Orange County Criminal Attorney Blog

The Fourth District Court of Appeals has overturned a conviction for transportation of methamphetamines due to lack of probable cause for the stop.

Defendant Paul Carmona was pulled over by police because he failed to signal when he turned right onto Olive Street from Walnut Street in the city of La Habra. During a subsequent search of the vehicle, officers found 7.1 grams of methamphetamines in baggies as well as other possible evidence of narcotic sales.

The District Court of Appeals ruled that Carmona didn't need to use his turn signal because there was no evidence any other vehicle could have been affected by the turn.

Probable cause for a stop is always an important issue for a criminal defendant. At the Law Office of Barney B. Gibbs, this issue is reviewed on all cases. This case makes perfect sense. The requirement of a turn signal, both legally and logically, arises from the need to notify another vehicle of a desire to turn. If there is no other vehicle affected, then, there is no need for a signal.

The probable cause for a stop is just the beginning of the legal issues to consider. A police officer, who spots a vehicle violation, may give a motorist a ticket after a brief investigation. But how long is a brief investigation? Can he/she order the driver out of the car? Can he/she order passengers out of the car? Can he/she conduct a search of the passengers of the car?

Florida v. Roger (1983) 460 U.S. 491. 500 103 Sct. 1319 has held that an investigative detention can only last as long as necessary for the purpose of the stop. It is important then to determine if the police acted diligently. Detentions up to 20 minutes have been upheld. However, it is possible that a delay of just a few minutes may be unjustifiable if, under the circumstances, the officer(s) prolonged the stop past what was necessary.

When a stop is made, police may check a person's driver's license and registration. If these are not produced, this could prolong a stop. If an officer is alone, he/she can order passengers to the curb, and this may prolong a stop.

Whether a police officer can search a vehicle after a stop can be determined by a number of factors. First, if there is no probable cause to search, can a police officer ask to search? Many courts say it is okay for a police officer to ask to search, during the investigation, if there is no coercion. However, if after the investigation is completed, an officer asks to search, the question arises whether the encounter becomes consensual.

In our next article, we will discuss consensual searches and encounters.

With the support of civil rights groups, State Assemblyman Michael Allen is seeking to restrict DUI roadblocks to their original purpose - getting drunk drivers off the road.

Minority rights activists allege DUI checkpoints are being used to run up impound fees on cars confiscated from immigrants without driver's licenses. Impounds increased over 50 percent between 2007 and 2009. Over 20 groups back a bill being promoted by Assemblyman Allen.

Civil rights groups allege these checkpoints target minorities and the poor who cannot obtain a driver's license. They allege that many who have their vehicle impounded, wind up losing the vehicle because they cannot pay the impound fee. Further, these people often lose their jobs afterwards as they no longer have transportation.

Law enforcement officials say DUI checkpoints are only about safety. A 2005 case holds that police officers cannot confiscate vehicles if they can be moved to a safe place or picked up by someone with a valid driver's license. The problem is that some municipalities do not follow this ruling. Allen's bill would codify this federal law as well as require police agencies to place checkpoints on roads which can demonstrably be shown to have a high number of DUIs.

No one should be surprised by the fact that DUI checkpoints are exceeding their original scope. When police officers are allowed to stop people without probable cause, anything can happen.

The original concept behind roadblocks was public safety because DUIs were responsible for significant public mayhem. However, once you circumvent the law, for whatever good reason, there will be unintended results. Were DUI checkpoints supposed to act as a deterrent because people knew they could be stopped, at random and without probable cause, during the isolated instances when a DUI checkpoint was in operation? Was this fear greater than the probability of being pulled over by a lone patrol officer working his/her beat? Have DUI checkpoints actually been more productive than peace officers on patrol using tried and true, as well as constitutional, police methods?

DUI checkpoints are not accomplishing the results intended. They were based on a faulty presumption. What other crime, be it murder or whatever, allows law enforcement to set up random checkpoints to investigate possible crime without probable cause?

Breathalyzer machines are coming under attack in Ventura, California and Athens, Ohio.

In California, more than 120 Alcosensor 5 machines have been sent back and redesigned after the crime lab obtained faulty readings. The District Attorney's Office said they won't object to defendants withdrawing their pleas. Over 300 people received
DUIs in Ventura County this year.

In Ohio, the Intoxilyzer 8000 is coming under fire because accuracy may be degraded by heat.

These two incidents are but a few of many which have occurred across the United States over the past 10 years. Various types of devices have been created to test a person's breath and, often times, their performance does not live up to expectations.

