Criminal & EMS Defense

2012-02-14T16:45:00.001-08:00

@EMSLawyer's list to follow: @vguzmanlaw @DentalStudioLB @Tolericos51 @HapaBurger @RedRiverPro @JReevesiii @pbcdaycamp & @HomecareOC

2012-02-14T15:27:00.001-08:00

You are invited to a very special LEAP YEAR ONLY Networking Event & Expert Panel Discussion! http://ow.ly/94DAC

2012-02-14T11:15:00.001-08:00

Happy Valentines Day! My 10yo is very excited about another great summer @PBCDayCamp, so are WE!!! Special shout out to: @whatsupforkids!!

2012-02-12T11:05:00.001-08:00

2012 Camp Dates: Jun 11 - Aug 10. Priority Discount Registration open thru Feb 15. Enroll Now, lowest rates of the year! http://ow.ly/8Snzf

2012-02-10T17:15:00.001-08:00

Attention ALL NREMT-P's ... Refresher Reminder: UCLA is doing it one more time this year!! Come "CE" LA in the Spring!! >> http://ow.ly/8I0dv

2012-02-10T11:15:00.001-08:00

Rpost: A 15-yo puts up FB post bashing her parents for making her work too hard, here's dad's video response: http://ow.ly/8Z8j7 Thoughts?

2012-02-10T10:40:00.001-08:00

Note to self: If you can't even stand, you for sure can't drive. http://ow.ly/8SoFX

2012-02-09T20:04:00.001-08:00

A 15-yo puts up a Facebook post bashing her parents for making her work too hard, here's dad's video response: http://ow.ly/8Z8j7 Thoughts?

2012-02-08T18:59:00.001-08:00

Last task of the day: Learning more about @LDACalifornia and how Christina Hernandez can make life easier! http://ow.ly/8XBzv

2012-02-08T11:10:00.001-08:00

@PBCDayCamp -- Enriching the lives of children for 18 years! Early Enrollment ends 2/15 ... http://ow.ly/8SnGi

2012-02-07T12:25:00.001-08:00

Police Abuse? You decide>>> http://ow.ly/8Sokt

2012-02-06T12:20:00.001-08:00

COMING SOON to @StarrHall: SOCIAL MEDIA LAW Your complete online center for social media and online legal issues... http://ow.ly/8SnXL

2012-02-04T10:53:00.001-08:00

There is no such thing as "Water Safe" Only knowing how to swim & being "Water Aware." How do you describe YOUR CHILD? http://ow.ly/8SnpG

2012-01-27T09:15:00.001-08:00

Attention ALL NREMT-P's ... Refresher time is coming up. Come on out to Sunny SoCal and get some CE and See ME!! http://ow.ly/8I0dv

2012-01-26T19:01:00.001-08:00

Attention ALL NREMT-P's ... Refresher time is coming up. Come on out to Sunny SoCal and get some CE and See ME!! http://ow.ly/8I0dv

2012-01-25T14:25:00.001-08:00

@LBCsandman ... Thanks for letting me know you can take care of me as an agent for @NewYorkLife. It IS the Company You Keep

2012-01-25T09:20:00.001-08:00

@redriverpro did a crazy job last Sat shooting so many 30 sec videos for High_Trust_BNI. @IvanMisner would be proud! Look for them soon!

2012-01-24T15:20:00.001-08:00

@SusanCSchneide1 ... Thanks for following me and even more for the terrific energy and enthusiasm you bring to what you do!!!

2012-01-24T08:35:00.001-08:00

@LBLifeSavers is growing bigger, stronger, and better!! Check'em out and follow'em! http://ping.fm/Bm8pU

2012-01-20T18:21:00.001-08:00

@LBLifeSavers is growing bigger, stronger, and better!! Check'em out and follow'em! http://ping.fm/h3pe0

2012-01-17T14:16:00.001-08:00

Followers of @LBGazetteNews can now view up-to-date crime reports and arrest logs at: http://ow.ly/8wYyO

2012-01-15T20:15:00.001-08:00

This is Bella-Brindle-Boxer. She's 3y & super-sweet. She needs a loving only-dog home where she can bring happiness. http://ow.ly/i/pSyB

2012-01-14T12:16:00.001-08:00

Excessive force is debatable. The BIGGER problem is the deputy's attempt to cover it up...how BIG is the problem? http://ow.ly/8tAEV

2012-01-10T17:27:00.001-08:00

EMS providers don't fear the courtroom! Survive with your pride, integrity, reputation & sanity intact: http://ow.ly/8p2e3 @EMS1

2012-01-02T18:19:00.001-08:00

The New Year brings loads of new laws for California and you NEED to know what they are! http://ping.fm/KaEzZ

2011-12-29T15:12:00.001-08:00

The Legal Guardian for EMS has a new look. It's cleaner, easier, and more concise. Take a look... http://ping.fm/TDo2I

2011-12-28T15:49:00.001-08:00

EMS Providers, this New Years Eve you can choose a $20 or $100 cab ride home or risk the DUI, what's it going to be? http://bit.ly/bbJ3B0

2011-12-22T19:50:00.001-08:00

Like the Internet in the early 90s, Internal Affairs in EMS is a lanky 13-yo with parts that require getting used to. http://bit.ly/rTF00C

2011-12-20T15:21:00.001-08:00

Thank You!!!! I'm grateful to the people who left a review for me on Yelp! http://ping.fm/iY3g4

2011-12-17T21:04:00.001-08:00

Emergency Medical Services providers, here is a neatly organized stack of EMS websites for you: http://ow.ly/82RlP

2011-12-17T18:26:00.001-08:00

Businesses succeeed when the owner has a great supporting team. Consider these 8 people for you! http://ping.fm/VNBA5

2011-12-17T11:20:00.001-08:00

Here are FIVE people your parents need to know... http://ping.fm/PVKdg

2011-12-17T10:27:00.001-08:00

I've just begun using Delicious.com to organize & save websites. I'm looking for folks to follow. Know anyone? http://ping.fm/OvMZN

2011-12-17T09:36:00.001-08:00

It is now even easier for customers to tell the world about YOUR business!! http://ping.fm/XtnxY

2011-12-16T21:11:00.001-08:00

If you are an EMS Provider, here is a tidbit you NEED to know: There is only 1 call that matters! http://ping.fm/SYlOp

2011-12-16T21:01:00.001-08:00

I'm trying Ping.

California Penal Code §240: Assault

2011-09-05T11:18:00.000-07:00

In California, the crime of "assault" occurs when you perform an act that is likely to result in the application of force to another person. There is no requirement that an assault must actually result in a violent or forceful act upon another.

For the crime to be complete, you:

1. attempted to commit such an act, and

2. had the ability to do so.

Also known as "simple assault," California Penal Code §240 is a misdemeanor when the alleged victim doesn’t suffer any significant injury.

On the other hand, Penal Code §245(a)(1) "aggravated assault" (a.k.a. "assault with a deadly weapon" or ADW) occurs when

1. you use a deadly weapon or other instrument capable of producing great bodily injury, and/or

2. the alleged victim is seriously injured.

Assault with a deadly weapon is clearly a far more serious charge, involving the more serious assault offenses.

Is it Assault or Battery?

Thanks to TV and movies, most people wrongly believe that "assault & battery" is a single crime or that they are the same crime. In reality, Assault is quite different from Battery.

A Battery occurs when you actually use force or violence against another person, whereas an assault is merely an attempt to inflict harm.

Elements of Assault

Before you can be convicted of "simple" or "misdemeanor" assault in California, the prosecutor must prove the following three elements, beyond a reasonable doubt:

1. that you "willfully" acted in a way that would likely result in the "application of force" to another,

2. that you were aware that your "act" would likely result in that application of force, and

3. you "willfully acted" with the present ability to follow through with the act that would cause that contact.

In this context, "willful" means intentional, rather than accidental. It does not mean that you necessarily

1. intended to injure the other person, or

2. intended to break the law.

For purposes of Assault, "application of force" simply means any touch…no matter how slight…if the touch is done in an angry, harmful, or even offensive manner. Plus, the physical contact (or touching) can be through one’s clothing or even indirectly through an object or another person. Pain or injury are not required. The touching is enough.

To be convicted, the jury must believe that you were "aware" that your act would likely result in harm.

Under California Penal Code §240 "assault" is a misdemeanor. If convicted of this offense, you face any or all of the following penalties:

• California misdemeanor probation (informal probation), which is typically imposed for up to three years,

• up to six months in the county jail,

• a maximum fine of $1,000,

• successful completion of a batterer’s program, and/or

• community service.

Beware, if the assault or battery was on a California police officer (or other "protected person") the sentence can be significantly increased.

How can the Law Offices of David J. Givot defend a California Assault Allegation?

An arrest is NOT a conviction!

There are several defenses that may be available.

Inability to Carry Out the Assault

A California Penal Code §240 PC assault necessarily includes a "present ability" to commit a violent injury upon another. This means that you are not guilty of assault if your act can’t be carried out.

Self-Defense or Defense of Others

California self-defense law provides that if you have a reasonable and honest belief that you or another person is about to be seriously hurt by another, you are allowed to "reasonably" fight back.

Lack of intent

If you didn’t "willfully" intend to commit a violent injury upon another, you aren’t guilty of a California "assault" under California Penal Code §240.

False Charges or Wrongful Accusations

Because there is no requirement that the alleged victim suffers an actual injury under Penal Code §240, it is a crime that is easily falsely reported out of anger, revenge or jealousy.

The bottom line is this: An assault may seem relatively minor, but it can create some very serious complications in your life. You have the right to an attorney and it is a right you should take seriously.

