San Jose Criminal Defense Lawyer Blog

Santa Clara County is one of the few jurisdictions not to provide some kind of legal representation to indigent defendants at their first court appearance. However, a new county policy change will take effect throughout the San Jose and other county courthouses where the Public Defender will provide a representative to assist people at their arraignment on misdemeanor charges.

Typically, too many defendants charged with a misdemeanor plead guilty at the arraignment after a judge informs them of their rights and provides an indicated sentence. This is true of driving under the influence charges, where the judge informs the defendant that he or she can continue the matter to seek out an attorney or plead guilty on the spot and receive the court's sentence. This of course precludes putting up a defense, especially when in Santa Clara County the punishments are often harsher than San Mateo, San Francisco and other surrounding areas.

Usually in these circumstances a Sheriff Deputy is present handing out waiver of right forms, merely anticipating that some or many of the defendants appearing at their arraignment will plead guilty. Although no pressure is placed on these people, the effect is to have more people plead right on the spot. Often, the defendant does not understand the other collateral effects of a guilty plea and conviction without legal representation on hand. Such consequences can be lifetime sex or narcotics registration, lost of driver's license or deleterious effects on immigration status.

It unclear whether misdemeanor cases in Santa Clara County will be expedited or slowed down by this change, but the county has been playing with fire for not providing some representation early on. This new policy will begin with a pilot project at the San Jose Hall of Justice.

Source: Mercury News.

San Jose officials are reporting that the annual AVOID the 13 DUI crackdown netted less DUI arrests this Christmas and New Year's season. Santa Clara County made just under 500 arrests of people on suspicion of driving under the influence, down from 557 last year and 632 in 2009. The Sheriff's Office believes that high DUI enforcement visibility acted as a deterrent, which included highly advertised sobriety and license checkpoints.

As of December 28, 2011, Santa Cruz reported a total of 30 DUI arrests and Morgan Hill totaled 18. All county local law enforcement agencies have noted a decrease in arrests this past holiday season and there were no deaths related to driving under the influence.

AVOID is an anti-DUI law enforcement program funded by grants from the Office of Traffic Safety. The program provides the framework to pull different law enforcement agencies from all participating counties to "cluster" together and clamp down on drunk driving. Santa Clara County was the first to participate in the DUI program in 1974. Forty one counties now participate in AVOID, which includes 540 law enforcement agencies.

Source: Morgan Hill Times

Governor Jerry Brown signed legislation that will prohibit law enforcement agencies, including San Jose and other Bay Area police from impounding vehicles if a driver is discovered to be unlicensed during a DUI checkpoint. Previously, many police agencies would impound vehicles if the driver, even sober and not otherwise impaired, did not have a valid driver's license.

It has been alleged that the policy of impounding such vehicles unfairly affected minority groups, if not even targeted at illegal immigrants who routinely drive without valid licenses. Once impounded, sometimes for up to thirty days, the fees to get the car released can be too costly for the owner to pay. In many cases the owner of the vehicle is forced to abandon it to the City.

Under the new law, the car must be released to a legal and readily available driver. If one cannot be found at the scene of the checkpoint, it is to be released immediately at the impound yard once one is found. However, if the driver is deemed under the influence, police may still have the vehicle impounded at the owner's cost. To read the new law, AB 353, click here.

Continue reading "New Rules for San Jose DUI Checkpoints" »

Law Enforcement agencies in the East Bay have been rocked by a series of scandals involving allegations of threatening witnesses, making false arrests, selling evidence among other claims. However, the Mercury News is reporting that one officer may have colluded to set up one man's recent DUI arrest and conviction.

David Dutcher, a Bay Area resident was arrested and convicted of driving under the influence in 2008. His previous suspicions that he was "set-up" may now have been confirmed and those suspicions involve a conspiracy between his former wife, a too good to be true dinner-date and a now disgraced private investigator and former East Bay police officer.

Dutcher claims that his ex-wife set him up with a flirtatious dinner-date who downed Dutcher with alcohol and promises of an amorous evening before coaxing him into his car. He was soon stopped by a police officer and arrested for having a blood alcohol equivalent of .12%.

It was only after his conviction did Dutcher realize he was being spied on that evening by former PI Christopher Butler. Butler is currently at the center of a grand jury investigation for other previous DUI setups. Dutcher now contends that his ex-wife hired Butler (and his amorous date) in an orchestrated effort to smear his reputation during a child custody battle. Butler has admitted that he tipped off the police officer who arrested Dutcher, but denies any conspiracy. The ex-wife has admitted hiring Butler, but only to make sure their mutual children were not being driven by Dutcher. Dutcher's date is being described as a Las Vegas showgirl and security specialist who has previously worked on sting operations.

