California Court Uphold Murder Conviction Based Upon Reckless Driving

In a recent case opinion issued on August 23, 2010, entitled People v. Moore, out of the Fourth District Court of Appeal, the court of appeal held that the defendant’s driving pattern prior to a fatal vehicle collision, even without evidence of alcohol or speeding, are elements to be considered in raising the offense to a second-degree murder. In this case, the appellant was upset about the break in of his apartment and got in his car and drove at a high rate of speed. He then crossed lanes into traffic coming from the opposite direction and collided with a car in the intersection. The passenger of that vehicle was killed. The appellant then fled from the scene and was arrested after police tracked him down and arrested him using force. Anytime, someone flees from the scene and faces hit and run charges, much less murder charges, at least in Fresno County, a Fresno DUI Attorney should be consulted.

During his questioning, appellant admitted that he knew a fatal car accident occurred and stated that he was in a hurry to get home so he could clean up, suck down a beer, and watch some television. Ultimately, the jury convicted him for second degree murder and vehicular manslaughter. On appeal, appellant contended that there was insufficient evidence to support the second degree murder conviction since he was DUI at the time of the accident and was not fleeing the cops.
The court of appeal found otherwise. This case also illustrates the importance of having a competent Fresno DUI lawyer on your side if your facing charges in Fresno to defend serious allegations such as murder and driving under the influence.

The court of appeal’s decision was that appellant exhibited implied malice under the circumstances when he drove his car in a reckless manner with a high degree of probability that a death or injury could occur. Amazingly, however, the court found that the evidence of appellant’s prior conviction for drunk driving was properly admitted even though there was no evidence alcohol was involved. The court of appeal, ridiculously, concluded that the prior conviction was relevant as it served to put him on notice of the possible consequence of operating a motor vehicle in an extremely reckless manner. The court of appeal also found that the trial court did not abuse its discretion pursuant to Evidence Code section 352, which prohibits evidence which could be prejudicial from coming before the jury, as the evidence of the prior DUI was insignificant compared with the facts of present crime.

This case highlights the ends justify the means mentality of many of today’s appellant courts. All too often, as a DUI attorney in Fresno, I see this sort of reasoning from the courts. The appellant courts will often do whatever it takes to uphold a conviction; even if means upholding a ruling of the trial court which is obviously prejudicial and skewed the outcome of the trial.

Woman Talking on her Cell Crashes into Driver at Fresno DUI Checkpoint

On Thursday, August 27, 2010, in Fresno, California an inattentive driver was talking on her cell phone and not looking where she was going. Unfortunately, this combination resulted in the 25 year old female driver crashing into the back of a motorist who was stopped at one of Fresno’s Police Department’s DUI Checkpoints.

Apparently, members of Fresno’s finest were talking with another motorist who had been detained at the checkpoint for a Gestapo like investigation when a young lady smashed into the back of that vehicle. This DUI checkpoint was located off of Shaw Avenue in northeast Fresno. While talking on one’s cell phone while driving is a violation of the law (Cal. Veh. Code §23123), which usually results in a small fine, around $75.00 according to the Fresno Bail Schedule, and is also a no-point violation as far as your driving record.

Fresno PD officer’s tried to flag the girl down prior to her striking the other vehicle, but alas she was deep in conversation. The irony is that she was also arrested for DUI. This raises an important consideration, which as a Fresno DUI Attorney, instantly caught my eye. If the other driver or one of the officer’s was injured that would immediately mean that the girl could be charged with Felony DUI (Veh. Code §23153 (a) or (b)), rather than a simple misdemeanor driving under the influence charge. Whenever somebody is facing a Felony DUI, it is important to retain an experienced DUI Attorney in Fresno, California.

In Fresno, the DUI capital of the world, this city takes DUI’s very seriously and a charge of Felony driving under the influence in Fresno can subject a person to a term of three (3) years in prison if nobody is greatly injured. That is why it is critical, even if charges haven’t been filed yet in your case, to seek out knowledgeable counsel in the form of a seasoned Fresno DUI Defense Attorney. If somebody is severely injured, the Fresno District Attorney may add an enhancement that the DUI also caused great bodily injury (Pen. Code §12022.7 (a) ). This enhancement elevates the offense to a Strike under California’s three strikes law and tacks on an extra three years. Hopefully, this young lady did not injure anybody due to her cell phone usage and will not have to risk a serious term of incarceration.

Fresno DUI Case Dismissed for Failure to Prosecute

Not too long long ago, a friend of mine came to me here in Fresno after seeing my picture in the yellow pages. He didn't realize I was a Fresno DUI attorney and after he recognized my picture from the phone book he called me up. It turned out he had a case from 2004 that he hadn't dealt with and now was coming up to bite him in the- you know what. He told me his public defender told him that if he pled to a DUI that the DA would drop the rest of the charges (under the influence of narcotics, possession of a smoking device, suspended license, no registration, etc.) He couldn’t do that because it would have ruined his chance to get a promising job where he needed a clean driving record.