If you have any questions about Assault in California or if you or a loved-one has been accused, contact the Law Offices of David J. Givot right away.

NEW VIDEO: Fullerton Police Officers Abuse Citizens and Lie Without Cons...

2011-08-07T11:12:00.000-07:00

California Prostitution & Solicitation Laws

2011-07-15T12:38:00.000-07:00

Penal Code §647(b) PC

Yes, it's the “oldest profession in the world,” yet to this day prostitution is prosecuted aggressively as a crime throughout California. Prostitution is most simply defined as exchanging money, goods, or services for a sexual act.

California prostitution law under Penal Code 647(b) PC prohibits

• engaging in the act of prostitution, and

• offering or agreeing to engage in a sexual act (otherwise known as “solicitation”).

After reading this article, you may be left with additional questions. The Law Offices of David J. Givot welcome your call at 888/293-0396.

Closer Look at Prostitution

California Penal Code §647(b) PC

The exchange of sex for other goods or services is as old as time. But it wasn’t until 1961 that California introduced Penal Code 647 prohibiting “disorderly conduct,” which includes prostitution.

In fact, in that era of "free love," Penal Code 647(b) PC only penalized soliciting or engaging in acts of prostitution. Actually agreeing to acts of prostitution wasn’t prohibited until 1986. Plus, as an added protection against California entrapment defenses that were frequently raised by those arrested for solicitation or prostitution, the California Legislature added another requirement to Penal Code 647(b) PC. The new requirement said that, in order to convict a defendant of agreeing to engage in an act of prostitution, the prosecutor also had to prove that the defendant committed an act in furtherance of the agreement to engage in an act of prostitution.

Today it is as tough as ever because California prostitution laws allow law enforcement officers to arrest the prostitute, the customer, a.k.a. the “john,” and (where appropriate), the middleman, otherwise known as a pimp.

The “pimp” is arrested if he/she (1) arranges or participates in soliciting the agreement, or (2) in procuring the prostitute under Penal Code 266h and/or 266i. These California Penal Codes are commonly referred to pimping and pandering.

Police attack prostitution by monitoring massage parlors, strip clubs, and the streets in order to bust illegal prostitution operations. Carefully choreographed undercover or “sting” operations are a common way for officers to make prostitution arrests. All too often, officers will pose as “johns” responding to online advertisements for “call girls,” “escorts,” or girls just “looking to have fun.” Crafty officers have become adept at dressing, acting, and playing the part of the horny out-of-towner looking for a quickie.

Proving Guilt under Penal Code §647(b) PC

The prosecution can prove guilt in one or more of these three basic ways, depending on the facts of the arrest.

Engaging in an act of prostitution

In order to convict you of engaging in an act of prostitution, the prosecutor must prove that you

1. engaged in an act of prostitution, and

2. that you did so willfully.

Soliciting prostitution

In order to convict you of soliciting prostitution, the prosecutor must prove that you

1. solicited another person to engage in an act of prostitution, and

2. that you did so with the specific intent of engaging in an act of prostitution.

Depending on the nature of the exchange…and on who initiated the interaction…prosecutors could charge this offense against the prostitute or the customer.

Keep in mind, soliciting another person requires an overt act. It is not enough to simply be present in a particular place known for prostitution; or to wave to a passing vehicle, nod to a stranger, or even stand on a street corner in a miniskirt. Soliciting prostitution calls for more.

Solicitation requires the specific intent to engage in an act of prostitution. This intent is typically evidenced by an offer to pay money or other compensation (typically drugs) in exchange for sexual acts…not by a simple unspoken gesture or appearance.

Interestingly, one court has even gone so far as to require a third element for this offense; that the individual being solicited must actually receive the solicitation. Therefore, if your attorney can prove that no one actually received your offer to pay for sexual services, you can’t be convicted of this charge. Maybe the prostitute didn’t hear you or a pimp didn’t convey the offer.

Unfortunately, that argument won't save the day entirely. Prosecutors could instead charge you with attempted solicitation. The exposure on that charge is up to three months in jail and a $500 fine (which is half the maximum amount of jail time and half the maximum fine that are imposed in connection with Penal Code 647(b) charges).

Agreeing to engage in an act of prostitution

In order to convict you of agreeing to engage in an act of prostitution, the prosecutor must prove that you

1. agreed to engage in an act of prostitution with another person,

2. that you did so with the specific intent of engaging in an act of prostitution, and

3. that in addition to the agreement, you performed an act in furtherance of prostitution.

This offense is closely linked to soliciting prostitution. The person who solicits will be charged with soliciting, the person who accepts the solicited invitation will be charged with agreeing to engage in prostitution. Now, they have you both.

Prosecutors can charge you with this offense even if the person who made the offer or solicitation didn’t possess the same intent. This would be the case if, for example, the “prostitute” was really an undercover decoy officer whose only intent was to lure you into agreeing to the act.

It is the third element that makes this charge unique. It isn’t enough to have the specific intent to engage in an act of prostitution. You must perform an act in furtherance of prostitution.

An act “in furtherance of prostitution” means something more than just accepting the solicitation.

Under California prostitution laws, “act” could be

• driving to an agreed upon location where the sexual activity will take place,

• a verbal command, such as instructing the prostitute to undress (words are sufficient to constitute an “act in furtherance” as long as they are clear and unambiguous),

• handing over the agreed upon payment, or

• withdrawing money from an ATM in order to pay the other person.

It doesn’t matter what the act is, as long as it clarifies or corroborates the fact that an agreement to engage in an act of prostitution has been reached. It is important to note that this act can take place before, during, or after the agreement.

Remember, When the act takes place is not important…it is enough that the act takes place.

An aggressive and well-informed attorney knows that this “act in furtherance” must be clearly stated in the formal written charge against you (the “complaint”). If it isn’t, it is a Due Process violation that may result in a dismissal of the charge.

It should finally be noted that any evidence such as

• possession of condoms,

• large amounts of money,

• possession of a “client book,” and/or

• your attire

may all be used as evidence that you are guilty of one of the above offenses. However, none of these “evidentiary” items are sufficient in and of themselves to prove that you are guilty of Penal Code 647(b) prostitution.

Penalties, Punishment, and Sentencing for Prostitution and Solicitation of Prostitution

Prostitution, solicitation, and agreeing to engage in an act of prostitution under Penal Code 647(b) PC are all misdemeanor offenses. If convicted, you face up to six months and/or up to $1,000 in fines - plus penalties and assessments that can be upwards of 200% - 400% of the base fine.

Prostitution / solicitation is a “priorable” offense, which means that the punishment necessarily increases with each subsequent offense.

If you are convicted for your second prostitution or solicitation offense, the judge can order a minimum of 45 days in a county jail.

If you are convicted of a third prostitution or solicitation offense, the judge can order a minimum of 90 days in a county jail.

In addition to these penalties, if you committed the offense (1) while using a car, and (2) within 1,000 feet of a residence, the court may

• suspend your license for up to 30 days, or

• issue you a restricted license for up to six months.

If the judge grants you a restricted license, you will be allowed to drive to and from work or school. If driving is a necessary part of your employment, a restricted license also allows you to drive within the scope of your employment. But, don't stop at the deli or the market. Doing so would be a violation of probation.

It is also important to note that if you commit one of the above offenses in Los Angeles while in your car, the government may seize and forfeit your vehicle in addition to the above penalties.

Registration as a Sex Offender under California Penal Code §290 PC

Although neither prostitution nor solicitation under Penal Code 647(b) requires automatic registration as a sex offender pursuant to California Penal Code 290 PC, the judge could order you to register as part of your sentence. As a practical matter, this provision is rarely, if ever, imposed in connection with prostitution cases.

Nevertheless…

If the judge finds that you engaged in (or solicited or agreed to engage in) an act of prostitution “as the result of sexual compulsion or for sexual gratification,” he/she can order you to register as a sex offender. Incidentally, failing to register as a sex offender under Penal Code 290 PC is a separate felony offense, which subjects you to additional criminal penalties.

You Need to Fight a Penal Code Penal Code §647(b) PC Prostitution or Solicitation Charge!

The perceived disgrace of having a prostitution / solicitation charge on your criminal record can damage your reputation, career, and family life. Because of this, it is important to consult with a California criminal defense attorney who knows the most effective ways to fight your Penal Code §647(b) PC charge.

In some cases, the facts may be such that going all the way to trial is worth the inherent risk. In other cases - most cases - a negotiated reduction is a safer alternative. The two most common prostitution charge reductions are “disturbing the peace” under Penal Code §415 PC and Penal Code §602 Trespass. While neither of these charges really has anything to do with prostitution or solicitation, they allow the agencies to collect the various fines and fees and are crimes that send a signal to other law enforcement agencies that you originally faced a prostitution charge.

Where the potentially beneficial facts exist, there are a variety of defenses that your California prostitution defense attorney can present on your behalf in an effort to secure your acquittal.

Entrapment

The California legal defense of entrapment is useful since a large number of prostitution / solicitation arrests are made using undercover “decoy” officers. These undercover officers typically pose as prostitutes, but sometimes they pose as “johns” as well. The officers participating in these undercover sting operations try to get suspects to agree to engage in (or to engage in) acts of prostitution.

The problem is that many of these “suspects” are otherwise law abiding citizens who were unfairly lured into the offense by savvy cops. Therefore your aggressive defense attorney will explore the California legal defense of entrapment as a possible prostitution / solicitation defense.

Lack of trustworthy evidence

This is an effective defense, especially with respect to Los Angeles prostitution / solicitation cases, where there is no recorded evidence of the “agreement” to engage in prostitution. For example, the LAPD frequently wires their undercover officers but doesn’t record the conversations between the cop and the prostitute or “john.”

