 Category: Other Legal
Category: Legal >> Other Legal<< previous page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 next page >> by Darren Kavinoky 
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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.
by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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.
by Darren Kavinoky
[ 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). by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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: by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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). by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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: by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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: by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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): by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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.” by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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: by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. by Darren Kavinoky
[ 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. |
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