LOS ANGELES THIRD DUI ATTORNEY
Just as with a first or second DUI, a third California DUI arrest (within 10 years of the first) will give rise to two separate proceedings: an Administrative Sanction from the DMV and a Criminal Case in a County Superior Court.

The DMV Administrative Per Se (APS) process is fairly similar, but carries enhanced penalties and importance.  You still have only 10 days from the date of arrest to request a DMV hearing to save your license.  Otherwise, your license will be suspended 30 days after your arrest.  Unlike the 4 month suspension associated with a first DUI, the administrative suspension on a third DUI is a 2 year suspension, and can be an additional year if your third DUI arrest involved a refusal of the chemical test.  Also, while a first DUI suspension permits a driver to obtain a restricted license (to drive to work and to DUI classes) after a 30 day "hard suspension" and 90 days before becoming eligible for a restricted license after a 90 day "hard suspension" period for a second DUI, for a third DUI, you may be ineligible for a restricted license for a full year.  Further, a third DUI requires installation of an Ignition Interlock Device (IID) for two years.  This makes the DMV hearing that much more important for repeat DUIs.  A California DUI attorney can help you save your license if the police lacked probable cause for your DUI arrest or cannot establish that your BAC was above .08 at the time of driving.

In Superior Court, the criminal penalties for a Third DUI arrest (within 10 years of a prior DUI arrest).  A third DUI carries more significant penalties and may be charged even if the first and/or second DUI was reduced to a "wet reckless".  A third DUI carries mandatory jail time (minimum of 120 days, up to one year) and fines.  It is often possible to convert some or all of the jail time to community labor or work release.  In addition, a third DUI may include a longer probation period (up to 5 years) and will require enrollment in and completion of a more intensive 18-month DUI school.

Third DUIs are misdemeanors unless there was an injury to someone other than the defendant or one of the priors is a felony because of injury or death caused to another.  For DUI's causing injury, it is up to the DA whether to file as a felony or a misdemeanor.  Having a prior DUI virtually guarantees that the DUI would choose to file a DUI causing injury as a felony. 

EXAMPLE:
Bob has been a bartender in the Los Angeles neighborhood of Los Feliz for 20 years.  He often leaves work smelling like alcohol, and occasionally has a few drinks during his shift.  15 years ago, Bob got his first DUI.  Then his second and third about 5-6 years ago.  He is now arrested for DUI again at a checkpoint on Hollywood Boulevard.  Due to the age of Bob's first DUI, he is not charged with a (Felony) Fourth DUI, but rather as a third DUI.  The Third DUI is still very serious and carries a minimum jail sentence of 120 days.

Bob did not blow into the PAS device or perform any field sobriety tests (he learned this the hard way, volunteering to do them in his earlier arrests).  At the station, to avoid a refusal and an immediate license suspension, Bob gave a blood sample and a blood test was performed.  The blood results came back at exactly .08.  The District Attorney, looking at Bob's history of DUI offenses, files the matter as a third DUI, alleging the two priors from 5 years ago.

Bob's Los Feliz Criminal and DUI Defense Attorney files a motion to have a blood sample handed over to an independent lab for re-testing.  The government uses a single column gas chromatograph, primitive technology.  The lab chosen by the defense attorney will use a more accurate, dual-column method.  Luckily, the independent testing yields a result of .07.  Bob is not guilty of the VC 23152(b), per se count.  Because he did not perform any field sobriety tests and was not observed to have driven poorly, Bob is able to get his case dismissed, and avoid the jail time, hefty fines and another misdemeanor conviction. 

If you or someone you know has been arrested or charged with a third DUI offense in California, contact the Law Offices of Nicholas Loncar for a free consultation with a Los Angeles DUI attorney.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

LOS ANGELES SECOND DUI LAWYER
Just as with a first DUI, a second California DUI arrest (within 10 years of the first) will give rise to two separate proceedings: an Administrative Sanction from the DMV and a Criminal Case in a County Superior Court.

