Some noteworthy New Laws in California for 2011

• Non–Vehicle Code infractions can now be dismissed under PC 1203.4a.  This is the remedy commonly known as expungement.
• The threshold for felony grand theft increased from $400 to $950.
• “Petty theft with a prior” is now, unless the defendant has a strike or sex offense prior, “petty theft with three priors.”  
• Marijuana possession, less than an ounce, is now an infraction.
• Limited immunity from prosecution for certain low-grade alcohol-related offenses granted to persons under the age of 21 who are reporting that they or someone else are in need of medical assistance.

Psst! Who invited the cops?!

Whether you like it or not, the County Board of Supervisors, in faithful service to their curmudgeon constituency, has invited the cops to your next social gathering.  I first wrote in opposition to the very controversial "Social Host Ordinance" (SHO) in June of 2008.  In spite of the fact that the clear majority of Isla Vistans oppose this ordinance (and maybe that's because it's widely believed that Isla Vista is the only place where the SHO will be enforced with any regularity), it was enacted into law on December 1.  As I stated previously, the police in Isla Vista and elsewhere are not without tools to suppress underage drinking.  They have numerous statutes at their disposal that enable them to detain people that are in public (or in some cases in the public view) and, at the very least, can seize and pour out the drink with impunity.  Most don't stop there, however.  The Isla Vista Foot Patrol issues thousands of tickets per year for minor in possession, open container in public, and related law violations.  Those under 21 are booked into jail for public intoxication at the drop of a hat.  And let's not forget that they were already barging uninvited into apartments and houses in Isla Vista long before the SHO was first proposed.  Accounts of frequent and deliberate Fourth Amendment violations by the Isla Vista Foot Patrol are common.

The truth is cops barge in to private spaces because they can get away with it, with or without a SHO.  Any true accountability for doing so when the sum total of damages are usually hurt feelings and the replacement value of a beer is and was non-existent.  The big difference now is that they will, under color of the SHO, have an easier time holding those accountable who are furnishing alcohol to those under 21 in smaller gatherings.  There was never really any difficulty holding the big party throwers (i.e., hosting 10 or more people) accountable for serving alcohol to minors because the cops could either walk through an open door and/or demand to speak to the host in order to enforce a noise violation and the exception to the warrant requirement would sprout up during that encounter.  Now what they are able to do, under color of the SHO, is to enter any apartment where there is any noise or other evidence noticeable from the outside that suggests there is a "social gathering" going on inside.   That's pretty broad (read "overbroad").  It doesn't have to be a raging party.  Two people sharing one beer is a party.  They could both be 21 or older but the cops are still, under color of the SHO, allowed to barge in to sniff drinks and check ID's and whatever contraband they see in plain view is fair game.  A typical reaction of acceptance of the Government over-reaching might be:  'well, even the cops understand that underage beer consumption and college are synonymous and that they will, therefore, use good judgment on deciding when to enforce this law'.  I'm sure most cops will.  However, what this law does is enable cops with poor judgment to rampantly intrude into peoples' private spaces in ways that will deter even legal conduct.  Giving that much 'unbridled' discretion to a rank and file patrol officer is disfavored by the California Supreme Court and may not otherwise withstand Constitutional scrutiny.  For example, according to the holding of the California Appellate Court in People v. Hua, police officers may not enter a dwelling absent a warrant simply because they believe that a non-jailable criminal offense is taking place inside. 

I hereby invite anyone who has a case involving the enforcement of the SHO to contact me and I will consider handling the matter pro bono.

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.

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.

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.

A quiet Halloween

Compared with 2004, and other busy years, this Halloween celebration in Isla Vista was a quiet one. There were only 228 arrests (compared with as many as 700 in previous years). There were only 200, or so, citations for MIP and other alcohol related misconduct. The best news of all is that no one got seriously hurt. Apart from the fact that some community members are just disturbed by people letting their hair down and having a good time, the purpose of spending over $1,000,000 in law enforcement overtime compensation and other related expenses was to save lives; and it worked. Of course, the dependent premise is that someone would have died had they not all been there. Of that, we cannot be sure. But, better safe than sorry; no question. What is worth thinking about is that as many as 150 community members, who had no criminal records before the celebrations started, will, within the next few months incur convictions for mostly misdemeanors; the most common among them will be public intoxication (647(f) PC)). It is unfortunate that the lack of a sobering center Isla Vista, as I have pointed out in a previous post, in and of itself, is the number one factor why many will now have to do battle in court, or simply accept the fate of becoming convicted of a crime by pleading guilty. Maybe sometime soon the community leaders will make effectuating the State's policy preference to sober-up the intoxicated, see Penal Code section 647(g), a high priority, rather than criminalizing large swaths of the local student population every year at Halloween (and throughout the year). After all, we don't need any more "criminals" in our community, do we?

Arrest that (wo)man!

On an unrelated note: I invite anyone to send me a photo of them dressed up, for Halloween, as an upside-down beer cup. I may post it on this blog, depending on its quality. Let's hope, as well, that you will then be ignored by the IVFP, as they promise. This upside-down beer cup myth is getting big. I just read about it on edhat.com of all places.

