San Mateo Criminal Defense Blog

California College Student Endures Extreme Isolation After Drug Arrest

2012-05-10T21:13:59Z

Over-zealous law enforcement can take many forms. Arresting someone without cause is certainly one of them. But detaining someone and then forgetting for five days that the person was in detention?

It sounds outlandish, but that is what happened recently to a California college student named Daniel Chong.

Federal agents investigating allegations of drug crime picked up Chong for questioning. The Drug Enforcement Agency (DEA) had raided a house where he was spending the night.

Chong was then kept in a holding cell for five days - without food or water and sometimes in nearly complete darkness.

The intense experience of unexpected, utter isolation was psychologically devastating for Daniel Chong, "I didn't stay sane," he told a reporter for NPR. "Eventually, by the second or third night . . I went completely insane and was just trying to get a grip on reality, on what's happening to me."

Chong's emotional condition was so dire that he thought about committing suicide by using his glasses to cut into his arm. He screamed and kicked the door, yet no one came.

]]> The DEA agents who arrested him had told Chong that he would be released and given a ride home. But he ended up languishing in a cell for five days until he was finally let go.

Willliam R. Sherman, the acting special agent in charge of the DEA's San Diego office, offered an apology. But it came in the form of a statement, not in person.

Chong has filed a lawsuit against the DEA, seeking extensive damages.

Source: "Student Forgotten in Holding Cell: 'Changes Have To Be Made'," Eyder Peralta, NPR, 5-3-12

Federal Marijuana Raids Put Pressure on California Dispensaries

2012-04-10T16:55:08Z

Tension between the federal government and state or local governments is as old as the American republic itself. The tension is heightened when there is a local perception that federal agents are overreaching their authority.

California marijuana charges are a case in point. Two years ago, California seriously considered legalizing marijuana for recreational use. Though that measure was defeated, interest remains in legalization remains strong.

California law already allows marijuana to be used for medical purposes.

Federal law enforcement officials, however, continue to crack down on the California marijuana community. Last week, federal agents raided Oaksterdam University, a Bay Area school whose founder, Richard Lee, was a key supporter of the 2010 ballot measure seeking to legalize marijuana.

That measure received nearly half of the vote: 46 percent.

The agents blocked off the doors to the school in downtown Oakland and proceeded to remove numerous trash bags. A spokeswoman for the Internal Revenue Service declined to specify the contents of the bas. She said only that the agents were executing a search warrant.

]]> A dozen or so protesters watched it happen. For them and for many others, the concern is that federal authorities will try to close medical marijuana dispensaries - forcing marijuana transactions increasingly underground.

Under current state law, the city of Oakland and other local governments regulate marijuana dispensaries with zoning ordinances and permits. But in recent months, federal prosecutors have been trying to shut many of these dispensaries down.

Meanwhile, supporters of legalizing marijuana for recreational use are trying to get a legalization initiative on the ballot for this fall's election.

Source: "Federal Officials Raid Medical Marijuana School in Oakland," New York Times, 4-2-12

Marijuana as Ingredient in New Cancer Drug Could Thicken the Pot Plot

2012-02-13T23:26:05Z

The dangers of prescription drugs are much in the news today, amid speculation that the singer Whitney Houston's untimely death was linked to them.

No one denies that overuse of prescription drugs can lead to problems. It should be noted, however, that prescription drugs are legal substances. Unless some other offense is involved, merely possessing or using prescription drugs should not lead to charges of drug crime.

A complication may be coming soon, though, in the form of a prescription drug that contains the same primary psychoactive substance found in marijuana. A British company called GW Pharma is hoping to sell a mouth spray containing cannabis in the United States next year that could be used to treat cancer pain.

The drug being developed is called Savitex. It has already been approved for use in several countries, including Canada, for a different purpose: the relief of muscle spasms caused by complications of multiple sclerosis.

GW Pharma hopes to obtain approval from the Food and Drug Administration by the end of next year to market Savitex as a cancer-relief medicine.

]]> If this happens, it could add additional issues to the complicated question medical marijuana. Possessing pot for medical purposes is currently legal in California and 15 other states, as well as the District of Columbia.

