What Do I Do When the Police Are Knocking At My Door?

December 31st, 2010 Posted in Criminal Defense, Real Life
Dec, 31 2010
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I’m guessing you ask because you’d rather not invite them inside for tea?

In that case, there are eight steps that you can take that will help when the police are knocking at your door, assuming they don’t already have a warrant or probable cause to enter. If they have that, the game’s already over, sport.

Here is a lesson on what not to do, courtesy of the late Professor Charles Whitebread. He shared a story about his time as a criminal defense attorney. He had a client that greeted the police when they arrived at his house by saying, “You must be here about that Buick I stole!” (The police were there to ask for a donation to their local charity.)

Hopefully you can do better than that.

Here is the reality of the situation: there is only so much that you can do. If the police are intent on coming inside, you can’t physically stop them. Don’t try. But if the police are knocking because they are requesting to speak with you, as opposed to kicking the door down, it’s because they know that they can’t come inside without your permission. (Don’t give it to them.)

So keep it simple:

  1. Check your appearance. Hopefully you don’t look like Gary Busey.
  2. Open the door, step partially out and close the door partially behind you.
  3. Confirm to the police who you are and listen to what they say. Be polite, but don’t be a boot licker.
  4. If they ask you to do something like turn down your stereo, say that you will.
  5. If they ask you to answer questions about any criminal matters, tell them that you could never discuss a criminal matter without your lawyer present.
  6. If they ask to come inside, tell them that you cannot allow that without a warrant.
  7. Regardless of what they say or ask you to do, tell them that you understand that they are just doing their jobs, but that you are busy and would like to return inside.
  8. Ask if you are free to go. Assuming they say yes, say goodbye, go inside and gently lock the door behind you. (Don’t be an ass and slam the door.)

Assuming you can follow these directions, you will avoid giving away the keys to your castle.

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What is a California Declaration of Factual Innocence?

December 15th, 2010 Posted in Criminal Defense
Dec, 15 2010
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In other words, if you are falsely accused of a crime, how do you get it off your record?

Sometimes completely innocent people are arrested and the charges are later dropped. But even when charges are dismissed, arrest records linger. When a background check is run, the arrest record can cost the wrongly accused a job or otherwise interfere with their life in a variety of ways.

Under California Penal Code Section 851.8, an attorney can make a motion for a declaration of factual innocence and an order for the sealing and destruction of arrest records. Such a motion will be granted if the trial court finds “that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.”

An 851.8 motion differs from a motion for expungement. In the case of an expungement, relief is granted despite the fact that a person was convicted of a crime. For a finding of factual innocence, relief is granted because the person should have never been arrested in the first place.

The arrestee bears the preliminary burden of establishing that no reasonable cause exists to believe the arrestee committed the offenses. Whether “no reasonable cause existed” is an objective question measured by an external standard–whether a person of ordinary care and prudence would believe or conscientiously entertain an honest and strong suspicion that the person arrested is guilty of the crimes charged.

To satisfy this burden of proof, the defendant is entitled to present evidence, including live testimony by percipient witnesses.  Facts disclosed subsequent to arrest may establish factual innocence.

A petition for declaration of factual innocence and destruction of arrest records is something that you must not delay in filing. Unless an exception is granted, an 851.8 motion can only be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. The two year restriction may be waived, but only upon a showing of good cause by the petitioner and in the absence of prejudice.

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Can You Challenge Breathalyzer Accuracy?

December 2nd, 2010 Posted in Criminal Defense
Dec, 02 2010
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Breathalyzer Accuracy may be challenged in CaliforniaYou probably will be *shocked* to hear that the sobriety test used by the police to establish your blood alcohol level is not perfect. Of course it would make life much easier for the prosecution if the defense could not question the reliability of the sobriety test. In some states, the defense is barred from challenging Breathalyzer accuracy. Fortunately California is not one of those states.

In California, a DUI suspect has a choice between a blood test or a breath test. When it comes to breath tests, the formula used is not accurate for everyone, and varies depending upon a host of factors including: gender, temperature and atmospheric pressure. At least that’s what the pesky scientists say.

 

“Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing,” Justice Carol A. Corrigan wrote in a 2009 decision.

If the prosecution wants to put up the results of a breath test device as evidence against you, you are entitled to challenge the accuracy of the sobriety test. The California Supreme Court agrees.

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