How to Calculate Your Blood Alcohol Level & Avoid a DUI

Posted on May 31, 2011 by Thomas Greenberg

Blood 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:

Men

Women

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.

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How Much Can Your Employer Pry Into Your Criminal Record?

Posted on May 25, 2011 by Thomas Greenberg

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.

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Fair Sentencing for Youth?

Posted on May 22, 2011 by Thomas Greenberg

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:
http://www.fairsentencingforyouth.org/legislation/senate-bill-9-california-fair-sentencing-for-youth/
http://www.pbs.org/wgbh/pages/frontline/whenkidsgetlife/etc/map.html
http://www.endjlwop.org/the-issue/stats-by-state/california/
http://californiacorrectionscrisis.blogspot.com/2011/03/support-sb9-fair-sentencing-of-youth.html

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Wondering what to do when the police stop you?

Posted on May 17, 2011 by Thomas Greenberg

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

Posted in Drug Crimes, DUI | Leave a comment

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

Posted on May 13, 2011 by Thomas Greenberg

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.

Posted in Drug Crimes, Warrants | Leave a comment

Between what hours may warrant be served in California?

Posted on May 13, 2011 by Thomas Greenberg

California Warrants being servedCalifornia Penal Code provides that a search warrant may be served between the hours of 7 a.m. and 10 p.m.—unless the judge who signed the warrant included in the warrant directions that the warrant may be served at any time of day or night. Service of a warrant after 10 p.m. is considered a more serious invasion of security than service of a warrant between the statutory allowed hours.

In order to insert a provision for nighttime service of a search warrant, the judge must have “good cause,” which is defined as having “some” factual basis for believing that a nighttime intrusion would be justified by exigent circumstances, such as greater safety of the police officers serving the warrant or the public.

In other words, law enforcement must present to the judge specific facts from which it reasonably may be concluded that the contraband to be seized will not be in the place to be searched during the hours of 7 a.m. to 10 p.m.  Night service might be justified if the objects being pursued are transitory, movable, easily hidden or consumed.

Multiple outstanding arrest warrants is considered exigent circumstances and service of a search warrant for the purpose of arresting a person with multiple outstanding warrants will be authorized whenever possible.

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Is possession of ecstasy a felony in San Mateo County?

Posted on May 10, 2011 by Thomas Greenberg

Possession of ecstasy San Mateo County?

Personal possession of ecstasy (violation of California Health and Safety Code Section 11377) is a “wobbler” and may be punished as either a misdemeanor or a felony, depending on the facts of your case and your criminal history. Factors that influence how the district attorney charges you include whether the drugs were packaged for sale or for personal use, as well as the amount of drugs found.

Misdemeanor personal possession of ecstasy is punishable by up to one year in county jail and a maximum $1,000 fine. A felony conviction for personal possession of ecstasy is punishable by sixteen months, or two to three years in California state prison, and up to a $10,000 fine. If you are facing prison time, you may be eligible to serve time in a drug diversion program instead of prison. Proposition 36 permits non-violent drug offenders to serve time in a drug diversion program instead of prison, and successful completion of the drug diversion program also results in dismissal of the conviction.

Depending on facts of your case, the district attorney may also charge you with violation of California Health and Safety Code Section 11378 (possession or purchase of ecstasy for sale) or violation of Section 11379 (transporting or selling ecstasy). Both of these offenses are felonies, and the San Mateo County District Attorney is quite aggressive about pursuing a conviction under these sections. In 2004, the San Mateo County District Attorney charged Antonio Rivera with felony possession of ecstasy for selling the dose of ecstasy that was the cause of death to 14-year old Irma Perez. Mr. Rivera pleaded guilty and was sentenced to five years in prison, in large part because of he was young and did not have a criminal record.

An experienced defense attorney can help you negotiate a plea bargain that includes a plea to a personal possession charge instead of a possession for sales charge. If you decide to go to trial, an experienced defense attorney will advocate to the judge or jury for your acquittal and, when it comes to sentencing, that you receive the most lenient sentence possible and for a drug diversion program instead of prison.

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Does Probation Allow Medical Marijuana?

Posted on May 4, 2011 by Thomas Greenberg

Does probation allow medical marijuana

Probation is a means by which the courts try to hold people accountable for your crime without having you taking up jail space or other resources. While you have the leisure of being free from jail, you are still under many restrictions, and by agreeing to be on probation you sign away many of your rights.

Abstaining from drugs and alcohol is often one of the terms of probation, and you risk a probation violation and potentially new charges if you test positive. Generally, if you test positive for a prescription drug like Oxycodone (Vicodin) but you have a valid doctor’s prescription, you will not be violated. Medical marijuana, however, is treated differently.

