January 2013 Archives


January 20, 2013,

The United States Supreme Court considered the 4th amendment implications of forced blood draws in DUI cases in the case of Missouri v. McNeely. The justices are considering whether forced blood draws violated the Fourth Amendment right against unreasonable search and seizure.

On October 3, 2010 Missouri state police officer Mark Winder observed Tyler McNeely driving above the posted speed limit. Upon making contact with McNeely, the officer observed that his eyes were red and glassy and that his breath smelled of alcohol. McNeely performed poorly on the administered Field Sobriety Tests and refused to submit to a breathalyzer test.

He was placed under arrest and transported to a hospital for a blood sample. The officer did not obtain a warrant from a judge before allowing the hospital to draw a sample. The blood test revealed that McNeely's blood alcohol level was above the legal limit. Officer Mark Winder testified that in many similar cases that he sought to obtain a warrant from a judge before obtaining a blood draw. In most cases it took 20 minutes to an one hour to obtain the warrant. However, in this case he went ahead and did so without seeking a warrant.

The state charged McNeely with driving while intoxicated. He immediately moved to suppress the blood evidence, stating that it was obtained without a warrant. The trial court granted this motion. The state appealed. The Missouri Court of Appeals held that the trial court erred, it transferred the case to The Supreme Court of Missouri, which affirmed the trial court's decision.

The question at the core of the case is, can a forced blood draw be done without a search warrant? The Fourth Amendment states: The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause..

The Supreme Court justices indicated that a blood test is a very "intrusive" procedure and therefore a warrant could be required. The laws in each state vary but the questions raised at Oral Arguments were two-fold. First, is there enough "Probable Cause" to demand a blood sample without warrant? And are there "Exigent Circumstances" as the Respondent contends? The respondent stated that the declining blood alcohol levels by the minute are crucial and without a timely sample, sustaining a conviction for DWI/DUI would be more difficult, so it would fall under the scope of "Exigent Circumstances."

The decision by the SCOTUS is likely to affect DUI cases in Orange County and other counties throughout the country.



January 14, 2013,

The City Council of Lake Forest voted 3 to 2 to approve the repeal of the sex offender ordinance they adopted unanimously about a year ago. A registrant sued the city in federal district court, who is challenging the ordinance because it violates both the state and federal constitutions. At least one additional court challenge from two city residents had been promised if the city did not repeal its ordinance.
The Orange County Board of Supervisors approved the ordinance in April 2011 (ORANGE COUNTY CODIFIED ORDINANCE 3-18-3 (PROHIBITED OFFENDER ENTERING A COUNTY PARK) which significantly restricts the movements of registered sex offenders, banning them from entering some beaches, parks and harbor areas. Under the rules, sex offenders who visit any of dozens of public spaces without prior approval from county officials face up to six months in jail or a $500 fine. These included areas such as Newport Harbor, Irvine Regional Park and the Orange County Zoo.

But critics such as the CA RSOL (California Reform Sex Offender Laws) immediately expressed skepticism about the law, saying it would be difficult to enforce and appeared politically motivated. Franklin Zimring, a UC Berkeley law professor, said the law was overly broad and misdirected, because more than 9 out of 10 sex crimes targeting children are committed not by strangers in a park, but by family members or acquaintances.

The City of Lake Forest is just one of the 16 cities in Orange County that have adopted ordinances that prohibit registrants from entering public parks and beaches. One of those cities - Santa Ana - also prohibits registrants from entering the public library. And almost half of those cities are facing lawsuits that are being challenged in the courts.
The Orange County District Attorney's office has vowed to continue enforcing the law even as many cities that adopted the ordinance may now follow the lead of Lake Forest. Sheriff Sandra Hutchens has asked her department to stop enforcing the law.
The conviction of Hugo Godinez, a registered sex offender who was ordered to serve 100 days in jail for attending a Cinco de Mayo party at Mile Square Park, a county facility, in Fountain Valley in 2011is one example of how registrants are being charged under this ordinance (See District Attorney press release).

Orange County is the only county in the state to ban all registered sex offenders -- even those who haven't been convicted of a crime against children -- from going to a county beach or spending time in a county park. And although registered sex offenders can apply for an exemption for work or a family gathering, few have been approved.


