Friday, October 9, 2009


“We’re looking into reviving the idea of a sobering center in I.V.,” Farr said.

This is a quote of Santa Barbara County Supervisor Doreen Farr that appeared in the Daily Nexus today. I am glad the idea is not completely dead, but I'm not sure that this isn't simply more lip-service favoring the concept intended to passify those of us who feel very strongly that a sobering center is an absolute must. We don't need to watch another few hundred people in IV be deprived of their civil liberties this Fall; not to mention, as the article makes clear, take IV Foot Patrol officers out of service (of IV that is) for the couple of hours that it takes to process a single needless Public Intoxication arrest. Clearly they have better things to do with their time. A sobering center could save the officers thousands of hours in a year in terms of shortening the time it takes to take someone, who is not being a pain in the neck, off the street to a place of safety. It would also save the jail, the court, the d.a., and (yes) me, lots of work. And of great interest to the students and parents of SBCC and UCSB, it would help ensure that the people who are investing big bucks (and lots of time) getting their degrees wouldn't graduate with the sandbag of a criminal conviction (or a record of a booking, for that matter).

As I've written, repeatedly, Penal Code section 647(g) makes a "civil commitment", when feasible, State policy.

Like it or not, more than 90% of UC and SBCC students will drink to excess at least once (if not weekly) during their academic career. This is a societal problem that will take more than punitive tactics by local law enforcement to solve. Criminalizing our most promising societal contributors for socially acceptable (if not appropriate) conduct makes no sense and is arguably against State policy. A sobering center is a viable and practical solution to the public safety, fiscal and civil liberties questions this societal problem raises. It's time for more than lip-service.

Friday, July 10, 2009

Huge win for truth and justice

Yesterday, in a Supreme Court case called People v. McNeal, the California Supreme Court ruled that competent evidence of variability of alcohol vapor in breath to blood alcohol content across the population may be admitted in cases where there is minimal showing of impairment. This has huge ramifications for innocent people. For years I have been telling people the sad story that there is no justice in California for DUI arrestees who happen to produce more alcohol vapor in the breath and were blind to this reality (of course) when they choose the more convenient method of blood alcohol testing: breath (not blood). Driving with any amount of alcohol in your system is to be avoided. However, convicting people 21 and older of misdemeanors who have not actually driven with a .08% BAC or greater, who are not impaired by alcohol, cannot be tolerated. At long last the Supreme Court is on board. Kudos to the brilliant lawyers who brought about this change!

Wednesday, April 29, 2009

Observation of marijuana use does not justify entry...

A California appellate court recently held that officers violated the 4th Amendment to the United States Constitution where they entered an apartment against the consent of the legal occupant after they smelled a "distinct odor" of burnt marijuana and saw an individual inside putting a pipe to his lips. People v. Hua (2008) 158 Cal.App.4th 1027.

If you find yourself in this predicament, the word to the wise is:

"Just say no [to the cops]". And, as I always do, I will caution anyone who believes that their Constitutional rights are being violated that they can't hope to win a motion to suppress evidence in the field. While being clear about the fact that you are not waiving your Rights is important, nothing about that suggests that you should kick the officer in the shins (or even be impolite to him or her). One audible, intelligible "No Thanks" should suffice. Screaming "no!" repeatedly in anger and/or frustration promises to bring on more unpleasantness and possibly new and different criminal charges. Just submit to their color of authority and wait until your day in court to seek the remedy to which you are entitled.

Wednesday, April 8, 2009

Be heard, Isla Vistans!

Don't wait until you're in jail to complain about the proposed Social Host Ordinance.

Here's an email in circulation that I will do my part to publicize because I agree with it wholeheartedly:

Help Protect Residents of IV TODAY!

Ask SB County Supervisors to Vote NO on the proposed Social Host Ordinance (i.e. Law)

WHAT: Board of Supervisors Hearing re: proposed Social Host Ordinance
WHEN: Tuesday, April 21, 2009; if you can’t attend, send them an email NOW! (talking points and email addresses below)
WHERE: Board of Supervisors Hearing Room (105 E. Anapamu Street, 4th Floor)
1. The ordinance is meant to address underage drinking. It would apply county-wide, including in Isla Vista (which already has a similar, but less intrusive, ordinance).
2. Any time at least 5 people are together, and at least 2 are under 21, the gathering can be subject to the ordinance.
3. If a minor at one of these gatherings has alcohol, regardless of whether the host of the event knows or should know the minor has alcohol, the ordinance is violated.
4. When there is a violation, law enforcement can disperse the gathering, and fine anyone who lives at the residence or is responsible for the gathering.
5. Multiple offenders can be held responsible for the cost of law enforcement response, up to $500.
6. A person is a repeat offender, and therefore subject to increased fines, if the ordinance was violated at the same property within 12 months, regardless of whether the violation was from previous tenants or property owners.

1. Call and email your Supervisors

2. Pass this email on to as many residents of Santa Barbara County (which includes IV) as you can

3. Attend the 4/21 Board hearing. Call 568-2240 on or after 4/15 to confirm exact time
Urge the Supervisors to:

Vote No on the Proposed Social Host Ordinance

Talking Points:

· The ordinance is a bad idea because it gives law enforcement too much power to unfairly target students who are behaving in a responsible manner.