The DMV Administrative Per Se (APS) process is fairly similar.  You have 10 days from the date of arrest to request a DMV hearing to save your license.  Otherwise, your license will be suspended 30 days after your arrest.  Unlike the 4 month suspension associated with a first DUI, the administrative suspension on a second DUI is a 1-2 year suspension.  Also, while a first DUI suspension permits a driver to obtain a restricted license (to drive to work and to DUI classes) after a 30 day "hard suspension" a driver must wait 90 days before becoming eligible for a restricted license after a 90 day "hard suspension" period.  Further, getting a restricted license after a second DUI requires installation of an Ignition Interlock Device (IID).  In Los Angeles County, a "pilot county" for IID requirements, an IID will be required even after a first DUI.  This makes the DMV hearing that much more important for repeat DUIs.  A California DUI attorney can help you save your license if the police lacked probable cause for your DUI arrest or cannot establish that your BAC was above .08 at the time of driving.

In Superior Court, the criminal penalties for a second DUI arrest (within 10 years of a prior DUI arrest).  A second DUI carries more significant penalties and may be charged even if the first DUI was reduced to a "wet reckless".  A second DUI carries mandatory jail time (minimum of 96 hours/4 days, up to one year) and fines.  According to Los Angeles DUI Lawyer Jon Straub, prosecutors seek an average of 45 days in jail for a 2nd offense DUI.  It is often possible to convert some of the jail time to community labor, community service, house arrest, alcohol monitoring (SCRAM bracelet) or work release.  In addition, a second DUI may include a longer probation period (up to 5 years) and will require enrollment in and completion of a more intensive 18-month DUI school.

Second DUIs are misdemeanors unless there was an injury to someone other than the defendant.  For DUI's causing injury, it is up to the DA whether to file as a felony or a misdemeanor.  Having a prior DUI virtually guarantees that the District Attorney would choose to file a DUI causing injury as a felony. 

EXAMPLE:
Sam is driving from Hollywood on the 101 North towards his home in Studio City, when he is pulled over by CHP for speeding.  Two years prior, Sam had been arrested for DUI, after driving home from a Fourth of July party, where he had been drinking.  In that case, his attorney was able to negotiate a reduction from DUI to a "wet reckless" helping Sam avoid a suspension of his driver's license and Los Angeles' Ignition Interlock Device (IID) requirement for first time DUI offenders.  Sam has taken the case seriously and does not drink and drive anymore.

Sam is also prescribed Xanax.  Upon contact, the CHP officer does not smell alcohol, but suspects that Sam is under the influence of alcohol.  The officer asks Sam to perform a series of field sobriety tests, and those test show Sam has poor balance.  Sam is asked to provide a breath sample into a handheld breathalyzer known as a "PAS" or "Preliminary Alcohol Screening" device.  The PAS yields a reading of 0.00, because Sam had not been drinking.  The officer asks Sam whether he'd taken any drugs or medications.  Sam stated to the officer that he had taken Xanax, as prescribed by his doctor.  Sam is arrested for DUI and asked to give a blood sample.  While Sam would have had every right to refuse the field sobriety tests and the PAS device, he had to submit to the blood test to avoid a 1 year driver's license suspension s charged with a second DUI in Los Angeles Superior Court (Metropolitan Courthouse).  The prior wet reckless is alleged as a prior DUI. 

This is a common scenario.  While a prescription for drugs like Xanax will protect a patient from criminal drug charges, a prescription does not provide immunity from prosecution for DUI.  At some levels, Xanax, Valium, Percocet and other drugs can impair a person's ability to drive.  Even if not warned, driving while impaired by prescription drugs is just as much of a crime as driving after drinking too much alcohol.

