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Recently, former NBA star Lamar Odom was hospitalized after being found unresponsive at a brothel in Nevada. Authorities obtained a search warrant to test Odom’s blood for drugs. The results of those tests have not yet been released, but the situation raises questions on your ability to consent to a blood test.1

When Police Can Draw Your Blood

consent blood testLaw enforcement is allowed to draw your blood without your consent. This amounts to a search, and thus requires law enforcement officials to first obtain a warrant. The Fourth Amendment protects citizens against unreasonable searches and seizures unless an exception applies. One exception could be that exigent circumstances apply, which means evidence of a crime would be lost or destroyed if police are required to take the time to get a warrant.

In the recent United States Supreme Court case Missouri v. McNeely, the court decided that police are required to get a warrant in order to draw someone’s blood suspected of DUI.2 Prior to this ruling, the law embraced the exigent circumstances exception for DUI cases because alcohol dissipates from your body over time. The court rejected this view in DUI cases, but it left open the possibility that other facts amounting to an emergency could justify a warrantless search.

Unfortunately, what those particular circumstances are is unclear. It is reasonable to argue that a medical emergency could be one such occasion.

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If you are a regular reader of this blog you are undoubtedly familiar with the jailhouse snitch scandal that has rocked the Orange County District Attorney’s office. A Superior Court judge removed the D.A.’s office from the case of convicted serial killer Scott Dekraai due to allegations of violating his constitutional rights by illegally obtaining evidence from jailhouse informants, and failing to produce evidence after repeated requests from his lawyer.

A number of other investigations have since followed, revealing an appeared pattern of prosecutorial misconduct with the DA’s office. In the wake of these and other scandals around the state, California Assemblywoman Shirley Weber authored a new bill that imposes strict sanctions against prosecutors who withhold or suppress evidence in a case. The bill passed, and Governor Jerry Brown has signed it into law.

Zero Tolerance for Suppressed Evidence

Prosecutorial MisconductThe law amends California Penal Code section 1424.5 and section 6068.7 of the California Business and Professions Code, which is part of the State Bar Act. The State Bar Act empowers the State Bar of California to exercise authority over who can be licensed as an attorney in the state, including suspending or revoking licenses of attorneys who violate certain rules.

Under the new law, if a court finds that a prosecutor has deliberately and intentionally withheld relevant or material evidence that tends to cast doubt on a criminal defendant’s guilt, the court must report the violation to the State Bar for disciplinary proceedings if the court finds that the suppression of evidence was in bad faith, and led to a guilty verdict, a guilty plea, or a plea of nolo contendere (“no contest”). If the violation is discovered before the end of the trial, the court is required to report the violation to the State Bar if the suppressed evidence seriously limited the defendant’s ability to put on a defense to the charges.1

In addition, the law strengthens a judge’s ability to remove a prosecutor from a case and allows the court to disqualify the entire office of the district attorney. The defendant’s attorney can also file a motion to do the same if the court finds a violation occurred.

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warrant to search cellphoneUnder current law, law enforcement cannot simply search your or your property in most cases. In order to conduct a valid search, police must seek a search warrant. However, a warrant can only be issued if there is probable cause to search you or your property.

Unfortunately, this same protection does not extend to electronic communication information or electronic device information. In other words, your mailbox is protected more than your email folders. Law enforcement officials can freely peruse your smartphone information or Macbook data without having to obtain a search warrant, and they often do so from remote locations without you ever knowing.

Luckily, this could all change if a bill awaiting California Governor Jerry Brown’s approval is passed into law.

Proposed Law Would Require Search Warrants for Electronic Devices

The proposed law would add a new section to California Penal Code Sections 1546 that would require authorities to obtain a search warrant before conducting any kind of electronic surveillance. This type of behavior typically includes tracking cellphone locations, checking phone records, accessing emails and viewing online browser histories.

In addition, the bill would protect service providers such as Verizon, AT&T and Time Warner Cable. It will be illegal for government officials to compel these service providers to provide them with information about their clients. However, a search warrant can be issued to obtain this information, or the service provider can voluntarily turn over this information as long as it is done in a manner that does not violate state or federal law.

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A potential law regarding the use of drones in California was vetoed by Governor Jerry Brown, but the debate over drone laws continues. If passed into law, SB 142 would have banned anyone from flying drones over private property without permission.1

Governor Brown said the law would have unnecessarily exposed drone users to the legal system. Although this bill failed to pass, government officials are still expected to explore criminal laws regarding drone use.