This raises a red flag for jurors. If the officer was wired, why didn’t he/she record the conversation for evidence? What is the officer hiding? Is he/she lying? Exaggerating? Without hearing the conversation itself, jurors are hesitant to convict on a California Penal Code §647(b) charge.

Insufficient evidence

This defense is different from the one above. It doesn’t apply so much to the evidence that is presented, but rather, the evidence that is lacking.

“Insufficient evidence” encompasses a number of issues. Maybe the agreement was more ambiguous conversation than clear solicitation. Maybe there was an agreement to engage in sex, but no agreement that it would be for money or other consideration.

Perhaps there was no act in furtherance of the agreement to engage in sexual activity. Perhaps the solicitation was only a joke and there was no actual “specific intent” to engage in sexual intercourse or any other lewd act.

Mistake

One who does NOT specifically intend to engage in a sex act, CANNOT be convicted of this offense. Period.

This means that if you reply to a “call girl” or “escort” service ad, intending only to secure a date or companion, you can’t be convicted of a prostitution / solicitation offense.

Similarly, just because you were found in a place known for prostitution (a certain intersection, or in a certain “massage” parlor, for example) doesn’t mean you were actively involved in prostitution / solicitation.

Other Prostitution-Related Offenses

The "(a)" Count: Penal Code §647(a) lewd conduct in public

Penal Code §647(a) lewd conduct in public is commonly charged in connection with a prostitution charge if the prostitution act takes place in a public place.

For example, police agents may set up a surveillance post to ‘watch’ a known prostitute. As soon as the police see a 'John’ make contact with the prostitute, they follow the suspects, usually to a dark street or parking lot away from others. Once they engage in an act of prostitution (typically in the locked car), the police approach and arrest both parties for 647(a) and 647(b).

However, a skilled prostitution defense attorney knows that, since the police are only watching from a distance, they don’t know exactly what conversation took place between the parties. As a result, it’s often very difficult for the prostitution charge to stick, unless either of the parties (which is usually the customer) admits to the agreement. REMAIN SILENT!

If you stay quiet and invoke your right to remain silent, you will usually only get charged with 647(a) lewd conduct in public.

Lewd conduct in public is not only a less serious offense…it isn’t priorable like a prostitution charge…but it’s also difficult to prove when it takes place according to the above scenario. This is because a lewd conduct charge requires the prosecutor to prove that your conduct took place in a public area where you knew or reasonably should have known that someone who may be offended by the conduct was present.

Penal Code §314, indecent exposure in California

Penal Code §314, California indecent exposure laws prohibits “exposing” your genitals in public. While it may seem that an act of prostitution could additionally trigger this charge, this typically wouldn’t be the case.

In order to be convicted of indecent exposure, you must intend publicly to direct attention to your genitals. Since many prostitution cases take place in private cars or other remote, secluded areas, these types of cases do not justify this charge.

California Penal Code sections §266h and §266i PC pimping and pandering

Penal Code sections §266h and §266i PC California's pimping and pandering laws were enacted to discourage the expansion of prostitution. Although they are two separate laws, they both prohibit conduct that revolves around prostitution.

Penal Code §266h PC essentially bans collecting all or part of a prostitute's pay. You violate Penal Code §266i PC when you arrange or "make available" another person for the purpose of prostitution.

Both crimes are felonies, subjecting an offender to three, four, or six years in the California state prison.

California Penal Code §261 rape

California Penal Code §261 rape is defined as nonconsensual sexual intercourse. While it may seem like this charge therefore wouldn’t apply in a situation where there is an “agreement” to engage in an act of prostitution, it still could.

Even though sexual intercourse may be consensual in the beginning, if at any point it’s not, the forced act could be classified as rape. If, for example, the customer is being too rough with the prostitute, and she asks him to stop, and he refuses to, he could face liability for prostitution and Penal Code §261 rape.

Terms Defined

“Prostitution” means engaging in sexual intercourse or any lewd act with another person in exchange for money or other consideration.

A “lewd” act is defined as any act that involves touching the genitals, buttocks, or female breast of either person by another person that is done with the specific intent to arouse or gratify sexually.

“Willfully” means deliberately or on purpose. It does not require an intent to break the law.

“Soliciting” means to lure; to try to induce or elicit.

Legal References:

California Penal Code 647 -- Disorderly conduct. (“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.”)

The Law Offices of David J. Givot can fight your case in all of California. We have experience in Los Angeles, Beverly Hills, Glendale, Long Beach, Pasadena, Pomona, Torrance, Van Nuys, West Covina, Downey, Bellflower, Norwalk, Westminster, Fullerton, Whittier, and beyond. We represent clients accused of prostitution and solicitation throughout California.

Prostitution in the United States. (“In the 19th century, parlor house brothels catered to upper class clientele, while bawdy houses catered to the lower class. At concert saloons, men could eat, listen to music, watch a fight, or pay women for sex. Over 200 brothels existed in lower Manhattan. Prostitution was illegal under the vagrancy laws, but was not well-enforced by police and city officials, who were bribed by brothel owners and madams. Attempts of regulate prostitution were struck down on grounds that it is again the public good. Seventy-five percent of New York men had some type of sexually transmitted disease.”) Taken from “XY factor, Prostitution: Sex in the City (History Channel).

California Penal Code 647 Historical and Statutory Notes: (“As added in 1961, the section read: “Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: “(b) Who solicits or who engages in any act of prostitution.”)

See same. (“The 1986 amendment by Stats.1986, c. 1276, rewrote subd. (b) [of California Penal Code 647 regarding prostitution / solicitation]…”)

Kim v. Superior Court (2006) 136 Cal.App.4th 937, 941. (“The provision expanding section 647(b) to permit conviction for an agreement to engage in an act of prostitution was added by the Statutes of 1986, chapter 1276, section 1, pages 4457-4459 (Sen. Bill No. 2169). Senator David Roberti sponsored the bill on behalf of the City of Los Angeles. (Assem. Com. on Pub. Safety, Analysis on Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as amended Aug. 11, 1986, p. 1.) At the time of the bill's introduction, unlike 24 other states with prohibitions against agreements to engage in lewd acts for money, California law barred only prostitution and its solicitation. ( Ibid.) According to the proponent, “most prostitutes kn[e]w that if they wait[ed] until a customer mention[ed] money or sex, and then simply approve[d] the conditions, they [could not] be found guilty of soliciting prostitution. Consequently, street-wise prostitutes rarely ‘solicit [ed]’ prostitution, and undercover officers posing as customers often [were] unable to make arrests for prostitution.” ( Ibid.) The legislation was, therefore, “intended to give police another enforcement tool” on “prostitution laws that [were] difficult to enforce.” ( Ibid.)”)

See same at 942. (“Senate Bill 1276 initially prohibited only the agreement to engage in an act of prostitution. (Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as introduced Feb. 20, 1986.) To minimize false arrests, entrapment and use of the entrapment defense, however, the bill was amended prior to passage to include the language requiring an act in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. (Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as amended Aug. 11, 1986; Sen Com. on Judiciary, Analysis on Sen. Bill. 2169 (1985-1986 Reg. Sess.) as introduced Feb. 20, 1986, pp. 4-5; Assem. Com. on Pub. Safety, Analysis on Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as introduced June 30, 1986, pp. 2-3; Assem. Com. on Pub. Safety, Analysis on Sen. Bill No. 2169 (1985-1986 Reg. Sess.) as amended Aug. 11, 1986, pp. 3-4.)”)

California Penal Code 266h -- Pimping and pimping a minor; punishment. (“(a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. (b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: (1) If the person engaged in prostitution is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.”)

See also Penal Code 266i -- Pandering and pandering with a minor; punishment. (“(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: (1) Procures another person for the purpose of prostitution. (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute. (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. (b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows: (1) If the other person is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.”)

California Jury Instructions – criminal. CALJIC 16.420 – Prostitution. (“In order to prove this crime, each of the following elements must be proved: [1] A person engaged in an act of prostitution; and [2] The person did so willfully.]”)

See same. (““Prostitution” is engaging in [sexual intercourse] [or] [any lewd act between persons] for money or other consideration. [“Lewd act,” as used in this instruction, means any act which involves the touching of the genitals, buttocks, or female breast of one person by any part of the body of another person and is done with the intent to sexually arouse or gratify.]”)

CALJIC 1.20 -- Wilfully defined. (“The word “willfully” when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word “willfully” does not require any intent to violate the law, or to injure another, or to acquire any advantage.”)

CALJIC 16.420 -- Prostitution. (“[1] A person solicited another person to engage in any act of prostitution; and [2] That person did so with the specific intent to engage in an act of prostitution.]”)

Leffel v. Municipal Court (1976) 54 Cal.App.3d 569, 575. (“The words, ‘every person . . . who solicits . . . any act of prostitution’, are clear and unambiguous. ‘Every’, means ‘each and all within the range of contemplated possibilities.’ (Webster's New Internat. Dict. (3d ed. 1961) Unabridged, p. 788.) ‘Solicit,’ means, ‘to . . . entreat or importune . . .: to approach with a request or plea.’ (Supra, at p. 2169.) ‘Prostitution’, means, ‘the act or practice of indulging in promiscuous sexual relations esp. for payment.’ (Supra, at p. 1822.) Thus, the ordinary meaning of the statute is that All persons, customers as well as prostitutes, who solicit an act of prostitution are guilty of disorderly conduct.”)

