Orange County Criminal Attorney Blog

Information on nearby registered sex offenders is available within Facebook now for residents of New York. The state's Division of Criminal Justice Services recently launched a Facebook app, the Sex Offender Locator Application, accessible through its website and to users of the popular social network. It provides access to the state's database of medium- to high-risk convicted and registered sex offenders, including their name and address information. While online access to state registries is nothing new, this is one of the first times a state has directly integrated with a large service like Facebook.

While the system provides useful information to the public, it also has the potential for misuse and for violations of registrant's privacy. Considering the widespread (and deliberate) stigma of being listed on a registry, along with misunderstanding of the range of offenses that can lead to mandatory registration, people facing any sort of criminal charge involving a sex offense need to understand how these registries work. Registration can apply alike to child molesters and people who committed one act of indecent exposure at Mardi Gras.

In addition to state registries available online, private companies have set up websites allowing the public to search for sex offenders. Websites often tout their ability to help families research neighborhoods and protect their children. Sites such as Family Watchdog rely on public information obtained from state registries and act as a central clearinghouse for the information. An iPhone app called Offender Locator works with the iPhone's GPS locator to generate a map of registered sex offenders in the user's vicinity. Whether this information is used for safety purposes or out of morbid curiosity is up to each individual user.

Because of the reliance on individual state registries for updates, these services cannot ensure the information's accuracy themselves, and the information is not always accurate. People may appear on the registry by accident, or new information reported by a registrant may not make it into the registry's database right away. Registrants may neglect or refuse to provide updated information, making the information in the registry incorrect. In extreme cases, vigilantes have used publicly available information to locate and harass or even murder registered sex offenders. Maine, for example, briefly shut down its online search function after the murder of two registrants by a man who located them online.

Continue reading "Sex Offender Registry Now Available Through Facebook" »

A former CIA contractor faces charges for assault in Colorado following a fight with another man over a parking space outside of a bagel shop. The man had been in the news earlier this year for a shooting incident in Pakistan. On the morning of Saturday, October 1, the alleged assailant got into an argument with another customer over who had the right to a particular parking space. The alleged assailant admits that he hit the victim first, but he also claims that the victim hit him at least five times. He was arrested and charged with third-degree assault.

The victim suffered multiple injuries, including a fractured vertebra, adhesions and contusions, and head injuries. When the alleged assailant was arraigned in court on Tuesday, October 4, the victim appeared bearing a large U-shaped wound on his forehead. Upon learning of the victim's broken back, authorities changed the charges from third-degree to second-degree assault.

Third-degree assault is a misdemeanor under Colorado law. The statute defines it, in part, as knowingly or recklessly causing bodily injury to someone, or negligently causing injury to someone with a deadly weapon. Second-degree assault, meanwhile, is a felony. Its definition includes intent to cause bodily injury to someone, and then causing such injury to a person with a deadly weapon. If no weapon is involved, the statute states that the bodily injury must be "serious." Note that the injury does not need to be to the person the accused intended to injure. The statute also defines second-degree assault as recklessly causing injury to someone using a deadly weapon.

The two key distinctions between the two levels of assault are the severity of the injuries and the mental state of the accused. None of the reporting on the incident indicates that anyone used a weapon, although reports note that the victim had a distinct wound on his forehead. The elevation of the charge by police hinges on further news of the victim's injuries, which went from "bodily injury" to "serious bodily injury" with news of the spinal injury. In this sense, the charge faced by the alleged assailant is based on the harm he caused, not on what he was thinking or feeling at the time. The exact same conduct could lead to different charges depending on how badly someone is injured.

Continue reading "Former CIA Contractor Charged with Assault for Fight, Spinal Fracture" »

Children in foster care across the country suffer from identity theft in alarming numbers. Children in general have a higher risk of identity theft than adults, according to a recent Forbes article, but foster children face an even greater risk because of their often vulnerable position. As many as 30% of foster children may become identity theft victims. Since children tend not to have credit cards or mortgages in their names, their Social Security numbers offer a blank slate for opportunistic thieves. Even worse, children usually do not learn about how their information has been compromised until they become adults and try to obtain credit. This can prevent foster children, who have often endured substantial hardship already, from enjoying many of the privileges of adulthood.

Identity theft among foster children presents a problem from the standpoint of criminal law. Foster children often come from troubled family situations with few resources. They may find themselves saddled not only with huge amounts of debt they cannot pay, but with other contractual obligations and little understanding of what happened and what they must do. Without careful handling of a victim's personal information, a foster child could face unforeseen penalties for acts committed by the identity thief.