The reason this issue is important is because of the weight the public gives breath testing devices. If any person is told a person's blood alcohol level is over .08 percent, they immediately assume the person is under the influence of alcohol regardless of any other facts. I have always found this interesting as most people do not have the faintest idea how these machines function.

Over the years, the Law Office of Barney B. Gibbs has tried a great many breath cases and, without exception, jurors have difficulty grasping the inner workings of a breath machine. This is not because they are not smart, but because the process is complicated.

If a person was charged with a crime and the main piece of evidence against him/her was the time on a clock, everyone would clearly be able to see that the clock might be wrong. This does not happen with breath tests because of the appearance of infallibility given these devices in the testimony of some crime lab experts. Some of these experts are loathed to even admit they have ever heard of the malfunction of one of these machines.

A chemical test is just one piece of the puzzle in a DUI case. Driving, field sobriety tests and a myriad of other factors need to be considered before reaching a judgment.

Starting today, the Costa Mesa Police Department will no longer announce locations of upcoming checkpoints, one of which is planned from 6 p.m. to midnight tonight.

Sgt. Dave Makiyama stated the police will no longer announce these checkpoint locations in order to add to their deterrent factor. He believes the previous policy of naming the locations allowed people to avoid the checkpoints with little or no fear of apprehension.

The California Supreme Court case of People v. Banks ruled advance notice was not a requirement for a constitutionally valid checkpoint. However, it is one of the safeguards for a constitutionally permissible sobriety checkpoint. Courts have concluded a search warrant is not an unreasonable search.

Makiyama said "Hopefully, those who do learn of our checkpoints will question if they will be drinking and driving in the vicinity of a checkpoint and make good decisions about their rides."

Mayor Pro Tem Jim Righeimer points out most DUI arrests occur later at night and the 6 p.m. to midnight timeframe was chosen to give police officers extra overtime pay.

Discussion from The Law Office of Barney B. Gibbs:

I have always winced at the idea of DUI checkpoints. The thought of randomly stopping citizens to "educate" them about what is generally a misdemeanor seems, to me, to be an unreasonable and unnecessary extension of government power. With an arrest rate of 1/5 of 1% of traffic stopped, there cannot be a valid argument of success for these roadblocks. When compared to the inconvenience to 99% of the people, the whole roadblock system looks questionable.

What DUI roadblocks give to police officers is the probable cause to stop vehicles they normally couldn't and conduct investigations they normally shouldn't. In all likelihood, patrol officers on their own have a higher success rate than roadblocks.

Maybe Mayor Pro Tem Righeimer is right. Perhaps there is a hidden purpose to modifying this already unproductive and inconvenient procedure.

Two Chicago police officers have been charged with sexual assault while on duty. Officers Juan Vasquez and Paul Clavijo have been charged with sexually assaulting an intoxicated woman while on duty.

The case began, on March 30, 2011, when Officers Vasquez and Clavijo gave the alleged victim a ride home. The alleged victim attempted to enter the patrol vehicle's back seat but Officer Clavijo put her on his lap; whereupon, he sexually assaulted her. Upon arriving at the alleged victim's residence, both officers took turns sexually assaulting her. The alleged victim finally began pounding on the walls and screaming that she was being sexually assaulted. One officer was observed fleeing naked from the scene. Responding police officers found parts of one of the officer's uniform as well as his cell phone at the location. A subsequent test revealed the alleged victim had a blood alcohol level of .38 percent.

Attorneys representing the officers said the sexual act was voluntary, at which point prosecutors indicated a person with a blood alcohol level of .38 would be incapable of giving consent.

Discussion by The Law Office of Barney B. Gibbs:

The problem with charges against police officers is the great majority are false. People who are arrested and charged with crimes often have an incentive to falsely accuse police. Also, there are a great many people who hate the police and will use any opportunity to frame a police officer. However, just because there are many false claims, does not mean these claims should be ignored. It is important society be protected from dishonest police officers. Because of their powers, they are capable of doing great harm.

Charges against police officers, especially those committed on duty, must be considered among the most heinous. Not only has the officer committed a crime, he/she has also violated the trust society has in them. This loss of trust can adversely affect all police officers in the performance of their duty. Because many people believe there is a code of silence among police officers, none are to be trusted.

These two officers were put on administrative duties after they posted bail. At the very least, they should have been put on unpaid leave pending an investigation. Further, if it is proven they engaged in any sexual act on duty, with or without consent, they should be fired.

