http://www.free-articles-zone.com Morenos en 05/12/2009 Accident reconstruction is an important, but often overlooked tool, of a DUI defense. Where there has been an accident, the responding police officers and detectives write a traffic collision report. This is often the only means the prosecutor will be able to piece together the events leading up to the crash and its aftermath. http://www.free-articles-zone.com/article.php?id=17053 2006-06-21 Most states break their crimes into two major groups, felonies and misdemeanors. The difference between the two types of crime is the punishment involved. Where a crime can be punished with a year of more of imprisonment in state prison, it is a felony. But if the potential punishment is for a year or less in the county jail, then the crime is considered a misdemeanor. http://www.free-articles-zone.com/article.php?id=17054 2006-06-21 The arraignment is the first court hearing in a felony case. An arraignment follows the constitutional principles of speedy trial rights and the ability to hear the charges being held against the defendant. Both in-custody and out-of-custody defendants must be arraigned without undue delay, no more than two calendar days after arrest, excluding Sundays and holidays. http://www.free-articles-zone.com/article.php?id=17055 2006-06-21 The arraignment is the defendant’s first court hearing after the arrest, booking, and initial bail phases of the criminal process have taken place. This is usually the first opportunity for the defendant to hear the charges pending against him and provides the defendant the opportunity to plead to those charges. A prompt arraignment is related to the Constitutional safeguard of providing a “speedy trial.” The arraignment date will be dependant on several factors. The defendant's custodial status is the most important factor. http://www.free-articles-zone.com/article.php?id=17056 2006-06-21 In California this term is used to identify crimes that are punishable either as a felony or as a misdemeanor. There are over a hundred cases that can be classified as either a felony or a misdemeanor. This distinction can be found in the Penal Code. These types of cases are referred to as “wobblers” due to the sentencing structure. In other words, wobbler crimes are those that could bring a sentence of state prison, county jail, or fines. http://www.free-articles-zone.com/article.php?id=17057 2006-06-21 The DMV has the burden of proof in the Administrative Per Se (APS) hearing. The burden of proof is that there is more evidence weighted towards driving under the influence of alcohol than not. State law has mandated that the burden rests with the DMV to justify its order of suspension. http://www.free-articles-zone.com/article.php?id=17058 2006-06-21 The Davenport case holds that the arresting officer’s written statement is sufficient to support the DMV’s suspension of the defendant’s driver’s license. The Davenport court held that the officer has a duty to administer chemical tests according to methods that are designed to assure reliability. Similarly, California Evidence Code Section 664 gives the presumption that the officer’s official duty has been “regularly performed,” thus giving rise to an inference of the reliability of the test. http://www.free-articles-zone.com/article.php?id=17059 2006-06-21 When someone is charged with a DUI offense, there are two separate battles to fight: the DMV and the criminal court case. The DMV will suspend driving privileges within 30 days of an arrest for driving with an alleged blood alcohol content (BAC) over .08 percent, unless an Administrative Per Se (APS) hearing is requested within 10 days of the DUI arrest. http://www.free-articles-zone.com/article.php?id=17060 2006-06-21 The Downer case dealt with California Evidence Code section 1280, the official records hearsay exception. Hearsay involves any statement made outside of court, offered to prove the truth of the matter asserted. Forensic laboratory reports are hearsay, because they deal with events and statements that took place in a place outside of the courtroom, and are used to convict the defendant of a crime. http://www.free-articles-zone.com/article.php?id=17061 2006-06-21 California Evidence Code Section 664 shifts the burden of proof to the DMV licensee to establish the nonexistence of one, or more, of the foundational requirements with regard to the police officer’s sworn statement, except when it is clear that the trustworthiness is not established when the officer incorrectly reports all the facts in the sworn statement. http://www.free-articles-zone.com/article.php?id=17063 2006-06-21 A police officer’s statement, contained in a police report, is hearsay. However, California Evidence Code Section 1280 allows the statement in as an exception to the hearsay rule. Section 1280, titled “Record by public employee” reads: http://www.free-articles-zone.com/article.php?id=17064 2006-06-21 The Administrative Per Se (APS) hearings are held in the DMV Driver’s Safety Office nearest to the location of the arrest. The APS hearings are run by DMV employees, called hearing officers. The request for the APS hearing must be made within 10 calendar days of the arrest, or else the defendant’s license will automatically be suspended 30 calendar days after the date of arrest. http://www.free-articles-zone.com/article.php?id=17065 2006-06-21 The standard of proof at DMV hearings is the preponderance of the evidence standard. This level of proof is required in most civil cases, which DMV hearings can be likened to, as opposed to the criminal court trial where the burden of proof is beyond a reasonable doubt. The preponderance of the evidence standard merely requires that there be more evidence in support of a defendant’s guilt than not. http://www.free-articles-zone.com/article.php?id=17066 2006-06-21 The crime of battery occurs with the striking of someone, with intent to harm them. . California Penal Code Section 242 states, “A battery is any willful and unlawful use of force or violence upon the person of another.” It is a crime to commit a battery against a peace officer, whether they are on duty or off duty. http://www.free-articles-zone.com/article.php?id=17067 2006-06-21 The crime of evading a police officer is a misdemeanor. A misdemeanor is a crime punishable by a term in the county jail, up to one year. There are multiple reasons why evading a police officer is unlawful, including interfering with the duties of a police officer in the scope of their duties, and the danger to the