Saturday, December 12, 2009

Complacency Kills…Patients and Careers

I did my paramedic internship at Los Angeles City, Rescue 66, in the spring of 1989. You might think I am crazy, but I recall that as being one of the best times of my life. My preceptors, Mike Samudio and Kelly McKee were clinically tough, but very fair. They did what they had to do to make sure that I could do what I had to do when I had to do it.

What I remember, and appreciate, the most is that they took the time and spent the energy to make sure that I always considered and appreciated the role of a paramedic from the patient’s perspective. With them, even the twentieth patient in as many hours received the attention, respect, and care as the first. The sweet old lady with chest pain, the juiced-up gang-banger with a gunshot wound, and the homeless drunk with a bellyache since 1964 were all treated with the same attention to proper care (as patients) and proper treatment (as human beings).

As it is with many interns, about half way though my internship I became too comfortable with my preceptors and my skills. I recall one particular incident like it was yesterday. It was the middle of the night; I was tired and cranky and faced with (another) young woman who was emotionally upset over something her boyfriend had done. She was in no distress and the very thorough assessment – including an EKG – revealed nothing more than big trouble for boyfriend when he returned. Nevertheless, with the Captain, Engine Company, family members, and preceptors watching, I presented her with disposition options: First, I told her, we could take her to the hospital if she desired. Or, I continued, she could stay home with her family and see her private doctor in the morning. Had I stopped at those two options, there would be nothing about which to write. Of course, I did not. Her third choice, I presented smugly, was “…or we could take you to Disneyland. That always makes me feel better…”

I could see the words as they left my mouth and hit the air. They would not be retrieved. The damage was done. The simultaneous and confounded looks of disappointment on my preceptor’s faces said it all. I am reasonably sure that, if I had a tail, it would have instantly lowered and tucked itself between my legs.

When the dust settled, and there was a lot of dust, Kelly McKee pulled me aside and calmly gave me some of the best advice I have ever received: “Dave,” he said, “your not going to like everyone you come in contact with. Sometimes you’re going to be tired and sometimes you may not want to be there. But, as long as you are, remember this: Complacency Kills. The minute you begin to treat people differently or cut corners, someone is going to die…and it could be you.”

I have never forgotten that lesson. I have passed that wisdom on to every intern I ever precepted and tried to apply it in my daily life. Now, I pass it on to you.

I shared my story, albeit rife with sentimentality, to provide a bridge from conceptuality to tangibility; to encourage some reflection on your own career as we analyze a case where complacency did kill.

Wright v City of Los Angeles
On May 19, 1979, witnesses saw a fat man picking up Jerry Wright and hitting him up against the side of a car as Wright screamed, “Help, police, I'm being robbed.” Wright tried to get into the car, but the other man pulled him away and continued to beat him. Moments later, a man came out of an apartment across the street and hit the fat man, who fell under the car. The man then helped Wright into the car. When he started it up, it rolled backwards, and then stopped; Wright just sat there.

Moments later, two police officers arrived; one had his gun drawn and pointed at Wright and ordered him to come out of the car, but he did not comply. He remained slouched and leaning against the back of the driver's seat. Another witness urged the police not to shoot, saying that Wright could not get out of the car because he was beaten up or hurt, and that the man on the ground had done it. The officers opened the passenger door and pulled him out, half into the gutter. One of the officers poked him with a baton, but he did not move. The other officer pushed him over onto his stomach, put his hands behind him and handcuffed him. He was lying on a grass parkway, with his head leaning over the sidewalk; one of the officers kicked him between his neck and shoulders and moved his head back onto the grass.

Witnesses heard Wright loudly complaining that his head hurt, that he hurt all over and needed an ambulance. The police called for paramedics. Soon after, an ambulance with two paramedics arrived to find numerous police vehicles and officers, and the fat man lying in the street. A police officer directed one paramedic to Wright; the other attended the fat man. The paramedic did not recall being told Wright had been complaining of pain or that he hurt all over and had asked for an ambulance. He knew that there had been a fight and assumed that was why the paramedics had been called, he never asked the police why they had been called.

The paramedic approached Wright and asked him what was wrong or what had happened; Wright did not respond. He asked Wright if he was hurt and Wright said he was not hurt; he did not complain that he hurt all over. The paramedic did not ask Jerry a series of orientation questions. While the paramedic was talking to Wright, he was examining him visually to determine why they had been called to the scene. He then did what he called “…the 60-second examination…” a brief visual examination of the body to determine if there is a life-threatening situation. It was the only examination he did; he did not check a pulse or blood pressure. He did not recall if he touched Wright’s skin, although he could have done so while examining his body for visible injuries. After the 60-second examination, he told a police officer if Wright was to be booked he should probably see a doctor first; the paramedics then left.

Wright died at the scene a short time later from Sickle Cell Crisis. The paramedic was found liable and the plaintiffs were awarded millions.

Wright v. City of Los Angeles has become a landmark case for EMS providers everywhere the duty to act is at issue. Recall from my column “Are You Just Down the Street From a Lawsuit,” the Zepeda case established that staging away from certain non-secured situations did not violate the provider’s duty to act, particularly because the paramedics never initiated patient contact before the police arrived. In Wright, however, the scene was secure and the paramedic initiated patient care by approaching, asking questions, and making a substantive disposition.

When it comes to a provider’s duty to act, most every jurisdiction follows the same essential rules: The provider has a duty to act as would a reasonable provider with the same level of training and skill, in the same locality, and under the same or similar circumstances. Acting reasonably is not rocket science, yet so many providers continue to stumble around the standard, guided by what they think they know rather than what they actually know.

One of the first questions for the jury was: did the paramedic have a duty to act? Of course he did. He was summoned to the scene of an emergency to perform the duties for which he was hired; to empirically determine the patient’s condition through the use of available diagnostic tools and assessment skills. Likewise, he had a duty not to rely solely on the statements or non-statements of others, including the patient himself.

In this instance, a “reasonable” paramedic would have asked more about the circumstances which led to the response. A “reasonable” paramedic would have been motivated by the story of a fight to do a physical assessment including vital signs. A “reasonable” paramedic would have wanted to know about medical history because that is what reasonable paramedics do; like lawyers, they gather as much information as possible to get to the truth, or to at least reach an informed conclusion. A “reasonable” paramedic knows that what you see is not always what you get.

The next question for the jury was: did the paramedic breach the duty? Where one owes a duty and fails to perform, he is in breach. This was not a stretch for the jury and it will not be a stretch for you either. Chances are, unless you are absolutely clueless, you already know as you walk away from a call whether you did everything you should have – according to local training, protocols, procedures, and standards of care, not according to your psychic abilities and unquestionable experience. If you didn’t, then the possibility that you missed something, as infinitesimal as it may seem, will follow you wherever you go… at least until the statute of limitations runs out.

The last questions for the jury included: were there damages and did the paramedic’s breach of his duty cause them?

Determination of cause essentially boils down to two words: “But for…” But for the paramedic failing to do the full and complete assessment which was his duty, would Mr. Wright have died as, how, and when he did? The truth is there is no way of knowing.

