Author: Darren Kavinoky

Darren Kavinoky is the founder of 1.800.NoCuffs–The Kavinoky Law Firm and is known as an award-winning criminal defense attorney.The American Trial Lawyers Association has named him one of the “Top 100 Trial Lawyers in California” each year since 2007. Los Angeles magazine has identified Darren as a “SuperLawyer” every year since 2010. Darren received an “AV Preeminent Rating” by Martindale-Hubbell (a peer review ranking that signals the highest level of professional excellence and ethics); a perfect 10.0 Rating by Avvo.com (an independent attorney ranking site), and many other accolades.

2018 Law May Be an Opportunity to Earn a DISMISSAL of Criminal Charges

If you’ve been arrested for any crime in California, there is a law that could dramatically impact your case. I’ve been a California criminal defense lawyer for over two decades, and I’ve never seen anything that has this much potential to impact anyone charged with a crime.

On June 27, 2018 California Governor Jerry Brown signed into law Assembly Bill 1810, which went into effect immediately. (This bill created new California Penal Code section 1001.36.)

Penal Code 1001.36 allows ANY defendant charged with ANY misdemeanor or felony the chance to earn a dismissal of their case if they meet certain requirements.

To be eligible, the accused must suffer from a “mental disorder” listed in the Diagnostic and Statistical Manual of Mental Disorders, otherwise known as the “DSM”.  (The current DSM is the DSM-5).

But what is essential to understand is that alcoholism, drug addiction, PTSD, ADHD, anxiety disorder, and many others ARE listed in the DSM as treatable mental disorders!

As a criminal defense attorney, my experience has been that people that are arrested for crime suffer from one of two problems:

  • A “bad luck” problem, like being in the wrong place at the wrong time, OR
  • An alcohol problem, drug problem or other mental health problem that has contributed to the criminal charges.

California Penal Code section 1001.36 means that if a criminal defendant is alcoholic or addicted to drugs (or suffers from some other related mental health issue) and commits a crime related to their mental health issue, they have the chance to participate in either an outpatient or a residential treatment program and earn a dismissal of the charges against them.

There is much that is currently unsettled in how this law will operate, but the potential impact on criminal defendants, and the family of anyone accused of a crime, is enormous.

 

What is Diversion?

Diversion is an opportunity for someone accused of a crime to earn a dismissal of the charges against them. To understand how diversion operates, you must first recognize that in the criminal justice system, a criminal conviction only happens where there is both:

  • A guilty plea or verdict, AND
  • The person is sentenced.

If someone pleads guilty to a crime, but is never sentenced, there is NO criminal conviction.

In a case where the criminal defendant is allowed to do diversion, they enter a guilty plea to the charges, but they are NOT sentenced.

Instead of being sentenced, the judge will order them to participate in a specific program, and if they successfully complete that program, the charges against them are dismissed.  After completion of the diversion program under this new law, the arrest upon which the diversion was based shall be deemed to never have occurred!

 

Requirements Under the New Law

California Penal Code section 1001.36 will apply to both misdemeanors and felonies.  As with any law, there are certain legal requirements that must be met to get this diversion opportunity. The legal requirements are:

  • A mental disorder. Again, the DSM provides that alcoholism and drug addiction are treatable mental disorders.  But the list is much broader than that, and includes such things as anxiety disorders, bipolar disorder, ADHD or ADD, PTSD, and more.
  • The mental disorder played a significant role in the commission of the charged offense.
  • A qualified mental health expert (a psychiatrist or psychologist) offers an expert opinion that the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.
  • The defendant agrees to treatment as a condition of diversion, and the judge is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.
  • The defendant agrees to give up his or her right to a speedy, public trial.
  • The defendant is NOT eligible for diversion if the court finds that the defendant poses an unreasonable danger to the public if diversion is granted.

The maximum length of the diversion program is two years, and there will be regular reports to the court of the defendant’s participation in treatment.

Because this law is so new, there is much that is unknown.  There is no question that this new law will be controversial.  But as someone who has been involved in the justice system for a long time, and who knows intimately about the problems of drug addiction and alcoholism that often drive criminal cases, I can say that I’m inspired that the legislature is taking on this kind of criminal reform.

If you believe that you can benefit from this new law, I invite you to call us for a consultation with a lawyer right away.

 

California Penal Code Section 1001.36

For those who love “legal blah blah,” here is the actual language of Penal Code section 1001.36 that allows for diversion for all eligible criminal cases:

(a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in subdivision (b).

(b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:

(1) The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.

(2) The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense. A court may conclude that a defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense.

(3) In the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.

(4) The defendant consents to diversion and waives his or her right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) paragraph (1) of subdivision (a) of Section 1370 and, as a result of his or her mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of his or her right to a speedy trial.

