Orange County Criminal Defense Attorneys Blog

Drew Peterson was recently convicted for murdering one of his missing wives. While many people believe this was the correct verdict, the way the conviction was obtained tears at the fabric of our Constitution. It troubled jurors that they were able to reach their verdict based on hearsay. They should be troubled. We all should be troubled. We, as Americans, believe in the right to confront and cross-examine our accusers. When someone is convicted without exercising that right, justice is not fully served.

Hearsay evidence is an out of court statement that is being offered for the truth of the matter stated. This type of evidence is usually inadmissible unless the statement comes under an exception to the hearsay rule. Sometimes an out of court statement is not being offered for the truth of the matter. When the statement is not being offered for its truth, then it is not considered hearsay. Confusing? Yes.

Continue reading "Convicting on Hearsay: What's Troubling With the Drew Peterson Verdict" »

Most people don't know that the crime of indecent exposure, California Penal Code Section 314, requires more than just exposing your genitals in public. This crime has two main elements:

1) The defendant willfully exposed his genitals in the presence of another person who might be offended or annoyed by the defendant's actions;
2) When the defendant exposed himself, he acted lewdly by intending to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person, or sexually offending another person.

This instruction provides two primary defenses; identity and that the defendant was not "intending to direct public attention" to himself.

The first defense is fairly self-explanatory and is common to other crimes. The way I won my last case was challenging the second prong.

Continue reading "How I Beat An Indecent Exposure Charge: The Weenie Wagger" »

Before we get back in to what happens at a drug driving under the influence trial, let me give you a piece of advise. As a disclaimer, with criminal cases, there are no hard and fast rules because every case has different facts and someone's guilt or innocence could turn on a single fact. But, generally speaking, if someone is stopped and is in danger of getting arrested for driving under the influence of drugs, that person should refuse to do the field sobriety test. You don't have to do them and they are only going to be used against you (just like an incriminating statement).

It would seem obvious that field sobriety tests are not an accurate reflection of a person's ability to drive. Not being able to stand with your feet together, tilt your head back with your arms at your sides close your eyes and sing the national anthem backwards does not mean you can't drive a car. If it did, the DMV would make it part of the driving test. But the prosecutor always asks her expert this series of questions;

DA: Is driving a divided attention test?
Criminalist: Yes. It is an extremely complicated divided attention test in which the
driver has to process information very quickly while dealing with various stimuli all
while operating a car.
DA: Are the Field Sobriety Tests divided attention tests?
Criminalist: Why yes. They are comparatively simple divided attention tests.

The prosecutor then argues that if someone can't do these simple divided attention tests, then that person couldn't possibly perform the complex divided attention test of driving an automobile. Therefor, the person is impaired.

This seemingly ridiculous argument works...frequently.

The criminalist also will usually tell the jury that performance on these field sobriety tests accurately reflect a person's ability to drive and have been scientifically verified. This is inaccurate at best and a lie at worst.

Continue reading "How I Beat A Marijuana Driving Under The Influence, Part 2" »

I was in trial in early July and my client was charged with driving under the influence of marijuana and vyvanse. Drug DUI's are different from alcohol DUI's in many ways. But, the primary difference is that there is no per se limits for drugs like there is for alcohol DUIs. Most people know that the legal limit for alcohol on board is .08%. If you are at that level or higher at the time of driving, you are criminally under the influence. Regardless of whether you feel the effects or are driving perfectly, you are guilty. This level has been established through borderline scientific studies performed over the last 30 years. The National Highway Transportation Safety Administration and other groups have performed "wet labs" to determine at what level most people are under the influence. At these "wet labs," people are given alcohol, tested, and then put through a driving course. This sort of testing has not been done with drugs and is very difficult to perform with drugs because of the wide range of reactions that individuals have to different drugs. So, how does the prosecutor prove his or her case?

Continue reading "How I Beat A Marijuana Driving Under The Influence" »

People often ask me, "How do you do what you do?" One of the stories I frequently respond with is of the Marine Corp. Captain whose life my father saved. On this Memorial Day I think of the Captain and I thank him for what he does for our country, and I thank my father for what he does for his clients. Instead of The Captain being released from a military prison this Memorial Day, the Captain is with his family and he is protecting this country.

