Off topic: Or is it? Trains... Yes, Trains!

Having recently traveled in Germany (a country with a wonderfully developed public transportation network; including an excellent train network), and having spent time with my 4 year old boy (who LOVES trains), I am convinced that trains are the answer to much of what ails us as a society. I'm dead serious. We are a society run amock with cars. Cars are an extremely inefficient, polluting and dangerous way to get around compared to trains. I say this at the risk (admittedly astronomically small) that I may suffer economic losses associated with a massive societal transformation toward mass transit over personal automobiles. Why? Well, because a good deal of my earnings have to do with driving; mostly driving under the influence of intoxicants; principally alcohol. If mass transit were competent to get people home after a night out where they may have tipped at least one too many, then I would suffer a serious economic hit. However, I would be happy to if it meant that our society were to do what Western Europe and parts of Asia have done already; pour money into public transportation and leave our domestic auto industry to either adapt themselves to that, or go bankrupt.
The benefits of a conversion to mass transit over automobiles would be limitless. Less dependence on foreign oil (clearly), less air pollution (clearly), fewer traffic fatalities (clearly), incerased productivity (particularly in today's society where work can get done with a PDA or laptop; not while driving an automobile), and, perhaps, better relations among divergent economic and ethnic groups (as is seen in large cities) due to the fact that people from all walks of life sit and stand side by side, as equals, in close quarters on trains and buses instead of, as here in California, whizzing by one another in their cocoons, never to share space, or a conversation, with someone who is not just like them. What's the downside? Those who love cars and driving would still have the opportunity to do so, in fact the roads would be less congested. Support all bond measures and politicians that move us, and our public funds, in favor of mass transit. We'll be better for it.

Absolutely BRILLIANT planning!

I've got a GREAT idea! Let's cancel our practice of having rows and rows of port-a-potties at the biggest drinking-fest this side of Mardi Gras! Yes, Santa Barbara County authorities have made the stunning choice of not having port-a-potties available for the 20,000+ Halloween revelers that will be milling around Isla Vista, drinking copious amounts of alcoholic beverages, starting tomorrow night. Hmmmm.... What might this lead to? Well, in addition to a lot of very full bladders, it will lead to public urination of epic proportions. And, because some will find relieving themselves on the street, in front of hundreds of spectators, an unacceptable activity, there will be those that will try to do so in private, as in on private property, without permission, and not necessarily in a bathroom. I can imagine fights breaking out over people who have crossed various boundary lines in order to relieve themselves.

This is my foundational post for a forthcoming "I told you so" post next Monday or Tuesday after I hear about how an already out of control event became even more so given all the disorder created by the population of full-bladdered people with no way to correct the problem in a civilized manner.

Absolutely brilliant!

Does "Parental Notification" violate privacy?

UCSB is the only UC campus, but not the only UC, that endeavors to notify parents when a student has gotten in trouble with the police for drinking or doing drugs. More specifically when a UCSB student is either cited or arrested for any alcohol or drug related offense in Isla Vista (not the UCSB campus, interestingly) two letters will be mailed. The first will go the student expressing concern and making mention of counseling resources available. Then, about a week or two later, a second letter will be mailed to the "Permanent Address" of the student informing the presumed Parent/Guardian living there of the fact of the arrest or citation. This, of course, adds a whole other dimension to getting busted. For those of you who try to keep secrets from your parents, take notice that, when you get busted, not only must you be accountable to the Court, but in many cases you might have some explaining to do to your parent as well. Many students have expressed grievances about this "Big Brother" policy in effect, remarking that their misfortunes while out partying are not their parents' business nor concern. Naturally, parents and University officials feel differently. It could very well be that this program serves as a deterrent to the undesirable conduct. Binge drinking and drinking under age can have devastating consequences (separate from, and more serious than, an arrest or citation). It is NOT a violation of your privacy, legally speaking, as the information reported is public record. The University is certainly behaving in an officious way, but it does not amount to an actionable Privacy rights violation where the reported information is both part of the public record and true. Sorry.

To those who want to keep their legal misfortunes private from their parents, please consider that abuse of alcohol and drugs, especially when under age, is a destructive activity. Having said that, as a staunch civil libertarian, and one who generally disapproves of "Big Brother" tactics, I will say this: If you don't want your parents to get the "memo" you can ask to have the "Permanent Address" in your school file removed and/or changed. As an adult (18 years and older), regardless of who is paying your tuition, room and board, etc., the University has no right to force to you to disclose a permanent address, nor the contact information of your parents. Food for thought. My disclaimer, as always, is that the aforementioned alternative to "Big Brother" is that, if you want to be treated as an adult, act like one. Drink responsibly and don't break the law.

Mark your calendar, Isla Vistans!

This year the UCSB Associated Students' Legal Resource Center will host its annual workshop at Embarcadero Hall for those interested in learning how to have a fun, yet safe and arrest free Halloween celebration in Isla Vista this year. The event will take place on October 28, 2008, at 7 p.m. Last year myself and Santa Barbara County Deputy Sheriff Miles Davies shared the stage where we voiced our surprisingly similar persectives on this subject matter with a bright and inquistive audience of prospective Halloween revelers. Also in attendance were attorneys Robin Unander and David Andreasen of UCSB's Legal Resource Center. I heard that not a single one of the attendees got arrested last Halloween; thanks to us. Actually, I have no idea if that's true...

This year the event will include a Halloween costume contest. Prizes will be awarded to the best and scariest costumes as well as to the costume most likely to get you arrested. And, every legitimate contest entrant will receive a gift from the ivlawyer.com store! So, don't miss this great opportunity to show off your costume in a well lit environment of, mostly, sober people.

It promises to be the best annual workshop yet. See you there!

Open letter to Sheriff Bill Brown

Dear Sheriff Brown:

Apart from my concern that more jail space leads to stiffer penalties for petty crime, I congratulate you for getting the job done in terms of securing a $56.3 million grant to construct a new North County Jail. You are keeping your campaign promise, and are doing well to eventually reduce the health and safety hazards presented by having too few beds for the current inmate population at the Santa Barbara County Jail in Goleta.

I will remind you that part of the County Booard of Supervisors' willingness to approve of your plan was based upon your representations that there would be money spent on social programs to address substance abuse and mental illness, the two biggest factors leading to incarceration.

Although it was never promised as part of the plan, I strongly believe that the County of Santa Barbara should install a sobering center in Isla Vista pursuant to Penal Code section 647(g). It is clearly the State's policy to civilly commit individuals who are found to be unsafely inebriated in public, and not to criminalize them. Isla Vista, which claims a huge share of all public intoxication arrests, needs to afford law enforcement the option of a civil commitment. Until that happens, I would urge your agency to follow the spirit of the law (647(g)), by releasing those who are brought to the County Jail on a lone charge of public intoxication pursuant to Penal Code section 849(b), which means that they will not face prosecution. This, in effect, makes the commitment civil, rather than criminal.

Thanks to the MANY who have made our roads safer.

Traffic fatalities are at an all time low. That's great news. I am grateful for the efforts of those who have worked hard to make our roads safer and, yes, counted among them are the men and women of law enforcement. But, let's not exaggerate their contributions, especially when doing so tends to suggest that more aggressive enforcement of traffic laws is the one and only solution to the insurmountable problem presented by the inherent dangerousness of millions of large one to two ton vessels of steel and glass whooshing by each other at high rates of speed with soft-shelled humans inside. Keep in mind that more aggressive enforcement of laws leads us further and further into a police state where our privacy rapidly erodes. Losing sight of, and otherwise foresaking, the most cherished values of this great land is an insidious problem that rivals traffic fatalities. The idea that, in the name of further reducing traffic fatalities, we should look toward aggressive enforcement of traffic laws and checkpoints as the only solution to the problem of traffic fatalities is a tragedy unto itself.

Yes, law enforcement officers face risks and are paid relatively little for the challenging and vital nature of their work. No question about it. However, let's not forget the countless others who work hard to reduce traffic fatalities. A spokesperson for the CHP, Daniel Barba, perhaps without intending to do so, completely disregarded the important efforts of the auto industry for making safer cars, the traffic engineers for designing safer roads, the caltrans workers for building and clearing those roads, the EMS personnel for providing triage, the Firefighters for their vital work, the members of the medical profession for their contributions, the tow truck drivers for clearing disabled vehicles, and the many common carriers (such as cab drivers) for offering alternatives to driving. All of these folks deserve some of the credit for reduced traffic fatalties, if not a good deal of it. Nevertheless, the CHP seems quite willing to claim all of the credit where it states that seatbelt usage, speeding, and DUI are THE 3 leading factors resulting in traffic fatalities, and that they and they alone have an impact on the reduced instances of these dangerous behaviors. It is without question that law enforcement serves to deter dangerous behaviors by their ongoing enforcement efforts, and their visibility on the roadways. Their education campaigns are likely beneficial as well. And it may very well be that more of these activities will further reduce traffic fatalities. What concerns me, and hopefully concerns you, is that mindless support of aggressive law enforcement diminishes our freedom; the very freedom that hundreds of thousands of Americans have died on the battlefield to defend.