Well, I told him, lets check some things out first before you do that. The first call I made was to the lab that had his blood (since this was a blood test case). Well, of course, the blood was destroyed since the case was several years old. The next call I made was to the evidence room at the police department. Well it turned out the evidence had been destroyed in 2005 (the smoking device.) This to me presented a great example of why someone should get a competent Fresno DUI Lawyer to defend their case. His court appointed attorney, unfortunately, had not even checked to see if the evidence still existed or, worse yet, if they had, he or she was deliberately withholding this information from my friend.

After I told my friend the news and said that it looked like he had a pretty good shot at fighting this case, he decided to hire me. Well I spent a weekend drafting three motions (a motion to dismiss for failure to prosecute the case in a timely manner, a motion to dismiss for destruction of evidence, and a motion to suppress the evidence in the case based on a questionable police stop.) The next week I calendared all three motions to be heard with the court.

After that I subpoened the director of the laboratory that destroyed my client's blood sample and the detective in charge of the evidence room where the smoking device was destroyed. I'd like to add (off topic) that issuing subpoenas is probably my favorite part of being a lawyer. Sometimes I think I would have gone to law school just for the pleasure of dragging unwilling people into court.

Low and behold, we finally got into court and had all motions heard a couple of weeks ago. The court took up my first motion, the motion to dismiss for failure to prosecute in a timely manner. Since the evidence had been destroyed, and it was irrefutable that my client was within access of the prosecution so that they could have prosecuted this case prior to the destruction of the evidence, the court granted my first motion without even considering the other two motions and dismissed my friend’s case.

It turned out that I put in all that extra work for nothing. If the court would have told me in advance I’d win based on the first motion I never would have written the other two. But I think the others might have done the trick as well. Needless to say, my friend was one happy camper.

Man Charged with Felony DUI in Accident that Leaves Three Dead

Last week, a 20-year-old Fresno resident, Orlando Gomez-Benitez, had been accused of being under the influence of alcohol (DUI) after a fatal traffic accident killed three of the passengers in his car. The CHP claims that he drove through a stop sign and collided with another vehicle. Mr. Gomez-Benitez was listed in critical condition after the accident. Reportedly, the three passengers were ejected from the vehicle due to the fact that none of them were wearing seatbelts. Two of the occupants of the other vehicle also sustained minor injuries from the accident.

After the accident, Mr. Benitez-Gomez’s family commented that hospital documents released by Community Regional Medical Center (CRMC) showed that Mr. Benitez-Gomez was not under the influence of either drugs or alcohol. Sadly, the passengers in Orlando’s vehicle were his girlfriend, his younger brother, and his brother’s girlfriend. Days after the accident, the CHP released a report that Orlando was being arrested for felony DUI, however, the lab report from CRMC shows negative results from drugs and alcohol. The reason the CHP decided to make an arrest for felony DUI, according to their spokesperson, was due to the fact that Mr. Gomez-Benitez failed to stop at the stop sign and was combative at the scene, so he was placed under arrest to obtain a blood sample. The Fresno District Attorney’s Office has held off on filing charges till the blood test comes back from the Department of Justice.

Without commenting on whether the CRMC report is accurate or not, I will say that in my career as a Fresno DUI Lawyer, I have scene many innocent people arrested for driving under the influence, only to have the charges contradicted by a blood report that comes back with no drugs and .00% alcohol. Recently, I obtained an order in Federal Court sealing the record of my client’s arrest for DUI in Yosemite National Park due to this very same issue- his blood test came back with no alcohol in his system. It is really a shame that people are charged with DUI before the blood test even comes back to show whether they had alcohol in their system or not.

Regardless of the propriety of the arrest, people do not often realize that if they are illegitimately charged with DUI, they can seal the record of the arrest so that it does not appear in either a Federal or State background check. That is one reason why you should contact a serious Fresno DUI Attorney. Michael E. Mitchell is one of a select few top Fresno DUI Lawyers, give him a call to see how he can fight your DUI case.

