Los Angeles Criminal Attorney Blog

Holiday Tips On The New Drunk Driving Law From Lawrence Wolf, Attorney at Law
by Lawrence M. Kohn

A judge Pro-Tem and successful criminal attorney, Lawrence Wolf – a principal in the Century City law office of Lawrence Wolf – is a recognized expert on drunk driving, juvenile justice and consumer fraud. He is a leading television and radio guest and also hosts his own television show called “The Law and You”, which can be seen weekly on West Hollywood’s Continental Cable, Saturday at 9:30 pm, and on Santa Monica’s Century Cable, Friday at 8:30 pm.

Kohn: Larry, the holiday season is upon us, and people will be attending office parties. Can they have a glass of wine two hours before they drive home or is that going to get them into trouble?

Wolf: The reality is that one glass of wine or beer for the averaged-sized person two hours before you’re stopped is legal. Once you have that second drink, however, you’re bordering on being convicted and potentially placing someone else’s life and your life in danger.

But there’s another reality that’s important: if the police officer smells any alcohol on your breath, he is not going to be impressed that it was only one glass of wine two hours ago.

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Attorneys have become the targets of police stings as the result of law enforcement’s crack down on insurance fraud.

Law enforcement is reacting to an outcry of employers and citizens who have been hit in the pocketbook by insurance fraud.

California law now broadly defines fraudulent activity, expanding an attorney’s vulnerability to prosecution. Since the law’s enactment, extensive funds to combat fraud have now become available. The result is that Los Angeles criminal defense attorneys are under siege.

“We’ve stepped up siege and fraud investigation considerably,” reports Denis Zine, Traffic Enforcement Supervisor with the Los Angeles Police Department. “Our investigations are starting to target teams of lawyers, doctors and front men who operate fraud mills. Unfortunately, there is no way for lawyers to spot signs of a sting operation.”

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When is A Juvenile Tried as an Adult?

If a minor is over 16 years old at the time of the commission of an offense, the Juvenile Court may have a hearing to decide if the minor should be prosecuted in juvenile court or adult court. In court, these five criteria determine if the juvenile will be found “unfit”:

1. The minor’s sophistication.
2. The period necessary for rehabilitation of the minor.
3. The previous delinquent history of the minor.
4. The prior attempted rehabilitative efforts made.
5. The seriousness of the criminal offense.

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Keep This On Hand for the Midnight Phone Call

If your client ends up in jail, you may get a frantic midnight phone call. If that person is a celebrity, the situation could be even more delicate.

Here is a helpful list to keep at your home and office to make sure that everything is covered:

- Urge your client to stay calm. Assure them that you or an experienced criminal defense attorney will help them.

- Advise them to maintain a polite, well-mannered demeanor with the police. It won’t help to antagonize anyone.

- Advise them to resist asking for special treatment.

- Get your clients location and booking number.

- Get the name and phone number of a family member.

- Advise your client not to make any statements before consulting further with you or with an attorney who is experienced in dealing with the matter at hand.

- Assure your client that if you are not the appropriate criminal defense attorney, you will contact someone who is.

- Advise your client of the name and number of a good bail bonds-man. (Feel free to call us for a reliable referral.)

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Tip Your Client: A Little Knowledge May Diffuse a Dangerous Situation

Advise Your Clients:

It is critical to contact an experienced criminal defense attorney immediately upon being contacted by any individual involved in law enforcement. Never wait to see what develops or hope that it just goes away.

Carrying a firearm within the interior of a vehicle is legal only if the firearm is unloaded and not concealed.

If stopped for “driving under the influence” in Los Angeles, you are not required to take any field sobriety test (touch the nose or walking a straight line). However, you are required to submit to a chemical test.

Not to make any statements to the authorities at the scene of an accident or arrest. You may not realize how your statements can be used against you. Situations such as these call for a lawyer who will deal with the police most cautiously.

Any involvement in a hit and run is an involvement in a crime. You should call an attorney for criminal advice immediately.

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The entertainment industry is a fertile field for fraud. Between the psychological attraction of fame and fortune and the undeniable opportunities for talented people to make large sums of money, which they may have difficulty keeping track of, Hollywood abounds with crimes of fraud. Unfortunately, much of it goes unreported.