100 College Presidents Call for Lowering the Drinking Age

Now this I can suppport. I completely agree with 100 College and University presidents who are now calling for the legal drinking age to be lowered. Don't laugh. It makes perfect sense. Among the points that should be considered are:

1. If people are considered mature enough to go to war to kill and die for their country, they are definitely mature enough to drink alcohol responsibly.
2. Restrictive rules on drinking encourage clandestine and binge drinking (which are the most dangerous kinds of drinking).
3. The widespread use of fake ID's among college students erodes respect for the law.
4. The high numbers of arrests of people for ordinary college behavior makes the system appear corrupt and often hypocritical which, again, erodes respect for the law.

Anyone who has been to college understands that the 21 and over law does not curtail drinking one iota among the 18-20 year old group. Drinking among college students is, reportedly, on the rise. Most people consider it a legal taboo to drink underage, not a social one. It is time for an intelligent debate on this failure of public policy.

DUI Cops: Sung Heroes

I would extend a hearty congratulations to SBPD Officer Christina Ortega for arresting more people for DUI in Santa Barbara County than any other cop, except that some of those people are my clients. I don't think they would appreciate my doing so. I do, however, think we need DUI laws and police officers to enforce them. We also need courts and prosecutors to dole out pronouncements of guilt and punishment. We need a lot of things to combat the scourge of drinking and driving that burdens our highways. For instance, we need taxis and other forms of public transportation. We are a society too dependent on cars and, as is vogue to point out, foreign oil. But let's give props to taxi drivers. I can't remember ever hearing about a taxi driver getting any reward whatsoever. They don't get fancy uniforms, badges, pins, ribbons, placques, and other forms of praise. But why not? Don't they prevent DUI too? Of course they do. As one cabbie recently pointed out in an article in the Santa Barbara Independent about the various challenges facing the taxi industry in Santa Barbara, if there were no cab drivers the National Guard would be needed to come in and clean up the mess caused by drunk drivers (or words to that effect). I don't doubt it. Yet on nights when SBPD does not have a DUI enforcer on the beat, we don't see anything close to the carnage that the cabbie quoted in the article described. So, I know why cops get all the praise and cabbies get none: Being a cop is so dangerous and being a cabbie isn't. Right? Wrong. More taxi drivers are killed in the line of duty than cops. The US Bureau of Labor Statistics has consistently counted taxi driving as one of the top ten most dangerous jobs. Law enforcement isn't even in the top ten.

I hereby congratulate the cabbies who keep our streets safe every night from drunk drivers. And, to the fine men and women in yellow, let's be careful out there!

True versus False: A False Dilemma

I encounter negative perceptions of criminal defense lawyers frequently. Of course, I am resigned to accept them, and I suffer no illusion that I will bring about any sea change in this regard. However, I will observe that one of the root causes of these negative perceptions is the belief that we criminal defense lawyers, as a matter of necessity, encourage our clients to lie to the court, or that we lie to the court on their behalf. This is a tragic misunderstanding of a criminal defense lawyer's vital role. The minority of criminal defense lawyers that commit these abominations should be disbarred, and they sometimes are. Setting the ethical considerations aside for a moment, lying to the court is not "the" solution to the problem. This belief, again, reflects a major misunderstanding.

A recent article in the LA Times exposed a troubling thing about traffic court which is that people who are not represented by lawyers tend to self-incriminate (either by telling the truth or by saying things which make themselves appear guilty regardless of the truth of the matter) under a mistaken belief that they are actually helping themselves. A common way they do so is by pleading "guilty with an explanation". And, what might not be so well understood is that the court has far less interest in the "explanation" part than it does in the "guilty" part. The famous Far Side cartoon depicting the difference between dogs and cats where the dog hears "fido, blah blah blah" and the cat hears just "blah blah blah blah" illustrates the point here. Analogously, the judge hears "guilty, blah blah blah". Occasionally an "explanation" is so compelling and, more importantly, so believable, that it might differentiate itself from the pack of likely explanations. Judges hear it all and they hear it all day long. The "explanations" don't vary that much. And what's really telling is that the compelling and believable "explanation" that worked for the last guy who got his fine substantially reduced, or his case thrown out, is often repeated with little editing by the next several folks.

Many plead guilty with an explanation with the consciousness that saying they are "guilty" amounts to self-incrimination. Others seem to behave as though they are talking to a friend, and if they present a sympathetic story, their loving and forgiving "friend" in the black robe is going to let it go this time. After all, to err is human, to forgive is divine. And aren't people in robes, by the way, supposed to be divine.

It is understood that the Catholic faith puts emphasis on the cleansing aspect of a confession. It is, in a moral sense, important to restore what you have stolen from justice by "taking responsibility". I am down with that. However, the big fallacy is that the government (in the form of a courthouse) affords the only opportunity to do so. You can, and probably do, feel badly about what you have done wrong. If you don't, you are probably a sociopath, or are indulging yourself in some kind of denial, at least. There are numerous ways you can "pay it back". You can feel bad, which is a form of self-imposed punishment; but maybe not altogether satisfying to society nor those whom you have harmed. You can say "sorry" directly to the person(s) you have injured and offer to pay for or otherwise correct the problem you have caused for them (if it is feasible to do so). You can confess to a member of your clergy, your therapist, your lawyer, etc. You can devote your time and money to good causes. You can swear to yourself to never do anything of the kind again and follow through. Clearly, there are numerous ways to accept responsibility for wrongdoing that have nothing to do with a court of law. To say otherwise is to assume that the population consists of mere children who need to be spanked by the government before they will understand that what they did was wrong. To say otherwise is to assume that if you do suffer punishment for your wrongdoing in court that you have made it all okay. Of course both of these assumptions are faulty. The government is not the sole arbiter of morality, and the fact is, the government is incompetent to restore justice in many cases where a wrong has been committed in spite of its laudable, and necessary, effort to do so.

I do not call for the dissolution of the government, nor the judiciary, but I would call upon my fellow human beings to have a more balanced view of what is really going on in court. The defendants in court are neither all "crooks" that deserve stiff punishments, nor are they all "saints" who are going to be recognized as such and given a pass this time by a judge with an impeccable intuition. Most of the defendants are every day people who have made one or more bad choices. The court does not behave as their friend. In our adversarial system a court of law is a place where litigants who let their guard down are routinely taken advantage of by the other side. A corrollary to this concept is the right every criminal defendant enjoys: the right against self-incrimination; or simply put, that the prosecution must be able to prove you guilty. You are under no obligation to prove yourself guilty, and it is generally unwise to do so. If there is any proof problem whatsoever, you are advised to plead "not guilty" and to remain silent unless and until it becomes very obvious that you are going to be found guilty anyway, or that there is something to gain by self-incriminating (e.g., a favorable plea bargain).

A letter to the editor in today's Times criticized the above-linked article because it seemed to suggest, to the letter writer, that defendants should lie to the court. After all, lying is THE alternative to telling the truth, isn't it? I hope, by now, you can see that that is a false dilemma. Pleading not guilty is not lying. Remaining silent is not lying. Causing the prosecution to do their job, which is to prove you guilty, is not lying. Get it?

Bill of Rights on the Table

The U.S. Supreme Court in District of Columbia v. Heller just held a D.C. law banning handguns violative of the Second Amendment to the U.S. Constitution. For the first time the Supreme Court struck down a law prohibiting firearms on Second Amendment grounds. The NRA is celebrating and so should the broader set of civil libertarians. This is not to say that there is anything particularly positive about the surge in handgun purchase and possession that this case will bring about. More guns means more shooting. More shooting means more death and maiming. Deaths and maimings are not generally cause for celebration. Justice Scalia, however, reasoned, essentially, that the clear (and "enshrined") language of the Second Amendment necessarily takes certain policy considerations off the table. In other words, arguing that a law banning handguns furthers a positive policy agenda (because it saves lives) is not going to compel the Supreme Court to ignore the plain language set forth in the Bill of Rights.