· Also, because the ordinance allows for holding hosts responsible for law enforcement response costs, people will be discouraged from contacting law enforcement or paramedics when serious incidents occur at parties or other gatherings where alcohol is present.

· Finally, because the County already has sufficient means to dissuade underage drinking through laws already on the books, the ordinance is unnecessary.

1st District: Salud CarbajalPhone: (805) 568-2186E-mail:
2nd District: Janet Wolf, Vice Chair Phone: (805) 568-2191E-mail:
3rd District: Doreen FarrPhone: (805) 568-2192 E-mail:
4th District: Joni Gray Lompoc: (805) 737-7700E-mail:
5th District: Joseph Centeno, Chair Santa Maria: (805) 346-8400 E-mail:

Tuesday, February 17, 2009

So what's the big deal?

Thousands of arrests are made in Isla Vista each year, making it one of California's "high crime" areas. However, a good deal of the arrests have to do with college-aged people ingesting and possessing alcohol, street drugs (e.g., marijuana, cocaine, methamphetamine, ecstasy, psilocybin, LSD, heroin, and more) and prescription medication. Sales, furnishing and transportation of these substances account for a good deal of the more serious arrests. The local jail is over-crowded which creates a perception of leniency due to the fact that there is little or no room for those with minimal criminal history who are facing lower grade charges . Yes, indeed, the jail penalties for this class of offenses, and many others, are not as severe as they are in many (or perhaps most) other jurisdictions AND many people are released back into the community on their own recognizance pending the conclusion of the case. Another factor it seems is that of social acceptance. Yes, it happens to be commonplace to get arrested in Isla Vista. Everybody who has lived in IV has had a friend or a roommate arrested; and all you have to do is walk around on a weekend night on Del Playa and you'll see tons of young clean-seeming college students getting patted down, cuffed, sat on the curb and hauled away by the Foot Patrol. Those same kids will usually be released soon thereafter and then might have to pay a fine and be on probation. So, what's the big deal?

You won't have to go far in Isla Vista to find a young kid (sorry to say it, but it's usually a young man), who has all kinds of opinions of what the larger meaning of it all is and what the recently arrested person should do about it. After all, they will tell you, proudly, that they have already been arrested three times, and look!, they're still standing. They're still in school. They didn't spend any appreciable time in jail. Or, perhaps even more compellingly, they did, but now that they've suffered that terrible fate, they know exactly how to avoid having that happen again should they be arrested again. These folks are akin to what we in the trade refer to as "jailhouse lawyers". The only differences are that these guys are typically out of jail on good behavior (probation) or are out of jail, pending trial, on their own recognizance. A few of them have posted bail. These folks are full of wisdom and know just as much as, if not more than, any smooth-talking lawyer in a cheap suit, right?

Uh, no, wrong.

Whatever the motive - perhaps it's for the same reason a surfer might want to show you the scar from where the shark (okay, harbor seal) bit them - there is a tendency to minimize the longterm significance of an arrest in Isla Vista; a "normalization", if you will. Everyone's doing it. It's a badge of honor. It's how you earn your IV street cred, right?

Uh, no, wrong.

This is the way I look at - and I am not just talking to the population of Isla Vista when I say this: when you get arrested, society is attempting to marginalize you; to render you a criminal. Yes, a criminal. Somehow people think that criminals are the "other" and I, myself, could never be considered a criminal. Perhaps it is the mass media (including the news, TV shows like CSI and Law & Order as well as movies and crime novels) that always give us permission to think that certain people are just not physically capable of being considered criminals. They are just too "nice", "good-natured", "well-raised", "well-off", "good looking" (and yes, i have definitely heard at least one person say, or imply, such an asinine thing), "well-meaning", "white" etc. to ever be considered a criminal, right?

Uh, no, wrong.

Everyone, and I do mean EVERYONE (present company NOT excepted) is inherently capable of being rendered a criminal and it is almost necessarily going to consist of two voluntary acts: (1) the act which made the police think that he or she committed a crime and (2) the act of pleading "guilty" or "no contest" to a criminal charge. It takes seconds to plead to a misdemeanor, and just 20 minutes or so to plead to a felony. Seriously, that's what is happening each and every time the cuffs get slapped on: Society is mounting an attack against your good name. Society is seeking put you in the underclass: The class of persons who have trouble getting taken seriously and who people (particularly little old ladies who live in the suburbs) are afraid to be around. What else? To be a criminal is to have an uphill battle getting a job where you thought you were a shoo-in. Being a criminal means getting rejected from colleges and graduate programs. Being a criminal means that you will likely be denied scholarships, financial aid and perhaps it may even affect your credit score. Being a criminal means that your life will be even more difficult in a tough economy because you WILL have trouble getting a job (no matter what your qualifications). You may have trouble getting a professional license. As a criminal you will have a tougher time finding a place to live as lot of landlords will reject your rental application out of hand. And, perhaps you haven't considered that being a criminal will make it more likely that someone can win a lawsuit against you because you won't be considered a strong witness (considering your criminal history) and that you will have a tougher time bringing a civil claim against someone else for the same reason. Becoming a convicted criminal can greatly diminish, if not destroy, the value of your degree; the degree for which you are working so hard and paying so much. These are things that the "jailhouse lawyer" hasn't told you. So, you ask, what do you do to avoid becoming a criminal? Talk to a criminal defense lawyer.

