The US Constitution protects a person from being stopped by the police without a legitimate reason. Law enforcement may not pull over a vehicle without reasonable suspicion that some sort of crime has been committed. However, that reasonable suspicion can be for ANY crime, including very minor vehicle code infractions. Further, even if the true reason for the stop is because, for example, the driver is black and driving an expensive car in a nice neighborhood, or the occupants are four young men leaving a bar, as long there is a legitimate reason for the stop, these police actions are legal.
There are a number of minor violations police regularly use as an excuse to pull someone over based simply on prejudice. What can you do to avoid these? Don’t commit the following common vehicle code violations.
-Failure to have a front license plate. If your state issues two license plates (as does California), you are required to have both affixed to your vehicle.
-Illegal window tinting. Front side windows must allow at least 70% of light to pass through, and only the top four inches of the windshield may be tinted.
-Burnt-out lights. It is a vehicle code violation for any lights to be inoperable on your vehicle – not just tail and brake lights, but the small light that illuminates your license plate as well.
-Expired registration. This is an easy one to avoid, and probably the one most likely to get you pulled over. Pay your renewal fees, get your smog check, and make it legal!
-Obstructed windshield. It is illegal to have anything attached to the windshield or side windows that may obstruct the view of the driver. This section is commonly violated by affixing a GPS device with a suction cup to the front windshield, or hanging things from the rear view mirror. There is an allowance for stickers or other material in a five inch square on the bottom corner of the windshield on the driver’s side and a seven inch square in the bottom corner of the passenger side.
-Talking on your cell phone. Get a hands free device. They cost significantly less than the $140-something ticket. And given that this is a relatively new law, police WILL pull you over if they see you doing it.
-Don’t be an idiot in general. Excessive speeding, reckless driving, frequent lane changes, failing to signal, rolling through stop signs, and hundreds of other common violations of which you are already aware exist. Use common sense, and don’t give law enforcement the excuse they need to interrupt your commute.
For more information or advice on how to avoid being pulled over, contact The Law Office of Scott R. Ball today. All consultation are free and totally confidential.
11/15/10
Miranda Rights Explained
Everyone has heard the familiar lines in your favorite police drama: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney…” Most are probably familiar that these warnings are known as a person’s Miranda rights. But what exactly do Miranda rights do?
Miranda rights are meant to inform a person who has been arrested of their basic constitutional rights to remain silent and to speak with an attorney before answering any questions. Miranda warnings are required to be given to a person who has been placed under arrest and is being questioned. If a person who has been placed under arrest is not warned of their constitutional rights, any statements made by that person in response to police questioning may not be used against them in court.
However, if a person is merely detained, and not under arrest, Miranda warnings are not required. This means any statement made before being arrested, for example while performing field sobriety tests after being pulled over on suspicion of DUI, are not subject to the protections of Miranda. If you are placed under arrest and are never given Miranda warnings, this does not offer any protection if no statements are used against you. Further, statements are in violation of Miranda only if they are a result of police questioning. If a person volunteers information without prompting by law enforcement, failure to give Miranda warnings will not protect the admissibility of the statement in court.
Miranda warnings are given for a good reason – so listen to them and understand them! You have an absolute right to remain silent. Chances are, if you have already been arrested, you will not be able to talk your way out of it. You also have the right to speak with an attorney. These are the magic words – once you request an attorney, all questioning MUST stop. This is always a smart thing to do.
If you are being questioned by law enforcement about something you don’t want to discuss, your first question should be, “Am I free to go?” If they say yes, then leave. If they say no, then politely but firmly ask for an attorney.
If you have been arrested for a crime in which you believe statements may have been taken from you in violation of your Miranda rights, contact The Law Office of Scott R. Ball today for a free and confidential consultation.
Miranda rights are meant to inform a person who has been arrested of their basic constitutional rights to remain silent and to speak with an attorney before answering any questions. Miranda warnings are required to be given to a person who has been placed under arrest and is being questioned. If a person who has been placed under arrest is not warned of their constitutional rights, any statements made by that person in response to police questioning may not be used against them in court.
However, if a person is merely detained, and not under arrest, Miranda warnings are not required. This means any statement made before being arrested, for example while performing field sobriety tests after being pulled over on suspicion of DUI, are not subject to the protections of Miranda. If you are placed under arrest and are never given Miranda warnings, this does not offer any protection if no statements are used against you. Further, statements are in violation of Miranda only if they are a result of police questioning. If a person volunteers information without prompting by law enforcement, failure to give Miranda warnings will not protect the admissibility of the statement in court.
Miranda warnings are given for a good reason – so listen to them and understand them! You have an absolute right to remain silent. Chances are, if you have already been arrested, you will not be able to talk your way out of it. You also have the right to speak with an attorney. These are the magic words – once you request an attorney, all questioning MUST stop. This is always a smart thing to do.
If you are being questioned by law enforcement about something you don’t want to discuss, your first question should be, “Am I free to go?” If they say yes, then leave. If they say no, then politely but firmly ask for an attorney.