public in fleeing from the officer, oftentimes involving high speeds and other traffic violations, like running red lights. However, in order to convict someone of evading, a number of criteria must be met. http://www.free-articles-zone.com/article.php?id=17068 2006-06-21 It is a crime to act defiantly to law enforcement. Such categories of defiance include the act of evading a police officer who is trying to pull you over, resisting a police officer or firefighter when they are engaged in their duties, and battery on a police officer. http://www.free-articles-zone.com/article.php?id=17069 2006-06-21 California Penal Code Section 148 makes it a criminal offense to willfully resist, delay, or obstruct police officers and firemen when they are performing their duties. The punishment varies with the degree of the offense, as a misdemeanor or a felony. Some of the offenses are “wobblers,” meaning that the crime may be punishable as either a misdemeanor or felony. http://www.free-articles-zone.com/article.php?id=17070 2006-06-21 The California Department of Motor Vehicles has the jurisdiction to administer an Administrative Per Se, commonly known as APS, hearing affecting the driving privileges of the DUI offender. The DMV case is totally separate and independent from the criminal case. Therefore, a DUI defendant must defend himself twice-at both the DMV and at criminal court. This also means that the DUI defendant gets punished twice. http://www.free-articles-zone.com/article.php?id=17071 2006-06-21 Forging a prescription is against the law. It is generally defined as the illegal acquisition of pharmaceuticals for personal use or profit. People commit prescription fraud in many ways, including going to multiple doctors for multiple prescriptions, and forging the quantity on the prescription to increase the quantity. The biggest factor driving prescription fraud is the increasing abuse and addiction to prescription drugs. Health and Safety Code Section 11368 defines the offense and the punishment, reading: http://www.free-articles-zone.com/article.php?id=17072 2006-06-21 California is the nation’s leader in drug arrests. A drug arrest causes major havoc in a person’s life, because the penalties are harsh, with imprisonment in county jail or state prison. A drug arrest can follow a person through their whole life, because a criminal record lasts a lifetime. Although there are many different types of drugs, the most commonly prosecuted are: http://www.free-articles-zone.com/article.php?id=17073 2006-06-21 It is illegal to maintain a place for selling or using controlled substances. Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. http://www.free-articles-zone.com/article.php?id=17074 2006-06-21 It is illegal to grow, or cultivate, marijuana. The California criminal jury instructions gives guidance to the factors that the prosecution must prove in order to successfully convict someone of this offense. http://www.free-articles-zone.com/article.php?id=17075 2006-06-21 Possession of drugs for personal use requires the following knowledge:  Knowledge of the presence of the controlled substance  Knowledge that the substance is in fact a controlled substance. It is not necessary that the defendant know the chemical name or the precise chemical makeup of the substance. http://www.free-articles-zone.com/article.php?id=17076 2006-06-21 Possession for sales of illegal drugs may be classified as a misdemeanor, felony, or “wobbler.” A misdemeanor is a crime punishable by a maximum of one year imprisonment in county jail. A felony is punishable by imprisonment in the state prison. Either of these classifications may include fines. A felony term in state prison may have a range of years for sentencing purposes. For example, there may be the option of a 2, 3, or 4 year term. http://www.free-articles-zone.com/article.php?id=17077 2006-06-21 Not only is it illegal to possess methamphetamine or PCP, but it is also illegal to possess the ingredients with the intent to manufacture these drugs. http://www.free-articles-zone.com/article.php?id=17078 2006-06-21 Diversion from criminal drug charges entails navigating the intricacies of Prop. 36 or deferred entry of judgment (DEJ), both of which divert from criminal prosecution only people charged with simple possession or being under the influence. Both programs require the defendant to attend and complete a certified or approved drug rehabilitation program. When the treatment is complete, the defendant's conviction is erased from the record. The goal of both programs is rehabilitation rather than punishment, but there the similarities end. http://www.free-articles-zone.com/article.php?id=17079 2006-06-21 Alcohol intoxication is a leading factor in motorcycle accidents and fatalities. Law enforcement officers have been trained to identify driving patterns that indicate a probability that a motorcyclist is driving while intoxicated. The driving patterns that police typically look for have been outlined by the National Highway Traffic and Safety Administration (NHTSA). http://www.free-articles-zone.com/article.php?id=17080 2006-06-21 In order to be convicted of a California DUI or drunk driving (driving while impaired by alcohol, or under the influence of alcohol), it must be proven beyond a reasonable doubt that the person was under the influence of an alcoholic beverage, which caused the driver to either drive without due caution or it is proven the driver’s blood alcohol content (BAC) was at or above .08%. Where a driver’s blood or breath alcohol content exceeds the legal limit, it is considered a violation of the “per se” law. http://www.free-articles-zone.com/article.php?id=17081 2006-06-21 “Driving” is one of the required elements of a DUI offense. Driving requires "volitional movement of a vehicle." In everyday usage the phrase, "to drive a vehicle," is understood as requiring evidence of purposeful, actual movement of a vehicle. http://www.free-articles-zone.com/article.php?id=17082 2006-06-21 To obtain a conviction for driving under the influence, the prosecution must prove that the defendant drove a vehicle while under the influence of any alcoholic beverage. http://www.free-articles-zone.com/article.php?id=17083 2006-06-21 In order to be convicted of a DUI, the prosecutor must prove beyond a reasonable doubt that the defendant was driving under the influence of alcohol. The types of evidence which normally support this charge are: driving pattern, physical appearance, performance on field sobriety tests, and the results of chemical