When I was 17 years old, my father met with a Marine Corp. Captain charged with manslaughter. He was responsible for a live fire ammunition drill at a marine base. During one of the exercises, a marine was shot and killed. They blamed the Captain for the death of the marine. My Dad, being unfamiliar at the time with military proceedings, initially declined to represent the Captain.

A few days later the Captain again contacted my father and asked him to represent him against these serious charges. My Dad spent more time explaining that the Captain was better off sticking with his J.A.G. lawyers and fighting these charges with people who were more familiar with that system. The Captain implored my father. This meeting ended differently. Instead of saying no, he said he needed time to think.

My dad contacted his father, Colonel John Edward Barnett. Decorated Marine Fighter Pilot. J.A.G. lawyer. Great Man. After a long conversation, the Colonel told my dad he really had no choice. Despite my dad's unfamiliarity with military proceedings, he was still the person who gave the Captain his best shot of beating these charges. If my Dad did not help the Captain, and the Captain was convicted, my Dad would never forgive himself.

Continue reading "How Do You Do What You Do?" »

This week I experienced something disturbing. I know attorneys have bad reputations for being slimy, dirty liars. And I know that this reputation must come from somewhere. But it still amazes me when an attorney takes advantage of someone's vulnerability during a difficult time.

I met with a potential new client last weekend regarding a DUI that she had recently been arrested for. I normally don't charge for consultations and this situation was no different. She was arrested in Los Angeles County by the California Highway Patrol. Her breath test results were .09, just .01 above the legal limit. She has no criminal history and is an upstanding member of the community who recently obtained an excellent new job after graduating from school.

The first attorney she called (before she called me) asked her a few preliminary questions over the phone. He promptly told her that she was in big trouble. He told her that she was looking at 6 months in custody, but his firm was able to get people like her in to alcohol programs early and present mitigating information to try and keep her out of custody.

She freaked. Six months is the maximum someone could receive as punishment for a first time DUI. Technically he did not lie to her. The real truth is that very few first time DUI's in Southern California that do not involve an accident, a very high blood alcohol concentration or injury or death, end up in jail time.

The likelihood that this young woman would get jail time for this offense is miniscule. She does have to be advised of the potential for jail time, but this attorney was using that technical possibility to frighten her in to hiring him.

That was not the most offensive thing that an attorney did to her that week.

Continue reading "Beware the Attorney Who Promises Too Much (He Often Delivers Very Little)" »

Don't be surprised if George Zimmerman is found not guilty. If he was being tried in Orange County, California and I was his attorney, I would focus my defense on the circumstantial evidence instruction, also known as CalCrim 224. The most important part of this instruction reads, "If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence." This means that a juror does not choose between reasonable conclusions. A juror does not decide which reasonable interpretation he or she believes more likely to be true. If a reasonable defense conclusion exists, the defendant is not guilty.

Trayvon Martin was shot and killed on February 26, 2012 in Florida by George Zimmerman. Many people have heard the various 911 calls and conflicting information is being circulated about the evidence the prosecutor has at her disposal and I am relying on this incomplete and potentially inaccurate picture of what happened on the night in question.

Most people have heard the term circumstantial evidence used on Law and Order or other television crime dramas. People bemoan the evidence against an accused as "purely circumstantial." While circumstantial evidence in TV drama parlance is seen as inferior evidence, in California and most other states, it is just as good as direct evidence. Then what is the difference and how does it affect the justice system?

Continue reading "George Zimmerman and Trayvon Martin: Why Circumstantial Evidence May Be the Difference" »

We try the cases because it is fun. We try the cases because people lie. We try the cases because we enjoy fighting for the underdog. We enjoy walking with the person no one else will. We try the cases because there is no greater rush than hearing a jury say those two little words: Not Guilty.

