Orange County Criminal Attorney Blog

Although it is not unheard of for police officers to be arrested for driving under the influence, it is uncommon for them to be arrested for driving under the influence while on duty. It is reported Florida State Trooper Lisa Orshowitz was taken into custody after she hit a curb and blew out the tire of her patrol car. It is alleged the trooper had slurred speech, bloodshot eyes, was uneasy on her feet and failed her sobriety tests.

Most of us understand police officers are human beings and, as such, make mistakes. There are many instances of police officers being arrested for DUI while off duty. This is more common nowadays because, even though there is still a "good old boy" mentality in many police departments, fewer officers are willing to let another officer walk for a number of reasons. First and foremost is the evolution of law enforcement in America. I believe police officers now are better trained than ever before and this training is reflected in the attitude they exhibit in their profession. While many older police officers were not so interested in the civil rights of citizens they encountered on patrol, this may be somewhat different now because officers are instructed that with the proliferation of video cameras and large verdicts against misbehaving officers, they could be held responsible for any malfeasance they exhibit. To let a drunken individual drive home only because he/she is a police officer not only endangers society as a whole, it also endangers the career of any police officer who allowed him/her to do so.

Finally, there is a basic issue of character in this type of case. Whereas a police officer arrested for a DUI off duty should be subjected to the same fines and penalties as any other citizen, it speaks volumes about the character of an officer who cites and arrests citizens for crimes all the while committing them herself!

A jury in Santa Ana returned a verdict of guilty in the manslaughter trial of Jeffrey Kirby. Mr. Kirby was on trial for the death of Tagout owner Charles Lewis, Jr. Mr. Lewis was killed when he allegedly became involved in a street race between his Ferrari and Mr. Kirby's Porsche. The prosecution argued Mr. Kirby lost control of his vehicle and this caused Mr. Lewis's vehicle to hit a pole. Mr. Lewis was killed instantly and his girlfriend was severely injured when she was ejected from the car. The race involved speeds over 100 m.p.h.

Mr. Kirby was convicted of vehicular manslaughter with gross negligence while intoxicated as well as causing injury to another victim. He faces a maximum prison sentence of 13 years. Mr. Kirby also had a prior conviction for DUI. Mr. Kirby was acquitted of fleeing the scene of an accident, which could have added an additional 5 years to his sentence.

Defense counsel for Mr. Kirby has maintained Mr. Kirby was extremely remorseful for the incident. It was the Defense's contention during the trial that Mr. Kirby spun out but did not believe he collided with the Ferrari. The People contended, even though Mr. Lewis was racing, Mr. Kirby's negligence actually caused the crash.

A Newport Beach police officer saw the accident while he was transporting a prisoner to the Orange County Jail. Mr. Kirby stopped at the crash for a few seconds before he drove a short distance to where he was ultimately arrested. He had a blood alcohol level of .13 and also had marijuana in his system two hours later.

A grand jury in Massachusetts indicted a man for his 9th DUI arrest. The man also faces a lifetime driver license suspension because he refused a chemical test. Under Massachusetts law, if anyone refuses a chemical test when arrested for his/her third DUI, his/her license is automatically suspended for life. In this case, the man's first DUI arrest was in 1983, however, it appears his last two arrests occurred in 2001.

Individuals charged with multiple DUIs pose a unique problem to society. If a person causes injury or death while having been convicted of a prior DUI, his penalties will be either manslaughter or murder. However, what if someone is convicted of multiple (3 or more) DUIs but has no aggravating factors, such as collisions or very high blood alcohol levels? Society certainly wishes to impress upon this type of offender the need to stop drinking and driving, but when does the punishment become excessive?

Although I am personally against jail time for individuals convicted of a Malum prohibitum crime, such as first, second and third time DUIs, the rationale for incarceration for a fourth time DUI conviction may be stronger. If an individual, within a 10 year period, is convicted of a 4th DUI, it is evident this person needs to confront the issue of drinking and driving. But does he/she need to be sentenced to state prison? The law in California allows a defendant convicted of a 4th offense to be sentenced to prison for up to 3 years.