tests. However, the fact is that many people can drive at or above the legal limit (at .08% BAC) and have a perfect driving pattern, none or few physical symptoms of intoxication, and perform the field sobriety tests with flying colors. http://www.free-articles-zone.com/article.php?id=17084 2006-06-21 There are two different types of DUI offenses that may be charged, depending on whether the person had a blood alcohol content below .08 percent or at or above the .08 percent. BAC is measured by the grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. BAC is tested by way of blood tests or by breath tests which use fuel cell and infrared technology. http://www.free-articles-zone.com/article.php?id=17085 2006-06-21 In order to be arrested and convicted of a DUI, the individual must be driving a vehicle. The California Vehicle Code defines vehicle as "a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks." Automobiles, trucks, motorcycles, mopeds, and snowmobiles fall within the classification of a vehicle. http://www.free-articles-zone.com/article.php?id=17086 2006-06-21 Federal crimes are those crimes which fall under federal jurisdiction. Congress enacts laws in areas that fall within federal jurisdiction. Typically, these are laws and regulations dealing with federal property, federal matters and federal taxes. Additionally, there are significant federal crime laws governing interstate commerce. http://www.free-articles-zone.com/article.php?id=17087 2006-06-21 Generally, California law prohibits any individual from carrying a loaded firearm of any kind on his or her person or in a vehicle while in any public place or on any public street in an incorporated city, or in any public place or on any public street in a prohibited area of unincorporated territory. A loaded firearm refers to a firearm that has a cartridge or shell in a chamber, clip, or magazine that is located inside of or is attached in some way to the firearm itself. California Penal Code Section 12025 reads in pertinent part: http://www.free-articles-zone.com/article.php?id=17088 2006-06-21 California law prohibits convicted felons, violent offenders, the mentally ill, persons with restraining orders and other specified individuals from possessing a gun. This included people convicted of misdemeanor crimes of domestic violence. http://www.free-articles-zone.com/article.php?id=17089 2006-06-21 Shooting a firearm from a motor vehicle, commonly known as a “drive-by” shooting, results in increased penalties. It is a felony punishable by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years. Consecutive punishment means that the additional term would follow any other term of imprisonment imposed. Consecutive punishment adds more years of imprisonment as compared to concurrent punishment which allows for the crimes to be served at the same time, resulting in less total years of imprisonment. http://www.free-articles-zone.com/article.php?id=17090 2006-06-21 When a person is arrested for a DUI, that person must submit to a chemical test under the “Implied Consent” provision in the California Vehicle Code. Implied Consent, under Section 23612 states that if a person is lawfully arrested for a DUI, they are deemed to have given his or her consent to taking either a blood or breath to determine blood alcohol content (BAC). http://www.free-articles-zone.com/article.php?id=17091 2006-06-21 When a person is arrested for a DUI, a chemical test is required to measure the alcohol content in the blood (BAC). The three chemical tests available are: blood, breath, or urine testing. Urine testing refers to the chemical examination of the urine in the detection of drugs or alcohol. Urine testing is generally only given as an option where a person is arrested of driving under the influence of drugs, driving under the influence of alcohol and drugs, but not for merely driving under the influence of alcohol. http://www.free-articles-zone.com/article.php?id=17092 2006-06-21 Alcohol is a central nervous system depressant. The degree to which the central nervous system function is impaired is directly proportional to the concentration of alcohol in the blood. There are 3 stages: absorption, distribution, and elimination. http://www.free-articles-zone.com/article.php?id=17093 2006-06-21 Evidential breath tests, commonly known as EBT’s, are the most commonly used breath-testing instruments. These instruments detect ethyl alcohol by infrared spectroscopy. http://www.free-articles-zone.com/article.php?id=17094 2006-06-21 When a person has been lawfully arrested for a DUI, the Implied Consent provision of the California Vehicle Code mandates that they take a chemical test in order to determine their blood alcohol content (BAC). Although a person may refuse to submit to a chemical test, law enforcement is authorized to take a “forced blood draw.” A forced blood draw can be either the incapacitation of a person by law enforcement officers (physically holding him down) or the threat of doing so, while trained medical personnel draw the blood for use in the later prosecution for DUI. http://www.free-articles-zone.com/article.php?id=17095 2006-06-21 Although breath testing is widely used to measure blood alcohol content (BAC), it is not appropriate for all people. Breath testing measures the amount of alcohol that is evaporated from the alveolar tissue in the lungs. Breath is expelled from the deepest portion of the lungs, passes through the throat, and then exits from the mouth. However, where residual alcohol is retained in the mouth, the resulting BAC reading will reflect mouth alcohol and not deep lung air. http://www.free-articles-zone.com/article.php?id=17096 2006-06-21 Preliminary Alcohol Screening devices, commonly referred to as PAS tests, are one of the types of field evidence police officers use in determining probable cause to make an arrest. Although officers don’t often reveal this, a person stopped for a DUI is not obligated to take the PAS test, as it is a voluntary test and is not subject to the “implied consent” laws. http://www.free-articles-zone.com/article.php?id=17097 2006-06-21 Homicide is the unlawful killing of another human being. Included among homicides are murder and manslaughter, of which there are varying degrees and types. http://www.free-articles-zone.com/article.php?id=17098 2006-06-21 Manslaughter is defined as killing a person without premeditation or malice aforethought. Malice aforethought means having an evil intent prior to the killing. Like murder, there are different degrees of