(5) The defendant agrees to comply with treatment as a condition of diversion.

(6) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

(c) As used in this chapter, “pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:

(1) (A) The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.

(B) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.

(2) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.

(3) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.

(d) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:

(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.

(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.

(3) The defendant is engaged in criminal conduct rendering him or her unsuitable for diversion.

(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:

(A) The defendant is performing unsatisfactorily in the assigned program.

(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.

(e) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (g) and (h). The defendant who successfully completes diversion may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (g).

(f) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(g) The defendant shall be advised that, regardless of his or her completion of diversion, both of the following apply:

(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (f), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.

(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

(h) A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.

(i) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.

(Added by Stats. 2018, Ch. 34, Sec. 24. (AB 1810) Effective June 27, 2018.)

 

The Actual Text of AB-1810

Here is the relevant portion of AB 1810 that gave rise to the new law:

“(15)  Existing law authorizes a county to establish a pretrial diversion program for defendants who have been charged with a misdemeanor offense, with certain exceptions. Existing law also authorizes other diversion programs, including for defendants with cognitive developmental disabilities, defendants in nonviolent drug cases, defendants suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of their military service, and persons issued notices to appear for traffic violations, among others.

This bill would establish a procedure of diversion for defendants with mental disorders through which the court would be authorized to grant pretrial diversion, for a period no longer than 2 years, to a defendant suffering from a mental disorder, on an accusatory pleading alleging the commission of a misdemeanor or felony offense, in order to allow the defendant to undergo mental health treatment. The bill would condition eligibility on, among other criteria, a court finding that the defendant’s mental disorder played a significant role in the commission of the charged offense. The bill would authorize a referral for mental health treatment to be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, as specified.

The bill would, among other things, require the court, after notice to the defendant, defense counsel, and the prosecution, to hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment program should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator, if the defendant is charged with, or is engaged in, certain criminal offenses, if the defendant is performing unsatisfactorily in diversion, or if the defendant is gravely disabled, as defined.

If the defendant has performed satisfactorily in diversion, the bill would require the court to dismiss the defendant’s criminal charges, with a record filed with the Department of Justice indicating the disposition of the case diverted, and the arrest deemed never to have occurred, and would require the court to order access to the record of the arrest restricted, except as specified.

By increasing the duties of local officials relating to diversion and the sealing of arrest records, this bill would impose a state-mandated local program.

The bill would also authorize the State Department of State Hospitals, subject to appropriation by the Legislature, to solicit proposals from, and to contract with, a county to help fund the development or expansion of the above-described pretrial diversion for individuals with serious mental disorders who may otherwise be found incompetent to stand trial and committed to the department for restoration of competency. The bill would require participants to meet specified criteria, including, among others, that they suffer from certain mental disorders and have felony charges, and that there is a significant relationship between the serious mental disorders and the charged offense or between the individual’s conditions of homelessness and the charged offense.

The bill would set forth various requirements for a county submitting a proposal for funding, including, among others, demonstrating a specified match of county funds and reporting certain program data and outcomes to the department. The bill would require the department, when evaluating a proposal, to take certain factors into consideration, and in consultation with the Council on Criminal Justice and Behavioral Health, as specified. The bill would require that patient information and certain personal identifying information reported to the department be confidential and not open to public inspection.”

If you have any questions about this new law, please do not hesitate to call us.

Imitation is the Sincerest Form of Flattery

I love the quotes of Oscar Wilde.  One of my favorites both is a nod to my TV show “Deadly Sins,” (now in production for its sixth season for Investigation Discovery):  “Every Saint has a past, every Sinner has a future.” Anyone who has ever seen my keynote speech knows why that’s also so true for me!  But Wilde is also quoted as saying that “Imitation is the sincerest form of flattery that mediocrity can pay to greatness.”

Of course, anyone who has ever heard our long-running radio ads has heard our legally trademarked phrase “1.800.NoCuffs, because no one looks good in handcuffs… unless you’re into that sort of thing.”™

That must be why my phone, texts, and emails all lit up during that big football game last Sunday, when T-Mobile launched its new campaign that “”Wireless pain is fine… if you’re into that sort of thing…”  My friends were wondering whether I intended to sue them for infringing on my mark.  Of course not!

First of all, the fact that their creative team was so inspired by what’s turned out to be the “stickiest” part of our 1.800.NoCuffs radio campaign made my day!  (I was watching the Big Game too!!)

Next, while it’s really close, it’s not a carbon copy, and I don’t think T-Mobile is getting into the criminal defense lawyer business.

Finally, maybe this is an opportunity for T-Mobile to look at the 1.800.NoCuffs business account, and all of the cell phones I pay for each month (we’ve got a big family over here at 1.800.NoCuffs, The Kavinoky Law Firm), and see if they want to make good on their “inspiration”. Okay T-Mobile… I’m waiting…

 

operation dry water

Navigating Boating Under the Influence Laws

Boating under the influence laws are strictly enforced, and are especially pertinent the summer months.

Summer pretty much translates to water time. Whether it’s a boat ride around the lake, hanging at the beach or water skiing, usually summer conjures up the images of beautiful views, the sounds of splashing of water, and the smell of sunscreen.

Boating and Drinking Don’t Mix

What you normally don’t think of, as part of this picture, is the sounds of handcuffs, the smell of a jail cell, or the visual of red and blue lights rolling up behind you. Sorry to ruin the picture, but I gotta warn you. Its not all fun in the sun out their on the waters.

Law enforcement has made it a new priority to enforce boating under the influence with the same fervor and crack down as they have driving under the influence. That’s right, the same tough DUI enforcement that takes place on the roads will now hit the water. Welcome to Operation Dry Water.

Operation Dry Water

Boating under the influence lawsOperation Dry Water launched in 2009 by the National Association of State Boating Law Administrators with the U. S. Coast Guard, with the goal to bring awareness and education to recreational boaters about the dangers of alcohol and drug use while out on the water. According to the U.S. Coast Guard, alcohol is the primary contributing factor in recreational boating fatalities.

While not mandated, law enforcement agencies have chosen to participate in Operation Dry Water, lending credibility to the concern that Boating Under the Influence (BUI) is a real problem. Here in Los Angeles, the Sheriffs Department at Castaic/Pyramid Lakes and Marina del Rey; the Los Angeles Port Police; and U.S. Coast Guard are participating in the program. June 26 to 28, 2015 has been designated as the Operation Dry Water heightened enforcement weekend. But know law enforcement says outreach and awareness of BUI is year-round and added enforcement will include holiday weekends. So think of all the attention that normally accompanies DUI checkpoints on the road, that same idea has rolled out on water.

Boating Under the Influence Laws

Just so we areBoating under the influence laws all clear: it is illegal to Boat Under the Influence. The California Harbors and Navigation Code is the law on the water. It is not as stringent as the law on the land and often people get confused. The one break you get on water that you don’t get on land is that open containers are fair game. But make no mistake about it, operating a boat under the influence is just as illegal as driving a vehicle under the influence of drugs or alcohol.

The law recognizes that boating under the influence can be just as and even many times more dangerous than driving under the influence of drugs or alcohol. People drive every day and are well practiced at it. When it comes to boating however, many people might drive a boat a couple times a year. Such a person is far from an expert boat driver. For that same person to be drunk and boating is extremely dangerous.

Roads vs. Water

Another important distinction between driving and boating is that driving takes place most commonly on roads that are fairly wide and stable. Boating often takes place out in the ocean where the tides and winds can change in an instant. If a person is under the influence, they will not be fast enough to respond properly to the changing circumstances. In fact, statistics from the United States Coast Guard show that in boating deaths involving alcohol use, over half the victims capsized their own boats and/or fell overboard.

Furthermore, boats, by their very nature, are inferior to cars in their ability to steer and to brake. Given that the typical boat operator spends only a few days a year on the water, they are typically not expert at handling the different problems that boaters encounter from time to time. When the hot sun and alcohol have had their say, an impaired person at the helm of a boat may be in bad shape and will be putting everyone aboard and nearby in danger.

Rules & Regulations

Under the Harbors and Navigation Code there are several laws that regulate boating and drinking. The boating under the influence laws are very similar to the driving and drinking laws. Harbors and Navigation Code 655b states that you may not operate a

  • boat,
  • water skis,
  • an aquaplane, or
  • any similar equipment (such as a jet ski),

while under the influence of alcohol and/or drugs.

Being under the influence is defined as having a blood alcohol content (BAC) of .08 percent for a recreational vessel and .04 percent for a commercial craft. The statute sets a zero-tolerance policy for watercraft such as aquaplanes and water skis and for boaters under the age of 21. The zero-tolerance policy means that any trace of alcohol is illegal when operating these types of watercraft.

BUI Penalties

Boating under the influence lawsDUI and BUI cases are similar in prosecution. Additionally, while the penalties vary, it is only a slight variation. Under the BUI laws, you can still face fines, possible jail time and alcohol education classes. The one distinction is in the length of time priors can be used to enhance your sentence. Instead of the priorability time being ten years, as in DUI cases, priors only enhance a BUI when the DUI or BUI was committed within the last seven years prior to the offense.

Also, unlike a DUI conviction, the California DMV will not revoke or suspend your driver’s license following a BUI conviction.

Fighting a BUI

It is ‘per se’ under the influence if you are operating a watercraft in California and your blood-alcohol content is above a .08%. Keep in mind, you can still receive a BUI dependent on the officer in charge. An officer’s determination that you are “under the influence” is very important. This is true even if your actual blood alcohol content is lower than that percentage.

Let’s assume the scenario above when an officer comes on board for that safety check, the next thing you know he smells alcohol on your breath, decides to do field sobriety tests, and boom next thing you know he determines that you impaired and unable to operate the boat. You may be at risk for arrest based on Caliornia’s boating under the influence laws.

Defensible Cases

These cases can be defensible. Unlike driving patterns, boating behavior (i.e. straggling lanes, speeding, are harder to quantify and qualify, thus giving the boater more margin of error on a boat than in a car. And what about those objective signs? If someone has a red face and crazy hair, driving a vehicle, it’s easy to apply assumptions. This person is drunk! However, that same argument is easily explainable for the person who has been in the sun and wind all day. Isn’t everyone unkempt on a boat? Unsteady gait? Of course! You have been walking on water all day!

Boating under the influence lawsThere are many confusing variables involved in this type of case. Even a seasoned law enforcement officer may mistake light drinking for violation of boating under the influence laws (BUI). Your case may have some of these conditions, or any of the many others that lead to unwarranted BUI arrests. You could find yourself in a position of too much fun in the sun or wrongfully facing BUI charges. If so, you should consult with a crime attorney. A qualified DUI attorney can use the particulars of California boating under the influence laws to help you.

Summer is a great time to get outside and enjoy all that we love about Southern California. Pack your sunscreen, wear a hat, and choose a designated boater.

 

DUI Arrest

What You Need to Know about DUI Crackdowns

DUI checkpoints may impact your drive home. Be sure you don’t drink and drive!

Summer and DUI Enforcement

DUI-Checkpoint3-300x200We are approaching summer and with the change in seasons to warmer weather, local law enforcement steps up DUI enforcement. This is especially true with checkpoints across Southern California.

Overall, the various local and state law enforcement agencies make more than 100,000 DUI arrests each year. These occur in the five Southern California counties of Los Angeles, Orange County, San Diego, Riverside, and San Bernardino.

In 2014, law enforcement arrested 499 drivers for DUI in Los Angeles County over the Memorial Day weekend. The good news is that’s 30 fewer arrests than 2013.

One hundred Los Angeles County law enforcement agencies joined together last year. They took part in a DUI enforcement program during the three big summer holidays. The three are Memorial Day, Independence Day, and Labor Day. The program is the “Avoid the 100” campaign. The program includes sobriety checkpoints and increased roving DUI patrols to deter and catch drunk drivers.

Police love sobriety checkpoints.

Surprisingly, good defense lawyers love them too (more on that below). From the law enforcement side, checkpoints are  an effective way to prevent accidents and make arrests. However, years of experience demonstrate that checkpoints are also thorny problems for police and prosecutors. Oftentimes these checkpoints create an environment for illegal searches and arrests.

The courts ruled that sobriety checkpoints don’t violate a motorist’s Fourth Amendment rights if they are conducted within certain criteria. Really though, it’s surprising how often these criteria fall to the wayside.

 What should you do if you end up at a sobriety checkpoint?

Checkpoint-300x208The first thing you should do in this situation is open your window slightly and wait for the law enforcement agent to ask you any questions. As with any routine stop, you are required to provide identifying information such as your name, address, driver’s license and registration. As a general rule, it’s good to have these things organized in advance.

Should you be asked any further questions, you can politely decline to answer. You can say something like, “Officer, I don’t really approve of roadblocks and I do not care to discuss anything further.” If the officer persists in asking questions, you can ask for the return of your license and ask if you are free to leave.
It is imperative not to answer any questions beyond “name, rank and serial number” even if they appear harmless. Questions such about where you started driving, where you are headed, your eating and drinking patterns, when you last slept and how long, and a slew of other questions are all designed to gather incriminating evidence or eliminate possible defenses your lawyer could offer.

A recent U.S. Supreme Court case, Rodriguez vs. U.S., established that a prolonged detention – one that is extended past the reason for the initial stop – is illegal, and the evidence that is gathered afterwards can be suppressed. This can be vitally important at a sobriety checkpoint; unnecessary conversation between you and law enforcement can only serve to extend the encounter unnecessarily and possibly harm your legal interests. Remember, your right to remain silent ONLY helps you if you choose to exercise it! I can’t tell you the number of people I’ve met who, in trying to talk their way out of trouble, only talked themselves into more trouble.

 What are officers are looking for at DUI checkpoints?

Officers are looking for impaired drivers. To do this they will use several different methods including, asking the driver questions, and observing the driver’s behavior. These signs include:
• Contradictory answers to questions
• Smell of alcohol or illegal substances
• Slurred speech
• Open bottles of alcohol in the vehicle
• Bloodshot or red-rimmed eyes
• Admission of drug or alcohol use.

DUI-Blow_BlogPost-300x203Many agencies use a portable breath test to determine the drivers’ blood alcohol content (BAC) levels. This is called a Preliminary Alcohol Screening Test (PAS). Even though it is a chemical test, it is legally considered to be a Field Sobriety Test. If you are over 21 and are not on probation for a previous DUI, this test is optional. In fact, before the officer administers a PAS test, they must read an admonition to you stating that the test is not mandatory. Because the technology shortcomings of the PAS machine make is susceptible to giving readings that are inaccurate and overly state true alcohol levels, if you’ve had any alcohol at all, especially recent consumption of alcohol, it is best NOT to take this test.

What Does an Experienced DUI Attorney Look for in DUI Checkpoints?

drunken722-300x169When conducting sobriety checkpoints, police must follow strict guidelines outlined by the U.S. Supreme Court in the landmark case Ingersoll vs. Palmer. If police do not follow the criteria from Ingersoll, the DUI roadblock isn’t lawful. Additionally, any evidence gathered during a drunk driving arrest is possibly not admissible in court.

At The Kavinoky Law Firm, our top attorneys analyze all aspects of a checkpoint. They work tirelessly to determine whether there were discrepancies between the protocol set by the courts and the operation of the checkpoint. If police do not follow all of the necessary guidelines, and there was no probable cause for a stop, we will move to have all of the evidence that from the arrest set aside.

We have very positive results doing this for our clients; it’s shocking how many sobriety checkpoints do not comply with the legal safeguards.

One of the main reasons why a good defense lawyer is optimistic about a checkpoint case is that there is a strong case for defense. These cases do not provide one of the key aspects of the case that they usually point to in trying to secure a conviction. This is, a bad driving pattern. There is no driving pattern for someone who pulls into a checkpoint. Consequently, that is something that your lawyer can use to help you win your case.

The summer holidays are a great time to get outside and enjoy all that we love about Southern California. Let’s make sure we do it in a safe and sober way.

The Kavinoky Law Firm

About Darren Kavinoky and The Kavinoky Law Firm.

Darren Kavinoky receives recognition over and over for his commitment to clients and for being a top California defense lawyer. The Los Angeles Magazine repeatedly regards him as a Super Lawyer , and the American Trial Lawyers Association highlighted him as one of the Top 100 Trial Lawyers in California. Additionally, he is the legal analyst and special correspondent for the syndicated television program The Insider, and is a sought-after guest on shows that include Entertainment Tonight, Dr. Phil, NBC’s Today Show, and various programs on CNN and the Headline News Channel. Follow Darren on Twitter @DarrenKavinoky or www.DarrenKavinoky.com.

The Kavinoky Law Firm is a criminal defense firm with offices throughout California. The firm’s mission is to deliver peace of mind to every client. Our top criminal defense lawyers work to find the best possible resolution to your legal problem. Regardless of whether you have a charge of DUI, drugs, theft, domestic violence, assault, murder, or any other offense. For more on The Kavinoky Law Firm, visit www.NoCuffs.com or call 1.800.NoCuffs.

Alcohol Education Programs

Alcohol education classes are popular in the state of California. Many people subject to a DUI or other alcohol-related offense will attend a class at one point or another.

Alcohol Education Classes

Drunk driving convictions carry several consequences. These penalties include:

  • fines,
  • jail time,
  • driver’s license suspensions, and/or
  • mandatory alcohol education classes.

The duration of the classes depends on the offense and the number of DUI / DWI convictions a driver has over a 10-year period.

Court or DMV Mandate

Alcohol education classes derive from either the court or the DMV. Usually, the mandate accompanies a handful of other penalties. Often, a driver with suspended license must work to obtain a restricted license. In order to obtain this license, he or she must either enroll in or complete alcohol education courses.

There are times when mandatory alcohol education is not-so-mandatory. It is possible to receive a reduction in requirements through a plea bargain. To clarify, a plea bargain is an arrangement with a prosecutor that allows a DUI driver to plead guilty to a lesser charge. Generally speaking, the reduced charge carries a more manageable educational requirement.

An experienced California drunk driving attorney evaluates each case to determine whether a plea bargain is a likely or favorable outcome.

Single or Multiple Convictions

Like other aspects of a DUI / DWI case, the length of an alcohol education requirement depends on the number of convictions. The prosecutor evaluates the convictions within a 10-year time period. Multiple convictions within the 10-year period have harsher penalties. Compared with a second arrest, a first arrest is much easier. For example, if a second arrest occurs more than 10 years after a first offense, it now technically a “first-time” DUI.

The standard first-offender alcohol education program requires attendance at one three-hour session for 12 weeks, or approximately 36 hours of coursework. It may be possible to get a restricted driver’s license to allow for driving to and from the program.

In light of this, the standard program for second-offenders is divided into several phases, and typically begins with mandatory attendance at weekly sessions, gradually changing to every other week. Finally, there is a 30-month program for multiple offenders.

Mandatory attendance at alcohol education programs can sometimes be reduced through careful negotiation. A California lawyer experienced in defending DUI / DWI cases can evaluate each case to determine how to minimize the amount of alcohol education and other consequences of a drunk driving arrest.

The Kavinoky Law Firm

Nobody ever expects to find themselves on the wrong side of the law. 1.800.No.Cuffs is the number you should know, but hope to never use. As a matter of fact, The Kavinoky Law firm employs the finest attorneys the state provides. That means that with us, you are in the hand of the best criminal defense lawyer in Los Angeles.

If you are under arrest for DUI, then you need a DUI attorney. Call us right away. Cal anytime, 24/7. We don’t sleep so you can.

Cycling Under the Influence

Cycling Under the Influence (CUI) – California Criminal Law

Drunk & Bicycling

Riding a bicycle under the influence of alcohol or drugs is a crime in California. A person convicted for cycling under the influence will face a fine of $250. The fine is not much in comparison to the fine in a drunk driving case. Yet, with that said, this amount can be substantial to some people.

There is no reason not to fight the charge or the fine. In fact, there are several issues that make CUI cases weak. An experienced DUI / DWI lawyer can successfully challenge a cycling under the influence case based on these issues.

There are several elements that a prosecutor must prove in order to convict someone of drunk driving. A primary element is that the person was driving a vehicle while under the influence of alcohol. Bicycles are not technically “vehicles” under California law. Therefore, cycling under the influence is not under the same California Vehicle Code laws that address driving vehicles while intoxicated. Instead, the California Vehicle Code has a separate provision that states that it is unlawful to ride a bicycle on a highway while intoxicated. Highway refers to most public streets. However, there are other places where one may receive a CUI. There are places such as bike trails and parks.

Cycling Field Sobriety Test

In the course of a CUI investigation, a police officer may ask the cyclist to complete a field sobriety test. The police use the field sobriety test for people they stop while driving. The test tells police whether a driver is operating a car under the influence of alcohol.

According to the majority of California criminal defense attorneys, the field sobriety tests tend to lean in favor of the police. That is to mean, it is easier to fail a test than it is to pass. Most often, the police officer will have made up his or her mind that they are going to make an arrest, yet they will go on and do more field sobriety tests simply to try to gather additional evidence against the person under investigation. Furthermore, it is important to understand that field sobriety tests are not mandatory. An individual can choose not to do the tests.

Cycling Similar to Driving

For people riding bicycles along public highways, the Implied Consent Law applies to them just as it applies to drivers arrested for drunk driving. This law requires that once a person has been arrested for driving or cycling while intoxicated, that they submit to a chemical test. Refusal to submit to a chemical test can carry additional penalties and consequences. In cases of driving under the influence of alcohol, the legal limit for driving a vehicle is .08 percent of an individual’s blood alcohol content. There is no similar rule for cyclists. Whether a person was too impaired to ride a bicycle along a highway must be proven with circumstantial evidence.

There are several ways to attack a CUI charge. One of these is to challenge whether the cyclist was in fact riding on a “highway.” Although the definition of highway includes public streets, it excludes driveways and private roads. It also excludes many recreation areas where bikers may be, such as mountain bike trails or boardwalks by the beach. Another way to attack the charges is by way of attacking the results of the chemical tests.

Challenge Your Charges with a Lawyer’s Support

Just like cases involving driving a vehicle under the influence of alcohol, a charge for cycling under the influence is not a hole-in-one. A criminal defense lawyer with experience fighting CUI cases can aggressively fight the charges. This lawyer will keep negative consequences to a minimum.

Don’t fight your case alone. Contact an experienced DUI attorney to fight for you. The Kavinoky Law Firm employs only the best. Call 1.800.No.Cuffs 24/7, 365 days a year. We don’t sleep – so you can.

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What Happens After I am Arrested?

After an arrest, things move quickly. This can be daunting for many people, especially to the those new to the legal process

So let’s break it down here to make it a little less intimidating.

After an Arrest

  1. The first thing that happens is the booking process.The booking process happens before you can get out of jail and consequently before you can go home. During this time, the police take photos and fingerprints.
  2. The fingerprints then go to Sacramento for the background check. Once the background check is complete, then the case may move forward. Understandably, law enforcement does not want to release people who may have a murder warrant.
  3. At that point there are a few ways toward a release from jail.
    • Take a citation. The police give the defendant a notice to appear in court if it’s a relatively minor offense. The occasion for this to happen depends totally on where your offense took place. A few examples include petty theft, a first offense DUI case, or a traffic violation. They give you something that looks like a ticket ad you promise to appear.
    • Post bail. For a more serious offense, he judge will set bail. Every county is different but every county has a public bail schedule that’s going to list every single crime there is and the amount of presumably reasonable bail that applies.

So at that point its up to the person or their friends and loved ones to either post the cash amount of bail or to use a bail bondsman. And how this plays out is going to be very different depending on which choice somebody makes and that’s probably better reserved for another video.

There is one other opportunity available after an arrest. If they do not post bail or take a citation for release, then they will go court. Generally, this happens in about 48 hours after an arrest. At this point, the judge may simply choose to release them. Next, then the attorneys can argue about whether bail should go up or down in amount.

If the person gets released they are out and they get to fight their case from out of custody. Otherwise they’re going to be in custody and the have to fight their case from inside.

Consult an Attorney

If you’re ever wearing handcuffs call 1-800 No Cuffs and remember if the police want to talk to you – you want to talk to us first. Call us an speak with an experienced criminal defense attorney who will fight to protect your rights.

If you are ever wearing Handcuffs call 1-800 No Cuffs.

 

Do I Get a Phone Call from Jail?

Yes, you do get a phone call from jail. Watch below to learn more from attorney Darren Kavinoky.

A Phone Call from Jail

Arrest procedures vary state by state and even county by county. The one thing that remains the same in each arrest is that those under arrest do not have a lot of amenities.

Consequently, a person under arrest has just one phone call from jail. This is normally to call a friend or relative let them know that they are in custody.

Sometimes law enforcement officers are little bit more flexible. There are examples here and there where people at the time of their arrest have access to their cell phone. Every once and a while, the arresting officer allows the person under arrest to a call. Generally speaking though, there really are not a lot of the creature comforts of regular life. When you’re under arrest, your life is not nearly as peachy.

 

An Attorney Will Fight for Your Rights

There are many chances for a person to find themselves under drunk-driving arrest. Perhaps your night went a little longer than you though and you drank more than you anticipated. The point is that a drunk-driving arrest can happen to almost anyone. A phone call from jail is best dialed to a California DUI attorney.

If you’re ever wearing handcuffs call 1800NoCuffs. Remember if the police want to talk to you – you want to talk to us first. Call a DUI attorney at The Kavinoky Law Firm. We employ only the best criminal defense attorneys in Los Angeles.

About Darren Kavinoky and The Kavinoky Law Firm.

Darren Kavinoky receives recognition over and over for his commitment to clients and for being a top California defense lawyer. The Los Angeles Magazine repeatedly regards him as a Super Lawyer , and the American Trial Lawyers Association highlighted him as one of the Top 100 Trial Lawyers in California. Additionally, he is the legal analyst and special correspondent for the syndicated television program The Insider, and is a sought-after guest on shows that include Entertainment Tonight, Dr. Phil, NBC’s Today Show, and various programs on CNN and the Headline News Channel. Follow Darren on Twitter @DarrenKavinoky or www.DarrenKavinoky.com.

 

Money Laundering

money launderingMoney laundering is a white collar crime in the state of California. It is the act of transferring illegally obtained money through legitimate people or accounts. This is done so that its original source is untraceable. Since money laundering is usually associated with other crimes, like fraud and conspiracy, it is possible for the offender to receive multiple charges simultaneously.

The Money Laundering Control Act passed in 1986 as an effort to crack down on the illegal exchange of money. Most of the money came from the transport and sale of illegal drugs.

At the time, large-scale organized crime rings were the ones perpetrating the drug trafficking. Therefore, by criminalizing drug traffickers’ income, prosecutors could get to the bosses. Consequently, taking out the little guy to get to the bigger guy. This law allows law enforcement to target the people higher up in the organization.

Furthermore, what is really interesting here, is the unintended consequence. Although the law’s intent is to tackle big-time drug operations, several other people are now in its web. Money laundering now leads to the arrest of many people who are far from being organized crime bosses.

Creative Drafting of Money Laundering Laws

The law criminalizes any financial involvement with someone who earns money from an illegal activity. Of course, this includes the association with a family member or friend. Even if you don’t participate in the illegal activity yourself, you may still be at risk of arrest. By the same token, simply knowing that the money in a transaction came from criminal activity is a violation of the money laundering laws.