Foster children aging out of the system and discovering the theft for the first time often discover massive unpaid bills, credit cards, and utilities in their names. The perpetrators are often known to the victim, including family members needing access to credit. Researchers looking into this problem also found wrongdoing by some foster parents and child welfare workers, as well as simple errors in credit reporting. Los Angeles child welfare workers reviewed credit reports for over 2,000 foster children in their system and found significant problems in the reports for 5% of the children. The average account balance was $1,811, and one child had a $217,000 mortgage.

A new federal law, signed by President Obama in September, requires state officials to run credit checks on foster children who are nearing age 18, at which point they leave the care of the state's child welfare agency. The law also requires child welfare officials to help foster children repair credit problems that turn up on the credit search. This may include negotiating or resolving debts incurred by the identity thief and removing false information from the credit file.

Continue reading "Preventing Identity Theft Among Foster Children" »

An important responsibility that your Orange County DUI attorney has is to shield you from biased jurors. Your DUI lawyer will have a chance to screen potential jurors before your DUI trial through a process called voir dire. During voir dire, attorneys from both sides will have the chance to interview each potential juror, asking detailed questions about their background and beliefs.

For a DUI trial in particular, your lawyer will need to be on the lookout for jurors who strongly disapprove of even legal and responsible alcohol use. People who, for religious or personal reasons, are strongly against any alcohol users will be far less inclined to listen to your attorney's arguments that you did not do anything wrong.

People's biases are not immediately apparent, and part of what distinguishes an experienced DUI attorney is his ability to subtly probe for bias. An experienced DUI attorney might ask a potential juror hypothetical questions, asking if they thought it is ever justifiable for someone to drive after having consumed alcohol.

Using this method, a DUI lawyer may even be able to determine how willing jurors who say they are against alcohol would be to reconsidering their position if a reasonable argument was presented. However, if a juror seems unlikely to give you a fair chance at trial, regardless of the arguments presented, your attorney can request that he be excluded from the jury.

Fighting a DUI charge in Orange County requires an experienced DUI attorney. Call Orange County DUI attorney Barney Gibbs today for a free consultation.

A federal prosecutor based in San Diego, Laura Duffy, is considering investigating media outlets such as newspapers and radio stations that advertise California marijuana dispensaries. This is part of a broader crackdown by federal prosecutors against medical marijuana businesses in the state that they say have grown beyond what state law allows. Several U.S. attorneys in California have vowed to shut down marijuana businesses that violate the law, and they are targeting building and land owners who rent out their property to these businesses. Federal prosecutors say that state law only allows individuals and nonprofit groups to cultivate medical marijuana for people with serious health concerns, not larger commercial operations.

Laura Duffy was appointed by President Obama as the U.S. Attorney for the Southern District of California in February 2010. The Senate confirmed her to that post in May of that year. She has served in the U.S. Department of Justice as an attorney since 1993. She has spent much of her career in narcotics prosecutions. She is best known as the prosecutor in the case involving members of the Tijuana-based Arellano-Felix drug cartel.

This blog has already reported on the effort throughout the state to prosecute larger marijuana businesses. With this new effort, the question becomes where First Amendment rights of free expression intersect with drug laws. The federal government generally holds that federal drug laws take precedence if they conflict with state laws. Congress classified marijuana as a Schedule I narcotic in the Controlled Substances Act of 1970, meaning possession carries potentially severe penalties. California law, on the other hand, allows cultivation and possession of small amounts of marijuana for personal medical use, provided a doctor has prescribed it. After initially passing in 1996, "cultivation" has grown into a big business in the state, with organizations running larger production and distribution operations. These operations are the targets of several U.S. attorneys in California.

Continue reading "Prosecutors Considering Charges Regarding Medical Marijuana Advertising" »

A federal judge in Boston sentenced a Dorchester, Massachusetts man to six years imprisonment, followed by three years' supervised release, for a series of false claims for physical therapy treatments submitted to automobile insurance companies. The man was convicted for submitting false claims to 19 different insurance companies. The court further ordered him to pay restitution totalling $461,624 and to forfeit an additional $303,195. A licensed physical therapist in his employ, charged as a co-conspirator, received a five-year prison sentence for the fraudulent claims.