People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 345. (“‘Solicit’ was defined in a related context-soliciting for a prostitute, i.e., pimping (Pen.Code, s 266h)-in People v. Phillips (1945) 70 Cal.App.2d 449, 160 P.2d 872. “To tempt (a person); to lure on, esp. into evil, . . . to bring about, forth, on, etc., by gentle or natural operations; to seek to induce or elicit; . . .(‘) (Webster's New International Dictionary (2d ed.) (.)) ‘To appeal to (for something); to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain. . . .”)

In re White (1979) 97 Cal.App.3d 141, 147. (“Mere presence at a particular place, without more, does not amount to solicitation. Nor, without more, is “ ‘waving to a passing vehicle, nodding to a passing stranger, or standing on a street corner in a miniskirt’ ” (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 346, 138 Cal.Rptr. 66, 69, 562 P.2d 1315, 1318). There are simply innumerable situations in which a probationer could be in the map area which are unrelated to prostitution. The condition relates to conduct which is not criminal. Many perfectly legal activities are covered by this condition which have no relationship whatsoever to soliciting…”)

People v. Love (1980) 111 Cal.App.3d Supp. 1, 15. (“By contrast, the trial court's instruction that the specific intent required was “to communicate to another an offer of sex for money or other consideration” would make the crime of solicitation a general intent crime. Under the Hood, definition of the act would be accomplished and completed as soon as the words of solicitation were spoken. The “communication” of the offer is only one element of the crime and the trial court's definition thus leaves out an essential element of the offense. A defendant is not guilty of the offense unless he or she seriously intends to carry through by performing an act of prostitution. A mere speaking of the words of solicitation is not enough for conviction of this offense.”)

People v. Saephanh (2000) 80 Cal.App.4th 451, 459. (“Uncommunicated soliciting messages do not expose others to inducements to commit crimes. Nor is there a likelihood that an uncommunicated message would result in the commission of crimes. Thus, letters posted but not delivered do not give rise to the dangers from which section 653f seeks to protect society. However, messages urging commission of a crime which are received expose individuals to invitation to crime and create a risk of criminal activity. Criminalizing completed solicitations furthers the policies of protecting individuals from exposure to inducements to commit crimes and preventing commission of the crimes solicited. Thus, a conviction for a violation of section 653f requires proof that the person solicited received the soliciting communication. One cannot “solicit another” without a completed communication. The communication is only completed when it is received by its intended recipient.”)

California Penal Code 664 -- Attempts; punishment. (“Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (b) If the crime attempted is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (c) If the offense so attempted is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted.” This includes acts of California attempted prostitution / solicitation.)

CALJIC 16.420 – Prostitution. (“[1] A person agreed with another person to engage in an act of prostitution; [2] That person did so with the specific intent to engage in an act of prostitution; and [3] In addition to the agreement, the person did an act in furtherance of prostitution.]”)

California Penal Code 647(b) -- Prostitution. (“A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution.”)

In re Cheri T. (1999) 70 Cal.App.4th 1400, 1409. (“After coming to terms with Eldridge, appellant told him to drive to a dark place, presumably for the purpose of orally copulating him. We view this as an act in furtherance of the agreement to engage in an act of prostitution which occurred after the agreement was reached.”)

Kim v. Superior Court (2006) 136 Cal.App.4th 937, 945. (“Given the foregoing and bearing in mind the Legislature's concerns about false arrests and entrapment, we hold that words can be an act in furtherance. Not all statements will suffice; to constitute an act that satisfies the statutory requirement, the statements must be unambiguous and unequivocal in conveying that the agreed act of prostitution will occur and move the parties toward completion of the act.”)

In re Cheri T., endnote 11, above at 1407. (“It is not necessary to impose the additional requirement that the clarifying or corroborative act must occur after the agreement was made. For the reasons set forth above, such an interpretation would produce the absurd result of making the offense of agreeing to an act of prostitution coextensive with the previously existing crime of conspiracy. It would also create yet another potential loophole for the streetwise streetwalker, who could make his or her meaning clear, yet escape prosecution because the act by which he or she did so occurred before an agreement had been reached. That is precisely what happened here. Appellant first grabbed Eldridge's crotch to make sure he was not a police officer, then said he could touch her if he wanted to assure himself that she was not a police officer. Appellant did so to let him know she was not an undercover officer pretending to accept the solicitation for an act of prostitution but instead clearly intended to perform. Her conduct thus eliminated any ambiguities as to what she agreed to do. After that, she agreed to orally copulate Eldridge for $30. Her previous conduct and statements were in furtherance of that agreement.”)

Gaylord v. Municipal Court (1987) 196 Cal.App.3d 1348, 1350. (“Hence the issue presented in this proceeding is whether a complaint charging violation of section 647, subdivision (b) by agreeing to engage in an act of prostitution must specify an “act, beside the agreement ... in furtherance of the commission of an act of prostitution.” We conclude that a complaint must so specify and, inasmuch as the complaint in the instant case does not do so, petitioner is entitled to relief. (2) The language in section 647, subdivision (b) is clear. The provision clearly makes an “act in furtherance” an essential element of the offense of agreeing to engage in an act of prostitution; hence, absent an allegation of such an act a complaint does not advise the defendant of the charge against him and thereby denies him due process of law and fails to comply with the requirements of section 952.”)

California Penal Code 647 -- Prostitution/solicitation. (“(k) In any accusatory pleading charging a violation of subdivision (b), if the defendant has been once previously convicted of a violation of that subdivision, the previous conviction shall be charged in the accusatory pleading. If the previous conviction is found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or is admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 45 days and shall not be eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 45 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 45 days. In no event does the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 45 days in confinement in a county jail.”)

(“In any accusatory pleading charging a violation of [California Penal Code 647] subdivision (b) [prostitution/solicitation], if the defendant has been previously convicted two or more times of a violation of that subdivision, each of these previous convictions shall be charged in the accusatory pleading. If two or more of these previous convictions are found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or are admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 90 days and shall not be eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 90 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 90 days. In no event does the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail.”)

(“In addition to any punishment prescribed by this section, a court may suspend, for not more than 30 days, the privilege of the person to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle Code for any violation of subdivision (b) that was committed within 1,000 feet of a private residence and with the use of a vehicle. In lieu of the suspension, the court may order a person's privilege to operate a motor vehicle restricted, for not more than six months, to necessary travel to and from the person's place of employment or education. If driving a motor vehicle is necessary to perform the duties of the person's employment, the court may also allow the person to drive in that person's scope of employment.”) )

Los Angeles Municipal Code 41.70 -- Nuisance vehicles – Prostitution. This code sets forth the requirements and procedures for seizing and forfeiting a car used in the commission of a prostitution offense.

California Penal Code 290.006 is part of what’s known as the “Sex Offender Registration Act.” It states that (“Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290 [such as stalking under Penal Code 646.9 PC], shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.”)

An individual failing to register as a sex offender under Penal Code 290 PC faces up to one year in county jail or up to three years in the state prison. Failing to register is a “continuing” offense, which means that each time you violate one of your duties to register, you commit a separate offense. As a result, failing to register as a sex offender can result in a substantial prison sentence.

California Penal Code 415 PC -- Fighting; noise; offensive words. (“Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”)

California Penal Code 602 Trespass defines a variety of ways that an individual commits criminal trespass. Simply put, Penal Code 602 PC trespass prohibits entering another person’s property without permission to do so. Put another way, it is an illegal intrusion that interferes with the rights of another person’s property.

California Penal Code 647 -- Disorderly Conduct. (“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.”)

Judicial Council of California Criminal Jury Instruction 1161 -- Lewd Conduct in Public (Pen. Code, § 647(a)). (“The defendant is charged [in Count ] with engaging in lewd conduct in public [in violation of Penal Code section 647(a)]. To prove that the defendant is guilty of this crime, the People must prove that: [1] The defendant willfully engaged in the touching of ((his/her) own/ [or] another person's) genitals, buttocks, or female breast; [2] The defendant did so with the intent to sexually arouse or gratify (himself/herself) or another person, or to annoy or offend another person; [3] At the time the defendant engaged in the conduct, (he/she) was in (a public place/ [or] a place open to the public [or to public view]); [4] At the time the defendant engaged in the conduct, someone else who might have been offended was present; AND [5] The defendant knew or reasonably should have known that another person who might have been offended by (his/her) conduct was present.”)

Penal Code 266h PC -- Pimping. (“("(a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. (b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: (1) If the person engaged in prostitution is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.")

See also California Penal Code 266i -- Pandering. ("(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: (1) Procures another person for the purpose of prostitution. (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute. (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. (b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows: (1) If the other person is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.")

Is It Time to Clean Up That Record?

2011-04-28T15:32:00.000-07:00

Maybe the younger version of yourself did not always make the best decisions. Now, years later, you are older, wiser, far more responsible and not as wild, but your record still shows that you have been convicted of a crime...

That fact does not make you a bad person and it should not have to follow you for the rest of your life! If you have successfully completed probation and kept out of trouble, you may be able to have the crime expunged from your record. Even if you are still on probation, you may be able to have your probation terminated early and have your record expunged.

What Does it Mean to Have Your Record Expunged?

An expungement in California state court generally refers to the process of withdrawing a guilty plea or verdict and then having the case dismissed. This criminal record clearing removes the crime from your record and permits you to deny having been convicted of a crime in most all circumstances.

Expungement cases can be complex so it is important to contact a lawyer who knows how to navigate the paperwork and procedure; from filing the initial motion to representing your cause at a hearing with the court where you were convicted of the crime.

Many people don't even know that they have the option of having their records cleaned up. There are clearly some advantages to doing so. Perhaps most importantly, you get to answer "no" on job applications, and anywhere else the issue may arise, to questions about whether you have been convicted of a crime.

