Drug induced DUIs

DUI cases don't always have to involve alcohol. If you are taking a drug that causes mental or physical impairment at the time of driving, you may be prosecuted for DUI.

It doesn't matter whether the drug is legal or illegal, prescribed or not. You can be convicted of driving under the influence of anything that impairs your ability to drive with the caution that a prudent driver would use.

There is no per se statute used in this case. Rather, prosecutors will move forward under Vehicle Code Section 23152 (a), which doesn't require a specific level of "intoxication".

A defense attorney, in many instances, can pick out weaknesses in the prosecution's case and pick apart the police's methods at the time of investigation and arrest.

Misdemeanors in LA county

Misdemeanors are punishable by a fine or a term in the county jail, or both. For most misdemeanors, that means up to six months in jail and up to $1,000.00 fine. Examples are petty theft, prostitution, and driving under the influence as a first offense.

For some misdemeanors, the maximum punishment is a year in county jail and a fine of $1,000.00. Examples of these are criminal threats, forgery, and driving under the influence as a second offense. For other misdemeanors, the maximum fine is greater than $1,000.00, such as battery ($2,000), domestic violence with injuries ($6,000) and vandalism ($50,000). Some misdemeanors include aminimum jail term, such as 48 hours for driving under the influence as a second offense, 15 days for domestic violence with injuries as a second offense, 45 days for prostitution as a second offense, and 90 days for brandishing a firearm. There is also sometimes a minimum fine, such as driving under the influence ($390).

Most misdemeanants, however, consent to be placed on summary or informal probation, with monitoring directly by the court. This means that the court suspends imposition of the statutory sentence and instead conditionally releases the defendant back into the community, upon specified conditions geared to rehabilitate and reform the defendant. During the term of probation, the judge requires the defendant to report back to court periodically, such as every ninety days for a progress report.

If the defendant completes all of the conditions of probation, then at the end of probation no statutory sentence will be imposed. If defendant fails to complete the conditions, then the judge may terminate probation and impose a sentence of jail and fine, up to the maximum allowed by law. If the defendant refuses the conditions of probation, then the judge also can sentence the defendant up to the maximum allowed by law.

General DUI punishment guide

First time offenders receive between three to five years of summary probation. This means that there are no probation officers to report to, but there must be absolutely no drinking and driving during this period.

Fines, including court-imposed penalty assessments can add up to between $1400 and $1800 on a first time offense. The defendant can usually pay over time depending on the judge.

Your drivers license will be suspended for six months, unless the DMV allows you to retain a restricted license that allows driving to and from work and school. If a DMV hearing is successful, this suspension might be lifted by the DMV. But the court will also not allow you to drive if you are convicted in the court case.

Depending on your Blood Alcohol Level, DUI classes may range from 12 to 45 hours.
The court is mandated to order 48 hours of jail time on a first time DUI, but this can be converted to Caltrans graffiti removal.

Second time offenders receive the same amount of summary probation as first time offenders.

But fines range from $1800 to $2800.

Your license will be suspended by the DMV for 2 years, but your lawyer can ask for a restricted license after one year of suspension.

You may also have to install an ignition interlock device.

DUI school will be mandated for 18 months.

For a second offense, 96 hours of jail time is required.

Third offenses bring forth even harsher penalties.

Summary probation for 3 to 5 years is a possibility, but so is formal probation. The latter requires reporting to a Probation Officer on a regular schedule.

Fines, again, range from $1800 to $2800.

The DMV may suspended your license for up to 3 years. The DMV may allow a restricted license.

There is 18 months of DUI school for a third offense.

Jail time is a required 120 days on a third offense. Some judges allow for this time to be converted to electronic monitoring or a live-in rehab program.

THIS MATERIAL IS ONLY INTENDED TO SERVE AS AN EDUCATION DEVICE. IT DOES NOT IMPLY OR ESTABLISH AN ATTORNY-CLIENT RELATIONSHIP NOR DOES IT SERVE AS LEGAL ADVICE.

Supreme Court ruling on death penalty for child rape. (Courtesy of Reuters)

Supreme Court strikes down death penalty for child rape
By James Vicini 1 hour, 59 minutes ago

WASHINGTON (Reuters) - The U.S. Supreme Court in a major capital punishment decision struck down on Wednesday the death penalty for child rape, its first decision in more than 30 years on whether a crime other than murder can be punished by execution.

The nation's highest court ruled by a 5-4 vote that the death penalty for the crime of raping a child violated the constitutional ban on cruel and unusual punishment.

Writing for the court majority, Justice Anthony Kennedy said the Constitution barred a state from imposing the death penalty for the rape of a child when the crime did not result, and was not intended to result, in the victim's death.

Kennedy concluded that capital punishment, based on current evolving standards, should be reserved for crimes that take the life of the victim.

The ruling was a victory for Patrick Kennedy, 43, of Louisiana, who challenged his death sentence after being convicted for raping his 8-year-old stepdaughter in 1998.