In most counties in California, a doctor’s recommendation for medical marijuana is not enough to avoid a probation violation. In these counties, you must ask the court to authorize the use of medical marijuana, either by putting the matter on the court’s calendar for a brief hearing or by filing a formal motion to modify the terms of probation. The Probation Department does not have discretion to allow you to use medical marijuana, however, your probation officer might assist you with putting the matter on the court’s calendar. If not, ask a competent defense attorney for assistance.

If you are facing a probation violation for medical marijuana, it may make a difference whether your initial, underlying offense was related to marijuana or other drug use. In the case People v. Tilehkooh (2003), the California Court of Appeal struck down a probation violation for misdemeanor possession of marijuana and eliminated the condition that the defendant abstain from marijuana because the his initial offense was not drug related. The court stated that because his initial offense was not drug related, prohibiting the use of medical marijuana served no rehabilitative purpose. However, if restricting marijuana is reasonably related to your original offense, the court is more likely to uphold the prohibition. An attorney familiar with this area of law can advise you as to your best course of action.

Background
In August 2008, the California Department of Justice issued guidelines that many probation offices around the state follow. These guidelines provide that: “Criminal defendants and probationers may request court approval to use medical marijuana while they are released on bail or probation. The court’s decision and reasoning must be stated on the record and in the minutes of the court.” (CA DOJ Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use)

The California DOJ guidelines reflect the California Health and Safety Code, Section 11362.795, which states: (a) (1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail. (2) The court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court. (3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.

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Avoiding the dreaded DUI — Practical Tips on Protecting Your Rights & Record

Posted on March 29, 2011 by Thomas Greenberg

Should I take a taxi? Should I get a ride? Should I stay over? These are all great questions.

Life is complicated enough and now you have to worry about running into some random DUI checkpoint you can’t avoid. Stop right now and Google DUI checkpoints in your area. That way you can get an idea what the hot spots are for police on a Friday or Saturday night. Let us help you locate these roadblocks in advance with this DUI Checkpoint Location service as a free and helpful guide for avoiding a San Diego California DUI.

What about roving police in general? Can you trust them to do the right thing? Or will a patrol car stop you for nothing?

Depends. What time of night is it? While day partying is safer, as less cops are out, the million dollar question can later be asked: “What good things happen after midnight?”

DUI police DO stop based on mere hunch, suspicion or curiosity. But that’s illegal. Proving it, however, is another thing. Your attorney better be good or lucky.

Make sure your taillights and headlights work, your turn signals light up, your license plate is lit, your registration is current. While this takes a second person to help check, it’s worth it. That cuts down on the possible reasons cops can come up with to stop you.

Avoid speeding. Stay in the #2 lane on the freeway. Make a full stop behind every light and stop sign. You know, driving you don’t usually do. But driving you MUST do if you’re out at night after a few glasses of wine or a couple of scotches.

So what do you do if you ARE stopped?

Well, when a cop tries to stop you, stop immediately. Do so safely.

Roll down your driver’s side window. Put your arms on top of the wheel. Smile because you are now going to try to avoid getting a DUI. Don’t smirk though.

Have ready your license, registration & insurance. You will be asked for them.

What if the officer starts asking a bunch of questions. Give the same answer: Calmly, nicely but firmly say that you would absolutely love to answer the questions. BUT, you have been advised by your lawyer NOT to answer any questions as you have the right to remain silent.

In almost every state of this fine republic, you must do a breath test or a blood test if asked. If given the choice, choose urine. If no urine offered, choose a breath test. Choose a blood test if the others are not options.

Field Sobriety Tests can be declined. Be ready to politely tell Mr. DUI cop you will NOT do any of they eye, coordination or field tests.

Preliminary Alcohol or Breath Screening Test (aka a “PAS” or “PBT”) is also voluntary so don’t do it. So unless it’s a large breath instrument, you’re not agreeing. Point is, why give them evidence they’re trying to collect but not entitled by law to have?

If you follow these steps, you may not even need a lawyer. If you are arrested by the “bowling ball” rolled by a suspicious DUI cop, don’t worry – attorneys will line up to get you acquitted because the State will have a difficult time proving you guilty.

About the Author:
Rick Mueller is a Top-Rated San Diego DUI Lawyer specializing in Drunk Driving, DUI & DMV Defense, and has over 25 years of experience. Known as the “DMV Guru,” Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol.

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I am an Attorney with a DUI, Felony or Misdemeanor. What are the consequences?

Posted on January 21, 2011 by Thomas Greenberg

What can I be disciplined for?

The State Bar, Office of the Chief Trial Counsel, is a consumer protection agency, and to that end its mission is both focused and far-reaching. Attorneys are held to a higher standard than the general public by the fact that almost any legal transgression can be grounds for professional discipline.

