There ought to be a law that says that every time a new law is enacted by the legislature, the legislature should be required to make room for it by unenacting another law from the books and making it widely known that they have done so. Let's enact a page limit on law. And, no, this proposal isn't to preserve shelf space nor trees. In fact, since law is primarily stored and accessed online nowadays, there really is no limit to the number of laws we can enact before we run out of shelves or trees. So the question is, when is enough law enough?
Some, like me, would say that there is already enough law. Laws that are either obsolete, dead letter, overly intrusive or restrictive (read: puritanical) by present day standards, and/or unenforced should be deleted from the "books". Not only should laws be widely known and understood, they should be limited to what's necessary to deter and prevent that which is truly socially undesirable, not just speculatively so. Without these limits, every day ordinary behavior (whether completely desirable or not) is rendered illegal, perhaps punishable by a small fine only in many instances, to the point where nearly everyone (if not everyone) is arrestable at least once, if not throughout, a typical day. Does this sound like a "free society"? At present, it is difficult to get through the day without violating at least one law. As an example, have you ever driven anywhere without exceeding a posted speed limit by at least 1 mile per hour, even if for only a few seconds? If you say "yes", well... I won't call you a liar because you're reading my blog. But, you get my point... Completely law abiding behavior, in every sense of the word, is a virtual impossibility in a society that has millions of pages of description of what constitutes unlawful behavior.
Since we live in an era where everyone is busy re-defining the problem and the language we use to describe it, I'll follow suit and go ahead and propose that we should stop calling legislators "lawmakers". Let's, instead, call them "law quality control officials" (LQCO's). Rather than thinking of new laws to enact, our elected LQCO's should be thinking of ways to improve on existing ones, by clarifying some and unenacting others. I'm just not sure we really need even one more law. And sometimes, as any cattle rancher will tell you, you must occasionally thin the herd.
Every New Year we lawyers pay attention to what laws are new on the books, and if there are any deleted or lapsed (which does happen on occasion), it generally goes without ceremony, any effective notice to the masses, and not due to any such brilliant new legislation such as the one I am proposing.
So here's a peek at SOME of the new laws coming our way in 2008:
Cell phone use in vehicles. SB 1613 and 33. Before you run out to buy a new Bluetooth device (that actually works in a satisfying way - and doesn't just make you look like an electronic gadget loving dork who is not really paying attention to what's happening around him), let me put you at ease by telling you that the laws concerning cell phone use while driving are not set to go into law until July 1, 2008. So enjoy your last six months of relative bliss while you drive with one hand on the wheel and the other pressing your cell phone to your ear, or with no hands on the wheel while sending a text message or an email...but please do so safely. And to the teenagers with provisional licenses: You will have to hang up and drive altogether (hands free or not)... at least until you are no longer a teenager, that is. July 1 is the end of an era. Let's call it the "pre-hands-free era", where it is unclear (at best) whether there was a resultant increase in the numbers of traffic accidents. Interestingly, in recognition of the Fourth Amendment's prohibition of unreasonable warrantless searches and seizures, these new laws disallow law enforcement's use of these laws as a pretext to pull someone over. In other words, they have to "know", and not simply "suspect", that you are violating one of these laws before they pull you over on that basis alone. I must say, I do like this built-in privacy protection. Different.
School Zones. AB 321 will now allow local jurisdictions to adopt an ordinance establishing a speed limit of 15 miles per hour in a school zone. [So, you must slow down even when driving Miss Daisy through a school zone].
Street Racing. SB 67 reauthorizes a law that lapsed in 2006. It allows police to impound a vehicle for 30 days when a person is arrested for street racing, exhibition of speed, or reckless driving. [See, laws can lapse...in theory anyway.]
Smoking in Vehicles. SB 7 prohibits anyone from smoking a cigarette, a cigar, or a pipe in a vehicle, whether in motion or not, in which there is a minor. The smoker can be fined up to $100. Police can only cite for this violation in connection with a stop for a suspected violation of another driving offense. [For enacting this brilliant law, the Legislature truly deserves the Nanny Award... do we really need this law? Is it really going to prevent even one instance of lung cancer? Who knows?]
Traffic School. AB 645 prohibits a court from allowing a driver who commits a two-point violation from attending traffic school. Two-point violations include drunk driving, hit-and-run, speed contests, evading an officer, and vehicular manslaughter. [Uh, this wasn't happening anyway, by the way].
Saturday, December 29, 2007
Wednesday, December 19, 2007
Stocking stuffers!
I am proud to share the following true story:An anonymous informant told me that he had two members of the Santa Barbara Probation Department show up at his door on Sunday afternoon. They announced that they wanted to search his residence for a person they were interested in. Instead of refusing to the invasion of privacy in the traditional way (i.e., by saying "no"), the informant directed their attention to a decal which he had placed about the front door which says, "I do not waive my right against warrantless search & seizure". To each question, he simply tapped the window behind the sticker. After stammering, arguing and issuing various threats, the probation officers left in a huff. They have not been heard from since. Apparently, the Fourth Amendment is alive and well this holiday season.
By the way, the stickers, along with other great stocking stuffers, can be purchased on my website http://www.ivlawyer.com/...
Monday, December 17, 2007
Breath to Blood Fallacies of DUI Law
It is the alcohol in your blood that affects your ability to safely drive a motor vehicle. Because of the many causes of alcohol on the breath, only one of which is alcohol in the blood, and the fact that the alcohol content of your breath is, at best, loosely correlated with the alcohol content of your blood, the relationship between alcohol on your breath and your ability to safely drive a motor vehicle is actually pretty weak. So, why are breath testers (aka intoxylizers) in such wide use around the globe for determining levels of intoxication? Economics. It is cheaper and more expedient to test the breath of an individual than to draw and then test their blood by lawful and forensically approved methods. While cheaper, nearly everyone will agree that breath testing is less accurate than blood testing to establish a particular blood alcohol content. How much less accurate is breath testing than blood testing is hotly debated.
The debates center around three fallacies as follows:
The first fallacy is that breath is not blood and, therefore, a breath test is not a blood test. But you knew that already, right?
The second fallacy is that the breath generated in everyones' deep lungs (aka alveolar air) carries the same number of alcohol molecules when their blood alcohol content contains the same concentration of alcohol. This is simply wrong. The "breath/blood partition ratio" that the industry of breath instruments programs into their instruments is one gram of alcohol per 210 liters of breath. However, this ratio of 1:2100 is an average, not the truth about you or me. In fact, this ratio varies between 1:1300 to more than 1:3000 across the population. This difference across the population can and likely does account for innocents getting wrongfully accused as well as guilty people getting away with DUI. More vividly, my deep lung air might contain more alcohol than your breath, even though our blood alcohol content is the same. And, most likely, neither one of us has exactly a 1:2100 ratio at any given time. So, the industries' instruments are not designed for you and me, but for the population in general.
The third partial-fallacy, is that these breath instruments are in proper working order, properly maintained, properly calibrated, operated under ideal conditions (temperature, wind, etc.), actually testing deep lung air, and operated by someone with adequate training, who is, at a particular time, administering the tests in strict compliance with their training.
So, back to economics... After these alarming fallacies were exposed over many years of agressive and skilled litigation of DUI's, resulting in many people being found not guilty of DUI, California's legislature, along with many other state legislatures endeavored to write into law what might be viewed as a new law violation: Driving with a BREATH alcohol content which tests .08% or greater on instruments which presume a 1:2100 blood/breath partition ratio.
The Supreme Court of California affirmed on appeal the inadmissibility of testimony of an individual’s partition ratio, especially when the defendant exhibited clear signs of alcohol intoxication. Here the court looked to legislative intent to discourage drunken driving therefore a conviction based on alcohol measured by breath as amended by statute would stand. People v. Bransford, 884 P.2d 70 (Cal. 1995).
Say it ain't so!? Yes, the Supreme Court favored the California Legislature's one-size-fits all pragmatism over the pursuit of justice in the individual case. Sounds great until you're the one looking at a DUI case based on a Breath Alcohol test result narrowly above the legal limit, doesn't it? (Advertisement: If you are facing such a charge in Santa Barbara, and believe that your unique breath partition ratio may have over represented your blood alcohol percentage, then contact me at 805-892-4922 right away to discuss how you might be able to successfully defend your case).
The debates center around three fallacies as follows:
The first fallacy is that breath is not blood and, therefore, a breath test is not a blood test. But you knew that already, right?