So, here's what I take from that: Unreasonable warrantless searches and seizures, coerced confessions, deprivations of procedural protections, inflictions of cruel and unusual punishment, restraints on free speech, interferances with the free exercise of religion, establishing an official religion, and myriad other deprivations of civil liberties by the government cannot, by Scalia's logic, be justified on the ground that they may further a positive policy agenda. In light of Heller I would now suggest a re-examination of the landmark U.S. Supreme Court case of Michigan v. Sitz, in particular. Why? Because the Court all but ignored the plain language of the Fourth Amendment to allow law enforcement to conduct systematic warrantless searches and seizures, in the shape of DUI checkpoints, to promote the positive policy agenda of preventing drunk driving. To argue that checkpoints are "reasonable" in a free society is to ignore a simple distinction: The other acknowledged exceptions to the warrant requirement (exigency, Terry, Leon, reasonable suspicion, etc.) do not deliberately and systematically cause the seizure and search of large swaths of law-abiding people in the name of crime prevention. The choice to allow these warrantless searches is done clearly in the name of a positive policy agenda which, as Scalia, would have it, should be "off the table".

Social Host Ordinance

Santa Barbara County is moving forward with an ordinance designed to "crackdown" and "get tough" on underage drinking and binge drinking. Of course the neo-prohibitionists among us see nothing wrong with giving the police more tools to attack the problem; and, indeed, there is little if any social utility produced by people under 18 getting trashed. However, I can't recall ever hearing a police officer say, "you know, I'm just powerless to stop underage drinking". Having been in the the thick of court cases surrounding this topic for many years, I can tell you that the Fourth Amendment plays a minimal role in deterring overly aggressive conduct of law enforcement agents. In Isla Vista, for example, there are many instances of police entering parties where they were not invited, and making arrests, issuing cites, seizing kegs, dumping out bottles of booze, and sending the invited guests on their way. It is plain that social ordinances are desired because they would allow police officers to enter any dwelling where a party is taking place where they reasonably suspect a minor is present without a warrant.

Avoid Jury Service At Your Own Peril

KEYT just ran a story alerting the public that the Santa Barbara Superior Court has just begun to crack down on people who scoff at jury duty even before they show up. Specifically, the Court is seeking to hold people who have failed to respond to postcards ordering them to call in for jury duty in contempt. The fine, depending on the circumstances, may be as much as $350. This young man, above, was interviewed and was asked what he thinks about this. His answer was that it was "unfair" because "it seems the Government is trying to weasel money out of people". I couldn't disagree more. The Government may, in some circumstances, be trying to weasel money from people, but not here. The Government is trying to get people, all people, to take jury service seriously and to show up and participate. The jury system is, by no means, a for-profit enterprise. It is, in fact, a very costly system which our nation's founders decided was a necessary check on Government power, and boy did they get it right. Even many prosecutors, who are greatly inconvenienced by juries, believe in the current system. Those that are accused of crime and civil litigants of many stripes are often thankful that they have a Constitutionally protected right to have the facts and/or dollar value of their case decided by a jury of their peers rather than by a judge who they may properly believe is in some small way beholden to their more politically powerful opponent.
Long live the jury system!

Never Drink (and Drive) and Dial!

Common sense has it that driving with a cell phone pressed to your ear is a dangerous activity. At last Senate Bills 1613 and 33 have arrived. Well, almost. As of July 1, 2008, you MUST either abstain from cell phone use while driving (gasp!) or contribute to the soaring profits of the makers of Bluetooth compatible devices. And, if you are under 18, you must refrain from cell phone use, while driving, altogether. However, driving while working to establish and maintain a link between your Bluetooth device and your cell phone, which is more of a distraction than holding the phone to your ear after pressing the speed dial button, is still legal (if not encouraged) by these new laws. Let's hope that this predictable, "Oops! I forgot to locate and activate my Bluetooth device" sensation (which I have already experienced a number of times while driving), does not result in more accidents. The best idea, of course, is to pull over and figure this out. This remains so in spite of the enduring legality of the act of hunting through your car's center console in order fidget with little buttons while driving.

I will here issue my final warning that this new law is going cause many traffic stops. After all, this is one of the easiest law violations for the police to identify and I predict that it will cause a surge in the number of traffic stops and the myriad arrests that flow from them (such as DUI's, Driving without license, etc.)

Off Topic: Get Ready for the 2008 Bud Bowl!

I am in a complete snit today thinking about how the corporate owned media is going to manipulate the public day in and day out for the next 5 months. The media giants are looking forward to record profits with every reason to expect that we will all be glued to our televisions while we try to get a sense of who is ahead in the race for the Whitehouse. There will be this opinion poll and that opinion poll, and the endless bantering and bickering among pundits. Presently it is all about whether Hillary is damaging the party by not endorsing Barack; as if this is a real concern that will prevail into November. The truth is, it will blow over. Those very few that are so disheartened about Hillary's defeat, and so much so that they say they are unwilling to vote for Barack (who, by the way, never said anything unfair toward Hillary in spite of being invited to do so repeatedly by the media), will either get over themselves, or they won't. Even if the media keeps fanning the flames of this so-called "issue", it won't make a difference in the outcome of the election. Yes, 18 million votes were cast for Hillary in the primaries. However, it is a complete fiction that those 18 million voters are not willing to vote for Barack unless Hillary "green-lights" it. Some of those people have already abandoned Hillary; and, in fact, they all should now that Barack is the presumptive nominee, regardless of what Hillary thinks. That's politics and it's nothing new. There are winners and losers, and Hillary is the loser; plain and simple. Hillary must accept that, much the way Al Gore did once the Supreme Court had spoken on whether the recount should continue in Florida. When it is clearly over, it is time to concede. That is called being a gracious loser, and Hillary is coming dangerously close to being a sore loser, if she hasn't already crossed that line.

If it is really about policy over personality, and what direction the country should head post-W, then any Hillary supporter would have to vote for Obama. Otherwise we could legitimately question their motives in voting for Hillary in the first place. After all, the major policy positions of Hillary and Barack have always been identical.

But, regardless, there will be a perceived neck and neck horse race (i.e., Obama's up, McCain is down and vice versa), and it's a big lie. Why? Because of one simple point:

If you don't already know who you would vote for come November (Obama or McCain), you are an imbecile. Sorry, but that's just true.

If you say you are undecided, and are not an imbecile, you are an attention-grabbing liar, who wants to be catered to and courted by the media and the two campaigns. They will sit down with you at the "kitchen table", interview you, invite you to participate in focus groups and bake you cookies, while you continue to fake that you are not an imbecile and/or undecided. Let's face it, the two candidates could not be more different on any scale you choose. This is not in fact the "bud bowl" as the candidates are way more different from each other than are any two bottles of beer. However, the analogy still works because the corporate owned media will prove that the public can be manipulated into believing that there really is a "decision" to be made that hasn't been made already. Oh, and just be sure to stay tuned through the commercials.

Pleading Not Guilty

The effect of one man and, more precisely, one man's wealth and fame on popular perceptions of the American brand of criminal justice is immeasurable. Of course I am referring to the original O.J. Simpson case. So many people who watched the case unfold more than 10 years ago feel that they learned one or more things about how the system functions, or malfunctions... The "lesson" cited most often is that guilty people sometimes go free; particulary wealthy guilty people.

I recall OJ making his first appearance on homicide charges where he declared that he was "Absolutely, positively, 100 percent, not guilty". I don't know who counseled him to modify the plea of "not guilty" but, if anyone did, it was more likely a publicist than a lawyer. "Not guilty" is one of only six permissible pleas to one or more criminal charges in California. Others are: guilty, nolo contendere, prior conviction, once in jeopardy and not guilty by reason of insanity. There is no legally cognizable plea of "Absolutely, not guilty" much less "Absolutely, Positively, 100 percent, not guilty". In all likelihood, OJ said it with so much emphasis because he knew the whole world of mostly non-lawyers was watching, and there is something about saying "not guilty" that just sounds, well, guilty.

The truth is, any time someone sets foot in a courtroom, as a criminal defendant, nearly every spectator and participant assumes that there must be some truth to the charge(s), otherwise the person would not be charged. So, saying "not guilty", however emphatic, lacks the persuasive force it would otherwise have. If we, as a society, weren't already conditioned to believe that nearly everyone charged is guilty, then we might actually listen with interest to what the plea is. What is not as widely understood is that nearly everyone who is criminally charged pleads "not guilty" - or at least authorizes an attorney to say it for them - at the beginning of the case. And there is a reason for this. Saying the words "not guilty" is the only legally recognized way to express the four most common states of mind held by a charged individual, which are: (1) "I am innocent",(2) "though I might be guilty, the state can't prove me guilty", (3)"I am guilty of some, but not all of the charges", or (4) "I am guilty as charged but am not ready to make a deal with the prosecutor right now". The lack of readiness may be because the charged individual wants to know more about the strength of the case against him and/or what the punishment will be, and whether any deal offered as of yet is the best deal he can get. So, "not guilty" is not a lie in cases where the person is actually guilty.

