Orange County Criminal Attorney Blog

A Santa Rosa woman was arrested for possible DUI when the vehicle she was traveling in ran off the road and ended up in a ditch. In the car were also the woman's children, ages 6, 4 and 2. The woman and her two oldest children were ejected from the vehicle while the 2-year-old remained strapped in his carseat. The woman and her two children were taken to the hospital. None of the injuries were believed to be life-threatening.

Police believe the vehicle, a large SUV, was traveling at a high rate of speed because the wooden posts of the guardrail were sheared off and the metal barrier was twisted in a loop in the ditch where the SUV came to rest.

In these types of cases, it is typical for the prosecution to file child endangerment charges in addition to the driving under the influence [usually felony] charges. The Penal Code section often used for these charges is California Penal Code section 273a, subsections (a) and (b).

§273a. Abusing or Endangering Heath of, Child - Punishment; Conditions of Probation.
(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
(b) Any person, who under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.

As can be seen, the punishment, state prison versus local jail, is the difference in these two sections. This is because one deals with great bodily harm or death and the other does not. When child endangerment charges are added to DUI cases, the exposure to substantial incarceration is greatly increased. In addition, if the case proceeds to trial, it must be anticipated the defendant will not generate a great deal of jury sympathy.

Arizona is one of the toughest states in the country when it comes to punishing DUI offenders. One of the penalties is a one year ignition interlock device [IID]. This device will not allow a vehicle's engine to start unless an alcohol-free breath sample is received. The device is very expensive. Unlike Arizona, California does not require first offenders to install IIDs.

There is now a move underway in Arizona to decrease, or even eliminate, the requirement of an ignition interlock device for first offenders. SB1000 would decrease it from one year to 6 months, while HB2371 would eliminate it altogether. SB1000 is an effort by Senator Linda Gray to defeat HB2371, which is much less punitive.

The issue present in Arizona is consistently litigated across the United States. The issue is not the IID but the search for just punishment. Many people believe in harsh penalties for people convicted of driving under the influence. This is true even if there was no injury or aggravating factors. The problem with this type of logic, however, is that it is often counterproductive. It is important to remember a first offense DUI is a malum prohibitum misdemeanor; which means it is wrong because a law makes it so. It is not a robbery or theft. Further, DUI is a general intent crime, thus, no specific intent is necessary.

When a person is arrested in California for a DUI, he/she faces the suspension of his/her driving privileges, a very substantial fine, alcohol school, termination of his/her auto insurance as well as the cost of retaining counsel. These penalties do not include loss of time from work, assuming he/she still has a job after the arrest.

When an IID is added to the above list of penalties, the punitive nature of the present law is obvious. Not only is the person punished, but so are his/her spouse and/or children. In a time of such economic turmoil, it is the height of folly to disrupt a citizen's livelihood simply to carry out some type of social experiment. The requirement of an ignition interlock device for first time DUI offenders should be deleted.

A 9-year-old Oregon girl was removed from her classroom by a Sheriff's deputy in order to investigate a sexual abuse allegation against her father. The little girl said she falsely incriminated her father because the deputy would not take no for an answer.

The United States Supreme Court will hear arguments in the case which has caused considerable interest in the legal community. In a lawsuit filed by the girl's family, a California Appeals Court held that her rights had been violated by the State. The State appealed the case and it is now in front of the U.S. Supreme Court.

The issue presented is whether there was an unlawful search and seizure when the girl was interrogated without her mother's consent, a warrant or exigent circumstances. The State is arguing this technique is a proven method of investigation and requiring a warrant would severely interfere with law enforcement's ability to acquire evidence in child abuse cases. Conversely, the defense's argument is that a warrant should have first been obtained.

Each side of the argument has considerable support from interested third parties. This will be the first case of this kind the U.S. Supreme Court has handled in many years and is a very sensitive issue which may have far-reaching results. On one hand is the need to protect children while, on the other hand, is the need to exercise control over aggressive police interrogation methods.

Beginning with the McMartin case, there have been untold numbers of police interrogations of children which have produced inaccurate and/or false evidence. Police interrogation tactics are often unsuited to interviews with children. That is, since most officers deal primarily with adults, sometimes with career criminals who are very sophisticated, their approach to interrogations often involve aggressive and confrontational police methods. Said methods, however, are counterproductive when applied to children.

It is thus necessary to have clear guidelines and restraints on the police so children are not traumatized and false evidence is not obtained. This is why the U.S. Supreme Court should rule for the defense in this case.

California Vehicle Code [C.V.C.] Section 2800:

Deletes: 1. A uniformed peace officer, as defined in Chapter 4.5 (commencing with §830) of Title 3 of Part 2 of the Penal Code, when a peace officer or authorized employee is performing duties pursuant to any provision of this code and the out-of-service order complies with §395.13 or 396.9 of Title 49 of the Code of Federal Regulations, 2. it is unlawful to fail or refuse to comply with a lawful out-of-service order issued by a peace officer or commercial vehicle inspector, of any state, any province of Canada or the federal government of the United States, Canada or Mexico, when that peace officer or commercial vehicle inspector is in uniform and is performing duties under any provisions of state, provincial, federal or Mexican law and the out-of-service order complies with;

Adds: 1. an authorized enforcement officer described in subdivision (d), (d) 2. out-of service "order" means a declaration by an authorized enforcement officer of a federal, state, Canadian, Mexican or local jurisdiction that a driver, a commercial motor vehicle or a motor carrier operation is out-of-service pursuant to §386.72, §392.5 or §392.9a of Title 49 of the Code of Federal Regulations, state law or the North American standard out-of-service criteria.

Purpose: To clarify out-of-service orders.