Sam's Hollywood Criminal Defense Attorney can raise some important defenses on Sam's behalf.  First, there is no set, legal limit with drugs other than alcohol.  This means that the prosecutor must prove more than the presence of some level of the drug, but must actually prove that the level impaired Sam's ability to safely operate a motor vehicle.  Xanax is a difficult drug to detect the effects of (only certified Drug Recognition Experts may say that they observed symptoms of drug impairment) and also is a fast tolerance building drug.  The defense can consult with and call as witnesses, toxicology and pharmacology experts who can help explain these facts.  Sam's primary care physician can help to explain any conditions Sam has that have the potential to disrupt his balance. 

Avoiding the second DUI is very important.  While still a misdemeanor, a second DUI conviction can have very serious consequences, including mandatory jail time and a one year driver's license suspension.  Contact a Los Angeles DUI Lawyer now for a free consultation.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com


By Nicholas Loncar

Not all threats constitute crimes.  California Penal Code 422 (PC 422) defines "criminal threats"
In the most general sense, a criminal threat is a threat to kill or physically harm someone, but the government must prove more in order to establish the elements of the criminal offense.  In addition, the government must prove:
1. the victim is placed in a state of reasonably sustained fear for his/her safety (or immediate family).
2. the threat is specific (not vague) and unequivocal (not a conditional threat).
3. the treat is communicated verbally, in writing, or via an electronic device.

It is not a requirement that the defendant be able to actually carry out the threat or even that the defendant intends to carry out the threat. 

PC 422 is what we call a "wobbler" in California.  That means that the prosecution may file the charge as a misdemeanor or a felony, usually depending on the facts of the case and the defendant's prior criminal history.  As a felony, PC 422 is a "strike" offense under California's "Three Strikes" Law and carries a maximum sentence of four years in State Prison. 

The most common defenses to a PC 422 criminal threats charge are:
1. That the threat was vague or ambiguous (i.e. not specific).
2. The "victim" did not fear for his/her safety, or that such fear was not reasonable.
3. Fear was not "sustained" (i.e. the fear was "fleeting" or "momentary").
4. The threat was not communicated within the meaning of the statute (also related to vagueness).
5. There was no threat (complaining witness is lying).

If no recording of the threat exists, it is often difficult to prove this charge beyond a reasonable doubt.  Additionally, many threats are conditional and do not not fall into the criminal threats legal definition.

EXAMPLE:
John broke up with his girlfriend, Mary, and is upset about the break up.  John's classmate, Eric asks John's ex-girlfriend out on a date.  John sends Eric the following message: "if you go out with Mary, I will blow up your car."

Eric notifies the police and John is arrested for PC 422.  John is charged with a misdemeanor by the LA City Attorney's office in Van Nuys and must appear in Superior Court to defend himself against the charges.  John hires a Van Nuys Criminal Defense Attorney to represent him in the case.  As a misdemeanor, the charge is not a "strike" under California's "three strikes" law, but can still lead to jail time, a three year probation term and a misdemeanor conviction.

John has several defenses that his attorney can raise in court.  First, the threat is actually a threat to property.  There is no mention of whether Eric would be present in the car when the threatened vandalism were to take place.  Additionally, the threat is conditional.  John did not threaten to imminently harm Eric.  The conditional nature of the statement "if you go out with Mary" makes the overall statement NOT a criminal threat per the California Penal Code.  John might also have been more properly charged with electronic annoyance or harassment, instead of criminal threats. 

In a case like this, it is important to have a private investigator lock in the statements of witnesses and preserve evidence.  This arrest and charge were not authorized by the penal code, but happened anyway.  Threats are very often conditional, but the prosecutors are looking only at the police reports in their charging decision.  If the evidence is not presented fairly by law enforcement (and it often isn't), it is important for the defense to get involved and explain what happened.

If you or someone you know has been charged with criminal threats in Los Angeles, contact the Law Offfices of Nicholas Loncar for a free consultation with a Los Angeles Criminal Defense Attorney.  We can discuss the details of your case, help you understand the charges and possible consequences as well as evaluate any defenses and motions that can help you case.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

The most common way I have seen law enforcement officers get a suspect's consent to search is by using some variation of the phrase "you don't mind if I take a look do you?"  This still common police tactic to elicit consent to search has been denounced by the California appellate courts for over 30 years!  Police are out to trick you, lie to you and intimidate you into giving up your important constitutional rights.