On the other hand, we do know that if the paramedic had done a full and complete assessment and learned of the sickle cell disease and transported the patient to the hospital, rather than passively suggesting to the police that a doctor look at him if he is to be booked, Mr. Wright would have received advanced medical attention and his odds of survival would have improved exponentially over what he received face down in the grass.

All too often paramedics develop preconceived notions and even generate conclusions before they arrive on the scene. Sometimes that works. If you know you are going to the scene of a vehicle roll-over, it is safe to assume that a trauma center is a probable destination. Or if you are called to the scene of an overdose, person not breathing, you may reasonably forecast the use of Narcan®. Experience tells you certain things.

However, a drunk is not always a drunk. Each patient and every situation is unique, even those you have seen a thousand times. And you will never know until you have done a comprehensive and thorough assessment. Would you do a 12 lead EKG on a 34 year-old female with abdominal pain? I recall an afternoon when my partner and I did, mostly because we could. Wouldn’t you know it? She was having an MI.

As long as I live I will never understand how some providers continue to find a disadvantage to doing a full and complete assessment; how, as a matter of course, they rationalize circumstances where it’s just to burdensome to check vital signs and ask all of the necessary and appropriate questions. Perhaps it was my training, or maybe it’s just me. But it will never make sense.

Next time you find yourself on scene with “nothing,” I suggest you prove it. Because, when you will need me.

Wright v. City of Los Angeles: 219 Cal.App.3d 318, 268 Cal.Rptr. 309 Cal.App. 2 Dist.,1990.
Zepeda v. City of Los Angeles: 223 Cal.App.3d 232, 272 Cal.Rptr. 635 Cal.App. 2 Dist.,1990.
Torts-Cases and Materials: Prosser, Wade and Schwartz, 10th (2000)

Friday, December 11, 2009

Sometimes When You Lose, You Win

When I was a Paramedic, some of the most difficult days involved witnessing the senseless violence and death that have become commonplace in society. I remember a man who was shot in the stomach for the rims on his car. I remember holding the lifeless body of a four-year-old who had choked to death while eating a hamburger alone in his bedroom. I remember the 18-month-old who was raped by her babysitter's boyfriend. I remember the way I felt inside when there was nothing more I could do, though I had done everything possible.

As a
Criminal Defense Lawyer, the most difficult days are not too different and I had one of them last week.

My client, a 31-year-old black man with two strikes on his record and just days away from cleanly completing three years of parole, was arrested and charged with furnishing marijuana to a minor.

It seems my client was one among a group of individuals standing together in an alley behind a home. One of the individuals in the group produced and began smoking
marijuana from a pipe. In the ultimate demonstration of bad timing, a police car turned into the alley and witnessed the individual smoking. Naturally, the officer commenced an investigation and called for backup.

When the officer questioned my client, he was immediate, honest, and up-front. "Do you have 'anything' on you?" the officer asked. "Yes," my client answered, "I have a little bit of weed and my California Medical Marijuana Card." He produced both for the officer and further explained his status as a parolee as required by law. In keeping with department policy, the officer cuffed my client and sat him in the patrol car.

However, when my client told the officer about the medical marijuana card, the other three individuals - mere acquaintances of my client - seized the opportunity to save their collective skins. The officer quickly identified the [the only] individual who had been seen smoking as being 16-years-old. "Where did you get the weed?" The officer asked of the boy, now fearful of what his father would do to him when he got home. Knowing that he had pulled it from his own pocket, he nervously told the officer, "he (my client) gave it to me because he has one of them cards that makes it legal." The other two chimed in with their sudden agreement, "...yeah, that dude has a's legal." And that was all the officer needed.

The boy was sent home with his parents and the other two were released at the scene. My client was booked, processed, and charged with a felony. The police report and the witness statement had more holes than a block of Swiss cheese, but one thing was consistent: the witness statements all matched and were in diametric opposition to my client's story.

At the arraignment, the District Attorney made no plea offer. "This is a third strike," he told me, "we want 25 to life." While I was dumbfounded by the coldness, I was not surprised. A conviction of third striker is just what an up-and-comer needs to boost his résumé. It didn't matter. My client was factually innocent of the charges against him. I was ready to fight. Nevertheless, in the interest of full due diligence, I did ask the Judge if the Court was willing to extend an offer. And much to my surprise, the Court offered to strike the strikes and give my client the statutory minimum of three years at half time; with good time credits he would likely be out in about a year.

Graciously, the Judge gave us a week to consider the offer. My client went back to jail and I went to work. I had five work days and a weekend to carefully evaluate and determine the strength of their evidence, the strength of our evidence, and to find any other evidence that could help...or hurt.

By the end of the week my private investigator had interviewed everyone involved and even found a missing witness who had left the scene just moments before the police arrived (no, there was no connection). Although the minor told my investigator that someone other than my client handed him the marijuana, he would not fess up to the fact that my client did not even provide it.

By the end of the week I had employed - at my own expense - another Criminal Defense Attorney and a legal researcher to work with me to uncover and consider every possibility. We all worked overtime.

Was the boy an accomplice? Not within the statutory meaning. Was the boy's statement that my client did not physically hand the marijuana to him relevant? Not the way "furnishing" is defined and applied in the case law. Was the fact that my client did not know they boy, much less that he was under 18 helpful. Nope. Strict liability. What about the holes in their story... that they didn't know my client, but that he gave them free weed? What about the other stuff they said (but I cannot discuss here)? The only way to challenge it would be my client testifying at trial, where the DA would be able to ask my client about his previous felony convictions - even though they were not drug related. The jury is going to believe a two-striker over the testimony of three or four others with minimal or no records at all? Not likely. And not worth risking the rest of this man's life.

By Friday, I was exhausted as were my options. A private investigator, a legal researcher, and two attorneys had spent countless hours looking for a way to exonerate my client. To no avail.

As I drove to the jail to deliver the inevitable advice, I racked what was left of my brain. Nothing. When I got there, I looked him in the eye and broke the bad news. "We can take this all the way...and we might even win, but if we don't you are going to spend most of the rest of your life in prison... all the while knowing you could have been out in a year. I understand the principle, but sometimes when you lose, you really win." Had he wanted to go all the way, I would have taken him there and the fight would have been tough. But the risk was just too high. I advised him to accept the Judge's offer.

Driving away from the jail, I felt a burn in my gut. I just advised an innocent man to accept a year of prison. As I drove, in a last ditch effort and with really nothing to lose, I called the DA. The call was friendly and nice, but the bottom line was simply stated: "...this office never extended any offer. We want your guy for twenty-five to life on the third strike. You want me to make a better offer than the one we never made to begin with? I admire your fortitude and your client is lucky, but it's not going to happen."

As I drove back to my office, with the setting sun piercing through the clouds, I replayed everything in my head: Two-striker. Marijuana card. Group of strangers. Marijuana smoke. And I was reminded of a sound bit of advice that Warren Oates offered Roy Scheider in the movie Blue Thunder: "When you're walking on eggshells, don't hop."
When you find yourself in trouble with the law, I will fight for you with every ounce of strength I have...but I will always tell you how it really is.

