Criminal "Wobbler" Charges in California Revisited

On October 12, 2013, Governor Jerry Brown vetoed SB 649, which would have given California criminal prosecutors the option to charge criminal possession of heroin or cocaine as misdemeanor, and classify such charges as "wobblers."  Brown believed the timing of this bill was premature, because SB 105, which requires his office to "examine California's criminal justice system" in detail, including sentencing issues and procedures, had already been passed.  

SB 105 also includes the Governor's plan to deal with prison overcrowding.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today! 

Being Falsely Accused of Criminal Charges in California, Part IV: Are Eyewitness Identifications Really Reliable?

Last time, we looked at how significant it is for a jury when someone identifies a criminal defendant as the perpetrator of a crime during trial.  But how reliable is that eyewitness identification?

Innocence Projects and universities across the country have conducted studies to illustrate how unreliable eyewitness identifications can be. Many studies show mistaken identity is a major cause of the wrongful conviction of innocent people.   Scientific research also supports this.  For over 10 years, the use of PCR DNA procedures has become accepted in all United States courts.

According to the Northern California Innocence Project, for example, "Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in nearly 75% of convictions overturned through DNA testing."  In fact, psychologists such as Dr. Gary Wells, PhD, say that mistaken eyewitness identification has proved to be THE largest single factor contributing to the conviction of innocent people.  

Scientists and psychologists have warned against the dangers of allowing a criminal conviction based upon eyewitness identifications alone, unsupported by any other evidence. In November 2007, California even placed initiatives on the state election ballot to try to reform eyewitness identification procedures in jury trials. However, this ballot proposal was defeated.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today! 

Being Falsely Accused of Criminal Charges in California, Part III: Mistaken Identity

Anyone who has watched "Perry Mason," "Matlock," or "The Practice" has seen that crucial moment  during a criminal trial where the cunning prosecutor asks a witness the fateful question, 

"Do you see the person who shot Mr. X here in the courtroom?" 

The witness then ALWAYS points to the criminal defendant, saying. "He is sitting right there!" By the time the TV show ends, the skillful defense attorney inevitably proves that statement wrong, usually in an equally dramatic courtroom confession by the real killer. Of course, this seldom plays out like this in a real-life courtroom...

In reality, a jury will almost always consider the fact that the witness identifies the defendant as the person who committed a serious crime as the most important piece of evidence in the trial.       

A skilled defense attorney will try to undermine the witness's by showing how it's physically impossible for the defendant to be the correct person, or reveal other credibility issues that the witness has.   

A defense attorney may also use a psychologist as an expert witness to explain how people's minds can play tricks on them in times of unusual stress.  As a result, they believe they can identify a person that they did not even see at the time of the crime. Yet the eyewitness identification of the defendant as the person who committed the crime is a very difficult piece of evidence to overcome.

Take the case of Johnny Williams,  for example.  In 1998, a 9-year-old girl was sexually assaulted by someone who allegedly called himself "Johnny."  When someone in Williams' neighborhood heard the crime was done by someone named "Johnny," he or she assumed it was Williams, and told police.   During trial, the girl later identified him as the attacker. Williams ended up being convicted and spent 14 years in prison.

The Northern California Innocence Project later got the girls clothing retested.  Williams' DNA did not match what was found on the girl's clothing. In March 2013, Alameda County prosecutors determined Williams was not guilty.

If your Santa Clara County criminal case involves an erroneous eyewitness identification, get an attorney that can thoroughly investigate as soon as possible. A skilled attorney will be able to bring out the real facts and fight against mistaken eyewitness identification both in and outside the courtroom.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today! 

Being Falsely Accused of Criminal Charges in California, Part II: Jury Selection

As we saw last time, bias towards one side can potentially lead to the conviction of someone falsely accused of a crime.  Jury selection in a trial involving false accusations is therefore crucial.