seriousness of manslaughter: voluntary and involuntary. http://www.free-articles-zone.com/article.php?id=17099 2006-06-21 Manslaughter is the unlawful killing of another person, without having the intention to kill (known as malice aforethought-a prior intention to kill). Manslaughter may be either voluntary or involuntary. Voluntary manslaughter is generally defined as a killing occurring upon a sudden impulse. Involuntary manslaughter is generally defined as an unlawful act which causes death, but would not ordinarily be expected to result in great bodily harm or death. http://www.free-articles-zone.com/article.php?id=17100 2006-06-21 Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. There are two types of murder: murder in the first degree and murder in the second degree. In order to bring murder charges, the victim must die within a year of the crime causing his death. Murder is defined in Penal Code Section 187. http://www.free-articles-zone.com/article.php?id=17101 2006-06-21 Under California law, a person found guilty of murder in the first degree can be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. However, if the jury finds that the murder was committed under special circumstances, the only penalty is death or life without the possibility of parole. The California Penal Code lists the special circumstances that must be considered by the jury: http://www.free-articles-zone.com/article.php?id=17102 2006-06-21 Vehicular manslaughter is a type of involuntary manslaughter which does not require the element of an intention to kill. The only difference between a vehicular homicide and other homicides is the use of a motor vehicle as a weapon, as opposed to a gun or knife. This does not change in any way the elements required to be proved for murder. As long as the elements for murder can be proved, a vehicular homicide defendant can be tried for murder just like someone who uses a gun. http://www.free-articles-zone.com/article.php?id=17103 2006-06-21 The driving patterns that police typically look for have been outlined by the National Highway Traffic and Safety Administration (NHTSA). NHTSA has delineated a number of “cues” that police officers can look for in detecting intoxicated drivers driving at night. The list presented below represents, in descending order, the visual cues giving rise to the probability that the person observed is driving while intoxicated. Often, police officers will observe several cues in conjunction, which increases the probability that the driver is intoxicated, that is, driving with a blood alcohol content (BAC), over the legal limit. Studies have indicated that cues by themselves or in conjunction with other cues, give rise to a statistical probability of intoxication. http://www.free-articles-zone.com/article.php?id=17104 2006-06-21 Horizontal Gaze Nystagmus (HGN) is an eye test. Nystagmus is defined as an involuntary jerking of the eyes as the eyes move from the center position off to the side. Alcohol and some drugs cause HGN. If administered properly, HGN is 77% determinative of the subject having a blood alcohol count (BAC) over .10 percent. http://www.free-articles-zone.com/article.php?id=17105 2006-06-21 Law enforcement agencies employ a number of different field sobriety tests to determine enough probable cause to make an arrest for drunk driving. The National Highway Traffic and Safety Administration (NHTSA) has conducted studies which have determined that some tests are accurate indicators, to a degree, of a blood alcohol content (BAC) above .10%. However, law enforcement agencies often use non-scientific tests, or non-standardized field sobriety tests, to determine intoxication. These tests include: http://www.free-articles-zone.com/article.php?id=17106 2006-06-21 The One-Leg Stand (OLS) is a test that is performed in a stationary position. If administered properly, the OLS has a 65% accuracy rate in determining a blood alcohol content (BAC) above .10%. Proper administration of the OLS requires a reasonably dry, hard, level and non-slippery surface. If the subject is wearing heels above 2 inches, they should be allowed the opportunity to take them off. http://www.free-articles-zone.com/article.php?id=17107 2006-06-21 Officers will observe the physical appearance of the alleged intoxicated driver very closely. This is done to determine symptoms of intoxication in order to form the basis of arrest (probable cause). The symptoms will be included in the arrest report for the use by the prosecuting attorney in the prosecution of the driver for DUI. http://www.free-articles-zone.com/article.php?id=17108 2006-06-21 The Walk and Turn (WAT) is a walking test. If administered properly, the WAT is 68% accurate in determining blood alcohol content (BAC) above .10%. In order to be administered properly, the test must be conducted on a reasonably dry, hard, level, and non-slippery surface. There should be a designated straight line. However, courts have allowed the introduction of the results of this test into evidence where there has not been a designated line. In this case, defense counsel will attack the weight of the evidence. If the subject is wearing heels above 2 inches, they should be given the opportunity to remove their shoes. http://www.free-articles-zone.com/article.php?id=17109 2006-06-21 The National Highway Traffic and Safety Administration (NHTSA) has done extensive studies of field sobriety testing (FST’s) in order to determine the probability of intoxication. Law enforcement agencies have utilized FST’s for many years to develop probable cause for arrest and as evidence to be used in the prosecution for drunk driving. However, not all FST’s have been scientifically determined to be accurate reflectors of alcohol intoxication. NHTSA has determined that three FST’s are accurate indicators of alcohol intoxication, when administered in a standardized manner. These tests are called Standardized Field Sobriety Tests (SFST’s): http://www.free-articles-zone.com/article.php?id=17110 2006-06-21 There are a number of factors or special allegations that will increase a person’s exposure to harsher punishment in a misdemeanor case. The increased punishments include greater fines, mandatory attendance in longer alcohol education courses, and a required period of incarceration in the county jail. http://www.free-articles-zone.com/article.php?id=17111 2006-06-21 A felony is a crime punishable by imprisonment in the state prison, for over one year. The length of punishment is determined by a low, mid, and high term, usually 