the 12 year-old's family was not actually cursed, and that the jewelry was not in fact necessary to lift the curse.

In other words, Lopez could defend these charges by claiming to be an actual witch.

How that defense might be proven is a matter for Lopez and her attorney to figure out, but one pictures a courtroom scene in which the Judge's gavel suddenly starts banging by itself, or the lights in the courtroom suddenly turn into rapid-fire strobes when one of the cops is testifying. Then, at the close of evidence, there is power failure and when the lights return, the Judge is shocked when he looks down to see he is now wearing the courtroom Sheriff Deputy's uniform, and the court reporter is wearing the Judge's black robe. Everyone's eyes then turn to the Deputy, who blushes when he realizes he's now sporting the court reporter's miniskirt.

Or something like that.

It would seem that this case is a perfect analogue to the psychics who advertise on TV and charge money to communicate with the dead or, in other cases, simply charge an appearance fee to go on "Dr. Phil" and field questions from a mesmerized audience. These sorts of psychics are never prosecuted, which will be essential for the defense to point out. If handled correctly, this could force the prosecution into the difficult position of drawing the distinction between Lopez and these "pop-psychics" who are allowed to run rampant in our culture.

Or perhaps the case will never go to trial because the prosecution will agree to a plea bargain in which Lopez gets probation . . . in return for her promise to lift the curse from the whole Antelope Valley itself.

In 1994, Felipe Gonzalez Angeles knocked on the door of an apartment/brothel in South Los Angeles, and before the door opened he was robbed outside by two men who ended up shooting and killing him. The key witness in the case was John Jones, who called himself the "apartment manager," but who was actually the pimp. Jones testified that he saw the shooting and picked Obie Anthony and Reggie Cole out of a lineup, identifying them as the two armed robbers.

Anthony, from the beginning, has maintained his innocence, insisting that he wasn't at the scene of the crime. Approximately two years ago, Jones admitted "although I told police and testified at trial that I had seen two of the men well enough to positively identify them, I never clearly focused on their faces, but primarily saw them running away."

Despite this admission by their sole identifying witness, lead LAPD detective Marcella Winn insisted, "this guy did this murder, and there's no doubt in my mind," she said. She went on to say "it was a good case [then], and it's a good case now." The Deputy District Attorney who prosecuted the case echoed these sentiments after finding out that Jones admitted lying to the jury.

Sound familiar? A similar case out of Georgia has gotten a lot of press lately, wherein seven of nine identifying witnesses later recanted their testimony, and the other two were shown to be unreliable. Nonetheless, there too the police and prosecutors insisted that they were sure they had convicted the right guy. The difference is the defendant in that case, Troy Davis, was recently put to death by the State of Georgia.

In Los Angeles on Friday, however, Judge Kelvin Filer ordered that Anthony be released from prison on the grounds that the identification witness recanted his testimony and that, additionally, the jury was not told about the leniency he was given by the prosecution in the sentence on his resulting pimping charges. This, despite the resistance from the prosecution, who have even gone so far as to say they may re-try Anthony for the murder. Responding to the assertion that the jury had not been told about the leniency promised to Jones, the prosecutor explained that the jury had not been mislead, since "this was not a deal in exchange for testimony . . . [i]t was simply a thank-you for cooperating with the LAPD in a homicide investigation."

All of this raises the question of why the prosecution so often clings to their guilty verdicts even when it is later shown that the evidence presented to the jury who rendered that guilty verdict - the same evidence the prosecution themselves relied upon in formulating their belief in the defendant's guilt - is flawed, faulty, or outright recanted? Perhaps it is a deep-seated recognition that they never really know whether the people they are prosecuting are, in truth, guilty, and facing that fact would cause a cognitive dissonance that would call into question their purpose as lawyers, or their image of themselves as the force of good.

Whatever the reason, thankfully Obie Anthony is still alive to walk out of those prison doors when a judge had the guts to right an old injustice.