Tuesday, December 1, 2009

Knowing a Little Science Never Hurts

What does
say about
DUI Breath Testing Instruments?

The more you know about what "they" know, the better able you will be to understand and protect your rights when the time comes.
The National Highway Transportation Safety Administration (NHTSA) annually publishes a list of breath testing instruments rigorously examined for accuracy and approved by NHTSA for their ability to accurately determine breath alcohol concentration, and thus blood alcohol concentration. The department of health or other appropriate agency in each state reviews the NHTSA list and test results, and issues a list of devices approved for use by law enforcement agencies in that particular state. The following is an excerpt from NHTSA.

Captured Samples
Exhaled air can be categorized into essentially three types of samples: tidal breath air, reserve breath air, and alveolar breath air. Tidal breath air is air exhaled in the course of normal breathing. It is the most shallow of the three types. Reserve breath air is exhaled when the body is exerted. It is produced through deeper breathing than tidal breath air, but great volumes of air are both inhaled and exhaled with little residence in the lung. Alveolar breath air is deep lung air. Since breath testing instruments are intended to measure indirectly the concentration of alcohol in the blood, it is essential for accuracy that the breath sample captured by the instrument for analysis be representative of the air in the alveoli of the lung, because it is in the alveoli that the 2100:1 equilibrium ratio between alcohol in the breath and alcohol in the blood occurs.

Infrared Instruments
Infrared breath measuring instruments operate on the principle that each chemical compound has unique infrared energy absorption characteristics. Ethyl alcohol absorbs energy in the 3.42 micron region of the infrared spectrum. The amount of alcohol contained in a sample can be calculated by observing energy loss when a known energy is applied to the sample. In the infrared devices, infrared energy is projected through a breath sample. A photo-detector identifies a decrease in wave amplitude caused by the absorption of energy by the alcohol. The amount of energy absorbed is equal to the breath alcohol concentration. The greater the alcohol concentration, the lower the wave amplitude. A computer on the instrument determines the breath alcohol content based upon the amount of energy loss, and then applies the 2100:1 conversion ratio to provide a digital readout of the suspect's blood alcohol content.

Because infrared instruments are based upon infrared absorption spectra, which are chemically unique, they cannot be influenced by compound such as acetone, which may have some chemical characteristics in common with ethyl alcohol. In fact, some infrared instruments also provide data on the concentrations of other compounds contained in the breath sample as well as that of alcohol.

Wet Chemical Instruments
When infrared instruments are not used, law enforcement generally uses wet chemical instruments, which operate on the basis of color changes produced through the chemical reaction of ethyl alcohol with chromate salts. These devices obtain a measured volume of alveolar breath and pass that sample through a known volume and concentration of a solution of chromate salt and acid. Chromate salt is yellow. As it reacts with the alcohol in the breath sample, it is chemically altered, resulting in a lighter color. The higher the alcohol concentration, the greater the color change.

A wet chemical instrument measures the difference between the light transmittance of a standard chromate\acid solution and the light transmittance of a sample solution. The difference in transmittance measured is directly proportional to the amount of alcohol in the breath sample.
Preliminary Breath Testing Instruments

PBT instruments are portable instruments for the purpose of BAC screening as part of the pre-arrest field testing. The suspect driver blows for several seconds through a plastic or glass tube, and the PBT provides an instantaneous determination of blood alcohol content.

In most jurisdictions, the legal basis for the use of these instruments is contained in the implied consent laws. While results of a PBT generally are not admissible as evidence of DWI, they do provide officers with additional objective information to establish probable cause for arrest and further chemical testing. They also help to detect persons who may be suffering from an illness or injury such as diabetes or head injury and are in need of chemical treatment, but would otherwise be mistaken for an intoxicated person. There are essentially three types of PBTs: electro-chemical, semi-conductor, and disposable chemical.

In electro-chemical PBTs, alcohol in the breath is absorbed into a fuel cell where it is oxidized, producing electrical current. The higher the alcohol content of the breath, the greater the current output of the fuel cell. By measuring the current produced, the instrument determines the breath alcohol content, and the BAC conversion is displayed with the aid of a computer chip. In semi-conductor PBTs, alcohol increases the electrical output of the semi-conductor. By measuring the voltage output, the breath alcohol content can be determined and the BAC conversion is displayed.

Disposable chemical PBTs are glass or plastic tubes containing a measured amount of the chemical, which is reactive with alcohol. As the suspect exhales through the tube, alcohol contained in the breath reacts with the chemical contained within. The greater the breath alcohol content, the greater the chemical reaction observed.

Non-Invasive or Passive Alcohol Sensors
Passive alcohol sensors (PAS) are instruments that detect the presence of alcohol in normally expelled breath. They require no cooperation from the driver. During the roadside interview of the driver and examination of documents, the officer places the PAS within six inches of the driver's mouth. It contains a small fan which samples the ambient air for examination. An electro-chemical mechanism analyzes the air for the presence of alcohol. Some instruments are concealed within a flashlight and can be used as a passive or active detector. NHTSA studies indicate these devices are effective during sobriety checkpoints when the decision whether or not to continue breath testing must be made quickly.

When the Police Have Questions...

It is natural to want to defend yourself, and this is where most people get into trouble.

Exercising your rights and looking out for your own best interest does not make you a bad person. And it does not mean you are or feel guilty about anything. Nevertheless, law enforcement is trained to make you feel like a bad person when you do seek counsel, but don't be swayed. If you know or even suspect that you a subject in a criminal investigation, it is critical that you consult legal counsel immediately. Do not talk to law enforcement officials, potential witnesses or anyone else without first speaking with an attorney - and DON'T let anyone make you believe that you MUST talk without counsel present.
When you are approached by anyone with questions about a crime or when you come home to find a detective's business card on your door with a note that says, "...please call..." remember, what you do and say right now can have a dramatic effect on the rest of your life... even if you are not involved. Catastrophic consequences are not uncommon for people who were lured into saying the wrong thing to the wrong person.
Do not speak to or trust anyone other than your defense attorney.
It's no secret that the goal of law enforcement is to build cases that can lead to a criminal conviction. Prosecutors and investigators are willing to take their time and expend tremendous resources to build a case against you. No matter what they say, their job is not to protect your rights. It is to get a conviction.
Finally, until you have been arrested, you have no Miranda Rights against self-incrimination, that is to say: Anything that you say can and will be used against you. When you voluntarily talk to law enforcement - or anyone - you can not complain that nobody read you your rights. You do not even have the right to know the charges you are facing.
If you or a loved one is involved in a criminal investigation, please don't wait. The Law Office of David J. Givot can be there to protect your rights AND still allow you to do the right thing.

Thursday, November 19, 2009

Remaining Silent: It's easier Said than Done.

Bad things happen to good people. That is just a fact of life. But, more often than not, good people make their bad situation worse by trying to do the right thing. Huh? Simply put, everyone knows we, in the United States, have the right to remain silent, yet the criminal justice system can make it seem very, very difficult to exercise that right.

