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First-time DUI offenders in all of California may soon be required to install an ignition interlock device (IID). Lawmakers are looking to expand a pilot program that requires those convicted of DUI to install an IID on their vehicle in exchange for softer punishment. The program has had success in Los Angeles, Tulare, Alameda and Sacramento counties.

Senate Bill 1046, authorized by California State Senator Jerry Hill, looks to expand this program statewide. So what’s next for this potential law?

Ignition Interlock Devices for First-Time DUI

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California is one of a small number of states that allows for the use of medical marijuana. This may lead some marijuana users to feel more comfortable driving while under the effects of marijuana. As efforts to further legalize marijuana in California continue, some lawmakers want to use a new method to catch the growing number of drivers under the influence of marijuana.

Senate Bill 1462, authored by Republican Senator Bob Huff, is a proposed law that would introduce a new method for law enforcement to instantly test drivers for marijuana during DUI stops. The bill would allow law enforcement officers to use an oral swab drug screening test on drivers if there is probable cause the driver is impaired and the driver has also failed sobriety tests.

Accuracy of the Swab Test

To test for the presence of marijuana, police would use an oral swab on the driver and a hand-held electronic device that tests oral fluid. The test is also used to detect the presence of cocaine, amphetamines and pain medications, including opiates.

The swab tests are not accurate enough to replace the more complicated blood and urine tests law enforcement currently uses to test for drugs, but they are much more portable and instant. Swab tests wouldn’t be accurate enough to tell the exact concentration of THC or other illegal and legal substances in a person’s body. However, Senator Huff says that the oral swab tests are the quickest way to test for drugs like marijuana at a DUI stop. Continue reading →

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Have you ever been to a party that’s gotten out of hand? Everyone is having a good time and suddenly the police arrive to state that the noise level is just too high.

In situations like these, police will often make contact with the owner of the house and inform them that the noise level needs to go down or issue the owner a citation. When police have to issue that citation, no one is really that much worse off. Besides, if a person hosts a party that gets too loud, they should be the ones to suffer the consequences, right?

Not so, says a new city ordinance that is being proposed by the Orange City Council. The broad language of the ordinance extends potential liability not just to the host of the party, but to the actual guests as well. Is this potential Orange ordinance unfair?

More Than Just a Buzz-Kill

Originally, the bill proposed by Orange County Republican Fred Whitaker only targeted the hosts of “a party at which there is loud and unruly conduct and/or to permit underage drinking.”1 Revisions to the bill have severely broadened its scope. Now, the language of the ordinance allows for a violation to be issued to any person “present at, attend[ing] or participat[ing]” in that party in Orange.

That means that guests can be in violation of the ordinance even if they are not acting irresponsibly or adding to the noise level. In fact, under the broad language, a person who was simply present when the police arrived but who might not have even been an actual guest could also be in violation of the ordinance. Continue reading →

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It is common knowledge these days that any given online profile on LinkedIn or Facebook might contain false information. It can also be assumed that many online profiles are entirely fake. In fact, in 2014 Facebook reported that about 170 million of its accounts are fake.1 While this number may only make up somewhere between 5 and 11 percent of Facebook users, the problem is not just that they exist—its what they are used for.

Many fake online accounts are used for malicious purposes, such as trolling, identity theft, or cyber bullying. While criminal laws address some of these issues once their criminal use becomes apparent, the actual creation of a fake profile is not a crime.

Recently, though, England has begun an effort to curb the creation of fake online profiles. As part of the Criminal Justice and Courts Act of 2015, British prosecutors are now being advised on how to criminally charge individuals who make fake online profiles with information that could damage a person’s reputation.2

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From early on in this nation’s history, the U.S. Supreme Court has consistently held that the Fourth Amendment includes protections against arrests without warrants. However, there are a number of exceptions to this rule. Should you be arrested under one of these exceptions, you will have the right to a hearing in which the police will have to prove probable cause existed to arrest you without getting a warrant first.1 These exceptions are:

  • You Committed a Felony in a Public Place

The Supreme Court has ruled that the Fourth Amendment protects you from unreasonable seizures, especially within a private home. However, these protections do not necessarily apply to arrests in public.

If an officer reasonably believes that you have committed, are about to commit, or are in the act of committing a felony in a public place, the officer may arrest you without first seeking a warrant.

  • You Committed a Misdemeanor in the Officer’s Presence

Similar to felonies, an officer may arrest you without a warrant if you commit a misdemeanor in a public place. However, unlike with a felony, the standard is a little tougher. The officer must have observed you with one or more of his or her five senses (sight, smell, touch, taste, or hearing) in order for the arrest to be upheld as valid.

