Recent Blog Posts

DUI for Persons Under 21, Part 2

Christine McGuire — Fri, 18 May 2012 07:00:00 GMT

Vehicle Code section 23136 makes it unlawful for a person under 21 years of age to drive with a
blood-alcohol concentration (BAC) of 0.01 percent or more, as measured by a preliminary alcohol screening (PAS) device or other chemical test. This is often referred to as “the zero tolerance law,” and is punishable as an infraction.

A person may also face prosecution under Vehicle Code sections 23152 or 23153, or any other provision of law

If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

DUI for Persons Under 21, Part 1

Christine McGuire — Tue, 15 May 2012 16:44:00 GMT

Section 23140(a) of the Vehicle Code makes it illegal for a person under 21 years of age to drive a vehicle when he or she has 0.05 percent or more, by weight, of alcohol in his or her blood. In 1999, the California Court of Appeal held that having a BAC of .05, rather than .08 does not violate equal protection laws. (See People v Goslar (1999) 70 Cal.App.4th 270, 276)

Vehicle Code section 23140(b) states that regardless of whether a chemical test is administered to determine Blood Alcohol Level, a person under 21 years of age may violate 23140(a) if he or she is determined to be under the influence of, or affected by, an alcoholic beverage, and if the judge or DMV hearing officer determines that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood.

Violation of Vehicle Code section 23140 is punishable as an infraction. If the person is convicted, the clerk of the court must prepare an abstract of the record and immediately forward it to the DMV an abstract of the record of the court.

If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Subpoena

Christine McGuire — Wed, 21 Mar 2012 00:20:00 GMT

Subpoena

What it is all about:

Witnesses should be subpoenaed to give testimony in court. Most witnesses will appear as ordered. There may be cases in which the court will have to issue a warrant and require the sheriff to bring the witness before the court to testify. This remedy is not available when the subpoena is served by mail or messenger.

Before issuing a warrant, the court will ascertain whether the witness was personally served with the subpoena. The witness may not have received the subpoena, either because he or she was in hiding, or because a person intercepted it. For these reasons personal service of the subpoena is essential.

If a child has been subpoenaed to testify the court may appoint a guardian ad litem to receive service of hte subpoena, The guardian must then produce the child in court.

If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Evidentiary Considerations

Christine McGuire — Tue, 20 Mar 2012 00:15:00 GMT

Evidentiary Considerations Witness Unavailable

A witness who is physically available but refuses to testify, after the court has used all reasonable avenues to coerce the witnesses testimony is unavailable. Previous statements or testimony by that witness may be admissible as exceptions to the hearsay rule provided the defendant had the opportunity at the time the previous statements were made to cross-examine the witness. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Continuances

Christine McGuire — Sat, 17 Mar 2012 00:05:00 GMT

Continuances: What it is all about:

The court may grant continuances in a criminal case on a showing of good cause. To continue a criminal proceeding, the party requesting the continuance must file a written notice, which must be served on all parties to to the proceeding at least two court days before the hearing sought to be continued. The notice must be accompanied by affidavits or declarations detailing facts showing that a continuance is necessary. When deciding whether good cause has been shown for a continuance, the judge must consider the convenience and prior commitments for all witnesses. If the case involves murder, stalking, sexual assault, child abuse, or domestic violence, good cause may be found when the prosecuting attorney has another trial, preliminary hearing or motion to suppress in progress. Continuances granted on this basis must be limited to a maximum of ten court days. Onecontinuance per case may be granted to the prosecution when the case involves stalking. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Exculpatory Evidence Related to Victim

Christine McGuire — Thu, 15 Mar 2012 23:50:00 GMT

Exculpatory Evidence Related to Victim What it is all about:

Under Penal Code Section 1054.1 (e) a prosecutor must disclose exculpatory evidence to the defendant or to his attorney, if it is in the possession of the prosecuting attorney or the prosecuting attorney knows it to be in the possession of investigating agencies. The due process clause of the United States Constitution requires the prosecution to divulge all evidence to the defense that is both favorable to the accused and material either to guilt or to punisment. Due process imposes a duty on the prosecution to disclose substantial material evidence favorable to an accused regardless of whether the accused makes a discovery request. Penal Code Section 1054.1 (e) does not require the prosecution to disclose misdemanor convictions of prosecution witnesses as exculpatory evidence. The federal due process clause requires trial courts to allow discovery of a witness's misdemeanor conviction involving moral turpitude if requested by the defendant, when the evidence reflects on the credibility of a prosecution witness. The record of the misdemeanor conviction involving moral turpitude is inadmissable hearsay, the existance of the convictions assists the defendant in obtaining evidence of the misdemeanor misconduct. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Defendants Statements to Probation Officers

Christine McGuire — Wed, 14 Mar 2012 23:30:00 GMT

Defendants Statements to Probation Officers - What it is all about:

Evidence Code Section 1040 which provides public entities with a privilege to refuse to disclose official information, has been held not to apply to statements made by a defendant to his probation officer. The Fifth Amendment Privilege against self-incrimination applies to exclude statements made by a defendant to a probation officer if the statement is compelled and used in a subsequent trial for a crime other than that for which the defendant has been convicted. The Fifth Amendment Privilege against self-incrimination must be raised by the defendant except in situations involving compelling pressure to speak such as when the person is undergoing custodial interrogation or when the person is threatened with a penalty for exercising the privilege of remaining silent. Statements made by a defendant to a probation officer during a presentence investigative interview can be used against the defendant in subsequent cirminal proceedings in the absence of evidence that the statement was compelled or that the probation officer threatened the defendant with an negative recommendation for refusing to give a statement. Statements to a probation officer by a defendant may be used at a probation revocation hearing because the role of the judge at a probation revocation hearing is not to determine whether the probationer is guilty or innocent but to deermine whether he can be allowed to remain on probation. The testimony of a probationer at a probation revocation hearing before disposition of criminal charges arising out of the probation violation and any evidence from the testimony are inadmissible against the probationer in proceedings on the related criminal charges except for purposes of impeachment or rebuttal. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

No Civil Compromise of Domestic Violence Offenses

Christine McGuire — Tue, 13 Mar 2012 23:30:00 GMT

No Civil Compromise of Domestic Violece Offenses Penal Code Section 1377 prohibits civil compromise of misdemeanor domestic violence offenses. Penal Code Section 1377 excludes from civil compromise misdemeanor offenses committed in violation of a protective order under Penal Code section 273.6 or in violation of a protective order in a juvenille court proceeding; by or on a family or household member or on a spouse or former spouse, cohabitant or former cohabitant, a person with whom the defendant has or had a dating or engagement relationship, a co-parent of a child, a child of a defendant or child who is the subject of an action under the Uniform Parentage Act, or any other person related by consanguinity or affinity within the second degree. Also exempt from civil compromise are misdemeanor offenses of elder or child neglect or abuse. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Dismissals: Judicial Authority Under Penal Code Section 1385

Christine McGuire — Sat, 10 Mar 2012 00:05:00 GMT

Dismissals: Judicial Authority Under Penal Code Section 1385

What it is all about: A judge may on his own motion or on the application of the prosecutor and in furtherance of justice order an action dismissed. The reasons for the dismissal must be set forth in a order entered in the court minutes. No dismissal may be made for any reason that would be grounds for demurrer to an accusatory pleading. When determining whether a dismissal will futher the interest of justice, the judge must consider the constiutional rights of the defendant and the interest of society represented by the prosecutor. The requirement that a statement of reason for dismissal must be entered in the minutes is to protecting the public against improper or corrupt dismissals and to impose a restraint on judicial power. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Child Abuse and Neglect Counseling

Christine McGuire — Fri, 09 Mar 2012 00:00:00 GMT

Child Abuse and Neglect Counseling

What it is all about:

Children may be abused during the course of a domestic violence situation. The prosecutor may refer a person who is suspected of committing an act of physical abuse or neglect of a child to a county social services department also referred to as CPS or the probation department for counseling, psychological treament, or other services. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Deferred Entry of Judgement for Drug Offenders

Christine McGuire — Wed, 07 Mar 2012 23:55:00 GMT

Deferred Entry of Judgement for Drug Offenders

What it is all about:

In cases in which the defendant appears to have a substance abuse problem and is charged with a drug offense, he may be eligible to participate in the drug deferred entry of judgment (DEJ) program, Under DEJ, the defendant pleads guilty to the offense and the court defers entry of judgment and refers the defendant to an education, treatment or rehabilitation program. If the defendant successfully completes the program, the criminal charge is dismissed. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Criminal Threats and Sustained Fear

Christine McGuire — Wed, 07 Mar 2012 03:10:00 GMT

Criminal Threats and Sustained Fear:

Penal Code section 422 requires the person threatened to be in sustained fear for his safety. The requirement that the threats cause the victim to be in sustained fear for his own safety or for the safety of an immediate family member has both a subjective and objective component. A victim must be in sustained fear and the sustained fear must be reasonble under the circumstances. Momentary fear does not support a finding of sustained fear within the requirements of Penal Code Section 422 in the absence of evidence indicating that the victim had knowledge of the defendant's prior conduct that was threatening. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Stalking and Continuous Course of Conduct

Christine McGuire — Tue, 06 Mar 2012 03:05:00 GMT

Stalking and Continuous Course of Conduct

Stalking under Penal Code section 646.9 has been held to be a continuous course of conduct crime to which unanimity instruction requirement does not apply. By definition stalking requires multiple acts in a course of conduct, since Penal Code Section 646.9 (e) provides that harasses means engaging in a knowing and willful course of conduct. Even when there are multiple threats, if they are similar and relatively contemporaneous in time, and the parties do not make any significant distinction between them the continuous course of conduct exception applies.

If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Penal Code Section 243(e): Simple Battery Against Spouse Cohabitant, Co-Parent

Christine McGuire — Sat, 03 Mar 2012 02:55:00 GMT

Penal Code Section 243(e): Battery Against Spouse, Cohabitant, Co-Parent

What it is all about:

Penal Code Section 243(e) prohibits the commission of a battery against a spouse, former spouse, cohabitant, co-parent, fiance, or a person with whom the defendant has or had a dating relationship. A defendant may be charged under Penal Code Section 243(e) if the touching or contact with the victim does not result in an actual physical injury. If a physical injury does occur, the defendant is generally charged under Penal Code section 273.5. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney

Domestic Violence and Continuous Course of Conduct

Christine McGuire — Fri, 02 Mar 2012 02:50:00 GMT

Domestic Violence and Continuous Course of Conduct

What it is all about:

When a complaint charges a defendant with a single criminal act and the evidence at trial shows more than one unlawful act, the prosecutor must elect the specific act relied on by the prosecution to prove the charge to the jury or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. Corporal injury to a spouse, etc under Penal Code section 273.5 comes within the continuous course of conduct exception to what is referred to as the rule of election. Corporal injury of an spouse, etc is generally not charged as a continuous course of conduct, rather the prosecutor charges a defendant with multiple acts as separte offenses. Courts have upheld convictions based on continuous course of conduct in cases involving repeated violence against a spouse despite the failure of the prosecutor to elect the act relied on or of the court to give an instruction. Stalking under Penal Code Section 646.9 is a continuous course of conduct crime to which the special instruction requirement does not apply. If you are arrested or charged with a crime, contact:

Christine McGuire, Criminal Defense Attorney

Christine McGuire Santa Cruz Criminal Defense Attorney

Christine McGuire Monterey Criminal Defense Attorney

Christine McGuire San Jose Criminal Defense Attorney