If you have been arrested for a crime in which you believe statements may have been taken from you in violation of your Miranda rights, contact The Law Office of Scott R. Ball today for a free and confidential consultation.
9/20/10
Proposition 19 - The Regulate, Control, and Tax Cannabis Act of 2010
On November 2nd, California voters will have the opportunity to pass a law which largely decriminalizes simple use and possession of marijuana in California. The legislation would have the effect of allowing a person over the age of 21 to legally possess and use up to one ounce of marijuana, and to grow in an area up to 25 square feet.
The proposed legislation also has important financial effects for California. A modest $50 tax per ounce of marijuana sold could raise an estimated $1.4 billion in revenue for the state. State and local governments will save tens of millions more annually due to the reduction of individuals incarcerated, on probation, or on parole. Further, because an estimated 60,000 arrests are made in the state every year for crimes which would no longer be considered criminal activity with the passage of Prop 19, law enforcement would be freed up to focus on fighting actual crimes.
It is important to note the legislation will not change many important marijuana related laws. Selling marijuana, unless by a licensed provider, will still be a serious crime punishable by a state prison sentence. In addition, laws regarding driving under the influence of marijuana remain unchanged, and employers may still test and question employees about marijuana use that affects job performance. Prop 19 will also create several new crimes dealing with providing marijuana to minors.
The net effect of Prop 19 is to allow the controlled use of marijuana in an effort to tax its use, free up law enforcement resources, and cut off the illegal trade from drug cartels. Prop 19 will require a simple majority to pass and currently, most polls show a slight majority in favor of the initiative. However, the proposition faces strong opposition and the passage of Prop 19 is by no means a sure thing.
If you support this important piece of legislation, be sure to register to vote. The deadline to register for the November 2010 election is October 18. You may do so here.
If you have any additional questions regarding Prop 19, the use of marijuana, or any other legal issue, contact the Law Office of Scott R. Ball today.
The proposed legislation also has important financial effects for California. A modest $50 tax per ounce of marijuana sold could raise an estimated $1.4 billion in revenue for the state. State and local governments will save tens of millions more annually due to the reduction of individuals incarcerated, on probation, or on parole. Further, because an estimated 60,000 arrests are made in the state every year for crimes which would no longer be considered criminal activity with the passage of Prop 19, law enforcement would be freed up to focus on fighting actual crimes.
It is important to note the legislation will not change many important marijuana related laws. Selling marijuana, unless by a licensed provider, will still be a serious crime punishable by a state prison sentence. In addition, laws regarding driving under the influence of marijuana remain unchanged, and employers may still test and question employees about marijuana use that affects job performance. Prop 19 will also create several new crimes dealing with providing marijuana to minors.
The net effect of Prop 19 is to allow the controlled use of marijuana in an effort to tax its use, free up law enforcement resources, and cut off the illegal trade from drug cartels. Prop 19 will require a simple majority to pass and currently, most polls show a slight majority in favor of the initiative. However, the proposition faces strong opposition and the passage of Prop 19 is by no means a sure thing.
If you support this important piece of legislation, be sure to register to vote. The deadline to register for the November 2010 election is October 18. You may do so here.
If you have any additional questions regarding Prop 19, the use of marijuana, or any other legal issue, contact the Law Office of Scott R. Ball today.
9/15/10
Consequences of a DUI Conviction in Los Angeles County
If you are convicted of driving under the influence in Los Angeles County, a typical first offense without extenuating circumstances will generally have the following consequences:
-Minimum fine of about $1,750. This can be higher based on your prior record and if the arresting agency requires booking fees, which can push it up several hundred dollars.
-Three years of informal probation. Terms of probation include that you violate no law, do not drive with a measurable amount of alcohol in your blood, submit to a chemical test on demand, do not drive without a license or insurance, and disclose your probation status when asked by any law enforcement officer. A violation of your probation can result in additional fines and/or jail time.
-Attend and complete a three month first offender alcohol program, called the AB-541. This class generally consists of weekly meetings of two to three hours in length and costs between $500 - $700.
-Completion of the Mothers Against Drunk Driving Victim Impact Panel class. This is a single two hour class which costs $30 to attend.
-Suspension of your license for six months. However, if your license has already been suspended by the DMV prior to your conviction in the criminal court, the suspension will be retroactive to the date of that suspension. In addition, following the mandatory 30 day hard suspension of your driving privileges by the DMV, you may receive a restricted license once you present proof of financial responsibility and enrollment in the AB-541 program to the DMV.
-Required installation of an ignition interlock device (IID) on your car for five months. An IID is a device into which a driver must provide an alcohol-free breath sample to start his or her vehicle. The device will cost about $150 to install and the maintenance and service for the IID will run about $70/month.
-Increase in insurance premiums by 200% - 500%. Most people don’t realize this hidden cost of a DUI, which can actually be the most expensive penalty of all. However, there are a few tricks that can be utilized to keep this cost to a minimum.
There are many other factors that can increase your total exposure for a DUI conviction. For example:
-If you have any prior convictions for DUI, your penalties will be greatly enhanced, and will most likely result in jail time.