For more information on cleaning up your record, contact David J. Givot online or call (310) 699-0070.

You Are NOT Going to Outsmart the Police!

2011-04-02T09:47:00.000-07:00

There's NO SUCH THING AS "OFF THE RECORD!"

I have told you not to talk to police. I shared a Law Professor's lecture to illustrate my point.

Now, I give you a lecture from a Police Officer who will tell you that I AM RIGHT!

If you have any more questions, call Attorney David Givot at (888)293-0396.

Once Again, You Have the RIGHT to Remain Silent!

2011-04-02T09:24:00.000-07:00

I have been telling you for years that you have an absolute right to remain silent.

I have been telling you that NOTHING good can come from you "answering a few questions." Nevertheless, I get calls from potential clients who say, "...the police just came by to ask some questions and I answered...next thing I know, they arrested me."

Your right to remain silent does not imply guilt, it does not look suspicious, and even if it does, what do you care? You are NEVER going to talk your way out of criminal charges, but you can always talk your way into them.

No matter what you think, when the police are asking questions, they are smarter than you; if only by virtue of the fact that they know what they are looking for and you have no idea.

It doesn't matter if it is a simple traffic stop or you are stopped walking down the road or if they come knocking on your door: DO NOT ANSWER QUESTIONS! You can tell them your real name and you can show the real identification. Other than that, you have an ABSOLUTE RIGHT to remain silent and you have an ABSOLUTE RIGHT to have an attorney present during questioning.

How do you do it? It's easy, just 10 words:

"I will not answer any questions without my attorney present."

But you don't have to take my word for it. This Law Professor makes it pretty clear.

If you have any more questions, call Attorney David Givot at (888)293-0396.

DON'T TALK TO POLICE!

Ex-Pa. chief allegedly made lewd remark during EMS training

2011-03-31T18:27:00.000-07:00

Chief had been suspended since Sept. 16, a day after he allegedly fondled a woman who had gone to the fire station to apply for a job

WESTMORELAND COUNTY, Pa. — Jeannette's former fire chief was charged with harassment for allegedly making a lewd remark to a woman during a training exercise at Jeannette Emergency Medical Services.

Westmoreland County Detectives filed the misdemeanor charge on Monday against Randy Dubich. According to the criminal complaint, Dubich was at the EMS garage for a training session Feb. 19 when he made the lewd remark. He then said, "What do you think about that?"

The incident allegedly took place just one week after Dubich returned to his job as chief. He had been suspended since Sept. 16, a day after he allegedly fondled a woman who had gone to the fire station to apply for a job.

On Nov. 12, he was charged with a misdemeanor count of indecent assault in connection with that incident. Dubich was first suspended with pay, but the day the charges were filed, his status was changed to suspension without pay.

Read Paul Paterra's whole story: HERE

Law Office of David J. Givot

TheLegalGuardian.net & TheLegalGuardian.com

Facebook murder picture horror inspires bill

2011-03-31T18:08:00.000-07:00

ALBANY -- Two years after a medical responder posted a Facebook photo of a murdered Staten Island woman, state lawmakers are pushing to beef up the penalties for such acts.

A group of Staten Island legislators, including the members of the Senate's Independent Democratic Conference, introduced bills in the Senate and Assembly on Wednesday that would make it a felony for an on-duty public servant to take a picture or video of a crime scene for private use, such as Facebook distribution.

Under current state law, the maximum penalty is a misdemeanor.

Ex-NYC medic sued for corpse photos posted on Facebook

2011-03-31T18:00:00.000-07:00

NEW YORK — The parents of a murdered woman are suing Facebook for refusing to remove photos of their daughter's strangled body posted by a paramedic.

Paramedic Mark Musarella was one of the first on the scene after Caroline Wimmer was found strangled in her apartment on Staten Island, N.Y., two years ago. She was found by her parents with a hair-dryer cord wrapped around her neck.

L.A. County Sheriff's Department to dismiss 6 deputies involved in Montebello assault

2011-03-23T08:22:00.000-07:00

The Los Angeles County Sheriff's Department has begun termination proceedings against six deputies who were part of what officials are describing as an aggressive group that may have used gang-like hand signs to identify themselves before allegedly assaulting two fellow deputies at a Christmas party last year.

Read the whole story...

L.A. County Sheriff's Department to dismiss 6 deputies involved in Montebello assault

Join the Long Beach Life Savers for a FREE Workshop

2011-03-16T19:40:00.000-07:00

The Only Way to Protect Your Rights is to Know Your Rights

On Saturday, March 26, 2011, from 9:45 to 11:30AM at Marshall Academy of the Arts in Long Beach, the Long Beach "Life Savers" will present the first in a series of free educational workshop programs designed to help regular people defend their rights, avoid scams, and protect their financial health in this down economy.

"This is not a sales pitch," says Long Beach Immigration Attorney, Alice Tadros. "There will be nothing for sale. It is just vital information that most people never get to learn."

The Long Beach "Life Savers" is a group of attorneys and professionals who have banded together to give back to the community by providing the most important commodity of all: Information. "When people know the rules that others are playing by, the game is more fair." Said Veronica Guzman, a Landlord/Tenant Attorney.

The first program will feature information and advice from Attorneys who practice Immigration, Bankruptcy, Landlord/Tenant, Estate Planning, and Criminal Defense. Plus, participants will hear from experts in dealing with the IRS, the down Real Estate market, and protection for small business owners. Julaine Wagoner of Remax College Park did not mince words: "The goal of the Long Beach "Life Savers" is simply to help people not get hurt and the more we know about how things really work, the better off we will be."

Marshall Academy of the Arts is located at 5870 E. Wardlow Road in Long Beach and doors open at 9:30AM. The event is free and open to the public. This is an information only session. No product or service will be offered or sold. For more information, contact Julaine Wagoner at (562) 234-8888 or Amy Becker (562) 489-6979.

Please help the Long Beach Life Savers protect as many people as possible by sharing this post with everyone in your network or contact sphere.

Thanks!!

Creating a Culture of Excellence in EMS

2011-02-24T20:53:00.000-08:00

By David Givot, Esq.

Sometimes, it is almost as if I don't recognize the world around me anymore... Pop stars are getting younger and younger, but showing more and more skin. The weather has become breaking news. Snowboarding is an Olympic sport and, as pointed out by General Larry Platt, everywhere I look, I see kids "...looking like a fool with their pants on the ground."

When I see the way society is changing from when I was a kid, the only conclusion to draw is that our culture is shifting. Of course, I am not surprised since our culture has been changing and evolving since the first caveman tied his tiger-cloth over his shoulder instead of around his waist.

I see similar cultural issues in EMS. I have seen and worked with EMS providers and agencies throughout the United States and I have noticed that the similarities are as distinct as the differences from place to place. The differences don't bother me too much because every area has different needs to which local EMS seems to have adapted. It is many of the similarities that concern me.

Feds settle case of Conn. EMT fired over Facebook posts

2011-02-08T19:39:00.000-08:00

WASHINGTON — Employers should think twice before trying to restrict workers from talking about their jobs on Facebook or other social media.

That's the message the government sent on Monday as it settled a closely watched lawsuit against a Connecticut ambulance company that fired an employee after she went on Facebook to criticize her boss.

Clear Your Criminal Record in California

2011-01-30T15:11:00.000-08:00

Back in the day, getting to that information was time-consuming and somewhat complicated. Today, however, thanks to the internet, your criminal record is only a few mouse clicks and keystrokes away for the whole world to see. Information companies have indexed criminal court records into vast national databases that can be searched by name and date of birth. Now, potential employers, licensing agencies, universities & graduate schools, and professional organizations can conduct a background check of your criminal record in moments.

More...

Criminal Defense is Not Always for Criminals

2011-01-19T17:13:00.000-08:00

The term "Criminal" in Criminal Defense refers to the nature of allegations, accusations, and assumptions. It does not mean that the accused is a criminal. In fact, it is very common that my clients are just regular people who have found themselves in an unfortunate, and very unusual, situation.

The following is an example of just a few recent results I have achieved for my clients.

Misdemeanor Theft (Shoplifting): Client was arrested after allegedly concealing $70 worth of merchandise and attempting to exit a warehouse store. After discussing the issues at hand with the prosecutor and painting a picture of certain mitigating circumstances, there was a small fine and the criminal case was dismissed.

Misdemeanor Drunk in Public: Client was assisting a heavily-intoxicated friend from a bar. The friend could barely stand, so client was supporting her to another friend's vehicle so she could go home and sleep it off. Rather than assisting the inebriated female, police arrested the Good Samaritan - despite the absence of any objective signs of intoxication; despite the fact that the client was neither a danger to himself nor others. Because the client had a prior DUI, the District Attorney sought to prosecute to the fullest extent of the law. Attorney Givot called their bluff and, rather than entertaining any of the misdemeanor offers extended by the DA, he set the matter for trial. When it was clear that the Defense was ready to fight and win, the criminal case was dismissed.

Felony Possession of Heroin: Client suffered a loss of consciousness while in public. Paramedics discovered a small quantity of Heroin in his pocket. At the Emergency Room, client was arrested and upon his release from the hospital he was booked for felony possession. Client was formally charged by the District Attorney and faced two years in State Prison. After careful negotiation and close work with the prosecutor, client will complete a drug treatment program and a short period of probation. When probation is complete, criminal case will be dismissed.

