San Jose Criminal Defense Lawyer Blog

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.

The San Jose Police have announced that the Department will no longer impound vehicles that are stopped for a minor traffic violation and where the driver was unlicensed at the time of the stop. For years the Police have been impounding vehicles for 30 days if the driver could not produce a valid driver's license. It has been a source of revenue for the city, as the fines and fees can be excessive.

It seems that the San Jose Police have caved in the wake of numerous complaints suggesting that this policy greatly impacts illegal aliens who do not qualify for a California driver's license. Immigration advocates argue that the policy puts a greater burden on immigrants who drive to and from work every day, but cannot obtain a legal license to drive.

The new policy allows a police officer the discretion to leave the vehicle parked and wait for a licensed driver to come and take it.

The police will still cite such drivers for a violation of Vehicle Code section 12500, driving without a license.

San Jose police have indicated that the new policy is to renew trust between the Department and the Latino and immigrant communities.

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.

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" »

Two young men are dead after a high-speed chase by the highway patrol. Vincent Reza and another unnamed man were crushed to death after their Ford Explorer flipped over on East Saint James Street near North Sixth Street in San Jose. The driver of the vehicle has survived but no word on his injuries.

The chase began in the pre-dawn hours today, when the California Highway Patrol, in a marked vehicle, pulled over the 2003 Explorer for not having a rear license plate. When the officers approached the vehicle it took off at a high rate of speed. The officers activated the patrol vehicles light and sirens and pursued the feeling Ford. The Highway Patrol lost sight of the Ford, but later spotted the vehicle in Downtown San Jose. It was reported that the Explorer was speeding on two wheels for several brief moments.

The pursuit ended when the vehicle flipped over and crashed into a parked car and attached utility trailer. The driver, Jose Hernandez, 19, was arrested and the other two passengers were pronounced dead at the scene. It is not known whether the Highway Patrol was in violation of its own pursuit policies.

A review of Hernandez' DMV records show that his license was suspended on July 23 for failing to appear in court. In November, the records show, he was cited for not stopping at a stop sign and not wearing a seat belt on two different occasions. Police say Hernandez was arrested for two counts of vehicular manslaughter, driving under the influence, possession of drugs, driving on a suspended license and evading an officer/failing to yield to an officer.

This accident comes on the heels of yet another high-speed police pursuit on July 13. A 24 year old man driving a Honda led the CHP on the pursuit through Downtown San Jose on San Fernando Street. The Honda smashed into a parked vehicle with such a force that the vehicle was nearly split in two. The teenage driver of that vehicle was killed by the force.

The CHP is reviewing its high-speed pursuit policies in the wake of these two tragedies.

Continue reading "San Jose Police Chase Kills Two Young Men" »

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 want my readers to read a part of this article from the San Jose Mercury News my Sean Webby: "When an Apple employee arrived at his downtown San Jose home to find that his two iPads had been stolen, he realized the hot-selling tablet could help him track down the thieves.

With a San Jose police officer looking over his shoulder, the employee used his iPhone to watch an icon representing one of his iPads travel through the city, then turn onto Cape George Place.

Police swung into action, surrounding a 1998 Dodge Neon. In the back seat was a slew of hardware including the employee's iPads. Police arrested Francisco Chavez, 31, and Arturo Urrutia, 33, both of San Jose, on burglary and other related charges." San Jose Mercury News, June 23, 2010.

Bay Area based Apple has reported that there is a GPS tracking device that can be linked from the IPad and IPhone. Lose your IPhone? Simple get out your IPad and track it down. New technologies are making it easier and easier for police to track down suspects. Surveillance cameras (as noted before) lidar, instead of radar and now GPS are just a few on the list. Even dogs can be easily tracked down when implanted with a chip. As society grows ever more sophisticated, tracking people down has because ever more simple. But remember, mistakes are easily made. Errors are as easily made. These new technologies face more threats to personal privacy than tracking down criminal suspects. There is a lot to be learned about these new methods, many of which are still untested. Lidar (the "new radar") is not even on the approved list of mechanical devices and it is still yet being used.

Continue reading "Bay Area Tech To Catch Suspects" »