Even in states with medical marijuana laws, there are still numerous challenges for those who seek to obtain the drug. One of those challenges is the threat of criminal prosecution, because marijuana is still classified as a controlled substance under federal law.

FDA approval of Savitex would thicken the plot when it comes to pot.

Source: "Pot-based prescription drugs looks for FDA OK," Associated Press, 1-22-12

California Medical Marijuana Laws and Local Restrictions

2012-01-10T18:45:35Z

When it comes to medical marijuana, there is very large disconnect between what state laws says is legal and what local communities actually allow.

This gap is particularly acute in California. It is frequently an issue in Bay Area drug possession defense cases.

California has the most liberal laws on medical marijuana in the nation. But, according to a recent article in the Washington Post, 185 California cities and counties have banned marijuana dispensaries completely.

This phenomenon is also present in other states across the country where medical marijuana is legal. These include New Jersey, Main, Colorado, Oregon, and others.

Local government officials claim they are concerned about federal law, which they say still contains restrictions on marijuana. But there is also a prejudice against pot that is not necessarily grounded in reality.

For example, local officials may argue that medical marijuana dispensaries could attract crime and become fronts for drug-dealing, or distribute weed to people who have not qualified on the basis of medical need.

]]> These stereotypes about dispensaries often lack supporting evidence. Indeed, the unsupported opposition to medical marijuana raises the risk of withholding it from people who truly need it for medical purposes - and have every right, under state law, to do so.

Cities and towns often use their zoning power to try to restrict the ability of medical marijuana dispensaries to operate. Such ordinances can be used to regulate such things as the permissible distance between a dispensary and public facilities, including schools and parks. The problem is that such regulation can prevent people with legitimate rights to medical marijuana from getting it.

Source: "Local laws around the US thwart medical marijuana, even in states that have blessed it," Washington Post, 1-9-12

Rise in Arrest Rates Makes Expungement Matter to More and More People

2011-12-23T23:05:20Z

The experience of being arrested for a suspected crime has become so common that it now includes nearly 1 of every 3 Americans.

The figure comes from a major research study led by Robert Brame, a criminal justice professor at the University of North Carolina, Charlotte. The study found that 30.2 percent of 23-year-olds who participated in a national longitudinal study reported that they had been arrested for an offense that was not merely a traffic violation.

In our justice system, of course, arrest does not necessarily lead to conviction. But even an arrest record can have serious consequences for people going forward as they look for employment, housing, or credit.

That is why expungement or record sealing are so important, in California and across the country. This is because an old arrest record can hold someone back from getting a job or an apartment - even if the arrest was years ago. In fact, this can occur even if the arrest was erroneous, because digital technology is so relentless at preserving and allowing access to such a wide range of information.

]]> Previous research studies had not found the proportion of people with criminal history records to be nearly so high. In 1965, an earlier research study had estimated the percentage to be 22 percent.

Beginning in the 1980s, however, the criminal justice system has become much more punitive and far-reaching. Arrest on drug charges, for example, are far more frequent than they used to be. Various zero-tolerance policies in schools are also a factor in the high arrest numbers.

Source: "Many in U.S. Are Arrested by Age 23, Study Finds," New York Times, 12-19-23

California Bill on Vehicle Impoundment Affects Bay Area DUI Checkpoints

2011-12-01T20:59:45Z

Checkpoints to crack down on drunk driving may sound good in theory. But in practice, in California, there is a common perception that checkpoints have often unduly targeted people in low-income areas and been used disproportionately against undocumented immigrants.

In particular, police have often been quick to impound vehicles of unlicensed drivers, even if the drivers are sober. Statistics from the state Office of Traffic Safety show that, at many checkpoints, the number of vehicles impounded has far exceeded the number of drunk driving arrests.

It wasn't only lawyers focusing on Bay Area DUI defense who were concerned about this. So were immigrant rights groups and many people in the general public. The practice of impoundment had become a cash cow for many local governments and tow companies benefitting from the fines and fees associated with it.