Most of us are raised to believe that the police are here to protect us and that we should cooperate with them whenever we can. For the most part, that is true; they are and we should. But, when your reputation and integrity and freedom are on the line, there are limits. In fact, those limits are so important to American culture that they are part of the Constitution.

Police Officers with their uniforms and guns and badges and red lights and moustaches can be very intimidating. In fact, they are trained to be intimidating. They are trained to make you feel powerless against them. When they are dealing with real bad guys, that is a good thing. When they are dealing with you, the regular person who has never had a run-in with the law, it makes them look like a*holes and it makes you feel weak. But, you are NOT weak.

Information like your name, address, and date of birth is not, by itself, incriminating and not generally protected by the Fifth Amendment. On the other hand, questions about where you have been, where you are going, and what are you doing are generally protected and up to you to answer or not. If you choose not to answer, you will not probably be breaking any laws. Of course, while your rights may be preserved, you will have one frustrated and pissed-off cop. It has been my experience that the more frustrated and pissed-off the cop, the less of a sense of humor he or she will have. But, then again, freedom isn't free.

When a law enforcement officer asks something like, "where are you going?" and you respectfully and politely answer with something like, "that's not really any of your concern," which you are entitled to do, you will immediately see the officer's face turn red and you may even see smoke emitting from the ears. Then, as they say, "it's on." Using tone and vocabulary and calculated body language, they will attempt to intimidate you into giving them what they want. They may even say things like, " 'bout I take you to jail and let you think about your answer there?" or " you WANT me to give you a ticket?" The fact is, if they CAN take you to jail or give you a ticket, they are going to; you have no obligation whatsoever to make their case against you any easier. So, don't say anything. And if they do arrest you, say politely, "I want an attorney present during any questioning." Once you say that, they are PROHIBITED from asking any questions about the case for which you have been arrested.

Even then they will use passive-aggressive techniques to get you to talk. They may tell their partner something like, "...we don't really want this guy, but he won't help himself..." or "...he wants his lawyer, so don't ask him any questions...even though he would probably get out tonight if he just helped us." Stay strong. Stay quiet. Don't let them manipulate you. Whatever they say, their ultimate goal is to build their case against YOU.

"...but if I have nothing to hide, then I have nothing to worry about." Really? Is that how so many innocent people with nothing to hide get convicted by their own statements? If you have nothing to hide, that's great. Let your lawyer explain that you have nothing to hide. Law enforcement is trained to ask leading and misleading questions, to provide you the paint with which to paint yourself into a corner. Just remain silent.

When you come home and find the detective's business card on your door with a note saying they "need your help" with an investigation, call a Criminal Defense Lawyer first. Even if you are sure it has nothing to do with you. You never know what somebody said about you behind your back. You can still help with the investigation, you can still be a good guy. Just protect yourself at the same time. Bring a lawyer with you.

Finally, remaining silent means remain silent. Your cellmates are not your friends. Your friends are not your friends. When you are in custody, you have no friends. So do not talk about your case with ANYONE! Wait for your lawyer.
The Law Office of David J. Givot handles all criminal matters in all Southern California courts. If you or a loved one has been arrested, charged, or accused of a crime or are involved in a criminal investigation, call for your FREE initial consultation (310) 699-0070.

Monday, November 16, 2009

Felony & Misdemeanor...What's the Difference?

Criminal violations vary from relatively minor to devastatingly violent. Nevertheless, they are all serious and can cause irrevocable damage to your livelihood and life.
Crimes are classified into levels or degrees. The classification of a crime reflects its seriousness. The actual classification of a particular offense may also vary by the jurisdiction. No matter what, if you are questioned about a crime or are accused of or arrested for a crime, you should consult an experienced attorney as early in the process as possible. A criminal defense lawyer from The Law Office of David J. Givot can explain the particular crime involved and its possible ramifications.

Under federal criminal law and the laws of about half of the states, a felony is a crime that is punishable by imprisonment of more than one year - in California, that means State Prison! Other states define a felony as a crime that is punishable by death or a prison sentence served in a state penitentiary. Generally speaking, the most serious crimes, such as those that are either particularly heinous, involve dangerous weapons or threaten relatively high amounts of financial damage or harm to property, are classified as felonies.

Examples of felonies include murder, treason, rape, arson, burglary and kidnapping.

For federal felonies, defendants have the right to be charged only by a grand jury. This right varies for state felonies.

Because of the seriousness of the offense and the punishment, maximum safeguards for the defendant's rights are built into the prosecution and court procedures. Indigent defendants who cannot afford to hire lawyers and are facing felony charges have the right to free state-appointed criminal defense attorneys.

In addition to social stigma, long-term consequences may include the loss of the right to vote; ineligibility for elected office or professional licenses; restrictions on the right to possess weapons; ineligibility for housing, public benefits, educational benefits or certain jobs; immigration problems; loss of the right to serve as a juror; negative impact on parental rights or divorce proceedings; or the requirement to register with certain criminal registries, such as the Sex-Offender or Drug-Offender Registry.

Persons accused of felonies have the right to jury trials.

A limited number of crimes, such as murder, can be punished by the death penalty. These crimes are often referred to as capital offenses.

Under federal criminal law and the criminal laws in about half of the states, a misdemeanor is a crime for which the maximum possible punishment is incarceration for one year or less. In other states, a misdemeanor is defined as a crime punishable only by fine or by incarceration in a jail.
Some states have different classes of misdemeanors, for example, "petty offenses" that are punishable by six months or less in jail and "simple" or "minor" misdemeanors that have a maximum punishment of 90 days in jail.

Generally, misdemeanors are crimes that are less violent or involve lower levels of harm than felonies do. The legal procedures for misdemeanors are usually simpler than for felonies, the penalties less severe and the long-term consequences less harsh.

Penalties typically include fines, property forfeitures or incarceration in a jail for one year or less.
There is no federal right to a grand jury for a misdemeanor, and state grand jury rights for misdemeanors vary.

Court procedures may be more relaxed than those for felonies. Indigent defendants are generally only eligible for free state-appointed legal counsel when the misdemeanor charges can result in imprisonment upon conviction.

Long-term consequences are normally less severe than those of felonies, although some of the felony consequences listed above may still apply to misdemeanors, depending on the jurisdiction. However, those convicted of misdemeanors generally retain the right to vote.

Generally, if the potential punishment is imprisonment for less than six months, there is no right to a jury trial. However, a Misdemeanor conviction IS A CRIMINAL CONVICTION that will show up on your record.

Minor Offenses
The least severe infractions are minor traffic offenses and the like. The terminology varies by state, but common terms for these offenses include petty offenses, infractions or violations of local law. Often the only penalty is a fine and sometimes the infraction may not even be considered a crime. Violations of local ordinances may be punishable by a fine or a short period of incarceration (maximum length of 90 days).

It is important to keep in mind that crime classifications vary by jurisdiction and that this posting provides general information.
To understand the details of a criminal charge in your jurisdiction, talk to an attorney from The Law Office of David J. Givot in Southern California, who can explain the potential punishment and ramifications.