-If you were involved in an accident which resulted in an injury to another, you may be charged with a felony. Even if there is no injury and you are not charged with a felony, you will be required to make restitution to the victim of the accident.
-If it is proved that you refused to submit to a chemical test, your license will be suspended by the DMV for one year and you will likely face jail time.
-If it is proved that you had a blood alcohol level of greater than .20, you will be required to attend a nine month alcohol offender program. This program is similar to the AB-541, but is three times as long and costs around $1,000.
-If you were speeding and driving in a reckless manner, or had a minor in the car at the time of your driving, this can also result in mandatory jail time.
Please keep in mind that these are the consequences for many DUI convictions in Los Angeles County – but there are many circumstances which can increase or decrease your total exposure, and penalties can vary greatly county to county. Further, the law is constantly changing, and fines have increased dramatically in the past few years. For the most current information, contact the Law Office of Scott R. Ball today. Consultations are free and completely confidential.
-Minimum fine of about $1,750. This can be higher based on your prior record and if the arresting agency requires booking fees, which can push it up several hundred dollars.
-Three years of informal probation. Terms of probation include that you violate no law, do not drive with a measurable amount of alcohol in your blood, submit to a chemical test on demand, do not drive without a license or insurance, and disclose your probation status when asked by any law enforcement officer. A violation of your probation can result in additional fines and/or jail time.
-Attend and complete a three month first offender alcohol program, called the AB-541. This class generally consists of weekly meetings of two to three hours in length and costs between $500 - $700.
-Completion of the Mothers Against Drunk Driving Victim Impact Panel class. This is a single two hour class which costs $30 to attend.
-Suspension of your license for six months. However, if your license has already been suspended by the DMV prior to your conviction in the criminal court, the suspension will be retroactive to the date of that suspension. In addition, following the mandatory 30 day hard suspension of your driving privileges by the DMV, you may receive a restricted license once you present proof of financial responsibility and enrollment in the AB-541 program to the DMV.
-Required installation of an ignition interlock device (IID) on your car for five months. An IID is a device into which a driver must provide an alcohol-free breath sample to start his or her vehicle. The device will cost about $150 to install and the maintenance and service for the IID will run about $70/month.
-Increase in insurance premiums by 200% - 500%. Most people don’t realize this hidden cost of a DUI, which can actually be the most expensive penalty of all. However, there are a few tricks that can be utilized to keep this cost to a minimum.
There are many other factors that can increase your total exposure for a DUI conviction. For example:
-If you have any prior convictions for DUI, your penalties will be greatly enhanced, and will most likely result in jail time.
-If you were involved in an accident which resulted in an injury to another, you may be charged with a felony. Even if there is no injury and you are not charged with a felony, you will be required to make restitution to the victim of the accident.
-If it is proved that you refused to submit to a chemical test, your license will be suspended by the DMV for one year and you will likely face jail time.
-If it is proved that you had a blood alcohol level of greater than .20, you will be required to attend a nine month alcohol offender program. This program is similar to the AB-541, but is three times as long and costs around $1,000.
-If you were speeding and driving in a reckless manner, or had a minor in the car at the time of your driving, this can also result in mandatory jail time.
Please keep in mind that these are the consequences for many DUI convictions in Los Angeles County – but there are many circumstances which can increase or decrease your total exposure, and penalties can vary greatly county to county. Further, the law is constantly changing, and fines have increased dramatically in the past few years. For the most current information, contact the Law Office of Scott R. Ball today. Consultations are free and completely confidential.
9/14/10
Consequences of a DUI Conviction in Orange County
If you are convicted of driving under the influence in Orange County, a typical first offense without extenuating circumstances will generally have the following consequences:
-Minimum fine of about $1,900. This can be higher based on your prior record and if the arresting agency requires booking fees, which can push it up several hundred dollars.
-Three years of informal probation. Terms of probation include that you violate no law, do not drive with a measurable amount of alcohol in your blood, submit to a chemical test on demand, do not drive without a license or insurance, and disclose your probation status when asked by any law enforcement officer. A violation of your probation can result in additional fines and/or jail time.
-Attend and complete a three month first offender alcohol program, called the AB-541. This class generally consists of weekly meetings of two to three hours in length and costs between $500 - $700.
-Completion of the Mothers Against Drunk Driving Victim Impact Panel class. This is a single two hour class which costs $30 to attend.
-Suspension of your license for six months. However, if your license has already been suspended by the DMV prior to your conviction in the criminal court, the suspension will be retroactive to the date of that suspension. In addition, following the mandatory 30 day hard suspension of your driving privileges by the DMV, you may receive a restricted license once you present proof of financial responsibility and enrollment in the AB-541 program to the DMV.
-Increase in insurance premiums by 200% - 500%. Most people don’t realize this hidden cost of a DUI, which can actually be the most expensive penalty of all. However, there are a few tricks that can be utilized to keep this cost to a minimum.
There are many other factors that can increase your total exposure for a DUI conviction. For example:
-If you have any prior convictions for DUI, your penalties will be greatly enhanced, and will most likely result in jail time.