In traffic court you will hear people say they are "guilty with an explanation". These are, however, guilty pleas where the court is allowing the individual to blend their guilty plea with their argument for a lenient sentence. Such "pleas" are not permitted in non-traffic criminal court, and never result in anything other than a conviction of the charged offense.

To make matters more complex, there is a type of plea that permits an assertion of innocence along with a plea of nolo contendere. Such pleas in California are made pursuant to a case called the People v. West (1970) 3 Cal.3d 595. A "West plea" is most likely to stand for a plea which "does not constitute an express admission of guilt but only a consent to be punished as if guilty." Plea bargaining, which is often analogized with sausage-making, leads to many fictions and, at the fringes, injustices both large and small. A reality of our, and perhaps any, justice system is that people occasionally plead guilty to charges they didn't commit, and plead guilty to having done something criminal even where they haven't done anything criminal. This is what comes about by way of the immense legal leverage the legislature, and the voting public, has given to our prosecutors. It happens that people who are innocent sometimes agree to plead to a charge in order to eliminate a risk of a particular undesirable outcome (e.g., lengthy incarceration).

The most useful way to think about a criminal case, if you are the person charged, is that it is, at its core, a business transaction. The state wants one or more things from you and what you want in return is fairness. In many cases, the only way to achieve fairness in return for your eventual plea of "guilty" or "nolo contendere" is to, at first, plead "Not Guilty".

California's 'Nanny' Legislature

In a previous post, I suggested that every time a new law is enacted, we should unenact another one. The California State Legislature doesn't read all of my posts, apparently. Nine new laws regulating driving are being proposed. My personal not-so-favorite is Senate Bill 1361, introduced by Louis Correa, D-Santa Ana (Orange County!? Who would have thought?!). The Bill would require those convicted of a dui (just one dui) to install an ignition interlock device in their vehicles. In this unique circumstance, I'm going to side with the Republican, Assemblyman Bob Huff (R-Diamond Bar) who said, concerning another related Bill, "We're a state that gets around by car. We are a car culture...Couple that with legislators who think government is the answer to everything, and you end up with the perfect storm". Amen. This bill, and others, like the one that prohibits driving with a live animal in your lap (no joke), are an example of the government run amock. Incidentally, driving with dead animals in your lap is going to remain legal; not to worry.

Cars are dangerous objects, weighing mostly between one and two tons, traveling through space at often unreasonably fast speeds; within inches of (and sometimes containing) our children. And there are millions of these objects all around us at all times. People get hurt. People die. It's tragic. However, lets look at the core issue: We shaped a society around cars, and we need, therefore, to confront the basic truth that there are going to be car accidents no matter what. So, what's to be done? You mean besides funding public transportation (i.e., the only change that is going to make a dent in the numbers of accidents)? I'm not sure. But what I am not in favor of is enacting law after law on false promises that doing so will make us any safer. The quote of Benjamin Disraeli, "lies, damned lies, and statistics", came to mind when I read that the CHP reported that 128 accidents in the state last year were caused, in part, by inattention due to an animal in a vehicle. Let's see, how many acts of driving were there last year in the State of California? (33 million (vehicles) times 365 (days in a year) times 4 (excursions per day)) = 48,180,000,000 (aka 50 billion). So, roughly speaking, the chance of being in an accident caused, in part, by inattention due to an animal in a vehicle is one in 376,406,250. But, hey, who said the Legislature isn't working hard to make a real difference in our lives? What will they think of next?

Word to the wise...

It happens that innocent people are charged criminally every day. Note that I didn't say that the majority of criminal charges are unfounded. However, don't think that just because you didn't do something illegal, you won't get accused of doing something illegal. Having said that, I wouldn't want to cause a law abiding person to stay up at night imagining that they are going to be whisked away to jail in the middle of the night by the SWAT team. That's called paranoia, and it's not what I'm trying to engender... Here's what I am asking you to worry about: If you are hanging around people that are up to illegal conduct, you are at far greater risk of being criminally charged for something you didn't do. Consider the plight of 96 young men arrested at San Diego State for alleged drug sales. Are all of them guilty? The truth is, I don't know. However, based on my experience, I would guess it is likely that some of the arrests were made largely by association. Whether it was membership in one of the fraternities targeted and/or being a recipient of a group text message or an email by a drug dealer concerning drug sales, it is not unlikely that at least a few of those 96 never sold drugs, nor did anything in furtherance of drug sales. If a large scale sting operation can happen at San Diego State, it can certainly happen at UCSB (and probably already is happening). So, aside from quitting your fraternity, and disassociating with drug users (which may have its advantages), what else can you do to protect yourself from being falsely accused? Well, first read about what happened at San Diego State. Young looking cops working undercover befriended fraternity members by showing up at parties and acting like college kids.

Ask yourself if you really know the people you are hanging with. What is it about them that would cause you to conclude that they couldn't be a cop? What you shouldn't ever think is that they are not a cop because you saw them get drunk, get in a fight, rent an apartment in IV, get high, buy drugs, share drugs, or sell drugs. You should neither rely on any statements that they make that tend to suggest that they are not cops (including, but not limited to, "no, I am not a cop", "I hate cops", "cops are pigs", etc.) The thing to understand is that cops are not only capable of lying, but lying is part of their day to day professional life. They lie frequently when they work under cover, and even in uniform they lie when they are investigating crime. They do so with the complete approval of their department when it is done for an approved purpose. In fact, they are trained to lie. Unlike any other set of professionals, they may lie with absolute impunity. What other group in society can say that about? None. Even used car salespeople (and most certainly lawyers - sorry, lawyer haters) face negative consequences if they are caught lying.

Another thing a UCSB student might do to avoid getting roped in with those who are up to no good is avoid people who are not affiliated with UCSB. It is true that a lot of City College students live in IV, and are, perhaps, planning to transfer to UCSB next Fall. However, if you don't go to school with them (i.e., see them in class, etc.), do you really know that they go to City College? And can't anyone, including a cop or someone who is up to no good enroll in one class at City College at a minimal cost and hassle in order to "fit in" in IV? Of course they can.

The best thing you can do to avoid being arrested is to obey the law. And to greatly limit the possibility that you will be accused of something you didn't do, you should avoid those who are breaking the law.

A Graceful Parting

Judge Joseph Lodge (1932-2008), a pillar of the local criminal justice system, passed yesterday. He was the longest seated judge then on the bench in California (49+ years!). I knew him to be a highly intelligent and creative thinker, with a keen and personalized sense of justice who possessed a wealth of knowledge on a variety of topics, including medicine, psychology and, specifically, drug addiction. You never knew exactly what to expect from him on the bench, and I believe that's the way he wanted it. I thought I would publish the obituary he wrote himself, because I certainly can't say it any better than he can...and, what's more, he wouldn't want me to write it...of that, I am 100% certain!:

As fits with my character, I have written my own obituary. I was born February 21, 1932, in St. Paul, MN, and now I have died in Santa Barbara, CA. My peace in life was my wife, Sheila, and my dear children.
My journey, from my 1950’s days as a philosophy major at the University of Michigan, has been the exploration of all the great cosmic questions surrounding our lives. For some years I have felt at peace with the answers and insights I have found. I wish I could pass them on to those I love. It cannot be done. Each of us must find our own pathway through the density and darkness to at last find that you are "back in Kansas", standing where you were, so to speak, with everything so clear and obvious as to make you even question whether in fact you did "journey”.

I now end this with a deliberate (and important) misquote from Dylan Thomas -- I "DO go gentle into that good night".

No longer a lone voice in the sobering wilderness

I'm very pleased that the Daily Nexus wrote an article on something that I think should be at the top of the agenda for realistic change in Isla Vista and UCSB in the near future. Namely, a sobering (aka "sobriety") center in I.V. It works on State Street in Santa Barbara and can work even better in Isla Vista. I completely disagree with IVFP Lieutenant Brian Olmstead who said we already have a sobering facility: the County Jail. Nice. With this cunning observation, Olmstead flippantly ignores the huge financial and emotional costs incurred by criminalizing an event as mundane as a night of too much alcohol. The unspoken truth is that virtually all of the police officers, judges, correctional officers, university officials, alcohol and drug abuse counselors and d.a.'s got drunk when they were between the ages of 16 and 24; and I'm guessing that more than just a few of them got drunk last weekend and/or have plans to do so next weekend. What am I saying, exacly? I'm saying that there is more than an ounce of hypocrisy under-girding the "get tough on college drunkenness" mentality. The good intentions are over-shadowed by the hypocrisy. Yes, getting drunk and stumbling around in the street is different than doing it in the privacy of your own home, or at a friend's home. However, morally speaking, they are about the same. Someone that is drunk really can't be trusted to make good decisions about where they are going to be drunk. One thing that should make us all feel safer is that many in the Isla Vista community live without ready access to cars. Unfortunately, you can't say that about the rest of the local drinking population.