Trying cases is difficult and scary. Fear overwhelms many people and prevents them from trying cases. What separates the trial lawyer from everyone else is the ability to face "the beast" and overcome the fear. Every trial lawyer feels "the beast" every morning of trial. It is normal. But when a lawyer learns to harness this beast, he becomes dangerous. He removes the final hurdle between being average, and being great.

The first five jury trials I did I couldn't hear anything. I was just trying not to puke on myself. The adrenaline pumps in your ears and everything happens too fast. After my fifth trial, I started hearing what people were saying. I could hear jurors' answers to questions. I could hear the judge overruling my objections. I could hear the DA committing prosecutorial misconduct every fifth sentence. By my sixth trial, I had controlled the adrenaline enough to get the blood out of my ears, but I didn't have enough control of my adrenaline to get control of my brain or my tongue.

Continue reading "The Greatest Show on Earth: The Jury Trial" »

Many people operate under the false assumption that if there is a chemical test above a .08%, they are guilty of DUI. The truth is that the testing devices used by police are not always accurate. The breath testing machines and other blood alcohol measuring procedures are governed by Title 17 of the California Code of Regulations. If Title 17 is not adhered to, the tests are presumptively inaccurate and inadmissible.

For Background, in California there are two separate charges for driving under the influence of alcohol, 23152(a) and 23152(b). The "A" count looks strictly at impairment. The "B" count addresses whether or not an individual was at or over a .08% at the time of driving. The prosecution has several hurdles it must clear before a person can be proven guilty of driving under the influence.

The breath testing machines used by police departments to determine blood alcohol concentration are far from reliable. In recent years, there have been multiple police departments in California forced to reexamine their breath testing machines because of their unreliability. Most recently in San Francisco many DUI cases are under review because police were not following proper procedures. The San Francisco Public Defender's Office first realized there was a problem when all of sample tests were registering identically to the actual tests - basically a mathematical impossibility.

Continue reading "Problems with Breath Tests In DUI Investigations: False Assumptions" »

23 year old Danae Miller received 4 years in state prison for driving under the influence of alcohol and striking and killing a man riding a bicycle. The collision occurred on February 21, 2011 after Danae Miller had been drinking at her work in Corona Del Mar. She pled guilty to violating California Vehicle Code Section 191.5(a), Gross Vehicular Manslaughter while intoxicated. Ms. Miller will most likely end up spending 2 years in custody at which time she will be released under the supervision of parole.

The punishment for a Gross Vehicular Manslaughter while intoxicated is either up to a year in the local jail or a sentence in state prison for a period of 4 years, 6 years or 10 years. There are several factors that affect what punishment a person will receive for a violation of this vehicle code section. In Orange County, these types of cases almost always result in a prison sentence.

The issues that a court will consider in sentencing an individual in these sorts of cases are the defendant's driving record, blood alcohol at the time of driving, any contributory acts on the part of the victim and the defendant's overall criminal record and role in the community. It appears that Ms. Miller was able to post bail shortly after being arrested on this case. The collision occurred on February 21, 2011 and when she pled over a year later, she only had served 2 days in custody. Most likely she quickly enrolled herself in some sort of alcohol treatment program. If she did get herself in to a residential treatment program, there is little doubt that effected the Court's decision to give her a term of 4 years in prison instead of 6 years in prison. Courts look favorably on people who address the problems in their lives and attempt to "fix" the problem that created the law violation. Quickly enrolling in an alcohol or drug abuse program also indicates to the court that a defendant is taking the charges seriously. A defendant's level of remorse will be taken in to consideration when a Court is looking at the appropriate punishment.

The aggravating factors in Danae Miller's case appear to be her history of traffic violations and that she may have been texting on her cell phone shortly before striking the victim. The mitigating factors were probably her appreciation for the seriousness of the charges and her remorse for her actions. Her blood alcohol level was reported to be .10%. This level is relatively low and close to the legal limit in California of .08%. While her blood alcohol concentration wasn't the determining factor in the 4 year sentence, I am sure it played a role.

Continue reading "23 Year Old Orange County Resident Receives 4 Years State Prison for DUI Killing of Bicyclist" »