I Guess the Sixth Amendment isn't Dead Yet

In a recent case that was just published, entitled, People v. DiSandro, the Fourth District Court of Appeal in California decided taht a person charged with an infraction has a right to a court trial and a right to confront and cross examine the witnesses against him or her. The court cannot unilaterally carry out a court trial in the person’s absence unless the absence is knowing and voluntary. In this case, the appellant- DiSandro happened to be a post office mail carrier who was cited for speeding and driving with a load obstructing her view. Interestingly, the U.S. Attorney’s Office sent an untimely letter to the superior court, notifying the court that the U.S. Attorney's Office intended to remove the matter to the U.S. District Court. No record of the U.S. Attorney's Offices' letter appeared in the court record and a court trial was held in the Appellant's absence. Appellant appealed the judgment, asserting that her Sixth Amendment right to confront the witnesses against her had been violated. The Court of Appeals found that under California law and the Federal Constitution, even in infraction cases where a person is not faced with imprisonment, a person does have the right to a court trial and the right to cross-examine witnesses. In addition, the Vehicle Code provides for the procedures to be followed if a person fails to appear. The Vehicle Code states that if a person failst to appear, trial may not proceed unless the court makes a finding that the person’s absence is knowing and voluntary. However, in the end the Court of Appeal did not reverse the judgment because the court found that Appellant's presence would not have altered the outcome, thus the error was harmless. So the end result, is yeah!!! the Consitution is alive, but in the end Appellant gets the short end of the stick anyway.

The reason this case is important is because it technically prohibits judges from conducting court trials and finding people guilty on speeding, reckless driving, suspended license cases, etc., that are charged as infractions. How this will effect future court procedure is anybody's guess, but a strong argument can now be made that the court can't just find somebody guilty and send their case into collections like they've been doing all over the state for quite some time.

The Squeaky Wheel Gets the Grease

On Friday I had two pending cases set for hearings in Fresno Superior Court. On both cases I filed motions to suppress the evidence obtained by officer's illegal searches. Previously there had been no offer on the cases. One case involved possession of illegal narcotics, drug paraphernalia, and an allegation that my client was under the influence of narcotics. On the second case, my client was charged with possession of drug paraphernalia only. Previously, there had been no offer on the case, other than having my client plead out in both cases and take the jail time or an extensive drug program. We had tried several times to resolve the case informally prior to running the motions. The day before the motions were set to be heard the DA gave me a call and told me that if we agreed not to run the motions, he would dismiss one of the cases completely and the other case would be dismissed in 6 months if my client went to some AA or NA meetings and kept his nose clean. Now, that is the exact reason why I tell clients that the "squeaky wheel gets the grease." Before I ran the motions I was told to jump off a cliff- I wasn't getting anything. After the motions- an awesome result!!

The Constitution Doesn't Provide for the Defendant to See the Discovery in his Case??

In a decision dated as of June 24, 2010, which applies to all Criminal and DUI related cases, the Court of Appeal for the Second Appellate District held that California's criminal discovery statutes do not require the government to give private defense counsel discoverable evidence for free. Appellant was represented by a private attorney. The lawyer was told there were several pages of phone records that he could copy at 15 cents per page, or which he could view at the District Attorney's Office. The private attorney filed a motion to contesting the discovery costs, which was denied. He then filed a writ of mandate, contending that the statutory requirment to provide discovery is negated if the prosecution requires payment for the records. Astonishingly, the Court of Appeal in their infinite desire to perpetuate justice, found that there is no state or federal constitutional right to discovery!!! Rather, due process only provides that the government must disclose exculpatory evidence (evidence helpful for the defendant). The Court of Appeal stated that the law provides that the the prosecutor "shall disclose" certain information, but does not set forth the method for disclosure. The reviewing court found the law is satisified if the government makes the information available for review and for copying. The Court of Appeal noted that even indigent defendants are required to reimburse some or all of the costs of their defense, if they can do so. Therefore, it does not offend due process to require non-indigent defendants to pay reasonable fees to obtain discovery. In addition, if a non-indigent defendant decides not to pay for the discovery, the prosecutor must make reasonable efforts for to allow reviewing discoverable material at his or her office in a method that protects the attorney-client privilege.

Officer Can Search Your Car Just Because He Wants to Make Sure its Safe

Once again we have another piece of poorly decided judicial activism out of the fourth district court of appeal. Last month, in People v. Shafrir, the court of appeal used the fourth amendment to provide a cloak for an illegal and trumped up vehicle inventory search after a poor sap was arrested for driving under the influence and a couple of CHP officers decided to impound his car for "safe keeping." How nice of them, huh?

In this case, appellant (the poor sap) was arrested for DUI, subsequently the two CHP officers who arrested him, decided to remove and store his luxury benz. The officers stated that the decision was initially based on the fact that appellant's car was a brand new Mercedes parked in a bad area. The officers performed an "inventory" search of the vehicle and during the search located and removed a marijuana and large amount of cash.

The Officers then changed their authority for impounding the car from the “safekeeping” provision of Vehicle Code section 22651, subdivision (h) to the “seizure of evidence” provision of Vehicle Code section 22655.5. The appellate court, using questionable reasoning, decided to uphold the actions of the officers.

The court found, that in applying the Fourth Amendment standard of reasonableness, the officers actions were reasonable given the fact that they had a valid reason, initially, for not leaving the Mercedes in an area that they characterized as a "high crime" area. Sounds like the officers can now feel free to provide "safe keeping" for any car they want to impound and then conveniently do an inventory search.