-If you were involved in an accident which resulted in an injury to another, you may be charged with a felony. Even if there is no injury and you are not charged with a felony, you will be required to make restitution to the victim of the accident.
-If it is proved that you refused to submit to a chemical test, your license will be suspended by the DMV for one year and you will likely face jail time. A typical offer would be five days.
-If it is proved that you had a blood alcohol level of greater than .20, you will be required to attend a nine month alcohol offender program. This program is similar to the AB-541, but is three times as long and costs around $1,000.
-If you were speeding and driving in a reckless manner, or had a minor in the car at the time of your driving, this can also result in mandatory jail time.
Please keep in mind that these are the consequences for many DUI convictions in Orange County – but there are many circumstances which can increase or decrease your total exposure, and penalties can vary greatly county to county. Further, the law is constantly changing, and fines have increased dramatically in the past few years. For the most current information, contact the Law Office of Scott R. Ball today. Consultations are free and completely confidential.
-Minimum fine of about $1,900. This can be higher based on your prior record and if the arresting agency requires booking fees, which can push it up several hundred dollars.
-Three years of informal probation. Terms of probation include that you violate no law, do not drive with a measurable amount of alcohol in your blood, submit to a chemical test on demand, do not drive without a license or insurance, and disclose your probation status when asked by any law enforcement officer. A violation of your probation can result in additional fines and/or jail time.
-Attend and complete a three month first offender alcohol program, called the AB-541. This class generally consists of weekly meetings of two to three hours in length and costs between $500 - $700.
-Completion of the Mothers Against Drunk Driving Victim Impact Panel class. This is a single two hour class which costs $30 to attend.
-Suspension of your license for six months. However, if your license has already been suspended by the DMV prior to your conviction in the criminal court, the suspension will be retroactive to the date of that suspension. In addition, following the mandatory 30 day hard suspension of your driving privileges by the DMV, you may receive a restricted license once you present proof of financial responsibility and enrollment in the AB-541 program to the DMV.
-Increase in insurance premiums by 200% - 500%. Most people don’t realize this hidden cost of a DUI, which can actually be the most expensive penalty of all. However, there are a few tricks that can be utilized to keep this cost to a minimum.
There are many other factors that can increase your total exposure for a DUI conviction. For example:
-If you have any prior convictions for DUI, your penalties will be greatly enhanced, and will most likely result in jail time.
-If you were involved in an accident which resulted in an injury to another, you may be charged with a felony. Even if there is no injury and you are not charged with a felony, you will be required to make restitution to the victim of the accident.
-If it is proved that you refused to submit to a chemical test, your license will be suspended by the DMV for one year and you will likely face jail time. A typical offer would be five days.
-If it is proved that you had a blood alcohol level of greater than .20, you will be required to attend a nine month alcohol offender program. This program is similar to the AB-541, but is three times as long and costs around $1,000.
-If you were speeding and driving in a reckless manner, or had a minor in the car at the time of your driving, this can also result in mandatory jail time.
Please keep in mind that these are the consequences for many DUI convictions in Orange County – but there are many circumstances which can increase or decrease your total exposure, and penalties can vary greatly county to county. Further, the law is constantly changing, and fines have increased dramatically in the past few years. For the most current information, contact the Law Office of Scott R. Ball today. Consultations are free and completely confidential.
7/2/10
Ruling Revolutionizes Red Light Camera Tickets
While it might not be on the level of Roe v. Wade or Brown v. Board of Education, a recent ruling by an Orange County appellate court may be just as groundbreaking… in the world of red light camera traffic tickets.
In People v. Khaled, a panel of judges in Santa Ana reviewed a conviction of the defendant on a red light violation. The evidence presented consisted of a video of Khaled driving through an intersection after the light had turned red and the testimony of a Santa Ana police officer. While the officer regularly testified on these types of cases (in fact, is common for these officers to do so dozens of times in a single day), the camera itself was installed and maintained by a private company which had contracted with the city to issue red light tickets. This formula of private company installation and maintenance of the camera plus a police officer testifying to the placement and accuracy of the device has resulted in literally tens of thousands of convictions since red light cameras were invented.
However, the rules of evidence, which are often somewhat ignored in traffic courts, require that for video or photographic evidence to be admissible, a proper foundation must be laid. This means there must be testimony from someone with personal knowledge to say under oath that the camera was in proper working order at the time the picture was taken and that the picture was taken at the place and time alleged.
And this is where the court found the problem on appeal. The officer called to testify against Khaled had no personal knowledge of how the system was maintained or how the date and times were verified, and could only offer general information on how the system worked. Without any evidence to lay the proper foundation, the evidence of the video was inadmissible. And without the video, there was no evidence against Khaled, and his was conviction was overturned.
For now, the ruling will only be binding on courts in Orange County. However, the legal reasoning is sound and may be soon followed in other counties as well. County officials are planning to appeal the decision to the California Supreme Court.