In Crofoot v. Superior Court (1981) 121 Cal.App.3rd 717, 725, the court held that it was improper to purposely put a subject in the position where he feels that by exercising his right to refuse, he would be incriminating himself or admitting participation in illegal activity.

Officer:  “You don’t have anything illegal in your pockets, do you?”
Suspect:  No.
Officer:  “Then you wouldn’t mind me looking, would you?”
Suspect:  No.

The court properly constructed the true meaning of the officer's question like so:

"We believe implicit in the officer's statement is the threat that by exercising his right to refuse the search Stine would be incriminating himself or admitting participation in illegal activity (that is, that he had been "doing something"). It was equivalent to putting the following option to Stine:

'By exercising your constitutional right to withhold consent from me to search the backpack you will be admitting to me that you have done something wrong; it is better to let me search the pack and discover for myself. You cannot leave until you give consent.' "

Still, this is COMMON PRACTICE and done on a daily basis.  Aren't our rights more meaningful if the government cannot scare us and trick us into giving them up?  The law allows them to, and there are no signs of that changing.  What must happen is citizens must arm themselves with knowledge and learn not to fall for police tricks and bullying.  Stand your ground, refuse searches and make sure never to incriminate yourself.  Police are simply trying to build enough evidence to arrest and convict you of a crime.  

This case underscores the importance of legal research and motions to suppress in connection with our rights against unreasonable search and seizures.  The Fourth Amendment is only as strong as defense attorneys make it.  Particularly in possession cases (possession of a controlled substance, possession of an illegal or unlicensed firearm, etc.), suppression motions can be the most effective defense and might just be the easiest way to make a serious charge disappear.  


That is how your criminal defense attorney can help you in the event that your case ever gets to court, but it is also important to note how important it is to know, understand and assert your rights during a police encounter.  Police are trained to use threats and deception to get what they want out of potential suspects.  The first step in defeating these tricky tactics is to recognize that the police are using them.  Police can and will lie to you and can threaten you.  But they cannot search you without probable cause, consent or a warrant.  If you find yourself in a police encounter, be assertive, yet cooperative and do not be afraid.


For more information about refusing searches and asserting your rights, feel free to contact our office for a Free Consultation.  Whether you have been arrested or charged with a crime, or just want to better understand how to handle an overbearing government and assert your rights, contact us now.

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

By Nicholas Loncar

Lying is an important part of police work.  Yes, you read that correctly...police can and do lie to suspects, defense attorneys and anyone else they think will help them do their jobs.  In fairness, most of the criminals they're chasing are dishonest with them.  Police lie to elicit confessions, locate and identify contraband and as needed to help them solve crimes.  While it does bother me, as a criminal defense attorney, that police can lie to the extent that they trick citizens into losing valuable rights, I am much more troubled when I see them tell a lie on the witness stand.  Under oath, representing our government in a process meant to preserve the rule of law, I have witnessed MANY officers knowingly give false testimony in court proceedings. 

Even when caught in the lie (and often telling more lies to try to escape being caught in a lie), I have not seen the DA rush to file charges against their FELON witness.  Perjury is a felony and harshly prosecuted in some circumstances, but why would the District Attorney's office want to punish the police for the lies that give them their convictions?  If a defense witness made up stories like the police do for the prosecution, they would be at risk of needing their own defense attorney.  Judges and prosecutors all seem to ignore this common practice and tacitly allow this serious crime to take place in the courtroom on a daily basis.

Still, what bothers me even more is that the public is not aware of just how common this is.  It's happening right now, in a courtroom near you.  It's so common, in fact, that it has a name:

The phrase "Testilying" was brought to public attention by defense attorney Alan Dershowitz:

"For anyone who has practiced criminal law in the state or Federal courts, the disclosures about rampant police perjury cannot possibly come as a surprise. 'Testilying'—as the police call it—has long been an open secret among prosecutors, defense lawyers, and judges."