A good defense attorney will look for potential jurors that can use their own experience and thoughts about the trial, who will truly do what the law requires—make the prosecution prove its case— and only look to the judge for guidance. 

This is especially important in a jury trial for the sort of crime that causes great anger in the mind of the average citizen, such as crimes of violence against children or the elderly, or any sort of sex crime. These types of criminal accusations make it particularly tough for criminal defense attorneys in Santa Clara County, because of aggressive prosecution by the District Attorney's Office.

A person facing false accusations that wants to exercise their constitutional right to a jury trial often has a difficult time finding a truly unbiased jury, wherever they go - whether in in Santa Clara County, in another California county, or, in fact, in most areas of the United States. 

A good criminal defense attorney fighting false accusations - whether in Santa Clara County or anywhere else - needs to thoroughly research and investigate the case.  He or she will need to:

• Get all of the police reports; 
• Make a complete witness list, based on what you tell them, and who is mentioned in the police reports and other documentation; 
• Get access to all physical evidence; and,
• Obtain enough funding to do their own investigation, and hire any necessary experts. 

The Santa Clara County District Attorney's Office is the largest law firm in the county. It is extremely well-funded and has the support of all the police agencies in the county:

• The Santa Clara County Sheriff's Office;
• The San Jose Police Department;
• The Palo Alto Police Department;
• The Sunnyvale Police Department;
• The Santa Clara Police Department;
• The Cupertino Police Department;
• The Campbell Police Department;
• The Los Gatos Police Department;
• The Morgan Hill Police Department; and,
• The Gilroy Police Department. 

The criminal defense attorney nevertheless has the advantage of knowing the details of your case more intimately than the Santa Clara County District Attorney's Office will. With thorough investigation, and an experienced criminal defense lawyer, a person who has been falsely accused of a crime can obtain a fair trial, even in a pro-law enforcement county that prides itself as one of the safest large cities in the nation.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today! 

Being Falsely Accused of Criminal Charges in California, Part I: Potential Juror Bias

All California residents over 18 with U.S. citizenship are eligible for jury duty.

People who receive a summons for jury duty sometimes ignore it. Or, people may change their address – who are poor, homeless, or have big problems of their own – and not receive a jury summons. Sometimes, a jury summons is the least of their worries, such as being a single parent and holding down a job. 

But as disrupting as it may seem to our daily lives, it is a crucial part of the court process.  Unfortunately, the frustration that people feel could translate into a bias against one side or the other. 

\Another issue that can happen is that those citizens who do respond to their summons and ultimately end up on a jury are not always “in touch” with the problems of the people who end up on trial.

The Santa Clara County District Attorney’s Office is known for – and proud of – its reputation for being very aggressive in criminal prosecutions. After all, people do not want to live in a world full of crime. Most jurors view the DA prosecuting the case as the guardian of their safety.  Those same jurors tend to think of the defense attorney as a necessary evil at best. After all, it would be a bad member of society who thinks that people who steal, rape, and rob people are just fine and ought to go unpunished.

When placed in the setting of a jury trial, the average citizen tends to look to the prosecutor as the protector of their rights. This usually translates into a pro-prosecution bias, and makes it hard for someone who is falsely accused to get a fair trial.

Next time, we’ll look at the importance of jury selection for someone that has been falsely accused of a crime in Santa Clara County.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today! 

The Effect of Gastroesophageal Reflux Disease on a DUI Arrest

When you are arrested for a DUI, California's "Implied Consent" law applies. Vehicle Code section 23612 says if you are lawfully arrested, you may be subject to either a blood test or a breath test for the officer to determine your blood alcohol content ("BAC") level.  The officer(s) will administer a breath test using a device called an "intoxilizer."  

Breath tests are based on a presumed blood/breath ratio, which could be affected by outside factors. For example, some people suffer from Gastroesophageal Reflux Disease (GERD), a form of chronic heartburn. People with GERD cannot properly digest food, and often a lot of burping/belching occurs. This may cause a higher BAC result on the intoxylizer, because the machine can register gases coming up from the stomach in addition to the lung air it is designed to measure. 

