The law against making a false claim of U.S. citizenship requires that the person claiming citizenship do so willfully. If one is delusional and allegedly cannot understand what he or she is doing and therefore cannot do so purposefully, is that a valid, affirmative defense – delusion? Obviously, such a defense could be invoked and it would then be up to a psychiatrist to opine if defendant was operating under a delusion at the time. To read how one appellate court ruled on this curious defense, click here.
Under Penal Code § 415(2), it is a crime to disturb the peace by using loud or offensive words in a public place. Is such language an illegal infringement upon one’s First Amendment Right to Speech? In other words, does one have a constitutional right to disturb the peace of another person by speaking in an offensive or loud manner? The issue came up to the appellate court for a ruling in a recent case. To read how the higher court ruled, click on the following link.
The following case, summarized at the link that follows, has been hailed as an overdue restraint on the power of police nationwide. Police have routinely characterized the natural dissipation of blood alcohol content due to a suspect metabolizing the alcohol as an emergency. Nothing could be further from the truth. It is predictable and not suprising at all. However, such an “emergency” has allowed police the power to avoid getting a warrant to perform a forced blood draw. The following case, Missouri v. McNeely, restores the Fourth Amendment back into the rights of drivers facing DUI.
When a person is deported from the United States, only to re-enter the U.S. and commit a crime, is it fair to sentence the person to more time for being in the United States illegally? The answer ought to be no. However, if the person commits a crime, is deported, returns to the U.S. and commits a further crime, does it make sense to sentence him more for the first crime if ICE finds him in prison for the second crime? This interesting question arose in the following case, which is summarized here.
When someone has a bench warrant for a violation of probation, it is necessary for defendant and/or his attorney to pay careful attention to the reason why. As the following case summary illuminates, someone can enter into a plea bargain, immediately be deported and then nine years later be reinstated on probation even though the probationary period was just three years. To read more about interesting case, and the veiled warning the opinion issued, click here.
Our office is often asked what defines a criminal street gang for purposes of someone being sentenced to a higher amount (Penal Code § 186.22)? How much is the enhancement? Does it vary by the type of crime? If the conduct is quite serious, does such a gang connotation affect when one is eligible for parole as well? How does the prosecution prove that someone is affiliated with a gang and acted for the benefit of a street gang? To read answers to these questions, click on the following link.
If probation is terminated and there is still restitution owed, what happens? In the following case, one can read that the obligation to pay restitution also ends. While this may seem unfair to a victim of a crime who is owed such payments, judges are keenly aware of this issue of terminating probation and ending such a duty to pay. Therefore, most judges allow such restitution to convert to a civil judgement to protect the victim. To read more, however, about how restitution owed can end when probation ends, click on the following link.