Of the more than 3,300 inmates on death row in America, Kennedy and another man convicted of child rape in Louisiana are the only ones who did not commit murder.

The Supreme Court last ruled on the death penalty and rape in 1977, when it outlawed executions in a case in which the victim was an adult woman. It declared the death penalty an excessive penalty for a rapist who does not take a human life.

That decision left open whether the death penalty can be imposed for child rape. The Louisiana law, adopted in 1995, allows the death penalty for those convicted of rape of a child under the age of 12. It was later amended to change the age to 13.

LAST EXECUTION FOR RAPE 44 YEARS AGO

Montana, Oklahoma, South Carolina and Texas have similar laws. The last execution in the United States for rape occurred 44 years ago.

Kennedy, in the court's majority opinion, declared the Louisiana law to be unconstitutional. He said a national consensus exists against capital punishment for the crime of child rape.

Kennedy, a moderate conservative who often casts the decisive vote on the closely divided court, was joined by the court's liberals -- Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The court's conservatives -- Chief Justice John Roberts and Justice Samuel Alito, both appointed by President George W. Bush, and Justices Antonin Scalia and Clarence Thomas -- dissented.

Alito criticized the court's decision.

He said it means the death penalty would be barred "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be."

Attorneys for the Louisiana man had said the death penalty for rape was allowed in only a handful of countries around the world.

The American Civil Liberties Union and the NAACP Legal Defense and Educational Fund had said a historical consensus existed against the death penalty for rape in the United States, except for Southern states willing in the past to execute blacks, especially those convicted of raping white women and children.

The ruling was the second major capital punishment decision this year.

The court in April upheld the three-drug cocktail used in most U.S. executions, rejecting the argument the commonly used lethal injection method should be struck down for inflicting needless pain and suffering. The ruling ended a temporary moratorium on executions in place since late September.

(Editing by Deborah Charles and Jackie Frank)

Article in the Daily News regrading Glendale train disaster case.

Courtesy of the Los Angeles Daily News:

Jury asked to decide if Metrolink defendant is liar bent on mass killing or suicidal addict

By Troy Anderson, Staff Writer

Was Juan Manuel Alvarez a pathological liar intent on mass murder? Or was he just "damaged goods" with a drug addiction and suicidal tendencies?

During closing arguments in his murder trial Thursday, the two sides tried to sway a jury tasked with choosing how responsible Alvarez was for the 2005 Metrolink train crash near Glendale that killed 11 people and injured 180.

"He will say whatever sounds good at the moment," John Monaghan, the case's lead prosecutor, told the Los Angeles Superior Court jury. "That's what a pathological liar does. He was threatening to kill his wife, his brother-in-law and others. He was threatening to kill people, stab people and shoot people."

Defense attorney Thomas Kielty painted a far different picture, saying his client was mentally ill, addicted to methamphetamines and sought to kill himself by driving his SUV onto the tracks while distraught over his estrangement from his wife and children.

"I think we can all agree that Mr. Alvarez is damaged goods," Kielty said. "You have a kid who was sodomized at age 4, beaten over and over again and tried to commit suicide at age 7."
The closing arguments, which will continue Monday, came after several weeks of testimony. The jury could get the case as early as Monday afternoon.

Alvarez, 29, of Compton, a traditional Aztec dancer whom prosecutors claimed might have been carrying out a ritual of Aztec human sacrifice, is charged with 11 counts of murder and one count of arson and train wrecking, along with special-circumstance allegations of multiple murder and train wrecking. If convicted, he could face the death penalty.

Testimony during trial

During the trial, his attorneys have attempted to demonstrate that he wanted to commit suicide, and the deaths and injuries of train passengers were an unintended consequence.

Alvarez testified that he poured gasoline over himself, took out a lighter, but then decided not to light himself on fire. He then drove onto the tracks in hopes of getting hit by the train. Once on the tracks, he decided not to commit suicide, but couldn't get his SUV off the tracks and tried to wave at the train to stop it.

In his closing argument, Monaghan said testimony given during the trial shows that Alvarez didn't pour the gasoline on himself, but on his SUV. People who came in close contact with Alvarez after the crash did not smell gasoline on his clothing, the prosecutor added.

Monaghan suggested that Alvarez, a welder, knew a 315-ton train hitting the SUV would create sparks, lighting the gasoline on fire, derailing the train and igniting a fiery crash.
"He knew exactly what he was doing when he went out there on those tracks," Monaghan said.
He also said experts testified that the parking brake on his SUV had been applied.
"That says a lot about his state of mind," he said. "He didn't want that Jeep going anywhere. I think you'll find that's a key in this case. He said he doused himself in gasoline to get out of murder and arson charges. `Oh, I was going to kill myself."'

Monaghan also noted that testimony was given that Alvarez had last used drugs a few days before the crash and wouldn't have been coming down at the time.

And while he was in jail, Monaghan said, Alvarez would act crazy when mental-health workers were nearby, banging his head and screaming.