Many in society believe jail time is a panacea for the problems of society. While incarceration may be the right answer for violent offenders or crimes resulting in a large financial loss, it is important to remember that for each non-violent offender sentenced to jail or prison for an extended period, thousands and thousands of taxpayer dollars are spent. There is no such thing as a free lunch and a substantial cost is paid for extended incarceration by both the defendant and society.

A Texas State Senator has filed a bill which would permanently revoke a person's driver license for driving under the influence. State Senator Jane Nelson cited a crash in which two people were killed by a man who had three prior DUIs.

It is common around this time of year for efforts to be made to increase penalties against drunk drivers. It is thought even tougher penalties will decrease the number of DUIs and, in particular, the number of alcohol-related deaths. The problem with this line of reasoning is most people who are convicted of DUIs never get another DUI. These are people who have just made a mistake. Further, a great many people drive under the influence and are never caught or never cause injury.

Many years ago, when the blood alcohol level required for DUI was .15 percent, most people had to consume a significant amount of alcohol to reach this level. However, now that the legal limit is .08 percent, only a few drinks are needed, and hence, a lower level of intoxication. Can it really be argued a 45 year old man with a blood alcohol level of .08 percent is more dangerous on the road than a 17 year old boy who now has a California Driver License and can drive alone?

Some people argue more jail time is needed in DUI cases involving deaths. In California, however, if a person is convicted of murder because of a DUI, he/she will be sentenced as a murderer. If you think they are not punished enough, pay attention to the sentence handed down to the driver who caused Angel's pitcher Adenhart's death. For most people convicted of driving under the influence, including many second offenders, jail time is not the answer. In fact, there are many who believe it does not work at all.

By permanently revoking a person's privilege to operate a motor vehicle, it will likely only result in the person driving anyway, but this time without insurance. While some people may take public transportation, the reality is California is not like New York City...many Californians commute very long distances. So, if a person is confronted with the dilemma of driving without a valid license or going bankrupt because he/she can't get to work, the choice is obvious.

I'm not arguing individuals convicted of DUIs should not be punished. A law has been broken and people must be persuaded not to break it again. However, fines, alcohol treatment programs as well as license restrictions is all that is needed to accomplish this goal in the vast majority of cases. It is asking a bit much to take away a person's freedom, driver license, livelihood and money and, then, tell them to also stop drinking.

The 6th Circuit Court of Appeals has ruled a search warrant must be obtained before government agents can read your email. The Court noted, in U.S. v. Warshak, emails require protection under the 4th Amendment. The Court held emails are fundamentally similar to more traditional forms of communication and hence should receive similar 4th Amendment protection.

The beginning of this ruling goes back to Steven Warshak, the man behind the male enhancement product Enzyte. The FTC said there was no proof Enzyte worked. Further, Warshak's employees were alleged to have signed up individuals for monthly prescriptions which were very difficult to terminate. It was within this context the federal government obtained Warshak's emails via a court order. A court order, however, is much easier to secure than a search warrant. Warshak alleged the search violated his 4th Amendment rights. In the civil case, the 6th Circuit Court ruled the emails were protected and, subsequently, upheld Warshak's criminal conviction for 93 counts of conspiracy to commit fraud and money laundering. The Court, however, threw out his 25 year sentence and ordered Warshak resentenced.

The ruling by the 6th Circuit Court is right in line with the current law requiring protection for communications. There should be no difference between emails and other forms of protected communication. Federal and state authorities will always try to find "shortcuts" in acquiring evidence. This is why it is vital to rigorously enforce the 4th Amendment.

Authorities used the Louisiana Recovery Directive as a smokescreen to arrest fathers who are delinquent in their child support payments. In this sting operation, letters were sent to hundreds of men informing them a stimulus payment was waiting for them to pick up. When they arrived, however, they were arrested. The Saint Tammany Police Department sent out 900 letters to individuals with outstanding arrest warrants. Over 100 were arrested.

Sting operations are conducted by many different police agencies and can be employed to net arrests in a variety of crimes, from prostitution to child molestation to drug sales. Such operations are a very useful tool for law enforcement. It is important, however, to ensure these sting operations do not amount to entrapment.

The perfect example of a sting that went too far is the old case wherein undercover officers approached a man in order to purchase drugs. Initially, the man said he could not get any; however, this did not stop the officers from making many more efforts to purchase drugs from this man until, finally, drugs were purchased. The court ultimately threw the case out. The legal argument was the police had essentially caused a crime by getting a man to do something he would not normally have done but for the police.

