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In the last several weeks, Orange County has had more than its share of DUI sobriety checkpoints and DUI roving patrols. While most of these DUI checkpoints are announced prior to their commencement, it is not unusual for the location to be undisclosed or for the announcement to arrive literally moments before the checkpoint will be conducted.

During a recent anti-DUI campaign called “Avoid the 38”, officers were on the hunt for motorists who were driving under the influence of alcohol and or drugs and their efforts proved to be fruitful. According to released statistics, over 856 people were arrested for driving under the influence in Orange County during the two week stint that started on August 19th and ended on Labor Day, September 5th.

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In a twist of fate right out of a Hollywood “B” movie, the District Attorney who prosecuted Paris Hilton last August for cocaine possession has himself been arrested for– get this, cocaine possession.

47-year old Clark County prosecutor David Schubert was arrested over the weekend on one count of cocaine  possession. Rumor has it that Schubert used another man, Raymond Streeter, to buy him $40 worth of rock cocaine every few days. Both Schubert and Streeter were arrested over the weekend after they were spotted driving in a neighborhood known for drug sales.  They were pulled over on a routine traffic stop, the car was searched and cocaine was found.

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Things were looking up for pop singer Chris Brown. After pleading guilty to felony domestic violence charges against fellow pop singer Rihanna in June, 2009 and agreeing, among other things to complete 180 days of community service and a 52-week batterer’s treatment program or domestic violence class, Brown appeared in court recently to show proof that he had completed his program. He was also successful in getting a restraining order against him modified to allow peaceful contact with Rihanna. Brown remained, however, on 5 years of formal probation.

That may now prove problematic.

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Family and friends of criminal defendants facing a lengthy incarceration in the Orange County jail have found some relief when told that an inmate is likely to only serve 50% of his sentence, with good time and/or work time credits. Someone sentenced to 180 days in jail would only serve an actual 90 days, thanks to emergency legislation earlier this year aimed at combating jail and prison overcrowding. That legislation has, however, come to an end.

On September 29, 2010, Governor Schwarzenegger legislation, effective immediately, which returned credit calculation to the previous system of 2/3 credits. If the crime discussed above were committed after September 29, 2010, the defendant would now serve 120 days of the 180 sentence, with good time/work time credits. Crimes committed before that date (but after the original legislation, reducing the credits) are still subject to 50% credits.

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Voters upset at last week’s failure of Proposition 19 (to legalize marijuana) can take heart– in a quiet move shortly before the election state lawmakers decriminalized possession of less than 28.5 grams of marijuana. Senate Bill 1449, effective January 1, 2011, makes possession of marijuana a mere infraction, giving the offense the same legal weight as a traffic ticket. Unlike a traffic ticket, however, where fines can exceed $300, marijuana possession carries a simple $100 fine as a penalty. First time offenders may still be sent to a drug diversion and have the charge dismissed.

The maximum penalty prior to this legislation was $100 fine, but the crime was charged as a misdemeanor, which meant defendants charged with the offense had a drug criminal record. Many lost their jobs or government benefits as a result. Because it was a misdemeanor, it meant defendants were eligible for a public defender and a jury trial as well. In approving the legislation, Governor Schwarzenegger explained that the “only difference is that because it is a misdemeanor, a criminal defendant is entitled to a jury trial and a defense attorney. In this time of drastic budget cuts, prosecutors, defense attorneys, law enforcement, and the courts cannot afford to expend limited resources prosecuting a crime that carries the same punishment as a traffic ticket.”

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“Chelsea’s Law” was signed into effect on September 9, 2010. Codified as AB1844, the law becomes one of the toughest in the world for sexual offenders. Most punitive perhaps, is its “one strike and you’re out” element or a provision that allows a life sentence without the possibility of parole for an adult defendant who engages in even a single act of forcible sexual conduct against a child 14 years old or younger.

Other provisions require lifetime parole for violent sexual offenders, GPS monitoring as part of that parole and lifetime prohibitions against entering parks where children could play.

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A petty theft is the stealing of something under $400.  Most shoplifting cases are petty thefts. Consequences for petty theft cases range, but criminal defense lawyers are typically able to get results which include a program and then dismissal or physical labor, community service, fines and probation. Sometimes, however, a petty theft can lead to a stiff state prison sentence. Until recently California allowed a petty theft to be charged as a felony if a person had been convicted of a petty theft at any time in the past and they’d been “booked” or had their mugshot and fingerprints taken at a local police department. Petty theft charges were thus what criminal attorneys call “wobblers”– they could be charged as either a misdemeanor or the more serious felony, at the discretion of either the District Attorney or City Attorney’s Office. Ironically, Chelsea’s Law has just changed this.

Chelsea’s Law, the law that severely increased penalties for sexual offenses against children under the age of 14, had a legislative rider that actually decreased the penalties for petty thefts. Effective September 9, 2010, a petty theft cannot be charged as a felony unless 1) the accused has three or more petty theft priors; 2) the accused is already required to register as a sex offender; or 3) the accused has a strike prior or has been convicted of an offense that falls under California’s Three Strikes regime.

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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

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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?

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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.

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