16 months, 2 years, and 4 years, respectively. A DUI can be a misdemeanor or a felony depending on a number of factors, such as whether injury occurred and/or whether there are prior DUI convictions. DUI convictions and punishments are guided by the California Vehicle Code. http://www.free-articles-zone.com/article.php?id=17112 2006-06-21 The prosecutor and defense counsel can agree to a lower charged offense, as a result of what is known as “plea bargaining.” Plea bargaining usually results in a lower-charged offense and/or a lighter sentence in exchange for a guilty or nolo contendere plea by the defendant. However, the judge in the case must approve the plea bargain in order for it to be effective. There are many advantages to a plea bargain. A plea bargain will avoid further court proceedings and avoid a full-blown trial. This saves money and time for both the prosecution and the defense. The court system is overburdened with cases already, so plea bargains are an inviting solution, so long as the judge goes along. http://www.free-articles-zone.com/article.php?id=17113 2006-06-21 Arson is considered a general intent crime. This means that the defendant need not have intended the specific results, namely the burning of a structure, forest land, or property. What matters are the actions that the defendant undertook that caused such a result. Generally, a person cannot commit “arson” against his own property, unless there is intent to defraud or where there is injury to someone else’s body or property. http://www.free-articles-zone.com/article.php?id=17114 2006-06-21 Hit and run is generally defined as a criminal act. Where the collision is with property only, such as another vehicle with no occupants, the driver must leave information attached to the damaged property, as well as make a report to the police. These duties do not implicate the driver in terms of being responsible for the accident. http://www.free-articles-zone.com/article.php?id=17115 2006-06-21 Property damage is punishable under the law by fines, imprisonment, and community service. Property damage means many things, from scrawling graffiti on a park bench, hitting something with your car, to causing a fire which damages property. Property damage can be minor to very great. The level of damage will increase the fines and the amount of imprisonment. Convictions for property damage may be misdemeanors, felonies, or “wobblers.” http://www.free-articles-zone.com/article.php?id=17116 2006-06-21 Recklessly causing a fire is defined by California Penal Code Section 452 which states, “A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.” Recklessness occurs when a person knows that one's actions have an unjustifiable risk of leading to a certain result, but did not care about that risk and acted anyway. The classification of this crime is a misdemeanor or a felony. http://www.free-articles-zone.com/article.php?id=17117 2006-06-21 California law makes it a crime to deface, damage, or destroy the real or personal property belonging to another person. The crime is termed “vandalism,” which is a misdemeanor, unless the monetary damage is great, and then it is a felony. A misdemeanor is a crime punishable by a term in the county jail for no more than a year. A felony, on the other hand, is punished by a term in the state prison. Some vandalism crimes are referred to as “wobblers.” Wobblers are punishable as either a felony or a misdemeanor. http://www.free-articles-zone.com/article.php?id=17118 2006-06-21 When a person has been lawfully arrested for a DUI, they are mandated to take a chemical test. If a person refuses, his or her license will immediately be confiscated by the law enforcement officer pursuant to their authority to do so in order to send the license to the Department of Motor Vehicles (DMV) for an Administrative Per Se (APS) hearing. http://www.free-articles-zone.com/article.php?id=17119 2006-06-21 The Supreme Court of California rendered a decision on the premiere California roadblock case, Ingersoll v. Palmer, in 1987. This decision set the standard for how law enforcement agencies must conduct roadblocks, otherwise known as sobriety checkpoints. The Supreme Court identified a number of factors for minimizing the intrusiveness on the individual while balancing the needs of society in keeping drunk drivers off the road: http://www.free-articles-zone.com/article.php?id=17120 2006-06-21 Roadblocks have been established to be “seizures” under the Fourth Amendment. The Fourth Amendment states that a person should be free from unreasonable searches and seizures of their person and their belongings, absent individualized suspicion of wrongdoing. The touchstone for all issues under the Fourth Amendment is reasonableness. Federal constitutional principles require a showing of either the officer’s reasonable suspicion that a crime has occurred or is occurring or alternatively that the seizure is carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. http://www.free-articles-zone.com/article.php?id=17121 2006-06-21 A roadblock, also known as a sobriety checkpoint, is a temporary stop-point operated on a public road, which must be governed by established guidelines, set out by the California Supreme Court in the premiere roadblock case, Ingersoll v Palmer. A sobriety checkpoint roadblock must have advance notice to the public, set up by policymaking officials other than officers in the field, guided by a neutral mathematical formula, maintained safely for both police and motorists, have high visibility thus serving to give advance warning to the motorist as to the official nature of the stop, and minimize the average time each motorist is detained. http://www.free-articles-zone.com/article.php?id=17122 2006-06-21 It is well-established law that searches and seizures are unreasonable under the Fourth Amendment, absent individualized suspicion of wrongdoing. There are very few exceptions to this general rule. In order to be constitutional, DUI sobriety checkpoint roadblocks must follow specific guidelines set forth by the U.S. Supreme Court and the California Supreme Court. http://www.free-articles-zone.com/article.php?id=17123 2006-06-21 Incarceration in the county jail offers no rehabilitative benefit for the DUI offender. Unfortunately, some people have addiction problems to alcohol that are simply not addressed with being punished by incarceration. A large number of people get into serious trouble because of their drinking. Currently, nearly 14 million Americans—1 in every 13 adults—abuse