But when they were gone, he would clean his cell and return to normal.
"This is all a big act," Monaghan said. "Mr. Alvarez knows how to turn it on and off."
Alvarez had a wife and two children at one point and was traveling and giving lectures at colleges and universities about Aztec dancing. But he used drugs, and his wife took out a restraining order against him, putting bars on their windows.

But in his closing argument, Kielty said Alvarez had no intention of killing anyone and could not have possibly foreseen that parking his SUV on the tracks would derail the train and kill and injure so many people.

Intent to kill self?

In the past several decades, Kielty said, testimony has been given at various trials that trains have crashed into vehicles 200,000 times in the nation and the only people who died were the 11 victims of the Glendale train derailment.

"To have arson, you have to have intent," Kielty said. "His only intent was to kill himself. His expectation was he would be smashed by the train, and he didn't think anyone else would be injured."

And if Alvarez truly intended to kill and injure people on the train, Kielty asked why a witness testified that he waited until the last minute to get out of the SUV before the train hit it.

"That's more consistent with trying to get the car off the tracks," Kielty said.
He also questioned why Alvarez didn't use his lighter to light the SUV on fire, rather than relying on sparks to ignite a fire.

"It doesn't make any sense he would use the car," Kielty said. "He had a lighter in the car."

Confronted by the police?

Be careful what you say to a police officer. Whatever you say can be used against you later. And whatever you say can give the police an excuse to arrest you. You must especially avoid using foul language against a police officer.

If you are stopped in your car, you must show your driver’s license and registration. But you do not have to answer questions after you are detained or arrested. You do not have to allow the police to search your person, your car, or your house before you are arrested. They might demand to search your car based on their own determination of probable cause. Do not stop them from doing this, but make clear that you are not giving consent to this. If the police say they have a search warrant, ask to see it.

The police can pat down your outer clothing if they think that you have a weapon. Don’t resist the pat down, but make clear to them that you don’t consent to any search beyond this.

If the police give you a ticket and you think you are innocent, sign it anyway. You can fight the charge in court when the time comes. By refusing to sign the ticket, you can give the police a very good excuse to arrest you.

If you are ultimately arrested, you have no duty to talk to the police. The police must give you a Miranda warning advising you of your rights before post-arrest questioning. Do not waive your rights at this point and do not say anything to the police except for giving your name and address. Avoid falling into the trap laid by a charming police office and do not try to explain the situation. Everything you say can be used against you in court and likely will be. Immediately demand to see a lawyer that can protect your constitutional rights.

Following these simple guidelines can avoid getting you in unnecessary trouble with the law and will safeguard the substantial protections that the Constitution gives us as American residents and citizens.

DA urges sanctions for prosecutors who withhold evidence
Sun May 4, 4:24 PM ET

courtesy of Associated Press

DALLAS - A district attorney whose office leads the nation in wrongful convictions overturned by DNA testing says prosecutors who intentionally withhold evidence from the defense should face criminal charges or other harsh sanctions.

Dallas County District Attorney Craig Watkins said he's considering a campaign to mandate disbarment of any prosecutor who doesn't reveal evidence that could help a defendant. The worst offenders might deserve prison time, he said.
"Something should be done," Watkins told The Dallas Morning News in an interview published in Sunday's editions. "If the harm is a great harm, yes, it should be criminalized."

Since 2001, DNA tests have formally exonerated 31 people in Texas, 17 of them in Dallas County, both figures the highest in the U.S.

The state has paid compensation in 45 wrongful conviction cases. At least 22 of them involved prosecutors withholding evidence from the defense, including 19 from the infamous drug case in the Panhandle town of Tulia that were based on the work of a discredited undercover investigator. The other three were in Dallas County.
James Curtis Giles, who was wrongly convicted in a 1982 gang rape after the victim incorrectly picked him from a photo lineup and prosecutors withheld the confession of a co-defendant, said harsh sanctions make sense.

"A crime is a crime," Giles said. "We've got to set an example — prison time or barred from practicing law."

There's no law in Texas calling for criminal charges for prosecutors who intentionally withhold evidence. But the Innocence Project of Texas, a nonprofit legal clinic that worked to free many of the Dallas County exonerees, plans to push for it in the session that starts in January.
Michelle Moore, a board member of the Innocence Project and a Dallas County public defender, speculated chances of legislative success were "slim to none." State prosecutors are a powerful lobby in Austin.

However, state Sen. Rodney Ellis, chief author of the Texas law that created the compensation system for wrongfully convicted inmates, said he would support criminalization.
"What better way to get to the truth?" said Ellis, who plans to chair a summit on wrongful convictions Thursday in Austin. "Why wouldn't we have a criminal statute to keep prosecutors from lying when they know the truth?"

The State Bar of Texas oversees the conduct of lawyers, but it does not prosecute crimes and, legal experts say, rarely sanctions prosecutors for misconduct.
Without strong action from the state bar, Watkins said he would fire any prosecutor who intentionally withholds evidence. Two prosecutors accused of such violations already have resigned.