Friday, November 13, 2009

I Don't Play the "Race Card"

For the record: I detest the "Race Card." I think, for the most part, the racism that is pervasive in the national media is kept alive by those it is said to offend.

Nevertheless, from time to time the dying, but not-yet-dead beast that is racism rears its ugly head in a way that cannot be denied. When it does, there is no "Race Card," only reality.
Although I cannot prove it, I defended a client last week for whom - I believe - that reality nearly destroyed her life. ...but not on my watch.

The Story
One morning, after a decidedly good outcome in court, I received a frantic call from a young woman who had been detained by store security at a famous Beverly Hills department store and subsequently arrested by Beverly Hills Police for allegedly shoplifting clothing.

November 1, 2009 was the final day to pay her department store credit card bill without incurring late fees or penalties. She also had an appointment with her hair stylist that day to continue with the long and arduous process of braiding her hair. "As a young black woman," she said, "braiding my hair takes a long, long time." As a middle-aged, half-Jew, I had no idea how long was long.

She described the process as being very time consuming. She explained that her entire head of hair would take several sessions, each as many as ten hours in length. The session on November 1, 2009 was scheduled to last approximately ten hours. For that reason, it was imperative that she pay the bill first. Moreover, because it was the last day, it was necessary to pay in person rather than by mail.

When her hair dresser arrived at my client's home to commence the process, she explained the situation and suggested that the hair dresser accompany her to the store in Beverly Hills; together they could take advantage of the carpool lane if traffic was an issue and they could stop for coffee. It could be a "girl's" morning before what would be a long day.

When they arrived at the department store, they browsed the clearance and sale tables and the hair dresser, my client's companion, selected items to try on. The pair were escorted to the changing room area by a store employee. Although both women entered a the dressing room area, only the companion tried on any garments.

My client waited outside the dressing room and within the confines of the dressing room area. The two engaged in conversation through the closed door. At one point, the companion asked my client to check one of the racks from which [the companion] had selected items to see if there was a larger size. My client exited the dressing room area, scanned the rack and returned to the dressing room area, though not the dressing room itself.

Moments later, the companion exited the room and the pair exited the dressing room area. My client was escorted to the cashier's counter to pay her bill while her companion left the store having said she would wait in the car.

My client paid her bill and left the store. However, she did not see her companion at or near the car. She assumed the companion was still in the store browsing or trying on clothing. She waited on the benches just outside the store and under the valet awning for some thirty minutes before going back into the store to look for the missing companion. She did not find the companion in the store and continued to wait both inside and outside of the store.

When nearly an hour had gone by, and having attempted to reach her by mobile phone multiple times, my client became genuinely concerned for her companion. She explained to me that it was not unusual for [the companion] to spend long periods of time shopping, but that it had become uncharacteristic.

She approached an employee to ask whether he had seen her companion at which time she was approached by a male who asked my client if she was searching for her friend - and he described the companion. She responded affirmatively and the male told her that he knew where the companion was and that he could take her there.

She followed him through a door that abutted the parking lot and down a flight of stairs. She was led into a small room with a table and chairs and told to be seated. The male, who had not yet identified himself, asked for identification as he began going through her purse.

When my client rightfully objected to the male's conduct and demanded that he identify himself, he identified himself as a "Loss Prevention" employee. He ultimately said that her companion was being detained on suspicion of shoplifting. He asked my client to describe her role in the alleged shoplifting scheme. She explained that she was not aware of any shoplifting, much less any shoplifting scheme. The male persisted and told her that he has video proof that she, in fact, was involved in a shoplifting scheme. He threatened her with criminal prosecution if she didn't "fess up." Nevertheless, she insisted, without waiver, that she was not part of or aware of any such scheme.

The employee dumped the contents of my client's purse on the table and examined it for evidence of a crime. No merchandise from the store, save for her bill payment receipt, was present among the contents.

The employee next attempted to have my client sign an admission of guilt, which she adamantly refused to do. He further attempted to entice her to sign by telling her that he had assigned the value of her theft as ZERO. She still refused to sign any such admission.

Uniformed officers from the Beverly Hills Police Department arrived, handcuffed my client, informed her that she was under arrest for the theft allegations - Felony Commercial Burglary - and was transported to the police station. She was fingerprinted, photographed, and fully booked on felony charges.

My client posted bail and was released from custody.

Upon hearing the story and agreeing to take her case, I drove to the Beverly Hills store. I located the security office and asked to speak with the person in charge. A male identified himself as the person in charge, but did not offer or tell me his name. Moreover, when I identified myself as being my client's attorney, he refused to say anything other than "contact our legal department."

From there, I drove to the Beverly Hills Police Department Headquarters. I located and spoke with the Detective in charge of the matter. Together we watched the surveillance video supplied by the store - the video the security officer said was conclusive in support of their allegations.

The Video
The video begins with a very close up view of my client and her companion browsing though and selecting items from a rack of clothing. The two are dressed comfortably for a Sunday morning in sweats and Ugg boots; both are black females. Neither looked dirty or out-of-place; neither was particularly menacing or suspicious, yet for some reason the camera was zoomed in and followed their every move.

For a few moments, the two appear to be assisted by a sales clerk who comes in and out of frame. Eventually, the companion selects several articles that appear to be jeans. Both appear natural; there does not appear to be any suspicious body language or other behavior demonstrative of a "consciousness of guilt."

After additional browsing, the pair walk toward and into the dressing room area.

Moments later, my client is seen exiting the dressing room area. She approaches the rack of clothing and appears to be searching through it. After looking through most of the rack, she turns and walks back into the dressing room area without selecting anything from the rack. Once again, she did not appear stressed or preoccupied; her movements and behavior were plain and natural.

Several moments later, the two exit the dressing room area. My client appears to be greeted by the sales clerk who escorts her toward the cash register and out of frame. The companion veers left and out of frame.

The scene changes to the perspective of a different camera and is following the companion through the store and out of the exit door. My client is not seen.

The scene changes again to the perspective of a different camera and is following the companion outside and through the parking lot where she appears to be confronted by two individuals. One of the individuals appears to be the male with whom I spoke earlier that day, though the image is not entirely clear.

The video ends. That's it. That's the compelling evidence against my client. Consistent with her story, the video depicted no evidence or even inference of any wrongdoing by my client.

The Detective and I discussed the images and agreed that there was nothing beyond the loss prevention employee's unsubstantiated assertion to support the notion that my client had engaged in any subversive or illegal activity.

The Detective did indicate that, because it was booked as a co-defendant case, he would have to submit it to the District Attorney (DA) as such, but that the DA would have discretion to sever the defendants if appropriate. He also indicated that he had additional information to gather.

I thanked him for the time and consideration.

The very next morning I arrived at the courthouse at approximately 8:30AM and met my client in the hall.

Together we proceeded to the branch office of the DA in the building. She and I met, face-to-face, with both the Charging Deputy DA and the Detective. The Detective indicated to me that he had done some additional investigation and had included those findings in the report he submitted to the DA.