It is estimated that 10,000 people are wrongfully convicted in the United States each year.  It's time to make this "standard practice" go away!

Police might very well lie on the witness stand in your case.  Even if there is not strong enough evidence to get a conviction, police officers might offer false testimony to lock you up.  This is where having an experienced, knowledgeable and passionate criminal defense attorney on your side comes in.  Through effective cross examination and witness impeachment, your Los Angeles Criminal Defense Attorney can expose the lies, make it obvious to the judge or jury that the officer is being untruthful and use those lies to call into question the reliability of any of the evidence against you.


Police have long been able to get away with all sorts of misconduct.  From planting and falsifying evidence, to using excessive force, police are often shielded from prosecution and other punishments.  This is starting to change as the public is becoming more and more aware of how untrustworthy many police officers are.  As video cameras have become so common, objective evidence and the possibility that an event was captured by video should serve to keep police a bit more honest.  It takes a skilled, passionate and aggressive criminal lawyer to expose these police lies.


If you or a loved one has been arrested or charged with a crime in Los Angeles, contact the Law Offices of Nicholas Loncar now for a free consultation with a criminal defense lawyer.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

Friedrich Nietzsche once warned us to "distrust all in whom the impulse to punish is powerful."  As a criminal defense attorney, I am extremely passionate about preserving the rights our framers and founders held sacred.  The Bill of Rights, the first ten amendments to the United States Constitution demonstrate one very clear focus: the importance of a fair criminal justice system.  The rights to be free from unreasonable searches, the right against self-incrimination, and the right to a trial by jury were the conditions upon which the Constitution's signers granted our government power.  The rights have been vastly eroded over time, and barely resemble the civil liberties we are supposed to enjoy as Americans.

This video shows a Philadelphia Assistant District Attorney making a training video for young prosecutors.  The new DAs are taught to avoid black people, poor people and anyone smart enough to question the true meaning of reasonable doubt.  In the extended edition, the speaker even goes on to instruct the young prosecutors to strike white jurors who live in racially diverse areas, as they may not be as racist.  Later on in the hour long racist revelation of extreme injustice, he strikes a juror named "Raynard" for no other reason than...well you know why he's not picking "Raynard".  Beyond the racism, these practices serve to undermine the high burden of proof used in our criminal courts.

The good news about this video is that it is old.  It's probably no longer used for any training purposes.  But what this video really does is it provides a glimpse of just how far we have strayed from the Land of the Free.  Aside from calling the idea of a right to a trial by a fair and impartial jury "RIDICULOUS" he is training these new prosecutors to eschew the heavy burden of truth beyond a reasonable doubt by only choosing dumb jurors who will just sit there and do what the government tells them to. 

Batson challenges (a challenge made, usually by the defense, to a prosecutor striking jurors from a particular group) have helped a little bit, but the harsh reality is that a zealous advocate for guilt will have innocent victims.  Dumbing down the jury pool and removing those whose experiences have taught them to question the government's motives might be an easier way to put the guilty behind bars, but also leads to wrongful convictions of the innocent.  If the evidence doesn't demonstrate factual and legal guilt, these dirty tricks should not be employed to get a jury to return a guilty verdict.

With prosecutors so zealous to get a conviction despite the truth and facts, it is important to have a great defense.  Consult with a Los Angeles Criminal Defense Attorney for free.

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

LOS ANGELES SEARCH AND SEIZURE LAWYER
This article series has focused on the Fourth Amendment protections against unreasonable searches and seizures.  A brief overview of Fourth Amendment law suggests that police need a warrant or exigent circumstances to search a home, but only probable cause or a lawful arrest to search a vehicle.