California Court of Appeal Rules Medical Marijuana Off-Limits For Offender

January 8, 2013,

As the battle over the legality of medical marijuana rages on in the state of California, it remains clear that, while legal for medicinal purposes, there are limits to the extent to which medicinal marijuana users can avail themselves of its benefits. Nothing illustrates this fact better than the California First District Court of Appeals recent decision in People v. Leal, where the Court determined that trial judges can prevent medical marijuana users from using or possessing the drug as part of probation imposed pursuant to a criminal conviction.

The Court's 3-0 decision, upheld the sentence of Contra Costa County Superior Court Judge Leslie Landau, prohibiting criminal defendant Daniel Leal from using or possessing medical marijuana during a three-year term of probation. In 2009, Leal was convicted of possession of marijuana for sale following a jury trial and was sentenced to serve three years on probation.

As part of probation, Judge Landau ordered that Leal was not to "use, possess, or have in your custody or control any illegal drugs***and that includes marijuana," commenting that she found that Leal was "much more likely to engage in future criminal activity selling marijuana again if he is in possession of it for medical use***so he's going to have to find some other way of medicating himself other than using marijuana." Leal appealed the sentence, arguing that that the trial court's condition that he not use or possess marijuana violated his right to use marijuana under California's Compassionate Use Act.

In holding that Leal was not entitled to use medicinal marijuana, Justice Anthony Kline opined "Leal used Compassionate Use Act authorization as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children."

Kline further remarked that judges must "balance the need to protect the public with California residents' right to the use of medical marijuana" and that there may be situations where a criminal defendant's use of marijuana could be justified by a compelling need for its use as medical treatment.

Commenting on the Court's decision, Leal's appellate attorney maintained that, although consistent with California appellate court rulings on this issue, in issuing a detailed 22-page opinion, the First District may have intended "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."

On a previous occasion, this blog has addressed the complications that have accompanied California's legalization of marijuana for medicinal use. Leal's case exemplifies another of those complications and illustrates the need for criminal defendants to have experienced legal counsel prepared to deal with such issues.

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Rising Rate of Incarcerated Female Juveniles

January 1, 2013,

According to a recent story published on NPR, the last ten years have witnessed a decrease in the number of incarcerated male juveniles and an increase in the number female juveniles being detained in jails and residential institutions.

A report entitled "Improving the Juvenile Justice System for Girls", from the Georgetown Center on Poverty, Inequality, and Public Policy, estimates that females make up the fastest-growing segment of the juvenile justice system, accounting for more than 300,000 arrests and criminal charges each year.

Co-author of the report, Georgetown University professor Peter Edelman, maintains that many of the girls that end up in the justice system have family problems, trauma or a history of abuse. Edelman claims that over fifty percent of the female juveniles aren't being detain for serious crimes but more often are skipping school, breaking curfew or running away from home. Edelman believes that "Getting them back into school and getting them back on a path without invoking the sanctions of the juvenile and criminal justice system... is so much better in terms of not leaving those wounds and scars and preserving the possibilities for the future."

The Georgetown report contends that juveniles don't belong in adult jails or prisons and should not be incarcerated for minor offenses such as violating probation. This position has come under sharp criticism from opponents such as Dakota County, Minnesota district attorney James Backstrom.

In the NPR story Backstrom argues, "We're talking about kids that are violating curfew laws, being truant from school [and] violating court orders. Do we need the authority to pick those kids up? I think we do." Backstrom continued, saying "[I]f you ignore the small issue, you might not get to the big issue before it's too late."

It would appear that some states, including California, are moving at least a little closer to the position outlined in the Georgetown Report. As previously discussed by this blog, the California Supreme Court, in People v. Caballero, recently struck down lengthy prison sentences for juveniles on non-homicide offenses that effectively amounted to a sentence of life without parole.

One example of the negative impact the justice system can have on juveniles is Jabriera Handy. Four years ago, Handy was incarcerated at the Baltimore City Detention Center after her grandmother died of a heart attack shortly after Handy fought with her. Because her grandmother had died so shortly after the fight, Handy was charged as an adult with second degree murder and spent eleven months in the detention center.

Handy recalled one instance where the detention center was locked down after another inmate was stabbed to death. According to Handy, she saw the man was" just laying there with a limp body," but had to continue on to school like nothing had happened. "[I]t wasn't like anybody came to us to talk about what [we had] just seen," Handy stated.

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