Here's The Kicker
I explained the foregoing to the DA and further explained that my client is a sworn peace officer. That's right, my client is a sworn peace officer... and with no evidence whatsoever to support an accusation, much less a conviction, they flushed her through the process anyway. Not only was she completely innocent, she was the victim of an assumption of guilt by association because the companion was found to have left the store with merchandise she secreted away when my client - a SWORN PEACE OFFICER - obviously wasn't looking.

I pointed out that an arraignment, even with insufficient evidence, could and likely would be catastrophically detrimental to her career as a peace officer. I explained that, even if the charges are later dismissed, the shadow cast over her reputation and integrity would destroy any hope for career advancement.

Finally, I expressed to the Detective and DA that, if they believed and the evidence supports - however remotely - my client's involvement in the alleged incident, then they would be within their right to arraign her and we would deal with the charges accordingly. On the other hand, I submitted, if there is no evidence whatsoever to link her - in any way - to the allegations, then any complaint against her should be summarily dropped.

At approximately 11:20AM, my client and I returned to the office of the DA and were met by the Detective. He told both of us that he and the DA had concluded that there was no substantiated evidence against my client and that no charges would be brought against her absent new evidence.
Ugly situation. Great result. But...

Once again, I do not believe in playing the "Race Card." However, as an attorney I will NOT allow skin color or any other irrelevant factor to determine the future of a good person who has done nothing wrong. I am an advocate of the people I am entrusted to defend. Unless you have the evidence, then don't mess with my clients or me.

If you have been wrongly accused, let me fight for you!

Wednesday, November 11, 2009

Patients Say the Darndest Things!

Although my criminal defense law practice is open to everyone, my extensive Emergency Medical Services background makes me extra sensitive to the defense of EMS providers. From time to time, this blog will focus on EMS-specific issues.

Patients Say the Darndest Things!

On May 20, 2009, a Butler County, Kansas, EMT responded to the call of a 55-year-old male with unknown problems. What he found when he arrived on scene was William "Bill" Moore threatening to hurt himself or others. The EMT followed protocol and procedure and dutifully transported the patient to a nearby hospital.

Along the way, however, in addition to answering various questions about his medical and physical condition, Moore confessed that he had killed Carol Mould, who was murdered in her home in Benton in September 2004.

This is what we in the legal profession call an "Oh, $#!t!" moment. I am sure the EMT would agree. The EMT reported the confession and Moore was charged with one count of murder in the first degree. On October 7, 2009, the EMT was called to testify at Moore's preliminary hearing where he recounted his version of the call and the confession.

In EMS, just like the law, an "Oh, $#!t!" moment is one where, despite all the preparation in the world, you can just never be ready for it. Thankfully, they are relatively rare and when they happen, you can manage your way through them by following a few simple rules:

1. Remain calm. React like whatever just happened was exactly what you expected to happen.
2. Quietly consider your immediate safety and that of your coworkers.
3. Continue with your patient care as appropriate for the conditions.
4. Report your "moment" to the appropriate authority with the Zen-like rationality of Yoda.
5. Document every single detail of the "moment", before, during, and after.
Your documentation will come up again.
Looking back on my career as a Paramedic in the field, I think it was the perpetual prospect of a "moment" waiting around any corner that made the job so much fun. Of course, nobody ever confessed a murder to me...though I have suspected a few.
For more EMS-related information, visit my website:

Tuesday, November 10, 2009

Life After a Conviction

After you are convicted of a crime, you will wonder whether you will be able to find employment. In this economy, that is a VERY important concern.
As times get tougher, employers are more and more concerned about whether applicants have criminal records. The concern stems not from the assumption that ex-cons are inherently bad, but because of huge jury awards that have been rendered against employers for negligently hiring people with criminal histories who subsequently caused harm to others while on the job.
Understand where the employer is coming from. It has to balance its legal and ethical obligations to you, to its employees and to the public.
Another concern for employers relates to whether they will have to disclose the criminal conviction. For example, if a company is trying to attract investors, it may need to make certain disclosures first. Will the company have to disclose that an employee has a criminal conviction for embezzlement or money laundering?

The Double-Edge Sword
On the one hand, it is in the public interest to have those who have been convicted, regardless of whether they ever went to jail, find and hold gainful employment. A routine schedule and regular income lessen the likelihood that a person will reoffend, but a person with a criminal record may face prejudice in the job application process. On the other hand, it is important to protect the public from contact with prior offenders who may have propensities to re-commit. For example, convicted sex offenders should not work with children or vulnerable adults.

How Much to Reveal
Depending on the state, an applicant may not have to reveal any or some types of potentially damaging information, such as arrests not resulting in convictions or convictions for minor matters. Some states have procedures to judicially “erase” a criminal record. A criminal defense attorney can help determine whether you may be eligible to get a conviction sealed, expunged or otherwise legally minimized.

Tips for Workplace Re-entry
Be honest! Employers are interested in employees they can trust, and almost all information on a job application can be checked and verified. Even if it may close the door to certain positions, telling the truth is the best way to get a job that the applicant can keep over the long haul. Remember, in some states not all convictions must be revealed nor can potential employers ask for certain information.

Start the job search with family, friends and acquaintances that may be more likely to
take a chance on hiring someone they know, despite a criminal record.

Do not expect the first job after a conviction to be your ideal job. It is more important to get started somewhere and create a track record, since employers know that a good indicator of future job performance is past job performance. Consider temporary or entry-level positions to build your résumé.
Investigate employment services. Most states have public agencies that administer programs to help people find employment, sometimes specifically designed for those with criminal histories.
Refrain from alcohol and drug use. Some employers require employee drug testing.

Consider the nature of your past offense. Apply for jobs where that kind of offense is less likely to be an issue of concern.

Completing a jail or prison term, doing probation, or paying a fine can be just part of the price of a criminal conviction. The conviction can also affect post-conviction employment opportunities, but some employers are willing to give those with criminal records chances in appropriate circumstances. One job - any job - can be the first step toward rebuilding a career and a life.
A lawyer at The Law Office of David J. Givot will always consider the future when dealing with present charges.

Friday, November 6, 2009

The Sixth Amendment of the US Constitution guarantees the right to an attorney to anyone facing federal criminal charges. The 14th Amendment and some state constitutions also afford this right to anyone facing state felony charges. Those who are indigent and cannot afford an attorney have the right to have one appointed to them for free. Most people, however, do not understand what the right to an attorney means, when this right attaches or who qualifies for a court-appointed lawyer.

If you are accused of a serious crime, it is essential that you retain the services of an experienced criminal defense lawyer to fight for your legal and constitutional rights throughout the criminal justice process. Contact The Law Office of David J. Givot to speak with a criminal defense attorney about your case today.

Federal and State Law
The right to counsel is a fundamental right of criminal defendants guaranteed by the US Constitution. Many states also include this right in their constitutions, and some states provide a broader scope of the right to counsel than the federal constitution. However, defendants facing state felony charges are still entitled to counsel, even if the state constitution does not provide such a right, under the federal constitution via the 14th Amendment.

Attachment of the Right
Criminal defendants are afforded the right to an attorney throughout every critical stage of a criminal proceeding once the right has "attached." Under federal rules, the defendant's right attaches once "adversary judicial proceedings" have been initiated against the defendant. This includes when the defendant has been charged with or indicted for a crime and during a preliminary hearing, information and arraignment.