When police violate these guidelines, the courts have created an exclusionary rule, whereby unlawfully obtained evidence can be thrown out of court.  In California, evidence is suppressed via a motion pursuant to Penal Code 1538.5

In 1961, the US Supreme Court laid out its prophylactic rule for evidence exclusion in the case of Mapp v. Ohio and applied the rule to the states.  The Mapp Court recognized that letting law enforcement use unlawfully obtained evidence would lead to more rights violations for the innocent.  Only by suppressing evidence when police violate a suspect's Fourth Amendment rights can the courts ensure that law enforcement officers will not violate the rights of citizens in order to find contraband. 

Other Articles in this Series: 
UNREASONABLE SEARCH AND SEIZURE:  Stop and Frisk and Search of Persons
UNREASONABLE SEARCH AND SEIZURE:  What constitutes a search?
UNREASONABLE SEARCH AND SEIZURE:  Consent Searches
UNREASONABLE SEARCH AND SEIZURE:  Search of Vehicles and Effects

EXAMPLE:
Gary is pulled over by the LAPD in Los Angeles.  The neighborhood is known for heavy narcotics trafficking and his car is traveling away from a well-known corner for drug sales.  Officers did not observe Gary buy any narcotics, but are suspicious of the location and believe that many of the cars driving away from that corner have just purchased drugs.

The officers believe that Gary is acting nervous and ask him to step out of the vehicle.  Immediately upon his exit from the vehicle, Gary is handcuffed.  The officers then pat Gary down "for weapons" and notice a small object in his right front pants pocket.  Inside the pocket is a small bag, containing cocaine.  Gary is arrested.  After the arrest, officers search the car and find an unlicensed firearm.  Gary is charged with two felony counts, one for the drugs and one for the gun.  Gary hires a Los Angeles Criminal Defense Attorney to file a motion to suppress the evidence.

At the arraignment, Gary's attorney obtains copies of the police reports and then requests additional evidence through a process called discovery.  Gary's attorney knows that the police car had video and audio and can use that additional evidence to show the judge what happened at the motion hearing.  At the preliminary hearing, Gary's attorney argues the motion to suppress.  Through effective cross-examination of the officers, the criminal defense attorney can show that the police's suspicion of Gary was not supported by probable cause.  The police needed more evidence of guilt before they could handcuff and search Gary.  While the police report may have contained some lies or omissions, the testimony at the hearing made clear that the police violated Gary's Fourth Amendment rights.  Due to the violation, the judge would grant the motion to suppress the evidence and the charges against Gary will be dismissed.

If you, or someone you know, has been arrested or charged with a crime on the basis of an alleged consent search, you need a California Criminal Defense Attorney who can assert your rights by filing and arguing a motion to suppress the evidence against you.  Contact our office for a free consultation.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

LA UNREASONABLE CAR SEARCH LAWYER
Unlike a search of someone's home, vehicle searches do not require a warrant.  When a police officer gets a warrant, a judge has already determined that the evidence the officer has is sufficient to justify the search.  This decision can still be challenged, but there is often more litigation surrounding car searches - more litigation that can lead to evidence being thrown out and a case being dismissed.

There is a diminished expectation of privacy in cars and the courts have given police substantial authority to search vehicles.  They have rights to search based on probable cause to search, based on arresting a recent occupant or based on officer safety.

Upon arresting a driver, law enforcement may conduct a search incident to arrest.  The US Supreme Court, in Colorado v. Bertine, held that police could conduct an inventory search of a vehicle, even after a DUI arrest.  DUI did not provide the officers with probable cause to search, but the Court commented that the officer has a right to conduct a search for officer safety and for inventory reasons.

In Thornton v. United States, the US Supreme Court further expanded officer rights.  In Bertine, officers arrested suspect directly from his car before conducting an inventory search.  In Thornton, the suspect, realizing he was being followed, pulled over and parked his car.  He exited the vehicle and began to walk on foot.  He admitted to officers that he had drugs on him, and he was arrested.  Officers later searched his vehicle.  The Court held that even though Thornton was in custody, the officers had a right to search the vehicle for their safety.  This argument is ridiculous, but is also law. 