If you have chronic heartburn, and an officer suspects you are driving under the influence of drugs and alcohol, your true BAC level may be less than what the intoxylizer registers. A lawyer that prepares a  GERD DUI defense may involve both your doctor and an expert witness to explain your condition and its effects on your blood alcohol content to the jury.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today! 

Criminal "Wobbler" Charges in California, Part II

California legislators recently passed SB 649, which is now waiting for Governor Brown’s signature.  If signed into law, possession of almost all common illegal street drugs will become “wobblers,” which the prosecutor can charge as either alternative felonies or misdemeanors.  That also means that people who successfully complete probation can get felony drug convictions for personal use reduced to misdemeanors for record clearance purposes.

 It’s unclear whether SB 649 would apply to people who have been convicted of possession of a small amount of cocaine or heroin in the past.  If it does, those people would also be able to apply for reduction to misdemeanor.  Right now, it’s too soon to know whether the statute will be interpreted retroactively for persons already convicted, but I believe there is a valid argument for an equal protection under the law.

It seems logical that possession of very small amounts of all street drugs should be treated the same, and that is what SB649 proposes. Historically, any drug possession was a felony, assuming the drug was illegal, listed in the Drug Schedules in the Health and Safety Code.  Possession of marijuana was a felony before 1972.  Now marijuana possession of less than one ounce is an infraction, punishable by only a fine, while larger amounts not possessed for sale, and not concentrated cannabis or “hashish” are misdemeanors.  With a valid medical marijuana card, possession of marijuana is legal in California for medical use, and federal authorities are no longer prosecuting small amounts.  Most people believe that much of the United States will follow the lead of Washington and Colorado, legalizing possession of small amounts or marijuana for recreational use.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today! 

Criminal "Wobbler" Charges in California, Part I

California law allows prosecutors to decide whether to charge certain offenses as either alternative felonies or misdemeanors.  Because they can be charged either way, these charges are commonly called “wobblers,” including simple possession of certain drugs such as:

• Methamphetamine;
• MDMA (ecstasy);
• PCP; and,
• Certain hallucinogens.

 Not all drug charges are considered “wobblers.”  Charges for simple possession for personal use of other drugs such as cocaine, crack cocaine, heroin, and opiates are “non-alternative felonies.”

Classifying charges in this way has created a real disparity in punishment.  It has also complicated later attempts to clear a criminal record of drug charges, depending on which substance was used. A person accused of using methamphetamine, for example, may be charged with a misdemeanor instead of a felony—or could later get the charge reduced from a felony to a misdemeanor after successfully completing probation.  On the other hand, if the same person was caught with cocaine – no matter how small the amount – it’s charged as – and would always be considered a felony, even if he or she completes probation.

Next time, we will discuss pending legislation regarding "wobblers" in California and it's effect on the current law.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

DUI Arrests and Blood Tests

When law enforcement stops a California driver for allegedly driving under the influence (DUI), the officer has the option of making the driver submit to either a blood test or a breath test.  California Vehicle Code Section 23612 (a), regarding blood tests for DUI, is based on the belief that by using public roadways, a driver that is legally detained for a suspected DUI gives IMPLIED consent to a blood or breath test.  The California DMV  can also issue fines and suspend someone’s license for a year if they refuse consent.

BUT exceptions to that law exist. 

The U.S. Supreme Court decided the case that detailed one of the first exceptions to DUI law nearly 40 years ago.  In Schmerber vs. California, the Court found that the extreme police brutality by the officers that arrested and obtained the defendant’s blood made the blood draw illegal.  California DUI case law has usually said that unless the case shows extreme circumstances, like those described  in Schmerber, the blood must be taken in a “medically reasonable” manner.

In April of this year, the U.S. Supreme Court sided with a driver who refused a blood test in McNeely vs.Missouri. In that matter, the Court said officers could only do a forced blood draw on a driver for a felony DUI. 