In October, Gov. Brown signed a bill passed by the legislature that is supposed to cut down on the number of cars that are impounded. The bill, AB 353, makes it against the law for police to seize vehicles at DWI checkpoints simply because the driver lacks a license.

]]> The new law gives unlicensed drivers who are stopped at a checkpoint time to find a registered driver. Even if such a driver could not be found, police would only be allowed to tow the vehicle away for the night, not to impound it.

Vehicle owners will not be off the hook entirely. It will still be necessary to pay fees to get the vehicle released. Drivers who are not the owner will need to get the owner's signature to obtain the release. And drivers whose licenses are revoked or suspended can still have their cars taken for 30 days.

Source: "Brown signs bill to reduce checkpoint impounds," California Watch, 10-11-11

California Realignment Law Raises Many Questions

2011-10-06T14:59:53Z

When many Americans hear the word "realignment," they probably think of college football conferences. In California, however, realignment refers to a significant change in how the state and local governments will divide up the responsibility to incarcerate, supervise and rehabilitate people who commit certain types of crimes.

The California legislature passed the realignment law in April. Governor Jerry Brown signed the bill, and the law took effect this week.

The broad intent of the law is to shift the responsibility for monitoring and offering programming to lower-level offenders from the state to local governments. The overcrowded state prison system, which is under court order to shed 33,000 prisoners within two years, is supposed to receive only the more serious or violent offenders.

Those convicted of nonviolent offenses, such as theft or property crimes, are to be handled at the local level. To a great extent, this means they will be sent to county jails.

]]> Analysis of the law, however, indicates that there are numerous offenses shifting to local control that could be considered serious or violent. One example is involuntary manslaughter, which is due to be punished in county jails rather than state prison under the new law. This law would apply to Dr. Conrad Murray, if he is convicted of involuntary manslaughter in the death of Michael Jackson.

If such offenses are punished at the local level, it is important that local authorities have the resources they need to provide the rehabilitation programs, such as drug or alcohol counseling, that will help ex-offenders be able to reintegrate into society.

Source: "AP Exclusive: New California law broadly defines crimes," Associated Press, 10-5-11

Report Shows That Trying California Juveniles in Adult Court Doesn't Reduce Crime

2011-09-08T19:47:27Z

Only a decade ago, it was far less common than it is today for California juveniles to be tried as adults in the adult criminal justice system. But that was before California voters approved Proposition 21, which made it easier for juveniles to be tried in adult court.

Under Prop 21, California prosecutors can choose to try juveniles charged with a felony in the adult system, without any prior review by a judge. Before Prop 21 was passed, a judge had to sign off on this first, before this could happen.

How has this increased discretion for prosecutors worked out in practice? And what are the implications for California juvenile offenders? The Center for Juvenile and Criminal Justice addressed this issue in a recent report.

The report documented stark differences in the way California counties use the adult trial option. In San Francisco, the percentage of juveniles tried as adults is only 0.15 percent. In Ventura County, by contrast, the rate is 12.2 percent of juvenile offenders.

The statewide average for percentage of juveniles tried as adults for felonies is 2.5 percent. Santa Cruz County is slightly above that figure, at 3.1 percent, despite a strong reputation for innovation in juvenile justice programs.

]]> Another finding in the report is that there isn't any correlation between trying juveniles as adults and bringing down a county's juvenile crime rate. It's true that overall juvenile crime rates are down since 2001. But the counties that try juveniles as adults most often have seen lower declines than counties that do so less often.

In other words, trying juveniles as adults does not act as a deterrent against juvenile crime.

Source: "Trying Youth Offenders as Adults," SantaCruz.com, 8-31-11

Courts Consider California Law on Collection of DNA Evidence

2011-08-12T22:27:45Z

DNA evidence is often associated with exoneration of death-row inmates who shouldn't have been convicted in the first place. But DNA evidence can conceivably apply to most any type of criminal charge - not only violent crimes.

A key question, however, is what rights law enforcement officers have to obtain that evidence from people. Under what circumstances can someone simply refuse to give a DNA sample? Conversely, are there circumstances under which someone must give that sample?