The man owned a physical therapy clinic in Brockton, Massachusetts. According to evidence presented in court, he directed the physical therapist to falsify patient records to show nonexistent treatments. Some patients' charts had false entries added to them, while other charts were completely fabricated for patients who had never even received physical therapy treatment at the clinic. The man received hundreds of thousands of dollars from auto insurance companies for the false claims.

Health care fraud has become a serious problem all over the country. Health care practitioners can commit fraud in a number of different ways, and all of them have the potential to pass costs on to patients and consumers. In addition to false claims like those in the above case, fraud cases can include duplicate claims for the same service, altering dates or descriptions of services, deliberate incorrect reporting of treatments or diagnoses to increase payment amounts, and even prescribing unnecessary medications or treatments. The federal government estimates that the cost of fraudulent health care claims accounts for 10 cents of every dollar spent on health care.

Federal law requires insurers to pay legitimate claims within 30 days of the date a patient or health care provider presents the claim. While this protects patients and legitimate providers who may need quick access to treatment and funds, it makes the job of investigating and stopping payment on fraudulent claims difficult. The investigation of health care fraud is often handled internally by insurance companies. Jurisdiction for these investigations legally falls on the United States Postal Service, the Federal Bureau of Investigation, and the Office of the Inspector General. The Health Insurance Portability and Accountability Act (HIPAA), which became law in 1996, created a Health Care Fraud and Abuse Program to support investigation and prosecution of fraudulent claims in both public and private health care plans.

Continue reading "False Health Care Claims Lead to Six-Year Prison Sentence" »

An Appleton, Wisconsin woman, Sheila M. Smith, has received a seven-year prison sentence for first-degree reckless homicide and narcotics delivery, as reported by the Appleton Post-Crescent. An 18 year-old man died in September 2010 after taking prescription methadone obtained from her and an alleged co-conspirator, Kristi L. Schounard, who faces trial on the same charges next month. This case demonstrates how one criminal offense can lead to criminal liability for multiple events, if those events are the reasonably logical consequence of the original action. Even nonviolent offenses at the felony level can lead to a murder charge if someone dies during the commission of, or as a result of, a felony.

Methadone is considered a Schedule II drug under Wisconsin state law. Delivery of this class of drug is generally treated as a Class E felony, carrying a punishment of "a fine not to exceed $50,000 or imprisonment not to exceed 15 years, or both." Wisconsin typically defines "reckless homicide" as "recklessly caus[ing] the death of another human being under circumstances which show utter disregard for human life." The statute also specifically includes situations in which a person provides an illegal drug to someone who dies as a result of using that drug. The law applies regardless of whether the death was due solely to the drug in question or a combination of other drugs. A conviction under this part of the statute is a Class C felony, which can include punishments of "a fine not to exceed $100,000 or imprisonment not to exceed 40 years, or both."

The conviction is similar to second-degree murder in California, when a death occurs during commission of a non-violent felony, sometimes known as "felony murder." The law holds a person criminally liable for murder for deaths that occur as a result of a criminal act, whether the person intended to cause the death or not. This is slightly different from the usual requirement of intent and malice aforethought in order to obtain a murder conviction, based on the idea that a person is responsible for all the harms caused by their illegal actions.

Continue reading "Sale of Drugs Leads to Homicide Conviction for Wisconsin Woman" »

A year after Governor Schwarzenegger signed "Chelsea's Law," the law has already had a significant impact on arrests and criminal charges, according to the San Diego Union-Tribune. San Diego County has used the law to impose stricter penalties on nineteen people with its enhanced sentencing provisions. A nonprofit organization established to support the law, the Chelsea's Light Foundation, compiled this data and is hoping to help law enforcement in the rest of California to collect data on the law's impact. Chelsea's Law increases penalties for certain sex crimes against children, provides for lifetime monitoring of certain parolees, and creates procedures for assessing and containing offenders at risk of repeat offenses.

The law was inspired by the case of Chelsea King, a 17 year-old resident of Poway, California, near San Diego, who was kidnapped, raped, and murdered in 2010 by John Gardner. Gardner, who was already a registered sex offender, is now serving two life prison sentences for Chelsea's murder and the murder of 14 year-old Amber Dubois. Gardner had served five years of a six-year sentence, beginning in 2000, after molesting his 13 year-old neighbor. He repeatedly violated his parole after his release from prison. Republican Assemblyman Nathan Fletcher of San Diego authored the bill that would become Chelsea's Law, and the governor signed it on September 9, 2010. Chelsea's parents, Kelly and Brent King, created the Chelsea's Light Foundation in part to support the law's passage and its implementation. They have also stated that they intend to promote similar laws in other states.