  • You Violated a Traffic Law

Often, a person who is arrested without a warrant is first noticed by a police officer because he or she violated a traffic law in the officer’s presence. In most cases, a traffic stop only ends up with the driver getting a ticket or a warning, but if the officer sees evidence of a different crime during a traffic stop, he or she can arrest you without a warrant.

For example, if you robbed a bank, and the officer who pulled you over for speeding sees a bag full of cash in the back seat of your car, he does not have to wait for a judge to approve a warrant to place you under arrest.

  • The Police Arrested You with a Defective Arrest Warrant

Just as officers make mistakes, so to do some judges who issue warrants. A valid warrant is one that fulfills several technical requirements. For example, a judge must sign the warrant, and it must describe the criminal offense for which you are being accused. The warrant must also contain your name or a name by which you can be identified with reasonable certainty. The warrant must command that you be arrested and brought before the court without unnecessary delay. If the warrant fails to meet any of these requirements, it could be considered invalid, and technically gives the officers no authority to arrest you.

Nevertheless, the Supreme Court has held numerous times that if the officers are unaware of the problems with the warrant and they act in “good faith” in executing the defective warrant, your arrest may still be valid, so long as the officers made no attempt to trick the judge into issuing the warrant.2

  • The Police Arrested You with “Exigent Circumstances”

In challenges to warrantless arrests, one of the most common claims by law enforcement is that there simply was not enough time to obtain a warrant prior to arresting the suspect. Usually, this type of arrest involves the officers entering your home without a warrant for one of the following reasons:

  • The serious nature of the offense (such as the use of deadly weapons)
  • The chance that evidence will be destroyed
  • Entry into the home was pursuant to a “hot pursuit”
  • Danger to others in the home

Continue reading →

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Ever since California voters passed Proposition 47 into law in 2014, law enforcement and others have been quick to blame the new law for leading to an increase in criminal activity.

The same claims have been made of the 2011 Public Safety Realignment Act (PSRA), which shifted the responsibility for treatment of lower level, non-violent felons from the state to each county. While there have been no meaningful studies to show whether Proposition 47 caused an increase in crime, a new study by the University of California, Irvine, appears to show that the PSRA has not resulted in an increase in crime.1

The Overhaul of California’s Prisons

In 2011, the United States Supreme Court declared California’s prison system to be constitutionally flawed.2 Overcrowding represented a significant problem in maintaining the physical and mental health of the state’s prison population, which not only was viewed as cruel and unusual punishment, but also as a hindrance to the effective rehabilitation of prisoners. As an example of these conditions, Justice Kennedy noted in the majority’s opinion that as many as 200 prisoners had lived in a gym and as many as 54 prisoners had shared a single toilet. The court ordered California to reform its prison system.

California’s answer was the PSRA, which transferred 33,000 state prisoners into the custody of individual counties. In many cases, counties determined the appropriate treatment was to parole these inmates.

The Myth of Prison Realignment Increasing Crime

Law enforcement agencies were convinced that the sudden release of so many incarcerated persons would lead to a crime wave, but the UCI study shows that the true impact on the crime rate has been negligible. “We’ve seen no appreciable uptick in assaults, rapes or murders that can be connected to the prisoners who were released under realignment,” said Charis Kubrin, a UCI professor of criminology who co-authored the study. “This is not surprising, of course, because these offenders were eligible for release precisely because of the nonviolent nature of their crimes.” Continue reading →

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Being interrogated by the police can be a frightening experience. Officers and detectives are well trained in the art of getting people to admit things about themselves that they do not want to admit. Regardless of whether you have done something wrong, you can be sure that a law enforcement agent who is convinced you have committed a crime will use every available means to find a way to make you feel like you have.

One way police try to draw a confession out of a suspect is to use the interrogation environment to their advantage. If you are suspected of committing a crime, you will likely spend hours in a brightly lit, windowless room with an uncomfortable chair. The room may be very warm or very cold. They will control when you eat, when you drink, when you use the restroom, and perhaps most importantly, whether or not you sleep. But is this a form of cruel and unusual punishment?

Studies Show Less Sleep Leads to More False Confessions

A recent study published in the Proceedings of the National Academy of Sciences shows that persons deprived of sleep are far more likely to confess to committing an act that they did not commit than people who have had a full night’s sleep.[1] In the study, researchers asked 88 university students to enter responses to a questionnaire on a computer. They were warned to not press the Escape key, as doing so would erase their data.

The group was divided in half. One group was allowed to sleep, while the other group stayed awake all night. The following day, each student received a statement accusing him or her of pressing the Escape key, and they were asked to sign a statement confirming the accusation. In reality, none of the students had done so.

The result? Only eight of the 44 students who slept confessed to the “crime,” while 22 out of the 44 who had not slept confirmed the accusation. The numbers increased to 30 students when they were asked a second time to confess to pressing the Escape key.[2]

Is Sleep Deprivation Legal?