alcohol or are alcoholic. Several million more adults engage in risky drinking that could lead to alcohol problems. These patterns include binge drinking and heavy drinking on a regular basis. In addition, 53 percent of men and women in the United States report that one or more of their close relatives have a drinking problem. http://www.free-articles-zone.com/article.php?id=17124 2006-06-21 Instead of sitting in the county jail as the result of a DUI conviction, DUI offenders can be sentenced to work on a Caltrans Freeway Cleanup crew as a term of their probation. The number of hours required to work with Caltrans is equal to the number of hours that would have otherwise been spent being incarcerated. This is known as good time/work time custody credits. Every hour spent working for Caltrans counts against the hours that would have otherwise been spent in jail. There is usually a certain length of time that the person is allowed to complete the hours. But if the required hours are not completed in the allotted time, then the court will likely issue a probation violation. It is always in the best interests of the DUI offender to fulfill all terms of probation. http://www.free-articles-zone.com/article.php?id=17125 2006-06-21 Where the court has the ability to sentence the DUI offender to a term of incarceration in the county jail, the court may choose to allow the defendant to serve the hours that would have been spent in county jail instead on community service. Community service is a special condition the court imposes that requires an individual to work–without pay–for a civic or nonprofit organization. Performing community service has many benefits. http://www.free-articles-zone.com/article.php?id=17126 2006-06-21 Electronic monitoring, also known as “house arrest” allows the convicted DUI offender to stay at home instead of being incarcerated in the county jail. There are many types of electronic monitoring devices. Some attach to the wrist, others to the ankle. Either the device will send a signal to a computer at the probation office or the manufacturer’s business. Another type of monitoring device involves equipment which is strapped to the DUI offender. Some programs require the DUI offender to respond to random phone calls to insure compliance with house arrest. http://www.free-articles-zone.com/article.php?id=17127 2006-06-21 When someone is convicted of a DUI, the court may require that a person convicted of a first offense violation of Section 23152 or 23153 to install a certified ignition interlock device on any vehicle that the person owns or operates and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. http://www.free-articles-zone.com/article.php?id=17128 2006-06-21 SCRAM is an alcohol monitoring program that is intended for the multiple DUI offender who would otherwise be facing mandatory incarceration. Instead of incarceration, some courts will allow the DUI offender to participate in an alternative sentencing program utilizing a monitoring device called SCRAM. SCRAM (Secure Continuous Remote Alcohol Monitor) is a device which is attached to the ankle and monitors blood alcohol levels by measuring ethanol vapor as it migrates through the surface of the skin. http://www.free-articles-zone.com/article.php?id=17129 2006-06-21 The penalties for conviction of a DUI are harsh and include large fines, jail time, and mandatory alcohol education classes. Conviction for multiple DUIs only increases the amount of punishment. Because of the harsh nature of DUI sentencing laws, courts have developed alternative sentencing options. Sentencing alternatives increase the options available for punishment, allowing for greater plea bargaining choices between the prosecutor and the defense. http://www.free-articles-zone.com/article.php?id=17130 2006-06-21 Sober living environments are a way for the DUI offender to avoid being incarcerated. Where a person has had multiple DUIs, or has a drug or alcohol problem that has not responded to past attempts at treatment, then sober living may be the best rehabilitative means of any of the other alternative sentencing options. The basic structure of a sober living environment involves the housing of only sober people, for both men and women. All residents are required to participate in planned daily activities, such as group meetings and 12-step programs. Each resident is required to contribute to the running and functioning of the household by performing a household chore. http://www.free-articles-zone.com/article.php?id=17131 2006-06-21 “Every person who willfully and lewdly, either: 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or, 2. Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor.” http://www.free-articles-zone.com/article.php?id=17132 2006-06-21 Sex crimes are punished harshly in California. The resulting convictions may result in having misdemeanors and felonies on a person’s criminal record. Punishments range from incarceration in county jail up to one year to imprisonment in the state prison. In addition, monetary fines may end up being as much as $10,000. http://www.free-articles-zone.com/article.php?id=17133 2006-06-21 A lewd or lascivious act is defines as any touching of the body of a child under the age of 14 years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party. The touching can be against bare skin, or on top of clothing. California Penal Code Section 288 defines what a lewd act with a child under 14 comprises, reading in part: http://www.free-articles-zone.com/article.php?id=17134 2006-06-21 Oral copulation refers to the act of touching the mouth of one person with another person’s sexual organ or anus. The definitions of oral and copulation are: “oral" meaning of, relating to, or belonging to the mouth, and " copulation " meaning the act of coupling or joining sexual union. http://www.free-articles-zone.com/article.php?id=17135 2006-06-21 Prostitution is related to “pandering,” which means to procure another person for the purpose of prostitution. The following activities constitute pandering: http://www.free-articles-zone.com/article.php?id=17136 2006-06-21 Prostitution is illegal in California. Prostitution means to engage in sexual conduct for money or other consideration. A conviction for prostitution is a misdemeanor, resulting in a conviction for disorderly conduct. California Penal Code Section 647 (b) states in part: http://www.free-articles-zone.com/article.php?id=17137 2006-06-21 Rape is defined in California Penal Code Section 261 as an act of sexual intercourse (actual penetration of a woman’s vagina with the man’s penis) with someone other than a spouse, carried out without consent and accomplished through force, threat of violence or intimidation. Consent is a key factor in a rape case and is a defense to a charge of forcible rape because if the accused could reasonably have believed the victim was consenting, there is no forcible rape. http://www.free-articles-zone.com/article.php?id=17138 2006-06-21 “Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.” http://www.free-articles-zone.com/article.php?id=17139 2006-06-21 Sodomy refers to anal copulation by a man inserting his penis into the anus of another man or a woman. If accomplished by force, without consent or with someone incapable of consent, sodomy is a felony in the same way that rape is. California defines consent as "positive cooperation in act or attitude pursuant to an exercise of free will." Therefore, an defendant's reasonable belief that the victim was consenting to an act of sodomy is a defense to a charge of forcible sodomy. http://www.free-articles-zone.com/article.php?id=17140 2006-06-21 Solicitation of prostitution refers to a person trying to obtain lewd conduct from another person. Solicitation to engage in lewd conduct requires specific intent to engage in that conduct. Specific intent is that intent where the person specifically seeks the end result. In a prostitution case, the end result is engaging in lewd conduct. Lewd conduct refers to the specific intent to sexually arouse, gratify, annoy or offend by soliciting someone to engage in conduct which involves the touching of genitals, buttocks, or the female breast. http://www.free-articles-zone.com/article.php?id=17141 2006-06-21 It is a crime in all 50 states, and federal lands, for a husband to rape his wife. Spousal rape refers to sexual acts committed without a person's consent and/or against a person's will, when the perpetrator is the woman's husband or ex-husband. http://www.free-articles-zone.com/article.php?id=17142 2006-06-21 Statutory Rape laws are based on the premise that until a person reaches a certain age, that individual is legally incapable of consenting to sexual intercourse. Thus, it is a crime for an adult to have sexual intercourse with a person under the legal age of consent, which is 18 years of age. California’s statutory rape law is found in Penal Code Section 261.5. http://www.free-articles-zone.com/article.php?id=17143 2006-06-21 Megan’s Law allows law enforcement agencies to collect information about sex offenders, notifying the public about sex offender’s who pose a risk to the public. The California Department of Justice (DOJ) maintains the registered sex offender database. http://www.free-articles-zone.com/article.php?id=17144 2006-06-21 The following persons are required to register, according to California Penal Code Section 290: http://www.free-articles-zone.com/article.php?id=17145 2006-06-21 Suppression motions are a valuable tool in a DUI case because when evidence can be excluded, the prosecutor’s case is weakened. Suppression follows the rule of law that evidence secured by illegal means and in bad faith cannot be introduced in a criminal trial. The technical term is that it is "excluded" upon a motion to suppress made by the lawyer for the accused. http://www.free-articles-zone.com/article.php?id=17146 2006-06-21 Burglary is the crime of breaking and entering into a structure for the purpose of committing a crime. Contrary to what most people believe, a burglary need not necessarily involve theft. Burglary applies to any crime, such as assault or sexual harassment, whether the intended criminal act is committed or not. No great force is needed (pushing open a door or slipping through an open window is sufficient) if the entry is unauthorized. http://www.free-articles-zone.com/article.php?id=17147 2006-06-21 Embezzlement is the crime of stealing funds of property of an employer, company, or government. It may also mean money or assets held in a trust account. It is the illegal transfer or money, or property, which is diverted from the employer to the embezzler. The fraudulent intent required for embezzlement is the intent to deprive the owner of the property or where the property is diverted to the embezzler’s own use. Even where a person intended to eventually return the property, it is still embezzlement. http://www.free-articles-zone.com/article.php?id=17148 2006-06-21 Extortion is the act of obtaining money or property from a victim by threatening, intimidating, or by false claim of right. An example of false claim of right may be where a person impersonates an official government official, like an IRS agent. Extortion takes several different forms, such as that of blackmail, where a victim is threatened with the exposure of embarrassing information to family, friend, and their community. http://www.free-articles-zone.com/article.php?id=17149 2006-06-21 Forgery is the crime of creating a false document, altering a document, or writing a false signature for the illegal benefit of the person making the forgery. This includes improperly filling in a blank document, like an automobile purchase contract, over a buyer's signature, with the terms different from those agreed. http://www.free-articles-zone.com/article.php?id=17151 2006-06-21 Fraud is generally defined as the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right. Quite often there are several persons involved in a scheme to commit fraud and each and all may be punished criminally. http://www.free-articles-zone.com/article.php?id=17152 2006-06-21 Grand theft involves the theft of goods or services valued above $400 and may be charged as either a felony or a misdemeanor. A misdemeanor is punishable by imprisonment in the county jail for up to one year. A felony is punishable by imprisonment in the state prison. Generally, grand theft is usually punishable up to one year in the county jail or a maximum sentence of 16 months, 2, or 3 years in state prison. http://www.free-articles-zone.com/article.php?id=17153 2006-06-21 Grand theft of an automobile occurs when someone takes another person’s car without permission, with the intent to permanently deprive them of it. Grand theft requires that the property stolen have a value over $400. Grand theft auto is a felony, punishable with imprisonment in the state prison for 16 months, 2, or 3 years. http://www.free-articles-zone.com/article.php?id=17154 2006-06-21 Identity theft is one of the fastest growing crimes in America. Victims come from all