Happy Thanksgiving!

November 25th, 2010 Posted in Criminal Defense, DUI, Real Life, Traffic
Nov, 25 2010
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Most people believe that most DUI arrests and accidents happen on New Year’s Eve. However, New Year’s Eve actually runs a distant second: the holiday with the most accidents is actually Thanksgiving. In 2009, nearly 400 people died in Thanksgiving accidents in the U.S. over the five-day holiday and most of the accidents involved alcohol.

So play it safe and don’t take any chances out there this year–if you’ve been drinking, call a cab or sleep it off with a turkey induced coma. There are a lot of options for getting home without drinking. For example, in Northern California, Nevada, and Utah, AAA will tow you and your car home for free. Call 1-800-222-4357 (AAA-HELP) and tell the AAA operator, “I need a Tipsy Tow.”

If you live in another area, check to see if something similar is being offered in an effort to lower instances of drunk driving and DUI arrests.

Have a very happy and safe Thanksgiving!

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What’s the Difference Between a Frisk and a Search?

November 22nd, 2010 Posted in Criminal Defense, Real Life
Nov, 22 2010
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This is a common question and it goes along with another great question: “What’s the difference between reasonable suspicion and probable cause?” Let’s start with that question and then return to the first:

 

Reasonable suspicion: an objectively justifiable suspicion that is based on specific facts or circumstances and that justifies stopping and sometimes searching  a person thought to be involved in criminal activity at the time. A reasonable suspicion is more than a mere hunch.

Probable cause: a reasonable belief that a person has committed a crime. To determine whether probable cause exists, you ask whether facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime.

. . .

Once reasonable suspicion and probable cause make sense, you’re ready to unwrap the difference between a pat down or “frisk” (also known as a Terry Stop) and a full search.

Frisk: When a police officer has a reasonable suspicion that you have committed a crime, he may pat down your clothes to feel for weapons or drugs. If they find either, they may then use that evidence to form probable cause and arrest you. If they do not find weapons or drugs and you do not do anything else to give them probable cause, they must release you. The frisk came about from a 1968 U.S. Supreme Court case called Terry v. Ohio.

Search: By contrast, a search is far from a mere pat down. When a police officer has probable cause that you committed, are committing, or are about to commit a crime, they have the right to arrest you, detain you and search you. Anything that they find can be used against you as long as the probable cause was ultimately valid. Police are allowed to go to great lengths to search you, especially if they think you’re hiding drugs. There is a long line of cases saying cavity searches are A-OK.

If you have recently been arrested, your Constitutional rights against unlawful search and seizure may have been violated. If you have questions about search and seizure law, contact Beahm Law at 415-493-8677 anytime.

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Can I Expunge an Infraction in California?

November 15th, 2010 Posted in Criminal Defense
Nov, 15 2010
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California Infraction Expungement

If you scour the internet in search of an answer to this question, you will find that nearly everyone says: no. Due to a quirk in the law, only more serious offenses were eligible for the California expungement process.

For years that was true. It has been a vexing issue for people with infractions on their record that cannot get them removed. People constantly asked “Why can a felon get an expungement but I can’t get one for my infraction?”

But I have good news: that is no longer the case. Governor Schwarzenegger recently signed a new law, which goes into effect on January 1, 2011.

The new law authorizes the court to expunge a former conviction for a non-vehicular infraction. Specifically, it:

“Provides that a court can determine that a defendant convicted of a non-vehicular infraction should be granted expungement relief after the lapse of one year from the date of pronouncement of the judgment.”

So what does this mean? It means that the courts have opened up the right to an expungement in California to a much larger class of offenses. There are still exceptions, but going forward, most anyone convicted in California can file a motion for expungement after one year as long as they stay out of trouble.

I am already preparing expungements to file as soon as the new law goes into effect in January. If you have any questions about expunging an infraction in California, call my office anytime. I am happy to discuss your case without charge.

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What is a Suppression Hearing?

November 7th, 2010 Posted in Criminal Defense
Nov, 07 2010
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The suppression hearing can make or break your case. It is an opportunity to have the evidence against your thrown out. Sound good? There’s only one problem: the odds are stacked against you.

For example, perhaps you’ve heard of the rule against hearsay. Well, at the suppression hearing, hearsay is admissible. Generally, the rules of evidence do not apply, which is bad for you.

In order to get the keep evidence out at the suppression hearing, your attorney will argue that you were subject to an illegal search and seizure under the Fourth Amendment of the U.S. Constitution. Chances are that the prosecution will have a different perspective on the matter. Take a DUI suppression hearing, for example. If the police screwed up really bad and are not willing to lie to cover their tracks, you’re in luck. You might wind up with the evidence against you declared inadmissible, which makes convicting you of DUI impossible.

It’s often said that a DUI case is won or lost at the DUI suppression hearing. That isn’t necessarily always true, but it isn’t far from the truth. Even if the evidence comes in, it is still possible to win the case or make a plea deal. However, if the evidence is kept out due to an illegal search and seizure, it’s pretty much game over for the prosecution and you win the case right there.

But don’t count on having the evidence dismissed. The protection against illegal search and seizure of the Fourth Amendment doesn’t amount to much, especially outside your home. It’s full of exceptions, and chances are pretty good that whatever they seized from you is coming in as evidence.

. . .

This all serves as yet another reminder as to why you should remain silent when you’re arrested. Here’s why:

Let’s say that you are at your house and you have some stolen goods in the garage. For whatever reason the police come into your garage without a warrant, discover the stolen goods and arrest you. While you are at the station they give you the old: “If you cooperate with us, we’ll make it easier on you,” routine. So you go ahead and tell them, yes, you and your friends stole this stuff last week from the neighbor.

Well guess what? If you hadn’t said anything, that evidence was almost certainly going to be thrown out because the police violated your 4th Amendment rights against illegal search and seizure. But, you blew the whole thing when you confessed! Now they don’t need that evidence anymore, because your confession is all they need to sink you.

In sum, the suppression hearing is an important opportunity to have a judge look at the evidence against you and determine whether it is allowed at trial. It’s not something you want to bank on unless the police violated your rights. But even then it will only help if you are wise enough to invoke your right to remain silent. For more information on suppression hearings and how an attorney can protect your evidentiary rights, call Beahm Law at 415.493.8677.

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What Information Am I Required to Provide Police When Arrested?

November 2nd, 2010 Posted in Criminal Defense, Real Life, Tactics
Nov, 02 2010
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As attorneys, we do our best to provide clear, sound and non-contradictory advice to clients. One of the most commonly repeated (and constantly ignored) pieces of advice is: “Don’t talk to the police. Take advantage of your constitutional right to remain silent.”

 

However, in the real world, things can get awfully confusing out there. Let’s say your out and about on a Saturday night, misbehaving in some shape or form. The next thing you know, you’re face to face with the police, put in handcuffs and suddenly asked a bunch of questions. Can you literally just sit there with your mouth shut, and simply assert your right to remain silent while they shout at you and ask you questions?

For the most part, yes. And in fact the police must stop asking you questions once you assert your right to counsel and right to remain silent. But there are a few pieces of information you are required to provide the police, upon request, during an arrest. Withholding this information has virtually no effect, besides making the police angry, so upon request, go ahead and provide them with:

  • Your name
  • Your birth date
  • Your address
  • Your social security number

That’s it. Beyond that, simply say, “I assert my right to remain silent and my right to an attorney. Please do not ask me any more questions.” When you get your phone call, call us at 415.493.8677 and we’ll take it from there.

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