New Law Would Reduce Penalty for Simple Drug Possession

Posted on April 19, 2012 by Thomas Greenberg

The California State Senate is considering a bill introduced by State Senator Mark Leno that would reduce the penalty for simple drug possession from a possible felony to a misdemeanor only, and would eliminate the recent trend of lengthy prison sentences for minor drug possession.  The bill, SB1506, recently won support from a Senate legislative committee.

California Simple Drug Possession Laws

You might think, didn’t California already reduce the penalty for simple drug possession?  No. Possession of meth and ecstasy and many controlled substances is a “wobbler,” meaning the prosecutor can charge either a felony or a misdemeanor, depending on the facts of the case; possession of cocaine, heroin, and many other drugs is a felony.  In 2000, California voters passed Proposition 36, which allows people convicted of simple possession to get treatment for drug use instead of going to prison, but the initial money for the program has run out and the state has not funded it further.

If SB1506 becomes enacted into law, California would become the 14th state in the country to treat simple drug possession as a misdemeanor.  Simple drug possession means drugs for personal use and not intended to be sold.  Under federal law, simple drug possession is a misdemeanor.  The bill does not apply to anyone involved in selling, manufacturing, or possessing drugs for sale.

Senator Leno’s reasons for reducing the penalty for simple drug possession are that there is no evidence to show that long prison sentences deter or limit people from abusing drugs, and meanwhile, harsh penalties for simple drug possession causes prison and jail overcrowding.  He added, “Time behind bars and felony records often have horrible unintended consequences for people trying to overcome addiction because they are unlikely to receive drug treatment in prison and have few job prospects and educational opportunities when they leave. This legislation will help implement public safety realignment and protect our communities by reserving prison and jail space for more serious offenders.”

Senator Leno believes that the bill would help alleviate overcrowding in state prisons and county jails, ease pressure on California’s court system, and result in millions of dollars in annual savings for both state and local governments.  Indeed, the Legislative Analyst’s Office estimates that SB1506 would result in annual savings of nearly $160 million for counties and approximately $64 million for the state. It also would reduce the average daily state prison population by about 2,200 people and the average daily county jails population by 2,000 people.

For more information, see:  http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/04/17/MNDU1O4MFP.DTL#ixzz1sWG1MAFq

Posted in Drug Crimes | Leave a comment

Faulty Blood Alcohol Breath Tests

Posted on March 18, 2012 by Thomas Greenberg

San Francisco DUI InvestigationThe past two weeks have seen a lot of news about faulty breath tests and the effect on DUI convictions.  The San Francisco Public Defender Office discovered that the San Francisco Police Department had been falsifying the calibration records for the preliminary alcohol screening (PAS) device its officers use in the field.  The San Francisco Public Defender discovered that SFPD had been fabricating testing records for 20 in-the-field Alco-Sensor IV devices rather than actually conduct accuracy checks every 10 days or 150 tests, as recommended by the manufacturer.

The public defender noticed this fabrication after comparing police logs for calibration records dating back to 2010 and discovering that the logs for the various devices were identical to each other.  As a result, San Francisco may throw out as many as 1,000 DUI convictions.  Other counties that use the Alco-Sensor IV in the field (Santa Clara, Ventura, and others) may also have to re-examine their convictions.

Might this apply to you?  Only if your DUI conviction relied on the in-the-field PAS test alone, and not a breath or blood test that you took at the station.  The breath-analyzing devices and blood tests have not been called into question.

For more information, see this San Francisco Chronicle front page article http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/05/BAT51NGCFC.DTL and this March 12, 2012 front page follow-up piece: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/12/MN551NI15D.DTL

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CPA Licenses and the Duty to Report Convictions

Posted on February 14, 2012 by Thomas Greenberg

What Must You Disclose When Applying for Initial CPA License in California or When Reapplying After License Lapsed?

When applying for your initial CPA license in California, you must disclose any and all convictions—felonies, misdemeanors, and infractions—only minor traffic infractions may be excluded. Disclose your convictions on the required “Criminal Conviction Disclosure Form” that you submit with your application to the California Board of Accountancy (CBA).