The California Supreme Court will be hearing a case with the intent of defining the word "pimp." The facts of the underlying case are straightforward. The original defendant pulled up to an alleged prostitute for the purpose of asking her to come to work for him. The defendant introduced himself as a pimp. The alleged prostitute was, in fact, an undercover police officer. The defendant was arrested, convicted and subsequently sentenced to four years in state prison.

The underlying legal question is the definition of the word "pimp." California law makes it a crime for anyone who "induces, persuades or encourages another person to become a prostitute." When the defendant approached the undercover officer, it was apparent he believed she was a prostitute and he was trying to get her to change management, so to speak. Defense counsel, however, argues that as worded the phrase was meant to protect innocent victims from being led into a life of prostitution, not prostitutes already in the business. Conversely, the Attorney General argues the law was meant to lock up anyone who tried to encourage someone to work for them as a prostitute.

Defense counsel's argument hinges on defining the word "become." The Defense argues that up until recently, only brothel owners and heads of large, organized prostitution rings were prosecuted under this charge...only recently has the prosecution begun over-filing these kinds of cases, which carry a sentence of three years in state prison, against individuals.

In the past, courts have generally sided with the prosecution; however, this may be changing. In 2009, an appellate panel threw out the conviction of a man who was trying to get a prostitute to work for him. Judge William Bedsworth stated "If the legislature had wanted a more broadly applicable provision, it could have easily replaced the phrase 'become a prostitute' with the phrase 'engage in prostitution.' But they did not."

It will now be up to the California Supreme Court to sort this out.

Many people charged with driving under the influence cases in California have their license suspended by the Department of Motor Vehicles, prior to ever going to court. There is, however, some hope for people as a result of a recent court opinion.

Many people do not know, upon arrest for a DUI, a person's California Driver License is confiscated by the police officer and the person is given an Admin Per Se (APS) temporary license. A hearing must be requested within 10 days of arrest or the temporary license will expire in 30 days and the person's license suspended.

At the DMV hearing, evidence is presented by the Department. One important piece of evidence is a person's blood alcohol level. Whether this is blood or breath, it is reported to the second decimal (i.e., .08).

A recent California case has given a boost to attorneys defending individuals at these hearings. Derek Brenner was charged for DUI in 2008 and, even though his blood alcohol level registered as .08 percent, his license suspension was set aside. The reason for this was evidence presented by his attorney regarding the breath test machine's tendency to give a result .002 higher.

What makes this result interesting is that California law allows a breath testing machine to have a variance of ±.01, which is much higher than the evidence presented at the DMV hearing.

The real issue in this case is, if a person has a reported blood alcohol of .08 percent (right on the legal limit) and evidence by the defense shows a variance of .002 (which would bring the blood alcohol down to .078), the presumption of validity of official documents has been rebutted. This now requires the DMV to present evidence to prove the test was nonetheless reliable, which in the Brenner case did not occur.

Although this case doesn't completely level the playing field in these cases, it is nonetheless well-reasoned and helpful to the defense bar.

Certain changes in California Vehicle Code (CVC) Sections 13352 and 13353.3 give individuals convicted of a second offense DUI an opportunity to get a restricted California Driver License (CDL).

Prior to 2010, if a person was convicted of a 2nd offense driving under the influence, he/she faced a suspension of his/her driving privilege for one year, during which time no restrictions were available to drive to and from work or to and from the court-mandated alcohol school.

The overly punitive nature of this suspension is easily apparent to all reasonable people. Although a CDL is a privilege and not a right, it is nearly impossible to exist in Orange County, or any other suburban or rural area, without the ability to operate a motor vehicle. The economic and emotional distress caused by loss of employment, loss of income, loss of a home as well as loss of self-worth far exceeds any possible good society may gain by taking away a person's driver license.

Another lost CDL often times translates into another lost job and lost jobs are something California can do without.

CVC Section 13353.3(b)(2)(b) says, in part... "The person's privilege to operate a motor vehicle shall be suspended for one year except as provided in paragraph B...

B) The one year suspension pursuant to subparagraph A shall terminate if the person has been convicted of a violation arising out of the same occurrence and all of the following conditions are met:

i. The person is eligible for a restricted license pursuant to section 13352,
ii. The person installs an ignition interlock device as required by section 13352 for that restricted driver's license, and
iii. The person complies with all other applicable conditions in section 13352 for a restricted license."

Coupled with CVC section 13352, this may offer some needed relief to people convicted of a 2nd offense DUI.

Betty Burden, a Mount Prospect school bus driver, escaped a prison term when she pled guilty to delivering 45 students to their homes while she had a blood alcohol level of .22. She, instead, was sentenced to 2 ½ years probation and 480 hours of community service. On the defendant's side was her exemplary driving record and job performance. Mrs. Burden was, however, fired from her job of 11 years.

Cook County Judge John Scotillo said "I need to be sure that the punishment fits the crime." A mother of one of the children testified on Mrs. Burden's behalf. "She has suffered enough" said Mary McMahon. At her sentencing, Mrs. Burden was tearful and apologetic.

Judge Scotillo showed considerable judicial courage in sentencing Mrs. Burden. The pretrial publicity in this case must have been substantial. Many people must have been howling for Mrs. Burden's head. It is, however, important to understand that Mrs. Burden is a human being. She made a terrible mistake. Although no one would deny the seriousness of her crime, no one was injured. She has lost her job and lost her clean record. She will, undoubtedly, never drive a bus again. At some point, we must realize that incarceration is not the answer to these types of crimes. Treatment and community service is. Here in California, our prisons are full and the government is broke. We must look for a new and more compassionate way to treat people like Mrs. Burden, both for their good and our own.