Chelsea's Law contains substantial increases in possible sentences for people convicted of sex crimes against children. It allows life sentences for both first-time and repeat offenders in cases involving the kidnapping of children with the use of drugs, torture, or weapons. The law also provides for lifetime GPS monitoring, as a condition of parole, for convictions of forcible sex crimes. Previously, GPS monitoring would end if an offender left parole. Governor Jerry Brown signed a bill into law in September 2011 that makes small changes to the law, implementing a "containment model" meant to identify sex offenders at risk of new offenses and providing for treatment. This process includes polygraph testing and assessments by certified professionals to assess the risk of committing new crimes. Another new law signed by Governor Brown provide immunity to professionals doing risk assessments in the event offenders commit new crimes.

Continue reading "First Year of "Chelsea's Law" in California" »

In order to build a strong defense for you, your Orange County DUI lawyer will gather information that has the potential to be evidence in your favor; he will then decide what to use in the case. Exculpatory evidence is most commonly used in DUI cases. This type of evidence is anything that is definitely in your favor in the case. Your defense attorney will be able to decide what is of use and what is not.

Other types of evidence that your Orange County DUI lawyer will obtain include:

• Earlier police reports written by the officer who arrested you. If the police officer in question tends to write the same observations on every arrest report on drunk driving, that officer's credibility is highly questionable. Even subtle issues with reports can be useful. For example, if the officer who arrested you tends to ask suspects how much sleep they have gotten but did not do so with you, your DUI lawyer could argue that the officer's perception of your condition and your field sobriety test results was inaccurate.

• Your driving record. Part of a plea bargain is for you to plead guilty. If you already have points on your driving record and you plead guilty to an offense that causes you to receive more points, you could risk losing your driver's license. Being aware of the amount of points that you already have can help your lawyer to ensure that you do not lose your license by negotiating an agreement where you plead guilty to an offense that does not add points to your driving record.

• Your criminal history as well as those of any potential witnesses, which can affect perceived credibility.

• Accident reports. If you caused an accident that led to your being charged with drunk driving, and that accident occurred in a spot prone to collisions, your attorney could argue that the location, rather than any alleged intoxication, is what caused the accident. In the case of a major accident, an accident reconstructionist's report can greatly help your defense.

If you've been arrested for a DUI, do not hesitate to the get the legal help you need from an experienced Orange County DUI lawyer. For a free initial consultation with Barney Gibbs, do not hesitate to give a call today.

In order to build a strong case for you, your Orange County drunk driving attorney will gather information that could be used in your defense, including but not limited to:

• Exculpatory evidence. This is any information that works in your favor.

• Your DMV records. Your Orange County DUI lawyer will need to be aware of your driving record so that any possible plea bargains do not cause you to lose your license. A plea bargain means a conviction, and if you have past driving points on your record, those might cause issues with your license. If that is the case, your attorney will work to ensure that any plea bargains are for an offense that does not contribute towards your point count.

• Criminal histories. These are "rap sheets" of you and any possible witnesses. Your and your witness' perceived credibility are affect by this.

• Accident reports. These are documents from accident reconstructionists and others pertaining to any accidents that you caused. If there is an accident involved with your case, your Orange County DUI attorney can check to see if the spot is a common one for accidents; if so, he may be able to prove that it was the roadway and not intoxication that caused the incident.

• Past police reports from the arresting officer. These are arrest reports written by the same officer who charged you with drunk driving. If the officer in question tends to write the same observations on drunk driving reports for all defendants, that officer's credibility can be called into question. Even if such an obvious issue cannot be found, your Orange County drunk driving lawyer can learn much in the way of useful information by reading the reports. If the officer tends to ask suspects how long they slept the night before but did not ask you that, for example, your Orange County DUI attorney could argue that the officer's view of your field sobriety tests was skewed.

If you are facing the serious charge of drunk driving, contact Orange County DUI attorney Barney Gibbs for help in your defense.

When an officer uses a non-standardized sobriety test during a DUI stop, the test procedures depend on the type of test chosen by the officer. The officer must correctly perform the type of test selected. Barney Gibbs, Orange County DUI lawyer, can explain the proper procedures for each type of non-standardized DUI test, discuss your test results and other evidence in your case, and establish a strategy for your DUI defense.