The effect of the ruling is still largely unknown. Some cities in Orange County have begun simply dismissing tickets. Others are pressing forward with prosecutions; most likely hoping defendants haven’t become aware of the decision in Khaled. If the ruling holds up, several solutions are possible, all of which will raise the cost of red light enforcement by municipalities. Potential reactions could include requiring the testifying officer to receive much more in depth training, or having a representative from the company that installed the camera testify as well.
For now, everyone cited for a red light camera violation, for which a conviction results in a fine around $450 plus a point on a person’s driving record, should fight the charge. For those in Orange County, a dismissal should be just about guaranteed. For those outside the county in California, while dismissal will not be automatic, the influential value of Khaled should be extremely important.
For more information regarding how you can fight your red light ticket, contact the Law Office of Scott R. Ball today at 714-973-2024 or attorneyscottball@gmail.com.
In People v. Khaled, a panel of judges in Santa Ana reviewed a conviction of the defendant on a red light violation. The evidence presented consisted of a video of Khaled driving through an intersection after the light had turned red and the testimony of a Santa Ana police officer. While the officer regularly testified on these types of cases (in fact, is common for these officers to do so dozens of times in a single day), the camera itself was installed and maintained by a private company which had contracted with the city to issue red light tickets. This formula of private company installation and maintenance of the camera plus a police officer testifying to the placement and accuracy of the device has resulted in literally tens of thousands of convictions since red light cameras were invented.
However, the rules of evidence, which are often somewhat ignored in traffic courts, require that for video or photographic evidence to be admissible, a proper foundation must be laid. This means there must be testimony from someone with personal knowledge to say under oath that the camera was in proper working order at the time the picture was taken and that the picture was taken at the place and time alleged.
And this is where the court found the problem on appeal. The officer called to testify against Khaled had no personal knowledge of how the system was maintained or how the date and times were verified, and could only offer general information on how the system worked. Without any evidence to lay the proper foundation, the evidence of the video was inadmissible. And without the video, there was no evidence against Khaled, and his was conviction was overturned.
For now, the ruling will only be binding on courts in Orange County. However, the legal reasoning is sound and may be soon followed in other counties as well. County officials are planning to appeal the decision to the California Supreme Court.
The effect of the ruling is still largely unknown. Some cities in Orange County have begun simply dismissing tickets. Others are pressing forward with prosecutions; most likely hoping defendants haven’t become aware of the decision in Khaled. If the ruling holds up, several solutions are possible, all of which will raise the cost of red light enforcement by municipalities. Potential reactions could include requiring the testifying officer to receive much more in depth training, or having a representative from the company that installed the camera testify as well.
For now, everyone cited for a red light camera violation, for which a conviction results in a fine around $450 plus a point on a person’s driving record, should fight the charge. For those in Orange County, a dismissal should be just about guaranteed. For those outside the county in California, while dismissal will not be automatic, the influential value of Khaled should be extremely important.
For more information regarding how you can fight your red light ticket, contact the Law Office of Scott R. Ball today at 714-973-2024 or attorneyscottball@gmail.com.
6/11/10
Sobriety Checkpoints Explained
You’ve probably seen them before – a few signs, probably some cones, and a whole bunch of police officers with flashlights, usually slowing down a busy road to a crawl on a Friday or Saturday night. A sobriety checkpoint. These stops can either create a small annoyance or a huge concern, depending on your activities that night.
One familiar with the protections entitled by the Fourth Amendment of the U.S. Constitution, which prevents unlawful searches by police, would probably wonder… how is this legal?
In 1987, the California Supreme Court established basic policies law enforcement must follow to ensure the sobriety checkpoints comply with the Constitution. A failure to follow these policies means the checkpoint is illegal – and any arrest resulting from the checkpoint is illegal as well.
First, decisions as to the location of the checkpoint and the procedures to be followed must be made by supervisory law enforcement personnel, rather than an officer in the field. This is intended to prevent important decisions being made by officers with little or no knowledge of the Constitutional requirements. In addition, the length and nature of stops must be as minimal as possible.
Vehicles must be stopped by a predetermined, neutral system – this means they must check, for example, every third car, as opposed to officers in the field making determinations as to who to stop based on appearance. Failure to do so is a clear Constitutional violation and the resulting stop is illegal and should be thrown out in court.
The location must include proper safety precautions, including proper lighting, official markings of law enforcement, and warning signs of the approaching checkpoint, so as not to surprise or frighten the motorist. Depending on the circumstances, it may also be necessary to provide an opportunity for a motorist to turn down a side street to avoid the checkpoint. Further, a person cannot be arrested for merely avoiding a checkpoint without further indication of illegal activities. Simply making a legal turn, even for the specific purpose of avoiding a checkpoint, is not probable cause, and any stop based on solely on this activity is illegal.
Finally, there should be advance publicity made as to the existence of the checkpoint.
If the above policies are not followed, then the checkpoint does not conform to the requirements of the Fourth Amendment and is an infringement of the right to be free from unreasonable search and seizure. If you have been cited for driving under the influence, or in fact, ANY criminal charge based on a stop at a sobriety checkpoint, it is important to understand these policies. If the stop was illegal, then any resulting evidence or statements made are inadmissible in a criminal proceeding, and your case should be dismissed.