Dutcher is now petitioning the court to withdraw his previous plea of guilty. Penal Code section 1018 allows a person to withdraw a plea of guilty and substitute it with a plea of not guilty if good cause can be shown that the plea was not made knowingly and voluntarily and that the defendant did not fully understand all of his or her rights at the time of the guilty plea. In reality, the defendant must show mistake, ignorance, fraud, distress or some other factor that overcame the exercise of free judgment.

Although, Dutcher is a victim (one of several) there is no evidence that he did not understand his rights at the time of his plea and the following consequences. He has admitted to drinking and the subsequent driving. There is nothing to indicate that his guilty plea was anything but knowing and voluntary. Even if there was enough to retract his guilty plea, the case would not be thrown out. He would be able to re-fight the matter with the hope of getting a better deal.

However, Dutcher's case should be dismissed in the interests of justice. The surrounding circumstances have tainted the matter and the participants lack any credibility. Three other and similar cases have been thrown out. It is only fair to dismiss Dutcher's DUI.

About two weeks ago the Santa Clara County District Attorney's Office announced that hundreds of DUI cases were being reviewed because of a faulty breath-test machine, the Alco-Sensor V. Now halfway through its investigation the District Attorney revealed only 42 cases or 5% of the cases being reviewed are problematic. Over 600 cases have been reviewed and only one actually dismissed. The defect with the machine is that condensation builds up and elevates the reading when a person blows into it.

In Santa Clara County, arrestees are usually asked to give a blood or urine sample, which is used to gain a conviction. Field sobriety tests are also used both as probable cause to make the arrest and also for a conviction.

Unfortunately, many of the cases being reviewed have already been resolved with a conviction. In San Jose and all Santa Clara County, a conviction for a first-time DUI typically costs the defendant nearly $2,000 in fines, six month license suspension, a 3-9 month alcohol treatment program, and 48 hours of jail (which usually translates into six days on the Sheriff's Work Program).

In the wake of the news that hundreds of DUI cases are under review in San Jose, Palo Alto has announced a similar situation, the Mercury reports. At issue is the newest of the preliminary alcohol screening devices (PAS0, the Alco-Sensor V. Palo Alto Police began noticing problems with the device back in December of 2010, returning 10 devices to the manufacturer. Palo Alto has been using the device since April of 2010.

Wired.com reports that the problem with the Alco-Sensor V is that the condensation from one person's breath would "stick" onto the inner tube of the device. The next person to blow into the PAS device would mix his or her breath with the already existing condensation, giving a higher blood alcohol equivalent reading.

The Santa Clara County District Attorney announced last week that more than 800 DUI cases were being reviewed because of the faulty PAS machine. The Mercury reports that San Jose Police have been using the Alco-Sensor V since November of 2010, but stopped when breath results were deemed unreliable. They have gone back to using the Alco-Sensor's V's predecessor, the Alco-Sensor IV.

When there is a suspicion of drunk driving a motorist is asked to complete a series of field sobriety tests or FSTs. These include finger dexterity, leg raise, line walk, counting to 30 seconds (the Rhomberg test) and two blows into the PAS device.

Santa Clara's review is due in a month's time.

Continue reading "PALO ALTO POLICE TO REVIEW 135 DUI CASES" »

A pedestrian was found dead in the early morning hours in Pacifica Sunday, after being hit by a vehicle. The unnamed person was found by local police at or around 1:30 a.m. near Sharpe Park Road. During the investigation an unnamed motorist arrived on the scene and admitted that he was responsible for the hit and run that resulted in the death. Police determined that the motorist was intoxicated at the time of the accident and arrested him on a felony manslaughter charge.

The Law in California allows the District Attorney to bring felony manslaughter charges where the driver of a motor vehicle was intoxicated and a passenger or pedestrian dies as a result. The standard for a manslaughter charge is 1) the driver was under the influence or alcohol or drugs; 2) a separate felony, misdemeanor or infraction was committed by the driver that is likely to cause a death; 3) the driver committed that act with gross negligence and 4) A person was killed as a result.

However, there are some questions that need to be answered. First, how did the police determine that the motorist was intoxicated at the time of the accident? How much time elapsed between the incident and the motorist's return to the scene? Did the police perform a preliminary alcohol screening? Are there witnesses who can testify that the motorist committed some other violation, felony, misdemeanor or infraction (the second prong of the factors noted above)?

Of course a forensics investigation will continue by law enforcement . However, if certain factors cannot be determined the motorist may have a defense or at least certain mitigating factors.