The second fallacy is that the breath generated in everyones' deep lungs (aka alveolar air) carries the same number of alcohol molecules when their blood alcohol content contains the same concentration of alcohol. This is simply wrong. The "breath/blood partition ratio" that the industry of breath instruments programs into their instruments is one gram of alcohol per 210 liters of breath. However, this ratio of 1:2100 is an average, not the truth about you or me. In fact, this ratio varies between 1:1300 to more than 1:3000 across the population. This difference across the population can and likely does account for innocents getting wrongfully accused as well as guilty people getting away with DUI. More vividly, my deep lung air might contain more alcohol than your breath, even though our blood alcohol content is the same. And, most likely, neither one of us has exactly a 1:2100 ratio at any given time. So, the industries' instruments are not designed for you and me, but for the population in general.
The third partial-fallacy, is that these breath instruments are in proper working order, properly maintained, properly calibrated, operated under ideal conditions (temperature, wind, etc.), actually testing deep lung air, and operated by someone with adequate training, who is, at a particular time, administering the tests in strict compliance with their training.
So, back to economics... After these alarming fallacies were exposed over many years of agressive and skilled litigation of DUI's, resulting in many people being found not guilty of DUI, California's legislature, along with many other state legislatures endeavored to write into law what might be viewed as a new law violation: Driving with a BREATH alcohol content which tests .08% or greater on instruments which presume a 1:2100 blood/breath partition ratio.
The Supreme Court of California affirmed on appeal the inadmissibility of testimony of an individual’s partition ratio, especially when the defendant exhibited clear signs of alcohol intoxication. Here the court looked to legislative intent to discourage drunken driving therefore a conviction based on alcohol measured by breath as amended by statute would stand. People v. Bransford, 884 P.2d 70 (Cal. 1995).
Say it ain't so!? Yes, the Supreme Court favored the California Legislature's one-size-fits all pragmatism over the pursuit of justice in the individual case. Sounds great until you're the one looking at a DUI case based on a Breath Alcohol test result narrowly above the legal limit, doesn't it? (Advertisement: If you are facing such a charge in Santa Barbara, and believe that your unique breath partition ratio may have over represented your blood alcohol percentage, then contact me at 805-892-4922 right away to discuss how you might be able to successfully defend your case).
Tuesday, December 11, 2007
Beware the scarlet letter "D" for DUI
The Daily Sound recently published a list of persons arrested for misdemeanor DUI on a particular weekend under the heading, "Police were busy over the weekend". While smalltown news outlets may experience slow news days, this practice of putting the names of persons arrested on this class of crimes (even though they are public record) has not been the standard practice of journalists here in Santa Barbara unless the individual is a public figure or concerns the public at large in some way (like, for instance, when the community christmas tree gets hit). So, what's going on here? Is this another isolated case of poor journalistic judgment here in Santa Barbara, or could it be seen as part of a national trend to publicly shame DUI defendants?
Maricopa County, Arizona, often on the leading edge of retrograde draconian punishments (e.g., its most famous effort: tent city), has hatched a new way to "crack down" on the "growing" problem of drunk driving. The County Attorney is putting his name along with the mugshot of DUI arrestees on billboards as a threat to motorists that they too could end up having their likeness published in an unflattering light if they end up getting arrested for DUI.
Whatever the public safety benefit, there is another way of looking at this. Criminal Law Professor Dan Markel, at Florida State College of Law, commented on the practice of shaming of DUI defendants as follows:
"The very goal of shaming is the dehumanization of another person before, and with the participation of, the public. Before we permit democratic institutions to subject an offender to ridicule, scorn and humiliation, we have to ask whether this kind of punishment comports with evolving standards of decency and the dignity of humankind. The answer is clearly no."
The question is, have we evolved beyond the witch-hunting days of Salem, Mass., or are we destined to repeat the mistakes of the past? Is the public shaming of the fictional adulteress Hester Prynne with the scarlet letter "A" fiction? Cutting off the hands of petty thieves and public floggings are likely effective deterrents, but in the United States, at least, we reject these forms of punishments. There is a lot we can do to deter drinking and driving that we are not doing. Less ambiguity in our laws, and better public transportation are dui deterrents that do not simply appeal to our base instinct to humiliate, dehumanize, and shame our fellow human beings.
Maricopa County, Arizona, often on the leading edge of retrograde draconian punishments (e.g., its most famous effort: tent city), has hatched a new way to "crack down" on the "growing" problem of drunk driving. The County Attorney is putting his name along with the mugshot of DUI arrestees on billboards as a threat to motorists that they too could end up having their likeness published in an unflattering light if they end up getting arrested for DUI.
Whatever the public safety benefit, there is another way of looking at this. Criminal Law Professor Dan Markel, at Florida State College of Law, commented on the practice of shaming of DUI defendants as follows:
"The very goal of shaming is the dehumanization of another person before, and with the participation of, the public. Before we permit democratic institutions to subject an offender to ridicule, scorn and humiliation, we have to ask whether this kind of punishment comports with evolving standards of decency and the dignity of humankind. The answer is clearly no."
The question is, have we evolved beyond the witch-hunting days of Salem, Mass., or are we destined to repeat the mistakes of the past? Is the public shaming of the fictional adulteress Hester Prynne with the scarlet letter "A" fiction? Cutting off the hands of petty thieves and public floggings are likely effective deterrents, but in the United States, at least, we reject these forms of punishments. There is a lot we can do to deter drinking and driving that we are not doing. Less ambiguity in our laws, and better public transportation are dui deterrents that do not simply appeal to our base instinct to humiliate, dehumanize, and shame our fellow human beings.
Wednesday, December 5, 2007
Universities Are Paying More Attention to Criminal Conduct
According to the LA Times, the Virginia Tech shooting tragedy has inspired more vigilance by university admissions officers for undergraduate and graduate programs. Some schools, mostly private, and those 315 schools who make use of the Common Application, have either added or made more probing questions concerning the prior misconduct of the applicants. The Los Angeles Times today printed an article called, "Does a pot bust trump a 4.0 GPA?", which calls attention to this new trend. Obviously schools are hoping to weed out individuals who, according to their criteria, may present undue safety risks.
Those who have plans to apply to college and/or graduate programs should think seriously, and soberly, about how certain behavioral patterns may limit their pursuit of higher education. Those who have suffered arrests for criminal acts, or who have been cited for misconduct by their academic institution, should consider fighting those charges in order to avoid the long term negative impacts. My prior posts concerning how a criminal conviction reduces one's long term earning potential and how such a conviction may even interfere with travel plans may be of interest to persons who are concerned how various forms of misconduct may negatively affect their plans for the future.
If you are facing charges of academic or criminal misconduct, you should speak to a lawyer right away.
Those who have plans to apply to college and/or graduate programs should think seriously, and soberly, about how certain behavioral patterns may limit their pursuit of higher education. Those who have suffered arrests for criminal acts, or who have been cited for misconduct by their academic institution, should consider fighting those charges in order to avoid the long term negative impacts. My prior posts concerning how a criminal conviction reduces one's long term earning potential and how such a conviction may even interfere with travel plans may be of interest to persons who are concerned how various forms of misconduct may negatively affect their plans for the future.
If you are facing charges of academic or criminal misconduct, you should speak to a lawyer right away.
Tuesday, December 4, 2007
NO Canada!
In a previous post I addressed how a conviction of a crime (even a misdemeanor) can negatively impact a person's earnings. What you probably didn't know is that a criminal conviction (even a misdemeanor) can cause one to be excluded from Canada and other countries with similar immigration policies (e.g., France). If you don't believe me, see for yourself on Canada's website. My advice to anyone who has a need or desire to travel to Canada, is to avoid becoming convicted of a misdemeanor or something more serious. And, if you have been already convicted (and can't change that), then contact the Canadian consular office nearest you to explore what may be your options to enter. If you have suffered any criminal conviction, particularly in the last five years, you should not book flights to, nor drive to, Canada without taking a close look at this potentially expensive interruption of your travel plan. Actually, don't take for granted that you can enter any country when you have a criminal conviction in your past. It is always wise to research the immigration policies of any country before you book your travel. To find a consular office of the country you are planning to travel to, click here.
Sunday, November 25, 2007
Less DUI law is more.