A sobering (or "sobriety") center in Isla Vista would save everyone money. It would save the taxpayer all of the many costs incident to booking someone into the county jail. The costs per arrest, to the taxpayer, can reach into the thousands. On average we're talking about hundreds of dollars per arrest. Consider the cost of two police officers spending about two hours between the initial contact and returning to IV or UCSB per arrestee. For wages, insurance, equipment costs, and the attending support staff costs (e.g., dispatch), this may range from about $200 to $400. Then there are the costs of booking and housing for up to 24 hours. This can also cost hundreds of dollars. Then, should the person end up in court (and most do), there are the wages of the many court personnel that are involved, including lawyers and judges. And these are all costs on the taxpayer (yes, some are off-set by fines and fees). However, should the person exercise their right to a jury trial and/or decide to initiate a lawsuit and complaint against the police and their employer, the sky is the limit on costs. We are talking about thousands of dollars in those cases, easily; all on the taxpayer. Notice I haven't even mentioned yet the costs on the individual in terms of legal fees, fines, reputational harm, as well as physical and emotional injury. These costs are unacceptable to most.

It is definitely time for a sobering center.

Bike-share in Isla Vista

Bike share programs have been around for decades. New programs are sprouting in major cities around the globe with high-tech anti-theft devices and pay-in programs with swipe cards, etc. I, for one, don't think these programs need to cost any real money to succeed; especially in the unique environment known as Isla Vista. Arguably, Isla Vista already has such program in effect, albeit "unofficial". Here's my proposal: (1) Have the UCPD and IVFP register all the abandoned bikes as UCPD property; (2) encourage departing residents of UCPD and I.V. to donate their bikes to the program; (3) solicit volunteers and local bike shops to repair them and paint them yellow (a nice UC color), (4) distribute them around campus and I.V., (5) make it an infraction to lock them, put them in a gated area or behind closed doors, leave them parked on a street or sidewalk, take them outside of a five mile radius or to deface them in any way. Since they would be UCPD property, it would be a misdemeanor to take them with the intent to permanently deprive its owner of them. (6) Make clear that they are to be shared in the true spirit of sharing; in other words, no crying when someone takes one that you parked outside a lecture hall with the expectation that it would be there when you got out. If it's not, walk until you see another one.

Such a program would make a dent in the bike theft problem at UCSB and I.V. At the very least it would reduce the number of people who are criminalized for taking a bike that they believe to be abandoned (which may turn out to be reported stolen). And, it would save the students money they might otherwise spend on bikes, bike locks, and gas. It could possibly reduce green house gas emissions a bit, and promote biking as a viable mode of public transportation. Reduced bike theft, and dragnets by the UCPD to crack down on them, might even mean savings for the tax and tuition payer in terms of reducing the numbers of paid staff whose responsibilities include bike theft suppression efforts.

The Hidden (and not so Hidden) Costs of a DUI

In a recent article on Mainstreet.com I was quoted on the many costs of a DUI arrest. A lot of people think of a DUI in terms of a big fine and a license suspension. This, my friends, is only the tip of the iceberg. As I have emphasized in previous posts, driving under the influence is a bad idea for non-financial reasons. It can end lives, and otherwise destroy them. Fatal traffic accidents, severe injuries (brain damage, paralysis, dismemberment, etc.) are, what should seem, the obvious effects of a person with limited coordination and judgment hurling a one to two ton metal object through a human-populated area. And don't forget about prison. But what about the financial costs, for those of you who are naive enough to believe that a horrific accident couldn't possibly happen to you, and are yet rational enough to respond to financial risks? Well, they stack up quickly. You should think about the fine ($1,500-$2,500), the school ($600-$1,000), the impound and storage fee ($300-$500), the booking fee ($115), any cost recovery due to an emergency response ($600-$2,000), any restitution owing to a victim ($1,000 - ?????), any probation fee (est. $1,116), dmv fees for license re-issuance ($250), insurance hikes($5,000 - ?????), fees for jail alternatives ($70 - $2,500), damage to your reputation (affecting your present and future employment and academic pursuits; costs: thousands), and lawyers' fees ($1,000 to $20,000). The MINIMUM cost of a dui, according to this analysis, is about $10,000. Of course it can, and often does, cost much much more depending on whether there was an accident, how much harm a dui conviction does to your particular academic and/or career standing and goals (which translates to lost income) and how much you end up paying for legal services. DUI is undoubtedly a bad, and expensive, idea. Don't do it.

The Wrong Kind of Sticker?

A couple of months ago, I cited a real world example of the usefulness of a certain sticker that I make available free at my office, and for sale on ivlawyer.com. The stickers in the photo are next to the front door of a house that was recently searched by the police pursuant to a warrant. It happens that neither the "Back the Badge" sticker, nor the American flag, deterred law enforcement from obtaining the warrant, nor executing the search. I can't say I'm surprised. On a related topic, I do sometimes wonder if the CHP's 11-99 Foundation license plate frames help lead-footed Mercedes drivers escape traffic stops and tickets. Apparently, for an $1,800 donation, you get a license plate frame and a special wallet and a badge which is perfect for handing to a CHP officer who pulls you over for speeding. $1,800!? Is this another example of rich people buying favor with the police? It is little wonder that those license plate frames are only seen on very expensive cars. Granted the organization provides assistance to the families of CHP officers in need, but is it really working toward the greater benefit of public safety and good government? If the wealthy folks who can afford to give $1,800 to the families of CHP officers (who, by the way, are already indirectly and directly compensated through pretty decent benefits packages by the California taxpayer) really care so much about the families of fallen CHP officers, can't they care, instead, in private? Or is their real motive to get out of speeding tickets by publicly displaying their support of this organization? Is their confidence that they won't get either pulled over or cited for speeding putting the rest of us at risk?

Policy on Drunkenness in Isla Vista has Changed

A source at the Santa Barbara District Attorney's Office has informed me that the policy affecting those facing their first stand-alone Public Intoxication charge, who are under 21, has officially changed. The year-long experiment has, apparently, revealed that the heavy-handed approach will not serve the greater ends of justice. It appears that numerous jury trials, tried by me and my public defender colleagues, made the point. So what's the point? Well, there are actually several: People are willing to stand up for their reputations as law-abiding citizens. They are not, always, going to lie down and take it, just because that's what the Government wants or expects them to do. They have a right to a jury trial, and are willing to assert it in order to answer to aggressive Government conduct. Out of the five Public Intoxications which were tried by jury since the change in the long-standing policy of leniency, only one resulted in a guilty verdict.

The costs of the "experiment" were huge. Among the costs were the human costs incurred by those who were needlessly criminally charged, the reputational cost of criminal convictions (affecting employability, academics, etc.) , the loss of driving privileges, the legal fees incurred by the defendants, the costs to the community of some 20 or more days of jury trial time (conservatively, $80,000 in salaries, and other costs associated with running a courtroom; not to mention the cost of significant time borne by hundreds of jurors and potential jurors).

I will, however, give credit to the District Attorney's Office for having both the courage and wisdom to change their minds and draw a curtain on the policy. The old practice of allowing first-offenders to take classes as a means to wash out the criminal taint and driving privilege loss associated with a Public Intoxication arrest made, and will make, a lot of sense. The hammer has its uses in the courthouse, but not when we are talking about a single instance of drunkenness while in college. The arrest, a night in jail, a hang-over, and some classes should [but doesn't always] resolve the problem. Now we should look ahead toward installing a sobering center in Isla Vista.

Email to an Eighth grader in North Carolina...

Yesterday, an obviously intelligent eighth grader asked me to answer some questions in furtherance of a social studies class assigment. Here's my response:

Hi Jackson:

I'll see what I can do in the few minutes I have...

1) How do you feel about the consequences about drunk driving? Do you think the consequences should be harsher, or less harsh?