Public faith in the institution of justice is the basis of the democratic system. There was a time, not too long ago, that a majority of citizens of several large eastern cities believed their police were corrupt. The reason for this belief was that it was true! Police, by the nature of their jobs, stick together. Many would turn a blind eye to a fellow officer committing a crime, which would have involved an arrest had a citizen committed the act. Luckily, by and large, this is changing. However, police officers must be constantly vigilant in their understanding that their first duty is to justice and fairness.

The United States Supreme Court affirmed an order last month requiring the State of California to reduce the inmate population to 137% of capacity. This will require the reduction of thousands of prisoners.

With a current prison population of over 140 thousand people, it is clear to see the "tough on crime" attitude taken across the state may be backfiring. Given the average cost of housing an inmate is over $45,000 per inmate per year, there are simply not limitless resources to throw at state prison incarceration for drug and nonviolent offenses.

A plan by Governor Jerry Brown to transfer many low-risk offenders to county jails appears to be a step in the right direction. However, why are they in prison in the first place?

Perhaps it is time to take a close look at the "one penalty fits all" mindset prevalent throughout the State of California. Considering the economic disaster facing California, a person can make an economic argument that warehousing tens of thousands of nonviolent offenders does not make sense.

The concept that needs to change is the belief incarceration is the answer to a wide variety of crimes. Perhaps it would be possible to allow individuals who have committed nonviolent offenses to pay back their debt to society by doing community work. By allowing community work as punishment, the People of the State of California win in numerous ways. First, a savings of $50,000 per year can be spent on more pressing matters, such as education. Second, society benefits by having work done which no one else wants to do. Finally, the state saves money by not having to pay for this work.

There must be alternatives to incarceration. We are only limited by our inability to see them.

A mistrial was declared in the DUI murder trial of Gustavo Vega. Vega is being prosecuted in the death of Cara Lee. It is alleged Vega was under the influence of alcohol, with a blood alcohol level of over .17 percent, when he ran a red light in February 2010 and struck a vehicle in which Lee was a passenger. Because of a previous drunk driving conviction, Vega is being charged with murder. It is alleged that due to his prior conviction, he knew driving under the influence was dangerous.

In addition to the murder charge, Vega is also charged with hit and run resulting in death as well as misdemeanor hit and run. Vega fled the scene after the accident but was found nearby.

The defense contends, on the morning of the alleged incident, Vega was being chased by another driver because of an earlier fender-bender. As a result of the other driver's aggressive attitude, Vega was afraid to stop. The subpoenaed witnesses who refused to show up to court, thereby causing the mistrial, were the driver and the passenger of the vehicle chasing Vega.

Orange County Superior Court Judge Richard King scheduled a hearing to determine whether or not a warrant should be issued for the absent witnesses.

In a sequel to this article, one of the absent witnesses appeared in front of Superior Court Judge Richard King on Friday afternoon. The witness stated his failure to appear was a misunderstanding. Judge King informed the witness the mistrial cost the people of California nearly $30,000 and, to insure the witness's further appearance, the judge ordered the witness held in lieu of $15000 bail. The witness remained in custody until bail was posted the following day. The witness was ordered to reappear in court on the following Monday.

As can be seen from this incident, failure to respond to a subpoena is not taken lightly by the Court. It is a citizen's duty to take seriously a subpoena, especially in a case such as this.

A mistrial was declared when a jury deadlocked in the attempted murder trial of two men and a woman. The jury deliberated for nearly two days before they announced they could not reach a verdict.

The case involved an alleged conspiracy by the three to kill a Fountain Valley man with a machete. The victim, Sharpski, was seriously injured in the March 2008 attack. The prosecution alleged one of the defendants, the victim's wife, wanted Sharpski dead because of past abuse. The second defendant, and alleged hit-man, was promised $5000 to commit the murder. The third defendant was the wife's boyfriend and was alleged to have assisted in the planning.

The jury foreman indicated three jurors questioned the DNA evidence linking the hit-man to the crime scene. Testimony revealed he was at the scene on an occasion prior to the attack, during which he suffered a nosebleed.

In the course of the attack, the victim resisted and caused the assailant to bleed thereby leaving his blood at the scene. The victim suffered a skull fracture and severed fingers.

Both sides agreed the victim was a heavy drinker as well as abusive to his family. All three defendants, however, argued they had nothing to do with the attack.

Following the mistrial, the court set a date of July 1, 2011 for selection of a new trial date. The District Attorney can, by then, determine who to retry.