The Los Angeles Times recently reported on jury selection in the Dr. Conrad Murray case, the doctor that prosecutors are holding responsible for the death of 1980s pop star Michael Jackson. Murray is accused of manslaughter for providing Jackson with the sleep-related medications that he demanded.

Jury selection is one of the most important, yet least understood aspects of the jury trial process. Jury selection, aka "voir dire" (rough translation from Old English etymology "to say what is true"), is rarely depicted in television and movie legal dramas, possibly because it is not as sexy as, say, closing arguments or cross examination of witnesses who way-too-conveniently break down and reveal the real killer to a shocked courtroom. But even in this latter case of a witness breaking down and revealing the truth, if the defense has not succeeded in jury selection, the client may still be convicted. Some say that jury selection is the most important aspect of trial -- and when a crazy person somehow eludes the scrutiny of both sides and makes it onto the jury it retrospectively may be -- but, typically, jury selection is like the punt coverage team in football: it can't win you the game, but it can certainly lose you the game.

Jury selection begins with the judge ordering a pool of jurors to the courtroom. Depending on the expected length of the trial, the judge may order approximately 50 jurors for a simple case or around 200 jurors for a lengthy, complex trial. Jurors who will experience severe hardship by serving on the jury are then excused. The remaining jurors are then questioned by the judge to determine if they would be a fair and impartial juror, given their background, biases, etc. Those who are clearly biased toward one side or the other are then excused "for cause," although this only happens in an extreme case, where a juror says something like "I don't believe in judging anyone" or "I don't believe anyone but police officers."

Once the judge is done questioning the jurors, the attorneys for both the prosecution and the defense have their turn to question the potential jury panel. Each side can dismiss 10 potential jurors from the jury without stating a reason why, but only 10, thus these decisions must be made with extreme care. From a defense attorney's perspective, this questioning process is a high art. A good defense attorney is thinking not only about the biases and motives of each person, but also trying to determine, once all the evidence is heard and the panel retires to the jury room, how each individual on the jury will interact with the rest of the group, whether they are a leader who will think for themselves and stand up for their beliefs, or whether they are more of a sheep, who will be easily persuaded by the leaders in the room and go with the rest of the group despite any internal misgivings about the resulting groupthink. Because of the volume of information that must be simultaneously considered to make these decisions, an attorney must rely on instincts about people, experience both in and out of the courtroom, along with more scientific formulas about people, demographics, and profiling of every kind: racial, gender, religious, etc.

In the Dr. Murray case, the defense was reported to have asked the jury questions such as "what do you think of Michael Jackson?" and "do you think he was so childlike that he was incapable of making decisions?" to uncover any potential biases against in the jurors against the defense's anticipated arguments.

Interestingly and revealingly, the prosecutor queried "could you find a driver who runs a red light guilty of killing a pedestrian if that pedestrian was also not being safe because he stepped out in front of the car?" We should expect the prosecution's theory in the Conrad Murray case to mirror this logic.

An interesting application of the "felony murder" rule is taking shape after a San Juan Capistrano attempted armed robbery of a jewelry store. Four men suspected in a botched San Juan Capistrano jewelry heist were arraigned Friday on attempted robbery and felony murder charges. Alan Keith Hunter, 39 of Moreno Valley; George Anthony Boozer, 36 of Apple Valley; James Stephan Paschall, 41, and Eddie Allen Clark Jr., 27, both of Gardena, were each being held in lieu of $1-million bail in connection with the June 24 holdup attempt.

The interesting thing about this situation is that no one at the jewelry store was killed, and none of the perpetrators had anything to do with causing the deaths. Instead, the dead men were shot by jewelry store employees during the attempted robbery.