Criminalizing Drone Use

California drone lawThe proposed bill would have made it a crime for you to fly a drone less than 350 feet over private property without the owner’s approval. A violation of this proposed law could have led to criminal trespassing charges.

It is unclear whether the bill would have been written into current California criminal trespass laws or if it would have been a separate crime with harsher penalties. The current law states that you are guilty of this crime if you enter and occupy real property or structures of any kind without the owner’s consent, the owner’s agent, or any person in lawful possession.2

In California, criminal trespass is a misdemeanor. If convicted of this crime, you face up to 364 days in county jail and a fine of up to $1,000. It is likely that the proposed law would have imposed these same penalties for unauthorized use of a drone.

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Evidence on FacebookA California Appeals Court recently ruled that a criminal defendant’s right to social media information is outweighed by and protected under Federal Privacy laws.1

Two defendants facing murder charges subpoenaed account information from Facebook, Twitter and Instagram in an effort to help their defense. The defendants claimed that social media postings from the alleged victims and a prosecution witness would show bias and a motive to lie about their involvement in the murder

Despite this information being highly relevant to their defense, the Court ruled that it would not be available to them or any criminal defendant similarly situated before trial.

Court of Appeals Ruling Explained

The Stored Communications Act protects your personal information online and formed the basis for the Court’s decision. However, this decades-old law clearly did not contemplate modern day technology and the cultural shift where many people voluntarily choose to publicize their lives on social media sites.

Opponents of the decision point out that social media companies must turn over this information when requested by government authorities with a warrant. Facebook and other social networking sites could choose to turn over the information voluntarily, but they are not required to do so under subpoena. The court dismissed the argument that restricting the defendants’ access to this information would infringe the defendants’ constitutional right to a fair trial.

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SB 333 is a proposed law being sent to Governor Brown that seeks to increase the current penalties against those possessing common date rape drugs. The bill’s supporters say that an unintended consequence of Proposition 47 was that it reduced the penalty for those who carried date rape drugs with the intent to commit sexual assault. If passed, the bill would make it a felony to posses date rape drugs if you have the intent to commit rape or sexual assault.1

Proposition 47: A Reason to Pass SB 333

Prop 47 was a recent legislative effort that decreased penalties for non-violent drug offenses, including those possessing date rape drugs. What followed was the reclassification of many drug possession charges from felony offenses to misdemeanors.

Proponents of SB 333 think that Prop 47 left the government’s stance too weak against potential sexual predators who intend to use date rape drugs on victims. The legislature now seeks to close this loophole by allowing prosecutors to pursue felony charges against those arrested for possession of date rape drugs.

New Proposed Law Explained

date rape drugsSpecifically, if you’re found in possession of Rohypnol or ‘rufis’, GHB, or ketamine, and you have the intent to commit sexual assault, you can be charged with a felony.2 One problem with the proposed law’s policy is that some of these substances are used recreationally, thus making it more difficult to determine one’s actual motives. The prosecution would still have to be able to prove intent to commit sexual assault; however, prosecutors could use the new law to coerce you into accepting a plea deal even though you only intended to use such drug recreationally.

Violations of the proposed law would be punishable by 16 months to three years in prison.3 The new law is arguably duplicative considering that you can already be charged you with attempted sexual assault crimes (e.g. attempted rape or sexual assault), which carry harsher penalties.

If passed, the new law could be the first to erase the effects of Prop 47 and California’s efforts to reduce overly harsh punishments against non-violent drug offenders.

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When you are placed under arrest, you have certain rights. One of the most important rights you have is the right to remain silent. However, police will sometimes try to take advantage of you so that you fail to exercise this right. But what happens if you did not know you had the right to remain silent? Can what you say be used against you even if police failed to inform you of your rights?

When False Confessions Lead to Convictions

police interrogation skillsA recent case involved the issue of a coerced confession and the right to remain silent. In this case, the driver of a vehicle allegedly exited his car and shot to death a person standing on the street while yelling out the name of a gang. Over the course of two days, a 15-year-old suspect was interrogated for hours at a time by police, who told the suspect a series of lies, made serious threats and empty promises in an attempt to get him to confess. During this time, he was never advised of his Miranda Rights.