Drinking and driving is not necessarily a crime in the U.S. In California, if you are at least 21, you may not drive with a blood alcohol concentration of .08 percent or greater nor may you drive under the influence of alcohol (and/or other intoxicants). It is well known that Sweden has one of the toughest, if not the toughest, drinking and driving laws in the world. In Sweden, to drive with .02 percent or greater of alcohol in your blood is a crime. Even there, it is lawful to have at least some alcohol in your blood. However, .01 or even .019 percent (which is roughly the level a 180 lb. man would reach if he had the alcohol content of one beer immediately shot into his bloodstream with a syringe) is highly unlikely, according to the current body of scientific research on this subject to, by itself, cause impairment of one's ability to safely drive a motor vehicle. But could as little as one beer be an associated factor with unsafe driving? After all, doesn't drinking one beer cause, or at least contribute to, sleepiness (a highly dangerous state to be in while driving)? The answer is yes.
So, why is it that we (and even the Swedish!) are so tolerant of drinking and driving? Is it that alcohol is "a long-standing part of our [and Swedish] culture, and most adults who drink are able to enjoy it responsibly as part of a healthy lifestyle"? Perhaps. However, before one mindlessly signs on to this oft heard rationale, consider its source. The above quote is actually taken directly from the Century Council which calls themselves, "a national not-for-profit organization dedicated to fighting drunk driving and underage drinking formed by America's leading distillers". The leading distillers, with plenty of money to spend getting their message out, are bent on preserving the acceptance of alcohol as part of a "healthy adult lifestyle". Even if we accept that alcohol is a net positive influence on society such that it should remain lawful to consume (unlike a great many other intoxicating substances which have been declared unlawful), do we still have tolerate drinking and driving? No, actually, we don't.
As I wrote in a previous post, the law which states that you may not drive at .08 percent or greater of alcohol in your blood does not amount to official permission to drive between .05 and .07 (or even at .01 for that matter). The numeric "limit", as it were, is almost meaningless in a case which involves bad driving (or an accident, if you can actually separate the two concepts). Consequently, those who set out to drink the maximum number of drinks that their body weight and the DMV chart suggests they may drink without reaching .08 percent are missing a very important legal reality. They are, without realizing it, making an ill-considered bet that they will not be involved in a traffic accident on their way home. But, in a sense, they are being encouraged to make this bet. This, for obvious reasons, puts us all at greater risk of an accident, and them at risk of being arrested for DUI. There is no safe number of drinks to drink before driving. Even one drink, as it contributes to sleepiness, is unsafe. The worst of it is, that by condoning through laws and charts the act of drinking one, two, and even three drinks, as a part of "healthy adult lifestyle", people who might otherwise reflect on whether drinking even one drink is a safe course of conduct to begin with, may just fall back on (or hide behind) the government's standard of what safe drinking behavior is and, in effect, put themselves at risk of alcoholism and everyone at a much greater risk of alcohol related traffic accidents. To many who drink, two or three drinks causes them to approach, if not achieve, a euphoric feeling of invincibility. So, how difficult is it to stop at two (or three)? Too difficult, apparently. This is likely because two or three is just about enough to make most people (excepting those with a very high tolerance for alcohol) stop caring about the threat of arrest, much less the threat of a traffic accident. It doesn't take a scientist to realize that two drinks leads to three (or more).
In writing this post, I do not advocate for prohibition of alcohol in general. I think what people ingest which causes neither them nor anyone else any real harm should not be made illegal. I do, however, challenge the prevailing myth that drinking and driving is consistent with a "healthy adult lifestyle". Drinking in moderation is fine. Driving in moderation is fine. Together, in any amount, they are dangerous. However, even MADD, which is primarily supported by the auto and insurance industries, doesn't strongly advocate for an absolute end to drinking and driving. Their official position is against "operating under the influence", not against drinking and driving itself. So, how did I end up to the right of MADD on this subject? Easily. I don't like the hypocrisy involved in the current system which I am exposed to on a daily basis. The government, and MADD, ask people to get angry at the DUI offender (and in some cases their lawyers) without considering their own contribution to this problem. At best, the government condones drinking and driving and, at worst, it encourages it. MADD, and other anti-DUI advocacy groups, constantly ply the lawmakers with arguments, and other encouragement, to toughen the laws without addressing the hypocrisy. They, in turn, enact these new laws with zeal to convince their constituents that they are "getting tough" on crime. Consequently, we end up with incrementally tougher but ever more confusing laws which, we shouldn't wonder why, are not doing enough to reduce traffic accidents. I believe that we should skip all of the intermediate steps and simply prohibit the dangerous course of conduct with a clear bright line rule. Thousands of hair-splitting hours at the roadside, in the station, in court and in the legislature could be saved. I think we should simply ban drinking and driving and put more money into rail and other transportation alternatives. But that just makes too much sense and just happens to be too unsettling to the automobile, distilling, and insurance industries.
So, why is it that we (and even the Swedish!) are so tolerant of drinking and driving? Is it that alcohol is "a long-standing part of our [and Swedish] culture, and most adults who drink are able to enjoy it responsibly as part of a healthy lifestyle"? Perhaps. However, before one mindlessly signs on to this oft heard rationale, consider its source. The above quote is actually taken directly from the Century Council which calls themselves, "a national not-for-profit organization dedicated to fighting drunk driving and underage drinking formed by America's leading distillers". The leading distillers, with plenty of money to spend getting their message out, are bent on preserving the acceptance of alcohol as part of a "healthy adult lifestyle". Even if we accept that alcohol is a net positive influence on society such that it should remain lawful to consume (unlike a great many other intoxicating substances which have been declared unlawful), do we still have tolerate drinking and driving? No, actually, we don't.
As I wrote in a previous post, the law which states that you may not drive at .08 percent or greater of alcohol in your blood does not amount to official permission to drive between .05 and .07 (or even at .01 for that matter). The numeric "limit", as it were, is almost meaningless in a case which involves bad driving (or an accident, if you can actually separate the two concepts). Consequently, those who set out to drink the maximum number of drinks that their body weight and the DMV chart suggests they may drink without reaching .08 percent are missing a very important legal reality. They are, without realizing it, making an ill-considered bet that they will not be involved in a traffic accident on their way home. But, in a sense, they are being encouraged to make this bet. This, for obvious reasons, puts us all at greater risk of an accident, and them at risk of being arrested for DUI. There is no safe number of drinks to drink before driving. Even one drink, as it contributes to sleepiness, is unsafe. The worst of it is, that by condoning through laws and charts the act of drinking one, two, and even three drinks, as a part of "healthy adult lifestyle", people who might otherwise reflect on whether drinking even one drink is a safe course of conduct to begin with, may just fall back on (or hide behind) the government's standard of what safe drinking behavior is and, in effect, put themselves at risk of alcoholism and everyone at a much greater risk of alcohol related traffic accidents. To many who drink, two or three drinks causes them to approach, if not achieve, a euphoric feeling of invincibility. So, how difficult is it to stop at two (or three)? Too difficult, apparently. This is likely because two or three is just about enough to make most people (excepting those with a very high tolerance for alcohol) stop caring about the threat of arrest, much less the threat of a traffic accident. It doesn't take a scientist to realize that two drinks leads to three (or more).
In writing this post, I do not advocate for prohibition of alcohol in general. I think what people ingest which causes neither them nor anyone else any real harm should not be made illegal. I do, however, challenge the prevailing myth that drinking and driving is consistent with a "healthy adult lifestyle". Drinking in moderation is fine. Driving in moderation is fine. Together, in any amount, they are dangerous. However, even MADD, which is primarily supported by the auto and insurance industries, doesn't strongly advocate for an absolute end to drinking and driving. Their official position is against "operating under the influence", not against drinking and driving itself. So, how did I end up to the right of MADD on this subject? Easily. I don't like the hypocrisy involved in the current system which I am exposed to on a daily basis. The government, and MADD, ask people to get angry at the DUI offender (and in some cases their lawyers) without considering their own contribution to this problem. At best, the government condones drinking and driving and, at worst, it encourages it. MADD, and other anti-DUI advocacy groups, constantly ply the lawmakers with arguments, and other encouragement, to toughen the laws without addressing the hypocrisy. They, in turn, enact these new laws with zeal to convince their constituents that they are "getting tough" on crime. Consequently, we end up with incrementally tougher but ever more confusing laws which, we shouldn't wonder why, are not doing enough to reduce traffic accidents. I believe that we should skip all of the intermediate steps and simply prohibit the dangerous course of conduct with a clear bright line rule. Thousands of hair-splitting hours at the roadside, in the station, in court and in the legislature could be saved. I think we should simply ban drinking and driving and put more money into rail and other transportation alternatives. But that just makes too much sense and just happens to be too unsettling to the automobile, distilling, and insurance industries.
Saturday, November 17, 2007
They Didn't Read Me My Rights!
