Are you a wobbler? You are if you drive without a valid license in California

driving car on the mountain roadWhile it may seem like a minor offense to some, in California driving with a suspended or revoked license can lead to some hefty fines and even jail time. This particular part of the state’s vehicle code even has a classification of its own: wobbler.

What does this mean? Basically, a wobbler offense means the end result of being convicted wobbles between an infraction or a misdemeanor, and the latter comes with a criminal record.

Having a skilled attorney by your side if you’re ever in this situation can be a game changer, as there are many circumstances in which jail time or fines can be avoided. It’s a matter of knowing how this particular offense is handled.

Understanding the legal definition

First, it’s helpful to have a handle on what this part of the vehicle code even means. There are basically four different ways you can be found driving without a license:

  • Never obtaining one
  • Not being old enough to drive
  • Not renewing your license
  • Living in California, while driving with an out-of-state but not getting a state license

One important note: You aren’t considered in violation of this code if you’re simply not carrying your license. You can be charged with a different offense, though, and you may face a fine of up to $250 if found guilty of driving without a license in your possession. So, it’s always a good idea to carry it around at all times.

What are the penalties?

If you are charged with an infraction for driving without a license, the fines are usually no larger than $250. It’s when it ventures into misdemeanor territory that the penalties are greater. It may include the following:

  • Probation for up to 3 years
  • Fines of up to $1000
  • A county jail sentence of up to six months
  • Vehicle impoundment for 30 days, if you have a prior driving-related conviction record

Your legal offense is tied to your driving history. If it’s a first offense, it’s usually a fine. Repeated offenders, though, will likely get hit with a misdemeanor.

What to expect in court

The burden of proof once you hit the court system is also different than in many other cases — it’s much heavier for the defendant. In this case, the prosecution only needs to show that the driver was without a license at the time of the offense. This means the defendant has the burden of proof to show they had a valid license.

This one is strange in another way: it’s outdated. With most records in the electronic realm now, you would think it wouldn’t be as large of a concern. The reality is the law hasn’t been changed by the state legislature, so it stands as it is.

This is when having an experienced lawyer comes in handy. Making sure you have someone on your side to interact with police and prosecutors can help with dismissal or a reduction in the sentence.

The case against field sobriety tests in cannabis-related DUI cases

18833634 - cop suspecting a man of drunk drivingOne of the biggest fallacies we hear from clients regarding cannabis-related DUI charges (driving under the influence) is the notion that a failed field sobriety test is a valid indicator of intoxication. The truth is, science can’t prove that such assessments are valid nor that the results are reliable. In fact, studies have shown that there’s such a mixed bag of results related to validity that researchers are at odds with it, meaning the threshold of proof cannot generally be met through these means alone. Can it get you arrested? Yes. Does it mean you will be convicted? No.

SFSTs explained

If an officer suspects that a driver is under the influence, a typical method for determining probable cause for arrest is the National Highway Traffic Safety Administration (NHTSA)-approved Standardized Field Sobriety Test, or SFST. The three-part test focuses on assessing reflexes and coordination. It consists of 1) standing on one leg, 2) walking and turning, and 3) evaluation of horizontal gaze nystagmus (HGN), which is the ability to follow an object with the eyes, along with possible abnormal dilation of the pupils. [PRO TIP: If an officer does any type of assessment that deviates from the NHTSA standards, those results and the administration alone can be argued as unreliable if it goes to court.]

While these standards and practices are used on a regular basis related to alcohol, there is dispute as to the validity and reliability when the alleged intoxication is related to cannabis. In fact, there is legal precedent and research indicating SFSTs and FSTs (non standard) cannot and do not accurately or appropriately measure a cannabis-intoxication level, and therefore, have no place in serving as probable cause for arrest.

Legal precedent and lack of validity

In 2017, the Massachusetts Supreme Judicial Court, stated it saw no clear scientific, data-driven consensus as to whether or not FSTs are a reliable indicator of cannabis-related impairment. It determined that even if a Massachusetts officer performs FSTs, the officer is limited in how they can discuss the results in their testimony. They can indicate they performed an assessment, but they can’t state an opinion about what they saw.

Proponents of marijuana law reform are working to make the case that cannabis is different in the way it impacts the body’s psychomotor performance from other drugs, both legal and illegal. They point to research that shows “the risk of accident associated with cannabis-exposed drivers is lower than that of those exposed to other licit and illicit substances…” The study concludes that the influence of cannabis is “relatively subtle and short-lived” and that the “impact on psychomotor performance differs significantly from that of alcohol.” (AAA, An Evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis, 2016)

Also of importance is the perspective on drug testing for the presence of possible intoxicants — namely THC or its metabolites. In a 2019 presentation at the 4th annual Marijuana Law Conference, the deputy director for the National Organization for the Reform of Marijuana Laws, or NORML, presented studies supporting the opinion that the effects of inhaled cannabis on psychomotor skills are “typically subtle,” resulting in “modest impairment,” and concluding that “the effects…on higher-level driving are minimal.” He opined that there’s no way to really know through testing using “per se thresholds” the recency of exposure to cannabis nor psychomotor impairment. (Armentano. 2015. Are THC concentrations appropriate for presuming psychomotor impairment? In. Tiftickjian. Medicolegal Aspects of Marijuana: Colorado Edition. Tucson: Lawyers & Judges Publishing Company.)

The NHTSA itself notes in its Drugs and Human Performance Facts Sheets that it is “…currently impossible to predict specific effects [of THC] based on metabolite concentrations.” A 2011 study also indicates that unlike drugs of other types, “[p]atients who take cannabinoids at a constant dosage over an extensive period of time often develop tolerance to the impairment of psychomotor performance, so that they can drive vehicles safely (e117).

Don’t go it alone

This is just the tip of the iceberg on the subject of cannabis and impairment. Just because you are given a sobriety test for any type of intoxication doesn’t mean you will be convicted of a crime. But you have to be willing to accept that you don’t know what you don’t know, and when it comes to the law you want the best in your corner. We know what matters in a courtroom, we know what doesn’t, and we know how to build a solid case to support you. You do NOT want to try to navigate a DUI arrest of any type without an experienced attorney in your corner. We are here for you: 1-800-NoCuffs.

What to remember if you are pulled over for a DUI

41318904 - portrait of a young scared man pulled over by policeWe know what your mind is likely going through when you see those flashing red-and-blue lights in your rearview mirror. It’s the same thing that likely goes through many people’s minds in that situation: what did I do to get pulled over?

Whether or not you feel as if you are genuinely driving impaired or if you have had zero to drink – and are being pulled over anyway – the nervousness and anxiety that may happen at any traffic stop is as understandable as it is nerve-racking.

There’s some practical advice to remember when you are being pulled over for a DUI, and knowing what was said to you as well as the circumstances of the traffic stop can go a long way to help you if you are arrested.

Document it all

It’s important to remember that while it may feel like slow-motion in your head, the actual process of a DUI arrest can happen very quickly. The entire flow of it – the stop itself, the field sobriety test, the arrest, the release from custody – can be mere hours. This is why it’s vital that you document as much as you can during the process.

Putting down your memories of the arrest in some way as soon as you can – maybe even via notes on your phone – will be helpful as you navigate the court system with your attorney.

There are seven key elements of the DUI to document, and most involve the interactions with the police officer who is involved. Here are those seven elements to remember:

  • What happened when you were pulled over,
  • What the police officer said to you,
  • What the police officer said about field sobriety tests, and how they were conducted,
  • What the police officer said about a preliminary alcohol screening test (breathalyzer),
  • What happened during the arrest, and transportation to the police station,
  • What the police officer said about providing a chemical breath test
  • How the officer conducted the chemical breath test.

Why this is important to you

Writing down your recollections around parts of the arrest process, can provide your attorney with facts to support defenses in either the criminal DUI case in court or at your hearing with the DMV for your license.

If the police officer who conducted the DUI stop made a mistake in some way during those seven points of that traffic stop, or if he or she took some shortcuts, it’s possible that your rights have been violated in some way. If that is the case, the evidence collected would not be admissible and your case could be dismissed.

There are many ways that we can help you defend not only against a DUI charge, but other criminal charges, and we can also help you navigate the system if you already have a DUI conviction if that takes place. Learn more at NoCuffs.com, or call us at 1-800-NoCuffs.

Sealed juvenile records vs. expungement

Pencil with eraser erasing parts of the word PAST, which is written in all capital letters in dark fontImagine this scenario—as a teenager, you were in the wrong place at the wrong time and ended up in trouble with the law related to possession of alcohol as a minor. You took the steps to have your records sealed and moved on with your life, assuming that no one would ever be privy to that information.

Your assumption is correct in one sense but not the other. While it is true that a standard background check for employment or college application won’t yield convictions that have been sealed, there are other situations where they can be “unsealed.”

Do not confuse records being sealed with being expunged—a whole other process. It’s important to understand the differences so you can pursue the course that helps you achieve your goals.

Sealing of juvenile records

In general, you can begin the process of having your records sealed once you are:

  • 18 years old
  • It has been five years since the case was closed, or
  • It has been five years since your last contact with probation and you are deemed rehabilitated by a judge.

You’ll need to contact your county to request the necessary forms. You must list each instance you want sealed. If all of your records are in the same county, it typically takes about 90 days to complete. If you have records in more than one county, it can take up to 180 days. In some instances, the request itself is sufficient for approval. In other cases, you may need to participate in a hearing. The courts will notify you if this is the case.

There are three instances that typically lead to denial of a request to seal juvenile records:

  • You are convicted of a serious offense (listed in Welfare and Institutions Code 707b) above the age of 14,
  • The record is for an adult conviction in a criminal case,
  • You are convicted as an adult for an offense of moral turpitude (these crimes involve sex or drugs, if they are violent, or in some way run afoul moral standards).

Earlier we mentioned that there are some times when a sealed record can be “unsealed” and the information is available to the requestor for a specific purpose. These include:

  • Insurance companies: Car insurance companies can view any records you had with the DMV
  • Federal institutions: The federal government can access your sealed records for military enlistment or security clearance positions
  • The court system: The courts may view your sealed records in the event that you are a witness in a defamation case, or to decide if you are qualified for extended foster care after age 18
  • Prosecution: Prosecutors can look into your records to see if you can be entered into a deferred entry of judgment program.

You can always request your own records to be unsealed at any time.

Expungement

In California, expunged records are not removed in the sense that they just disappear. Instead, your records are updated to indicate that the charges were dismissed. This is an important differentiation—if your records have been expunged it is truthful to indicate “NO” on applications that ask if you have been CONVICTED of a crime.

According to California Penal Code 1203.4, you are eligible to apply for record expungement if you meet the following qualifications:

  • You were granted probation, completed all of its terms, and are no longer on probation
  • You have had no new arrests
  • Or, you have completed the terms of your probation and served at least half of the probationary term, and have had no new arrests

As with having records sealed, the decision is in the hands of the courts. Only with expungement, you’ll file a “Petition for Relief” form with the Superior Court of the county where you were convicted. There is a fee (which can be waived, if approved). It typically takes 8 -10 weeks after the court has received your application to come to a decision. If your conviction is a felony, a court hearing will be required as part of this process.

If you think you may be eligible for sealing of your juvenile records or expungement, you’ll want guidance from a seasoned attorney’s office. It may sound like simply filling out paperwork, but it’s in your best interest to talk through the options and processes to make sure your actions align with your end goals and that the process is done the right way.

We are here to help, day and night. Give us a call: 1-800-NoCuffs or visit our website for more information: https://www.NoCuffs.com.

The pillars of a DUI prosecutor’s case

Drinking and driving concept. Car key on a wooden table, pub

You’ve been arrested for driving under the influence (DUI) of drugs or alcohol. Now what?

First off, don’t panic. This is definitely easier said than done, but it’s important to keep your wits about you and not make a bad situation potentially worse by talking or acting out. Keeping a cool head will help on the legal side.

Focus on the following:
Document what happened. As soon as you have an opportunity, write down as many details as possible about what happened immediately before, during and after the event. Any details about what was said and done throughout are important, as they may help your attorney with defenses.

Don’t plead guilty. Just because you’ve been detained does not mean there is overwhelming evidence against you. You may feel pressured or even convinced that pleading guilty is the obvious solution, but do not make any decisions until you’ve consulted with an attorney who specializes in DUI cases. We’ve seen it all, from misdemeanors to felonies to multiple DUI arrests. This is no time to try and handle things on your own. Experts exist to help you navigate your situation, regardless of severity.

In DUI cases, the burden of proof falls on the prosecution. That means according to the law, a defendant should only be found guilty if the prosecution presents a 100% fact-driven case that has absolutely zero reasonable doubt.

Prosecutors tend to latch on to these four areas in DUI cases:
1- Physical signs and symptoms of being under the influence. You may have red eyes. You may have an odor. You are observed walking in an abnormal pattern. These are all subjective, based on the observations of the arresting officer(s).

2- Field sobriety test performance. Your balance may be off. You may be unsteady changing direction while walking. This doesn’t mean you are under the influence!

3- Driving pattern. Law enforcement authorities rely on 24 driving patterns identified by the National Highway Traffic Safety Administration that may indicate the driver is intoxicated. These include swerving, weaving and driving without headlights at night. All 24 may have zero correlation to levels of intoxication and with reasonable explanations for their occurrence.

4- Chemical test results or refusal to take the test. Test results may be impacted by improper administration, medications, medical conditions and more. And refusal to take a test does not equate to guilt.
If any of these four pillars of a prosecutor’s case is knocked down or even loosened, the whole case either falls apart or is shaky, which means reasonable doubt.

The most common sense rule of all is to avoid driving under the influence at all. Drink responsibly. Always have a designated driver. But, if you find yourself in need of legal assistance related to DUI, give us a call at 1-800-NoCuffs.

Three reasons to fight a DUI charge

Car keys are in a glass

Have you ever been pulled over or arrested for a DUI? Driving under the is a serious charge which can affect your ability to get a job. Because a DUI will show up on a criminal background check, you may want to consider fighting your DUI charge. Even if the police haven’t made a mistake or you are technically in violation of the law, you may still be able to have your charges reduced, which looks better on your record and means lower fines and fewer penalties.

But, let’s take a look at three common reasons for fighting a DUI charge.

1. Police misconduct or mistake
Even if you were driving under the influence, your charges can be dismissed if law enforcement officers did not follow proper DUI protocol. For example, the DUI arrest report and court testimony must be accurate and truthful. There are also protocols that the police officer must follow in regards to field sobriety tests and how they are conducted. After your release, write down everything you can remember about your arrest. Even the little details can be important.

2. If no probable cause was stated If there was no valid reason to pull you over
In California, the arresting officer must have probable cause to arrest you for driving under the influence and To pull you over, they also must demonstrate reasonable suspicion to pull you over. You might be pulled over for failing to use a turn signal, not stopping at a light or driving with a malfunctioning tail light, as well as swerving in your lane or going the wrong way. They must be able to articulate specific facts as to why they stopped you. If a cop pulls you over for any of these reasons and you are not under the influence, you may receive a warning and be sent on your way. But if the officer sees you committing one of these acts, he or she will also be looking for probable cause for a DUI charge. Common causes include open containers in the car, red eyes, slurred words, fumbling for your license and insurance card, and the smell of alcohol or drugs in the car.

3.If your blood alcohol test doesn’t accurately reflect the amount of alcohol in your body
There are a number of reasons a BAC (blood alcohol content) test may be inaccurate. People with diets high in protein and low in carbs — like the Atkins diet — or people who have medical conditions like diabetes and hypoglycemia, can easily fail a sobriety breath test because their bodies naturally produce more isopropyl alcohol when the body turns to stored fat for energy, rather than carbohydrates. The time of the test matters, too. Alcohol can take between 15 minutes and two hours to fully absorb into your system. Therefore, if you take a test at the police station two hours after your last drink, it is possible your BAC level will be much higher than it was when you were actually driving.

We understand a DUI arrest can feel hopeless, but it’s not. While you can’t erase the past, that doesn’t mean you don’t have control of your future. Be sure to act fast and contact your DUI lawyer in less than 10 days from your arrest. Whether you’ve been arrested for a DUI or just have questions, we’re here to help. https://www.NoCuffs.com/

Ignition Interlock Device Law Effective Date: January 1, 2019

Introduction:

Effective January 1, 2019, the Ignition Interlock Law will become effective California state-wide due to Senate Bill 1046 being signed into law by Governor Jerry Brown. The new law will remain in effect until January 1, 2026.

In 2010, the pilot Ignition Interlock Device program became effective in Alameda, Los Angeles, Sacramento and Tulare Counties. This program required individuals whose driving privileges were suspended by the California Department of Motor Vehicles Mandatory Actions Unit because of a conviction in criminal court for driving under the influence of alcohol or driving with .08% or more of alcohol in his/her system (as a misdemeanor or a felony) to install an Ignition Interlock Device (hereafter “IID”) for a minimum of 6 months after being sentenced.  The pilot program’s findings showed that the installation of IIDs reduced the number of DUI incidents and those who re-offend (continue to drive while under the influence of alcohol or drive with a blood alcohol content or .08% or higher.)

 

What is an Ignition Interlock Device (IID)?

An IID is a breath machine which is connected to the starting-component of a vehicle.  For the vehicle to start, the driver must blow into the device. The device is installed on the vehicle’s steering column. The sample of air blown into the device is analyzed to ensure there is no alcohol in the breath sample.  If there is alcohol in the breath sample, the car will not start.

Once the car has started, the IID will require the driver to provide breath samples during the time the vehicle is turned on and moving by alerting the driver that he/she needs to blow into the machine and provide a breath sample.  The driver blows into the device while driving and does not need to pull over, stop, or turn off the car in order to provide a breath sample.

Breath samples are recorded and saved by the device.  The company responsible for maintaining and calibrating the IID will store all breath results of samples provided. A violation of the proper use of the device (i.e.: detection of alcohol in a breath sample, tampering, disabling the device) may result in the Department of Motor Vehicles terminating a person’s ability to have a restricted license with the IID and reinstate the mandatory suspension of a person’s driving privileges.

 

How much does the IID cost?

The monthly cost of having an IID in one’s vehicle depends on the make and model of one’s vehicle and includes the installation, maintenance/calibration every 2 months, and removal of the IID. It is approximately $75.00 per month to have an IID in one’s vehicle.

 

How Long Does a Person Need to have an IID?

The length of time a person needs to have an IID installed in his/her vehicle depends on the charge for which the person is convicted:

 

First DUI conviction within 10 years:

Without injuries:

6-month restricted license with an IID installed where one can drive anywhere he/she chooses, OR

1-year restricted license to only drive to and from work and an alcohol treatment program

With injuries:

6-month restricted license with an IID is required. There is no option to forgo installing the IID and having restricted driving privileges.

 

Second misdemeanor DUI conviction within 10 years:

IID required for one year

 

Third misdemeanor DUI conviction within 10 years:

IID required for two years

 

Fourth or subsequent DUI conviction within 10 years:

IID required for three years

 

How does this affect drivers in pilot counties?

In Alameda, Los Angeles, Sacramento, or Tulare Counties, the new law will not result in any significant effect to drivers who are convicted of a DUI starting in 2019.

The main difference that the new law has created for all counties (including the pilot counties) is that a person, as of January 1, 2019, can have an IID installed in his/her vehicle after arrest to avoid any significant disruption in his/her ability to legally drive. If the IID is installed in the vehicle prior to it being mandated by the Department of Motor Vehicles, a person can receive credit for the total amount of time he/she has the IID in his/her vehicle so long as the driver obtains prior approval from the California DMV to obtain a restricted license.

 

We encourage anyone who is arrested for a DUI as of January 1, 2019 to take the following steps:

After Arrest:  Call 1-800-NoCuffs!

The police will take a person’s California Driver’s License away if a person’s blood or breath alcohol test is .08% or higher, or if a person refuses to submit to a chemical test. The police will give a person a temporary license which is on a pink sheet of paper and is only valid for 30 days from the date of arrest.

 

Minimizing the number of days a person’s license will be suspended (without the ability to drive at all):

  1. An insurance company must electronically file an SR-22 form with the DMV. An SR-22 is a form shows the DMV that a person is insured while driving a vehicle.
  2. Register for a DMV-approved alcohol education class. Proof of enrollment must be electronically sent to DMV.
  3. Install an Ignition Interlock Device in any car you own or operate. The IID company should provide you with proof of installation AND send electronically to the DMV proof of installation as well.
  4. Pay a license reissuance fee to the DMV once approved for a restricted license.

 

10-Day Rule Still Applies:

A person must still request an administrative per se hearing with the California DMV within 10 days from arrest in order to preserve your right to a hearing.

 

Upon a conviction of a DUI in court:

  1. A person can avoid a 30 day hard-suspension IF the steps above are followed.
  2. A person will receive credit for time you have had a restricted license with the IID if you obtained a restricted license before your conviction in court.

 

Exceptions to being immediately eligible for the installation of an IID:

Those who fall into one of the categories below will not be allowed to install an IID and obtain a restricted license if he/she receives a conviction in court for one of the items below and/or the DMV suspends a person’s driving privileges based on an Administrative Per Se Hearing:

  1. Refusing to submit to a chemical test when requested by a peace officer
    1. 1-year hard suspension/ no driving (if convicted in court and/or APS hearing is upheld)
  2. Commercial license holders (Class A or B)
    1. 1-year hard suspension/no driving (if convicted in court and/or APS hearing is upheld)
  3. Drivers under 21 (if convicted in court for a traffic infraction of having any measurable amount of alcohol in one’s system while driving and/or reckless driving with alcohol in one’s system, or misdemeanor DUI):
    1. 30 days hard suspension (no driving)
    2. One apply for a critical needs license after the first 30 days of no driving
    3. It is highly likely a person will be required to install the IID upon the DMV granting the application for a critical needs license.

 

Instead of installing an IID, may a person “sit out” during the suspension period? What if a person does not own a vehicle?

