50% Off Old, Unpaid Traffic Tickets in California!

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:



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

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

Realignment Laws in San Mateo

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.

Protect Your Computer and Phone from Illegal Police Searches

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:

For a one-page summary to print and post:

Group seeks initiative to reform Three Strikes Law

By Tracey Kaplan

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.

How to Calculate Your Blood Alcohol Level & Avoid a DUI

DUI in San MateoBlood alcohol content depends on the amount of alcohol consumed and the rate at which your body metabolizes alcohol. Alcohol is metabolized at a constant rate. No matter what you do—the idea that eating or drinking water after you’ve been drinking sobers you up is a myth, although eating or drinking water before or while you drink can affect your blood alcohol concentration. Factors affecting blood alcohol concentration include the alcohol content in the drinks consumed, body weight and type, rate of consumption, time elapsed since consumption, gender, food, medication, fatigue, overall health, and tolerance. The biggest factor, of course, is how much alcohol you consume. So, what’s in a drink?

Generally, one standard drink is 0.5 oz. of alcohol, but serving sizes rarely equal exactly one “standard drink.” For example:

Type of drink Ounces of alcohol Number of “standard” drinks
One bottle of beer .54 oz One standard drink (However, alcohol content makes a difference: generally, lagers have the lowest alcohol content, followed by ales, porters, and then stout, which has almost twice the alcohol content of lagers.)
One pint of beer
(4.5% alcohol content)
.72 oz. Almost one and a half “standard drinks”
One 5 oz. glass of wine 0.55 oz One
One mixed drink
(great variation, of course)
Whiskey sour: 0.60 oz
Manhattan: 1.15 oz
About one
More than two
A shot 0.5-0.625 oz. About one
Malt liquor (12 oz.) 0.71 oz. Almost one and a half “standard drinks”

Blood alcohol content is basically a function of the total amount of alcohol in your body divided by total body water. In general, the less you weigh the more you will be affected by a given amount of alcohol. People with a higher percentage of body fat and thus a lower percentage of body water will tend to achieve a higher blood alcohol content based on the same consumption of alcohol. This is why women and older people tend to be more affected by the same amount of alcohol than men and younger people who consume a similar amount of alcohol on the same balance of food and other factors.

A good rule of thumb is that your body will metabolize (e.g., eliminate) one drink per hour. If you drink three drinks within an hour, you will reach a higher BAC than if you spread them out over three hours, but either way it will take your body about three hours to metabolize those three drinks.

For DUI purposes, the question is when do you reach .08% BAC? The factors discussed here can make a considerable difference, however, generally the following is true:



Weighing 130-170 lbs. 3 standard drinks* Weighing less than 120 lbs. Less than 2 standard drinks*
Weighing 180-230 lbs. 4 standard drinks* 120-180 lbs. 2-3 standard drinks*
Weighing over 230 lbs. 5 standard drinks* 180-240 lbs. 3-4 standard drinks*

* See above: one standard drink is 1.25 oz. of 80 proof liquor, 12 oz. of beer, or 5 oz. of table wine—a mixed drink may be the equivalent of two drinks.

Metabolism & Tolerance
Two mistakes people tend to make that lead to DUIs are:
(1) believing that they have waited long enough since drinking to have sobered up, or
(2) believing that they have a high tolerance and therefore their driving is not impaired.

You can wait out the effects of alcohol, but sobering up may not occur as quickly as you think—or as quickly as time seems to pass after you have had a few drinks. Healthy people tend to eliminate alcohol in the body at a fairly constant rate of one average drink or 0.5 oz. (15 ml) of alcohol per hour. The rate at which the body metabolizes tends to diminish with age. Depending on liver health, people who drink regularly or drink large amounts of alcohol may metabolize the alcohol more quickly because their livers have more of the enzymes that break down alcohol.

Eating food along with drinking alcohol decreases and delays the blood alcohol concentration peak. If you have been fasting, your blood alcohol concentration will peak within 30 min. to two hours, whereas is you have been eating, your blood alcohol concentration will peak later and last longer.

Other factors:
Medications frequently affect blood alcohol concentration because they are metabolized in the liver by the same enzyme pathways that metabolize alcohol. In other words, the enzymes that would normally metabolize alcohol are otherwise occupied metabolizing medications, therefore, the alcohol stays in your system longer and the result is that you have a higher blood alcohol concentration. This is true even for over the counter medications, including acetaminophen (Tylenol). And if you take Tylenol after drinking, such as to sleep or lessen the affects of a hangover, since your liver enzymes are prioritizing breaking down alcohol, the Tylenol remains in your liver not getting metabolized and causing damage to your liver.

Fatigue generally does not directly affect blood alcohol concentration—unless they affect the amount of water in your body, such cause as dehydration—but it may increase the effects of alcohol and thus contribute to a DUI citation Even though your blood alcohol concentration is not actually higher, you may be more prone to driving erratically and being cited with a DUI than if you had not been fatigued.