Nary a day goes by when I don't hear this phrase at least once. Thanks to Hollywood, nearly everyone believes, or at least wants to believe, that the sine qua non of lawful and ethical police conduct is where they initiate any arrest with the famous preamble, "you have the right to remain silent yada yada..." It should flow from the police officers' lips as fluidly as those who are paid to say, "welcome to McDonald's, may I take your order please", shouldn't it? The answer is "no". Yes, I am a criminal defense lawyer, and the answer is still "no". Sorry. This deeply ingrained belief, held by nearly everyone, is a powerful example of how the mass media misleads the public. So, was the Miranda Rule contrived by Paramount pictures? No. It was actually written into law by the United States Supreme Court, led by Chief Justice Earl Warren, in the landmark decision Miranda v. Arizona in 1966. It is one of the most, if not the most, significant Supreme Court actions to deter police misconduct. It was designed to do one thing and one thing only. It was designed to prevent the police from forcing people against their will (regardless of their guilt) from confessing to crime. However, it has not, as was intended, put an end to coercive interrogations by the police. But it may have deterred a great number of them. It has brought about some unintended changes and not all of them are positive ones.
Yes, innocent people sometimes confess to crimes they did not commit and guilty people are often led by the police to worsen their circumstances in a way which violates the spirit of the constitution. So, by dampening the polices' temptation to spend hours upon hours grinding someone down through a coercive interrogation, fewer innocents will confess, and fewer guilty people will be forced, against the spirit of the constitution, to be witnesses against themselves. Like many well-intended efforts, the Miranda v. Arizona ruling did not achieve all that it set out to achieve. In my view, its most positive contribution is that it made a few important constitutional rights reciteable, if not precisely understood, by practically every member of our society. It did not put an end to coercive conduct by law enforcement; not by any stretch of the imagination. This is due to the fact that police still feel quite justified in using their inherent power to intimidate, and otherwise manipulate, people into confessing to their crimes, and are not going to let some phony baloney technical rule (written by lawyers, no less!) get in the way of solving a crime. Yes, they do, on occasion, read the advisement, as required by law, but not surprisingly, it has not put an end to confessions. People still confess. And what they don't necessarily appreciate while they are doing it, is that they are destroying every chance they might otherwise have in getting favorable treatment in court.
Confessing is seldom, if ever, going to help someone get a better deal in court. One operating fallacy is that you won't get credit for early acceptance of responsibility if you wait to talk to a lawyer first. That is simply false. The other operating fallacy is that you will make the police angry if you don't confess, and will therefore worsen the outcome. Firstly, if a police officer is angered by someone exercising their constitutional right to remain silent, they ought to strongly consider a change in professions, if not citizenship. The constitutionally guaranteed right against self-incrimination is as American and mom and apple pie! Secondly, your goal is not to make friends with the police officer. Rather, your goal is to avoid incriminating yourself. Let them be angry. That, in and of itself, probably helps you more than it hurts you. Let their emotions get the better of them. And keep your mouth shut. Do honor to our great constitution by not incriminating yourself!
It appears that the Miranda advisement, when read, is not understood as anything more than a familiar police ritual. While the police are saying,
"you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have a lawyer present while being questioned. If you cannot afford a lawyer, the court will appoint a lawyer to represent you...",
the listener is most likely thinking something along these lines,
"Crap! I'm really in trouble now. I guess they aren't going to let me go with a warning after all! They believe I did it! I'm screwed no matter what! What can a lawyer do to help!? How am I going to get out of here?! Maybe if I cooperate with them, and tell them what they want to hear, which is that I did it, they will appreciate that and maybe let me go home...or at least stop scaring me"
The most negative impacts of Miranda v. Arizona are as follows:
1. That police think that, by reading the Advisement, they are thereby rendering their arrest "by the book". It gives the police an easy (and cookbook recipe-like) way to legally sanitize the encounter without necessarily honoring the spirit of the constitution.
2. That arrestees believe that the police are supposed to read the Advisement every time they arrest someone and that they must do so early on in the encounter. Because the advisement, if it is read at all, is read late in the encounter, the arrestees form the opinion that they are being mistreated due to the fact that police aren't, according to their Hollywood-based understanding, following the one rule of police conduct of which they have become aware. Accordingly, the individuals develop a bad attitude toward the officers. This bad attitude can hurt the arrestees chances of getting a good deal in court, and also tends to validate negative views police carry toward the larger population. It widens the "us" (the police) versus "them" (the rest of society) gap which, I strongly believe, is the root cause of nearly every instance of police misconduct.
So, when do they have to read the Advisement, you ask? Only when you are in handcuffs or are otherwise confined and they happen to want (or need) you to confess to something.
Yes, innocent people sometimes confess to crimes they did not commit and guilty people are often led by the police to worsen their circumstances in a way which violates the spirit of the constitution. So, by dampening the polices' temptation to spend hours upon hours grinding someone down through a coercive interrogation, fewer innocents will confess, and fewer guilty people will be forced, against the spirit of the constitution, to be witnesses against themselves. Like many well-intended efforts, the Miranda v. Arizona ruling did not achieve all that it set out to achieve. In my view, its most positive contribution is that it made a few important constitutional rights reciteable, if not precisely understood, by practically every member of our society. It did not put an end to coercive conduct by law enforcement; not by any stretch of the imagination. This is due to the fact that police still feel quite justified in using their inherent power to intimidate, and otherwise manipulate, people into confessing to their crimes, and are not going to let some phony baloney technical rule (written by lawyers, no less!) get in the way of solving a crime. Yes, they do, on occasion, read the advisement, as required by law, but not surprisingly, it has not put an end to confessions. People still confess. And what they don't necessarily appreciate while they are doing it, is that they are destroying every chance they might otherwise have in getting favorable treatment in court.
Confessing is seldom, if ever, going to help someone get a better deal in court. One operating fallacy is that you won't get credit for early acceptance of responsibility if you wait to talk to a lawyer first. That is simply false. The other operating fallacy is that you will make the police angry if you don't confess, and will therefore worsen the outcome. Firstly, if a police officer is angered by someone exercising their constitutional right to remain silent, they ought to strongly consider a change in professions, if not citizenship. The constitutionally guaranteed right against self-incrimination is as American and mom and apple pie! Secondly, your goal is not to make friends with the police officer. Rather, your goal is to avoid incriminating yourself. Let them be angry. That, in and of itself, probably helps you more than it hurts you. Let their emotions get the better of them. And keep your mouth shut. Do honor to our great constitution by not incriminating yourself!
It appears that the Miranda advisement, when read, is not understood as anything more than a familiar police ritual. While the police are saying,
"you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have a lawyer present while being questioned. If you cannot afford a lawyer, the court will appoint a lawyer to represent you...",
the listener is most likely thinking something along these lines,
"Crap! I'm really in trouble now. I guess they aren't going to let me go with a warning after all! They believe I did it! I'm screwed no matter what! What can a lawyer do to help!? How am I going to get out of here?! Maybe if I cooperate with them, and tell them what they want to hear, which is that I did it, they will appreciate that and maybe let me go home...or at least stop scaring me"
The most negative impacts of Miranda v. Arizona are as follows:
1. That police think that, by reading the Advisement, they are thereby rendering their arrest "by the book". It gives the police an easy (and cookbook recipe-like) way to legally sanitize the encounter without necessarily honoring the spirit of the constitution.
2. That arrestees believe that the police are supposed to read the Advisement every time they arrest someone and that they must do so early on in the encounter. Because the advisement, if it is read at all, is read late in the encounter, the arrestees form the opinion that they are being mistreated due to the fact that police aren't, according to their Hollywood-based understanding, following the one rule of police conduct of which they have become aware. Accordingly, the individuals develop a bad attitude toward the officers. This bad attitude can hurt the arrestees chances of getting a good deal in court, and also tends to validate negative views police carry toward the larger population. It widens the "us" (the police) versus "them" (the rest of society) gap which, I strongly believe, is the root cause of nearly every instance of police misconduct.
So, when do they have to read the Advisement, you ask? Only when you are in handcuffs or are otherwise confined and they happen to want (or need) you to confess to something.
Thursday, November 8, 2007
It's not really your space...
Now that nearly everyone in a certain age range (16-25) has a myspace and/or a facebook page, it is worth reminding "everyone" that what you put on your web page is available for everyone else to look at (and download), whether you want them to or not. And, it is a proven fact that some of these uninvited guests are people who want to take advantage of you in some way. Arming them with certain information can make it much easier to victimize you than ever before. These surfers can find out (from you) what your interests are, who you hang out with, what you like to do in your spare time, where you were last Saturday, where you plan on being this Saturday, etc. It's creepy to think about, isn't it? They can also easily start a dialogue with you, while pretending to be someone that they are not, putting you in an extremely vulnerable position. Whether these creeps want your money, or something more dear to you, they can't be trusted with your personal, if not private, information.