A vehicle search incident to arrest may also include bags and other containers in the car.  In Wyoming v. Houghton, the suspect was arrested for drugs in plain sight and the Court upheld a subsequent search of a backpack located in the car.  The Court has placed at least one limit on the search incident to arrest probable cause exception.  In Knowles v. Iowa, the driver could have been arrested for a traffic violation, but police opted not to arrest him.  Instead, the officers attempted to use the fact that they could arrest Knowles to justify a search.  The Court disagreed and invalidated the search.

RVs or motor homes are a bit of a grey area in between car searches and those needing a warrant.  The US Supreme Court addressed this issue in the landmark case California v. Carney.  In that case, Carney lived in the motor home, but the Court held that a search still only needed probable cause (and not a search warrant).  The Court reasoned that the ability to move the motor home quickly.  Additionally, the motor home was parked in a downtown San Diego parking lot, not a location ordinarily used for residential purposes.  Accordingly, a trailer in a trailer park, hooked up to plumbing and electricity, without the ability to be driven away easily would likely require a warrant.

Other Articles in this Series: 
UNREASONABLE SEARCH AND SEIZURE:  Stop and Frisk and Search of Persons
UNREASONABLE SEARCH AND SEIZURE:  What constitutes a search?
UNREASONABLE SEARCH AND SEIZURE:  Consent Searches
UNREASONABLE SEARCH AND SEIZURE:  How to Suppress Evidence

If you, or someone you know, has been arrested or charged with a crime on the basis of an alleged consent search, you need a California Criminal Defense Attorney who can assert your rights by filing and arguing a motion to suppress the evidence against you.  Contact our office for a free consultation at (323) 803-4352.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

DO NOT CONSENT TO SEARCHES!

I considered leaving this article at that.  You should never consent to searches by law enforcement.  Consent searches are the most common type of warrantless search.  Consent is a murky issue.  In order to use the fruits of a search against the defendant in a consent search case, the prosecutor must show that consent was voluntary.  The Court has handed down a rather contradictory ruling in this regard, as the prosecutor need not show that the defendant knew he or she had a right not to consent (see Schnekloth v. Bustamonte).  As such, police may, and do, employ deceptive and coercive tactics to obtain consent to search. 

In another landmark Supreme Court case, United States v. Drayton, two suspects were traveling on a bus, when police boarded the bus to search passengers.  Drayton and the other suspect did not explicitly consent to a search, but raised their arms when asked to do so.  The Court held that they consented to the search, because despite the officers' show of authority, the officers did not say that the suspects had to comply with the request to be searched. 

It should be apparent that law enforcement gets substantial leeway when determining what is and is not consent.  In car searches, police will often say "you don't mind if I look around a little bit" while already in the car, looking around.  It is important that people be aware of their right not to consent and voice their opposition to a search.  Otherwise, there is a good chance that the search will be deemed a consent search.  What certainly might seem to a rational person as coercion and deceit might very well still be consent in the eyes of the law.  Make your objection to searches clear to protect your privacy and your rights.

Police are trained to use deception and intimidation to get you to give up your valuable rights.  To a police officer, the important Constitutional rights you have are mere obstacles to their intrusion into your life and into your privacy.  They want to make arrests, get charges filed and hope that you get locked up.  It is absolutely imperative that you do not fall into their trap and give into police trying to invade your privacy.  Even if you have not broken any law, you usually have a right to refuse searches and should do so.  Just because you have "nothing to hide" does not justify the police intrusion and the inconvenience, stress and discomfort of dealing with law enforcement accusations.

One rejection of a search does overrule consent by another person with standing to consent.  In Georgia v. Randolph, a husband and wife were both asked to consent to a search of the home.  The wife consented and the husband refused.  The Court held that the refusal, not the consent had to be honored.  After all, the Constitution provides a right to be free from searches, not a right to be searched.