The Department of Motor Vehicles allows ONLY for 1st DUI offenders to “opt-out” of putting the IID in his/her vehicle; however, the first 30 days after a person is convictied of a DUI the person is unable to legally drive.  After that time, a person may obtain a restricted license for 11 months upon showing proof to the DMV enrollment in a DMV-approved alcohol education class, proof of insurance, and the payment of a license-reissuance fee. This type of restricted license allows a person to only drive to and from work and to and from a DMV-approved alcohol program.

On a 2nd DUI (or more) conviction, the law requires a to install the IID for the specified time frame (which is shown above). A person can request and be granted an exemption from installing the IID for not having a vehicle registered to him/her; however, he/she will not be legally able to drive any vehicle during that time frame.  The DMV will require the installation of the IID upon requesting a restricted license.

 

Driving a company vehicle

An individual may drive a company vehicle without the IID being installed; however, one must receive approval from the DMV. The Department of Motor Vehicles has a form which must be signed by the employer which indicates that the employer is aware of the employee’s restricted license status, and despite such, permits the person to drive the company vehicle. This does not avoid any requirement for an individual to install an IID on his/her personal vehicle.

 

 

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.

Misdemeanor Evading an Officer in California

Almost anyone can watch the news at some point and see a wild police chase. While extreme cases of  evading a peace officer or police officer do occur in California, most cases do not involve high speed pursuits across long distances.

 

Simply put, the State of California can convict drivers of evading a peace officer or police officer if the driver willfully attempts to flee from a law enforcement official who is pursuing the driver in a car or on a bicycle.

 

The prosecution must prove five elements of the crime of Misdemeanor Evading an officer under California State Vehicle Code 2800.1.

 

  1. The driver deliberately intended to evade the law enforcement official.
  2. The officer’s vehicle exhibited at least one red lamp on the front, which the driver either saw, or could have reasonably seen.
  3. The officer used a siren as necessary.
  4. The officer’s vehicle clearly displayed police markings
  5. An officer in uniform was operating the law enforcement vehicle.

 

police car chasing a vehicle

 

The State of California classifies violation of Vehicle Code 2800.1 as a misdemeanor for evading an officer. Related crimes include felony reckless evading under California Vehicle Code 2800.2, as well as evading an officer causing injury or death under California State Vehicle Code 2800.3.

 

Generally speaking, misdemeanor evading a police officer charges involve relatively low-risk police chases. The difference in risk becomes readily apparent, especially when compared to breaking news stories seen on nightly news stations.

The penalties for misdemeanor evading an officer include up to one year in county jail, and fines of up to $1,000. Furthermore, the vehicle used to evade the officer may be impounded for 30 days.

 

 

Examples

 

A man purchases a bag of cocaine and puts it in the glove compartment of his car. On his drive home, the man speeds through an intersection. A police officer sees him speeding and turns on his lights and sirens in an attempt to pull him over. The man, however, is terrified of being caught with drugs in his car and speeds away from the police officer.

 

A woman loses a DUI case, and loses her license to drive. However, she chooses to drive anyway in order to transport herself to and from work. On her way home from work one day, a police officer sees that one of her brake light is out. The police officer turns on his siren and lights and tries to pull the woman over. She panics and begins to weave in and out of traffic because she does not want to be convicted of driving without a license.

 

A commercial truck driver behind the wheel of a long multi-trailer rig knows the vehicle is overweight. He sees a highway patrol officer turn on his vehicle lights and begin to pursue him. The truck driver knows he may face punishment from his employer due to the vehicle’s weight, but chooses to keep driving instead of pulling over.

 

 

Defining Misdemeanor Evading an Officer in California, Vehicle Code 2800.1

 

California State Criminal Jury Instructions 2181, Evading a Peace Officer, describe the necessary elements of this crime as follows:

  • A peace officer in a vehicle was pursuing the defendant, who was also driving a vehicle
  • The defendant intended to evade the peace officer
  • While driving, the defendant willfully fled from, or tried to elude, the pursuing peace officer
    • All of the following were true:
      a.   There was at least one lit red lamp visible from the front of the officer’s vehicle
      b.    The defendant either saw, or should have reasonably seen, the lamp
      c.    The peace officer’s vehicle was sounding a siren as necessary
      d.    The peace officer’s vehicle was distinctively marked
      e.    The peace officer was wearing a distinctive uniform

 

People can also be convicted of evading an officer while fleeing from an officer riding a bicycle.

 

the scales of justice

 

Elements of the crime

 

The essential elements of the crime involve the drivers intent, the officer’s vehicle, and the officer’s uniform. Each one functions in a particular manner under California State law.

 

 

Driver Intent

 

One of the most important elements of evading an officer is the driver’s intent. The prosecution must prove that the driver evaded the police officer with specific intent.