I think that punishments are probably too harsh. At some point, as we approach making all DUI's into attempted homicides, at ever lower levels of blood alcohol, we should slow down and analyze what of the myriad changes to the way we penalize DUI and otherwise educate (even propagandize) the citizenry are actually making the roads safer and fit within present standards of proportional justice. For example, were we to make all DUI defendants eligible for the death penalty, regardless of whether anyone got hurt, and what the blood alcohol level was, you'd see a lot more people using taxis and quitting drinking altogether. And then there would be those hard-core alcoholics, and people who pay no attention to the criminal justice system until the cuffs are being put on them, who wouldn't change their ways. But the bottom line is, how much, in the name of deterrence, are we really willing to tolerate as a society. I think we may be at the breaking point. We're already beyond mine.

For more of my opinions on this topic [which might even surprise you] go to:

http://santabarbaralawyer.blogspot.com/2007/11/less-dui-law-is-more.html

2) How do you believe law enforcement should handle the issue of drunk driving? What I mean is what do you think law enforcement should do to prevent the issue of drunk driving?

I'd like to see them exercise more compassion in their approach, and to show a little more courage. In other words, they should be willing to give someone a ride home, or just take their keys away for the night. By being tough as nails, they do the institution of law enforcement a great disservice. In other words, when they show no compassion, people develop a hostile attitude toward police, which is unfortunate for everyone concerned.

3) Why do you think that people decide to drive drunk?

They really don't decide. They impulsively drive home after a party or a night of drinking with little awareness of their impairment. Alcohol impairs judgment and memory. One of the things a drunk person is not qualified to do is to decide whether they are safe to drive. The real mistake is to begin drinking without having already arranged a safe ride home. Otherwise, they are leaving their fate in the hands of a drunk person who will have great difficulty making a decision; much less a correct one.

4) Which group of people do you think drives drunk more often: teens/adolescence, or adults?

teens

5) When I was doing some research, I found out that alcohol-related incidents don't just mean that the driver is drunk, it means that if there is an accident which involves a drunk driver, passenger, or pedestrian, it is an alcohol-related incident. Based on that, who do you think should get punished more; a drunk driver, or a drunk pedestrian?

drunk driver. there is far more potential for a fatality, and serious injury, when you involve one plus tons of metal traveling at a speed in excesss of 3 miles per hour.

6) What percent of drunk driving car accidents have been fatal?

I don't know. NHTSA publishes statistics on this sort of thing. I'm a lawyer, not a statistician.

Good luck, Jackson.

Bill

Blood or Breath?

Often I am asked by those anticipating an eventual DUI arrest, or just curious sorts, whether they should submit to a blood or breath test if stopped. First of all, if you are under 21, you don't have a choice. Those under 21 must submit to a breath test upon a police officer's mere suspicion of alcohol consumption. They don't even have to place you under arrest first. And, when they do - guess what?- you have to take one more test. That's easy. So, what about the rest of us? Well, it's more complicated. You do have to submit to ONE chemical test AFTER the point of arrest. Should you take blood or breath? Well, if you are detained longer than 20 minutes, chances are neither one is going to exonerate you. In other words, either one of them is probably going to damage your chance of escaping a criminal charge, and an arrest-related drivers license suspension. Regardless, you have to submit to ONE of these tests anyway. And I emphasize ONE, because taking both is generally not in your interest; less is more. Fair or unfair, the law says you must submit to ONE of these tests. It is what is known as the "implied consent law" (i.e., the law which states that by driving a motor vehicle in California, one has impliedly consented to submit to a chemical test). Your refusal to submit to a test will result in a lengthy suspension to your drivers license, and your refusal will be compelling evidence of consciousness of your own intoxication which, most likely, will be every bit as effective at persuading others of your guilt as would a number. What's more, they'll likely hold you down and take your blood anyway. So, refusing is just not pretty. Oh, and look forward to an enhancement on the charge for your refusal as well. So, the choice of tests is a lesser of evils choice in most circumstances. And, no, you don't have a right to talk to a lawyer before you decide. A blood test is a good choice to guard against the well-documented and alarming fallibility of breath machines and it does allow you the option of retesting the sample, at your own cost, in a laboratory of your choice. However, a blood test is generally a bad choice if you have any other intoxicants (besides alcohol) in your system. Recent use of most recreational drugs will show up should the government screen for it, as will recent use of many prescription medications. Pain killers and sleep aids are considered intoxicants because, in some cases, they can affect one's ability to drive a motor vehicle safely (particularly where they are combined with alcohol). Keep in mind that marijuana stays in your system for at least 30 days and, worse, you won't find two scientists on the planet to agree on how to measure, much less decide, what amount of the active ingredient of marijuana is too minimal to affect driving. So, simply put, if you smoke weed, blow.
Breath can be a good choice when you know you are drunk (i.e., you strongly suspect you are well over the legal limit). The amount your BAC may drop, if it will drop, on the way to the phlebotomist, is likely too small to make a meaningful difference in the case and, by choosing blood, you are giving the government less impeachable evidence of your guilt. In other words, the immediacy of the breath test (as they are often administered at the scene) will not likely hurt you if your BAC is very high.
Whatever you do, don't ask the police officer for advice. Police generally like the convenience (to them) of a breath test. But, importantly, don't expect the person who is trying their best to gather evidence convict you of the charge to give you good advice.

The Daily Nexus' Police Blotter Gets It Wrong

Weekly, the Daily Nexus attempts to do what any award winning journalistic enterprise does: entertain by exploiting the hard-luck stories of persons arrested. It happens, most regularly, in the section of the paper known as the Police Blotter. Hahahaha! So funny! So funny that alcohol makes people act goofy. So funny that these arrested individuals were publicly humiliated, tethered like animals and taken to a cage. So funny that many of these individuals will have their careers and other dreams sandbagged by one or more criminal convictions resulting from a single instance of poor judgment. I just can't stop laughing. There's a word in German, schadenfreude, which is defined as the pleasure one feels while learning of another's pain. Sadly, the Nexus encourages its readership to indulge in schadenfreude regularly by going down to the IVFP and chatting it up with police to get their agenda-driven and one-sided versions of these arrests then printing them. Seldom, if ever, do we get to read the other side of the story. Often it is the rude, arrogant, over-bearing and, occasionally, violent conduct of the police that just doesn't make it into the paper somehow. Those that have been arrested, and those that witness those same arrests, I can assure you, just as often, have alarming stories to tell of unprofessional conduct by law enforcement which, frankly, just isn't as funny as it is disturbing. And what's really not funny is how these arrests may affect these arrested individuals in pursuit of their academic and career goals. I am not asking the IVFP, or any police officer for that matter, to stop enforcing the law. I am asking them, however, to stop laughing at those that they arrest, and the Nexus to stop asking its readership to join in that laughter.

UCSB is full of future law-makers, judges, and jurors. Should the Nexus consider itself a serious news organization, and not a mere puppet of the UCSB Administration and other powerful forces of the Establishment, it should stop and consider the important role it plays in influencing attitudes of our future community leaders toward police, the accused and the administration of justice. At the very least, it should endeavor to tell more than one side of any given story and stop asking its readership to take pleasure in another person's pain.

Too Many Jails/Not Enough Imagination

So here we are, as the Associated Press (AP) reports, with more people incarcerted per capita than ever before (one in 99), and we are still somehow talking about building more jails. Looked at in the microcosm of Santa Barbara County, it might make some sense to build a modest facility in North County (the place generating more felony arrests), to deal with a long-standing concern (mostly among law enforcement officials) that there is an over-crowding problem. But where does this ultimately lead us? You guessed it: further down the path toward a bankruptcy of money and good ideas. Sheriff Bill Brown is trying to raise at least $90 million dollars to build a new jail facility. I wonder if he, or anyone else, has asked what the impact of that money would be (or even half of it) were we to devote it to some of the neglected social services that don't have nearly the political power of a Sheriff. What about County Mental Health Services or, for that matter, the County Probation Department? Ask the Chief Probation Officer what could be done in terms of added personnel and community supervision if they had an additional $10 million in their budget. There are any number of agencies, departments and non-profits which are already doing well to combat the core problems leading to crime that can be combatted. The big three are: Mental Illness, Poverty and Substance Abuse. Why don't we support them in their effective and laudable efforts in crime prevention; and, more fundamentally, giving disadvantaged and wayward people a chance to succeed without resorting to crime?

The Pew report, cited in the AP article, was compiled by the Center on the State's Public Safety Performance Project, which is working directly with 13 states on developing programs to divert offenders from prison without jeopardizing public safety.

"For all the money spent on corrections today, there hasn't been a clear and convincing return for public safety," said the project's director, Adam Gelb.

I think the same might be true here in Santa Barbara. I encourage Sheriff Brown, and others in charge of our money, to put more thought into jail alternatives. Maybe we can do our part to show others that more people incarcerated is not the answer to the problem, but rather is the problem itself.