In addition to the creeps are other uninvited guests. Police detectives and other investigators, at an increasing rate, are visiting your web pages. And, no, they are not likely visiting you to catch the web-voyeurs who have no legitimate reason to be visiting. If the police are visiting your site, on the tax-payers' dime, it is likely because they see it as relevant, in some way, to a pending or future criminal case. They used to have to call or meet with people to gather intelligence and develop leads on their suspects. Now they can get far more data than ever before while sitting in their cubicles; and they might get some great photos too. This kind of intelligence can prove devastating to someone who stands accused of something.
If you are facing a criminal charge, or you think you are under investigation by the police, my advice to you is to take your web page off line, at least until the matter resolves. Moreover, be very mindful of what you leave on your hard-drive. The police can easily get a warrant to seize your computer, and what they find they will not hesitate to put on a projection screen in court at your trial or sentencing hearing. Local prosecutors are using this device to foil defense efforts on an increasing rate.
On a related note, be very careful of what you communicate on the web about sensitive and/or pending legal matters...and with whom. For instance, if you are facing a criminal charge, don't email the police on websites like Question Authority on the UCSB Police Website. I'm sure it might feel good to tell them a thing or two. Also, you might suppose that they are there to help. Perhaps they think that they are there to help. However, they are not bound by any law of privilege or code of ethics that would prevent them from using the information you supply them against you in court. In fact, they might even get a big pat on the back from the community if doing so helped solve a major crime. No one would feel sorry for you, "the criminal", if you were stupid enough to seek legal advice from a non-lawyer (much less a cop), on the internet. Think about it.
In addition to the creeps are other uninvited guests. Police detectives and other investigators, at an increasing rate, are visiting your web pages. And, no, they are not likely visiting you to catch the web-voyeurs who have no legitimate reason to be visiting. If the police are visiting your site, on the tax-payers' dime, it is likely because they see it as relevant, in some way, to a pending or future criminal case. They used to have to call or meet with people to gather intelligence and develop leads on their suspects. Now they can get far more data than ever before while sitting in their cubicles; and they might get some great photos too. This kind of intelligence can prove devastating to someone who stands accused of something.
If you are facing a criminal charge, or you think you are under investigation by the police, my advice to you is to take your web page off line, at least until the matter resolves. Moreover, be very mindful of what you leave on your hard-drive. The police can easily get a warrant to seize your computer, and what they find they will not hesitate to put on a projection screen in court at your trial or sentencing hearing. Local prosecutors are using this device to foil defense efforts on an increasing rate.
On a related note, be very careful of what you communicate on the web about sensitive and/or pending legal matters...and with whom. For instance, if you are facing a criminal charge, don't email the police on websites like Question Authority on the UCSB Police Website. I'm sure it might feel good to tell them a thing or two. Also, you might suppose that they are there to help. Perhaps they think that they are there to help. However, they are not bound by any law of privilege or code of ethics that would prevent them from using the information you supply them against you in court. In fact, they might even get a big pat on the back from the community if doing so helped solve a major crime. No one would feel sorry for you, "the criminal", if you were stupid enough to seek legal advice from a non-lawyer (much less a cop), on the internet. Think about it.
Saturday, November 3, 2007
Criminal Convictions Reduce Longterm Earnings.
One aspect of my job as criminal defense attorney is answering questions about the longterm impacts of criminal convictions. It's not easy. Over the years, I have talked to enough Human Resources (HR) personnel of various employers [often the parents of my clients] to learn that job applicants who have one or more criminal convictions are treated much worse in the hiring process than those with "spotless" records. Depending on the employer, and certainly depending on the kind of work (e.g., public safety, financial, and education) any criminal conviction (even the most innocuous of misdemeanors (e.g., "disturbing the peace")) might destroy one's chances of getting hired. It is often a heavily weighted factor that might cause someone to be pushed downward in the ranks of qualified applicants.
One 2006 study called The Impact of Youth Criminal Behavior on Adult Earnings found that, "[h]aving been either charged with or convicted of a crime decreases earnings by about 10 percent early in a young adult’s working career. However, receiving a conviction when young lowers subsequent adult earnings by about 13%." The study took into account that there are demographic variables that are correlated with both lower earnings and criminality. This was dealt with by comparing the earnings of siblings who didn't have convictions as youths with their siblings who did. Notably, the study was based upon data gathered for more than a ten year period unlike many other studies of its kind.
Adding to this concern is my intuitive sense that the current population explosion, globalization of the economy, and the increasing proliferation and accessibility of criminal conviction data brought by the digitial age are all factors which will increase the negative impact of a criminal past on one's earning potential.
It is difficult, at times, to impress upon people who are not versed in this subject matter to take their criminal charges seriously, and to do what they can to keep their records spotless. Unfortunately, I've talked to (and represented) enough people years down the line who wish they had fought their case now that they know what was truly at stake; their financial well-being. I always encourage these people to pursue any expungement, or related remedy, available to them. However, there is no substitute for avoiding the conviction in the first place.
One 2006 study called The Impact of Youth Criminal Behavior on Adult Earnings found that, "[h]aving been either charged with or convicted of a crime decreases earnings by about 10 percent early in a young adult’s working career. However, receiving a conviction when young lowers subsequent adult earnings by about 13%." The study took into account that there are demographic variables that are correlated with both lower earnings and criminality. This was dealt with by comparing the earnings of siblings who didn't have convictions as youths with their siblings who did. Notably, the study was based upon data gathered for more than a ten year period unlike many other studies of its kind.
Adding to this concern is my intuitive sense that the current population explosion, globalization of the economy, and the increasing proliferation and accessibility of criminal conviction data brought by the digitial age are all factors which will increase the negative impact of a criminal past on one's earning potential.
It is difficult, at times, to impress upon people who are not versed in this subject matter to take their criminal charges seriously, and to do what they can to keep their records spotless. Unfortunately, I've talked to (and represented) enough people years down the line who wish they had fought their case now that they know what was truly at stake; their financial well-being. I always encourage these people to pursue any expungement, or related remedy, available to them. However, there is no substitute for avoiding the conviction in the first place.
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?
Monday, October 29, 2007
Arrests and Citations in Isla Vista so far...
While the Halloween festivites continue, there is a growing toll of both citations and arrests in the community of Isla Vista.
See MSNBC's article reported as a top story by KSBY News, entitled
"Thousands fill Isla Vista to celebrate Halloween weekend; hundreds arrested"
for numbers on those in attendance and those with legal trouble.
See MSNBC's article reported as a top story by KSBY News, entitled
"Thousands fill Isla Vista to celebrate Halloween weekend; hundreds arrested"
for numbers on those in attendance and those with legal trouble.
Sunday, October 28, 2007
So far, not so scary...
Compared with years past, this Halloween on Del Playa is somewhat subdued, so far, according to the Indy and other sources. Apparently, 90 people were arrested and 150 citations were issued on Friday. Thankfully, there have been no major injuries reported. The celebrations will likely continue, but as the Indy points out, last night was probably the climax of the several day event, drawing as many as 20,000 people to the streets. Wednesday night shouldn't see as many arrests nor cites. Again, be safe.
Saturday, October 27, 2007
Foot Patrol's Favorite Halloween Talking Point
I sincerely hope that the ongoing Halloween festivities are moving along safely and enjoyably for the celebrants and the 160+ law enforcement officers in attendance. If you're like me, you have heard the Foot Patrol say the following over and over again (for years, actually): It's not the local residents that we are concerned about, it is the out-of-towners that cause the majority of the problems. Uh, okay, then are we to expect that the 160+ officers will be arresting and handing out citations only (or even mostly) to visitors? Doubtful. If this year is anything like years past, the majority of arrests and citations will involve the local college-aged population (mostly SBCC and UCSB students). Without a doubt there will be some visitors cited and arrested, but they will be in the minority; as there are far fewer of them AND, not all of them are monsters (although I'm sure some will be wearing monster costumes). Many are friends, relatives, girlfriends, and boyfriends of locals; not criminals. Well, at least, not until they have been dealt with by the Foot Patrol. After all, we are all no more than a court date away from being rendered a criminal; no one is immune... Especially not the locals.
