It is not illegal to drink and drive. It is illegal to drive if your blood alcohol content is at a concentration of .08 or above. It is illegal to drive under the influence of alcohol or drugs such that you can’t operate your car with the caution and care of a sober person. Unless you have previously been convicted of a DUI offense, however, it is typically not illegal to drive after a couple of drinks. This article is aimed at those drivers—those who drive after having had some alcohol, but are nevertheless afraid that they could erroneously be prosecuted for driving under the influence.

Before You Drive

There are some precautions you can take before you even get into your car. These are a good practice, regardless of whether you think you might be subject to a DUI investigation.

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I was in Bellflower Superior Court yesterday when a 30-something year old woman was taken into custody for failure to complete her batterer’s treatment program or anger-management classes. The public defender tried earnestly to appeal to the judge’s sympathies, explaining that the girl had suffered a pulmonary embolism and had not been working, so she couldn’t afford to pay for the classes. Yikes! A pulmonary embolism? People die from that! The woman did look healthy, but that certainly seemed like a reasonable excuse for being behind in court-ordered classes. The judge took a moment, flipped through the court file and finally said “if she wants to admit her probation violation, I’ll give her 120 days in jail.” 120 DAYS??? The injustice! How could the judge be so unforgiving? I mentally rallied to the girl’s side, until the judge sighed “counsel- she’s had FIVE years to get these classes done.” The woman took the 120 days.

This scenario is not uncommon. Walk into any Orange County criminal courtroom and you will undoubtedly see either someone with an excuse for having not performed some court-ordered obligation or being taken into custody for not performing some court-ordered obligation. This is a look at the most common (and most frustrating) excuses that judges and lawyers or attorneys hear and an explanation as to why they often fall on deaf ears.

My mom was sick and I had to go back home. Or, my grandmother was dying and I had to go to Mexico. As an appointed Orange County criminal lawyer I was told this two, maybe three hundred times, easily. Not once was I given an obituary, hospital release or airline ticket to back it up. The claim is that you were there for your family, you left town and/or were bereft with grief and couldn’t do your program or your classes. An astute judge will ask: “Did you keep your job?” “Did you keep your apartment?” The answer is almost always yes. Actually, it’s “yes, but…“

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It’s 9:45 am and your phone rings. The caller ID says that it’s your ex-girlfriend and you smile, hoping that she’s had a chance to think about it, she misses you and is calling to suggest you get together to talk about it. Instead she says “this is formal notice that I’m seeking a temporary restraining order in Orange County today at 1:30″. With that, she hangs up. You show up at court and realize that not only is she seeking a court order to prevent you from contacting her for 3 years, she’s asking for full control over the home you share together and attorneys fees.

Sheriff deputies show up at your door, confirm your identity and hand you a restraining order, telling you that you need to stay at least 300 yards away from Joe Schmoe, the jerk who works down the office hallway, who you’ve been waiting for the boss to fire. What does this mean? Can you legally even show up at work?

If you are served with a temporary restraining order, domestic violence restraining order or civil harassment restraining order, you must act fast! Typically, when a person files for a restraining order, they are only required to give a few hours notice. They usually call in the morning and tell you that a hearing will be set for 1:30. “Hearing” is a generous word- the first stage is not really a hearing at all. That is, a judge is not really looking to weigh evidence and credibility, nor to hear legal argument. He just doesn’t have time for that. He’s got 37 applications to shift through before it’s time to go home for the night. He’s looking only to see if the minimum is present to allow him to issue the temporary restraining order. He then schedules another hearing in about 3 weeks and says that you’ll have a chance to make your case then.

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Getting arrested for a DUI or DWI in Orange County can be one of the scariest moments of your life. In the confusion of having to perform field sobriety tests, take a blood alcohol test and being taken to jail, you may not have noticed the pink sheet that the officer gave you if and when he confiscated your driver’s license. That pink sheet of paper serves as your temporary license and has an important warning: “You must call the DMV to schedule a hearing within 10 days of your arrest”.