If You Build It...

I need to go on record about something. I used to work in a county that had recently built a new jail facility. What I noticed was that people were doing real jail time for a variety of the least serious crimes (the most noteworthy being "Driving on a Suspended Licensed"). People with priors were being thrown by red-faced judges into jail for lengthy stints in actual jail. Also, the equivalent of the most common jail alternative, the Sheriff's Work Alternative Program (SWAP), which was called "Work Release", had a couple of special rules that prevented many defendants from entering the program. For example, if the defendant had ever been arrested for resisting arrest (not necessarily convicted, just arrested), then into jail they went; no jail alternatives. Also, if the defendant was serving a sentence for any act of domestic violence, no work program; just jail. I predict the same will happen in Santa Barbara. Yes, there is a jail over crowding program, but the severity of it is debatable. Moreover, if the prevention programs that are supposed to tied to the program are effective, then that too should lessen the inmate population.

Now I don't doubt the sincerity of Sheriff Bill Brown, in his quest for a new jail facility, for a minute. But asking a sheriff whether jails are a good thing is kind of like asking a queen bee whether hives are a good thing. As Max Weber pointed out, bureaucracies must grow; that is what they do. They don't necessarily intend to grow, but growing brings so many collateral benefits to the individual actors, that they do so naturally and instinctively. They draw more funding, more employees, and sooner or later they are bigger of a big shot, and are making a bigger salary with a better retirement.

I have another prediction. The so-called anti-recidivism and other prevention programming that are NOW tied to the new jail proposal are going to fall by the wayside in the name of fiscal responsibility. The true purpose of the money now being sought from the County, directly from the taxpayers, and the State, is to build a new jail facility, not to trump years of budget cuts of social welfare. It sounds great, of course, to increase spending on mental health programs, homeless shelters, drug rehabilitation, etc. However, it will be easy to dump these as "pie in the sky", and generally unsatisfying expenditures that we just can't afford. The success of these programs is hard measure. The success of a jail, however, is easy to measure. If it's full of inmates; it must be working!

Vomiting in Public Declared Unlawful

With flu season mercifully coming to a close, it's not too late for me to warn the local population (and particularly the residents of Isla Vista, California) that, yes indeed, the act of vomiting in public is likely to get you detained if not arrested, and I'm dead serious. No, vomiting, though thoroughly unpleasant for everyone in the near vicinity of it, is not actually illegal. For one thing, it is usually involuntary. In fact, often times, you can't stop it if you try. Yes, of course, alcohol abuse is a common cause of vomiting. But vomiting, as a physician recently explained to me, is a disease. Vomiting, per se, is not an act as much as it is a symptom of indigestion and it knows many causes. Alcoholic beverages can be, and often are, a contributing factor, but common experience teaches us that there are many other factors (e.g., allergies, bad food, influenza, excessive ingestion of any substance, exercise, being around others who are vomitting, and gory/disgusting images, sounds and/or odors). The union of alcohol consumption and one or more of these other factors may lead to vomit, and that doesn't mean that a crime has been committed.
I am calling on the local population that drinks alcohol to slow down. I am also asking the local police to slow down on arresting people simply because they vomited and they suspect (or know) alcohol was involved. What's wrong with giving them a rub on the back, a towel to wipe off their mouth and maybe a ride home? This is how we would treat a friend or family member in their hour of need, would we not? In this same regard, I will continue to call upon the powers that be to install a sobering center in Isla Vista; as much as that may reduce my earnings as a lawyer with a number of clients facing public intoxication misdemeanor charges. It's the right thing to do.

A Public Place

In my practice I am often asked "what is considered a "public place"?" (i.e., in terms of where the police can enter without a warrant, and whether you are considered in public under the definitions of certain misdemeanors like "public intoxication" and "minor in possession"). The following is an excerpt from the recent Krohn case (cited below) which gives some guidance on this case by case inquiry:

"The term “public place” generally means “a location readily accessible to all those who wish to go there … .” People v. Perez (1976) 64 Cal. App. 3d 297, 301. The key consideration is whether a member of the public can access the place “without challenge.” People v. Olson (1971) 18 Cal. App. 3d 592, 598. Thus, the Olson court considered a house's front yard to be a public place because “defendant, a complete stranger to [the homeowner], was able to walk through the outside area of her home to the front door without challenge.” In contrast, a location guarded by a fence or locked door is not readily accessible to the public, and is not a public place. In People v. White (1991) 227 Cal. App. 3d 886, the court refused to deem another house's front yard a public place because it was “surrounded by a three-and-a-half foot-high fence with a gate which was unlocked at the time.” (Id. at p. 892.) It noted “the fence, gate, and [three pet] dogs all provided challenge to public access.” (Ibid.) And an interior hallway of an apartment building was considered to be a public place because “[t]here were no locked gates or doors to keep the public from entering” it. (Perez, supra, 64 Cal. App. 3d at p. 301." People v. Krohn, (Cal. Ct. App. 2007) 149 Cal. App. 4th 1294, 1298-1299.

If you don't want random people, including police officers (whether you consider them "random" or not), snooping around your yard, balconies and other outdoor places on your property, and don't want you or your guest to be arrestable for public intoxication and/or minor in possession in these areas, you should enclose these areas with a fence. It doesn't have to be a tall fence, nor even locked, per White. Dogs and "No solicitors"/"No Trespassing" signs may present these legal cognizable "challenges" to unwanted intruders, however, it seems the only clear way to protect these areas from being considered a public place is to fence them in. I will say this: I'd feel more "challenged" by a rottweiler than a 3 and half foot fence.

The Whine Country

Caught between the CHP, who want to want to discourage drinking and driving and the winemakers, who are saying they want to prevent limos, vans, and buses from bringing them literally busloads of customers (some a little too tipsy for their tastes; no pun intended), are the wine tourists. Interestingly, the winemakers are now speaking out against their most enthusiastic customers; those who show up in limos, buses, and vans to get their drink on. Gasp! Can you believe that people who choose to travel from other parts of the state to taste wine are, for the most part, actually quite fond of getting drunk? Those that make their living selling fermented grape juice, at a healthy profit per unit sold, are really complaining that these genuinely enthusiastic members of their customer base are showing up by the busload.
It's unbelievable. It seems that winemakers should be happy that their sales are now soaring in the wake of the hit movie Sideways, rather than whining about some of the predictable pitfalls associated with successfully peddling alcohol; an addictive and oft-abused substance. And, considering the findings of a recent study at Caltech, which shows that peoples' taste in wine is highly correlated with price, it would seem that the industry might want to count their blessings. While there are some oenophiles who go to tasting rooms to check out the latest releases and actually speak "intelligently" about them as they swirl tiny amounts of them in their glasses, roll them around their palates for a minute or two only to spit them out, the majority of their sales are to the people who like the sensation created by gulping these alcoholic beverages in copious amounts much more than they enjoy the "complex" flavors associated with them.
It is truly unfortunate that the winemakers, in an effort to uphold their phoney image of catering primarily to the sophisticated connoisseurs, are speaking out so stridently against the best DUI prevention mechanism of all: designated drivers.

The "Sideways effect"...

The Coastal CHP, responding to what they call the "Sideways Effect", has just received a grant of $658,000 to pay for more enforcement of DUI laws due to what they are saying is an increase in the numbers of "wine-related activities" that have come about since the acclaimed movie Sideways hit the theatres in 2004. Just in time, guys! Actually, I haven't seen any data which proves that more wine tasters in Santa Ynez has led to more DUI related accidents, but I will at least concede that it would be logical if there were at least a few more than average now that the Santa Ynez wine country is "on the map". So, I won't speak out against this effort to deter and prevent crashes which are caused by inebriates. But I will ask that our buddies in beige honor the US Constitution in all of their grant-funded activities, and make sure they follow the prescriptions of the California Code of Regulations and the Department of Health services in administering breath and blood tests as they do so. Thanks in advance.