  • You are required to disclose any pleas, verdicts, or findings by a trial court, even if the conviction may not be final or the sentence actually imposed, until appeals are exhausted.
  • DUIs are not considered minor traffic infractions (they are misdemeanors, or in some cases felonies), and must be disclosed.
  • You are required to disclose convictions that arose from military service, convictions in which the imposition or execution of sentence was suspended, convictions which arose as a result of a failure to appear, and any for which an order of rehabilitation was entered.
  • You are also required to report convictions that have been expunged or dismissed or for which a pardon was granted. Even though you are required to report expunged or dismissed convictions to the California Board of Accountancy, it is still advisable to get any and all convictions eligible for reduction or dismissal for reduction, reduced and dismissed. For more information about getting convictions expunged in San Mateo, Santa Clara, and San Francisco counties, see http://www.defendca.com/expungement-san-mateo.php

For any convictions other than minor traffic infractions, you will need to provide details including: the date of arrest, city and state where arrested, name and location of court where case was heard, details of the violation, details of the sentence imposed, conditions of probation, and fines ordered.

In addition to submitting the Criminal Conviction Disclosure Form, you will also have to furnish your fingerprints to the CBA. The CBA will conduct a criminal history record check with the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). In addition to authorizing a background check, submitting your fingerprints also authorizes the CBA to receive subsequent criminal conviction information on you as an applicant or licensee.

Do CPAs Have An Ongoing Duty to Report Arrests, Charges, or Convictions to the California Board of Accountancy?

When you furnish your fingerprints to the California Board of Accountancy (CBA), you not only authorize the board to conduct a criminal history record check, you also authorize the Board to receive subsequent criminal conviction information on you as an applicant or licensee. Criminal conviction information the board receives includes notice of any plea or verdict of guilty, and any conviction following a plea of nolo contendere (no contest).
Criminal convictions can trigger the CBA to take disciplinary action against you, including revocation or suspension of your license, conditions of probation such as ethics courses or fines, refusal to renew your license, or censure.

You must report to the board in writing, within30 days of the knowledge of a conviction for:

(A) Any felony.
(B) Any crime related to the qualifications, functions, or duties of a public accountant or certified public accountant, or to acts or activities in the course and scope of the practice of public accountancy.
(C) Any crime involving theft, embezzlement, misappropriation of funds or property, breach of a fiduciary responsibility, or the preparation, publication, or dissemination of false, fraudulent, or materially misleading financial statements, reports, or information.
Be aware that California courts are required to report to the board convictions and judgments listed above under (a) and (c), within ten days of entry.

The board is permitted to take action when the time for appeal has elapsed, the conviction is affirmed on appeal, or when an order granting probation is made—however, it is often in your interest to report initial pleas and sentence pronouncements.

The law says that the board can only take away your license based on a conviction that is substantially related to the qualifications, functions, or duties of an accountant. The board specifies that this includes crimes involving dishonesty, fraud, or breach of fiduciary duty, as well as violations of the California Accountancy Act. In addition, the CBA has tried to discipline CPAs for DUI and domestic violence convictions. You will want to argue to the board that the conviction in your case is not related to the job and does not implicate your fitness to perform your profession.

The Law Offices of Thomas Greenberg can help you get the best possible outcome in your criminal case. As our office handles criminal matters exclusively, we will consult with an experienced employment attorney regarding proceeding before any administrative board.

Posted in DUI, felony, misdemeanor | Leave a comment

Stopped for a DUI in California: What to do next

Posted on January 25, 2012 by Thomas Greenberg

Being stopped for DUI in California is a frightening and often a confusing experience.  If you drink and you own a car, you should  take precautions to avoid driving under the influence.  If you have been drinking, it can be difficult to tell whether you have sobered up enough to drive.

Keep these things in mind in case you are ever stopped for DUI:

  • Request your right to an attorney and do not answer questions.

    As soon as the police tell you that they suspect you of driving under the influence, tell the police that you want to cooperate and that you want to talk to an attorney before you answer any of their questions.  Provide the following four things:  license, registration, proof of insurance, and a blood test (unless you have any drugs in your system).

  • Do take the blood test—unless you have intoxicating narcotics in your system.

    When you get a California driving license you consent in advance to taking a blood or breath test if you are stopped on suspicion for driving under the influence.  If you request the blood test, in most cases it takes longer to submit to a blood test than a breath test because a blood test requires a licensed phlebotomist, who is usually not immediately available, whereas and evidentiary breath test can be administered by a police officer.  During this delay, which can take between a half an hour to an hour, your Blood Alcohol Level will drop.  For instance, a person who takes a breath test immediately after the arrest that shows a .10, had she requested a blood test may have gotten a reading of .07 due to the delay.

  • Call an attorney immediately.

    You need to contact an skilled DUI defense attorney immediately for three reasons:  (1) to be sure that you have one available for the court date, (2) so that the attorney can request the police report and conduct any necessary investigation, and (3) so that the attorney can represent you at the DMV hearing.

  • Avoid discussing your case with anyone other than your attorney.

    Anything you say to anyone other than an attorney can be used as an admission, and if the prosecutor finds out about what you have said to anyone (even a friend), those statements can be used against you in court.

  • Create an outline of what happened.

    As soon as you can, make notes about what happened:  what you drank and where, names of witnesses, the order of events, anything you ate and medications you were taking, any statements you made to the police officer, and anything unusual about the event.  Your notes can be helpful in refreshing your recollection when you meet with your defense attorney to discuss your case.

DUI defense attorney Thomas Greenberg has worked on thousands of DUI cases, is a member of the California DUI Attorneys Association, and is often consulted by other criminal attorneys regarding DUI cases and defenses.  Contact him at (650) 242-0021 to begin the defense process for your DUI.

Posted in DUI, Traffic | Leave a comment

Texting While Driving In California – Can I while stopped at a light?

Posted on January 11, 2012 by Thomas Greenberg

San Mateo Traffic Defense Attorney

Texting while driving in California is prohibits even while stopped at a light or stop sign, said a California Appeal Court this month.

The court heard a case appealed by Carl Nelson, who admitted to checking his email and pushing some buttons on his cell phone while stopped at a red light.  He was cited by a motorcycle cop who had pulled up in the lane next to him.  Nelson had been fined $103 by a traffic commissioner in Contra Costa County.  In his appeal, Nelson argued that California’s ban on talking on a cell phone while driving did not apply to this case because his car was not moving.

The First District Court of Appeal concluded that the law, Vehicle Code 23123, applies to stopped drivers the same as it applies to drivers in motion.  The court based its opinion in a technical argument that as long as the car was in gear, even if the vehicle’s movement was paused, the driver was still driving and therefore the law applied.  The court also cited the legislature’s intent in wanting to reduce driving distractions.

If you have been charged with a violation of the vehicle code, defense attorney Thomas Greenberg can help you.  Call for free a consultation at (650) 242-0021

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50% Off Old, Unpaid Traffic Tickets in California!

Posted on December 28, 2011 by Thomas Greenberg

From January 1-June 30, 2012, Santa Clara County is offering half-off unpaid traffic tickets if the fine is paid off in six months.  To qualify for this deep discount, the ticket must be considerably overdue and you must meet these conditions:

  1. You must have an outstanding traffic debt that was due to be paid in full before January 1, 2009;
  2. The date of last payment must have been on or before January 1, 2009;
  3. You must have failed to appear in court or failed to pay in full, there must have been no civil assessment fee added after Jan. 1, 2009; and
  4. You must not owe restitution to anyone in that county;
  5. You must not have any outstanding warrants.

For more information, see: http://www.courts.ca.gov/15831.htm

For the eligibility affidavit form for Santa Clara County, see:

http://www.scscourt.org/self_help/traffic/amnesty_program.shtml

http://www.scscourt.org/forms_and_filing/forms/AmnestyEligibilityAffidavit.pdf

Posted in misdemeanor, Traffic | Leave a comment

Warrantless Search for Marijuana—It Can’t Be Based on Smell Alone

Posted on December 24, 2011 by Thomas Greenberg

An unwarranted police search based only on the odor of drugs is not legal, according to a California appeal court.

The case involved the police opening a shipped package that smelled strongly of pot.  A FedEx employee smelled what she thought was marijuana emanating from a package that was to be shipped from California to Illinois.  She alerted the police, who seized the package and took it back to the station where they opened it and found pot.  The man who shipped the package, Kewhan Robey, returned to FedEx to ask why his package had not been shipped.  The FedEx employee called the police, who arrested Robey.  The seized package was later used as evidence against Robey.

Do they need a warrant to search for marijuana?

The Fourth Amendment protects you from unreasonable search and seizure.  This right is safeguarded by the warrant requirement—police need a warrant to conduct a search and seizure unless they have probable cause to believe that you committed a crime and what amounts to a strong reason to detain you immediately.  If the police see drugs, they have the right to conduct a warrantless search and to seize them.  According to the court of appeal, to smell drugs is not the same as to see them.

Defense attorney Thomas Greenberg has defended drug cases hundreds of times and is up to date about drug laws.  If you have been charged with a drug crime, defense attorney Thomas Greenberg can help you.  Call for free consultation (650) 242-0021

Posted in Drug Crimes, Warrants | Leave a comment

Realignment Laws in San Mateo

Posted on December 12, 2011 by Thomas Greenberg

New Sentencing in San Mateo County

Criminal sentences are changing throughout California since S.B. 109, commonly called “Realignment,” has begun to be implemented.  The goal of realignment is to stop sending low-level offenders to prison and to reduce the state prison population.  The plan is to sentence people to jail instead of prison and for county probation departments to supervise people paroled form state prison.

San Mateo County expects that it may have to accommodate up to 300 new inmates over the next year.  San Mateo County jails are overcrowded—125 percent of capacity—so San Mateo County is planning to expand its probation and build a bigger jail.  The county has been criticized for having a costly plan, for under-utilizing incarceration alternatives such as electronic monitoring systems, for being overzealous on detaining low-risk pretrial inmates.

What Realignment May Mean for You

Previously, if you were convicted of a felony where a sentence was imposed then you would serve that time in state prison, and if you were convicted of a misdemeanor then you could be facing time in county jail.  As of October 1, 2011, if you are convicted of a felony you might be able to serve your time in jail instead of prison, as long as you meet the qualifications.  Although some prefer serving time in prison to serving time in jail, if you stay in county jail you may be eligible for early release programs so that the full sentence imposed is not actually served.  There are many qualifications for these county jail felonies, and the rules to determine whether you qualify are quite complicated.  You should hire an experienced criminal defense attorney at the outset to make sure that if you are convicted you get the best sentence you can get.

Posted in felony | Leave a comment

Protect Your Computer and Phone from Illegal Police Searches

Posted on July 10, 2011 by Thomas Greenberg

EFF Releases ‘Know Your Digital Rights’ Guide to Your Constitutional Liberties

San Francisco – Your computer, your phone, and your other digital devices hold vast amounts of personal information about you and your family. Can police officers enter your home to search your laptop? Do you have to give law enforcement officials your encryption keys or passwords? If you are pulled over when driving, can the officer search your cell phone?

The Electronic Frontier Foundation (EFF) has answers to these questions in our new “Know Your Digital Rights” guide, including easy-to-understand tips on interacting with police officers and other law enforcement officials.

“With smart phones, tablet computers, and laptops, we carry around with us an unprecedented amount of sensitive personal information,” said EFF Staff Attorney Hanni Fakhoury. “That smart phone in your pocket right now could contain email from your doctor or your kid’s teacher, not to mention detailed contact information for all of your friends and family members. Your laptop probably holds even more data — your Internet browsing history, family photo albums, and maybe even things like an electronic copy of your taxes or your employment agreement. This is sensitive data that’s worth protecting from prying eyes.”

The Fourth Amendment to the Constitution protects you from unreasonable government searches and seizures, and this protection extends to your computer and portable devices. In EFF’s “Know Your Digital Rights” guide, we outline various common scenarios and explain when and how the police can search the data stored on your computer or portable electronic device — or seize it for further examination somewhere else — and give suggestions on what you can and can’t do to protect your privacy.

“In the heat of the moment, it can be hard to remember what your rights are and how to exercise them,” said EFF Senior Staff Attorney Marcia Hofmann. “Sometimes police can search your computer whether you like it or not, but sometimes they can’t. We wrote this guide to help you tell the difference and to empower you to assert your rights when the police come knocking.”