walks of life - from everyday people to celebrities. Identity theft involves acquiring key pieces of someone's identifying information, such as name, address, and date of birth, bank account numbers, health insurance identification number, social security number and mother's maiden name, in order to impersonate them. http://www.free-articles-zone.com/article.php?id=17155 2006-06-21 Theft crimes encompass a number of different crimes. Essentially, theft is the taking of another’s property without their consent, with the intention to permanently deprive them of it. Theft crimes generally require specific intent. Specific intent means that the person accused of theft specifically intended the result of the crime—namely taking property with the intent to permanently deprive. http://www.free-articles-zone.com/article.php?id=17156 2006-06-21 Theft is the act of stealing goods. Petty theft involves stealing goods or services worth $400 or less and is charged as a misdemeanor for first time offenses. Where the value of goods stolen is less than $50, the misdemeanor may be reduced to an infraction. Where there is a conviction for a subsequent petty theft, that offense is a felony petty theft. http://www.free-articles-zone.com/article.php?id=17157 2006-06-21 Receiving stolen goods is generally buying or acquiring the possession of property knowing that it had been obtained through theft, embezzlement, larceny, or extortion by someone else. The crime is separate from the crime of stealing the property. To be convicted, the receiver must know the goods were stolen at the time he receives them and had the intent to aid the thief. Paying for the goods or intending to collect the reward for returning them are not defenses. http://www.free-articles-zone.com/article.php?id=17158 2006-06-21 The Three Strikes law significantly increases the prison sentences of persons convicted of felonies who have been previously convicted of a violent or serious felony, and limits the ability of these offenders to receive a punishment other than a prison sentence. Violent and serious felonies are specifically listed in state law. http://www.free-articles-zone.com/article.php?id=17160 2006-06-21 Domestic violence is generally defined as physical abuse against someone who lives in the home, or someone the person is married to (or dating) or used to be married to (or used to date), or someone they have had a child with. A “dating relationship” is defined by CALJIC as “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations.” http://www.free-articles-zone.com/article.php?id=17161 2006-06-21 The California Penal Code, Section 240, defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault is either the threat or attempt to strike another, whether successful or not, where the target is aware of the danger. http://www.free-articles-zone.com/article.php?id=17162 2006-06-21 Where a crime is committed against a police officer or firefighter, the punishments are usually increased. The requirement is that the assault on the police officer, otherwise known as peace officers, or firefighter must be performed while someone in that category is performing in the scope of their duties, and the person committing the assault must know that the person is in these categories and are performing their duties. http://www.free-articles-zone.com/article.php?id=17163 2006-06-21 Assault with a firearm is governed by California Penal Code Section 245. Assault with a firearm is an aggravated assault in which the defendant, with a firearm, threatens a person with death or serious bodily injury. An aggravated assault is an assault accompanied by circumstances that make it more severe, namely the use of a firearm, or the intent to commit another crime, or the intent to cause serious bodily harm. http://www.free-articles-zone.com/article.php?id=17164 2006-06-21 There are many means of assault with a deadly weapon other than firearms, which are generally defined as those weapons capable of producing great bodily injury. For example, stun guns, knives, bat, hammer, machetes, cars, motorcycles, and any other weapon capable of producing great bodily injury. Where someone has been charged with assault with a deadly weapon, the weapon will be confiscated and destroyed, pursuant to California Penal Code Section 245 (e). http://www.free-articles-zone.com/article.php?id=17165 2006-06-21 The crime of battery is governed by California Penal Code Sections 242 and 243. Battery is defined as “any willful and unlawful use of force or violence upon the person of another.” (PC 242) Battery is defined as “simple” battery and battery with serious injury. The punishments http://www.free-articles-zone.com/article.php?id=17166 2006-06-21 Hit and run is generally defined as a criminal act. It is the failure of a driver of a vehicle, involved in a collision, to stop and give their name, license number, and other information to the injured party, a witness, or law enforcement officer. http://www.free-articles-zone.com/article.php?id=17167 2006-06-21 Crimes of violence vary in terms of their classification and their punishment. They may be misdemeanors, felonies, or wobblers. Misdemeanors are those crimes which are only punishable by a fine and/or imprisonment in the county jail up to one year. Felonies are those crimes which are punishable by fines and/or imprisonment in the state prison. http://www.free-articles-zone.com/article.php?id=17168 2006-06-21 The felony crime of kidnapping is generally defined as the taking of a person against their will, or from the control of a parent or guardian through violence, force, threat, or intimidation. The act of kidnapping often involves other criminal offenses, such a ransom, carjacking, or robbery. It may also include a parent taking and hiding a child in violation of a court order. If the victim is injured, the punishment for the kidnapping increases. http://www.free-articles-zone.com/article.php?id=17169 2006-06-21 A person can be convicted of mayhem, assault with intent to commit mayhem, or aggravated mayhem. http://www.free-articles-zone.com/article.php?id=17170 2006-06-21 The term "white collar crime" is generally used to describe crimes involving cheating or dishonesty. Although there is no fixed definition of white collar crime, there are a number of nonviolent crimes typically grouped together as white collar crimes. These crimes typically are committed by professionals or entrepreneurs under the guise of legitimate business activity. http://www.free-articles-zone.com/article.php?id=17171 2006-06-21