Someone who has no discernable connection to a crime, who is just walking down the street, does not have to give a DNA sample, even if a police officer asks for it. On the other end of the spectrum, a prison inmate who has already been convicted of a felony does not have the right to refuse to give such a sample.

So when, during the criminal justice process, does the right to refuse to give a DNA sample get called into question? After all, the Fourth Amendment protection against unreasonable searches and seizures still exists.

]]> In addressing this issue, courts have used the concept of a "continuum of privacy." A 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit has heard oral arguments in a case challenging a California law that allows DNA testing as soon as someone is arrested on felony charges.

This fall, all of the Ninth Circuit judges - not only a 3-judge panel - will consider the case. It has important implications for anyone in need of a criminal defense.

It's important to reminder that many arrests do not end in convictions. In fact, in California, for felonies, only about half of arrests result in convictions.

DNA evidence is inherently personal. After all, it consists of the very cells from people's bodies. The courts should therefore take Fourth Amendment privacy protections seriously as they consider the proper role of DNA evidence in criminal cases.

Source: "When is it OK to Take People's DNA Without Their Consent?" the Atlantic, 8-11-11

Errors in Breathalyzer Results Can Be Grounds for Fighting DUI Charges

2011-07-28T16:19:05Z

Breathalyzer tests are far from infallible. In fact, they can be fraught with errors if the machine used to deliver them was defective or was not calibrated correctly.

In Ventura County, 300 people are challenging their drunk driving convictions on the grounds that the hand-held breathalyzer devices used to determine their blood-alcohol content delivered erroneous results.

The device in question is the Alco-Sensor V. Ventura County purchased 128 of the hand-held devices. The manufacturer later admitted that there was a design flaw, though it wasn't clear how many of the devices were affected by the flaw.

Law enforcement officers and prosecutors like to rely on breathalyzer evidence because it is quantifiable. Field sobriety tests administered by officers at the point of arrest are notoriously subjective. Breathalyzer readings seem more straightforward and reliable in comparison.

But that's only true if the machine is working properly. If the machine is defective, or the officer did not set the machine properly, breathalyzer readings can be utterly erroneous.

]]> In the case of the Alco-Sensor V, the manufacturer, Intoximeters Inc. in St. Louis, Missouri, initially told Ventura Country officials that breath-alcohol test results would not be affected by flaws in the device. But Intoximeters Inc. later acknowledged that flaws in the device could indeed produce erroneous results. The errors were linked, the company found, to condensed liquid contaminating the breath sample.

The bottom line is that if you've been charged with drunk driving, breathalyzer results do not necessarily make a slam-dunk case against you. Talk with us to find out more about how to fight the charges.

Source" "Defendants challenging cases linked to defective breathalyzer," Ventura County Star, 5-30-2011

California Sex Offenders May Be Required to Disclose Internet Addresses

2011-06-02T18:33:57Z

If you have been charged with a sex offense, you know the stakes are high. The possibility of a stiff prison sentence is daunting. So is the social stigma that can come from being charged at all.

To be convicted of certain sex offenses also means having to register as a sex offender. This involves reporting to local law enforcement after release from prison and disclosing where you live.

Under a proposed bill in the California Legislature, this reporting requirement would involve not only where you live. It would also include information on online monikers, e-mail accounts, and use of social networking sites.

Sen. Sharon Runner, R-Lancaster, proposed the bill, SB 57, after hearing that the murderer of two southern California teenagers used a false name when setting up a sexually explicit MySpace profile. The bill has already passed the Assembly, but the Senate has not yet voted on it.

]]> Sen. Runner believes that requiring registered sex offenders to disclose Web addresses would help deter predatory behavior and other forms of Internet crime.

It is by no means clear, however, that cash-strapped law enforcement agencies have the resources to enforce additional registration requirements. As everyone knows, California has had plenty of financial challenges in recent years, and budgets remain tight.

Moreover, it isn't as if all convicted sex offenders are currently getting a free pass. Corrections officials are already monitoring computer use by about 8,750 parolees who were released to the community after serving time for sex offenses.