Since avoiding these situations is often preferable to reporting them, here are some of the rackets, cheats and scams to warn your clients about and hopefully some ways to prevent them:

Embezzlement. Unfortunately, “creative types” tend to disengage themselves from the details of their financial affairs, placing equal amounts of trust and temptation at the feet of one person. That person is often called a “Business Manager.”

Robert Youngdahl, Los Angeles Deputy District Attorney for the Major Fraud in the Entertainment and Motion Picture Division, reports that fraud is more often brought to light during recessionary times.

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The situation often arises where an attorney has a client in a spousal or child support hearing who is called to testify as a witness regarding their ability to pay their wages in substantiation of support payments. Recent cases have shown that it is prudent to advise one’s client of his rights against compelled self-incrimination, as established by the Fifth Amendment and the ramifications of perjury because the family court has no legal obligation to issue such warnings during the proceedings.

Authority was established in People v. Berry, C.A. 4th No. D0114717 (91 Daily Journal D.A.R. 6604), where it was held that a family court does not need to inform a parent in family court of his Miranda rights before testifying.

In that case, the father, Michael Berry, was in a child support modification proceeding where his payment was reduced and set to be taken from his wages. At a later hearing, he testified under oath that the money was being taken from his pay although the County had no record of receiving it.

When testimony showed that those statements were false, he was subsequently tried and convicted for perjury. He appealed claiming that his appearance on an “Order to Show Cause” created a duty on the part of the court to advise him of his Fifth Amendment rights before he testified. He contended that since any testimony that showed noncompliance with the original order might subject him to contempt proceedings, the family court review hearing should be considered the equivalent of a criminal matter.

However, since there were no circumstances present that would have indicated to a judge that Berry was giving anything but truthful testimony, it was held that the court was under no duty to advise Berry of his Fifth Amendment rights.

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Since precedent has shown that traffic court will favor radar over an alleged violator’s testimony, it is no wonder that few people even attempt to contest a radar traffic ticket.

However, there is now a new strategy for fighting these tickets – a strategy that is guaranteed, especially in some Los Angeles courts. According to Vehicle Code Section 40802, a speed trap – which is illegal – is defined as “as any section of highway where a radar device is used when there is no engineering and traffic survey conducted within five years prior to the date of the alleged violation.”

In other words, in order for a radar device to be legally used, an engineering survey of the roadway must have been conducted within the last five years. If not, then the court cannot receive any testimony regarding the violation.

The last speed survey for some Los Angeles areas was done June 1, 1986, therefore, at the present time, no testimony can be taken regarding those tickets.

A Guaranteed Winner!

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Numerous factors need to be considered when weighing advantages and disadvantages of the juvenile court system versus the criminal court system.

If the juvenile is accused of a serious crime, it is more advantageous to remain in the juvenile court system where an attempt can be made to rehabilitate the minor versus solely punish him.

I accomplished this in a case where an early plea in a juvenile court murder case, prior to the filing of the anticipated fitness hearing, short-circuited the prosecutions attempt to have the minor tried as an adult and resulted in keeping the minor in the juvenile court.

However, depending upon the level of evidence that the prosecution may have against the minor, it may be more desirous to have a jury of twelve decide his fate rather than the judgment of a single juvenile court judge.

This could be especially applicable when considering the rules of evidence that apply in an adult court compared to a juvenile court. A critical example is that a minor may be convicted in a juvenile court by the uncorroborated testimony of an accomplice whereas in adult court a conviction cannot be had upon the testimony of an accomplice unless it has been corroborated by other evidence (In re Mitchell P. 1978 22 C3d 946).

Another strategic advantage to having a minor tried as an adult is in the ease of a less serious offense. Whereas the adult court would punish the offender with a small fine, the juvenile court could take custody, removing the minor from the home.

Another consideration arises when the minor has turned 18 at the time of adjudication. Under Rocker v. Superior Court (1977) 75 CA3d 197, it was held that the minor, who had turned 18, may instigate the fitness proceedings and waive the benefits of juvenile court, thus answering the charges as an adult in a criminal court.

In contrast, the court held In re Anna S. (1979) 99, CA3d 869 that a minor under the age of 18 but over 16 may not demand to be found unfit; therefore, they must be 18 prior to adjudication in order to demand that he be held as an adult.

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