Why is this so important? When you are arrested for a DUI or DWI, there are two agencies that prosecute you– the state (meaning the District Attorney’s office or City Attorney for those living in Anaheim) and the DMV. The state can impose penalties such as jail, fines, classes, community service and probation. The DMV imposes an additional penalty- it tries to suspend your driver’s license.

At the DMV hearing three issues will be investigated: 1) Did the officer have reasonable suspicion to believe that you were under the influence of alcohol or drugs when you were driving? 2) Were you lawfully arrested? 3) Was your blood alcohol concentration .08 or greater?

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Restitution has been an issue in two cases this week. Briefly, when one person is convicted of committing a crime against another, he is liable for “restitution” or payment for the damages caused by that crime. In a theft case, this means he must repay what he is accused of stealing and any affiliated costs, like replacement goods. In an assault and battery case, he must pay for doctors bills. In a hit and run, he must pay for damages to the other car.

In the Orange County criminal courts, especially the Harbor Justice Center, restitution is handled in one of two ways. It is either spelled out as an exact dollar amount at the time of the plea bargain or “to be determined”. When restitution is “to be determined”, the criminal case file is handed over to the Orange County criminal court’s Victim Witness office, which then contacts the victim and asks them to list the damages that they suffered.

The problem here is the law. California criminal law is very harsh in saying that restitution is suppose to be “punitive”. What that translates into, really, is what a victim wants, a victim gets. Although a judge joked this week that he refused to award $50,000 in psychiatric bills to a woman who sought restitution from a hit and run car accident, the law does not favor criminal defendants. Most defendants are shocked to learn that they can and will be held responsible for amounts that insurance company has already paid.

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The Fifth Amendment is at issue this week in two high-profile cases: the marital mishap of professional golfer Tiger Woods and the surprise convictions of the American student perhaps wrongfully convicted of killing her roommate, Amanda Knox and her boyfriend. The Constitution protects each and everyone of us from false confessions or prosecutorial twisting of our words. Simply put, it grants us the right to remain silent. Tiger Woods has, of course, invoked this right. Amanda Knox, however, spent days talking with Perusian investigators without an attorney. She was deprived of sleep and told to “imagine” scenarios under which her roommate could have been killed. She did. Investigators then called those scenarios “explanations” and within days of the murder, she was publicly touted as her roommate’s killer.

The Amanda Knox trial has received so much attention because of the lack of otherwise credible evidence. Although there was a ton of forensic evidence, none of this evidence linked the girl to the crime and the defense was not allowed to bring in its own forensic evidence, showing she could not have committed the murder. The conviction of this young girl with no known motive and no criminal record led former OJ Simpson prosecutor John Kelly to declare this “the most egregious international railroading of two innocent young people I have ever seen… It’s a public lynching based on rank speculation.”

Jurors claim to base their decision on the “inconsistencies” between Amanda’s “versions” of events. Had she not spoken to investigators, there would be no “versions” to scrutinize, no words or explanations to compare.

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After several days this headline continues to highlight the front page of ocregister.com. Reader’s comments are scathing with “get rid of her now- she is a cancer in that department” and “this little piggy won’t be able to driver for 1 year” ** being among the most caustic. I feel for Monica Aguilar, who was was pulled over around 9:25 p.m. on the eastbound 10 Freeway in Los Angeles, according to the California Highway Patrol. Although originally stopped for tinted windows, officers suspected intoxication, gave her field sobriety tests and tested her blood alcohol concentration (BAC), which came in above .08, the legal limit. She was booked into jail and later released.

I feel for her because in addition to the court and DMV’s onerous penalties that come with a DUI conviction, severe public condemnation like the comments above and employment consequences (she may very well lose her job over the arrest), she may not receive the due process that each and every one of us are entitled to. Her case will no doubt receive special attention from prosecutors and judges and valid defenses will be cast with an air of suspicion. Imagine if her attorneys reviewed the blood alcohol machinery’s calibration logs and found that the machines were not properly calibrated and concluded that her blood alcohol result cannot be trusted (a common practice of DUI lawyers.) What juror is not going to say to himself “she’s only arguing this technicality because she’s a police officer and she knows the ropes?” Demanding accurate evidence before depriving someone of their liberty is something that we should want for each of us, even police officers.