Be sure to read my last post (immediately below) for tips on how to avoid problems with the police. Also, visit my website at http://www.ivlawyer.com/ for more relevant information.
Again, be safe.
P.S. Another talking point heard less often, but which is similarly designed to communicate to the locals (for public relations purposes) that they are not going to be treated unfairly by the police for engaging in myriad fairly ordinary college activities (read: drinking alcohol), is that "90 % of it will be citations" (implying no jail, no crime, no big deal). It is important to point out that more than 50 % of the 90 % may cause the person cited significant penalties with longterm negative effects (e.g., year-long drivers license suspensions).
Friday, October 26, 2007
Have a safe Halloween on Del Playa!
I want to thank the Associated Students of UCSB (and attorneys Robin Unander and David Andreasen) for inviting me to speak at their not-so-annual workshop to educate UCSB students on their rights at Embarcadero Hall on Wednesday Evening. It was a nice opportunity to speak to one or more of my future clients, directly or indirectly, like now. And, no, that's not to imply that the people that showed up are criminals. Actually, they were a very gracious, intelligent, and inquisitive group of young people. I also want to thank Deputy Sheriff Miles Davies for joining me on stage and providing very candid answers to questions, and generally good information, which was not overly infected with law enforcement (or other) propaganda. It was remarkable that we agreed about nearly everything. For those of you who couldn't be there, I will jog through the main points that were made in favor of a safe (and hopefully for you) arrest free Halloween celebration:
1. Don't do anything illegal.
2. Don't drink if you are under 21 (if you must, do it out of view of police, and in a private place).
3. Don't drink to excess.
4. Don't walk around in the street with alcohol, or any container for alcohol.
5. If you throw a party, restrict access (consider carding at door and using bracelets).
6. If the police come to your door to, perhaps, issue a noise violation ticket, meet them at the front door, step outside, and close the door behind you.
7. Do not consent to a search of your person, vehicle, house, dorm room, apartment, bag, purse, backpack, wallet, etc.
8. Do identify yourself correctly if you are under arrest or detained.
9. If you don't know if you are under arrest or detained, just ask. (Good suggestion, Miles!)
10. If you believe the police are violating your, or someone else's rights, don't throw a fit. In fact, better to keep it to yourself, and take good mental notes of the badge number(s), and other particulars. Wait until it gets to court before you make your argument. Doing otherwise will worsen whatever trouble you are in, or get you in trouble even if you have done nothing else wrong.
11. If you are arrested, remain silent after you have supplied correct information concerning your identity. If you are not driving a motor vehicle, it need not be done with a license or other document. It is seldom, if ever, a good idea to explain anything to the police, or plead with them to let you go, or anything else you might want to say at that point. Wait until it gets to court, and until after you have talked it through with a lawyer. Don't make any deals with the police. Specifically, don't give them a statement in return for a promise to not take you to jail, or to put in a good word with "the judge", or to "drop charges". These are sometimes outright lies and are, at best, half-truths. If you end up going to jail on that occasion because you didn't make a statement; that, relative to other potential outcomes, is a good one. What you might not know is how quickly you will be released. If you aren't intoxicated and, therefore, housed in order to sober up, you will be given access to a telephone where you can contact me, a bail bondsman and/or a friend, who can usually help you bail out in a number of hours (depending on the seriousness of the charges, and some other factors). So, as unpleasant as it is to go to jail, don't think of it as the final stage of the controversy where it will be decided once and for all that you are guilty as charged; it is often just the beginning of a long chain of events where, we can hope, ultimately, justice will be done. Don't make it harder to achieve a just result on your case by giving in to trickery and deceit (which, by the way, are lawful law enforcement tactics).
12. If you have any questions about the above, call me at 805-892-4922, or you may email to sbcrimlawyer@gmail.com. Also, visit my website devoted to the Isla Vista population of potential arrestees at http://www.ivlawyer.com/
Have a safe and enjoyable Halloween! And here's a Halloween greeting from Erik Raney of the Santa Barbara Sheriff's Office:
“We have a zero-tolerance enforcement posture for all crimes alcohol-related, party-related - anything that you can think of,” Raney said. “Drunk in public, open containers, minors in possession of alcohol, indecent exposure and loud music ordinances [are] all zero tolerance.” See the complete article at:
Tuesday, October 23, 2007
Know Your Rights!
The Associated Students of UCSB is hosting a workshop for students on how to avoid attracting the attention of the Foot Patrol and how to deal with police officers who may contact them and arrest them for any variety of charges during the Halloween festivities on and around Del Playa in Isla Vista. The talk begins at 7 p.m. in Embarcardero Hall tomorrow (10/24/07). Myself and Sheriff's Deputy Myles Davies, of the IVFP, are the featured speakers. See you there!
Thursday, October 18, 2007
More reason than ever to Not Drink and Drive
I am mourning for the people who don't get it yet. Maybe you are one of them. You might be one of the many people who still lives in a blissful state of ignorance about just how bad of an idea it is to go out somewhere to drink 2 or more drinks and then drive home. No, I'm not talking about the fact that it would suck if you got pulled over and arrested for DUI. And it would. It's a big hassle, of course. You might go to jail (at least for a number of hours), you might have to hire a lawyer, you might have to pay a big fine, take a class, pay higher insurance rates into the foreseeable future etc. etc. No, that's not what I'm mourning. A simple DUI can function as a wake-up call to some; even the arrest can be enough to make many swear they will never take that chance again. A minority will say they're done with alcohol altogether. Nevertheless, that isn't what I'm really sad about. I'm sad for the people - the hard-working, good, honest, morally and mentally together people, with jobs, families, the works - who just don't get it (yet). They don't get something that criminal lawyers get. They don't get something that d.a.'s, cops, probation officers, parole agents, judges, and state prisoners (and their families) get. What is this big thing to be gotten you ask? It is the thin line between an ordinary everyday existence as a productive member of our society and a lifetime of hell on earth; the hell on earth that one undoubtedly experiences when one is sentenced to spend the rest of their life in prison for MURDER. Yes, I said, MURDER.
How could that happen to me or anyone I call a friend or a family member? Murderers are the people you see on TV with the jumpsuits on. Those aren't really people, right? And if they are, they are weird, strange people, not like me, right? I would never end up there. After all, I've never gotten a speeding ticket. I pay my bills on time. I wear my seatbelt. I don't smoke. I don't talk with my mouth full. I am a considerate person. I go to church. I volunteer. My best friend is a police officer. I'm married to one. Etc. Etc. I'll never be one of those "murderers" in a jumpsuit on TV. I'm just not that kind of person. Think again. Unfortunately, there is nothing about you that says that you will never be driving a vehicle that is involved in an accident where another human being dies, is there? Okay, so let's just pray and hope that when that happens, it doesn't happen after you have put down 2 or more drinks. If it does, you are that person. What many don't understand is the law that says you can't drive with greater than .08 % of alcohol in your blood doesn't amount to permission to drive between .01 and .07%. If you are driving after those 2 plus drinks, you are arguably "impaired" by alcohol. Yes, you could be as low as .04, but that won't make you immune to a murder charge, especially not now.
Gov. Schwarzenegger just signed into law what is now known as the "Ambriz Act" in memoriam to Steve Ambriz who was the chief of staff for the Act's sponsor, Assemblyman Todd Spitzer. Ambriz was tragically killed in a traffic accident involving a woman who had both alcohol and methamphetamine in her system. Prior to this law becoming effective (January 1, 2008), you have to be a repeat offender to meet the fate of being charged with murder for a negligent act of killing someone with your vehicle while "under the influence" of alcohol. This law has just, in a sense, rendered all of us repeat offenders come New Years Day. We won't be treated any different than the guy last month who was sent to prison for life because he supposedly knew better. Now, as people licensed to drive in California, we will have to acknowledge in writing (when we apply for a license or renewal) that driving a motor vehicle is a dangerous activity and, that if someone is killed as the result of our DUI, we can be charged with murder.
I hope this law saves a life. If you think about it, though, it serves to make nearly every single-fatality DUI accident an event where two lives are lost. At least two families will lose a loved one forever for every fatal accident caused by an act of DUI; this is what the law really says. It dramatically compounds the human tragedy in the hope that doing so will influence people's future behavior. There are some that believe that whenever the law gets tough, people take notice and change their ways for the better so that they will not end up in its clutches. I sincerely hope so. However, I, unfortunately, cannot accept this premise. The laws are already very tough. No, we don't impose the death penalty on DUI defendants yet, but we have steadily moved in that direction for decades. In spite of the many laws that have been enacted in recent times to increase the jail time and the fines, to worsen the drivers license consequences, and make it easier to convict someone accused of DUI, DUI still presents an unacceptable risk to human life. The number lives lost each year due to DUI each year are still counted in the 10's of thousands. Laws can help, but they can't completely solve the problem. I challenge law makers to address the problem holistically. Public transportation and education are two very effective and under-utilized deterrents to the behavior.
