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The opioid addiction and overdose crisis is old news, but is this country on the cusp of a new prescription drug epidemic? Some experts fear that a class of drugs, benzodiazepines, is the next drug epidemic. Benzodiazepines, commonly referred to as “Benzos”, are effective at treating acute anxiety and panic disorders when therapy and other drugs don’t help. But benzos are powerful drugs and they can be highly addictive. Despite their dangers, benzos are so effective at treating anxiety that prescription rates for these drugs have skyrocketed. The huge increase in the number of prescriptions written for benzos in the past few years suggest that, like opioids, these prescriptions are too freely dispensed.

Many healthcare professionals are concerned and believe more attention needs to be paid to this potential looming crisis. The benzodiazepine prescription trajectory mimics the large increase in opioid prescriptions that ended in a crisis this country still suffers from today. And like opioids, a person can suffer a fatal overdose on benzos.

As with opioids, the legal prescription market has made its way into the recreational drug market. The use of benzodiazepines as a recreational drug among teens and young adults is increasing. Among this age group benzo addiction has taken over the rates of addiction to opioids. While young people may think it is okay to take the drug because it is a prescription drug – even if the prescription is not for them – the truth is, it is dangerous, addictive, and illegal.  Many abusers are also using benzodiazepines in combination with opioids, a dangerous concoction.

SIXTEEN YEARS AGO HE STOOD BEFORE THE JUDGE AS A CONVICTED DRUG DEALER, NOW HE STANDS BEFORE THE SAME JUDGE TO BE SWORN IN AS AN ATTORNEY.

Being a criminal defense attorney in Orange County can be tough and demanding work. I know that every one of my clients is a unique individual and I can only be their advocate when I understand how they landed on the other side of my desk. A proper defense requires that I learn about my client’s personal story, which often includes getting to know my clients’ families too.  While I celebrate the victories with my clients, sometimes the outcome is less than what we hoped for. Even though this is part of the business, I am still disappointed and feel the pain along with the client whom I have gotten to know as an individual, someone who is more than an accused criminal in front of the judge’s bench. That is why the following story is so instructive and affirming of my attitude as a criminal defense attorney.

Sixteen years ago 27-year-old Ed Martell stood before Judge Bruce Morrow in his Michigan courtroom and pleaded guilty to selling and manufacturing crack cocaine. The defendant faced a maximum 20-year prison sentence. Having grown up in challenging circumstances — the son of a single mother living in low-income housing and relying on government assistance – Mr. Martell entered the world of drug dealing at a young age. By 13 years old, he received his first felony conviction, followed by another two years later. He dropped out of high school to continue his drug trafficking career. Mr. Martell estimated that he had stood before at least 20 judges before his encounter with Judge Morrow.

A criminal trial is all about the evidence. It is the backbone of the prosecution’s case. Evidence of a crime is most often circumstantial. It is unusual for the police and prosecutors to have direct evidence of the crime, especially in those cases that go to trial.

Direct evidence is evidence that is based on facts known to be true to the victim or police. For example, if the police or another witness personally observe the crime in progress or the victim personally knew the person who committed the crime against him or her, that would be direct evidence. If the witness testimony is credible, prosecutors can often secure a conviction based solely on direct evidence although more often there is some circumstantial evidence that supports the direct evidence. Sometimes though, even direct evidence doesn’t stand up. For example, say a defendant is accused of assault by another person. A good criminal defense attorney will do a due diligence investigation to make sure the accuser is telling the truth. Perhaps in that investigation, the attorney learns that the accuser held a grudge against the defendant and there is reasonable suspicion that the allegation of assault was fabricated in order to harm the defendant. Even direct evidence must be reliable and offer facts that prove beyond a reasonable doubt that the crime was committed.

Circumstantial evidence is indirect evidence but evidence that can be used to infer the commission of a crime. While not as reliable as direct evidence, circumstantial evidence is conferred the same weight as direct evidence in a court of law. However, because circumstantial evidence is usually weaker than direct evidence, a skilled criminal defense attorney may be able to poke holes in the evidence. For example, if Joe Schmo testifies that he saw someone run from the scene of a robbery who matched the defendant’s description, a good defense attorney will question the reliability of Mr. Schmo’s testimony. Perhaps it turns out that Mr. Schmo’s observation occurred in the dark of night in an area without streetlights. Or maybe Mr. Schmo has poor vision and was not wearing his glasses. Circumstantial evidence must be carefully scrutinized for reliability and reasonability.