Felony DUI Manslaughter: Client, just 24-years-old, was out for the evening with his 26-year-old female companion. After dinner, a few drinks, and lots of laughs, the two headed toward home in client’s high-performance sports car. Although there was no evidence of reckless driving or excessive speed for the conditions, the vehicle lost control on a windy road with an uneven grade. Tragically, the car struck a tree on the passenger side and the companion was killed instantly. Client was charged with multiple felony counts and faced nearly a decade in state prison. The legal team, which included Mr. Givot and Attorney David Borsari and Attorney Veronica Guzman, worked tirelessly reviewing evidence, law, custody credits, and specific mitigating factors. The team worked with the client’s family as well as prosecutors to achieve the best possible result in a case where there could be no winner. Ultimately, the case resolved without the trauma of a trial and the client is expected to be home after serving approximately 364 days.

Misdemeanor DUI (under 21-years-old) and Possession of Alcohol by a Minor: Client was stopped by police for allegedly speeding. Police discovered an unopened beer in the center console and accused client of driving while intoxicated. Client was arrested and charged, despite the fact that the police did not perform any chemical blood/alcohol test. After exposing and discussing the inherent weaknesses of the prosecution’s case, client paid a small fine for the beer and the criminal case was dismissed.

Felony Domestic Violence: Client, a Paramedic in Southern California, found himself in a heated argument with his wife. The exchange, just one of many sparked by economic difficulties, led to yelling and, ultimately, both spouses removing themselves from the situation. Nevertheless, before separating themselves to cool off, both had called police claiming the other had assaulted them. When police arrived, client’s wife – who had scratched her own arms out of frustration – claimed the scratches were caused by client. He was arrested and booked on suspicion of felony spousal battery. Attorney Givot met with client prior to the arraignment and noted right away that client’s fingernails had been so frequently bitten for so long, that the finger tips had literally begun to grow over the nails – thus making it impossible for client to have scratched anyone. On the day of the arraignment, Attorney Givot went to both the District Attorney and the arresting Police agency to discuss the matter BEFORE any formal charges were filed. After a harried morning of running around, no criminal charges were filed.

As you can see, there are no small criminal cases...each is very important to the people involved.

If you or a loved one is facing criminal charges or has been arrested, there is no time to waste. Contact the Law Office of David J. Givot for your FREE consultation.

Court rules that 'size matters'

2011-01-12T07:28:00.000-08:00

In case looking good and feeling better is not motivation enough to hit the treadmill and pass on the double-cheeseburger, consider the case of Hegwer v. Board of Civil Service Commissioners

Historically, January is a month of resolution; save money, get out of debt, go back to school, get a better job, etc. The most common resolution — according to the talking heads on TV — is to lose weight. It's no wonder, America has become one of the fattest societies in all the world. I, too, have resolved to shed a few pounds in 2011. In fact, I will probably head back to the gym when I am finished writing this column. Probably...

In case looking good and feeling better is not motivation enough to hit the treadmill and pass on the double-cheeseburger, consider the case of Hegwer v. Board of Civil Service Commissioners.

In May 1979, Paramedic Hegwer applied for employment as a paramedic and was given a pre-employment physical examination. Based on the (Los Angeles) City Department of Personnel's entrance standards then in use, her hiring was "deferred" for mild obesity. Hegwer, whose height is roughly 5'3", was directed to return upon reducing her weight to less than 132 pounds. She was hired on May 5, 1980, weighing 130 pounds.

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Criminal Records Expunged | Services | Long Beach CA | Recycler.Com

2010-12-20T12:38:00.000-08:00

Criminal Records Expunged Services Long Beach CA Recycler.Com

Burglary in California (PC §459)

2010-10-01T12:30:00.000-07:00

Burglary is defined under California law (Penal Code §459) as "entering a structure with the intent to commit a felony (or a petty theft) once inside".

While this offense is commonly referred to as "breaking and entering," forced entry is not required. If one intends to commit a theft or felony after entering, the Burglary is [technically] complete upon passing through the threshold of the structure.

Depending on the criminal history of the defendant as well as the circumstances of the case, Burglary may be charged as a misdemeanor or a felony. Because it can be charged either way, we call it a "wobbler" and the difference is significant. As a misdemeanor, a conviction can lead to some time in county jail; as a felony, one can be sentenced to several years in State Prison.

From a defense standpoint, it is essential to remember that Burglary requires "specific intent," which means the prosecution must prove, beyond a reasonable doubt, what the defendant was "thinking" at the moment the crime was allegedly committed. As you might imagine, that can be very difficult - unless they were inside the defendant's head at that moment - though not impossible. Because it is hard to know what a defendant was "thinking" at any given moment, countless individuals are wrongly accused, arrested, and charged with Burglary.

Remember, accusations and convictions are completely different. That is why a skilled and aggressive legal counsel is a must for anyone facing Burglary allegations or charges.

Penal Code §459: How One Can Be Convicted
A Burglary (PC§459) conviction in California requires that the prosecution prove, beyond a reasonable doubt, only two things:

First: that the defendant entered a building or other specified structure or enclosure,

AND

Second: that, at the time the defendant entered, he or she had the intent to steal or commit some other felony.

One would think that a conviction should be simple given that there are only two elements to prove. However, a skilled Criminal Defense Attorney knows that there is much more to it than that.

What is a Building?
A "building" is defined as a structure designed for and having the capacity to contain people or animals, or to shelter property. The law actually identifies over twenty types of locations that may be the subject of a burglary.

For example:

• homes
• hotel rooms
• apartments
• campers
• motor homes
• shops
• stores
• offices
• warehouses
• restaurants
• cars
• boats
• airplanes
• railroad cars
• barns
• stables

What is Entry?
"Entering" a structure is not as obvious as just walking through a door or crawling through a window. For purposes of California burglary law, one "enters" a building or structure:

1. When any part of the defendant's body crosses the outer limits of that location, or

2. When any object under the defendant's control crosses those limits.

Look at it like this: when Goldilocks entered the Bear's home by walking through the door, she entered. If she had the intent to take food when she did, the burglary was complete the moment she crossed the threshold. Even if she changed her mind and walked out empty-handed. That is simple.

However, what if she simply reached in through the already-open kitchen window? Yes, that is enough for entry. Had she reached in intending to take the pie that was cooling on the counter, the burglary would be complete.

Let's say she used a fishing pole to lift the pie up and through the window and that no part of her body passed through and into the house...that is enough for entry. The fishing pole entered under her control. That's all it takes.

Proving Intent
This is where the defense gets interesting. The prosecution must prove, beyond a reasonable doubt, that the defendant intended to steal something or commit a felony at the time he or she entered the location. That is, they must prove “what the defendant was thinking” at the time of entry.

Sometimes Intent is Obvious: If it is the middle of the night and the defendant enters wearing a ski mask, carrying a crowbar and a loot bag, and doesn’t otherwise belong there, proving intent is not such a stretch.

Sometimes Intent is Not Obvious: On the other hand, what if the defendant exits a market without paying for the bottle of olive oil tucked away in his or her jacket? It could be nearly impossible to “prove” that the defendant intended to steal when he or she entered the store.

Theft or Felony and Only Theft or Felony
Even if the defendant never actually takes anything or commits the intended felony, the burglary is complete the moment of entry. But, what if the defendant enters a structure intending to commit a misdemeanor?

Let’s say the defendant entered the structure – without permission – for the sole purpose of slapping the occupant across the face (because he cheated on her). Hitting someone is a battery and that is a crime, but simple battery is not a felony so no burglary.

Other Burglary (PC§459) Offenses

Auto Burglary
An "auto burglary" requires an actual "break in" takes place when one enters a locked car with the intent to

• steal the car, or

• steal property within the car, or

• commit another felony inside the car.

Burglary via Forgery (PC §470)
Under California law, Forgery occurs when one knowingly creates, alters, or uses a written document, intending to commit a fraud.

If the defendant enters a banking institution or check-cashing store intending to cash someone else’s check with a signature that the defendant forged, he or she could be charged for both the forgery and the burglary – because the defendant intended to commit the forgery when he or she entered. By the same token, if the defendant enters a business intending to pay for a purchase with a stolen credit card, a burglary charge could be just the tip of the iceberg.

Theft is Theft
California’s Burglary statute specifically refers to both grand theft and petty theft.
Grand Theft (PC §487) refers to

• stolen goods or services valued above $400,

• stolen cars (grand theft auto), or firearms, regardless of their value, and

• property stolen directly from another’s person.

Petty Theft (PC §484) refers to
• stolen goods or services valued at or below $400.

Burglary via Embezzlement
Embezzlement in California happens when the defendant steals property that has been entrusted to him or her. Most commonly we see embezzlement where an employee steals from his or her employer. Where the prosecution can prove that the employee entered the building with the intent to embezzle (steal), burglary charges can also be charged.

Burglary and Robbery are Different, but Can be Related
Robbery (PC §211) is simply as the taking of another’s property from his or her person or immediate presence, accomplished by force or fear.

The individual who enters a structure with the intent to use force, intimidation, or fear to obtain property from a person on the premises, the burglary is complete. If that same individual carries out the intended crime, he or she will also face robbery charges and probably several others.

First Degree Burglary vs. Second Degree Burglary
California separates burglary into two categories -- first degree burglary and second degree burglary (PC §460)

First Degree Burglary, also known as residential burglary, occurs when the defendant commits a burglary on any inhabited dwelling and is the more serious of the two types. A dwelling is "inhabited" if it is used for dwelling purposes, regardless of whether it is currently occupied. First degree burglary is always a felony.

Second Degree Burglary, a.k.a. commercial burglary, is any burglary that isn't first degree. Shoplifting (PC §484) is the most common example. Second degree burglary is a "wobbler," which means it may be prosecuted as a felony or as a misdemeanor.