Once again, another bite taken out of the Fourth Amendment.

DMV WIN BASED ON BOTCHED DISTURBANCE CALL

Recently, I received notification from the DMV regarding the Driver Safety Officer's decision regarding the outcome of the dmv hearing for one of my clients. We were notified that the DMV was setting aside the suspension of my client's license, in other words we won!! The reason we won was based on the fact that the officer did not have reasonable suspicion to detain my client. This particular vehicle stop occurred in Merced, CA. The officer, from the California Highway Patrol (CHP), testified that he responded to a disturbance regarding suspects fighting at a house in a residential neighborhood. The officer said that he observed my client's vehicle on the street where the particular disturbance occured. He stated that my client's vehicle was stopping and starting and that my client's head was out the window. The officer stated that he detained my client because of his "strange" driving pattern. When asked whether he was conducting a stop to check on the "welfare of the driver" he said that he didn't know!! Based on this patently illegal traffic stop the DMV hearing officer had no choice but to give my client's license back

Contact Michael E. Mitchell today for a free consultation, (559) 222-2424.


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Actor in T.V.'s "Heroes" Arrested for DUI

Actor, Adrian Pasdar, television star of the hit show "Heroes" was arrested on Wednesday morning on suspicion of driving under the influence (DUI). According to reports, he was going more than 90 mph at approximately 3:00 a.m. on the 405 Freeway in Los Angeles. He was also, reportedly, weaving outside of the lane lines. He was arrested based upon the odor of alcohol and his performance on the field sobriety tests. He also, allegedly, refused to take a chemical test, in this case a breathalyzer. If he did refuse all chemical tests- he could face a one year suspension of his driver's license, with no restricted driving privilege, and he could face increased jail time.

Contact Michael E. Mitchell today for a free consultation, (559) 222-2424.

Fresno Attorney Michael Mitchell assigned to represent Woman Accused of Homicide and DUI involving Great Bodily Injury

The Fresno Bee recently ran an article regarding the Fresno County Public Defender refusing its first case last week due to the recent lay offs in its office. The article points out that the Public Defender, Ken Taniguchi, declined to represent Ms. Seneca Turner, a twenty-eight-year-old Fresno resident who is charged with homicide and DUI involving great bodily injury. In turn, the Fresno Superior Court asked me to accept appointment on the case and I accepted. Due to the complexity of the case and the lack of attorney's available to handle serious cases of this nature, the Public Defender was forced to turn it down. While the Public Defender's Office claims that the county will pay more in the long run by assigning cases out to private attorneys such as myself- that remains to be seen. The entire article can be viewed at the following link:

MONEY PAID TO VICTIM IN DUI/GREAT BODILY INJURY CASE

In a case decided March 4, 2008 by the Third District Court of Appeal entitled People v. Short, the court of appeal decided that money paid to the victim for restitution as a result of a DUI involving great bodily injury must be offset by any money paid to that victim as a result of a personal injury settlement. In this case, the Defendant, Short, was convicted of causing great bodily injury while driving under the influence. The crime occurred while Short was driving his employer's vehicle. The victim filed a personal injury civil action against Short and his employer. To settle that lawsuit, the employer's insurer paid the policy limits of two insurance policies totaling $3 million dollars, and the victim entered into a settlement with Short and his employer. The third district court of appeal found that any money that the criminal court ordered Short to pay for restitution to the victim as a result of the DUI with great bodily injury had to be reduced by the amount of thes ettlment. The terms of the insurance policy covered Short while he drove his employer's vehicle, and the insurance settlement listed Short as being released from any claims as a result of the accident. The insurance settlement was viewed by the Court of Appeal as coming directly from the defendant.

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New DUI Laws for 2010

We've got some surprising new laws on the horizon for the new year. As of July 1, 2010, a new DUI pilot program has been established for 4 counties- Los Angeles, Alameda, Sacramento and Tulare. This program requires that as a condition of obtaining a restricted driver's license following a conviction for driving under the influence, that the driver install an ignition interlock device (IID).

Also on July 1, 2010, we'll have a bit of sunlight in the dim arena of DUI laws. It appears that driver's convicted of second time DUI offense (within 10 years), will now be able be able to obtain a restricted driver's license after a 90 day suspension as long as they are enrolled in a DUI program (presumably the 18 month program) and they have an IID installed on their vehicle. This is a huge change from the flat one year hard suspension that was previously imposed, before a driver could get a restricted license on a second time DUI.

Lastly, driver's convicted of a third offense within 10 years will be able to get a restricted license, now after a 6 month hard suspension. Again this is a huge change, since the previous law imposed a 2 year hard suspension on a third offense before the driver could apply for a restricted license. So I guess this years theme is that the legislature taketh away and giveth at the same time.