Publisher's Folly, The Sequel

My first post, Publisher's Folly, was about the Daily Sound publisher Jeramy Gordon's borderline absurd claim that his newspaper should enjoy an absolute right of privacy with respect to its unpublished photos. Well, Gordon's claim fell flat on it's face in court, and now a publisher with a little more juice, that of the Independent, is likely to fall harder and flatter by taking the same basic claim all the way to the California Supreme Court. After spending $8,000, Mr. Gordon apparently had "suffered" enough rather inexpensive, per column inch, publicity grandstanding as a self-anointed hero of the First Amendment. He's been rather quiet... until today, that is. Today Mr. Gordon was quoted in a News Press article where he resumed his public rant against Deputy Public Defender Karen Atkins with even more acrimony than before. It's interesting that he bears so much hostility for a woman he doesn't know. And it's not just the person that he doesn't know, he hasn't a clue what a criminal defense attorney's role is. Either way, he is dead wrong that Ms. Atkins is motivated by a desire to soak him dry of money. She didn't get any of that $8,000. That money was paid to another lawyer. And now that same lawyer is billing undoubtedly more than $8,000 to take the same implausible claim all the way to the State Supreme Court. Ms. Atkins is a public employee on a salary she is paid to serve her young client, Ricardo Juarez, 15, and many others. She doesn't get paid per client and she doesn't even get a bonus if she gets Ricardo acquitted of the charge of murder. Her only motive is to help her client; not to get into a small-minded legal squabble with local newspapers. That is the last thing she wants to do. Her office has a limited budget with which to counteract the comparatively limitless funds the District Attorney has available to wage a homicide prosecution. And I can assure you that she would have prefered it if Mr. Gordon had spent no money at all waging his quixotic war on her client's right to a fair trial.

What is it with these local newspaper publishers anyway? They do seem to fuel up the Santa Barbara bloggers with plenty of material...And, the lawyers are staying busy too. As a Santa Barbara Lawyer Blogger, I really appreciate you.

Support Our Troops: Acknowledge Combat Trauma

Not to wax political any more than necessary in this decidedly a-political forum, but I am sick of the one-sided way that mostly SUV owners, it seems, slap "Support Our Troops" yellow ribbon stickers (and the even less committal magnet) on their bumpers. It is clear to me that at least some these self-proclaimed "troop supporters" are merely using fear tactics (i.e., the fear of being labeled unpatriotic) to silence the war critics. Guess what? It didn't work. Only the 29% die-hard Bushees even claim to support the war in Iraq. And among those 29% there are undoubtedly many who don't actually think it was a good idea, but for political reasons, don't want to admit it publicly. So, why am I going on and on about this? Well, it relates to my blog in the sense that one genuine form of support for our troops (apart from what the Democrats call for in terms of better pay, better pensions, and better health care), is the recognition of Combat Trauma as a real factor bearing on what we call the mens rea associated with criminal acts (i.e., the extent to which the individual revealed an intent to do evil in the commission of a criminal act). Arnold Schwarzenegger just signed into law a bill which encourages treatment alternatives over incarceration for lesser crimes by Iraq and Afghanistan combat veterans where Combat Trauma is a known factor. It is precisely because laws like this may lead to less incarceration of people who have shown the propensity to be violent abroad as well as at home that they amount to genuine acts of support for our troops. This is because we are very arguably assuming more risk that we will be attacked by someone who would otherwise be locked up. However, in the long term, as with crimes not perpetrated by combat veterans, we may find that treatment alternatives which earnestly endeavor to rehabilitate rather than commit revenge on those convicted of crime may actually make us safer. But that seems to be just a convenient irony. I will, therefore, give Schwarzenegger credit for, albeit momentarily, suspending his "get tough on crime" policy agenda, as sincere.

Yes, I actually was wearing my seatbelt!

Well intentioned members of law enforcement are often quick to point out that persons injured in car accidents were not wearing their seatbelts. Doing so, they probably believe, will increase seatbelt usage. And it might. The problem is sometimes they speak too soon and misinform the public. I am aware of multiple cases where the local CHP has blamed lack of seatbelt usage, at least in part, for the accidents' associated injuries. In certain of these cases, as in the recent one cited above, there were seatbelt shaped abrasions across the abdomens of the accident victims. I am increasingly concerned about this pattern of misinformation because it may distort the true safety record of vehicles involved in these accidents. Consider that if an injury to a vehicle occupant is blamed on lack of seatbelt usage, when they were actually wearing their seatbelt, the true causes of the injury may not actually be investigated. I suggest, therefore, that members of law enforcement be more circumspect before they write in their accident reports, or state to the media, that the injured occupants weren't wearing their seatbelts unless they really know that to be true. A careful investigation by a trained accident investigator should be able to answer this question. I think doing so will work in favor of auto-safety and will not risk hurting the feelings of persons whose bodies already hurt (i.e., by implying that their own carelessness caused their injuries in cases where that is not true).

Intoxylizers in wider use?

I applaud the UCSB police for using an investigative tool to determine just how drunk a woman was whom they recently arrested for public intoxication. She was, however, found face down vomiting, but that's beside the point. I support the use of intoxylizers by police before they book someone on a charge of drunk in public. Such a practice would significantly reduce the number of people needlessly booked and prosecuted. While rare, occasionally the police do book individuals for public intoxication by alcohol who have had either nothing (yes, nothing) or very trivial amounts of alcohol to drink. The intoxylizers, which are readily available to the police, and easy to use, are just the trick to better ensure that these injustices will not occur. I know, I know, it'll be tough to administer the test to someone then let them go if they test in a range that suggests that they are likely capable of getting safely home, but you just might sleep a little better at night knowing that you didn't cause an innocent person to spend a night in jail and very likely render them a criminal.

DUI checkpoints abound...

The City of Goleta just received a grant from the University of California at Berkeley to set up more sobriety checkpoints this year. The applicant cited the CDC's assessment of 23 studies where the data show that "throroughly implemented" checkpoints reduce dui related crashes by 20%. Interestingly, the same studies show that the declines are just as great regardless of how long after the checkpoints the follow-up studies are done. Specifically, if the studies are done less than one year after the checkpoints the drop is 18% and if greater than a year, 17%.
Knowing the substantial and multiple privacy invasions which occur each time a checkpoint is set up (all in the name of reducing traffic fatalities), we can hope that the City of Goleta will excercise some discretion before they become known as the DUI checkpoint capital of the free world. There have already been a number of DUI checkpoints in Goleta since 2004 (24, in fact). As the trend continues, we can expect that the reduction in DUI related traffic fatalities will stay, perhaps, as high as 18%. How many lives will this actually save? Well, none. None, if you consider that Goleta is fortunate enough to have an average of one traffic fatality per year (alcohol related or otherwise). While I'm glad that the funding for these checkpoints does not all come directly from the local taxpayer, I know the local taxpayers are paying dearly in terms of how much their privacy is invaded; and to what end?

D.A. Gets Tough on Drunkenness

The Santa Barbara News Press just picked up the story. The District Attorney's Office has toughened its stand against those under 21 who are arrested for public intoxication by alcohol. For many years the Office offered these same individuals (upon a first offense) the option of taking an alcohol awareness class in order to avoid the criminal conviction and the year-long license suspension. This jibed just fine with state policy given the fact that the state calls for municipalities to install a sobering center whereby such individuals can escape criminal prosecution. See Penal Code section 647(g). Since Isla Vista, the number one most popular spot to get drunk in the County (if not the state), doesn't have a sobering center, the District Attorney's treatment of these cases, non-criminally, seemed an intelligent way to stem the otherwise huge numbers of criminal convictions that would necessarily flow out of Isla Vista. Nevertheless, the District Attorney's Office has chosen to throw out this solution in favor of "getting tough"; hoping to bring about a change in behavior among the larger student population.

Even if the D.A.'s Office is correct that toughening their stand is going to reduce the numbers of minors getting drunk in Isla Vista, I strongly disagree that this is good policy. One reason is that it creates a very troubling contrast of outcomes depending on what substance a minor decides to experiment with. If we consider that there is a one free bite at the apple in terms of use and possession of hard drugs, (such as methamphetamine, cocaine, heroin, etc.), as afforded by Penal Code section 1000, then how is that a single instance use of alcohol should produce a criminal conviction? The unfortunate message to the Isla Vista population, therein, is that you are better off experimenting with hard drugs than alcohol. For alcohol intoxication you will suffer a criminal conviction, for intoxication by anything else, you won't. We can, of course, debate whether alcohol is any better than the other drugs. However, what can't be debated is that, within a few years, the individual will be able to legally drink alcohol; and not so with the hard drugs. So, how can the government logically take the position that alcohol is worse than hard drugs when alcohol is legal for those 21 and over, and hard drugs are not? Also, I would strongly disagree that alcohol, in general, is anywhere near as damaging to the human body and brain as methamphetamine, nor is it anywhere near as addictive as heroin. It strikes me that the District Attorney's Office did not think this through.

The over-arching truth is that most people in this not-so-dry county are not really excited about sitting in judgment of a college-aged kid who got caught drinking. Consequently, even a few "dead-to-rights" guilty minors are going to get acquitted of the offenses at jury trial; not to mention the closer cases. So, more of these cases are being, and will be, tried as the result. This is and will continue to tie up days upon days of court time. And to what productive end?