It has been almost a year now since restaurants in California have been forced to close all or part of their dining facilities. For many small restauranteurs, the take-out business has kept them afloat…. but barely. Most Californians are sympathetic to the plight of the small restauranteur and many of us make a special effort to give our business to these small operators. But some have found a way to take advantage of the situation. I’m calling it the “Covid dine and dash.”

The Los Angeles Times recently featured several small restaurants that have been victims of a take-out scam. The scams are so pervasive that one well-known Korean restaurant has been forced out of business. The scams take various forms, but they all involve calling in a to-go order and charging the order over the phone on a credit card. Sometimes the credit card is fraudulent, but it appears that the more frequent scam is that someone will call in a large order and after it is picked up or delivered, the customer will call in to their credit card company to dispute the charge.

The customer will claim they never got the order, the order received was incomplete or incorrect, or claim someone other than the cardholder placed the order. The credit card companies will side with the consumer and place a hold on the charge. It is then up to the restauranteur to prove the charge was legit. This can be difficult for the restauranteur to prove. Restauranteurs who have been victimized over and over by some variation of this scam have now had to take extra measures such as photographing every order, requiring customers to pay in person and show their identification, and other safeguards.

You may not know that your vehicle records and stores a large assortment of time stamped data that can range from the opening and closing of the vehicle’s doors, the speed at which the vehicle was driving at any given date and time, voice commands stored in the onboard bluetooth or hands-free systems, and a lot more. Unless you are driving a clunker, chances are good your vehicle has this “black box” embedded inside.  Manufacturers started installing these vehicle blackboxes in the mid-1990 and the technology is now quite advanced.  If you have ever been in a newer model Tesla, you have seen the future of this technology. Everything that controls the Tesla is done through your smart phone, from opening doors, to starting up the car and the control panel that drives and navigates the car.  This technology has become so sophisticated that the police are able to solve crimes using the digital evidence stored in by our cars.

The technology has helped the police solve many crimes, including murder. For example, in Michigan, the police were able to solve a two-year old murder after the victim’s stolen vehicle was found. Time-stamped recordings of voice commands around the time the victim went missing were recovered from the 2016 Chevy truck. That led police to identify the voice, which was not the victim’s, and eventually led to the arrest of the murderer.

In another case here in California, a man was driving his Tesla when he ran straight into a car that was pulling out of a driveway. The driver who pulled out of the driveway died from the impact. The Tesla driver told the police he was driving 55 mph; the speed limit was 45 mph. While the other car may have been violating the vehicle code by pulling out under unsafe conditions, the Tesla driver was still on the hook because he was speeding. He was facing a possible misdemeanor manslaughter charge. But then the police got a search warrant to pull the data from the Tesla. They were able to establish that the Tesla driver wasn’t going 55 mph, but 78 mph!  Now the Tesla driver is facing a felony manslaughter charge, a very serious charge.

The California Legislature had a busy year in 2020 as it concerns criminal laws. Several significant changes in criminal law will go into effect at the beginning of 2021. I will discuss some of those changes in future blogs but for this post, I want to focus on AB-3234.

AB-3234 was signed into law and is codified in the Penal Code at section 1001.95. Effective January 1, 2021, it portends sweeping changes in the way misdemeanors are prosecuted in this state…or maybe a better way of stating it is “not prosecuted.” For all but a few misdemeanor crimes, this new law takes the prosecution of misdemeanors out of the prosecutor’s domain and allows the court to order a diversion, rather than prosecute the crime. For almost all misdemeanor crimes, the defendant can request the court order a diversion, which if granted, allows the defendant to avoid any prosecution at all. In fact, if the defendant successfully completes the terms and conditions of the diversion, the crime is as if it never happened because the arrest for the crime will be deemed to have never occurred.

