Archives : 2005 : March

DUI – SB 1694: A Paper Tiger?

By: Vince Imhoff, Esq. & Mike Riddell

Meet John, a 25 year-old construction worker Southern California in late 1995. After work one Friday afternoon, John heads to a local bar to drink a few beers with his co-workers. Four beers later, John walks down the street to a restaurant to meet his wife for dinner. The two have a couple glasses of red wine before heading to a nearby theater for a movie. After the movie and on their way home, John is pulled over for going 5mph over the speed limit. The police officer detects a hint of odor of the wine John had over dinner a couple hours earlier. In the officers mind, this questionable detection is enough to establish a reasonable cause to suspect John of driving while under the influence of alcohol, so he orders John to take a breathalyzer test. John, whom had seven drinks in the last four hours, submits to the test because a refusal to submit would result in an automatic suspension of his license under current California law. The officer finds that Johns Blood-Alcohol Content (BAC) is .085 .005 over the legal limit – and John is convicted under California Vehicle Code 23152. As a result, John loses his license for six months, is fined a few hundred dollars, and spends two days in jail.

Almost a decade later, it is now early 2005 and John is the foreman of the construction company. Again it is a Friday and John joins his friends for a few drinks after work, as he does every week. He meets his wife for dinner before seeing a movie. The same thing happens: an officer suspects that John had been drinking, John is pulled over, and again fails the breathalyzer test by a mere fraction. Because of recently passed Senate Bill 1694, requiring that drunk driving convictions remain on criminal records for an additional three years, a total of ten years, John is found guilty of his second drunk driving offense. Because he is a repeat offender, his license will automatically be suspended for two years, he pays a few hundred dollar fine again, and would probably spend a couple months in jail.

Deterring People from Driving Drunk in California

If the goal of California is to deter people from driving while under the influence, then the new three-year addition serves merely as a paper tiger, something that appears powerful but is actually powerless and ineffective. A three-year addition is simply not powerful enough to deter anyone who has not already been deterred by the previous seven-year condition. Instead, California should make the immediate punishment namely, fines and jail-time more harsh.

Drunk Driving Conviction

California Vehicle Code 23152 mandates that it is a misdemeanor for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” When this behavior results in serious bodily harm, the offense becomes a felony under California Vehicle Code 23153.

Punishment under 23152 varies greatly depending on the circumstances. Generally, a first offense will result in a license suspension, minimal jail-time (up to six months, but generally much less), and a minimal fine (from $390 to $1,000). Because of the vast disparity in possible sentences, it is imperative for the driver to seek expert legal assistance immediately following the arrest. With expert legal help, there is a much better chance to get the minimum sentencing requirements.

Second DUI Conviction

A second conviction within the new ten year window carries a significantly higher degree of punishment. The second-time offenders license is automatically suspended for two years, and the jail time could be as long as one year. Again, with immediate legal assistance, the maximum sentences can be avoided.

Ideally, the goal of the California legislature is to get more aggressive in the prosecution of a crime responsible for 1,445 deaths in the state in 2003. Of the roughly 4,000 traffic fatalities in 2002, more than 40% were alcohol-related. Within the aforementioned Senate Bill 1694, the California legislature cites four main purposes behind replacing the former seven-year condition with a ten-year condition:

• DUI continues to be a significant threat to the public health and safety.
• Despite significant progress and declining rates of DUI in the last two decades, fatalities associated with this conduct have increased for the past several years.
• Two hundred thirty-six more people died from DUI conduct in 2001 than did in 1998.
• Nearly 180,000 people were arrested for DUI offenses in 2001, including 25 percent of whom were repeat offenders.

Despite citing these four reasons, the legislature does not address how the three-year addition will resolve any of these issues. Ultimately, the reason behind the passage of SB 1694 could be as simple as California legislators desire to tell their constituents that they passed heavy measures to curb drunk driving. And, while California should definitely do everything it can to prevent people from driving while under the influence, the new ten-year condition is not the best means to reach that end.

Harsher DUI Penalties Needed in California

If California is indeed serious about being more strict on prosecuting DUIs, it would make the immediate penalties more harsh. Instead of lengthening the time the crime is on ones record, California should increase the maximum fine or lengthen the license suspension period. Thinking logically, a potential drunk driver would be more fearful of a heavier fine or sentence than he would be of the possible implications ten years in the future.

John, the hypothetical construction worker, was not deterred sufficiently enough by his first conviction. Attempting to force would-be drunk drivers to look ten years into the future simply is not powerful enough to deter drunk driving. Instead of passing paper tiger bills that ultimately will not serve a great benefit on society, California should get serious in its deterrence of drunk driving.

Michael Jackson Case Judge Melville Gets it Right

THE LOS ANGELES DAILY JOURNAL

Last Thursday, fascinated trial watchers and legal media throughout the world focused their attention on the courthouse in Santa Maria, California. Jurors, reporters, observers, victim advocates, and a beleaguered band of die-hard fans expected to hear the first public testimony of the young man who accuses Michael Joe Jackson of Lewd Acts (California Penal Code Section 288(a)) and other crimes. Instead, a different drama unfoldedJackson did not arrive at court as ordered. Reports filtered out from the courtroom that a warrant had been issued for Jacksons arrest. The public learned that Jackson was at a local hospital with a back injury. The normally dapper and polished superstar-turned-defendant arrived, one hour and thirty-eight minutes late, bizarrely clad in pajamas and slippers.

Explaining the delay briefly to the jurors, Superior Court Judge Rodney Melville stated, Mr. Jackson had a medical problem and it was necessary for me to order his appearance. Jurors were further instructed to make no inference about the situation.

Judge Receives Criticism in Jackson Case

At days end, many pundits expressed disappointment that Judge Melville had rescinded the warrant, had not revoked Jacksons bail, and had not even rebuked Jackson or commented to him on his tardiness or inappropriate dress. Thursday evening and again Friday morning, news commentators criticized Melvilles weakness in failing to bring Jackson to task. Some harkened back to Jacksons previous one-day absence due to flu-like symptoms, and conjectured that Jackson uses illnesses as a convenient excuse to delay or upstage the court proceedings. Despite the disapproval of court watchers, Judge Melvilles choice not to belabor this issue was correct.

Among the most important duties of a trial judge is to avoid tipping the scales. The introductory jury instructions given by Californias judges at the start of every jury trial warn, Do not guess what I may think your verdict should be from anything I say or do. In trial courts, some judges go so far as to turn their chairs away from the jury during key moments of the trial, lest an ill-timed nod or eye-roll be interpreted as a signal of the benchs approval or approbation of testimony or argument.

Potential Effects of a Judge’s Comments

Remanding Jackson or even rebuking him privately risks an unintentional signal that a jury, no matter how well admonished, might interpret as a sign that the court disbelieves the defendant, which could pollute their deliberations with impermissible conjecture. Although in-custody defendants are permitted to dress in normal clothing during court proceedings, jurors inevitably become aware of the custody status. During a lengthy trial, a chance sighting of the defendant being led to a back hallway by bailiffs, the presence of extra security personnel, or the defendants absence from the hallway during breaks eventually tips off even the least savvy juror. Most attorneys believe that this has an effect on jurors willingness to consider the defendants innocence. A change in custody status during trial is even more prejudicial. A juror can only imagine that the accused has committed some new crime or other infraction. This alone exposes jurors to information outside the evidence presented at trial. It is difficult for jurors to ignore the prejudicial implications. Counsel and the court must then weigh the dangers of admonishing the jury and calling further attention to the issue, or remaining silent and risking improper speculation. Even if the court chooses to admonish the jury, deciding what to say is complicated. If the court gives no details, jurors may speculate that the accused has committed new crimes. Telling the jury that the defendant, in the courts opinion, faked a back injury essentially tells them that the court disbelieves Jackson.

Rather than accusing Jackson of grandstanding and hypochondria Judge Melville must consider what he would rather Mr. Jackson do? Should a person who might have the flu risk exposing everyone in the court to illness? In the height of flu season, in an unusually wet winter, in a year saw a shortage of flu vaccine, caution was probably the wiser choice. A flu-wracked defendant in a closed courtroom might spread the flu to jurors and court staff alike. Furthermore, a defendant must participate meaningfully with his or her lawyers during trial. A person who is ill, in pain, or medicated may be unable to pay attention during lengthy court sessions. Attorneys often need their clients attention and input. Jurors notice defendants who appear to be inattentive during proceedings, and tend to make negative inferences.

For Judge Melville to impose any penalty on Jackson, the court would need to make a finding that Jacksons medical excuse was invalid. Even a less drastic penalty, such as a caution or rebuke to Jackson requires the court to make a finding based on evidence that Jacksons injury was not genuine. Any penalty imposed on Jackson could also have a backlash, and create sympathy among those who consider the courts wrath unjustified. Without a hearing to determine the validity of the excuse, rebuking Jackson would create the appearance that the court has determined, without evidence or argument that Jackson was malingering. Such an appearance could create an appellate issue of judicial bias, and would be a violation of judicial ethics.

Judge’s Duties

A judge shall perform the duties of judicial office impartiallyA judge shall be faithful to the law regardless ofpublic clamor, or fear of criticism, reads part of Canon 3 of the California Code of Judicial Ethics. Canon 3 admonishes judges repeatedly to maintain impartiality in court proceedings; A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and othersA judge shall perform judicial duties without bias or prejudice.

Though many observers questioned the convenient timing of Jacksons back injury, and previous flu-like symptoms during jury selection, he indisputably was at the hospital when absent from court. An article about Thursdays incident on Jacksons own web-site, mjjsource.com, reminds his faithful that Mr. Jackson has suffered many back injuries over the course of his legendary career, including a sudden and dramatic fall from a four-storey bridge during a concert in Germany in 1999 In the absence of some proof that Jacksons back pain was a ruse, further comment or penalty from the court would risk the appearance of prejudice.

Even a private rebuke, outside the presence of the jury, would be unwise. Even the most carefully sequestered jury may hear of the rebuke and assume that the court has information, to which they are not privy, that the medical excuse was false. Even if the jury were to never find out, a warning form the bench without proof would change the atmosphere in the court to one in which it would appear to the trial participants that the court was no longer even-handed.

Preservation of the Courts Impartiality

Judge Melvilles decision not to make further issue of Jacksons back injury or unusual attire preserves the courts impartiality. A hearing into the validity of Jacksons injury would seem very unlikely to disprove that Jackson was in pain. Furthermore, the prosecution never disputed the claim. Holding such a hearing would consume the courts time and further delay the trial. To preserve its impartiality, the court might feel bound to hold a similar hearing every time any participant claims illness. That would surely create a waste of time and an unproductive atmosphere of suspicion.

News organizations, their readers, and viewers throughout the world are paying attention to this trial. Preserving fairness in this case serves not only Mr. Jackson and the accuser, but also the judicial system as a whole. The comment to Canon 1 of the California Code of Judicial Ethics amplifies this premise; Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judgesPublic confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violations of this Code diminish public confidence in the judiciary and thereby do injury to the system of government under law.

Judge Melville will no doubt be called upon to admonish many participants on both sides in this trial, as the court has already done, though mildly, to trial counsel on both sides. If Jacksons health issues cause further delays that fail to appear genuine, the court can visit the issue when that happens. Every ruling the court makes will no doubt require the court to make future rulings as circumstances unfold. Even a judge with the Wisdom of Solomon cannot predict the future. Public confidence in the fairness of Jacksons trial is just as important for future defendants and victims, and for the integrity of the legal system as it is for Jackson and his accuser. Jurors in future cases, who hear similar allegations in the wake of a high profile case, may inevitably skew their opinions based on their views of how the previous case was handled. Future defendants and future accusers deserve to have their causes decided on the strength of their own evidence, not on a perceived injustice in another courtroom.

DOMESTIC VIOLENCE – Male Victims

By: Vince Imhoff, Esq. & Sapana Shah

In recent years, male victims of domestic violence constitute an increasingly significant proportion of reported domestic violence cases. The crisis of men experiencing domestic violence is certainly not new; however, with more men coming forward and tougher police rules and mandatory arrest laws in place, a greater percentage of women, unexpectedly, are arrested for domestic violence. While the prevalence of such cases demands greater recourse for males in the legal system, the reality is quite the opposite: Not only have the crimes committed by females been dismissed by unjustified excuses of self-defense and trauma, men have continued to be accused of domestic violence at an extremely disproportionate and discriminatory rate compared to women, and male victims of domestic violence have been virtually ignored by the judicial system, media, and government sponsored advocacy programs. By focusing only on domestic violence against women, much of which has been reported to be false accusations, and ignoring the growing number of male victims, the likelihood of domestic violence, overall, has escalated.

