August 27, 2009

Informants Must Pass Reliability Tests

Police informants in California provide the authorities with information that leads to search warrants, wiretaps, surveillance and the solving of crimes. The types of informants can range from random citizens who are aware of criminal agents of the police who infiltrate criminal organizations and report on their activities.

No doubt informants are a very useful and effective law enforcement tool. But when their purported information leads to search warrants and wiretaps, the privacy of the suspects gets invaded. To insure that this invasion of privacy is warranted, the law requires that standards of reliability be observed.

For example, the judge issuing the search warrant can question the informant...either through live testimony or written affidavits. Specifically, the judge looks to see whether (1) the informer has a history of providing tips that proved reliable, or (2) there is independent corroboration of the informer's story.

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August 26, 2009

Challenging California Search Warrants

When police suspect that evidence of a crime may be found at a certain location, they can ask a judge to issue a California search warrant. If issued, the search warrant allows the cops to search the designated locations and seize any relevant evidence that they find.

But even when a search takes place pursuant to a warrant, that doesn't necessarily mean it will hold up in court. A good criminal defense lawyer looks behind the warrant to see if it was properly issued.

Specifically, police must present evidence to the judge to establish "probable case" before a search warrant can be legally issued. Sometimes the police present false or misleading evidence, or they rely on the word of an unreliable informant, or they fail to tell the judge the whole story (intentionally leaving out the parts that don't support their position).

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August 24, 2009

San Bernardino Lacks a Camp System for Juvenile Offenders

The San Bernardino County juvenile court system has relatively few options for where to place minors who are deemed to need detention time. Most are ordered to spend time in the San Bernardino Central Juvenile Hall or the West Valley Juvenile Hall. Serious offenders get transferred to the California Youth Authority (CYA)—essentially a state-run prison for minors.

Los Angeles County, by contrast, operates a series of “camps” for young offenders that function as a middle ground between the halls and CYA. Minors get ordered to camp for 3 months to a year. Counseling, schooling, drug rehab and even career-training are provided. The purpose of the camps is entirely rehabilitative…to take the minor away from problems in the home and on the street, and try to instill in him or her purpose and responsibility.

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August 20, 2009

DUI Probation Violations

When people plead guilty to a California DUI charge, they usually get placed on probation. The court imposes certain “terms and conditions of probation.” Violating these terms and conditions may result in a bench warrant for one’s arrest, a probation violation, and possible jail time.

The terms of probation consist of affirmative duties and prohibitions. Affirmative duties include, for example, enrolling in and completing DUI school, and completing a MADD victim impact class. Prohibitions include refraining from breaking the law, from driving with any measurable amount of alcohol in one’s system, and from driving without proper liability insurance.

Most bench warrants get issued for people failing to complete the affirmative requirements. For example, one must enroll in the DUI school within 21 days of sentencing. Most judges require you to return to court with a “proof of enrollment” within 30 days of sentencing, and a “proof of completion” within 6 months.

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August 13, 2009

Serna Motions for Lack of Speedy Arrest

A defendant in California may file a Serna motion when the state fails to execute its prosecution in a speedy manner. The defendant must show that he's been prejudiced (harmed) by the delay. For example, alibi witnesses and other defense evidence may no longer be available. Prejudice is presumed when the prosecution delays more than one year.

There are a couple ways the prosecution can delay itself. The first is when the D.A. waits awhile to file charges, even though the D.A. has the evidence it needs. If the D.A. sits on the case long enough before filing, this can lead to an effective Serna issue for the defense.

A second type of delay is when the police fail to execute a California arrest warrant in a timely manner. Once the D.A. files charges, usually an arrest warrant is issued. The defendant typically learns of the charges when he gets arrested. But if the cops fail to arrest him, the defendant may be oblivious to the charges and thus not take steps to preserve useful evidence.

The remedy when a defendant prevails on a Serna motion is dismissal of the case.

August 10, 2009

Police Continue to Entrap Gay Men for Lewd Conduct

Police throughout California continue to arrest unsuspecting gay men as part of lewd conduct sting operations. In spite of protests and recent court victories, cops have shown few signs of slowing down.

