March 2013 Archives

Drunk In Public (Public Intoxication) - Is It a Big Deal?

March 28, 2013,

One aspect of the college student experience is partying with friends and fellow students at the local bars and clubs. Often times, these college students have no means of transportation and find themselves walking to bars, clubs and to their dorm rooms on campus, sometimes while under the influence of alcohol and drugs.

In California there is a statute that prohibits being "Drunk in Public." To be in violation of Penal Code section 647(f), the "Drunk in Public" statute, you must meet the following criteria:

1. Your level of intoxication makes you unable to exercise care for your safety or for the safety of others, or

2. Your level of intoxication interferes with, obstructs, or prevents others from using streets, sidewalks, or other "public ways".

For the District Attorney to prove that someone was drunk in public they must prove that the individual was so intoxicated and impaired that they could not safely care for themselves or for the safety of others.

Most of the time people are not impaired enough to care for their own safety. Often times they have done something to antagonize the police officer that has come in contact with them. Unlike a DUI arrest, there is usually no chemical test that is performed to test the level of alcohol or drugs in a person's system for a drunk in public charge. We generally challenge these types of arrests on your behalf.

Any arrest that results in a conviction on your record is something to be very concerned about. If you are a college student and applying for your first job out of school or applying for financial aid, and if you were arrested and charged, this conviction will show up on a background check. Prospective employers may be hesitant to offer you a position and could very likely assume that you have an alcohol or drug problem.

In addition, under California Vehicle Code section 13202.5, if you are under 21 years of age and you are convicted of public intoxication, you may lose your driver's license for up to one year, even if you were not driving a vehicle. Also, if you do not yet have the privilege to drive, the court could order the department to delay issuing the driver's license for one year subsequent to the time you become legally eligible to drive.

It is imperative that you contact an experienced criminal defense attorney to advocate on your behalf if you are facing a drunk in public charge. Contact our office today for a free consultation.

NEW APP TO TEST YOUR BLOOD-ALCOHOL LEVEL ON YOUR SMARTPHONE, COMING TO MARKET

March 26, 2013,

Breathometer, a California start-up, has developed a smartphone blood-alcohol tester. It is a small device, similar to the latest new trend of credit card swipers, that plugs into a smartphone's headphone jack and works with an application that you would download that runs the device.

The company launched a campaign in hopes of raising money to produce and market the device. They are also allowing anyone interested to order it. Pledge levels have ranged from $20 for a Breathometer device to $500 for a lifetime upgrade to all Breathometer products.

The device will work with all iPhone and Android smartphones. In addition, to informing all users that they could be too impaired to drive, the smartphone app will also include information on local transportation such as cab/taxi companies. The company is currently seeking FDA approval for the Breathometer, with a patent pending. They hope to make the product available to the public by the summer.

There are also other products on the market currently, some of which sell for as little as $30 and can fit onto your keychain. Non-electronic crystal-based breath analyzers are available for less than $3.

We strongly recommend that if you want to be truly safe, it is best not to drink and drive at all.

The Law Office of Lauren K. Johnson is proud to represent all those who have been charged with a DUI offense in our area. We understand that a DUI conviction can carry life-altering results. If you or a family member has been arrested for driving under the influence, get in touch with our office as soon as possible after the arrest to ensure that you have an advocate on your side every step of the way. We can be reached by phone at 949-679-7745 or you can send us a message online for a free consultation.

CALIFORNIA MARIJUANA ARREST AND CONVICTION RECORD DESTRUCTION - CHANGES PENDING

March 25, 2013,

The Governor of California has a put forth a trailer bill in which one of the items to be amended are the laws governing the disposition of Marijuana Arrest and Convictions records. Specifically, section 11361.5 of the Health and Safety Code is targeted. Currently HS 11361.5 mandates that the courts destroy the arrest records or convictions as set forth under these conditions:

HS 11361.5 (a) Records of any court of this state, any public or private agency that provides services upon referral under Section 1000.2 of the Penal Code, or of any state agency pertaining to the arrest or conviction of any person for a violation of subdivision (b), (c), (d), or (e) of Section 11357 or subdivision (b) of Section 11360, shall not be kept beyond two years from the date of the conviction, or from the date of the arrest if there was no conviction, except with respect to a violation of subdivision (e) of Section 11357 the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section. Any court or agency having custody of the records shall provide for the timely destruction of the records in accordance with subdivision (c). The requirements of this subdivision do not apply to records of any conviction occurring prior to January 1, 1976, or records of any arrest not followed by a conviction occurring prior to that date. This is how it currently works.

What would the statue look like if it gets amended?