The suspect confessed to the crime after investigators administered a polygraph test and told him that he had failed. After his confession, the suspect finally was advised of his Miranda Rights, and he repeated his confession.

At trial, the court found the confession that occurred immediately after the polygraph test was invalid because the suspect was placed in custody but was never read his Miranda Rights. However, the judge refused to suppress the second confession. The suspect was convicted of first degree murder with gang and firearm enhancements. He was sentenced to 50 years to life in prison.

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District attorney misconductAll lawyers are held to strict ethical standards and bound by laws in California. District attorneys are no different. Prosecutors are required to turn over any and all possible exculpatory evidence upon receiving it and discovering its useful nature to the defense. This can include anything, ranging from:

  • Investigator notes
  • Interrogations
  • Witness testimony
  • Audio and video records

Based on the Brady v. Maryland case (Brady v. Maryland 373 U.S. 83 (1963)), this is commonly referred to as “Brady material.” In the Brady case, the Supreme Court ruled that prosecutors must turn over evidence that could help the defense or be used to attack the credibility of a witness. So what happens when district attorneys fail to follow this procedure?

District Attorney Misconduct in Orange County

This situation of district attorney misconduct recently came to light in Orange County. Deputy District Attorney Erik Petersen, who was assigned to felony cases in the North Justice Center, reportedly used misconduct in several high profile cases.

Most of this alleged misconduct surrounded the use of jailhouse informants, who are inmates that investigators use to get a confession from the suspect while being held in custody. When the inmate hears a confession from the suspect, he will inform prosecutors. The use of jailhouse informants is not illegal. However, it is not allowed when the suspect is represented by an attorney because it can be considered a form of interrogation, and the suspect has a right to an attorney during an interrogation.

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leaf blower movie theaterFalsely yelling “fire” in a crowded movie theater is one of the few items not covered under free speech laws in the U.S. This act could cause an entire audience of people to act in fear and could bring great harm to movie-goers. But shouting “fire” isn’t the only act in a movie theater that could lead to criminal charges.

Incidents of shootings at movie theaters have been in the news lately, striking fear in those who go to watch movies. Most notably, the massacre in Colorado during the opening of a Batman movie has led theaters to take increased security measures. Regal Entertainment Group has begun checking bags before people can enter the theater.1 Playing on this fear, pranksters recently took a leaf blower to the movies, and the noise caused a major scramble that could lead to criminal charges for the people who only thought they were pulling a harmless prank.

When a Prank Becomes a Crime

The incident occurred recently at a theater in Newport Beach. Four teenagers interrupted a late night showing of The Gift by turning on a leaf blower inside the theater. The action caused a commotion in the movie theater, with some suffering minor injuries as they scrambled toward the exit.2 The teens likely intended no harm, but authorities took the incident seriously enough to issue a warrant for their arrests. After turning themselves in, police are considering exactly what charges to levy on the four individuals.

Because of the uniqueness of this act, authorities are unsure exactly how to approach the situation. Since three of the alleged perpetrators are minors, the case may be sent to juvenile court. Many times, less serious charges brought upon juveniles are resolved informally through counseling, curfews and other measures that do not involve spending time in custody.3

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Immigrants ArrestedThe Immigration and Customs Enforcement agency (ICE) recently conducted a large-scale operation across the southern half of California, taking more than 240 immigrants into custody.1 According to officials, the vast majority had been previously convicted of felony or sexual abuse related crimes.2

The operation was in part a reaction by the federal government to changes in how local authorities are handling their interactions with immigrant populations, along with recent high profile incidents involving undocumented immigrants committing serious crimes.3

It is important to note that ICE has emphasized they are only targeting individuals with criminal records, making it important for you to hire effective legal counsel if you are facing criminal charges.

Why Large Scale Sweeps Will Likely Continue

In the past, federal immigration officials relied on local law enforcement to hold immigrants after a criminal conviction under a system known as detainment. The result of this program was the deportation of many immigrants who had only been convicted of minor or non-violent offenses.4

The program spurred protests by immigrant rights activists. In reaction, the California legislature passed a bill barring the practice except in instances of violent or serious crimes.5

This created a new problem for federal immigration officials. No longer could they rely on local jails to hold immigrants until they could be picked up by federal agents. So, they developed and implemented a new system known as the National Fugitive Operations Program (NFOP).6

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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.