In one type of non-standardized DUI test, an officer may observe a subject's handwriting to look for the effects of alcohol consumption. The accuracy of this test, however, may leave room for strategic argument by your Orange County DUI lawyer. For example, one study charted the handwriting samples of thirty five men and women before and after a period of alcohol consumption. According to the results of this study, handwriting could not provide an accurate assessment of the test subject's blood alcohol concentration.

An officer may also use the hand-pat test during a DUI stop. The hand-pat test requires the subject to place one hand in front of her with the palm facing up. She places her other hand on top with the palm down. After patting the bottom hand once, the subject must rotate her hand by 180 degrees to touch the bottom hand with the back of the top hand. As the test progresses, the officer may instruct the subject to speed up. Some critics of the test believe that it is a failure-designed test because many subjects will double pat or incorrectly place their hands as the speed of the test increases. If you were required to do a hand-pat test, your Orange County DUI lawyer may be able to undermine the results when presented by the prosecutor in your case.

As with the hand-pat test, an officer may choose the test of picking up coins if the subject mentions a bad leg, knee, or back before the sobriety test. The test requires the subject to pick up several coins from the hood of the subject's car or from another flat surface.

Officers rarely use this type of test. When an officer does opt for this test, an Orange County DUI lawyer such as Barney Gibbs can work with you to challenge the scientific validity of the test.

Philadelphia police arrested three people this weekend after a landlord found four mentally disabled adults held captive in the basement of his building. He found them while investigating a dog dish he found in the basement, expecting to find a dog hidden somewhere. Investigators believe the four spent a week trapped in a tiny room, 10 feet by 15 feet, with little food or water. One person was chained to a radiator. The three suspects and the four captives apparently traveled together from Texas to Florida and then Philadelphia. The suspects are accused of holding the people captive in order to steal their social security checks and face numerous criminal charges.

Both Philadelphia police and the FBI are investigating the case. The suspects face multiple charges, including aggravated assault, kidnapping, and criminal conspiracy. Since the group may have crossed state lines in the course of committing various crimes, they could face prosecution under both Pennsylvania and federal criminal statutes.

Authorities have charged the suspects with multiple offenses related to the crime of kidnapping. "Kidnapping" is legally defined as the act of transporting a person against that person's will, often with the intent to keep the person confined. The purpose of the kidnapping is not as important as the intent to move the person without consent, although punishment may be enhanced if the kidnapping is for ransom or if the defendant used a weapon. Kidnapping is considered a serious felony. The suspects also face charges of unlawful restraint and false imprisonment. These offenses refer to the act of holding a person against the person's will, particularly by restraining someone to an object like the radiator. False imprisonment is both a felony criminal offense and a civil tort claim.

The suspects have also been charged with aggravated assault. This could refer to the act of transporting the people or holding them against their will, as well as the harsh conditions in which they kept them. Besides lacking food and water, police reported that the room reeked of human waste. The crime of assault can include more than a stab or punch. It can involve any sort of physical contact without consent. The severity of the peoples' confinement allows authorities to enhance the offense by adding the "aggravated" factor.

Continue reading "Four Mentally Disabled People Kidnapped and Held Captive in Philadelphia" »

A man and woman arrested in Bellingham, Washington on multiple counts of mail theft managed to get away with their alleged crimes for quite some time because, according to police, they were very "obvious" about the thefts, reports KIRO TV. In effect, they were so obvious, acting as though they had every right to open mailboxes and even going so far as driving a truck with a flashing orange light on top, that they managed to evade suspicion for about two months. Their case demonstrates how easily identity theft can affect unsuspecting people, and how it can affect people in California in unexpected ways.

Bellingham police had received a dozen reports of stolen mail since early August. They arrested the woman on Tuesday, October 4 and booked her for investigation into theft, identity theft, and criminal impersonation. The man was picked up for a driving offense. Police searched a residence linked to the woman and found bags of mail as well as electronics and other items they suspected were stolen in burglaries. Investigators believe that the pair would steal credit cards and checks out of the mail, use them to purchase big-ticket items, and then return the goods for cash the following day. The total amount of damage allegedly caused is still not known, nor have police given a total number of alleged victims.

This Orange County Criminal Attorney Blog has previously written about a situation in Georgia where fraudulent state tax returns held up nearly $41 million in refunds and caused many identity theft victims to incur tax bills through no fault of their own. This case in Washington could have a similar effect, leading to possible further financial harm or even criminal trouble down the road.