The misdemeanor crimes that will not qualify for diversion are few. They are Penal Code section 290 crimes (crimes that require registration as a sex offender), sexual assault (Penal Code section 273.5), domestic violence (Penal Code section 243(e)), and stalking (Penal Code section 646.9). This is a rather odd list when you consider that other misdemeanors such as elder and child abuse, DUI, misdemeanor assault (other than domestic violence), just to name a few, are not on the list of excluded misdemeanors. (There is a push to amend the law to include DUI as one of the excluded offenses, but for now, it is eligible for diversion under the new law.)

The California Department of Justice makes crime statistics available to the public that can be an interesting read for a legal nerd such as myself. Even if you aren’t a legal nerd, I think you might find the data noteworthy. In the “Crimes & Clearances” statistics, we can see the raw numbers of various crimes committed by state and by each individual county and even breakdowns by city and precinct.

Taking a look at Orange County only for the years 2010 through 2019, one crime stands out: rape.  While virtually every other category of crime, from homicide to robbery, to arson and other crimes went down or remained steady over the ten year period, rape has shown steady and notable increases (from the high 300’s to the low 400’s reported rape crimes in 2010-2013, suddenly jumping to 650 in 2014 and since then registering in the high 700’s to the low 900’s). This could reflect an increase in reported rapes, or it could reflect a real increase in rape.  The same pattern held true for the entire state.

While this news is distressing, most other crimes have held steady or declined slightly. On the other side of the rape statistics is arson. Arson crimes decreased substantially between 2010-2019. Like rape, there could be alternative explanations. For example, more robust wildfire seasons where fires are often started by individuals who are later charged with arson could account for the differences.

When police officers encounter an individual, whether as a result of a traffic stop, arrest for suspicion of a crime, even just a detention based on a suspicion, or other encounters, the officer may complete what is called a  field interview card on the individual. These cards are most often used by the officer when the individual is suspected of being a member of, or affiliated with, a criminal street gang.  If the police officer suspects gang affiliation or membership, the individual’s name, demographics, visible tattoos, suspected gang insignia or clothing, and so on is entered on the  field interview card, which eventually ends up in the statewide CalGang database.

There have been many documented abuses of this practice. Among the most egregious abuse of this practice is the entry of false information about the individual that results in the individual being added to the CalGang database. Having your name on this database is not inconsequential. When an individual’s name is entered into this database, that person’s name shows up at every subsequent law enforcement encounter as a suspected gang member. This can have consequences even on a minor traffic stop. Individuals on this database are more likely to be a suspected by the officer and are often suspected in criminal investigations.

Recently at least 24 Los Angeles Police Department officers have been identified by LAPD for suspicion of falsifying information on field interview cards. Six of those officers now face criminal charges, the others have been assigned to desk duty or put on leave. They may yet be charged. These officers allegedly filled out field information cards identifying individuals as admitting gang membership when in fact those individuals made no such admission, and some outright denied it. The falsifications were discovered when the police bodycams were viewed relative to these particular contacts and field identification cards. An officer’s false report about an individual is a violation of that person’s due process rights and as I previously blogged about, it can haunt a person for years as a suspected gang member, when in fact there was no evidence to support the suspicion.

As an Orange County criminal defense attorney, I often get calls from individuals who were previously convicted of an offense that resulted in a ban on that caller’s right to own or possess a firearm. The gun laws in this state are confusing. No wonder a person convicted of a crime in California may be completely confused about his or her 2nd Amendment rights post-conviction. Under California law, all felony convictions and many misdemeanor convictions not only punish the offense but bar the defendant from owning or even possessing (for example, borrowing a gun from a friend) any firearm. That means even hunting is off the table. In the case of a felony conviction, this prohibition is for life! For most affected misdemeanor convictions, the prohibition is for ten years.

MISDEMEANOR CONVICTION

Not all misdemeanor convictions carry the firearms ban. However, many do. This includes all misdemeanor domestic violenceconvictions and restraining/protective order violations. Also included are wobbler crimes that even when convicted as a misdemeanor, the defendant loses his or her gun rights. A “wobbler” is an offense that can be prosecuted either as a misdemeanor or a felony. Wobbler offenses that will result in a firearms ban, even if convicted as a misdemeanor, include assault, threatening a public officer or official, most criminal threats, stalking, battery, and all misdemeanors that involved a gun, such as negligently discharging a firearm or brandishing a weapon.