Statistics of Males Victims of Domestic Violence

The National Violence Against Women Survey (Tjaden & Thoennes, 2000) reports that about 835,000 men are victims of violence by an intimate each year, which translates into a batter of a male every 37.8 seconds somewhere in the United States. The data further shows that assaulted men are more likely than assaulted women to experience serious assaults of being hit with an object, threatened with a knife, or being knifed. When considering relevant homicide data, studies show that women are more likely than men to initiate serious domestic violence, resulting in four out of ten male intimate homicides. The Bureau of Justice Statistics Special Report on Women Offenders, in fact, reports that Victims who are intimates accounted for an identical percentage of both male and female violent offenders.

Despite such alarming results that clearly impose the necessity for advocacy and outreach for male victims, government sponsored research and the media has focused almost exclusively on the risks women face from domestic violence. The Center for Policy Research, Centers for Disease Prevention and Control, and the National Institute of Justice, for instance, have avoided services and public awareness to male victims and failed to mention any violence by women against men.

Perhaps the greatest contributing factor to this problem is the advocacy based focus on serving women and protecting female victims, particularly under the federally funded Violence Against Women Act. Proponents of this view have endorsed the ‘Duluth Model’ ideology in which battery is equated with masculinity and male oppression of women– an unsubstantiated view that has become virtually codified in the Violence Against Women Act.

Men Dismissed as Victims of Domestic Violence

Advocates of the Violence Against Women Act have dismissed male victims as statistically insignificant and have attempted to revise the judicial system to benefit women. Furthermore, proponents of the Act claim that women arrested for battery are simply acting in self-defense and deny the documented evidence that women are often perpetrators of domestic violence. While the U.S. Supreme Court found the civil right remedies embedded in the Act unconstitutional, the ideology that encompasses biased gender myths continues to run equally strong. The unfortunate result of such misleading ideological myths is the lack of public education, advocacy or policy research to help male victims of domestic violence.

While advocacy and private and government funded research for female victims are undisputably necessary, equally imperative is the same for the 835,000 men assaulted each year. Contending that women do not have the capacity for aggression, especially in the face of contradicting studies, violates feminist principles that were designed to eradicate the unequal treatment of men and women. Furthermore, attempting to get female perpetrators “off the hook” and prosecuting men simply based on gender violates civil rights by the judiciary and the legislature: Disregarding the effects of domestic violence on men is inherently outlawed in the principles of Equal Protection and Due Process under the Fifth and Fourteenth Amendments of the United States Constitution as well as civil rights code, 42 U.S.C. 10606(b). Additionally, filing claims pursuant to unconstitutional domestic violence laws violates other constitutional provisions and case law: U.S. Constitution, Article VI Section 2, Harris v. McRae 448 U.S. 297, at 312 (1980), Miranda v. Arizona, 384 US 436 p.491, and Marbury v. Madison, 5 US (2 Cranch) 137, 174, 176, (1803). Each of these legal authorities finds that any legislation or ruling that impinges on or abrogates fundamental rights secured by the Constitution is considered null and void. A court found violating such principles can lose federal funding for misuse of federal funds and be liable for sanctions under the civil rights violations code, 42 U.S.C. 1983.

Criminal Defense and Domestic Violence Victims

In the legal arena of criminal defense, it becomes vital to eradicate the systematic and inexplicable infringements on fundamental rights and accusations of crimes based on gender. Such unconstitutional violations, compounded by the loose definitions of domestic violence that resonate in domestic violence laws such as the Violence Against Women Act result in the disproportionate rate of complaints made against males. Additionally, domestic violence laws that guarantee women the resources to aid in the prosecution of males, as well as mandatory arrest laws and police rules, have only facilitated false accusations that are often made by women. Furthermore, dismissing battery claims filed by male victims through unjustified excuses of self-defense, trauma, and stress serves only to sustain the feminist radical ideology, thus alienating and misrepresenting the growing number of male victims of domestic violence even further. In order to control the crisis of domestic violence, therefore, the judicial system must uphold the fundamental rights enshrined in the U.S. Constitution, eradicate prosecution practices based on destructive gender myths, and provide recourse for male victims of violence. If the legal system fails to do so, more perpetrators will go unpunished while innocent victims are abandoned without justice and restitution.