Currently, sleep deprivation is not illegal as an interrogation tactic. Although the Eighth Amendment protects citizens from cruel and unusual punishment, courts have largely interpreted the amendment to only apply to punishment after a person has been convicted of a crime. Continue reading →

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Corruptio optimi pessima. Roughly translated, the Latin phrase means, “Corruption of the best is the worst.” The phrase is often used to describe the case when a member of our society in a position of great power and respect is revealed to have abused his or her position to further his or her own cause.

Such is the case with former Los Angeles County Sheriff Lee Baca, who recently pleaded guilty in federal court to lying to FBI agents. While Baca was leading the Sheriff’s Department, the FBI began investigating allegations that deputies routinely beat inmates and visitors in county jail. Baca and his staff allegedly sought to obstruct the investigation. By accepting the plea deal in which he admits to lying to federal officials, the retired sheriff will avoid the more serious charge of obstruction of justice and now faces a maximum of six months in federal prison.

Witness Hiding and Intimidation of Investigators

The crux of the charges against Baca stems from an interview in 2013 in which he misled FBI agents regarding his and his lieutenants’ involvement in the hiding of a key jail informant. Baca denied having any knowledge that his deputies interrupted the FBI’s interview with the informant to prevent further questioning. Continue reading →

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Many drivers dread the sight of a police car in the review mirror, hoping the sudden flashing of lights and blaring of a siren will not ruin their day. Should that happen to you, it is important that you understand what the police are and are not allowed to do during a traffic stop.

Reasonable Suspicion and Probable Cause

The Fourth Amendment to the U.S. Constitution protects people from unreasonable searches and seizures. Over time and through various Supreme Court decisions, the Fourth Amendment has come to mean that you cannot be arrested (or “seized”) without probable cause, which requires that law enforcement officials had reason to believe you committed a crime, were in the act of committing a crime, or were about to commit a crime.

However, the standard that an officer must meet simply to pull you over is not as high as probable cause. To initiate a traffic stop, all an officer must have is a “reasonable suspicion.” Reasonable suspicion is a standard established by the Supreme Court in a 1968 case in which it ruled that police officers should be allowed to stop and briefly detain you if there is reason to believe that you are engaging in criminal activity.

Notice the difference between the two standards: probable cause is from the point of view of a reasonable person; reasonable suspicion is from the point of view of a reasonable police officer.

What Officers Can and Cannot Do

Without reasonable suspicion or probable cause, officers are very limited in what they are allowed to ask of you during a traffic stop. They can:

  • Ask you for your identification, driver’s license, registration and proof of insurance.
  • Act on circumstances or facts that provide reasonable suspicion or probable cause that you engaged in criminal activity.
  • Conduct a “sniff test” for drugs outside of the vehicle with a police dog (K9 unit), provided the sniff test does not extend the length of the stop.

There are many acts an officer cannot do if he or she stops you and doesn’t have reasonable suspicion. An officer cannot:

  • Search your vehicle without your consent. Always remember that you have the right to refuse a search of your vehicle!
  • Detain you for longer than necessary to affect the reason for the stop.

Continue reading →

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If your phone has dropped a call or lost service while you were in Anaheim, it might seem like it is logical to blame Disneyland. More than 16 million people visit Anaheim every year as part of their journey to Disneyland. Combine that with the three million residents of Orange County, and at any given time, cell phone traffic in Anaheim can be extremely heavy.Los Angeles Crime Rates

However, a recent discovery by the American Civil Liberties Union (ACLU) revealed a far more insidious problem with cell phone coverage around the Magic Kingdom. The Anaheim Police Department has been using plane-mounted surveillance equipment to intercept cell signals and record trackable data from phones, all without having first obtained a search warrant.

Digging for Dirt with “Dirtboxes”

The ACLU obtained documents showing the Anaheim Police Department’s indiscriminate use of Digital Receiver Technology, Inc.’s (DRT) equipment mounted on planes patrolling the skies above Orange County. DRT boxes (also known as “Dirtboxes”) are forms of stingray, which are phone signal intercept devices used by the military, intelligence agencies and the FBI.

These devices are used to mimic cell phone towers, and more often than not, the signal emitted by a Dirtbox is strong enough to force phones to disconnect from a service provider’s cell site and establish a new connection with the Dirtbox. In 2013, Anaheim’s Chief of Police approved upgrades to the equipment, allowing Anaheim police to track signals carried on LTE networks, which carry the traffic of millions of smartphones each day.

The result is millions of cell phone users unwittingly connecting with a government surveillance device and unknowingly disclosing private information to the Anaheim Police Department and other Orange County police agencies that leased the devices from Anaheim PD.

Continue reading →

About Wallin & Klarich

Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.