In the case of delinquent dads, entrapment does not appear to be an issue. Although, caution should be used whenever law enforcement officers seek to use subterfuge in trapping citizens in illegal conduct.

Final arguments were given in the trial of Jeffrey Kirby charged in the death of Charles Lewis. Lewis, known as Mask, was a wealthy businessman who owned the TAPOUT clothing business. Mr. Kirby is charged with vehicular manslaughter with gross negligence while intoxicated as well as driving under the influence causing bodily injury with included sentencing enhancements.

The main issue presented in this case is who caused the accident. What is known is that on March 11, 2009, at 1:00 a.m., the victim's Ferrari spun out of control and collided with a pole, killing him instantly. A passenger was thrown from the vehicle and suffered numerous severe injuries. Mr. Kirby was arrested later with a blood alcohol level of 0.13 percent. Mr. Kirby also has a prior conviction for driving under the influence.

The surviving victim has no recollection of the incident or even of being in the vehicle. The prosecution contends Mr. Kirby caused the accident when he lost control of his Porsche during a race with the victim's Ferrari involving a speed in excess of 100 miles per hour. The defense argues the Ferrari was traveling at 100 miles per hour and caused Mr. Kirby to lose control of his Porsche when he was attempting to get out of Mr. Lewis's way.

The prosecution must prove Mr. Kirby was a substantial cause of the auto accident and, while driving under the influence of an alcoholic beverage while speeding with gross negligence, caused the death of Mr. Lewis. Since this incident happened early in the morning on a relatively deserted road with few witnesses, the jury will not have many, if any, independent witness accounts upon which to base a decision.

One issue currently before The United States Supreme Court involves California's chronic prison overcrowding. A lower federal court has ordered California to reduce its prison population by approximately 40,000 inmates. The Court will have to conduct a delicate balancing act wherein one side is arguing prison overcrowding may raise constitutional issues while the other side contends releasing thousands of prisoners early will imperil public safety.

Conditions in California prisons are well-documented, however, the court's ruling could be that California is incapable of fixing the problem and this would require the federal government to step in. Chief Justice Roberts, in fact, questions whether the court is intruding in an issue which should be handled by the State legislature.

California has made some effort to alleviate overcrowding by sending some prisoners out of state and more are expected to go in the next few years. The present case, however, stems from federal lawsuits filed nearly 20 years ago. The charges are that because the prison population so exceeded available medical and mental health resources, the 8th Amendment of the United States Constitution barring cruel and unusual punishment is being violated and, although over the years there have been numerous efforts to curb prison overcrowding, enough has not been done.

Over the last 25 years, Californians have been in favor of longer and longer prison sentences. While this may or may not reduce crime, it definitely fills prisons. So, in the end, California will have to face the reality: If you want more prisoners, you will have to have more prisons.

The trial of Jeffrey Kirby in the death of Charles Lewis, an entrepreneur better known as "Mask", is currently underway in Santa Ana.

The collision which resulted in Lewis' death involved a Porsche and a Ferrari allegedly traveling at speeds in excess of 100 miles per hour. The Ferrari, driven by Lewis, hit a concrete light pole and was cut in half. The People are arguing Mr. Kirby knew driving under the influence was dangerous and that his blood alcohol level was .13 percent two hours after the accident.

Mr. Kirby is facing one count of vehicular manslaughter with gross negligence and one count of driving under the influence causing bodily injury. The Defense is alleging Mr. Kirby didn't cause the accident. Rather, they argue the victim caused the accident when he tried to pass Mr. Kirby's Porsche. The defense is further arguing Mr. Kirby, in fact, did not know a collision had occurred because he could not see the Ferrari. Mr. Kirby faces substantial state prison time, in excess of 15 years, if convicted.

Factors which may have contributed to this tragedy are the presence of two high performance vehicles, on Jamboree Road, in the evening. Even though the victim did not have any alcohol or drugs in his system, traveling in excess of 100 miles per hour on a road at night can be fraught with danger.

The real question in this case may not be the DUI (Mr. Kirby was a .13 BAL two hours after driving), but rather, what the real facts are with regard to the true cause of the collision.