How Much Can Your Employer Pry Into Your Criminal Record?

criminal record and employmentWhat do you say if you are applying for a job and the application asks about old convictions, and you have a ten year-old conviction for DUI? Or if you were arrested but never charged? Or you got your conviction dismissed? Or if you participated in a pretrial or posttrial diversion program? Or if it was just a conviction for a small amount of marijuana?

Not telling the truth can have serious consequences down the road. If the employer does a criminal background check and discovers an unreported charge, in some cases they have grounds to terminate employment. Employers, however, are prohibited from digging into certain areas of employees’ and applicants’ criminal records. There are different rules for private and public employers. And for certain jobs, such as law enforcement, jobs involving unsupervised contact with minors or the elderly, or patients or medications, employers may look further. Below is a breakdown of the law. If you have further questions, an experienced employment or  defense attorney can help.

PRIVATE EMPLOYERS (private companies—not government entities)

May not ask you—verbally or in writing—about: May ask about:
Misdemeanor convictions that have been dismissed pursuant to Penal Code section 1203.4.  Exception:  if you will be having unsupervised contact with minors, working with patients or medications in a health care or assisted living facility, or applying for licensure to any state or local agency—but if you have gotten the conviction dismissed, you may state that the conviction was dismissed.
Arrests or detentions that did not result in conviction (plea, verdict, or a judge or jury’s finding of guilt where no sentence was imposed).*
Successful completion of a pretrial or posttrial diversion program (community service, graffiti removal, mentor programs, substance about counseling, domestic violence counseling, etc.).
Convictions for small amounts of marijuana or related paraphernalia that are over two years old.
Exception: health facilities may ask about arrests, diversion programs, and older marijuana and marijuana related convictions if the employee or applicant seeks to hold a position working with patients or drugs and medications.  Law enforcement agencies also have an exception, although those agencies are usually public, not private, employers.
Arrests for which the employee or applicant is currently out on bail or currently out on his or her own recognizance pending trial.
Convictions that have not been dismissed (including by plea, verdict, or a finding of guilt where no sentence was imposed).**


*If you were arrested but charges were never filed, you may want to file a petition with the court to get your arrest reduced to a detention. An experienced attorney can assist you with this procedure.

**If you have a conviction for which you have successfully completed probation, you may be able to get the conviction dismissed with the assistance of an attorney (Expungements).

PUBLIC EMPLOYERS (Including: jobs in government entities or requiring a government-issued license, certificate or permit, work requiring a government security clearance, work in hospitals or with children or the elderly, and government contracts.)

May not ask you—verbally or in writing—about: May ask about:
Arrests or detentions that did not result in conviction (plea, verdict, or a judge or jury’s finding of guilt where no sentence was imposed).*
Successful completion of a pretrial or posttrial diversion program (community service, graffiti removal, mentor programs, substance about counseling, domestic violence counseling, etc.).
Convictions for small amounts of marijuana or related paraphernalia that are over two years old.
Exception:  law enforcement and health facilities may ask about the above if the employee or applicant seeks to hold a position as a peace officer, with the Department of Justice, or working with patients or drugs and medications.
Convictions that have been dismissed.  If you got the conviction dismissed pursuant to California Penal Code Section 1203.4, then answer “Yes, dismissed pursuant to Penal Code section 1203.4.”
Arrests for which the employee or applicant is out on bail or out on his or her own recognizance pending trial.
Convictions that have not been dismissed (including by plea, verdict, or a finding of guilt where no sentence was imposed).

*Frequently, licensing boards and other governmental entities ask applicants about arrests but not detentions. If you have on your record an arrest that did not result in conviction, you may want to petition the court for a certificate of detention only (a remedy available under California Penal Code Section 849.5). An experienced attorney can help you with this procedure.  Contact attorney Thomas Greenberg for a free lawyer consultation to learn more.

Fair Sentencing for Youth?

Imagine spending your entire life in prison for an action you committed when you were a youth. In California, juvenile defendants can be sentenced to life without possibility of parole (LWOP). Some call it “the other death penalty,” for these defendants will die in prison without ever having the chance to live in society as an adult. California Senate Bill 9 (SB 9) would change this.

A judge would have discretion to resentence the defendant to a sentence with a minimum number of years and the possibility of parole (such as, “twenty five years to life”). The defendant would then, after serving that sentence, have the opportunity to go before the parole board and prove that he or she merits parole.

The Present Law is Unfair
Sentencing youth to life in prison without possibility of parole is unfair and is a flawed social policy for several reasons:

1. LWOP for crimes committed by juveniles discourages rehabilitation by preventing even the opportunity to review the sentences of a person sentenced to life in prison as a child.

2. These defendants, who have no opportunity for release, are often left without access to programs and rehabilitative services while in prison.

3. California has the worst record in the nation for racial disparity in the imposition of life without parole for juveniles. African American youth are sentenced to life without parole at over 18 times the rate of white youth. Hispanic youth are sentenced to life without parole five times more often than white youth.