I hope this law saves a life. If you think about it, though, it serves to make nearly every single-fatality DUI accident an event where two lives are lost. At least two families will lose a loved one forever for every fatal accident caused by an act of DUI; this is what the law really says. It dramatically compounds the human tragedy in the hope that doing so will influence people's future behavior. There are some that believe that whenever the law gets tough, people take notice and change their ways for the better so that they will not end up in its clutches. I sincerely hope so. However, I, unfortunately, cannot accept this premise. The laws are already very tough. No, we don't impose the death penalty on DUI defendants yet, but we have steadily moved in that direction for decades. In spite of the many laws that have been enacted in recent times to increase the jail time and the fines, to worsen the drivers license consequences, and make it easier to convict someone accused of DUI, DUI still presents an unacceptable risk to human life. The number lives lost each year due to DUI each year are still counted in the 10's of thousands. Laws can help, but they can't completely solve the problem. I challenge law makers to address the problem holistically. Public transportation and education are two very effective and under-utilized deterrents to the behavior.
Unfortunately, California law makers only seem to address the problem by upping the punishments by enacting new "get tougher" laws each legislative session. Supposing they succeed one day in enacting a law which makes DUI an act punishable by the death penalty; what are we then going to do when DUI caused fatalities keep occurring in spite of this law? Let's start now to address the problem from different directions. The potential of the criminal justice system to reduce the numbers of traffic fatalities may very well be tapped at this point. It's time, at least, to start thinking about that. Getting tough makes perfect sense when it is someone you don't know who is in the jumpsuit. I promise you that you will feel very differently about this law when it is you or a loved one in the jumpsuit. Also, it is wrong to suppose that every family member of someone tragically killed in a DUI accident is clamoring for the offender to go to prison at all, let alone prison for life.
I know I'll be talking to you someday. You'll be in jail, in a jumpsuit, and I'll be telling you (through the glass on one of those phones) that I wish that you read this post before it was too late for you and the person(s) that you killed. Consider this your early wake up call.
I know I'll be talking to you someday. You'll be in jail, in a jumpsuit, and I'll be telling you (through the glass on one of those phones) that I wish that you read this post before it was too late for you and the person(s) that you killed. Consider this your early wake up call.
Friday, October 12, 2007
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?
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?
Friday, October 5, 2007
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.
(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.
Thursday, September 27, 2007
DUI Checkpoint...Charlie.
At considerable taxpayer expense, local law enforcement routinely sets up checkpoints to combat the DUI problem. The "DUI problem" is best defined as the problem of people drinking (and/or drugging) to the point where they cannot safely drive a motor vehicle such that they will more likely than sober drivers cause traffic accidents; which, as everyone understands, are a huge nuisance, and worst of all, can cause serious injuries and fatalities. Accordingly, there's no argument in favor of DUI whatsoever. The legitimate criticism of checkpoints is that they stand at odds with the notion that we live in a free society. The Fourth Amendment to the United States Constitution states that we should be free from warrantless intrusions by the Government into our private lives. "Your papers please!" is the classic charicature of the agent of a fascist/police state (presumably from another land, and perhaps, another time). It conjures up images of the Soviet Union's 70 year oppressive fascist autocracy, present day North Korea, and the list goes on. The irony of the "request" is that isn't really a request at all. Does anyone who is asked for their papers by a police officer, anywhere, really feel free to say, "Uh, thanks, but no, I'm not going to hand over my papers"?? Try it. This is why checkpoints are, to some, objectionable. It is where mostly law abiding people are essentially ordered to submit to some form of inspection (of their drivers license, eyes, breath, etc.) For every DUI arrest a checkpoint produces, there are perhaps 100 or more warrantless intrusions into the private lives of law abiding citizens. Maybe it's worth 100 intrusions if that DUI arrest really saved a life, but even the CHP will tell you that many people at .08 or more can drive home without causing a traffic fatality. Simply put, not every DUI arrest saves a life. Does the public nature of a checkpoint send the right message to the public such that the overall awareness of the problem will increase, causing people to be more cautious? Perhaps. However, there is no hard data to support this. The sad part is, in spite of the California Supreme Court's ruling in Ingersoll v. Palmer (which allows checkpoints if certain conditions are met), checkpoints erode the most cherished attribute of the United States of America; our freedom. This erosion should be allowed, if ever, out of dire necessity, and never with casual acceptance. So, while law enforcement might define this intrusion as a "no brainer", don't be so sure. To be so sure, plain and simple, is un-American.
Thursday, September 20, 2007
Well, not exactly...
The Daily Nexus just published an article where I was quoted and conferred various titles. First of all, yes, I am a "self-proclaimed" Isla Vista Lawyer: which means that I am letting the Isla Vista community know that I am available for free consultations concerning criminal law problems arising in Isla Vista; just as I have been for years. I am not, however, a public defender, as is made obvious in the body of the article, not the title. I am a former public defender. In any event, those aren't the inaccuracies that merit further discussion. While the article was generally accurate and informative, it did not quote me accurately in one critical respect. I did say that a police officer does not have any more right to touch people than a non-police officer; and that is generally true. However, I said some other things that are not, for reasons unknown, included in the article. This is the rest of that quote:
1. A police officer may touch you if he does so...
(1) in self-defense*
(2) in defense of another*
(3) pursuant to probable cause to arrest (e.g., you broke a law in his presence* or if he believes you are a felon who has yet to be arrested)
(4) to effect a citizen's arrest on behalf of another (where the crime was not committed in his presence).
(5) pursuant to an arrest warrant
(6) to prevent your injury (if say you are passed out on the street)*
2. It is NEVER, and I mean NEVER, a good idea to physically resist a police officer. If you believe that they have no right to touch you, but are doing so anyway, just tell them politely that you do not consent to be touched and go along with the program. Submit to the arrest. Whatever they did wrong can be dealt with in one or more courts of law after the fact. Don't exacerbate the problem by pulling away or, even worse, physically assaulting the officer. Doing so can get you:
(1) Injured
(2) Tased (even if you say, "don't tase me bro'")
(3) Charged with additional and more serious crimes (even felonies) and/or
(4) Killed (possibly)
Having said all of that, go ahead assert your rights VERBALLY, and only within reason (in other words you don't need to repeat yourself again and again, nor shout, to preserve your rights), and just be polite. As the old saying goes, you attract more flies with honey than vinegar. IVFP aren't flies, and you aren't wanting to attract them, but you get my point.
* These are rights that all people have, not just cops.
1. A police officer may touch you if he does so...
(1) in self-defense*
(2) in defense of another*
(3) pursuant to probable cause to arrest (e.g., you broke a law in his presence* or if he believes you are a felon who has yet to be arrested)
(4) to effect a citizen's arrest on behalf of another (where the crime was not committed in his presence).
(5) pursuant to an arrest warrant
(6) to prevent your injury (if say you are passed out on the street)*
2. It is NEVER, and I mean NEVER, a good idea to physically resist a police officer. If you believe that they have no right to touch you, but are doing so anyway, just tell them politely that you do not consent to be touched and go along with the program. Submit to the arrest. Whatever they did wrong can be dealt with in one or more courts of law after the fact. Don't exacerbate the problem by pulling away or, even worse, physically assaulting the officer. Doing so can get you:
(1) Injured
(2) Tased (even if you say, "don't tase me bro'")
(3) Charged with additional and more serious crimes (even felonies) and/or
(4) Killed (possibly)
Having said all of that, go ahead assert your rights VERBALLY, and only within reason (in other words you don't need to repeat yourself again and again, nor shout, to preserve your rights), and just be polite. As the old saying goes, you attract more flies with honey than vinegar. IVFP aren't flies, and you aren't wanting to attract them, but you get my point.
* These are rights that all people have, not just cops.
Saturday, September 8, 2007
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.
