San Francisco & Bay Area Criminal Defense Lawyers

An arrest, even where there is no conviction, can have devastating effects on a person's life.  For non-citizens, it can result in random detentions at immigration outposts and obstacles to obtaining citizenship.  For those seeking employment, an arrest can be detected through background checks and can result in disqualification from certain jobs.  A Petition for Factual Innocence pursuant to California Penal Code section 851.8 can get one's arrest record sealed and destroyed.  The standard is very high, however, as the Petitioner must prove that he/she was factually innocent; in other words, that the arrest was improper and that the person is innocent. At Jayne Law Group, we handle these petitions on a regular basis. In fact, just today, Julia Jayne won a Petition for Factual Innocence involving a Domestic Violence arrest.  The client's life changed today - no more stops at immigration, employment opportunities, and a chance to put that awful part of his lif...

In United States v. Lopez-Cruz , the 9th Circuit held last week that a police officer may not answer a person's cell phone and impersonate that individual based on consent to look at a phone.  In the case, Lopez-Cruz was stopped by agents near the Mexico border and he had two cellphones in his center console.  Agents asked to look at the phones.  He consented to a search of the phones.  One of the cellphones rang, and the agent answered it and detected alien smuggling activity.  Lopez-Cruz moved to suppress the details of the conversation.  The 9th Circuit upheld the suppression decision by the district court, holding that the agents went too far in assuming the identity of Lopez-Cruz and having a conversation on his behalf.  Contrary to the government's argument, the Court held that his consent to search the phone did not include consent for the agents to answer his personal calls. The case is: U nited States v. Lopez-Cruz , 2013 WL 4838908 (9th Ci...

In People v. Burton, the Appellate Division of the Ventura County Superior Court, held that a defendant's misdemeanor arrest for DUI which was not committed in the officer's presence did not violate the Fourth Amendment. In the case, a witness observed Mr. Burton driving, and Mr. Burton admitted to driving, but the officer never saw him drive.  This issue arises in many DUI cases .  Mr. Burton challenged the stop in a motion to suppress. The court held that Vehicle Code section 40300.5 does allow officers to make warrantless arrests in suspected drunk drivers.   Thus, his motion to suppress was denied, which was upheld by the Appellate Division.  The court explained that the officer had probable cause to arrest Mr. Burton. The case is: People v Burton, (2013) __ Cal.App.4th Supp. __

The California Court of Appeals recently decided Coffey v. Shimoto , a case regarding rising blood alcohol after an arrest for DUI and the admissible evidence at a DMV administrative hearing regarding a license suspension.   In the case, Ms. Coffey was arrested for DUI. An hour later, she took a breathalizer test with a   test result of .08 percent BAC.   A few minutes later, her BAC test result was .09 %.   Twenty-five minutes later, she took a blood test, which resulted in a BAC of .095 percent. DMV suspended her license after a hearing at which the arresting officer testified that Ms. Coffey had driven “erratically,” appeared intoxicated, and had the usual script of bloodshot watery eyes, strong odor of alcohol, and poor performance on Field Sobriety Tests (FSTs). She challenged DMV’s decision with a writ of mandate and argued that uncontroverted expert testimony showed that her BAC had been rising (as evidenced by the three test results). ...

Opinion by: Justice Thomas The United States Supreme Court decided in Alleyne v. United States (June 2013) that any facts that would increase the mandatory minimum sentence of a crime must be submitted to the jury, overruling Harris v. United States (2002). In Alleyne , Petitioner was charged, among other offenses, with using or carrying a firearm in relation to a crime of violence, which carries a minimum sentence of 5 years imprisonment. On the verdict, the jury did not indicate a finding that the firearm was “brandished,” which carries a minimum sentence of 7 years. However, the presentence report recommended a 7-year sentence based on the court’s assertion that it had found evidence supporting a finding of brandishing. The District Court relied on Harris , which held that judicial fact finding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment because facts can be a “sentencing factor” rather than an “element of the crime.”...

The California Court of Appeal of the Fifth Circuit held in In re Cabrera recently that possession of photocopies of drawings signed by prison gang members or associates is not sufficient to establish association with those artists. Under the Due Process Clause, administrative findings underlying a gang validation resulting in placement in a security housing unit (SHU) must be supported by “some evidence.” This “some evidence” test requires the court to determine whether there is any evidence in the record that could support the conclusion reached by the prison officials. The California Supreme Court asserts that there must be a “rational nexus between the evidence presented and the finding of fact made,” meaning that a decision to place an inmate in a SHU cannot be based on merely a hunch or intuition. Furthermore, validation of an inmate as an associate of a prison gang requires at least one source item to be a direct link to a current or former member or associate. Althou...

The United States Supreme Court recently ruled that the natural dissipation of alcohol in blood alone does not constitute exigent circumstances per se to justify a warrantless blood draw in DUI cases where the suspect does not consent. Without a warrant or consent from the suspected drunk driver, a blood draw is a violation of the driver’s Fourth Amendment right to be secure from unreasonable searches and seizures. Prior to this decision, Missouri v. McNeely , police officers in California were generally not required to obtain a warrant in order to draw blood for measuring blood-alcohol content in drunk-driving cases. In this landmark case, Missouri v. McNeely , Tyler McNeely was pulled over on the grounds of suspicion of driving under the influence. After refusing twice to take a breathalyzer, he was taken to a hospital where the police ordered his blood drawn without his consent or a warrant. The officer had not made an attempt to obtain a warrant because he thought that Miss...