Other Articles in this Series: 
UNREASONABLE SEARCH AND SEIZURE:  Stop and Frisk and Search of Persons
UNREASONABLE SEARCH AND SEIZURE:  What constitutes a search?
UNREASONABLE SEARCH AND SEIZURE:  Search of Vehicles and Effects
UNREASONABLE SEARCH AND SEIZURE:  How to Suppress Evidence

If you, or someone you know, has been arrested or charged with a crime on the basis of an alleged consent search, you need a Los Angeles Criminal Defense Attorney who can assert your rights by filing and arguing a motion to suppress the evidence against you.  Contact our office for a free consultation.  There are many different ways to handle a criminal defense case, and our office can make sure you get the effective representation you need to fight the charges against you.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

LOS ANGELES ILLEGAL SEARCH AND SEIZURE LAWYER
A stop and frisk is not quite a search.  Courts consider the intrusion to be less severe and therefore do not require probable cause before an officer can frisk someone.  Personally, I think the idea that a pat down is in any way more reasonable and less intrusive than other searches is a ridiculous notion.  The idea that an officer can subject citizens to such discomfort and humiliation without probable cause is ludicrous.  But I'm not on the Supreme Court.

In the 1968 US Supreme Court case Terry v. Ohio, Chief Justice Earl Warren attempted to take a serious bite out of crime.  Instead, he took a serious bit out of the Constitution of the United States.  In a shameful display of disregard for the Fourth Amendment, Warren held that law enforcement officers did not need probable cause, but rather merely reasonable suspicion, a lower standard in order to stop someone on foot and pat them down.  The Court reasoned that the lesser intrusion warranted a lower level of justification. 

Traffic stops are an extension of the Terry stop.  Officers can conduct an "investigatory detention" based on reasonable suspicion alone.  Reasonable suspicion does not mean that an officer may stop someone on just a whim, however.  Even an anonymous tip is insufficient.  The officer must be able to point to actual factors that indicate to the officer that criminal activity is afoot.  If the brief investigatory detention dispels suspicion, the encounter should end.  If the stop reveals more evidence, the officer might have probable cause to conduct a search or make an arrest.

In determining the scope of a Terry stop, the Court has assessed several different scenarios.  Flight from police, when in a high crime area does not rise to the level of probable cause for arrest or a full-blown search, but does give police reasonable suspicion to perform a Terry stop (see Illinois v. Wardlow).  Additionally, a Terry stop cannot unduly delay a suspect from going about his/her business.  A brief investigatory detention only requires reasonable suspicion, but a 90 minute detention requires probable cause (see United States v. Place).

A pat down must be just that: a pat down of the outside of a suspect's clothing.  In Terry, officers observed a bulge that they believed to be a weapon.  A quick pat down confirmed that the bulge was in fact a gun.  In Minnesota v. Dickerson, the Court addressed a Terry stop that went too far.  Dickerson had a small quantity of crack cocaine in a jacket pocket.  A quick, open hand pat down of the outside of Dickerson's clothing could not have let the officer to believe that the small object was contraband.  In fact, the officer used his fingers to squeeze the object.  In doing so, the officer exceeded the scope of what was permissible when he only had reasonable suspicion.  To justify manipulating the object in Dickerson's pocket as he did, the officer would have needed probable cause.

UNREASONABLE SEARCH AND SEIZURE:  What Constitutes a Search?
UNREASONABLE SEARCH AND SEIZURE:  Consent Searches
UNREASONABLE SEARCH AND SEIZURE:  Search of Vehicles and Effects
UNREASONABLE SEARCH AND SEIZURE:  How to Suppress Evidence

If you, or someone you know, has been arrested or charged with a crime on the basis of an alleged consent search, you need a California Criminal Defense Attorney who can assert your rights by filing and arguing a motion to suppress the evidence against you.  Contact our office for a free consultation at (323) 803-4352.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar