SB 794 And Its Impact On A Criminal Defendant’s Right To A Fair Trial

LegislativeSolution_JurySB 794 is a bill that seeks to reduce the number of peremptory challenges afforded to a criminal defendant in a misdemeanor trial from ten to five, in the name of judicial economy (i.e. saving money).  Before I go any further, I must explain the purpose and history of peremptory challenges to provide the proper context. 

Firstly, peremptory challenges are used during voir dire (jury selection) to dismiss potential jurors without cause.  This means, as long as the motivation is not rooted in race or gender, a juror can be excused, using a peremptory challenge, without showing that he or she cannot be fair and impartial, is incapacitated, is incompetent, is related to any party or witness, is a participant in previous litigation on the same matter, all of which are what constitutes cause.  Given that courts, especially with regard to misdemeanor cases, limit voir dire to as little as ten minutes for each side, peremptory challenges serve as the last line of defense for attorneys to dismiss jurors who may be overly partial to the opposing side.  Remember, voir dire occurs in open court, so jurors’ answers to questions posed by attorneys are not always honest, given the nature of the process.  Peremptory challenges allow attorneys to excuse jurors who they feel may be “hiding the ball,” absent a showing of cause. 

Now for a little history; peremptory challenges are rooted in Roman law, where both sides were allowed to select 100 potential jurors, and both sides were afforded 50 peremptory challenges to dismiss jurors, thereby leaving 100 of the initial 200 jurors, to decide the case. 

In California, the right to peremptory challenges is almost as old as the state; California Code of Civil Procedure Section 231 was enacted in 1851, and later codified in 1872.  Under CCCP Section 231, a person alleged to have committed a crime in a criminal case, where the punishment may exceed 90 days, is afforded 10 peremptory challenges, and six peremptory challenges are allowed for those facing misdemeanors with a sentence of 90 days or less.

SB 794 aims change over 160 years of California law, by reducing the number of peremptory challenges, in misdemeanor cases, to five, regardless of the amount of potential custody time.  This will affect the People’s ability to have a fair trial, and more worrisome, it will make it harder for criminal defendants to receive a fair trial, especially in conservative counties like Orange County.  

This bill is opposed by both the California District Attorneys Association and the California Public Defender’s Association, two groups which rarely agree on anything.  It is safe to say that any gains in judicial economy will be offset by juries that are less diverse, less informed, and more prejudiced towards one side or the other. 

The right to a fair trial is the cornerstone of a free and open democracy; SB 794 will have the effect of eroding that right and creating adverse consequences for our democratic society.   


What Is An “Expungement” And What Does It Do?

ExpungementGiven the economy and today’s job market, more and more people are trying to clean up their criminal records so they can remain competitive, or at the very least, have a shot at landing a job.  Heck, even landlords are utilizing background checks to select tenants in today’s crazy rental market.

I am often asked if there is any way to “seal” a California conviction and, unfortunately, the short answer is no.  However, do not despair as a dismissal under Penal Code §1203.4, often erroneously referred to as an “expungement,” is the next best thing, and, under California law, is the most effective vehicle for “cleaning up” one’s record. 

How does a Penal Code §1203.4 dismissal work?  Upon receipt of the appropriate paperwork, the court will make a determination if said petition should be granted.  If the Penal Code §1203.4 dismissal is granted, the court will vacate the conviction.

What does this mean for the petitioner?  Well, for starters, it means that, subject to certain caveats, the petitioner does not have to disclose the prior conviction to any prospective employer, landlord, etc.  Given that prospective employers conducting a background check will be able to see that there was, at one time, a conviction that was subsequently dismissed, they are barred from asking about it pursuant to California Labor Code §432.7(a).

As I mentioned earlier, there are some exceptions to a petitioner’s right to non-disclosure of a prior conviction that is dismissed, pursuant to Penal Code §1203.4.  What are these exceptions?  As Penal Code §1203.4 states, once a dismissal is granted, “the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”  Thus, unless the petitioner falls into one of the specifically itemized categories listed above, he or she need not disclose a dismissed conviction, and prospective employers are statutorily barred from inquiring about it. 

Who is eligible for a Penal Code §1203.4 dismissal? 

-Anyone convicted of a misdemeanor or felony who has completed the proscribed period of probation. 

-Anyone convicted of a misdemeanor or felony who is currently on probation.  In order to be eligible for the Penal Code §1203.4 dismissal, the petitioner must first motion for the court to terminate probation early.  As a rule of thumb, courts are reluctant to grant motions for early termination of probation unless the majority of the probationary period has expired.  For example, if the petitioner is placed on three years probation, courts like to see that at least two years of the probationary period have been served.

-Anyone who is convicted of a misdemeanor or felony who is not placed on probation can petition the court for a Penal Code §1203.4 dismissal one year from the date of conviction.

Who is not eligible for a Penal Code §1203.4 dismissal? 

-If you currently have criminal charges pending against you or are on a grant of probation related to a different case.

-Anyone convicted of a misdemeanor or felony who has not paid off the fines and/or restitution ordered by the court.

-If you were convicted of a felony and sentenced to state prison.

-Anyone convicted of violating Vehicle Code sections 2800, 2801, 2803, or 42001(b), or Penal Code sections 261.5(d), 286(c), 288, 288a(c), 288.5, or 289(j), as these violations are non-dismissible.

*It should also be noted that anyone seeking a dismissal, on a case where they violated their grant of probation, will be at the mercy of the court’s discretion.

A couple of quick closing thoughts: anyone whose conviction requires them to register as a sex offender, or which prohibits them from owning a firearm, or from driving, will still be subject to those requirements/prohibitions.  Further, despite a dismissal, if the petitioner picks up a new case, the old case, which was dismissed, can still be used to increase punishment on the new case, or can be used as a priorable offense.

I hope that this post is helpful to you all, and if you have any questions, comments, or concerns, please feel free to call me at (949)945-2085, or email me at

Roadside Drug Tests: What You Need To Know

436926-lapd-officer-demonstrating-the-oral-swab-toolStarting at the end of 2013, the LAPD rolled out a new mouth-swab roadside drug testing kit for use at DUI checkpoints.  Well, for 2014, patrol officers now carry these kits as part of their standard issued equipment, so we will undoubtedly see their use rise.  Below is what you MUST know about these tests and your legal rights.

First, these kits test for seven different drugs, but will inevitably be used most on drivers suspected of driving while under the influence of marijuana.  There is no legal requirement that a driver submit to such a test.  Nowhere is it codified that a driver must submit to an oral-swab drug test if they are suspected of DUI for drugs.  However, that will not stop officers from using intimidation, coercion, or outright misrepresentations to try and steer drivers to consent to these tests.

At this point, it’s critical to make an important distinction: oral roadside drug tests are different than the breath or blood sample you are required to give, post DUI arrest.  Failure to give a breath or blood sample, post DUI arrest, can result in a one-year license suspension, under California’s implied consent law, in addition to potential DUI charges.  However, with regard to these oral-swab drug tests, you have the right to refuse them and face no penalty, despite what officers in the field may threaten. 

Given the rise in number of medical marijuana patients and collectives in the state, there are many drivers on the road who are medicated; it is only a matter of time until the legislature acts to address this trend and makes these roadside drug tests mandatory.  However, for the time being, know your rights and recognize that you do have the right to refuse oral-swab roadside drug tests without consequence. 

Arrests for Minor Infractions

stop-frisk_1_7-18-12You can only be arrested for committing misdemeanors and felonies, right?  A cop can’t arrest you for something as trivial as not wearing a seat belt or not having a valid form of identification…right?  Well, unfortunately, wrong!

The sad and alarming answer is YES!  According to the United States Supreme Court in Atwater v. City of Lago Vista, an officer who has probable cause to believe a crime has been committed, even a minor traffic violation, has the authority to arrest.  What was the offense in question in that case?  Driving without a seat belt, a misdemeanor punishable only by fine in Texas, the state the case arose out of.

Right now you may be thinking, “Hey, it’s a minor traffic violation, but in Texas it’s a misdemeanor, which makes sense, because everything is bigger in Texas.  They could never do that in California where not wearing your seat belt is merely an infraction!”    Well, here comes the California Court of Appeal to tell you just how wrong you are.  Taking the above a step further, People v. McKay stated that so long as an officer has probable cause to believe that an individual has committed an infraction, the officer has the authority to arrest that individual.  What crime did the defendant commit in McKay? Riding a bicycle in the wrong direction on a residential street.  The story gets worse for Mr. McKay, as he was searched incident to arrest, and was found to have methamphetamine in his possession, which illustrates just how quickly encounters with law enforcement can spiral out of control.  That means if an officer decides to arrest you for an infraction, you will be searched incident to that arrest, which may open up a whole host of new problems for you.

As if things could not get any worse, if you are cited for failing to produce adequate identification, pursuant to Vehicle Code §40302, the police not only have authority to search your person and arrest you, but if you are driving, they are also permitted to conduct a limited warrantless search of the interior of the vehicle, where such documentation would ordinarily be kept.  In practice, that means a cop, at the very least, will tear apart your vehicle to search for your identification, should you fail to produce it.  This may have some adverse consequences on your liberty if you have anything illicit in your glove box or center console, where such items are often kept.  Even if you are playing on the right side of the law, and have nothing illegal on you or in your vehicle, if the officer is having a bad day, you may still find yourself in police custody for the underlying infraction violation. 

What then is the takeaway from all this?  Well, the obvious one is that the police can pretty much arrest you for anything, as long as the conduct violates a statute, even if it is an infraction punishable by fine only.  Now, most police officers are not in the habit of arresting people for rolling through a stop sign, mostly a function of the time, resources and energy such arrests would require on a daily basis.  However, it is important to be cognizant of the fact that law enforcement officers have the authority to arrest for minor infractions when you put yourself in situations where law enforcement officers are present i.e. bars, sporting events, clubs, etc.  While it is unlikely you will be arrested for a minor infraction violation, if you give an officer a reason to exercise this authority, I’m sure he or she would be more than happy to oblige!

Warantless Searches


Vehicle Search

The police need a warrant, probable cause, or reasonable suspicion to conduct a search of your person or vehicle…right?  Wrong!  Police can conduct warrantless searches, not supported by probable cause or reasonable suspicion, under the guise of “officer safety” and what are known as “administrative searches.”

Law enforcement officers have wide latitude in conducting searches to ensure that officer safety is maintained.  In Terry v. Ohio, The United States Supreme Court stated that if an officer has reason to believe he or she is dealing with an individual who may be armed, the officer is allowed to conduct a pat down search of the individual for weapons. The search must be an open-palm pat down of the exterior of a subject’s clothing and the officer must have articulable facts that form the basis of the officer’s belief that an individual may be armed.  The scope of a Terry search can extend to the inside of a vehicle, anywhere that is within an arm’s reach of any of the vehicle’s occupants.

On paper this makes sense, however, in practice, law enforcement officers use Terry searches as a means of searching an individual when lacking reasonable suspicion to support said search.  More often than not, the facts the officer articulates that led to his or her safety concerns are dubious at best.  However, courts are reluctant to suppress evidence derived from these searches out of fear of compromising officer safety.   

Another way in which law enforcement conducts warrantless searches is by way of administrative searches.  If you find yourself wondering what exactly an administrative search is, think of an airport security line.  The reason why it is lawful for our baggage and person to be searched at an airport is that the public safety interest in conducting such searches outweighs the intrusion into our privacy, and the searches are conducted in such a way as to leave little to no discretion, regarding who will be searched, to the officer.  The same holds true for DUI and license checkpoints.

Now, where things get a little sketchy is when law enforcement officers use administrative searches to conduct a search of a vehicle that they otherwise could not lawfully conduct.  A prime example is the DUI arrest.  Following the U.S. Supreme Court decision in Arizona v. Gant, auto searches incident to the arrest of a driver for DUI were found unconstitutional.  The reasoning behind this decision is that once a motorist is arrested for DUI, he or she is already outside of their vehicle, and thus, are unable to reach any weapons that may be concealed in the vehicle, thereby negating the necessity of a search of the vehicle incident to arrest.  However, if an officer has a hunch that the vehicle may contain contraband of some kind, he or she can get around this prohibition by ordering the vehicle impounded; once impounded, an inventory search of the vehicle is conducted to determine what property is in the vehicle.  This is done to protect both the arrestee and the law enforcement agency; it also has the ancillary benefit of allowing law enforcement to conduct a thorough search of a vehicle they could not otherwise lawfully search.

The take away from all of this is that if law enforcement officers want to search you or your vehicle, they probably will find a way, even without a warrant, probable cause, or reasonable suspicion.  The best thing you can do if you find yourself in a bad spot is to politely state that you are invoking your right to remain silent and request that all questioning cease until counsel is present. 

All hope is not lost as a good criminal defense attorney should be able to flesh out the details that would demonstrate to the court that the officer’s are using these tactics to circumvent the requirements of the Fourth Amendment at a suppression hearing.  If you or anyone you know feel as though you were the victim of an unlawful search, do not hesitate to contact my office as I offer free consultations and I am happy to review the strengths an weaknesses of a case, as well as any defenses, all free of charge. 



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