Monday, February 9, 2009

Bad Cop, No Donut?

Does the recent U.S. Supreme Court decision, Herring v. U.S., signal the end of the "exclusionary rule"? (For those who aren't students of criminal procedure, the "exclusionary rule" is what keeps evidence that was obtained in violation of the U.S. Constitution from being used against a criminal defendant at trial and, if applied, often results in the entire case against them being dismissed).

Perhaps, yes. It is precedent for the idea that the criminal does not necessarily go free where the constable blundered or, as in this case, where the constabulary erred. The warrant upon which Mr. Herring was seized (i.e., "pulled over"), was entered into the computer erroneously, but not in bad faith, by someone other than the officer that pulled him over. Okay, so what? Well, according to the majority, the purpose of the exclusionary rule was to deter intentional misconduct by law enforcement. I guess I agree with that, but here's the point of separation. When we speak of institutions, we can find intent on the part of the higher ups (such as chiefs, and other administrators), or a more nebulous form of intent on behalf of the entire institution where they have failed to put systems in place which will limit the degree of intrusions into the private lives of law abiding people. Not telling police departments, as the Supremes could have, that their failure to develop and implement systems (through software, double-checking by human beings, etc.) to better ensure that information entered into the widely available databases may result in bad guys going free was an opportunity squandered. Incidentally, implementing such systems would also save a lot of valuable law enforcement time by making sure that their time is not wasted barking up the wrong trees. So, everybody could have won: The general public could have won, the police (in a broader sense) could have won, and an occasional undeserving criminal defendant could have won. The latter, according to the ingenious Warren Court, was a worthwhile price to pay for a freer society. The over-arching principals in force are that (1) there is no perfect solution to the problem (and, yes, to my conservative friends who don't know what it's like to be jacked up by cops for no reason, there IS a problem) and (2) that the American values of privacy and freedom that serve to allow us all to live without a rational worry that we will be subjected to the random and otherwise unfettered curiousities of law enforcement are worth sacrificing a small amount of security.

Another discussion that has emerged in the wake of Herring is: "what else might we do to deter police misconduct which violates the U.S. Constitution?". Here are some thoughts:

1. Deprive the offending officer of a paycheck for every violation.
2. Make the offending officer where a patch on his uniform that reads, "I violate people's consitutional rights".
3. Fire the offending officer.
4. Make the offending officer pay money damages to the defendant.
5. Exclude "some" of the illegally obtained evidence. (Hmmm...just the wrapper?)
6. Make the jury aware of the violation and tell them that they may decide to acquit the defendant on that basis. (That might work...maybe...uh, in a marijuana possession case.)

My experience teaches me that prosecutors, judges and cops hate the exclusionary rule so much, that they'll do nearly anything to get around it. What we see in reaction to it are very narrow readings of the rules, and usually a tortured reading of the facts (a very common work-around is to argue that officer didn't actually pull the person over for a dubious legal reason, they pulled them over for a totality of dubious reasons which, altogether, amount to one legal reason) . The less honest police officers will lie to cover up their violation. It's not at all hard to imagine how that happens. If they were lazy about understanding and respecting the Fourth Amendment, who's to say that they won't be just as lazy about understanding and respecting their duty to be honest (when under oath) and otherwise? A rule which does not burden the public safety as much as the "exclusionary rule" might solve this problem. However, would a cop lie to keep his job? Would he lie to avoid public shaming? Would he lie to save money? Would a judge or prosecutor avoid engaging in intellectual dishonesty in order to protect the cop from these various punishments? I say, let's not bother finding out.

Thursday, January 8, 2009

New 2009 Public & Traffic Safety Rules

It's that time of year again. New laws.

As far as traffic safety goes, the legislature has come up with the following new laws:

  1. Text Messaging (SB 28/Simitian) This new law makes it an infraction to write, send, or read text-based communication on an electronic wireless communication device, such as a cell phone, while driving.
  2. DUI Probation License Suspension (AB 1165 Maze) A change in the driving under the influence (DUI) law creates a new authority for DMV to administratively suspend the driver’s license for one year under a zero tolerance standard. The new law authorizes law enforcement to issue a notice of suspension and impound the vehicle of a person who is driving with a blood-alcohol concentration (BAC) of 0.01 percent or greater while on court-ordered post-DUI probation.

(taken almost verbatim form the California DMV's website).

Maybe by 2010 they'll think to specifically prohibit emailing, playing with your iPhone's GPS feature, video games, and taking photos of the marquis which warns against texting while driving...uh, while driving. None of the above, perhaps STILL legal activities, are adviseable, irrespective of the absence of artfully worded legislation and legislative foresight.

More to follow after I assign my law clerk to research Proposition 9 and other laws affecting the public safety and the rights of the accused.