For the full “Know Your Digital Rights” guide:
https://www.eff.org/wp/know-your-rights

For a one-page summary to print and post:
https://www.eff.org/files/EFF_Police_Tips_2011.pdf

Posted in Warrants | Leave a comment

Group seeks initiative to reform Three Strikes Law

Posted on July 3, 2011 by Thomas Greenberg

By Tracey Kaplan
tkaplan@mercurynews.com

A coalition led by a group of Stanford University lawyers intends to put an initiative on the November 2012 ballot to reform California’s Three Strikes Law, the harshest such sentencing law in the nation.

The group has secured at least one major financial backer, David W. Mills, a former investment banker and Stanford Law School professor. It also hired San Francisco political consultant Averell “Ace” Smith to lead what is expected to be a fiery campaign.

In addition, the group, including Stanford Law School’s Three Strikes Project, is courting key Republicans such as Los Angeles County District Attorney Steve Cooley, at a time when fiscal conservatives have called for prison reform.

The Legislature and voters passed the Three Strikes Law in 1994 after several high-profile murders committed by ex-felons sparked public outrage, including the kidnapping and strangling of 12-year-old Polly Klaas from her home in Petaluma. Since then, the courts have sent more than 80,000 “second-strikers” and 7,500 “third-strikers” to state prison, according to the state Legislative Analyst’s Office. As of late 2004, 26 percent of the prison population was serving time under the law.

A previous reform measure in 2004 failed by about 3 percentage points after a last-minute media blitz by then-Oakland Mayor Jerry Brown, then-Gov. Arnold Schwarzenegger and former Gov. Pete Wilson.

The language of the new initiative is still being worked out, but at the very least it would limit felonies that trigger the “third” strike to violent or serious crimes. In late 2004, about 3,500 — or just less than half of the third-strikers in prison — had not committed a serious or violent crime.

Under the existing law, people have received life sentences for such crimes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom.

Proponents note that the provision allowing prosecutors to charge any felony as a third strike is the harshest of some 24 similar laws in the nation, and contend it is unjust and a waste of taxpayer dollars. Supporters argue the law has reduced crime and kept the streets safer.

Backers are hopeful the measure will pass this time. One reason is the U.S. Supreme Court recently ruled that California must drastically reduce its prison population to relieve severe overcrowding; in a majority opinion, the court blamed a series of political decisions in the state during the past 30 years, including “the passage of harsh mandatory minimum and three-strikes laws.”

California’s budget crisis also has thrown into sharp relief the need for the state to re-examine its priorities. The state currently spends 11 percent of its annual budget on prisons and 7.5 percent on higher education. Nonviolent third-strikers are expected to cost the state almost $200 million a year for the next 25 years, according to the state auditor.

The group is aggressively courting Cooley, a Republican who has long called for reforming Three Strikes, but opposed the 2004 initiative because he said it went too far. Cooley has said 25 years to life in prison is the same sentence he gives murderers, calling it “disproportionate” for relatively minor crimes.

Scaling back the law also has the support of some conservatives, including Right on Crime, a criminal justice reform movement whose signatories include Ed Meese, attorney general during the Reagan administration, and anti-tax advocate Grover Norquist.

“I don’t think someone should be sent to prison for life when the third strike is relatively minor,” said Marc Levin, one of the group’s policy advisers. “It’s better to have the sentence fit the crime. When you have these one-size-fits-all laws, it really inhibits you from prioritizing your prison space.”

The measure also could fare better next year than in 2004 because of the greater number of younger voters and minorities expected to turn out for President Barack Obama’s re-election bid.

Proponents plan to formally kick off the campaign and submit the ballot language to the secretary of state sometime between August and early October.

The first three-strikers will be eligible for parole in March 2019.

The few dozen or so who have been released won their freedom through the cooperation of Cooley and other prosecutors, as well as Stanford law professor Mike Romano and students at the university’s Three Strikes Project, a law school clinic.

LaDoris Cordell, a former Santa Clara County Superior Court judge who is now San Jose’s independent police auditor, also obtained the release of the female three-striker in 2009 who wrote the bad check at Nordstrom.

To qualify for the ballot, the initiative needs 504,760 signatures. Political consultant Bill Zimmerman, who submitted a proposal to steer the campaign, estimated that organizers need about $10-15 million to win.

Contact Tracey Kaplan at 408-278-3482.

Posted in Three Strikes Law | Leave a comment