4. Imposing sentences of life without the possibility of parole provide little or no real deterrent effect on juvenile crime—California’s arrest rate for violent crimes by youth is higher than many other states, including states that do not sentence children to life without parole.

5. Human Rights Watch estimates that 45 percent of youth offenders serving life without parole in California were convicted of murder but were not the ones to actually commit the murder.

6. Juvenile LWOP defendants often were intentionally participating in a felony that unintentionally resulted in murder, and they were often acting under the influence of an adult (who may or may not have received a LWOP sentence himself).

7. Nationally, 59 percent of juveniles sentenced to life without parole are first-time offenders—without a single crime on a juvenile court record. These young offenders are not the worst of the worst offenders.

Is Senate Bill 9 good? Is it good enough?
SB 9 does not automatically grant release to juveniles sentenced to life without the possibility of parole. In order to ever possibly get out of prison, the adult who was sentenced as a youth must: (1) serve 25 years in prison, (2) petition the court, (3) have his or her petition granted, and then (4) persuade a Board of Parole to grant parole—something it does in only 10-15 percent of all cases. Getting paroled requires demonstration of rehabilitation and a detailed plan for re-entry. The possibility of release from prison is slim. But SB 9 is good policy because it is more humane and because it shapes the opportunities provided to these defendants as well as encourages rehabilitation.

Who’s for SB 9?
SB 9 was authored by Senator Yee, with Principal Coauthors Senators Steinberg and Vargas, and Coauthors Assembly Members Fuentes and Lowenthal.
A long list of individuals, politicians, and organizations have publicly voiced support. See http://www.fairsentencingforyouth.org/supporters/california-organizations-supporting-an-end-to-jlwop/

Who’s Against SB 9?
The California District Attorneys Association

To take action go to http://www.fairsentencingforyouth.org/take-action/

For more information, see:

Wondering what to do when the police stop you?

This is almost word for word what I have been telling clients for years. Protect yourself when you are stopped by the Police by being very clear: “I want to speak to an Attorney”. Then, call Criminal Defense Attorney Thomas Greenberg!

Here is a link to a card that you can print off to keep with you, in case you forget what to do when stopped by the police. http://www.aclu.org/files/assets/bustcard_eng_20100630.pdf

Search This? During a Lawful Arrest, Police Can Search Your Cell Phone Without A Warrant

police search phoneAs of January 2011, if the police are lawfully arresting you in California they can search your cell phone without a warrant. This includes all of your cell phone contents—texts, voicemails, photos, videos, your list of contents and recent calls, plus any email and online services or apps you may subscribe to via your phone.

In January 2011, the California Supreme Court affirmed the Court of Appeal holding that an unwarranted police search of a cell phone text message folder during a lawful arrest for sale of ecstasy was constitutional. The way this went down was that police arrested the defendant after an informant who had been wearing a wireless transmitter purchased ecstasy from him. Upon arresting the defendant, police seized his phone and took him to the sheriff’s station where they interviewed him without an attorney present (he did not assert his right to an attorney!). The defendant denied having knowledge of the drug transaction. After the interview, police checked his cell phone texts and pulled up the message “6 4 80.” The police showed the defendant this message, told him they interpreted it as a price quote, and he then admitted to participating in the sale.

The defendant was charged with selling a controlled substance (Health & Safety Code, Section 11379(a)), a felony. He pleaded not guilty and moved to suppress the fruits of the cell phone search, arguing that the warrantless search was remote in time relative to his arrest (90 minutes), and therefore violated the Fourth Amendment. The trial court denied the defendant’s motion, the Court of Appeal affirmed, and the Supreme Court of California also affirmed.

The Court’s reasoning was this: the cell phone was immediately associated with the defendant’s person, like an item of clothing or a cigarette package, and therefore, upon lawfully arresting the defendant, the police were entitled to inspect the cell phone’s contents without a warrant. Unwarranted searches are generally unreasonable and violate the Fourth Amendment, however, there is an exception that allows police to conduct a warrantless search of the person and the area in the arrestee’s immediate control when carrying out a lawful arrest. That exception has traditionally been justified by the idea that police have a right to search for weapons that may be used against them, or for instruments of escape, or for evidence that may be concealed or destroyed. It is under this exception that police are allowed to confiscate personal clothing and items “immediately associated with the defendant’s person” for traces of evidence. The California Supreme Court held that a cell phone is immediately associated with the defendant’s person, and that the police were therefore entitled to inspect its contents without a warrant at the sheriff’s station 90 minutes later, whether or not an exigency existed.

Note, the Court did not say that the police can search your cell phone at any time or for any reason, only that the police can search your cell phone as a search incident to a lawful arrest. That means that the police must be lawfully arresting you—they must have a warrant or probable cause to conduct the arrest. If the police are lawfully arresting you and show you the contents of your cell phone to get you to answer their questions or make a statement, don’t be like the defendant in the case that went to the California Supreme Court! Call an experienced defense attorney before you answer any questions by the police other than providing your name and identification.