Sunday, September 2, 2007
The truth about upside-down beer cups
My first Sierra Mountain blog (delivered at approximately 8,000 feet) is to disabuse the Daily Nexus readership of the IV urban myth that walking with a drinking cup upside-down will prevent your arrest for open container, minor in possession and/or drunk in public. This myth is perpetuated by the Daily Nexus which states, among other things, that mouthing off to the Isla Vista Foot Patrol is a bad idea. Ya' think? Walking down an Isla Vista street with anything other than a nun's habit is enough to put you at high risk of being detained by a bored member of the Foot Patrol. Having an upside-down beer cup puts you in an even higher risk category. The moral of the story is: don't walk down the street in IV expecting that the cop who spots you in an 'I'm looking for my next beer' pose will not likely detain you for a sniff and an age and ID check at the very least. Oh, but I agree that mouthing off is a bad idea - and it's no urban myth.
Tuesday, August 14, 2007
The Art of Penalizing Isla Vista Parties
The Santa Barbara County Board of Supervisors are, at the moment, being urged to expand an existing Santa Barbara County Code ordinance which already makes most any party in Isla Vista a public nuisance. You can view the proposed changes at: http://bos-agenda.sbcgov.net/attachments/8489.pdf The expansions are being pushed through quickly - and quietly - and just in time for this year's Halloween festivities. According to the existing public nuisance ordinance, any collection of three or more of some 20 state and local law violations in any one gathering constitutes a public nuisance misdemeanor. Being added to that list are the offenses of public nudity, unlawful fires, urinating in public, and furnishing alcohol to a minor. Under this proposal, a single act of furnishing alcohol to a minor at a gathering renders the gathering a public nuisance. Under existing law, "rough body contact", "slamming" and launching one's self from a stage are single acts which give a police officr a basis to declare a gathering a public nuisance and thereby subject anyone lingering around after the order of disbursement to a citation and a fine; if not more severe penalties should their conduct rise to what the police would consider resisting, obstructing, or delaying a police officer in the discharge of his duties. All of the changes will be considered, and most likely made law in their entirety just in time for Halloween; 30 days forward from the date of enactment. While the proposed amendments have been, reportedly, vetted through a working group that consists of affected County Departments (District Attorney, Sheriff’s Department, Public Works, Counsel, County Executive Office and Third District), other agencies (City of Goleta, Santa Barbara City College) and representatives from the University of California Santa Barbara, it is noteworthy that neither Isla Vista residents, nor the affected student populations have been asked to join the discussion. Arguably, First Amendment rights to peaceable assembly, free speech, freedom are being further eroded by these proposed changes. Are the Isla Vista Foot Patrol really in need of more potent tools to bust up and criminalize the party-goers? Each year they arrest roughly 1,000 people over the Halloween period. The only good news for party-goers and throwers is that Isla Vista "outdoor festivals" (largely affecting outdoor bands) are to be de-criminalized under this proposal, but are still going to be subject to civil assessments (fines). Tuesday, August 28, 2007, is your opportunity to let the Board know how you feel about this new raft of laws affecting your freedom...but you'll have to drive to Santa Maria to be heard. See the Board's 8/28/2007 Meeting Agenda for further information.
Tuesday, August 7, 2007
AN EXCERPT FROM WWW.SANTABARBARASBLOG.COM
POSTED AUGUST 7, 2007
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POSTED AUGUST 7, 2007
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Crime Down over Fiesta (except for a shooting)
Apart from the officer-involved shooting, Fiesta 2007 was absent any other major crime problems, according to a police report. Here are tentative results of police activity through late Saturday, including a comparison to Fiesta 2006:
- 21 felony arrests; a 34% decrease
- 97 misdemeanor arrests; a 4% increase
- 274 criminal citations; a 6% decrease
- 282 traffic citations; a 53% increase
- 18 DUI arrests; a 20% increase
CRIME IS UP AND DOWN.
Every so often the media, on a slow news day no doubt, will read the temperature of the "crime problem". What does it mean? Am I safer or less safe? Am I more or less likely to be arrested? Is humankind becoming more unruly? Most likely, none of the above. More people means more crime. So, we keep hiring more cops. More cops means more arrests. As long as the hiring of cops out-paces the population growth, the busier I will be.
If crime is not actually on the rise (beyond the modest increases one expects as the population grows), more conduct is deemed criminal and cops become more "sensitive" to criminal conduct. For example, it used to be "drunk driving", now it is "driving under the influence" (read: however slight). It used to be "drunk and disorderly conduct", now it is "public intoxication". What does that mean? Well, one cop (still out there) told me "it depends....could be as little as .01". Yes, consuming a third of a beer, according to this cop, is possibly a forfeiture of your freedom and a one-way ticket to the drunk tank. Think about that the next time you are trying to decide between an import or a domestic...
Friday, August 3, 2007
More Sounding Off...
Jeramy Gordon of the Daily Sound decided to print as many of the 144 would-be secret photos as he could in today's issue. Gordon said his motive in printing the photographs is two fold, to prove to the public that there is nothing worth hiding, and to avoid fines that could potentially bankrupt the small paper. http://blogabarbara.blogspot.com/ Nothing worth hiding?! Uh, what was he fighting for, originally, if there is nothing worth hiding? If I'm not mistaken, he reprinted, very prominently, a photo of the accused teenager sitting under arrest in hand-cuffs (which is what he believed motivated Karen Atkins, Esq., to "attack" him in the first place) near the top of his rant about the First Amendment. Nevermind that parading a teenager in the public square in an inculpatory light is an affront to the presumption of privacy owing to minors accused of crime and an unnecessary taint of the jury pool. No, this is about getting even with Ms. Atkins and her client (and, less direclty, the Court). Is Mr. Gordon Santa Barbara's mini-McCaw?
Thursday, August 2, 2007
Daily Sound Publisher's Folly
When thinking of the First Amendment I think about the little guy standing up to the "man" (e.g., the Government). Specifically, I think about the right of a little guy to take an unpopular public stand in the face of potential punishment or prior restraint. I don't readily think about a newspaper photographer's right to keep his or her unpublished photos private when doing so serves no important purpose or interest. This is why it is so hard for me to appreciate why the Daily Sound publisher, Jeramy Gordon, is putting up such a fuss about the fact that Deputy Public Defender Karen Atkins, of the Santa Barbara Public Defender's Office, wants to view photos which are material, and potentially very useful, in defense of her client who stands accused of homicide.
“The reason I’m standing my ground on this,” Sound publisher Gordon said, “is because I believe reporters and photographers are neutral observers protected by the First Amendment, they are not supposed to be an arm of the police, the District Attorney, or the Public Defender.” http://www.independent.com/news/2007/aug/02/emdaily-soundem-ordered-surrender-photos/
What important interest is Gordon really trying to protect here? And whatever the real or imagined interest, could that interest be more powerful than the right of the "little guy" to defend himself against the Government? While Ms. Atkins delivers herself as a powerful member of Government, in reality she is rather powerless in as much she is a mere advocate for an indigent teenager charged with murder. It is absurd for Mr. Gordon to be styling himself the victim of an overbearing Government when it is a teenager accused of murder - and not the Government - who is putting a demand on him. The only victim possible, it seems to me, would be the accused, if indeed the Santa Barbara Superior Court were to have followed along any further with this irritating assertion of First Amendment privilege by Gordon. The Court made the right call.
“The reason I’m standing my ground on this,” Sound publisher Gordon said, “is because I believe reporters and photographers are neutral observers protected by the First Amendment, they are not supposed to be an arm of the police, the District Attorney, or the Public Defender.” http://www.independent.com/news/2007/aug/02/emdaily-soundem-ordered-surrender-photos/
What important interest is Gordon really trying to protect here? And whatever the real or imagined interest, could that interest be more powerful than the right of the "little guy" to defend himself against the Government? While Ms. Atkins delivers herself as a powerful member of Government, in reality she is rather powerless in as much she is a mere advocate for an indigent teenager charged with murder. It is absurd for Mr. Gordon to be styling himself the victim of an overbearing Government when it is a teenager accused of murder - and not the Government - who is putting a demand on him. The only victim possible, it seems to me, would be the accused, if indeed the Santa Barbara Superior Court were to have followed along any further with this irritating assertion of First Amendment privilege by Gordon. The Court made the right call.
No Anti-Gang Injunctions in Santa Barbara - Ever
Santa Barbara Police Chief Cam Sanchez stated, emphatically, to Martha Sadler of the Independent that he will not support an injunction against Gangs in Santa Barbara as long as he is chief of police. http://www.independent.com/news/2007/aug/02/police-chief-cam-sanchez-explains-laws-view-gangs/ This is a departure from the standard no-holds-barred all out "war on crime" approach to the complex problem of street-gangs. I applaud Chief Sanchez for, apparently, taking civil liberties into account in his analysis; especially when, as he points out, injunctions are ineffective.
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