When a couple gets into a fight and they both get arrested for domestic violence, the case becomes problematic for the District Attorney’s Office. The reason for this is simple, a defense to domestic violence is self defense. If the arresting agency cannot determine who was the aggressor, and then in an abundance of caution, arrests both parties, they have effectively created reasonable doubt for a jury.

If the case went to trial, how would a jury determine who the initial aggressor was? How would they determine who was defending themselves? Unless there are independent witnesses, or some other form of damaging evidence against one of the parties, arresting both simultaneously ultimately helps the defense.


Today in Alhambra Court, I was finally able to get someone from the DA’s office to listen and actually hear what I was explaining to them. My client had been arrested for driving under the influence of marijuana. The prosecution knew they had an uphill battle, as there was no bad driving, and non alcohol related DUI offenses are tougher for the DA to prove. This being the result of the DA not having the .08 or above presumption of being under the influence. However, I provided the DA with a copy of the federal study regarding marijuana and driving impairment. The study, while being fascinating on many levels, involves test subjects who ingested up to 300 micrograms of marijuana (100 micrograms per joint = 3 joints per participant). The findings are inconclusive. The folks at NHTSA could not tell whether a person became impaired or not. In fact, although individuals tended to do worse on simulators, people did better on the road! Now they are unable to convert marijuana intake to a .08. However, they speculated that 100 micrograms might be the equivalent of a .04 (but there is no way to tell). Considering my client’s blood was tested in nanograms, and was much lower than 100 micrograms, I was able to educate the District Attorney on how impaired my client actually was. The good news, after calling ready for trial, the DA did the right thing and dismissed the case.

So much for the prosecution’s duty to seek justice and not a conviction.  Once again gamesmanship prevails, in this case the DA (somehow) got an order from the court that the defense NOT be allowed to discuss or expose the details of a plea agreement between the DA and witness.  Fortunately the appellate court sought justice on this one and reversed on the basis it prejudiced the defendant’s case. People v. Hernandez; 2012 DJ DAR 4970

A single grant of consent does not, as a matter of law, prohibit more than one search. An officer may conduct more than one search if, under the totality of the circumstances, a reasonable person would conclude that any subsequent search fell within the boundaries of the defendant’s consent.      People v. Valencia

First of all – DON’T CONSENT TO A SEARCH!  But if you do, be very specific of what you are allowing the police officer to search.  Remember, anytime a police officer asks you if they can search you, your car, your house, purse, etc., that means they don’t have the authority to search and must get your consent.  Although, police officers never like being told no, they must (in theory) abide by the rules.  Unfortunately, sometimes they will do what they want, and write up their report in such a way that you did in fact consent.  Should they pressure you and ask you why you will not consent to such a search, tell them that you are an idealist and believe in our constitution.

Defendant’s admissions that he pointed shotgun alongside accomplice–as accomplice aimed rifle at intended victim–and pulled the trigger to make a “click” noise, thereby emboldening accomplice to shoot, were sufficient to support firearms enhancement, even if shotgun was inoperable and unseen by anyone else. There is no requirement that victim see or perceive firearm for enhancement to apply.      People v. Thiessen

Defendant charged with DUI with injury and related offenses was entitled to sua sponte instruction under Penal Code Sec. 26, which exempts from criminal responsibility persons who committed the act charged “without being conscious thereof,” where there was evidence supporting defendant’s theory that he could not be found guilty because the reason he crossed double yellow lines and collided with the victims’ vehicle was due to his low blood sugar, causing him to pass out, and not to being under the influence. Trial judge erred in giving CALCRIM No. 2100–the last sentence of which reads, “If the defendant was under the influence of a drug, then it is not a defense that something else also impaired his ability to drive a vehicle”–where it might have misled jury into believing that unconsciousness is not a defense to the violation of law or failure of duty element of DUI with injury. Combined impact of instructional errors was prejudicial under any standard.      People v. Wells

For all of you taking prescription medication, this ruling does not mean you can pass out due to medication versus alcohol.  What it means is that if you pass out due to something non alcohol or drug related, such information as a possible defense in a DUI case.

To support a probation search, officers needed only a “reasonable suspicion” to conclude that the probationer owned, controlled, or possessed an item within the probationer’s residence, and did not have to meet the higher standard of probable cause.      United States v. Bolivar – filed February 29, 2012

I’m sure you are all aware by now that “reasonable suspicion” doesn’t mean much, and that police officer’s have an uncanny ability to suspect the general public of being guilty of something.  Whether they are being “reasonable” or not is ALWAYS the question.