The story has been reported as occurring when Robert Avery entered Monaco Jewelers with co-perpetrator Desmond Brown. Avery is alleged to have grabbed the store manager and pointed a gun at him. At that point the owner of the store entered the scene, with a gun, with which he immediately shot Avery and then Brown as Brown allegedly ran towards him. Avery and Brown died at the scene. Clark entered the store with Brown but immediately fled after Brown was shot. Hunter and Boozer are alleged to have been the "lookouts," while Paschall was alleged to have been the getaway driver. If true, the crimes committed by Paschall (accomplice to robbery as the "wheel man"), Boozer (accomplice as lookout), Hunter (accomplice as lookout), and Clark (accomplice as co-robber), would all normally be able to be prosecuted as if they were the perpetrator, as advancing the crime of the perpetrator in California is prosecutable under the same laws as being a perpetrator. And it is for this reason, that because of what the perpetrators did, i.e. armed robbery, all of the lookouts, wheelmen, and other accomplices who were aware of what the perpetrators were going to do and helped them do it, that all of the accomplices can be charged with felonies. And since, if someone dies while you are committing a felony (and the death is related to the crime you are committing) you can be charged with murder. This means that all of the accomplishes can be charged with murder, even though it was the principal perpetrators themselves who died.

The policy behind the felony murder rule is obvious. The law intends to discourage people from committing felonies or helping people commit felonies by making them pay a heavy price for the consequences of their actions. However, even in the modern criminal justice system, in which defendants have fewer and fewer rights, there still exists justice to the extent that if a law seems unjust, it probably is, and thus there's probably a way to achieve justice for a person if you hire a good criminal defense attorney.

In a case such as the OC jewelry store robbery, the defendant should argue that they weren't the "principal" in the matter, and that they didn't know what the perpetrators were going to do or why they asked to be dropped off. Whether this is effective is dependent upon the skill of their attorneys in putting the distance between their client and the perpetrators, including an argument that they had no idea the perpetrators either had guns or were planning on robbing the jewelry store. This is always a difficult assertion to make, and it will need to be backed with other evidence, which could consist of the testimony from other witnesses that no one had any idea that Mr. __was carrying a gun, and/or that all 3 men who exited the car said they were running into the mall to by something. Whether it works or not, in the presence of a jury who wants revenge, is another question altogether.

The L.A. Times recently featured an article on the renewed debate over the "Three Strikes Law," documenting a recent case a person was sent to prison for life for committing petty theft.

Scott Andrew Hove was arrested on November 15, 2009 for petty theft after concealing in his jacket approximately $20 worth of wire and gloves used for his welding business and walking out of a Lake Elsinore Home Depot store. He was charged under the Three-Strikes Law, convicted at trial, and, on August 19, sentenced to life in prison by Riverside County Judge Albert Wojcik.

The "three strikes law" in California is a topic of widespread misunderstanding, even amongst the most educated people. First, people assume that it applies only to violent crimes, as it wouldn't make any sense to put someone in prison for the rest of their lives for stealing beer on three different occasions when they were 19 years old. This is only partially true. In fact, it is entirely possible to have never committed a violent crime, but to be sentenced to life in prison under the three-strikes law for walking out of a gas station with one un-paid-for can of beer at age 19.

Part of the reason for the widespread misconceptions about the three-strikes law is because is was election-marketed as applying only to violent offenders, both in 1993 and again in 2006 when it was on the ballot for reform. This is one of the drawbacks of modern political discourse, especially in our direct-democracy dystopia of California. People, even educated people, tend to believe a reader's digest summary version of each political debate, having learned by experience to fully trust or believe no one. They hear both sides, they hear the extreme arguments, assume the truth lies somewhere in the middle, and what gets lost are the details, i.e., the actual truth of the details of a law which is then implemented and applied in a way that would surprise and anger the people who thought they supported it.

Here is the truth about the three-strikes law. The word "strikes" is not wholly a baseball metaphor, as it refers to certain crimes in the Penal Code that have been designated as "strikes." Crimes, like the ones you would expect, such as murder, rape, inflicting great bodily injury, child molestation, etc., are obviously strikes. For many of these, life sentences are already mandated, however, so they are not particularly relevant to the day-to-day application of the law, as there are very few convicted murderers who will ever have the chance to re-offend outside of prison walls.