Continue reading "A DUI in Pacifica Leads to Death" »

Sean Quintero, only 18 years old, was driving his mother's Toyota. Three of his friends were in the car all discussing music when the car suddenly lost control and crossed two lanes of traffic, crashing into the rear of another vehicle. Quintero did not notice a traffic jam until it was too late and swerved to miss hitting oncoming traffic. One passenger was killed in the incident.

Unfortunately, Quintero had been drinking with his friends that night, although police have not released his blood alcohol concentration. He was arraigned in San Mateo County on charges for gross vehicular manslaughter, a felony. Currently he is being held in county bail with no bail.

The group of friends were having a fun night at the Serra Bowl in South San Francisco before going up to San Francisco to a party. The incident took place on their way back home. All the passengers are said to be 17 or 18 years old.

The Law in California allows the District Attorney to bring felony manslaughter charges where the driver of a motor vehicle was intoxicated and a passenger or pedestrian dies as a result. The standard for a manslaughter charge is 1) the driver was under the influence or alcohol or drugs; 2) a separate felony, misdemeanor or infraction was committed by the driver that is likely to cause a death; 3) the driver committed that act with gross negligence and 4) A person was killed as a result.

Here the prosecution will allege that Quintero had a blood alcohol above .08% and that his maneuver to avoid the traffic jam was grossly negligent. Gross negligence does not have to be as bad as it sounds. The legal standard is "below ordinary care" that creates a high risk of death. Driving a motor vehicle itself creates a high risk of death. All it really takes is some small infraction and the possibility a killing someone raises expedentially. So, the DA will argue.

The sad thing is: one life is forever gone and the other wasted.

Continue reading "Bay Area Teen Faces up to 17 Years" »

Jeff Rosen, the recently elected District Attorney for Santa Clara County officially takes his seat today. However, Rosen enters his new job in an office plagued by scandal, corruption and questionable ethics. Rosen has promised to clean-up the image of the office, but that is indeed a tall order.

Over the past several years Rosen's predecessor, Dolores Carr promised the same thing: greater transparency, strong ethics and inter-office reform. However, the last four years witnessed an uncanny number of ethics charges against certain deputy district attorneys. Allegations of withholding exculpatory evidence, misleading and refusing to follow judge's order and other abuse have been cited. Carr herself ordered her deputies to ban a Superior Court Judge she thought unfriendly. Carr has been known to defend these prosecutors rather than discipline them. Several of these attorneys are being held accountable by the California State Bar.

Rosen first acts should be to set up a new discipline policy, with a board that supervises and disciplines acts of misconduct. The office should implement new polices of punishment and dismissal. Rosen should be more transparent about ethics charges and ready to pursue disciplinary action.

It is hoped, although not expected, that Rosen will also implement new policies toward drugs and alcohol cases. This attorney would like to see a diversion program for first time DUI offenses. We treat drug cases very differently than alcohol, and it might be time for a change. Perhaps something equivalent to DEJ or Prop 36 for first time DUIs? Just a thought for the new DA.

Under state law adults are prohibited from furnishing a minor with alcohol. The state is also prepared to pass a law holding parents responsible for underage drinking and driving. Santa Clara County has similar provisions. However, San Jose is next in line, as Councilwomen Nancy Pyle has proposed an ordinance that would hold parents liable for underage drinking that takes place in their home.

The law is in response to an accident that occurred on September 21, 2010, where the driver was 18-years old and intoxicated. His passenger, Roshan Rahbari, was killed and driver arrested. However, there was no allegation that the driver's parents furnished alcohol, or that the drinking took place in their home.

These laws are sometimes referred to as "social host" regulations. Morgan Hill, Saratoga and Monte Sereno all have similar provisions on the books. In these jurisdictions the ordinances hold parents responsible whether they knew about the drinking or not and punish them with fines. So, if Mom and Dad go on vacation and leave their 18 year old at home, they are responsible for any drinking that occurs in that house.

However well-intentioned these laws are, most surveys report no drop in the amount of alcohol teens consume both in and outside the home. Of course if the county and other cities are any gauge, San Jose will profit from a new source of revenue.

Governor Schwarzenegger signed into law a new measure that gives Superior Court Judges the discretion to take away a defendant's driver's license for ten years upon a third DUI conviction. Jerry Hill of San Mateo sponsored the measure, which takes effect January 1, 2011. Under this new law, a third conviction for a DUI within a ten-year period can be punished with a revocation of the defendant's license for an entire decade.

In a press conference, Hill noted that 12,364 DUI convictions are for a third or fourth violations out of a total of 188,000 convictions in 2008. The idea behind the law is to take 10,000 drivers off the road who prove themselves habitual offenders. He further reported that 310,000 Californians have three or more convictions for driving under the influence.