Strike Three, You’re Out
A first degree residential burglary conviction, it will count as a California serious felony under PC §1192.7(c). If there was a person in the residence or other structure at the time of entry, the burglary will count as a violent felony. In either of these situations, the conviction will count as a strike under California’s Three Strikes Law, which could ultimately result in lifetime imprisonment.

Defending PC §459 Burglary
Make no mistake, penalties for burglary in California a strict. However, a skilled attorney knows there are a variety of defenses that may be available.

Attack the Intent
Without intent there can be no burglary. If the defendant did not intend to commit a theft or other felony upon entry, he or she simply cannot be convicted of burglary. In defending a case, a skilled attorney will know that, if the target crime never occurred, then intent becomes more difficult to prove - beyond a reasonable doubt. Likewise, if it appears that the decision to commit [a theft] was made AFTER entering the structure, then "proof of burglary beyond a reasonable doubt" becomes very, very challenging for the prosecution.

Mistake of Fact, but Not Mistake of Law
Where theft is the target offense, for example, if one enters the structure and is reasonably mistaken as to the ownership of the thing he or she intended to take back, then there is no burglary. That is a mistake of fact; the defendant was mistaken as to ownership. On the other hand, "I thought it was only burglary if it was a house," is not going to win the day. That is mistake of law and is no defense.

Consent
Consent may or may not be a viable defense, depending on the situation. Examples of when consent may act as a defense include (but are not limited to):

• a situation where the defendant owns the property, or

• a situation where the defendant is invited in and the owner knows of his or her criminal intent (such as an undercover officer inviting you in to receive stolen property). The rationale here is that the danger that burglary law seeks to protect against is absent in such a situation.

However, if the property owner is not aware of the defendant's criminal intent, Consent will not be a viable defense. For example, the defendant enters a market or department store, intending to shoplift. While he or she has permission to enter for commercial purposes, the defendant does not have permission to enter for the purpose of stealing.

Good Old Factual Innocence
Of course this is the best and most effective defense to a burglary (or any other) charge. When it comes to burglary, one can be falsely arrested or falsely accused for a myriad of reasons, such as mistaken identity or true, but misleading, evidence.

Sometimes the evidence can appear very damaging. Nevertheless, a skilled California burglary attorney knows how to argue against the evidence and present a tough legal defenses to persuade the prosecution to resolve the case or maybe even dismiss it altogether.

If you or a loved one has been accused, arrested, or charged with a burglary in Southern California, consult a skilled Criminal Defense Attorney who will take the time to fight for you personally.

For more information about burglary, or to discuss your case confidentially, contact The Law Office of David J. Givot at (310) 699-0070 or go to: www.TheLegalGuardian.net

Understanding "Disturbing the Peace" PC§415

2010-09-28T19:30:00.000-07:00

California Penal Code §415
It is true that disturbing the peace is considered a crime, however it's more commonly used as a plea bargaining tool by both the prosecution and defense. Criminal Defense Lawyers frequently maneuver for a disturbing the peace charge in order to avoid something more severe.

Penal Code §415 is what we affectionately call a "wobblet," which means that it is an offense that, where circumstances allow, prosecutors can charge as either a misdemeanor or as an infraction. The "wobblet's" big brother is the "wobbler," which is a crime that can be charged either as a misdemeanor or a felony.

When you find yourself considering how to begin fighting a "disturbing the peace" charge, consider that it is an offense which can be rather difficult for the prosecutor to prove. That is, when he or she has to prove it against a good California criminal defense attorney who is ready, willing, and able to help you fight and beat this charge.

Local Codes or State Law
Movies, Television, and Crime Novels notwithstanding, most laws regarding noise from things like loud parties, construction at off hours, or that ridiculous guy blaring thumping bass from his car are normally enforced through local municipal codes rather than PC §415. Criminal "disturbing the peace" charges are commonly reserved for more severe situations and it is in those cases that a skilled Criminal Defense Attorney is essential.

How Will They Prove You Are Guilty?
There are three ways to violate California's "disturbing the peace" law.

California PC §415(1) "Unlawful Fighting"
To convict you of unlawful fighting under California "disturbing the peace law," the prosecutor must prove, beyond a reasonable doubt, that you

1. willfully (deliberately or on purpose) and unlawfully fought another person (or challenged another person to fight), and
2. that the fight [or challenge] took place in a public place.

Remember Self Defense & Defense of Others
California law allows you to reasonably defend yourself or another when 1) you reasonably believe that you or another person is about to suffer bodily harm; AND 2) you reasonably believe that force is the only way to protect against that harm; AND 3) you use no more force than is reasonably necessary to defend against the danger.

California PC §415(2) "Unreasonable Noise"
To convict you of disturbing the peace by making "unreasonable noise," the prosecution must prove, beyond a reasonable doubt, that you:

1. willfully and maliciously* caused loud and unreasonable noise,
AND
2. that noise disturbed** another person.

* Maliciously means intentionally doing a wrongful act with the unlawful intent of annoying or injuring another person.

**Disturbed another person means that the noise presented a danger of immediate violence, or was used for the purpose of disrupting lawful activities and not as a means to communicate

As you can see, these definitions and requirements are rather strict, which is why police don't regularly arrest people for "maliciously causing unreasonable noise." Folks are not generally arrested for loud music, loud cheers, loud games simply because they are not for the purpose of "annoying" other people and they do not present an immediate danger.

However, if you ignore requests by police or others who ask that you stop making loud, unreasonable noise a judge and/or jury could infer that your conduct was both willful and malicious and that you are in fact guilty.

California PC §415(3) "Fighting Words"
In order to convict you of provoking another person using "Fighting Words" the prosecution must prove, beyond a reasonable doubt, that you

1. used offensive words which were inherently likely to provoke an immediate violent reaction,
and
2. those words were directed at one or more persons and spoken in a public place.

This offense is essentially an exception to the right of free speech that is otherwise guaranteed by the First Amendment to the United States Constitution because courts have held that the types of "offensive words" that this subdivision prohibits "necessarily invite a breach of the peace." Furthermore, the courts believe that these "fighting words" are never essential to the expression of ideas and that any value they may have is significantly outweighed by society's interest in order and morality. The standard is squishy because Courts determine what qualifies as "fighting words" on a case-by-case basis. It is the context surrounding your "fighting words" that is critical. You must speak the words in a provocative manner that is sure to provoke a violent response.

How Will We Fight a PC §415 Disturbing the Peace Charge?
A skilled California Criminal Defense Attorney could present a variety of defenses to this charge. The most appropriate and viable defense depends on the facts of the situation. That is why you must select an attorney who not only knows how to fight, but how to find and exploit the weaknesses in the prosecution's case. Likewise, you need an attorney who is responsive to you as an individual as well as a client; one who is available to you when you need him.

For more information about how you can fight the charges that you or a loved one are facing, contact The Law Office of David J. Givot at (310) 699-0070 or online at http://www.thelegalguardian.net/.

Should You Light it Up?

2010-09-21T15:22:00.000-07:00

Whether you call it 'running hot' or going 'priority' or 'code-3' or anything else, driving with lights and sirens is serious, dangerous business...

It's tempting, I know. With the flip of a switch you can go from lumbering along in traffic to king of the road. Those lights and that siren; man, it's hard to resist...and let's face it, it's fun!

Whether you call it "running hot" or going "priority" or "code-3" or anything else, driving with lights and sirens is serious, dangerous business. In many cases, it is also very necessary. So how do you know when and when not to light it up?

Like with almost any other decision you make as an EMS provider, you must ask yourself: "How would I explain this in court?" The trick is to consider how the answer would sound to the person who is suing you, or a jury who knows nothing of your job — not to another EMS provider.

For example: "The patient was bleeding profusely. We were doing our best to control it, but what he really needed was a surgeon. His blood pressure was falling and his pulse was increasing, both signs of shock, so I knew the clock was ticking..." That is a solid reason to use lights and siren.

On the other hand, neither "I had to pee really bad!" nor "the patient was puking all over the ambulance!" (Read: and I didn't want to have to clean it all up) are going to convince a plaintiff or a jury that the lights were justified.

How Much Does a Cab Ride Really Cost?

2010-08-27T10:47:00.000-07:00

This life continues to show me things I just don't understand. For example, a morbidly obese cardiologist or a pulmonologist smoking at the back door of the hospital; some things that are just so counterintuitive that they defy reason. Nevertheless, we all see them on a daily basis and we either ignore it or roll our eyes and shake our heads and remark about how idiotic some people can be, especially when they know better.

Recently there was a story in the news about a family who couldn't swim but had a picnic on a riverfront beach...six of them drowned. While the story itself is tragic beyond comprehension, one can't help but wonder what made playing in a river a good idea to a group of non-swimmers.

The same is inexplicably true of EMS providers. As more and more paramedics, EMTs, firefighters, nurses, and police officers learn that there is an attorney committed to defending them, my own call volume is increasing with calls for help; calls that stem from situations where each one of them knew better. That is to say, I have a client...

Drunk in Public (PC §647)

2010-08-09T13:14:00.000-07:00

Public Intoxication (a.k.a. Drunk in Public) is certainly not the most serious crime law enforcement handles. However, for the defendant this charge can be very damaging if not handled quickly and carefully and, in many cases, as quietly as possible.

Employers, schools, administrative agencies, and others tend to see an arrest for public intoxication as a sign of poor judgment and a direct reflection of the defendant's decision-making ability. In reality, many Drunk in Public charges are unsubstantiated either because the defendant was not actually drunk or law enforcement failed to properly investigate. Unfortunately, once those handcuffs snap into place, the stigma is there and the fight to clear your good name begins.