But other crimes are also designated "strikes," such as spray-painting gang-related graffiti or making a verbal threat to someone. And the law is not a three-strikes law, it is a TWO strikes law. If a person commits an offense designated a "strike" on two different occasions after they turn 16, then any other crime they commit, regardless of whether it is a strike or not, allows them to be sentenced to life in prison under the three strikes law. This was the case with the aforementioned Mr. Hove, who was arrested, tried and convicted of stealing just that $20 worth of Home Depot merchandise, yet found himself sentenced to life in prison because of his prior record.

The three-strikes law does not take all discretion away from prosecutors and judges, however, meaning that had Mr. Hove been sentenced in San Francisco Superior Court, instead of in Riverside County Superior Court (a.k.a. the "Fourth Reich"), he would probably be, at this moment, free to repay his debt to Home Depot and continue his welding business instead of being provided for the rest of his life by the taxpayers of California with shelter, health care, food, etc. Nonetheless, this is how the Three-Strikes law is all-too-often used, and is arguably not at all what the California electorate thought they were voting for.

In the past week, two separate DUI-suspected drivers have rear-ended law enforcement vehicles in the Southern California area. First, in Bakersfield, a 23 year-old woman struck a CHP cruiser that was completing a traffic stop on another vehicle. The impact sent the CHP car into the car it had stopped.

Then, two nights later in Pacific Palisades, the two LA county Sheriff deputies were injured when a 44 year old man driving a BMW struck their car and sent it rolling down a 25 foot hill and into the ocean.

Although both drivers had the bad fortune to strike police vehicles, as with any DUI case, it's not as "open and shut" as they may appear.

In the Bakersfield incident, the driver was charged with both DUI and being under the influence of a controlled substance. Why both? Because the "substance" being alleged is not alcohol. This means that prosecutors will not be able to charge her with the "per se" DUI charge that is used in alcohol cases, i.e., driving with a blood alcohol count of .08 or higher. Instead she can only be charged with driving while impaired by an intoxicating substance.

Although it has not been revealed what substance the driver is being charged with, given the age, gender and location of this person, it is most likely methamphetamine. Specifically, she'll be charged with driving while "impaired," which is defined as "driving without the caution characteristic of a sober person." To fight this count, a good attorney will first point out that amphetamines are stimulants, meaning they might not "impair" someone for the purposes of driving at all. In fact, amphetamines were commonly given to American fighter pilots up to improve their ability to fly a plane, and are still in limited use today for that purpose.

Additionally, just because there was methamphetamine in her system, does not mean that the substance caused the accident. If prosecutors want to convict her of DUI with an accident/injuries, they must show that it was the substance that caused the driver to make the error that resulted in the collision. This might be defended by digging into the details of the accident investigation, and figuring out if the officers contributed to the accident in any way by parking in an area that was difficult to see, or slightly over the freeway fog line. The defense should also offer an alternative reasonable explanation about how the accident happened, such as that their client was texting and simply had a moment of inattention, as can happen to any driver regardless of intoxication.

In the Malibu case, similar defenses should be used. There, it appears that the driver tested above the legal limit for alcohol, but that does not necessarily make the driver guilty of causing the accident/injuries by being under the influence. Defense attorneys must take a meticulous approach to presenting the details of the accident reconstruction to assert this defense, as many jurors would be closed off to the fine-line distinctions that must be drawn to be successful with the "causation" defense, given the overall circumstances of a driver knocking a sheriff's car off of PCH and onto the beach, injuring officers in the process.

The defense attorney is always starting from a difficult position in court, and clients don't help their situations by crashing into police cars. But the bottom line in every criminal case is that the burden to prove the charges beyond a reasonable doubt is the prosecutor's burden, and therein lies opportunity for a motivated and creative defense attorney.