Source: "Sex offenders would disclose their Web addresses under proposed legislation," Los Angeles Times, 6-1-11

California "Three Strikes" Law Remains in Need of Reform

2011-05-13T16:35:57Z

Baseball and criminal sentencing are different things, and they should be treated that way. But since 1993, California and 22 other states have adopted so-called "three strikes" laws, under which someone convicted of a third felony faces life in prison.

Of those 23 states, California is the only one that allows nonviolent and less-serious offenses to be included as the third strike that triggers 25-years to life sentence.

As a result of California's failure to distinguish between triggering offenses, there are now 8,700 inmates serving life in this state under the three-strikes law. Over half of these inmates are there for offenses that were not violent or serious felonies. Even shoplifting can be made the basis for a third strike, if the person convicted of shoplifting has a prior record of petty theft.

]]> It is of course very expensive - upwards of $40,000 per year - to imprison so many people so indiscriminately for so long. And the impact on public safety is dubious at best. The consensus among many criminologists is that there is no statistical evidence that three-strikes laws actually bring down the crime rate.

This doesn't mean that California's law is easy to change. Los Angeles County District Attorney Steve Cooley found that out in 2006, when he worked with a state senator on a bill to amend the law. The proposed bill would have required that the third strike be either a violent or serious felony. It would also have taken certain lower-level offenses, such as petty theft and small-scale drug possession, off of the list of strikes.

The bill died in the state senate, however, and Californians are still stuck with a law that Stanford law professor Michael Romano calls "the worst criminal law in the country."

Source: "Politics of 'three strikes' law," SF Gate, 5-8-11

Judge Arrested on California Domestic Violence Complaint

2011-05-02T23:09:56Z

The presumption that the accused is innocent until proven guilty is a bedrock principle of our legal system. Also, one cannot be convicted unless the state proves each element of the crime beyond a reasonable doubt. These are essential protections that enable the accused to present defenses, question allegations and call witnesses on their behalf before findings can be made.

These fundamental protections apply no matter who has been arrested. This includes unusual cases like the arrest of a judge.

And, in fact, a California judge was recently arrested. The cases involves Robert S. Bowers, a sitting Solano County Superior Court Judge. On the night of April 10^th, Vallejo Police responded to a domestic abuse complaint around 11:00 p.m. Officers questioned Bowers' wife and found a small, but visible bruise that corroborated her complaint. Two hours later, police stopped Bowers' car and arrested him on suspicion of domestic violence.

]]> Through his attorneys, Bowers denied the allegations against him and proclaimed his innocence. In speaking to reporters, attorney Daniel Russo said "Judge Bowers is completely innocent of the charge. The Vallejo police should be ashamed of themselves. They arrested someone on a completely specious, untrue accusation."

Just like many criminal defendants before him, Bowers was booked into Solano County Jail and posted $25,000 bail in lieu of his May 2^nd court date. Prosecutors will review the allegations and the information presented by officers to determine if they will pursue formal charges.

A conflict of interest may exist in the case because Bowers is a former Solano County district attorney. Nevertheless, Bowers will have the opportunity to conduct his own investigation, call witnesses to corroborate his story and present a vigorous defense on the merits.

Source: "Solano County judge arrested on domestic violence charges," Mercury News, 4-11-11

Welcome to Our Criminal Defense Blog

2011-03-23T13:59:36Z

The criminal law changes every year to accommodate new trends in crime, new approaches to criminal justice and new political pressures. If you have been charged with a crime in California, you need to be able to have confidence that your attorney is knowledgeable about the latest developments and their implications for your case.

At The Law Office of Charles B. Smith, criminal defense is all we do. We pay close attention to developments that may affect our ability to defeat our clients' serious criminal charges. As a former police officer and former prosecutor with more than 30 years of criminal law experience, attorney Charles B. Smith has an in-depth understanding of where the law has come from and where it is going.

We will use this blog to share timely information about the state of criminal law in California, as well as our opinions and perspectives on the latest developments.

We hope you will find this blog informative and helpful. Of course, every case is unique, and the best way to decide what to do about your criminal charges is to talk to an experienced defense attorney right away. To schedule a free consultation with Mr. Smith, call us at 650-401-3661 or e-mail us. We accept credit cards, are available outside of regular business hours, and can make jail visits.