Of course what is unsaid are the unintended consequences. This kind of law will create a new under-class of people; and a class of people perpetually at risk for violating the law. Mobility is essential in today's world. It is more than just a hardship to deny a person's mobility for an entire decade and not to expect that person to drive unlicensed. This law will create a new group of citizens consistently at-risk.

Judges will have wide discretion when sentencing defendant's convicted of driving under the influence. It is hoped they use this discretion well.

Continue reading "San Jose Drivers to Face Stiffer DUI Penalties" »

In a recent survey conducted by insurance.com, San Jose appears to have one of the highest DUI rates in the country. As a matter of fact, San Jose ranked 2nd, next to San Diego. According to one pontificator at insurance.com, the reason for this is two-fold: less integrated and use of public transportation and higher drinking and social merriment. Are the people of San Jose drunk party-goers?

No, the real reason is simple enough: far more aggressive DUI enforcement and a greater eagerness to prosecute. San Jose is notorious for "crackdowns" on drunk drivers, routinely setting up roadblocks (often times outside the constitutional parameters for such stops), increased traffic stops (also often times constitutionally impermissible) among other law enforcement procedures.

Also, it may be an issue about money. San Jose Law Enforcement (and San Diego too) is better funded and equipped than other cities. Looking at the list provided by insurance.com, the cities with the lowest DUI rate have the highest crime rate! On the flip-side San Jose was recently named one of the safest big cities in the country.

The driver of the SUV in last week's tragic car crash that resulted in the death of two is being charged with two counts of vehicular manslaughter with gross negligence, evading police that led to the death of another person, possessing methamphetamine, and driving with a suspended license. He was originally arrested for a DUI, but the District Attorney's Office decided not to add that charge.

It was reported that Jose Hernandez was driving his Explorer SUV up to 110 miles per hour in Downtown San Jose shortly before the crash. The two passengers in the back, Vicente Reza and Jose Varales were pronounced dead at the scene.

According to the California Highway Patrol, Hernandez' SUV was spotted on Notre Dame Ave for not having a rear license plate. The CHP demanded that the driver pull over, via the PA, approximately six times. The driver did in fact pull his vehicle over on Carlysle Ave. However, when the officers step out of their patrol vehicle, the SUV peeled away. They followed the SUV as it turned left on Almaden, but lost sight of it on St. James. However, three blocks down they saw a billowing cloud of dust, which was the area of the fatal crash.

CHP has released the police report which indicates that Hernandez admitted smoking pot and drinking alcohol earlier. A blood test showed a blood alcohol content of .17. He also admitted using cocaine earlier that evening.

DMV records show a list of traffic violations including speeding, failure to wear a seatbelt and a failure to appear.

Continue reading "Update on Fatal San Jose Crash" »

The San Jose Police Department issued a statement that they will be conducting a sobriety checkpoint tonight, August 13, 2010 from 9:00 pm.m to 3:00 a.m. The police did not indicate where the checkpoint would be (although the law requires them to publish the location of the checkpoint).

The usual spots the police conduct these operations are on Monterey between Fehren and Southside. The San Jose police are not allowing points to turn away (again as required by the law) so once you get trapped into a roadblock, there is no escape. Of course this begs the question: if motorists are not allowed to turn away, what probable cause do the police have in stopping any vehicle. When there is a turnaway point and a motorist continues to drive into the stop, then there is implied or constructive consent to the stop. Just being forced into a checkpoint does not give rise to probable cause.

To see the police department's statement click here.

Continue reading "San Jose Sobriety Checkpoint Today" »

I am a little late in getting to this, but there has been so much to do and write about. On June 8, Deputy District Attorney Jeff Rosen defeated incumbent Delores Carr for the coveted position of top D.A. This came with cheers and happy shouts from defense lawyers and even many prosecutors. Carr came into office vowing to rid it of corruption and manipulation. Unfortunately under Carr's tenure, things got far worse. Suppression of evidence, withholding key witness and downright lying had become all too prevalent in the office for the voters to tolerate.

To give one example, a deputy D.A. used false semen evidence to persuade a jury that the defendant was guilty of rape. In fact that was the "evidence" used by the police to coerce the defendant to confess. The DA latter used that "evidence" as authentic, which resulted in a conviction. No real semen was actually found.

In another example, the DA failed to disclose vital medical records that would have been mitigating for the defense. That DA might very well lose his license.

Carr even ordered all Deputies to boycott one certain judge because she tends to grant "too many" defense motions.

The office has been maelstrom of deceit and unfair practices. Some D.A.s refused court orders. Others ignored evidence. And all the time Carr stood by her people (the guilty ones I mean)

We hope in Jeff Rosen the office will truly be cleaned up and seek justice, not power.

Good Luck Jeff!