Identity theft can affect Californians in several ways. The California Office of Privacy Protection estimates that 54% of identity thefts in the U.S. involve the victim's credit or debit card accounts, while another 14% involved other accounts like bank accounts. The potential financial impact is therefore great.

Another possible effect of identity theft, comprising as much as 31% of all cases, involves association of a stolen identity with someone who has a criminal record. This potentially causes someone's name to be associated with a criminal history that the person does not have. This can not only affect credit applications and job prospects, but it carries substantial risk if the person finds themselves subject to a background check by law enforcement--during a traffic stop, for example.

Continue reading "Washington Couple Succeeds at Mail Theft by "Being Obvious"" »

The new Alabama immigration law potentially allows law enforcement to detain people without bond if they suspect their immigration status. A lawsuit brought by the U.S. Justice Department and several immigrants' rights groups led to a partial block of the law by a federal appeals court today, but some troubling provisions remain in effect. While this law only applies in Alabama, it is part of a nationwide trend that could have an impact on California.

The law requires law enforcement, in the course of a "lawful" stop or arrest, to try to determine the immigration status of anyone they suspect might be an undocumented immigrant. In effect, it allows law enforcement to require a person to prove their citizenship or lawful immigration status, and it allows them to hold the person until they can provide such proof. The law does not provide a clear definition of what constitutes reasonable suspicion of a person's immigration status.

Of great concern to criminal defense attorneys should be the ability of law enforcement to hold a person without bond based upon an officer's suspicion of something so vaguely defined. The notion that a person cannot be detained without probable cause to suspect criminal activity is a bedrock principle enshrined in the Fourth Amendment to the United States Constitution. To make an arrest, a police officer must ordinarily have a warrant signed by a judge or "probable cause," which is a rather high standard of belief that a crime has been committed or that relevant evidence would be uncovered in a search or arrest. Once an arrest has been made, searches potentially become much easier since the person is in custody. This could lead to discovery of evidence in situations where police would not have otherwise had probable cause, all based on the ill-defined suspicion of immigration status.

Once a person is in custody, a bond must be set, which is the amount of money that must be put up in order to get the person out of jail. A magistrate or judge often sets this amount based on factors like the severity of the alleged crime and the likelihood that the person might try to leave the jurisdiction. A person could be released without bond if they are determined to be low risk, or held without bond if a judge finds the opposite. Key to this determination is the alleged offense. Alabama's law allows a person to be detained based on suspicion of immigration status, something that is not usually part of the criminal system, and not part of the state legal system at all.

Continue reading "New Alabama Immigration Law Could Allow Police to Hold People Without Bond" »

Many DUI arrests have been made because a witness, usually a driver or passenger in another car, noticed someone driving erratically and called the police.

Since a big part of any DUI case is determining whether or not the officer had sufficient cause to pull over the driver, it becomes very important to determine if any tip sufficiently justifies the officer's actions. The key factor is whether or not the information in the tip was thorough and accurate.

For example, in one Utah case, the defendant had a nonviolent argument with his girlfriend and then left her house. The girlfriend called the police, and claimed that he had drunk alcohol at her house and then drove away. The dispatcher told police officers that the defendant was drunk and in a motor vehicle, and, using the girlfriend's description of his car, the police pulled him over and arrested him for driving under the influence.

However, the Utah Court of Appeals eventually ruled that since the girlfriend did not say her boyfriend was drunk, nor did she say how many drinks he had or when he had those drinks, the dispatcher erred when telling the police officer that the defendant was drunk. The stop was eventually ruled illegal.

If you have been charged with a DUI in Orange County, it is very important that you find an Orange County DUI attorney that knows how to determine the legality of your traffic stop. Call experienced Orange County DUI attorney Barney Gibbs today for a free consultation.

One of the most common elements of any battery of field sobriety tests administered in conjunction with a DUI traffic stop is the horizontal gaze nystagmus test. Federal authorities suggest that states should implement this test as a regular aspect of field sobriety tests, as it can gauge intoxication more reliably than some other tests. However, this test is met with scrutiny by any Orange County DUI lawyer and is often rebutted with common sense explanations for alleged evidence of intoxication.