Thus, for the right to attach, the defendant must have been charged with a crime. It does not attach if the individual is merely suspected of committing a crime. It does not attach during the investigative stage prior to the filing of actual, formal charges — even if the individual is the only suspect. An arrest, without formal charges, also does not trigger the right to an attorney. This does not mean, however, that an individual being investigated for a crime cannot hire an attorney on his or her own.

Once the right has attached, the state cannot interfere with the defendant's right to seek counsel and has a duty to ensure the defendant's right is honored. The right is not available in civil or administrative proceedings or during license suspension or revocation hearings.

Appointed Counsel
In order for a criminal defendant to receive a court-appointed lawyer, the defendant cannot merely be unable to afford the representation of an attorney of his or her choosing, but must meet the definition of an indigent. The trial court has the authority to determine whether a defendant is indigent. Some jurisdictions have guidelines based on income that allow individuals meeting the criteria to be presumed indigent. Other jurisdictions, however, do not have any guidelines and must make the determination on a case-by-case basis.

In those states that determine indigence on a case-by-case basis, the court must look at the defendant's total financial circumstances, including his or her income, assets, debts and other financial obligations before deciding if the defendant can afford to pay for an attorney. Thus, just because a defendant is unemployed does not guarantee he or she will be appointed counsel.

Defendants receiving court-appointed attorneys do not have the right to have an attorney of their choosing. If the court finds that the defendant is indigent, the court will assign a public defender to the defendant. The right to appointed counsel only extends to the trial and the first appeal of the trial court's judgment.

Waiving the Right to an Attorney
Just as all criminal defendants have the right to an attorney, they also have the right to self-representation and can waive the right to an attorney. In order to waive this important right, criminal defendants must be able to prove to the judge that they are competent (have the mental capacity) to waive this right and that their waiver is knowing, intelligent and voluntary. The judge must make sure that the criminal defendant understands the disadvantages of self-representation before allowing the waiver.

Defendants considering representing themselves in a criminal trial should carefully consider the consequences of this action. Criminal defense attorneys have years of training and understand the intricate, and often confusing, workings of the law and criminal justice system. Given the complexities of criminal procedure and, more importantly, the severe consequences a criminal conviction carries, a criminal defense attorney is best suited to protect defendants' legal rights and help them achieve the best possible outcome.

If you or a loved one has been arrested for a criminal offense, you have the right to an attorney. It is important to begin working with an attorney as soon as possible in the process, even if you have not been formally charged with a crime.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Wednesday, November 4, 2009

The BIG 10 from the Constitution

The United States Constitution and its subsequent amendments define the scope of governmental power and reserve certain individual rights to the people. The first 10 amendments, also called the Bill of Rights, contain basic, fundamental rights of individuals on which the government may not impinge. Many of these constitutional rights provide protection to criminal defendants in the criminal justice system. The Fourteenth Amendment extends substantive due process rights beyond just the federal system to criminal defendants in state courts, where the vast majority of criminal trials occur.

Fundamental Rights
Here are the main federal constitutional rights guaranteed to criminal defendants in the United States to promote fair trials. Remember that these rights have been refined and interpreted by the courts and an attorney can advise you about their role in and application to your particular case.
  • The right to due process of law
  • The right to equal protection under the law
  • The right to be free from unreasonable search and seizure
  • The right against self-incrimination or being forced to testify against oneself
  • The right against double jeopardy or being tried more than once for the same offense
  • The right to legal counsel
  • The right to a speedy, public trial
  • The right to an impartial jury trial
  • The right to confront witnesses against you
  • The right to call supporting witnesses
  • The right to be free from cruel and unusual punishment
  • The prohibition against ex post facto laws or laws that retroactively criminalize certain acts or increase criminal sanctions
  • The right to be free from excessive fines or excessive bail
  • The right to clear notice of criminal charges
  • The right to a grand jury in federal felony proceedings

Our criminal justice system is designed through constitutional protections to provide a criminal defendant with a fair trial. If you face any phase of the process, consult an experienced attorney like one from The Law Office of David J. Givot as early as possible to enlist an important ally in your quest to protect your legal and constitutional rights.


Sunday, November 1, 2009

California Field Sobriety Tests for DUI

Field "Sobriety" Tests in California are OPTIONAL!!

Most people don't realize that field sobriety tests in California are completely optional. The police officers who pull you over and give them to you will not tell you this, nor are they required to, but they are optional. You are absolutely within your rights to politely refuse to take the California Field Sobriety Tests in their entirety. In other words, "Just Say NO, Thank You!"
The officer will probably tell you that if you do not comply, he or she will have no alternative but to arrest you. For starters, that is NOT true. And second, it is so subjective that you will probably be arrested anyway if the officer is so inclined and, if you take the tests, you will have supplied them with evidence against you.

These Field Sobriety Tests are not really tests at all. Instead, they are physical agility exercises that are SUBJECTIVE in nature. In other words, the police officer, who already thinks you are DUI because he is giving you the Field Sobriety Tests, is the one who is determining whether you pass or fail each test. Furthermore, police officers are agenda oriented. The more arrests and resulting convictions they make, the better their work records are. Because of this they are actually looking for you to fail.
The officer is looking for any and every mistake that you make. In fact, many people with absolutely no alcohol in their system "fail" these tests.
Field Sobriety Tests may include:
Nystagmus Test - These tests range from 65-80 percent reliable in establishing that a driver is under the influence of drugs or alcohol, which in fact leaves quite a large margin of error. Generally, alcohol slows our responses. When a person is impaired by alcohol the nerves in the eyes are stimulated and do not behave as normal. While a slower response means that a person has difficulty following an object with their eyes, and a severely intoxicated person may have to actually move their entire head to attempt to track an object with their eyes, nystagmus is exaggerated. The eyes will twitch or jerk at less than the 45-degree-angle response in a sober person. It is important to note that nystagmus is a naturally occurring phenomenon of the eyes; drugs and/or alcohol only increase or exaggerate the twitching or jerking of the eyes.
Walk and Turn Test - This test consists of asking the driver to walk heel-to-toe along a line for nine steps, turn at the end and return. It is a simple test that anyone should be able to perform without difficulty, in theory. The test does not account for performance in high heels, windy road conditions, or gravel roads. For the examining officer purpose is twofold: the driver must be able to understand simple instructions and physically manage the test. The police officer is considering if the driver follows the instructions as given; can keep his or her balance; stops to adjust balance or loses balance; uses the heel-to-toe method requested; uses the arms to try to keep balanced; or does not take the required number of steps. However, the external factors that may affect performance are often overlooked and quite often on purpose.
Standing on One Leg Test -This test also has a 65 percent reliability that a driver is impaired (BAC of .10 or higher) if s/he cannot perform this action. Combined with the walk-and-turn test, reliability is about 80 percent. However, it is important to note that even these test results combined leave a 20% margin of error. With a good attorney and the proper experts this margin of error can be exploited. Remember again there can be additional errors of these tests are not administered properly. In this test, driver is asked to stand with one foot raised about six inches. While doing so, s/he must count aloud (one thousand one, one thousand two, etc.) until asked to stop (about 30 seconds)
Finger to Nose Test - This test requires the driver to close his or her eyes and bring the finger around to touch the nose. In certain cases while you are performing the test the officer may try to distract you, thereby altering your ability to successfully complete the test. These tactics are not uncommon and well known by this seasoned Los Angeles DUI defense lawyer.
Alphabet Test - reciting the alphabet, or a portion of it.
Rhomberg Stationary Balance Test-This requires the driver to stand, feet together, and lean the head back to look up at the sky while holding their arms out to the side. The officer is simply looking for a loss of balance. Again this doesn’t take into account any other physical impairments, the road surface itself or many other eternal factors that have nothing to do with alcohol consumption.
Hand Pat Test - The Hand Pat FST requires a subject to place one hand extended, palm up, out in front of him/her. The other hand is placed on top of the first, with the palm facing down. The top hand then begins to pat the bottom hand. The top hand rotates 180 degrees alternating between the back of the hand and the palm of the hand. The bottom hand remains stationary. The DUI suspect counts out loud, "ONE, TWO, ONE, TWO, ONE, TWO, etc." in relation with each pat. The police officer is testing for the ability to follow instructions as well as coordination in performing the task.
Preliminary Alcohol Screening Test (PAS) - The preliminary alcohol-screening (PAS) test is used by law enforcement to measure your blood alcohol level. The PAS device is a hand-held breath-testing unit that gives an instant measure of your blood alcohol concentration. The validity of the test can be argued based on whether the test was properly administered and whether or not the machine was properly calibrated or tested for accuracy prior to testing.