A driver accused of a misdemeanor DUI does not have to submit to a blood test unless the officer either obtains a search warrant or “exigent circumstances” exist in the situation. “Exigent circumstances” are urgent or emergency circumstances that would make it impossible for the officers to obtain a warrant, because evidence of the crime would be gone by the time the warrant is issued. 

Otherwise, the Court held, forcing a driver to submit to a blood draw in a misdemeanor case will result in a violation of the person's rights against unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution and (in California) Article 1, Section 13 of the California Constitution.

Since alcohol slowly dissipates and is metabolized in the body over the passage of time, the McNeely decision went beyond the current practices of police in arresting someone for DUI and obtaining a blood or breath sample with or without their permission or consent.

In July 2013, the California Supreme Court decided a related issue.  The Court decided People v. Cuevas, which looked at 7 separate cases from Alameda County where officers obtained blood samples from drivers after DUI arrests.  The issue in Cuevas was whether the blood was taken in a “medically reasonable manner,” as defined by Schmerber.  Some of the blood tests done after the defendants were arrested were not taken in a hospital and officers were not aware of the qualifications of the persons who took blood from the defendants.  The Cuevas court did not mention the McNeely decision, but decided that under Schmerber, the blood tests were performed in a medically reasonable fashion. The arrested drivers did not complain of pain, the needles appeared to come from apparently sterile packaging, etc.

Most people arrested for a first-time DUI are generally law-abiding citizens, and they don’t understand the procedures involved.  In fact, the person arrested often asks the officer whether the officer thinks they should take a blood test or a breath test!  In close cases, the officers seem to encourage blood tests when asked, because blood is believed to be more reliable. 

HOWEVER, a local Santa Clara County lawyer recently checked into whether the preservative used in the blood vials to retain the alcohol content was expired.  He found that the preservative used in several blood draws was indeed expired.  Unfortunately, the California courts have not published any cases resulting from that issue.

The lesson from these incidents is clear:  When you agree to a blood test - especially if an officer has you take a blood test against your will – consult an attorney as soon as possible.  It does not matter whether the results of the DUI blood or breath test are over the legal limit.  A lawyer can arrange to have a professional retest your blood sample, check the levels and expiration dates of preservatives used, and, in a case when the police used force, the McNeely decision may affect your DUI case differently than it would have before that date.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

Sleep-Deprivation Leads to Santa Clara County Vehicular Manslaughter Charges

Nine months ago, a Palo Alto man was driving home with his four children after an all-night shopping spree for Black Friday 2012.  Tragically, the man dozed off behind the wheel, hit a CHP cruiser that was parked on the shoulder, and flipped over.  Tragically, two of his daughters were killed.  On August 22, 2013, the Santa Clara County District Attorney’s Office filed charges against the man stemming from his daughters’ deaths pursuant to Penal Code section 192(c) (Vehicular Manslaughter).     

California Penal Code section 192 defines three kinds of manslaughter:

1. Voluntary [Penal Code Section 192(a)] – People have a sudden quarrel or exhibit Heat of Passion;
2. Involuntary [Penal Code Section 192(b)] – Committing a misdemeanor or even a lawful act which might produce death, in an unlawful manner or with gross negligence.
3. Vehicular [Penal Code Section 192(c)] – Vehicular manslaughter can be charged when a driver commits a misdemeanor that results in death but without gross negligence. Or the driver is performing a lawful act  - without gross negligence – that could produce death.

If a driver is going at an extreme speed for current conditions, and is determined to be putting others on the road at risk, the District Attorney’s Office could charge a vehicular manslaughter with gross negligence.  Gross negligence in a vehicular manslaughter case occurs when the driver's actions show a reckless disregard for the safety of others around him.

The prosecutor for the “Black Friday” case theory charged vehicular manslaughter with gross negligence because the sleep-deprived driver fell asleep at the wheel while returning from the “open-all-night” or 4AM opening for Black Friday shopping on the day after Thanksgiving. 