If you were recently arrested under suspicion of a DUI, your Orange County DUI lawyer will check to see if the officer followed proper protocol with respect to the nystagmus test. In preparation for the test, the officer must instruct the suspect to remove his or her eyeglasses, keep his head still and stand with feet together and arms at the side. The suspect is then instructed to look at the stimulus and follow it with eyes only. The stimulus, which is often a light beam, should be held 12"-15" from the face of the suspect and slightly above eye level.

The horizontal gaze test is used to test a variety of characteristics of the eyes. The officer is testing to see if the eyes can track the stimulus, whether pupil sizes are equal and, most importantly, smooth pursuit. Smooth pursuit is measured by starting with the suspect's left eye and moving the stimulus at a speed in which it takes two seconds to bring the eye as far to the side as it can go and two seconds to move it back. This is performed twice in each eye. Another test evaluates nystagmus at 45 degrees and the stimulus is moved such that it takes four seconds to reach the suspect's shoulder. Once nystagmus is observed, the officer stops to verify whether eye jerking continues. Similar tests are performed vertically as well.

All portions of the nystagmus horizontal eye gaze test are compiled to determine a final result. While nystagmus tests are sometimes indicative of intoxication, they are also not always accurate and certain eye conditions or environmental stimuli can contribute to the officer's conclusion that the suspect is intoxicated when in fact he is not.

If you were recently arrested for a DUI after completing a nystagmus horizontal eye gaze test, contact Orange County DUI lawyer Barney Gibbs today.

When Breath Test Operator Fran Griefenbach left her job at the Hernando County Detention Center, she explained the reasons why in an email. This email has caused a firestorm of controversy in Florida. Mrs. Griefenbach's email indicated she quit because deputies had breached security by entering the Breath Test Room on numerous occasions without authorization. The Florida Administrative Code states that only people issued permits by the state should have access to the breath machines. This is to protect the chain of evidence.

Even though an internal investigation found the machines weren't tampered with, emails show that the security of the Breath Testing Room was lax. Numerous incidents of unauthorized entry have been found. In one case, the room was left unlocked for 24 hours. Many deputies and inmates passed the door on a daily basis.

Since these allegations arose, an electronic key lock has been placed on the door.
Although prosecutors will undoubtedly make light of the security breaches, why was the electronic lock put on the door?

In addition, the defense bar was not notified until 4 months after the allegations arose. Many people had, by then, pled guilty.

DUI cases are prosecuted around this country by relying on scientific evidence. Prosecutors take great pains to tell juries that science is on their side. Forensic experts for the state take the stand and testify with mind-numbing detail of the reliability of their crime lab. It is as if the lab is a finely-tuned watch that smoothly and effortlessly functions with very little input by mere mortals.

It is very distressing to be told the rules the prosecution uses to tout the reliability of these machines are not very important. They appear to want it both ways.

Instead of trying to sweep this all under the rug, if the powers that be dismissed any case which was tarnished by these security breaches, they could then take the ethical highroad. To prosecute someone for violating the law is one thing, but to play fast and easy with the rules when you do it is unfair.

A core principle of the criminal justice system in America has long been the idea that, to be found guilty of a crime, a person must have awareness that they are doing something wrong. For fans of Latin, the idea is called mens rea, or "guilty mind," often phrased as "criminal intent." To convict someone of the most serious crimes, such as murder, prosecutors must prove that a person intended to commit the crime. For example, a murder conviction requires proof not only that the defendant killed someone, but that the defendant intended for the person to die. The less-severe crime of manslaughter involves a defendant who engaged in risky behavior, but did not specifically intend for the crime to happen. This is the difference between deliberately running someone over with a car and hitting someone accidentally while not watching the road. Both are crimes, but the intentional act is punished more severely under the law. The prosecutor has the burden of proving the defendant's state of mind when the crime allegedly occurred, and therefore the defendant's "criminal intent."

This does not always imply that a person must know that their action is illegal. Ignorance of the law is no defense, as another legal principle goes. A person must nevertheless have awareness of their actions (or inaction, in the case of not watching the road) leading up to an alleged crime.

Trends in federal criminal law suggest that the requirement of mens rea is changing, according to a recent article in the Wall Street Journal. Increasingly, federal prosecutors are seeking convictions for offenses that may not even seem criminal at face value, with implications for people all over the country.

The federal criminal code, which is established by the U.S. Congress and applies nationwide, has grown from about twenty crimes in the 1790's to over 4,500 today, with thousands more scattered through federal regulations. Many of these crimes relate to administrative matters, financial transactions, non-violent offenses, or restrictions placed on people with criminal records. Many can carry surprisingly harsh penalties.