In a case where three defendants are charged with a brutal assault, the failure to get a verdict against any of them indicates the jury did not believe the prosecution had a strong case. The Law Office of Barney B. Gibbs has had many hung juries over the years. Even though the defense needs only 1 juror to hang a case, the strength of the People's case can often be determined by the split of the hung jury. When the split approaches a 50-50 split or favors the defense, even the prosecutor should consider whether or not it is possible to get a verdict under the present facts. Trials take time and cost taxpayers money. Whereas a District Attorney on an 11-1 for guilt split may believe a lone holdout hung the case, a greater split might indicate negotiations for a disposition may be the better path the second time around.

The United States Supreme Court expanded the definition of exigent circumstances to include the sound of evidence being destroyed. Ruth Bader Ginsberg stated "It arms the police with a way to routinely dishonor the warrant requirement of the Fourth Amendment.

This issue was raised in Kentucky v. King. While pursuing a drug suspect, police caught the odor of marijuana coming from a residence. After knocking and identifying themselves, officers allegedly heard the sound of evidence being destroyed.

The real opportunity for misuse is the definition of "the sound of evidence being destroyed." This is obviously an overbroad phrase. As a criminal defense attorney in Orange County for 30 years, I know the police can be quite ingenious. Many different sounds emanating from a residence can be construed as destruction of evidence, from toilets flushing to a garbage disposal running.

Search warrants are an important safeguard for citizens. By presenting information to an impartial judge, there is less chance of a mistake, such as the wrong residence being entered. Every time a wrong residence is entered by police, there is a chance someone, citizen or peace officer, will be injured.

The fact that this decision was almost unanimous gives a clear indication of the Court's mental process. I believe it is a logical decision that destruction of evidence is an exigent circumstance. CVC Section 40300.5 allows a peace officer to arrest without a warrant if the person would destroy or conceal evidence of a crime, i.e. driving under the influence. The presence requirement is thrown out if the individual destroys evidence. This could mean blood alcohol being eliminated from his/her system.

Although there is logic in the decision, the room for abuse is very high. Where will the line be drawn? What if a search is conducted and a very large amount of drugs are found but there is no evidence of destruction? The Law Office of Barney B. Gibbs is dedicated to insuring the rights of defendants. Whether the case is in Orange County or Los Angeles, we will be paying close attention to any justification for entering a person's residence.

Steven Dickson is facing a manslaughter charge because a passenger riding with him died after an auto accident. Mr. Dickson was alleged to have been driving under the influence. Mr. Dickson lost control of his vehicle when he attempted to avoid an animal in the roadway. He was ejected from the car when it overturned and suffered only minor injuries. His blood alcohol level was alleged to have been over 0.10.

Even though this is a Florida case, it raises an important issue; i.e., when is a DUI resulting in death murder and when is it manslaughter?

It seems like there are now more DUI cases being filed as murder than ever before. There are a number of issues which separate a DUI murder from a manslaughter. I will
attempt to clarify them below:

California Penal Code Section 187 [Murder] is the most serious charge that can result from a DUI. Murder is killing with malice aforethought, either express or implied. Whereas express is essentially intent to kill, implied requires certain elements. These elements are: 1) intentionally committed act 2) natural consequences were dangerous to human life 3) at the time, the defendant knew the act was dangerous to human life 4) defendant deliberately acted with a conscious disregard for human life.

The difference between implied malice and gross negligence (the burden in manslaughter) can be somewhat subtle. Gross negligence has been ruled to be exercise of so slight a degree of care so as to raise a presumption of conscious indifference to consequences where implied malice is present when a person, knowing his/her conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.

Awareness of risk and an element of wantonness separate gross negligence and implied malice [People v. Watson (1981) 30 Cal.3rd 290]. The level of wantonness and awareness is usually provided by way of evidence, such as blood alcohol level, knowledge of the hazard, intent to drive before drinking and prior DUI convictions.

Punishments for this type of offense can be 15 years to life in prison or even more in certain circumstances.

Vehicular manslaughter is either with gross negligence or without gross negligence. The elements of gross negligence is the killing of a human being without malice, while driving a vehicle in violation of California Vehicle Code Section 23140, 23152 or 23153, and the act was proximately caused by an unlawful act not amounting to a felony or a lawful act which might produce death in an unlawful manner with gross negligence.

The penalty for this can be 10 years in prison.

The elements for involuntary manslaughter are basically the same as above but without gross negligence. This charged, as a misdemeanor, can bring a sentence of 1 year in jail or, as a felony, 4 years in state prison.

The previous discussion clearly shows the complex nature of murder and manslaughter filings. The filing cannot be determined by a computer, but rather, by a serious and close examination of the facts.