Black Friday has been a boon for retailers to kick off the Holiday shopping season.  It’s even considered something that bored families who have come together for Thanksgiving holiday may do together.  Proving a “sleep-deprived” theory is difficult for the District Attorney’s Office, since ultimately it must show the driver committed an act that might produce death.  

Many students and workers drive while sleep-deprived.  While doing so is unquestionably dangerous, charging a father with vehicular manslaughter – who has already lost two of his children in a tragic accident – is extreme. 

This incident is tragic for everyone.  However, Penal Code section 192(c) requires the driver’s conduct to be an act which “might produce death”.  Driving a car MIGHT produce death in MANY circumstances.  There are many tragedies involving careful drivers who have been involved in tragic accidents. 

As written, Penal Code section 192(c) gives prosecutors broad discretion in charging vehicle-involved manslaughters.  However, sometimes an accident – no matter how tragic — is a horrible combination of circumstances which would not have occurred if you remove any single cause.  I think the decision to add to the tragedy of this father by criminal charges for sleep-deprived driving is regrettable.  Perhaps the jury will do the right thing.

If you or someone you know is accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

New Law—Californians will no longer get arrested for seeking help for an illegal drug overdose

The California legislature recently passed California Health and Safety Code section 11376.5, effective on January 1, 2013. Before that date, a person who called the hospital after an overdose of illegal drugs might have found themselves in jail assuming the emergency room revived them. Here in California, the police, the paramedics or both will respond when a person calls 911.

I actually remember hearing about a person who had attempted suicide, then changed his/her mind and called 911.  He or she was revived and then arrested for being under the influence of controlled substances!  California’s Health and Safety Code also previously stated that a person arriving at the hospital with drugs in his or her system (and possibly in his pocket) could be subject to arrest after being treated.

Apparently having police and paramedics respond together  is considered a humanitarian response to drug-overdosed patients being dropped off at the hospital by friends who had also taken drugs and did not want to stick around and potentially be arrested. When a patient is simply dropped off, hospital personnel lose valuable time trying to determine exactly what caused the often-unconscious patient’s status.  When the friends inform the hospital that this guy just keeled over after he snorted heroin and cocaine for 8 hours, the doctors can address the drugs that could kill the patient instead of running up blind alleys

This code section applies to the person who has overdosed, or the people who bring that person in for care. It is limited only to being under the influence of drugs, or simple possession of drugs.  Mot to more serious crimes such as drug sales, or attempted murder by drugs are obviously not included in this section!

If you or someone you know have been accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

New Changes to California Criminal Laws Regarding Registration as a Sex Offender

For the last 18 years, the sections in the California Penal Code that deal with sex offenders have added more and more registration requirements. Law that used to be a single paragraph in one section of the Penal Code now exists in multiple penal code sections (California Penal Code Sections 290-294). In total, these penal code sections span about 10 pages, single-spaced, 8 pt type!

 For example, in 2013, California Penal Code 290.015 now requires registered sex offenders to provide the California Department of Justice all “internet identifiers” within 24 hours of a change, such as E-mail addresses, ISP addresses and user names. This is in addition to the usual requirements of notifying the State when the person moves, changes jobs, registers a new vehicle, etc.

Does this mean that the registered sex offender must also provide the state Department of Justice with his or her password? This law also requires a registered sex offender to disclose employment information. If that is the ultimate result, it could result in problems with employers who do not want their proprietary e-mail information disclosed.

While that may sound good to most people, one must remember that in California, many people are cast into the Megan’s Law net. For example, a person may be considered a sex offender in California if he or she sent “harmful matter” (such as “sexting” as defined by California Penal Code section 288.2) to a minor when the offender was barely over 18 himself!

It may simply be that the state of California does not want registered sex offenders using the internet at all!

If you or someone you know have been accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!