The Journal gives an example of an Iowa man with a criminal record who, while working a construction job, found a .22 caliber bullet on a work site. He put the bullet in a box at his house, where police found it during a search several months later. While state prosecutors did not charge him, federal prosecutors contended possession of a single bullet violated federal statutes prohibiting firearm possession by convicted felons. He pleaded guilty to possessing a bullet and received a mandatory 15-year prison sentence. An appeals court affirmed the sentence but called it "extreme."

Continue reading "Growing List of Federal Crimes Leads to Lowering Standard of Proving Guilt" »

Depending on the specifics of your case and the prosecution's position, your lawyer may or may not advise you to go to trial. If the prosecution proposes a settlement agreement, there may be a weakness in its case; this is not certain, however. Either way, the prosecution will not voluntarily expose its position in a DUI case. However, a knowledgeable and proficient Orange County DUI lawyer will be able to read the signals given by the prosecution and figure out the strength of the state's case against you.

Commonly, the prosecutor in a DUI case will be employed by the state attorney's office or another large governmental agency. Because workloads and work schedules vary, a single prosecutor will not be the only person in charge of your DUI case throughout the entire process. Therefore, the prosecutor in charge that particular day will take notes in the file, often in front of the defense attorney in the courtroom. As such, your Orange County DUI lawyer will be able to decipher this note taking as to how your case may turn out.

The most obvious sign that the prosecution may intend to take your case to trial is extensive note taking after a pretrial conference. Generally, taking massive notes means that the prosecutor feels that there is something uncommon about the case, for better or worse. On the other hand, a more routine and winner case for the prosecution will not require too many comments or written information.

In determining whether the prosecutor's note taking is a good or a bad sign, your lawyer will observe the prosecutor's demeanor during the next pretrial hearing. The prosecutor's attitude, comments, and tone of voice will be reflective of whatever comments were made in the file at the preceding hearing.

In instances where the prosecutor is relatively new and who is most likely employed on a probationary basis, your Orange County DUI lawyer will have the upper hand. If the prosecutor has a weak win-loss record, your attorney could present your case in light that could potentially cause the prosecution more problems. In such cases, it is very likely that the prosecutor will settle your case.

In short, assessing the intention of the prosecution is an invaluable skill that an experienced Orange County DUI lawyer can bring to your case. For a free initial consultation, contact dedicated Orange County DUI lawyer Barney Gibbs today.

The federal government has begun a crackdown on what it calls illegal marijuana operations in California that are seeking cover under the state's medical marijuana laws. The U.S. Attorney's Office says it is targeting major growers and distributors who have begun supplying much of the rest of the country out of California. Given the different treatment of marijuana under California and federal law, this effort may only create even more confusion.

Federal prosecutors announced on Friday, October 7, 2011, that they are targeting a large "marijuana grow" in Kern County and a medical marijuana collective in Bakersfield as part of this new crackdown on allegedly illegal operations. The U.S. Attorney for the Eastern District of California, which includes Bakersfield, filed a lawsuit to seize two warehouses leased to the American Green Farmers medical marijuana collective, reports the Bakersfield Californian. This is at least the second such suit filed against AGF or its officers.

The same U.S. Attorney's office filed criminal charges in July against eight people arrested in Kern County by the local sheriff's department in a raid that seized about 2,400 marijuana plants. Prosecutors say the crop was grown in the open, hoping for protection from California's medical marijuana laws. So far, prosecutors and medical marijuana supporters both agree that the violations alleged by the U.S. Attorney are illegal under both state and federal law. Many medical marijuana advocates worry, as described by an op-ed in the Santa Cruz Sentinel, that the scope of the U.S. Attorney's operation will net operations that comply with state law. This would only lead to further confusion.

The U.S. Attorney's actions are clearly sanctioned by federal law. Marijuana is a Schedule I drug according to the federal Controlled Substances Act of 1970, putting it in the same category as drugs like LSD, ecstasy, and peyote. The law defines a Schedule I drug as having a "high potential for abuse," no "currently accepted medical use," and a lack of a safety procedure to use the drug with medical supervision. Sentences for offenders can be severe, even if the offense is first-time or nonviolent. The federal government, particularly, the Drug Enforcement Agency, has taken the position that federal drug laws trump state laws under the U.S. Constitution's Supremacy Clause.

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