Many people don't realize that in America the police cannot simply block the road for the purpose of stopping and checking the sobriety of drivers. Believe it or not, this would be considered a constitutional rights violation, as some rights still rest in the hands of the people. Although in many ways we are progressively becoming more of a police state as we "voluntarily" give up small portions of our rights, little by little, we are not to the point where the government can barricade the roads on a whim for the purposes of law enforcement.

This doesn't mean the police have not TRIED to accomplish this. In fact they have, but the courts have restrained them, at the urging of good defense attorneys who have fought to protect the rights of both their clients and the general public. One such case was in a California Supreme Court case known as Ingersoll v. Palmer, in which the court ruled that DUI checkpoints are legal, but only if the police follow very strict guidelines. These guidelines include:

1) Decisions must be made at a Supervisory Level: As opposed to the whims of the officers in the field, only supervisory law enforcement personnel may make the decision to establish a sobriety checkpoint and select the site. This requirement is important to reduce the potential for arbitrary and random enforcement.

2) Limits on the Discretion of Field Officers: A neutral mathematical formula, such as every driver, or every third, fifth, or tenth driver should be used in determining who to stop at the roadblock. Again, this is an attempt to spare the general public from the whims of any individual officer attempting to stop whomever he/she feels like, under color of authority.

3) Maintenance of Safety Conditions: Primary consideration must be given to maintaining safety for motorists and officers. Things like adequate lighting, warning signs and signals and clearly identifiable official vehicles are required.

4) Reasonable Location: Again, our California Supreme Court was understandably concerned about giving too much discretion to officers in the field, and, instead, ruled that legal checkpoints must be planned in advance under policies set forth by supervisory personnel. To be legal, the sites chosen should be those which will be most effective in actually stopping drunk drivers, such as roads which have a high incidence of alcohol-related accidents and arrests.

5) Time and Duration: While there are no specific rules regarding time and duration of the roadblock, law enforcement officials are expected to exercise reasonable judgment in setting times and durations, with an eye to effectiveness of the operation and with the safety of motorists in mind.

6) Indications of Official Nature of Roadblock: The roadblock must be highly visible, with warning lights, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. This assures approaching motorists that the roadblock is authorized and legal.

7) Length and Nature of Detention of Motorists: Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication. If the driver does not display signs of impairment, he/she must be permitted to drive on without further delay. If the officer does observe signs of impairment, the driver may be directed to a separate area for a roadside sobriety test.

8) Advance Publicity: Advance publicity is important to the maintenance of a constitutional checkpoint. The Court's reasoning here is that advance notice limits intrusion upon the public's personal dignity and security because those stopped would anticipate and understand what was happening.

The CA Supreme Court also stated that motorists who want to avoid the checkpoint may not be stopped and detained merely because they attempted to avoid the roadblock. Of course, if the motorist commits a vehicle code violation or displays obvious signs of intoxication, then there is adequate reasonable suspicion to pull over that motorist, and of course officers will be watching those motorists carefully for any violations.

So thankfully, we still have the choice to avoid a government roadblock, be it in advance when planning our route or when we first notice that the road is being blocked ahead. In rulings such as the Ingersoll case and cases like it, required that advanced public disclosure of roadblocks is necessary for the roadblocks to be legal.

Thus, before you venture out for a night of social drinking, you should always remember a few things: 1. Use your common sense about whether your intoxication level is such that it's preventing you from safely driving (as a rule of thumb, use a BAC calculator and maintain the mental presence to keep track of what you're drinking); 2. Check internet resources such as the local police website or this blog for the latest information on time/location of checkpoints.

Here is a list of times/locations in Los Angeles to avoid this weekend and over the Labor Day holiday:

• Friday, August 26, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Manchester Avenue and Broadway in Southeast Area;

• Friday, August 26, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Figueroa Street and 9th Street in Central Area;

• Friday, August 26, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Sunset Boulevard and Hoover Street in Northeast Area;

• Saturday, August 27, 2011 - DUI Saturation Patrol from 6 p.m. to 2 a.m. in West Los Angeles Area.

