It's time to celebrate Cinco de Mayo and that also means it's time for DUI checkpoints. DUI checkpoints for the popular Mexican holiday will be set up throughout the Bay Area.
In the second installment of my favorite new criminal laws, we'll be discussing child molestors, zoos and circuses.
Possible License Revocation for 4th time DUI offender
Starting in January 1, 2012, at the discretion of the judge, a person convicted of a fourth DUI within 10 years may lose his or her license for 10 years.
Expungements now available for Infractions.
Expungements which were formally available only for those convicted of felonies and misdemeanors are now available for those convicted of infractions. Gaining an expungement releases the defendant from all penalties and disabilities flowing from the conviction.
Child Molester Parolees may not enter a park
If one is convicted of child molestation, during the term of their parole they may not enter a park where children play without the express permission of their parole agent.
No Trespassing at the Zoo or Circus
It is now a crime to enter an animal cage at the zoo or a prohibited area at the circus. The crime can be either an infraction or a misdemeanor.
In 1987 the California Court of Appeal dealt with the issue: whether sobriety checkpoints are permissible under the federal and state Constitutions. They concluded that sobriety checkpoints conducted in accordance with certain guidelines were permissible under the United States and California constitutions. One of those guidelines is advance publicity of the DUI checkpoint.
In 1987 the California Court of Appeal considered whether sobriety checkpoints are permissible under the federal and state Constitutions. They concluded that sobriety checkpoints conducted in accordance with certain guidelines were permissible under the United States and California constitutions. One of those guidelines is advance publicity of the DUI checkpoint.
The first ever sobriety checkpoint was conducted in Burlingame, California in November of 1984. The enforcing agency used the guidelines suggested in an opinion issued by the Attorney General's office earlier that year. The court in Ingersoll (43 Cal. 3d 1321) used the Burlingame sobriety checkpoint as a model for others and reviewed the standards, which should be applied when a police enforcement agency conducts such roadblocks.
The court determined that sobriety checkpoints are permissible under the federal and state Constitutions, but the court said that: "the primary purpose of the [vehicle] stop was not to discover evidence of crime or to make arrests of drunk drivers but to promote public safety by deterring intoxicated persons from driving on the public streets and highways." Id. at 1328. However, if you ask any police officer what is the purpose behind sobriety checkpoints, most if not all will likely tell you, to discover evidence of crime and to make arrests of drunk drivers. The court's reasoning seems inconsistent with the way the law is actually being enforced so which is correct?
In my opinion an experienced criminal lawyer should argue for his client that the sobriety checkpoint is not permissible because it was a warrantless criminal arrest and not administrative in nature, as the court in Ingersoll seems to suggest. In other words the court in Ingersoll seems to suggest that sobriety checkpoints can only be conducted for the purposes of deterring crime and not to enforce criminal laws. The difference being that an administrative search is one that allows only the deterrence of crime, but police officers may not circumvent law enforcement search procedures by merely labeling a vehicle stop as a deterrent, there must be violation prior to making a traffic stop.
One caveat to the above recommendation is to determine whether an administrative stop was combined with the criminal stop. For example, if the sobriety checkpoint is also a driver license checkpoint than the latter is administrative in nature and thus the roadblock is permissible. Id. at 1352 and Delaware v. Sprouse, 440 U.S. 648.
If you believe you may have received a DUI as a result of an illegal checkpoint, call Attorney Christopher Morales today to discuss your rights.
As we mentioned in the pre-trial conference section, sentencing is a decision made by the judge, either following a guilty or no contest plea, or a guilty verdict at the end of a jury trial. The charges filed against a defendant can give a range for sentencing, but the judge makes the final decision. So, how does a judge decide the sentence? The circumstances surrounding the crime and arrest, or a defendant’s history often affect a judge’s decision. A repeat offender found guilty of a violent crime is more likely to receive a heavier sentence than a first time offender. Because of this, defense attorneys try to show “mitigating circumstances” played a role in their client’s arrest. For example, they might argue that their client was merely an accessory to a crime, or committed it in a carefully non-violent manner while under great personal stress. Also, “aggravating” circumstances, which make the crime seem worse, can lead a judge to add to your sentence. In this regard, violent crimes proven to be gang related or committed with a deadly weapon will hold stricter mandatory sentences automatically.A defendant's sentencing can be one of the most important stages of a case, because of this it's extremely important to have an experienced
If your case gets all the way to a jury trial, here is what you can expect. First, a jury is selected. Approximately 100 citizens are brought to court. The judge, defense attorney and prosecutor question them in an effort to find 12 fair and impartial jurors. Next, the judge decides whether certain evidence will be allowed during the trial. Once that happens, each side makes an opening statement to the judge and jury. An opening statement is a speech the attorneys give to the jurors telling them about the evidence that will be presented at trial. After opening statements, the prosecution calls witnesses to present its case. The defense has an opportunity to cross-examine the witnesses, and then the prosecution can ask them questions once more, called a redirect, before resting their case. After the prosecution has finished presenting their case, the defense may present their case. The defense may call and question witnesses and present evidence. Just like before, the prosecution gets a chance to cross-examine the defense’s witnesses, and the defense can redirect, or ask follow-up questions before they rest their case. The defense may not call witnesses or present evidence if they feel that the prosecutor has not proven their case.
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DUI/DWI checkpoints must be disclosed by the agency conducting the enforcement. The checkpoints are usually disclosed through the news, either in print or television. Look at your local newspaper to see if your local agency published the location of upcoming checkpoints, or watch the local news. You can also research the date, time and location on the web.
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“Prelims” are a lot like trials, but have no jury, and the prosecution only has to prove that a trial is necessary, not that the defendant is guilty of the accusations. Several outcomes are possible. The judge can rule that the defendant should stand trial for the original charges, he or she can reduce the charges to a less serious offense or, less commonly, the judge can dismiss the case. Dismissals are rare mainly because the prosecutor only has to prove that probable cause exists, that their charges are worth investigating at trial. Also, we mentioned above, defense attorneys are likely to save their strong arguments for trial, since they know they are unlikely to get the case dismissed at the preliminary hearing.