For further information contact the Law Office of Scott R. Ball. Consultations are free and completely confidential.
One familiar with the protections entitled by the Fourth Amendment of the U.S. Constitution, which prevents unlawful searches by police, would probably wonder… how is this legal?
In 1987, the California Supreme Court established basic policies law enforcement must follow to ensure the sobriety checkpoints comply with the Constitution. A failure to follow these policies means the checkpoint is illegal – and any arrest resulting from the checkpoint is illegal as well.
First, decisions as to the location of the checkpoint and the procedures to be followed must be made by supervisory law enforcement personnel, rather than an officer in the field. This is intended to prevent important decisions being made by officers with little or no knowledge of the Constitutional requirements. In addition, the length and nature of stops must be as minimal as possible.
Vehicles must be stopped by a predetermined, neutral system – this means they must check, for example, every third car, as opposed to officers in the field making determinations as to who to stop based on appearance. Failure to do so is a clear Constitutional violation and the resulting stop is illegal and should be thrown out in court.
The location must include proper safety precautions, including proper lighting, official markings of law enforcement, and warning signs of the approaching checkpoint, so as not to surprise or frighten the motorist. Depending on the circumstances, it may also be necessary to provide an opportunity for a motorist to turn down a side street to avoid the checkpoint. Further, a person cannot be arrested for merely avoiding a checkpoint without further indication of illegal activities. Simply making a legal turn, even for the specific purpose of avoiding a checkpoint, is not probable cause, and any stop based on solely on this activity is illegal.
Finally, there should be advance publicity made as to the existence of the checkpoint.
If the above policies are not followed, then the checkpoint does not conform to the requirements of the Fourth Amendment and is an infringement of the right to be free from unreasonable search and seizure. If you have been cited for driving under the influence, or in fact, ANY criminal charge based on a stop at a sobriety checkpoint, it is important to understand these policies. If the stop was illegal, then any resulting evidence or statements made are inadmissible in a criminal proceeding, and your case should be dismissed.
For further information contact the Law Office of Scott R. Ball. Consultations are free and completely confidential.
3/1/10
Tips for Avoiding a DUI
Of course, the best way to avoid being arrested for driving under the influence is to simply not get behind the wheel if you’ve been drinking. However, we all know that sometimes your night doesn’t go as planned, so if you do choose to drive, it’s important for you to know how to be safe and avoid getting pulled over and arrested.
A law enforcement officer cannot simply pull you over at random. He or she must have a reasonable suspicion that you have broken a law. This is often accomplished when they observe a driver speeding, run a red light, swerve between lanes, tailgate, or any number of other common traffic violations. It's a simple fact that drivers under the influence of alcohol drive more recklessly. This is a very bad idea not only because it is obviously extremely unsafe for an inebriated driver to be taking such chances but also because it makes them much more likely to be pulled over. If you know that you may be near or over the legal limit it is crucial that you are highly observant of traffic rules – watch your speedometer, signal for every lane change, and check your review mirror frequently! It sounds simple but most drivers convicted of DUI are pulled over because they are careless at the exact time they should be taking extra caution.
However, even if you take every possible precaution and drive like your grandmother it is still possible to fall victim to some basic dumb luck and be pulled over. There are any number of technical violations for which you can be stopped by a police officer, such as an expired registration, broken tail light, or too-tinted windows. The Fourth Amendment protects you from unreasonable harassment from police – to a point. An officer cannot pull you over simply because you look like you are leaving a party with four obviously drunk friends on your way to pick up some late night Del Taco. However, he can pull you over if he notices that the light illuminating your license plate doesn’t work – even if his real motivation in stopping you is to check to see if you’ve been drinking.
The solution to this scenario is to be prepared. Make sure your vehicle is always in compliance with all vehicle codes. Pay your registration on time, promptly fix all broken lights, and make sure everything is in proper order on any other car you might drive.
Please remember that the only way to completely be safe and avoid a DUI is to not get behind the wheel if you are under the influence. Drinking and driving is never a good idea and in no way is this message meant to encourage it. However, it is in your own best interest to always be extremely aware of your actions and surroundings.
A law enforcement officer cannot simply pull you over at random. He or she must have a reasonable suspicion that you have broken a law. This is often accomplished when they observe a driver speeding, run a red light, swerve between lanes, tailgate, or any number of other common traffic violations. It's a simple fact that drivers under the influence of alcohol drive more recklessly. This is a very bad idea not only because it is obviously extremely unsafe for an inebriated driver to be taking such chances but also because it makes them much more likely to be pulled over. If you know that you may be near or over the legal limit it is crucial that you are highly observant of traffic rules – watch your speedometer, signal for every lane change, and check your review mirror frequently! It sounds simple but most drivers convicted of DUI are pulled over because they are careless at the exact time they should be taking extra caution.