 

“Willfully” refers to the deliberate intent of the driver.

 

Specific intent crimes require the prosecution to prove that the defendant specifically intended to perform the criminal act.

 

The prosecution does not need to prove that the driver intended to break the law, hurt someone else, or to gain an advantage.

 

However, if the driver fled from the officer under a different rationalization, then the driver can build an effective legal defense against evading an officer charges.

 

 

Example A

 

Meredith recently turned 68 years old and is beginning to exhibit early signs of dementia. Sometimes while driving she loses focus and becomes disoriented.

One Sunday afternoon, Meredith drives through a 35 mph section of the road at 55 mph. A police officer sees her driving above the speed limit and attempts to pull her over.

 

Meredith does not understand that the officer’s flashing lights and siren are the officer’s signals for her to pull over. Consequently, she continues to speed down the same street at 55 miles an hour with the police officer chasing her.

 

The prosecution most likely could not prove that Meredith evaded the officer willfully. Therefore, Meredith probably could not be convicted of evading a police officer.

 

 

Example B

 

Another example involves a married couple, Phyllis and Bob. Phyllis is 9 months pregnant and begins to go into labor. Bob recognizes that her contractions have begun and decides to drive her straight to the hospital.

 

After leaving their house, Bob drives as fast as he possibly can, regardless of the speed limit. After a few miles, he sees a police officer behind him with his lights on and his siren blaring.

Bob chooses to ignore the police officer and continues driving to the hospital as quickly as possible.

 

When they all arrive at the hospital, the police officer arrests Bob for evading an officer, while Bob’s wife goes straight to Delivery. Bob’s intent, however, was not to deliberately evade a police officer. Bob drove quickly in order to get his wife to the hospital as soon as possible. Under this rationale, the prosecution could not prove him guilty of evading an officer.

 

handcuffs

 

Officer Vehicle

 

California State Vehicle Code 2800 .1 describes the particular markings and equipment on an officer’s vehicle that are necessary to support a charge of misdemeanor evading:

  1. The vehicle must have at least one lit red lamp visible from the front of the vehicle
  2. The officer must sound the siren as often as reasonably necessary
  3. The officer’s vehicle must be distinctly marked through some means other than the red lamp and siren

 

These distinct markings can include:

  • The seal or name of the police or law enforcement department on the outside of the car
  • Flashing blue or clear lights visible to the driver
  • Wigwag lights, or flashing headlights

 

These distinctive markings are an integral part of the support for evading an officer charges.  If the law enforcement vehicle does not have at least three of these distinctive markings, the defendant cannot be charged with evading an officer.

Example

 

Jim, a police officer, drives a vehicle equipped with only a siren, a red light under the rear-view mirror, and a blue amber blinking light in the back.

Jim sees a car run a stoplight. The driver of the other car, Dwight, begins to speed away.

As Dwight speeds off in his car, Jim follows him in his police vehicle. Jim turns on his red light, his siren, and his blinking blue light in the back. However, Dwight does not pull over and continues to run stop signs in order to get away from the officer.

Eventually the police officer catches up to Dwight. Jim finds heroin in the car and charges Dwight with both the transportation of a controlled substance and VC 2800.1.

The prosecutors, however, cannot prove beyond a reasonable doubt that Dwight could see the blinking blue light.  Consequently, the officer’s car does not qualify as being distinctively marked apart from the red light and siren. As a result, the prosecution cannot prove Dwight guilty of evading an officer.

 

 

Officer’s Uniform

 

Under Vehicle Code 2800.1, officers pursuing drivers must be in a “distinctive uniform.”

The California State Juror instructions 2182 explain the uniform requirements as follows:

A “distinctive uniform” means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or of any particular level of formality. However, a badge is not enough.

Example

Police officers arrest Creed for felony firearm charges as well as for misdemeanor charges for evading an officer after they chase him through downtown streets in their police vehicle.

One of the officers who pursues Creed is wearing a bulletproof vest over her shirt, as well as a vest  which reads “Police” in bright yellow lettering. She is also wearing a gun belt during the pursuit.

The other officer is in street clothes. However, he is wearing a police department jacket, a gun belt, and a baseball cap with “Police” written across the front.

 

Although the officers are not wearing complete and formal blue or black uniforms, their clothing clearly indicates their status as police officers. Consequently, the prosecution could effectively convict Creed of evading an officer.

 

 

Penalties under State Vehicle Code 2800.1 for Evading an Officer in California

 

As the name misdemeanor evading an officer implies, California State Law defines Vehicle Code 2800.1 as a misdemeanor.