• Friday, September 2, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Venice Boulevard and Fairfax Avenue in Wilshire Area;

• Friday, September 2, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Topanga Boulevard and Califa Street in Topanga Area;

• Saturday, September 3, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Venice Boulevard and Lincoln Boulevard in Pacific Area;

• Saturday, September 3, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Western Avenue and Slauson Avenue in 77th Street Area;

• Saturday, September 3, 2011 - Sobriety Checkpoint from 8 p.m. to 2 a.m. at Figueroa Street and 9th Street in Central Area; and,

• Sunday, September 4, 2011 - Sobriety Checkpoint from 3 p.m. to 9 p.m. at Harbor Boulevard and 1st Street in Harbor Area.

Enjoy your weekends, but stay safe, and if you or your friends need experienced legal representation to fight a DUI case, be sure to give us a call. When one of our clients is caught in a checkpoint, we use the Ingersoll case to put the checkpoint under the microscope and examine its legality with the goal of undercutting the State's case.

Louie Sanchez and Marvin Norwood were recently charged with the beating of Bryan Stow on opening day of the baseball season in the Dodger Stadium parking lot. Mr. Stow remains hospitalized today, but is reportedly showing signs of improvement after four months in and out of a coma.

There are defenses to crimes of assault, such as "self-defense," but given the evidence that Stow was hit in the back of the head initially, that one probably isn't going to fly. Leaving what appears to be two remaining defenses for the suspects: "the co-defendant did it," and "neither one of us did it."

"The co-defendant did it" is a risky defense in this situation, since it requires putting the client at the scene. Putting a client at or near the scene raises the possibility that the jury might have no sympathy or mercy for someone who was anywhere near such violence, or cause them to think "he must have had something to do with it." It also increases the possibility that the prosecution could prove "aiding and abetting," which means that even if one defendant perpetrated the crime, if the other defendant aided, facilitated, promoted, encouraged, or instigated in any way, he can be convicted of the full crime as if he were the perpetrator. Because of the obvious risks here, attorneys should not put their clients at the scene unless boxed in by the evidence to the point they would lose credibility with the jury by NOT doing so.

In the Bryan Stow case, however, the police themselves have paved the way for a very solid "neither of us did it" defense. They did this by attempting to poison the jury pool for the previous suspect they arrested for this crime, Giovanni Ramirez. On May 26, 2011, once Mr. Ramirez had been arrested for the Stow beating, LAPD Chief Charlie Beck stated that he was "absolutely" confident that police had the right suspect. In fact, he stated it even more specifically than that; "Absolutely . . . I am as sure as you need to be to make an arrest and pursue a prosecution."

If the Chief was that sure, then surely the detectives and investigating officers on the case were similarly sure. But police were later forced to release Mr. Ramirez based on a lack of evidence. Now that two other suspects are being held for the same crime, how much credibility does LAPD have in asserting they have the right people in custody? Are they sure? As sure as they "need to be?"

What happened here was the police were under pressure to make an arrest in a case that was receiving state and national news coverage. When they rushed to arrest Mr. Ramirez, they realized there were some serious holes in their case, so Mr. Beck went public to say he was "sure," in order to assure the community (and a future jury?) that trust us, there's no doubt we have the right guy. In doing so, they have laid the groundwork for a strong defense for the new suspects. A good defense attorney in this situation will take the police's case against Mr. Ramirez and use every reason, every piece of evidence, every public statement about being "sure" by the Chief and the other officers staffing the case, and use it to create doubt about their own client's guilt.

We hope the perpetrators of the crimes against Mr. Stow are taken off the streets, as there is no place in our society for that kind of brutality. But the public and jury that is ultimately assembled to hear the evidence against Mr. Sanchez and Mr. Norwood should approach this case starting from a position of doubt about their guilt, and with zero confidence that the police have arrested the right people