What is being amended is that now the person that was either arrested or convicted of subdivision (b) must now apply for the destruction of his/her own records without notification or by being reminded by the court that they are eligible to do so. This is really a cost cutting issue (defraying the costs) involved in destroying these records

If you were arrested and not convicted or were convicted of a Marijuana charge under HS 11357 or subdivision (b) of HS 11360, you must wait the statutory two year period from the date of the arrest if there was no conviction, or if you were convicted, you may apply to the Department of Justice for the destruction of your records pertaining to the arrest or conviction, again only if two or more years have elapsed. You will have to pay a fee ($37.50 is currently proposed). In addition, the Department may request, but not require a self-administered fingerprint upon application, which in many instances will cost you another $60 to $80 for a live scan fingerprint submission.

Once all of the paperwork has been properly submitted, fingerprints and identity have been verified, the Department of Justice will destroy any records of your arrest or conviction. If for any reason the applicant fails or refuses to submit fingerprints to the department within a reasonable time, or if an applicant requests a refund of the fee, the department will mail a refund, and notify the applicant that election to abandon the application may result in forfeiture of a specified amount that is a portion of the fee (not to exceed $10) and refund the rest.

The implications are vast. First, most people that are arrested and never convicted do not exercise their right to have their arrest record destroyed either knowingly or having never been informed of this right. Second, there is no indication that the Department of Justice or the local courts are going be informing individuals whether formally or informally that they can have their arrest or conviction records destroyed after the statutory two year period.

The Law Office of Lauren K Johnson represents many clients that have been arrested for various marijuana related crimes. If you are currently facing a marijuana related charge, contact our office today for a confidential consultation about your case.

DNA CASE APPEARS TO BE DIVIDED IN THE UNITED STATES SUPREME COURT

March 5, 2013,


In 2009 Alonzo Jay King Jr. was arrested for assault in the state of Maryland. Pursuant to Maryland's DNA Collection Act (Maryland law that allows officials-without a warrant- to take the DNA of someone who has been arrested but not convicted of a serious crime). The federal government and 28 other states have similar laws, including California (California Penal Code §296).

Subsequent to the arrest and DNA collection, officials were able to eventually produce a match through the CODIS DNA database (CODIS is a computer software program that operates local, State, and national databases of DNA profiles from convicted offenders, unsolved crime scene evidence, and missing persons) with a previously unresolved rape case from 2003. At trial King argued that the DNA draw violated his constitutional rights, but he lost and was sentenced to life in prison for the 2003 case. In April, an appeals court ruled in favor of King. The Court said that King's rights to be free from unreasonable warrantless searches had been violated.

In Maryland v. King during oral arguments, Kannon K. Shanmugamer, King's lawyer argued that the taking of DNA is distinguishable from the taking of fingerprints because DNA contains far more information, the search is physically intrusive, and law enforcement's primary purpose to take the DNA is not for identification purposes. "Maryland searched my client without a warrant in order to investigate crimes for which there is no suspicion," Shanmugam argued "It is settled law that warrantless, suspicionless searches are presumptively unconstitutional."

During animated arguments the Justices seemed divided on some key issues. One of the central questions in front of the court as Justice Alito eloquently stated is:"So this is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy. But why isn't this the fingerprinting of the 21st Century?"

Justice Elena Kagan posed critical questions regarding the law. She asked the Chief Deputy Attorney General of Maryland, that if the purpose of the law is not so much for identification, but to solve cold cases, "then it's just like searching your house, to see what's in your house that could help solve cold cases." A search of the home- unless there is an emergency- requires a warrant. "Just because you've been arrested, doesn't mean that you lose the privacy expectations and things you have that aren't related to the offense that you've been arrested for," Kagan said.

The United States government favors the law, and argues that arrestees lose some of their privacy by virtue of the fact they've been arrested, "Arrestees are in a unique category, they are on the gateway into the criminal justice system. They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights." Deputy Solicitor General Michael R. Dreeben noted that when someone is taken into jail he is subject to a visual strip search. If he's admitted into the prison population a TB test and a thorough medical screen is done.

Dreeban went on further to say that the DNA collection is not any different than submitting to fingerprints, it is primarily for identification purposes. The fingerprint comparison brought up another concern of the Justices. A fingerprint analysis is almost immediate while DNA can take days or sometimes weeks to analyze depending upon the available technology and back log. How can something that can take days to acquire have a primary purpose for identification.

He said that soon this distinction won't matter. "The future is very close to where there will be "rapid DNA analyzers" that are devices that can analyze and produce the identification material in the DNA within 90 minutes."

In the state of California if you were arrested for a Felony and submitted a DNA sample pursuant to Penal Code 296 and charges against you were never filed or were later dismissed, you can petition the court to have your DNA sample expunged pursuant to Penal Code §299.

The Law Office of Lauren K Johnson represents many clients that are arrested for various felonies and were subjected to providing a DNA sample at the time of their arrest. Contact our office today for help with your case.