 

The potential penalties include:

  • Misdemeanor probation
  • Up to 1 year in county jail
  • Fines of up to $1,000
  • The impoundment of the vehicle used to evade the officer for up to 30 days

 

In addition, the judge may suspend the defendant’s driver’s license for a period of time as a condition of robation

 

The State may only charge a driver for one count of evading a police officer per event. The number of officers involved does not determine how many charges the defendant will face.

 

 

Commercial Driver’s License Suspension

 

Commercial driver’s license holders who commit a single misdemeanor evading an officer crime in a commercial vehicle lose the right to operate a commercial vehicle for one year. Multiple convictions can lead to the permanent suspension of the driver’s commercial driver’s license if the offenses occurred behind the wheel of a commercial vehicle.

 

theft, fraud, robbery, crime, criminal law

 

Related Crimes

 

California State Penal Code 415, Disturbing the Peace

If the prosecution can find only weak evidence, but does not dismiss the evading an officer charges completely, the prosecution may suggest a plea bargain under Penal Code 415 PC, Disturbing the Peace.

“Disturbing the Peace” convictions carry a potential county jail sentence of no more than 90 days and a potential fine of no more than $400.

The most significant advantage of disturbing the peace charges, as opposed to evading an officer charges, is the fact that disturbing the peace charges carry less of a stigma on a criminal record than evading on officer charges..

 

 

California State Vehicle Code 2800.2 Felony Reckless Evading an Officer

Individuals who commit the crime of evading an officer, as described in Vehicle Code 2800, with a willful and wanton disregard for the safety of persons or property, may face felony Reckless evading an officer charges under Vehicle Code 2800.2.

 

Felony reckless evading an officer qualifies as a California wobbler. Wobblers may be charged as a felony or as a misdemeanor. However, California prosecutors usually choose to pursue felony charges.

If the prosecution charges the crime as a felony, a reckless evading charge carries a potential state prison sentence of sixteen months to three years, as well as fines of up to $10,000.

 

 

California State Vehicle Code 2800.3 Evading Causing Injury or Death

If a driver evades an officer as described in Vehicle Code 2800.1, and in the process he or she causes the serious bodily injury or death of another person, then the prosecution will pursue charges under Vehicle Code 2800.3, California’s evading an officer causing injury or death law.

If the act of evading an officer causes only serious bodily injury, then the state considers the crime as a wobbler. The potential California felony penalties include three to seven years in state prison.

 

However, if the driver evades an officer and causes the death of another person, the potential penalty increases to four to ten years in state prison.

 

man in handcuffs

 

Understanding Misdemeanor Evading an Officer Charges under California Vehicle Code 2800.1

 

The State of California charges drivers with evading a peace officer under Vehicle Code 2800.1 if, while driving a motor vehicle, the driver willfully attempts to flee from a police officer who pursues him or her in a car or on a bicycle.

 

The prosecution must prove the elements of the crime, including the following:

  1. The driver specifically intended to evade the officer
  2. The officer’s vehicle exhibited at least one lit lamp visible from the front, thus making it reasonably easy to see
  3. Sirens on the officer’s vehicle were sounded as necessary
  4. The officer’s vehicle was distinctively marked
  5. The officer’s vehicle was operated by a law enforcement official who wore a distinctive uniform

 

A conviction of misdemeanor evading an officer carries the following penalties:

  • Up to 1 year in county jail
  • Fines of up to $1,000

Furthermore, the vehicle used to evade an officer may be impounded for up to 30 days.

 

 

Defending Against California Misdemeanor Evading an Officer

 

The prosecution bears the burden of proof in every criminal case, and defendants deserve to fight for their civil liberties as guaranteed under the Constitution of the United States. An experienced criminal defense attorney can investigate the situation, and unravel what happened in order to effectively defend the accused individual.

By acquiring information on the driver and the situation, a skilled defense attorney may be able to show a lack of specific intent on the part of the driver.

Drivers can only be convicted if the prosecution can prove that the driver specifically intended to evade the officer who was pursuing him or her. There can be many reasons for a driver not to stop when a police officer is pursuing him or her:  The driver could have been distracted and didn’t realize that the officer was signaling for him or her to pull over. The driver could have feared for his or her well-being in the neighborhood where the offense occurred and did not stop. The driver was not able to determine if the individual following him was indeed a police officer due to  insufficient markings on the officer’s vehicle.

Law enforcement protocol exists for a reason, and citizens deserve a legitimate opportunity to fight for their rights.