Under Business and Professions Code §§ 6101, 6102, the State Bar receives notice of criminal charges and convictions. Upon notification, and investigation is opened immediately, although there may be little action taken while the case is resolved in plea bargaining or trial.

The State Bar’s main inquiry into its members’ conduct is whether it constitutes moral turpitude per se, or is “other misconduct warranting discipline” in order to protect the public, the courts, and the integrity of the legal profession, and to preserve public trust in the profession. Conduct such as multiple convictions for drunk driving as is considered grounds for discipline because a serious substance abuse problem presents the public, and the attorney’s clients, with potential harm.

When can/will the State Bar discipline me?

Although an investigation may be opened promptly, there may be little action that you are aware of until the case has resulted in a conviction or plea of guilty or no contest.

What must I report?

Attorneys are required to self-report to the State Bar of California all felony charges and convictions as well as misdemeanors committed in the practice of law and some misdemeanors committed outside the practice of law. The duty to report felonies and misdemeanors includes the following: (1) the bringing of an indictment or information charging a felony, (2) a verdict of guilty, or a plea of guilty or no contest to felony charge(s), and (3) the conviction on any felony or misdemeanor that is committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or—regardless of whether it was committed in relation to the practice of law—felonies and misdemeanors that involve “improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.”

You must report to the State Bar within 30 days of any such conviction, verdict, or plea. The State Bar has a form for reporting a criminal charge or conviction. That form is available here: http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. You can also report by updating your online State Bar profile at https://www.calbar.ca.gov/Attorneys/MyStateBarProfile.aspx

In addition, Business & Professions Code 6068(o) requires attorneys to self-report to the State Bar of California:

  • An entry of judgment in a civil action for fraud, misrepresentation, breach of fiduciary duty or gross negligence committed in a professional capacity;
  • The imposition of judicial sanctions ($1,000 or more);
  • The reversal of a judgment based on misconduct, gross incompetence or willful misrepresentation;
  • If three or more lawsuits dealing with malpractice issues are filed against him or her in a 12-month period;
  • Imposition of discipline by a professional or occupational disciplinary agency or licensing board (such as Bar Associations in other states, the SEC, etc.) (Note: this includes claims against any firm in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has already been reported by the law firm or corporation);
  • If not in possession of professional liability insurance, self-report any settlement, judgment, or arbitration award as specified by statute;
  • And, when employing a disbarred, suspended or involuntarily enrolled inactive lawyer, an attorney must comply with restrictions and inform the State Bar and clients.

The State Bar provides forms for complying with the above-described requirements, available at http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. For questions, contact the Member Services Center, 1-888-800-3400.

What if I don’t report a conviction or guilty plea?

It behooves you to comply with all of the State Bar’s reporting requirements. The State Bar receives notice of criminal charges and convictions fairly immediately. The State Bar is also notified when a California-licensed attorney is placed in, returned to, or released from inpatient status at the California Rehabilitation Center or its branches, or discharged from the narcotics treatment program.

Although a criminal charge or conviction and the circumstances giving rise to such an outcome are extremely stressful, failure to report them to the State Bar within 30 days will only make matters worse: the State Bar will add a failure to report charge to its case against you.

Am I doomed if I receive a conviction?

Not necessarily—but you might be if you don’t obtain counsel or representation skilled in State Bar discipline.

The State Bar does not ignore all misdemeanors, and not all felonies result in disbarment. The State Bar prosecutes most misdemeanor cases and all felonies. The State Bar first inquiry is whether the elements of the crime constitute moral turpitude. If so, a felony crime usually results in suspension or disbarment and a misdemeanor involving moral turpitude results in an interim suspension pending the outcome of the State Bar process. Conduct not constituting moral turpitude may be considered “other conduct warranting discipline” because of its potential to put the public or the attorney’s clients at risk.

It is a good idea to ask your criminal defense attorney to consult with disciplinary counsel. The State Bar disciplinary system is quite different than criminal trial courts, and one of the biggest mistakes an attorney can make is to respond to a State Bar investigation and prosecution like a defendant in criminal court. For example, the State Bar disciplinary system is much more amenable to respondents who take responsibility for their actions than the criminal justice system is toward defendants. Attorneys often wrongly assume that it shows culpability and is disadvantageous to hire defense counsel when facing the possibility of discipline. In fact, it is almost always worth the expense because the system is so different than is often assumed, and the State Bar generally looks favorably upon attorneys hiring counsel because State Bar defense counsel tends to be efficient and dispassionate.

Finally, the State Bar Lawyer Assistance Program for attorneys who have alcohol, drug, or mental health problems that have led into disciplinary issues is a great resource. Enrollment and successful completion in LAP can greatly reduce an attorney’s suspension or other discipline.

Posted in DUI, felony, misdemeanor | Tagged | Leave a comment