However, even if you take every possible precaution and drive like your grandmother it is still possible to fall victim to some basic dumb luck and be pulled over. There are any number of technical violations for which you can be stopped by a police officer, such as an expired registration, broken tail light, or too-tinted windows. The Fourth Amendment protects you from unreasonable harassment from police – to a point. An officer cannot pull you over simply because you look like you are leaving a party with four obviously drunk friends on your way to pick up some late night Del Taco. However, he can pull you over if he notices that the light illuminating your license plate doesn’t work – even if his real motivation in stopping you is to check to see if you’ve been drinking.
The solution to this scenario is to be prepared. Make sure your vehicle is always in compliance with all vehicle codes. Pay your registration on time, promptly fix all broken lights, and make sure everything is in proper order on any other car you might drive.
Please remember that the only way to completely be safe and avoid a DUI is to not get behind the wheel if you are under the influence. Drinking and driving is never a good idea and in no way is this message meant to encourage it. However, it is in your own best interest to always be extremely aware of your actions and surroundings.
2/5/10
How to Fight a Speeding Ticket (when they get you on radar)
If you receive a speeding ticket in California, the effects can be downright ugly. Fines can reach upwards of $500, your insurance rates can increase, and if you accumulate enough “points” on your record, the DMV will suspend your license. The good news, however, is that there are literally hundreds of ways to fight a speeding ticket when radar is used. Remember, the burden is on the prosecution to prove you guilty, so all you need to do is create a reasonable doubt! If you demand your right to a trial, here are some of the basic defenses:
Demand production of an Engineering and Traffic Survey. This is a rather technical defense, but it’s also one of the best. The California vehicle code requires that when radar is used, it must be done on a road that has had an Engineering and Traffic Survey performed on it within the last five to seven years. If no survey has been performed or the survey has expired, the use of radar makes it an illegal speed trap. Further, you can question the officer as to the stretch of the road that has been surveyed. If it is possible his radar got you outside of that area, then you have just created a reasonable doubt. Case dismissed!
Demonstrate your speed was safe for the prevailing conditions. Most people don’t realize this, but when you are ticketed for speeding at less than 55 mph, the law is actually not that you were traveling faster than the posted speed limit, but that you were going faster than was safe for prevailing conditions. That means you have the chance to prove that, actually, 45 mph in a 35 mph zone was not speeding! You can do this by proving factors that show your speed was reasonable. Was visibility excellent, on a clear, dry day? Was it a straight road with a median and no dips, intersections, or pedestrians? How heavy was traffic, what was the average speed, and how much distance was there in between cars? All these factors and more can be used to show that, in fact, your speed was actually safe despite being over the posted limit.
Question the accuracy of the radar and/or training of the officer. Has the radar been calibrated recently? Has the officer been properly trained on how to use a sophisticated piece of equipment? The farther away the officer is from the vehicle he gets on radar, the more likely he is to miss his target. The officer may mistakenly get a reading from another vehicle, a nearby train, or even windblown tree limbs or driving rain. The key is determining the width of the radar beam and the distance between the officer and the target. When these details are elicited in court, it often becomes obvious that the radar is far from perfect – and also creates a reasonable doubt as to whether you were in fact speeding.
Create reasonable doubt as to the identification of your vehicle. Here is a common scenario: An officer is pulled over on the side of the freeway. A white SUV blows by, and the radar shows a speed of 85 mph. The officer starts his engine, waits until it’s safe, and then takes off in pursuit. Five miles down the road, he catches a white SUV and gives the driver a ticket. What’s the problem here? Well, unless the officer has super-human vision, how does he know this is the same white SUV? Clearly he lost sight of the speeding vehicle when it blew by and he was completely stopped. Further, what if this happens at night, further hampering visibility? And what if the traffic is heavy? Maybe there are a half dozen white SUVs on this particular freeway. The point is, mistaken identification is very common and this is an excellent argument to make in court.
These are only some of the many defenses that can be used for fighting a speeding ticket. Depending on the circumstances of your ticket, there can be a multitude of other ways to get out of that pesky fine and hit on your record. If you want to learn more about how you can fight your ticket, contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
Demand production of an Engineering and Traffic Survey. This is a rather technical defense, but it’s also one of the best. The California vehicle code requires that when radar is used, it must be done on a road that has had an Engineering and Traffic Survey performed on it within the last five to seven years. If no survey has been performed or the survey has expired, the use of radar makes it an illegal speed trap. Further, you can question the officer as to the stretch of the road that has been surveyed. If it is possible his radar got you outside of that area, then you have just created a reasonable doubt. Case dismissed!
Demonstrate your speed was safe for the prevailing conditions. Most people don’t realize this, but when you are ticketed for speeding at less than 55 mph, the law is actually not that you were traveling faster than the posted speed limit, but that you were going faster than was safe for prevailing conditions. That means you have the chance to prove that, actually, 45 mph in a 35 mph zone was not speeding! You can do this by proving factors that show your speed was reasonable. Was visibility excellent, on a clear, dry day? Was it a straight road with a median and no dips, intersections, or pedestrians? How heavy was traffic, what was the average speed, and how much distance was there in between cars? All these factors and more can be used to show that, in fact, your speed was actually safe despite being over the posted limit.