Important Considerations

It is equally important to note something else here. Money laundering is not a catch-all law for all people spending money illegally. Authorities are unable to charge someone for laundering without the involvement of a bank. For example, if illegally obtained money pays -in cash- for a new car, this is not money laundering. Since the money did not go through a financial institution, it would receive different prosecution.

Types of transactions that can lead to money laundering charges in the state of California include:

  • making deposits,
  • withdrawing money,
  • initiating an electronic wire transfer,
  • exchanging money into a foreign currency, or
  • writing a check.

Prosecution for Money Laundering

Though money laundering is illegal in the state of California, authorities may only prosecute in certain circumstances. Punishable laundering must meet a minimum amount of money.

In order to violate the money laundering law you must engage in transactions reaching $5,000 or $25,000.

  1. Firstly, a single transaction or series of transactions of more than $5,000 in a seven-day period. Or,
  2. If you spend more than $25,000 in a thirty-day period.

If the amounts in question are less than these, you cannot receive a conviction.

The penalties for such laundering can be severe. They range varies based on the number of offenses, the amount of the financial transactions, and the defendant’s previous criminal record. One offense of money laundering typically results in a one-year sentence in a county jail. Additionally, California laws set increased terms of imprisonment to correlate with the value amount of the transactions. Under state law, there are several types of increasing terms for transactions up to $2.5 million. The maximum penalty is twenty years in prison per offense.

A Great Defense

Since money laundering is a financial crime, each case of financial fraud must have a thorough analysis. Financial transactions, whether they are securities, banking or real estate, are always a top priority to those doing an investigation. If you find yourself under suspicion of money laundering, call an experienced criminal defense lawyer right away. A criminal defense attorney will prepare you for a proper and effective defense.

1.800.NoCuffs is the number you want to remember and hope you never need. Call us 24/7, 365 days a year to speak to the top criminal defense attorneys in Los Angeles.

Insurance Fraud and You – What You Need to Know in California

insurance fraudInsurance fraud occurs when someone knowingly falsifies information to obtain benefits that are not theirs to claim. It also occurs when one denies a benefit that to which someone else is due. This type of fraud includes:

  1. Auto insurance,
  2. property insurance,
  3. homeowners insurance,
  4. health insurance,
  5. life insurance, and
  6. any other type of insurance available in the state of California.

Circumstances of Fraud

Depending on the circumstances of the fraudulent act, penalties may go through the Department of Fraud Division. On the other hand, the Fraud Division may handle it as a criminal matter in a court of law. Authorities can charge insurance fraud cases as felonies, however, some are not. Some are actually are misdemeanors, depending on the circumstances surrounding the case.

The California insurance fraud law seeks to prevent and punish false insurance claims intended to generate payments to an individual by insurance companies. Some examples of this fraud include:

  1. Submission of auto insurance claims from exaggerated or deliberate injuries,
  2. Doctors charging for services that not originally included in an estimate, or
  3. Faking an injury at work in order to be eligible for workers compensation.

Generally speaking, a prosecution for insurance fraud requires proof of the defendant’s intent to defraud.

Furthermore, if a prosecutor can prove the defendant knowingly make a false claim, or can show the defendant exaggerated the claim, then he has a case. The prosecutor will charge the defendant. If the attorney proves his case, the defendant is likely at risk of a guilty verdict.

Degrees of Fraud

There are varying degrees of fraud, beginning with small untruths, such as exaggeration on insurance claims. The more serious cases of insurance fraud include arson, destruction of property, theft, or faking an accident or injury in order to collect large insurance policies.

In order to protect the public from the stress and economic loss caused by insurance fraud, the State of California dedicates funding to the Fraud Division. This division actively investigates and arrests those who commit insurance fraud in the state of California. According to the Insurance Information Institute, fraudulent claims equal nearly $30 billion annually.

People who commit insurance fraud range from organized criminals who take large sums of money through insurance claims mills and professionals who inflate the cost of their services, to middle class men and women who exaggerate when filing an insurance claim in order to make extra money.

Penalties for Insurance Fraud

The punishment for this type of fraud depends on the specific type of fraud committed and the defendant’s activities specific to the case. If prosecuted as a misdemeanor in the state of California, insurance fraud carries a fine of up to $10,000, one year in county jail, or both.

In general, this type of fraud is a felony. Felony insurance fraud carries a fine of up to $50,000, or double the value of the defrauded amount, and up to five years in jail. If the felony is for worker’s compensation insurance fraud, the fine can be increased to $150,000 or double the value of the defrauded amount, depending on which penalty is greater.

For those convicted of insurance fraud with a felony conviction for fraud, the rules change. For this, a two-year enhancement may join up with their sentence. Additionally, California state court may require the defendant to pay restitution to the defrauded parties.

If you’ve been charged with insurance fraud in the state of California, an experienced criminal defense attorney can help.