A skilled California DUI lawyer will know how to cross examine the police officer who administered and "graded" each test. He understands the possible flaws involved in each of these tests and will be able to exploit any errors.

Thursday, October 29, 2009

Your Rights in a Criminal Investigation

If you know or even suspect that you a subject in a criminal investigation, it is critical that you consult legal counsel immediately.

Everything and anything you do and say right now can have a dramatic effect on the outcome of your case. Law enforcement is trained to lure you into saying the wrong thing - they are NOT after the truth, they are after YOU! No matter what, do not speak to or trust anyone other than your defense attorney.

Remember that the goal of law enforcement is to build cases that can lead to a criminal conviction. Prosecutors and investigators are willing to take their time and expend tremendous resources to build a case against you. Their job is not to protect your rights. It is to get a conviction.

Until you have been arrested, you have no Miranda Rights againts self-incrimination. Anything that you say can and will be used against you. You do not even have the right to know the charges you are facing.

It is normal to want to defend yourself, and this is where most people get into trouble. Do not talk to law enforcement officials, potential witnesses or anyone else without first speaking with an attorney.

Wednesday, October 28, 2009

Fourth Amendment Rights and Search Warrants

The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures. Fourth Amendment protections only apply to government action.

In addition, in order for a person to have Fourth Amendment rights, the person must have a reasonable expectation of privacy in the area that is searched. Generally, people have a reasonable expectation of privacy in premises that they own or have a right to possess and in their homes. There is generally no expectation of privacy in things held out to the public.

Generally, for a search to be considered reasonable, the police must have a valid warrant. A valid warrant is one that is issued by a neutral and detached magistrate; based on probable cause; and particularly describes the place to be search or items to be seized. One of the main purposes of the warrant requirements is "to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 621-22 (1989) (citations omitted).

Exceptions to Warrant Requirement
While a warrant is generally required for the police to perform a valid search, in reality, many lawful searches are done without a warrant pursuant to the recognized exceptions to the requirement. Police do not need a valid warrant to perform a search under the following circumstances:

  1. Search incident to a lawful arrest - When the police arrest an individual, they can search the person and areas into which the person might reach (called the person's wingspan) to obtain a weapon or destroy evidence.
  2. Automobile - Because of an automobile's mobility, police do not need a warrant to search a vehicle that they have probable cause to believe contains contraband or evidence of a crime. The police can search the entire vehicle, including the trunk and all containers within the vehicle that might contain the object for which they are looking.
  3. Plain view - A police officer does not need a warrant if he is legitimately on the premises and sees evidence of a crime or contraband; the evidence or contraband is in plain view; and he has probable cause to believe that the item is evidence of a crime.
  4. Consent - If a person gives voluntary and intelligent consent to a search, no warrant is needed.
  5. Investigative stop/stop and frisk - A police officer may stop a person if she has reasonable suspicion of criminal activity, and she may do a protective frisk or pat down of the person's outer clothing if she has a reasonable belief that the person may be armed and potentially dangerous.
  6. Exigency - Warrantless searches or entries can be done where there is a need to prevent imminent danger to others, to give emergency help or to prevent the destruction or hiding of evidence. Examples of exigency include an officer in hot pursuit of a fleeing felon and evanescent evidence such as a blood sample containing alcohol.
  7. Entry to arrest with arrest warrant - A police officer does not need a search warrant if he has an arrest warrant and enter the arrestee's home to make the arrest. For "Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter [without a search warrant] a dwelling in which the suspect lives when there is a reason to believe the suspect is within." Payton v. New York, 445 U.S. 573 at 602-603 (1980).
  8. Administrative searches - Searches done for administrative or regulatory purposes (for example, health, fire or building inspections) rather than investigatory purposes generally require a warrant. Standards for administrative warrants are different than criminal search warrants. Despite the general warrant requirement, "a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.'' Donovan v. Dewey, 452 U.S. 594, 600 (1981).
  9. Inventory searches - A police officer does not need a warrant to search a car if she has lawfully seized the car for a parking violation and needs to inventory the car's contents. This exception also applies to taking an inventory of a person's personal effects upon arrest. This exception does not apply if police are searching for evidence of a crime, rather than just doing an inventory.
  10. Search of probationer's home - A probation officer does not need a warrant or probable cause to search a probationer's home so long as there is a valid state law that allows such searches based on reasonable suspicion.
  11. Searches of offices of public employees - A public employer does not need a warrant to search an employee's office to look into work-related misconduct or for other work-related reasons that are non-investigatory in nature.
  12. Drug tests - Because of the government's special needs, there is no warrant requirement for restricted, suspicionless drug and alcohol tests on certain Customs Service employees. In addition, in 2002, the Supreme Court held that random drug testing of all students who participate in "competitive extracurricular activities" is permissible.

Exclusionary Rule
The exclusionary rule holds that any evidence obtained in an illegal search or seizure is inadmissible in court. This means that it can't be introduced as evidence at trial. The rule applies to the federal courts and state courts. Under the "fruit of the poisonous tree" doctrine, any derivative evidence uncovered because of an illegal search or seizure is also inadmissible. For example, if the police illegally entered a person's home and discovered a receipt from a storage locker and then went to the storage locker and found drugs, the drugs would be inadmissible as fruit of the poisonous tree. There are exceptions to the exclusionary rule, which are not addressed here.

Talk to a criminal defense attorney for more information