Penal Code 647(a) “Lewd Conduct in Public” makes it illegal to engage in public sexual activity when you know or should know of the presence of other people who would take offense. The last part of that definition is critical. California law does not make it inherently illegal to do sexual acts in public. It only becomes a crime if third parties are there whom you have reason to believe would be offended.

In the sting operations, undercover “decoy” cops pretend to be gay men “cruising” in bathrooms, parks and other public places. They try to coax unsuspecting gay men into masturbating, dropping their pants, or doing or proposing some sexual act. Then they arrest the “suspects” for violating Penal Code 647(a).

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August 7, 2009

What To Do if You Have an Arrest Warrant in California

When prosecutors file criminal charges against someone not already in custody, they take the case to a judge to issue a California arrest warrant. This authorizes the police to apprehend the defendant and detain him/her until arraignment or, if bail is authorized, until bail is posted.

If you are aware of having a warrant for your arrest, usually the worst thing you can do is hide out and become a fugitive. In all likelihood, the police will find you and arrest you eventually. If you go “on the lam” for some period of time, this can make things worse once you do ultimately get arrested.

A California criminal defense lawyer can often escort you directly to court and ask that you be arraigned immediately. This means you enter a plea (usually “not guilty”), a further court date is set, and the judge decides what to do about bail.

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August 6, 2009

When Should Medical Conditions Cost People Their Drivers Licenses?

The California DMV reserves the authority to revoke the driving privileges of anyone determined to be unable to drive safely. One such category of drivers is people with medical conditions that impair their driving skills…such as epilepsy, macular degeneration and some forms of diabetes.

Before a person can receive a driver’s license suspension for a medical condition, the DMV must first conduct a hearing. This is referred to as a “reexamination” or “lack of skills” hearing. A DMV hearing officer interviews the driver, reviews all the medical evidence, and sometimes conducts written and driving tests.

Revoking driver’s licenses for people with medical conditions involves balancing two competing policy objectives. On one hand, our society is committed to equal access and equal opportunity for people with disabilities. And driving privileges can be vital to one’s ability to earn a living, run errands, care for children, and participate fully in our community and economy. A person with disability already suffers adversity in life. Not being able to drive only compounds that adversity.

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August 5, 2009

“Mistake” as a Defense to Perjury

Under Penal Code 118, a person commits perjury in California when he willfully gives false testimony while under oath. This usually happens at court proceedings or depositions, but it can also occur in affidavits or any document that’s signed under oath.

To count as perjury, the false statement must be “willful.” This means, in effect, that the perjurer knew the statement to be false but intended it to be taken as true. There must have been an intent to deceive.

A person who mistakenly makes a false statement is not guilty of perjury. For example, suppose Jane testifies as an alibi witness in Paul’s murder trial. She testifies that she saw Paul in Berkeley at the time of the murder, when the murder took place in San Diego. It turns out Jane is mistaken. Surveillance tapes, other witnesses and a confession all put Paul at the scene of the murder.

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August 3, 2009

Crimes Involving Moral Turpitude

The term “crimes involving moral turpitude” refers to a category of crimes that are said to involve dishonesty, deceit, or a “readiness to do evil.” The list of such crimes ranges from murder to perjury to theft offenses.

Whether a crime is categorized as involving moral turpitude has significance primarily in two areas: court proceedings and immigration. As far as court, when a witness testifies, and that witness has prior criminal convictions, the judge must decide whether to allow the opposing party to impeach the witness with those convictions. Generally speaking, this prior misconduct is admissible only if it’s deemed to involve moral turpitude.

As far as immigration, there are several categories of crimes conviction of which triggers “immigration consequences”: deportation, exclusion from admission to the United States, and denial of the chance to naturalize. “Crimes involving moral turpitude” is one category of offenses triggering these consequences.

Of course no one wants to get convicted of any criminal charge. But for many people, conviction for a crime of moral turpitude can be especially devastating.