Question the accuracy of the radar and/or training of the officer. Has the radar been calibrated recently? Has the officer been properly trained on how to use a sophisticated piece of equipment? The farther away the officer is from the vehicle he gets on radar, the more likely he is to miss his target. The officer may mistakenly get a reading from another vehicle, a nearby train, or even windblown tree limbs or driving rain. The key is determining the width of the radar beam and the distance between the officer and the target. When these details are elicited in court, it often becomes obvious that the radar is far from perfect – and also creates a reasonable doubt as to whether you were in fact speeding.
Create reasonable doubt as to the identification of your vehicle. Here is a common scenario: An officer is pulled over on the side of the freeway. A white SUV blows by, and the radar shows a speed of 85 mph. The officer starts his engine, waits until it’s safe, and then takes off in pursuit. Five miles down the road, he catches a white SUV and gives the driver a ticket. What’s the problem here? Well, unless the officer has super-human vision, how does he know this is the same white SUV? Clearly he lost sight of the speeding vehicle when it blew by and he was completely stopped. Further, what if this happens at night, further hampering visibility? And what if the traffic is heavy? Maybe there are a half dozen white SUVs on this particular freeway. The point is, mistaken identification is very common and this is an excellent argument to make in court.
These are only some of the many defenses that can be used for fighting a speeding ticket. Depending on the circumstances of your ticket, there can be a multitude of other ways to get out of that pesky fine and hit on your record. If you want to learn more about how you can fight your ticket, contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
2/1/10
Medicinal Marijuana Approved for Use with Prop 36
The California Court of Appeal ruled recently that the use of medicinal marijuana is not an automatic violation of probation for non-violent drug offenders participating in “Prop 36” programs. California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was an initiative passed by voters into law that allows qualifying defendants convicted of non-violent drug offenses to complete drug treatment programs in lieu of incarceration. If a participant violates any terms of the probation, which include regular drug tests, he or she will be found in violation of probation and be required to serve a prison or jail sentence.
In the case of People v. Beaty, decided by the Court of Appeal on January 28, 2010, the defendant had been convicted of possession of methamphetamine. The trial court suspended the imposition of a prison sentence and allowed Beaty to participate in the Prop 36 program. The terms of the probation included the usual restrictions on the use of any unauthorized drugs.
As a result of a motorcycle accident in 1998, Beaty was disabled and had been legally prescribed medicinal marijuana to combat his chronic pain. Throughout his intake process and participation in the Prop 36 program, he disclosed his daily use of marijuana to his counselors at the drug treatment center. Unsurprisingly, his drug tests came back positive for marijuana, a purported violation of the terms of his probation. Based on expert testimony that the use of marijuana was “mind altering, habit-forming, and used daily,” the trial court determined that the use of the drug, despite the fact it was legally prescribed, was a violation of Beaty’s probation.
Beaty appealed the decision of the trial court that his use of medicinal marijuana was a violation of his probation. Fortunately, the appellate court agreed with him. Comparing the use of marijuana to Adderall, another mind altering, habit forming drug used daily (to treat attention deficit disorder), the court determined that the use of legally prescribed medicinal marijuana should not be an automatic violation of the terms of probation for the Prop 36 program.
As a result of this decision, thousands of people eligible for Prop 36 will not have to suffer unnecessarily by being either being denied their rights to access safe, approved prescription medication, or by flouting the law and being locked up as a result of attempting to ease their suffering. Undoubtedly, this is a step further in the right direction in allowing for the controlled use of marijuana for medicinal purposes.
For the full text of the opinion, click here.
In the case of People v. Beaty, decided by the Court of Appeal on January 28, 2010, the defendant had been convicted of possession of methamphetamine. The trial court suspended the imposition of a prison sentence and allowed Beaty to participate in the Prop 36 program. The terms of the probation included the usual restrictions on the use of any unauthorized drugs.
As a result of a motorcycle accident in 1998, Beaty was disabled and had been legally prescribed medicinal marijuana to combat his chronic pain. Throughout his intake process and participation in the Prop 36 program, he disclosed his daily use of marijuana to his counselors at the drug treatment center. Unsurprisingly, his drug tests came back positive for marijuana, a purported violation of the terms of his probation. Based on expert testimony that the use of marijuana was “mind altering, habit-forming, and used daily,” the trial court determined that the use of the drug, despite the fact it was legally prescribed, was a violation of Beaty’s probation.
Beaty appealed the decision of the trial court that his use of medicinal marijuana was a violation of his probation. Fortunately, the appellate court agreed with him. Comparing the use of marijuana to Adderall, another mind altering, habit forming drug used daily (to treat attention deficit disorder), the court determined that the use of legally prescribed medicinal marijuana should not be an automatic violation of the terms of probation for the Prop 36 program.
As a result of this decision, thousands of people eligible for Prop 36 will not have to suffer unnecessarily by being either being denied their rights to access safe, approved prescription medication, or by flouting the law and being locked up as a result of attempting to ease their suffering. Undoubtedly, this is a step further in the right direction in allowing for the controlled use of marijuana for medicinal purposes.
For the full text of the opinion, click here.
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