Okay, now onto my latest gripe: Women getting arrested because they are women. Yes Isla Vistans, look outside between midnight and 3 a.m., it's happening at an alarming rate. Women who are walking around after midnight are getting arrested, at least in part, because they are women. Is this the "official policy" of the IVFP?? They will deny it. However, various of their members have been heard to say, by several arrest subjects, that they are being arrested for their own safety. After all, a lot of sexual assault occurs in Isla Vista. Uh, okay, thanks for arresting me! How thoughtful! Is this just another form of sexual assault? Probably not; especially if the officers are not touching and grabbing the arrest subjects for purposes of sexual arousal. And we can assume that only a small percentage of our law enforcement friends are actually that warped and desperate. However, the non-arousing arrest amounts to discriminatory enforcement in violation of the Equal Protection clause of the U.S. Constitution. This can be illustrated by a simple question: Are men getting arrested, or even contacted by the police, at similar levels of intoxication? In fact, don't men actually have to be drunk, or at least rowdy, to get arrested for public intoxication (647(f) PC))? The fact is, we, as a society, are less protective of our young men than our young women. BUT, is that a valid reason to criminalize the women and make them spend the night in jail, etc., when we let men get so drunk that they end up passed out and snoring in the street? Hey IVFP, listen up! Where is it in your training manual that says you can't, or shouldn't, simply offer the young lady a ride/walk home. Isn't that truly in her best interests?

Is Being Drunk a Crime?

Well, that depends. You can be drunk in places that are not open to the public (such as your apartment, your friend's condo, your grandmother's house, etc.) Now, I didn't say that you would be encouraged to do anything of the sort. In fact, getting drunk is a highly over-rated activity. As far as those high-minded achievers that set out to get drunk...well, the best you can say about them is that they will, most likely, accomplish their mission. That's because it takes a pretty weak stomach, and a complete lack of imagination (as in none) to have any difficulty getting there. And, as they probably know, they're going to regret it; at least temporarily. Yes, I'm talking about the hangover. It's nature's way of punishing them for what is essentially a bad all-around idea. The depressing truth is that the euphoria associated with drinking a large quantity of alcohol lasts for only a short while compared to what will follow. In many cases, blackouts, belligerence, sexually aggressive/inappropriate behavior, vomit, passing out, and hang-overs will be the heavy price you will pay for that initial feeling of artificial contentment with life, your surroundings, and your company. But I digress...back to Grandma's house... Whether it is a crime to be drunk outside of your grandmother's house in California is largely up to the police officer. And, no, I'm not saying that "it's his word against yours". Not this time. What I am saying is that the police officer who believes someone is so intoxicated (in public) that they cannot care for themselves may arrest them criminally (647(f) PC)) or civilly (647(g) PC)). Penal Code section 647(g) reads as follows:

(g) When a person has violated subdivision (f), a peace officer, if he or she is reasonably able to do so, shall place the person, or cause him or her to be placed, in civil protective custody. The person shall be taken to a facility, designated pursuant to Section 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates. A peace officer may place a person in civil protective custody with that kind and degree of force which would be lawful were he or she effecting an arrest for a misdemeanor without a warrant. No person who has been placed in civil protective custody shall thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement. This subdivision shall not apply to the following persons:
(1) Any person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug.
(2) Any person who a peace officer has probable cause to believe has committed any felony, or who has committed any misdemeanor inaddition to subdivision (f).
(3) Any person who a peace officer in good faith believes will attempt escape or will be unreasonably difficult for medical personnel to control.

So, you ask, if you fit within the above criteria, why did you get taken to jail and why are you now charged with crime? Well, one question to ask is whether there is a "sobering center" facility in the immediate area with a contract with that municipality to offer a safe (alcohol free) environment for you to hang out while you inch toward sobriety; and, no, it doesn't usually take 72 hours before they will decide to let you go. Four to six hours is more ordinary. In the City of Santa Barbara, there is such a facility. In other parts of South Santa Barbara County there is not. Accordingly, if you are arrested in Isla Vista for Public Intoxication (a nightly occurrence), you are going to jail. There is talk of installing a sobering center in Isla Vista, but until that happens, being drunk in public in Isla Vista (and other parts of Santa Barbara County) is a crime.

Fall in Isla Vista - Arrest Season

Yes, it's that time of year again: Isla Vista Arrest Season. While the rest of the Northern Hemisphere may look forward to cooler temperatures, shorter afternoons, football games, and raking leaves, Isla Vista can expect an increase in arrests as the Foot Patrol is now out in force issuing citations for MIP, Drunk In Public, Open Containers, Furnishing Alcohol to Minors, and myriad other disorderly conduct law violations; and the UCSB students haven't even returned from Summer Vacation yet. Responsive to the up-tick in arrests, I am introducing a new website http://www.ivlawyer.com/ This site, although new and still developing, is intended to provide answers to frequently asked questions (FAQ's) by those arrested and cited for the above law violations, and to provide an easy means to contact me (24/7) concerning such problems. It might even prevent an arrest or two by passing on some insights on arrest avoidance; although with the numbers of police now patrolling I.V. with newly printed citebooks, and an ever-present mandate by the local community and the University to "get tough" on rowdy behavior in I.V., don't count on it.