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!