If you have been charged with a crime, visit Orange County Criminal Lawyer or call The Law Offices of Staycie R. Sena at (949) 477-8088 today.

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This headline stopped me dead in my tracks: “Couple Let Baby Starve to Death While Raising Virtual Baby Online”. What? Wait- WHAT?! The tragedy of Korean couple Kim Yoo-chul, 41 and Choi Mi-sun, 25 has made headlines all over the world. CNN reports that the couple let their real daughter starve to death while playing a virtual-reality game where they raised a virtual daughter in 12-hour on-line sessions at a local internet cafe. “The couple seemed to have lost their will to live a normal life because they didn’t have jobs and gave birth to a premature baby, Chung Jin-Won, a police officer, told the Korean press. “They indulged themselves in the online game of raising a virtual character so as to escape from reality, which led to the death of their real baby.” The couple are likely facing charges of child abuse, child neglect and homicide.

Like most people I was perplexed by such recklessness. As a mother, I simply can’t imagine what would compel a parent to neglect a baby so drastically. But, as a criminal defense attorney who has represented many parents in criminal child abuse or child neglect cases, there are a few things troubling about this story. First and foremost, there’s no allegation that the baby was ever left unsupervised.

I can see this couple sitting in my office, distraught with grief, explaining that although they did frequently play an online game, most of their time spent at the internet cafe was looking at on-line job postings, emailing resumes and otherwise trying to find work while their daughter was watched by a relative or caregiver.

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David Letterman can sleep better tonight. Joe Halderman, the man accused of extorting Letterman for $2 million, has plead guilty. Halderman was accused of extortion after demanding $2 million from the late-night star, lest he divulge his various affairs with co-workers. Halderman’s criminal defense lawyers worked out a deal which requires that he plead guilty to felony second-degree grand larceny, spend 6 months in jail, complete 1000 hours of community service and complete 5 years of probation. Though they minimized the jail time, Halderman’s criminal lawyers could do nothing about the 27-year career at CBS that Halderman flushed down the drain with his threats.

Extortion is a curious animal. Blogs and reader comments expressing sympathy for Letterman and wanting a stiffer penalty for Halderman abound. Does extortion mitigate an extra-marital affair? Would we have felt sorry for Tiger Woods if someone threatened to expose his sordid soirees? And for the philosophically-inclined, here’s a question a friend once asked:

Just why is extortion illegal? It would not have been illegal for Halderman to hold a press conference and reveal Letterman’s affairs. It would not have been illegal for Halderman to sue Letterman for creating a hostile work environment because of the illicit affairs.

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The rapper Lil’ Wayne started a one year jail sentence for possession of a deadly weapon yesterday. More precisely, he was convicted in New York for having a loaded gun on his tour bus. (As a side note, his sentencing was delayed twice. Once so that he could have his diamond-studded braces removed [probably a good thing before going into custody] and yet again because of a flood at the Manhattan courthouse.) This plea-bargain was not rash. He presumably had good attorneys and the case was fought for several years. Lil’ Wayne was originally arrested on this charge back in 2007. What is surprising is the severity of the sentence. As an Orange County criminal law attorney or criminal defense lawyer, I have represented numerous defendants charged with possession of a deadly weapon and many of those weapons have been loaded guns. Never have I had a client sentenced to such a lengthy jail term, however.

While it is possible that authorities are intent on making an example of him, it may also be the case that something warranted such a large sentense: Lil’ Wayne’s background or RAP sheet. Prior convictions will ALWAYS increase the penalties for future trangressions. I don’t know if Lil’ Wayne had ever been convicted before, but the fact that he still faces felony weapon and drug charges in Arizona suggests that he is not new to run-ins with the law.

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