Articles for October 2013

You have the right to remain silent, but do you have the Ability?

by Matthew Bromund

Principal Attorney
October 30th, 2013

Most people know that when you are arrested the police are required to give you the Miranda warnings before they ask you questions.  Its so much a part of our culture that the warnings on this card can likely be recited, from memory, by just about anyone over the age of 13:

miranda warningYou have these rights even before you are arrested.  You just don’t think about it.  In fact, most people don’t think about it even after police read these rights to them.  That’s because you have heard it so often the meaning has completely vanished and it is just a stream of words, like the Pledge of Allegiance, or the Lord’s Prayer.  (I know all of these mean a lot to many people, but when was the last time you really thought through these words and their meaning?)

In California, you are not required to perform tests (like Field Sobriety Tests), answer questions (like “have you been drinking?” “where are you coming from?” “do you know why I pulled you over?”), or do more than comply with the lawful commands of a sworn peace officer.  When you do so, you are helping the police convict you of a crime.

The police are NOT on a ‘quest for the truth’.  Once they have decided you committed a crime, they are on a hunt for evidence to convict you.  If you are guilty, they don’t need your help; facts speak for themselves.  If you are innocent, your words can make you appear guilty because the police are only listening for the words that support their decision that you committed a crime.  Other words you say will be discounted as self-serving, misquoted to support the theory of guilt, or completely ignored.  Intentionally or not, the police officer will be focused on those things that support a conclusion of guilt.

If you are driving, you ARE required to consent to have your blood drawn, if you want to have a chance to avoid having your license suspended.  This is done under the ‘Implied Consent’ law.   But the police don’t get to take you to have your blood drawn if they don’t have probable cause to arrest you for suspicion of DUI; most of the time it is your words and actions on field sobriety tests, and not your driving, that give the officer probable cause for that arrest.  Of course, implied consent only matters for your driving privilege, for a criminal conviction a different rule applies.

For the crime of DUI, and most other alleged crimes, the police cannot take evidence without your consent or a search warrant.  The new rule on DUI investigations is important, and it is one that the courts in California are going to need years to sort out.  For now, just understand that your rights to personal privacy include your blood, the contents of your home, and the information on your cell phone…if you don’t give the police your consent to access these private items.

In almost all criminal cases, the statements of the innocent defendant make the case for the prosecution.  If the innocent simply remembered to remain silent, to ignore the techniques and threats of law enforcement, and to rely upon their constitutional rights, their liberty would much more often be preserved.

 

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

 

This post is intended for general information only and is not intended to address your specific situation.  For more specific advice, you should contact a licensed competent professional in your jurisdiction.  This document in no way creates or implies an attorney-client relationship between any reader and the Bromund Law Group or Matthew Bromund.  If you require specific legal advice in California, please do not hesitate to contact the Bromund Law Group at 805.650.1100.

The ‘Harvey Waiver’ or ‘How You Can Be Responsible for Paying Restitution for Charges You WEREN’T Convicted Of”

by Matthew Bromund

Principal Attorney
October 15th, 2013

Sometimes clients of mine will be charged with several crimes, all in one complaint.  At the BLG, we always start from the presumption of innocence and spend our first phase of casework developing the reasonable doubt necessary to secure either a dismissal of the charges or an acquittal (Not Guilty verdict) at trial.  We never deviate from that posture, even in the face of serious charges or an offense that some may believe represents an indefensible offense (DUI, Red Light Camera Violation, even Parking citations have all been successfully defended by our firm).   Sometimes, however,  the evidence is compelling, and an effective defense doesn’t appear available on either legal or factual grounds.  In those circumstances, it is necessary to work on a guilty plea resolution.

Innocent_Guilty

When the complaint includes multiple offenses, the resolution often lies in having the client plead guilty to just one charge but entering a ‘Harvey Waiver’ to address the other charges.  A Harvey Waiver allows that restitution may be imposed on dismissed counts if the plea is freely made, the court approves all conditions, and the offender files a Harvey Waiver. (People v. Beck (1993) 17 Cal.App.4th 209, 215. See also, Penal Code section 1192.3.) Under a Harvey Waiver, the offender is required to pay restitution on all counts connected with the plea. Restitution orders are to be imposed based on the victim’s losses and benefits paid by the Victim Compensation Program.  You can read about their views on that process here.

Oftentimes, entering a Harvey Waiver can create the ability for us to fashion a guilty plea that preserves important post-conviction opportunities by satisfying the District Attorney that the victims of all the alleged crimes will be compensated while allowing our client to only accept one conviction on their record.  For example, for a non-citizen charged with a crime, a Harvey Waiver resolution can preserve admissibility under the immigration laws of the United States or keep a client from becoming deportable.  Additionally, being convicted of only one crime can sometimes keep a client eligible for probation, which will make expungement and other rehabilitive relief feasible down the road.

In all cases, taking the case from charge to full completion requires a legal mind that is both perceptive and wise since the first option may not always be the best option.  After all, the best batters don’t always swing at the first pitch!

This blog discusses matters of general legal knowledge and is not intended to in any way advise any person as to their specific legal situation.  If you, or anyone you know, is facing a legal case requiring consideration of these issues you should additionally consult a qualified professional, licensed in your jursidiction, to advise you properly.  In no way does reading this blog constitute the formation of an attorney-client relationship between yourself and the BLG.  Please feel free to contact the BLG if you have questions about this blog or any other legal issues in California.