If you or someone you care about are arrested for public intoxication, follow these simple rules:

1. Remain Silent
Other than to give basic identification information, like name, date of birth, and social security number, nobody in the United States can be forced to answer police questions intended to elicit an incriminating response. The police will tell you that they just want to fill in blanks on the report or they just need some answers so they can let you go. Remain silent.

Every question they ask is intended to get an answer that will help convict you.

When asked ANY questions, simply tell the officer, "I am invoking my right to remain silent and I will not answer any questions without an attorney present."

2. Remain Calm
Being arrested and going to jail sucks. However, arguing, fighting with, or challenging law enforcement will only make it worse. Like Chinese finger-cuffs, the harder you fight, the more powerful the police become. Always remember that respect will win the day. If they tell you to do ten jumping-jacks, do ten jumping-jacks. If they say stand there, sit here, face this way, you do it. And you do it quietly.

3. Contact an Attorney
At the first opportunity, contact an attorney to guide you through the rest of the criminal justice process.

At the Law Office of David J. Givot, we do more than just help you through. We will carefully and methodically examine the charges and the evidence against you. If law enforcement has not done everything necessary to convict you in front of a jury, beyond a reasonable doubt, then we will attack the charges from every available angle to achieve the best possible result. Even more importantly, we will vigilantly consider how any resolution will affect your professional, educational, and/or personal future.

2010-08-09T11:39:00.001-07:00

The Sixth Amendment of the US Constitution guarantees the right to an attorney to anyone facing criminal charges. Read more: http://ping.fm/9KHd0

2010-08-09T11:34:00.001-07:00

NIOSH report details Ga. firefighter-medic rollover LODD http://ping.fm/bOnP5

2010-08-09T11:33:00.001-07:00

Car, ambulance crash injures 8 in Md. http://ping.fm/bvlBu

So, You Can't Afford a Cab?

2010-08-07T15:49:00.000-07:00

You are out and about with some friends. You have a few drinks. You don't feel too buzzed, but you are comfortable. You drink water for an hour or so before you drive (or, more humorously, coffee) to wash away the delicate inebriation. When it's time to go, you feel fine.

As you start the car, you do another little self-assessment; you glance in the mirror, tug your eyelids - not too red - you're not buzzed at all (just a little tired) and off you go. Home is only 5 minutes away on side streets. No problem.

Moments later, the red and blue lights in your rearview mirror come as a terrifying surprise because you did not know you had a tail-light out or that your turn-signal was broken or that the light for your license plate was out, or whatever.

Suddenly your heart is pounding in an otherwise empty chest and scenarios run through your mind too quickly to contemplate. Your fingers and hands feel very weak as you roll down the window. Please let it be a cop I know...it's not, you don't really know any cops.

Asking for your license and registration becomes mere formality when he smells the faint "odor of an alcoholic beverage emitting from your breath and person." (that's how he will write it in the report.) "Have you had anything to drink tonight?"

...Tell the truth? Lie? Tell the truth? Lie?

The immediate confusion about how to answer sends you into autopilot. "Just one, much earlier." In your mind the answer is perfect; you explained the smell, but eliminated the possibility that you are under the influence... because it was just one, much earlier.

That balloon is quickly burst when he asks you to step out of the car. You quickly play the rest of the cards in your imaginary deck, before he initiates sobriety tests. Of course he is unfazed by any of the names you drop, where you work, or who you know and he is not the least bit interested in the fact that your best friend's brother's neighbor is a sergeant in a police department three states away.

Things get worse when you figure out that the sobriety tests, which are totally optional in California, do not differentiate between fear and intoxication. Before you know it, you are handcuffed, your car is being towed, and you are headed for fingerprinting, photographing, and an overnight stay with some new friends -- some, perhaps, more interested in you than others.

Oh, by the way, the chemical blood-alcohol test is 0.09, just barely above the legal limit in California. But, before you get too excited, the mathematics on a 0.09 an hour or so after the arrest equals a significantly higher level at the time of driving.

The next morning, you are released either on bail or on your own promise to appear for your court hearing. Once out, you either pay the $300-$500 to get your car out of impound or you leave it there to rack up additional $99+ per day fees. You search for lawyers on the Internet, but none answer on a Sunday (except me - I answer every day) and when you do get through you see that attorney's fees will run anywhere from $3,500 to $10,000 or more and that defense attorney's don't like payment plans.

Then, you see they have taken your driver's license and replaced it with a suspension slip/temporary license and, in California, you have only 10 days to request a hearing from the DMV to try and avoid having your license suspended beyond the absolute minimum of 30 days.

Then there is your employer. You get to tell the people who pay your salary that you are a very poor decision-maker. But you can't tell them about the case because your Lawyer told you not to discuss the case; your employer demands an explanation or you will face discipline.

Assuming there are no loopholes through which to get out from under this nightmare, you are stuck.

When all is said and done, not paying for that cab ride you couldn't afford will have cost you a night in jail, a suspended driver's license, employer discipline, a damaged reputation, and roughly $7,000 or more in fees and fines and other related expenses. Oh, and the DUI, that stays on your record in California for about ten years.

So, what was that about not being able to afford a cab? Taxi!!!

The Law Office of David J. Givot aggressively defends drivers accused of DUI. Call today for your free consultation (310) 699-0070 or go to http://www.thelegalguardian.net/

Arrest Warrant/Bench Warrant Recall

2010-06-28T17:45:00.000-07:00

For a Criminal Defense Attorney in the Los Angeles and Orange County areas, representing someone with an Arrest Warrant issued by the court can be a tricky situation.

An Arrest Warrant can be the result of a major felony while other times it is due to a past crime that may have been a misdemeanor. Still other Arrest Warrants are issued because someone did not do what they promised to do. Either way, it means that the person could face jail time for lack of compliance with some court order.

A Bench Warrant is an Arrest Warrant that is issued by a Judge after someone fails to appear in court. Law enforcement is allowed to detain the person based upon this court order to get that individual to appear in court, as per the judge’s orders.

Having a Criminal Defense Attorney in such a situation is absolutely vital, because otherwise the individual is at the mercy of the polce department holding him for the court, which could create serious problems. Plus, a warrant can lead to enhanced legal punishments, such as jail time, fines and probation.

The Law Office of David J. Givot offers more than just warrant recall expoerience. We area full service Criminal Defense Law Firm that will defend the underlying criminal accusations as well. Call today for a free consultation or go online to http://www.thelegalguardian.net/.

So, you think you are safe from a law suit?

2010-06-28T17:08:00.000-07:00

"A man accused of striking and killing an 81-year-old South Jersey man while fleeing from police in a stolen paramedic vehicle has filed a lawsuit against police."

Read that headline very, very carefully.

It says exactly what it looks like: The guy who stole the paramedic vehicle, ran from police, and killed an 81-year-old pedestrian is SUING the police.

Michael Jones, 46, claims officers from the Vineland Police Department were negligent in chasing him at speeds near 100 mph...more

Now, tell me again how safe YOU are from a lawsuit.

The Law Office of David J. Givot aggressively defends EMS providers. Call today for your free consultation (310) 699-0070 or go to http://www.thelegalguardian.net/

Always Lawyer Up!

2010-06-14T11:51:00.000-07:00

The Sixth Amendment Right to Counsel Clause

"In all criminal proceedings, the accused shall enjoy the right…to have the assistance of counsel for his defense."

The Sixth Amendment right to counsel is a most critical component of the Bill of Rights because, when you are accused, it provides you with a lawyer; someone who is trained and practiced in the legal process and can provide a safeguard against violations of your other rights and protections.

While it seems like a right we have enjoyed forever, it was only in 1963 that the Supreme Court held that states must provide a lawyer for all felony suspects who may otherwise be unable to afford one.

Today, all person charged with a serious crime, misdemeanor or felony, in the United States enjoy the assistance of a defense attorney regardless of economic status.

In California, county-employed public defenders represent clients who cannot afford their own attorneys, and contrary to popular belief, achieve roughly equal outcomes for their clients compared to privately-hired lawyers. Though system overload and limited resources prevent most public defenders from offering each client the extensive personal service and attention available through privately retained counsel.

It is understandable that many Americans, particularly young people, have become cynical about police practices and our legal system. It is quite common to lose hope when arrested and to become angry at the officer or the law he is enforcing. However, it is absolutely essential to remember that our legal system does provide rights for the accused.

If you're arrested, WAIT FOR LEGAL ADVICE BEFORE ATTEMPTING TO DISCUSS A CRIMINAL CHARGE WITH POLICE.

And Never rely on police to inform you of your right to remain silent and see a lawyer.

Say the Magic Words!
Tell the police: "I'm going to remain silent. I would like to see a lawyer." If police persist in questioning you, repeat the magic words and every time they try to talk to you, repeat the magic words until your lawyer arrives.

For more on this and other criminal defense issues in California, visit www.TheLegalGuardian.net or call The Law Office of David J. Givot at (888) 293-0396.

Take Five

2010-06-14T11:25:00.000-07:00

The Fifth Amendment Self-incrimination Clause

"...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."

The right against self-incrimination is not an American construct. In fact, it can be traced to common law dating back to biblical times.

The right against self-incrimination is but one of many found in the Fifth Amendment, yet it seems the most widely known (even if under -utilized). It is, for sure, the clause that has the most profound effect upon the conduct of law-enforcement officers as they investigate crimes. Perhaps that is why the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court's ruling in Miranda v. Arizona.

Today the Supreme Court requires that police inform all criminal suspects of their right to remain silent prior to custodial interrogation - that means that if you reasonably believe you are not free to leave, then the police must inform you of your right to remain silent before they ask any questions indented to incriminate you lest anything you say and anything derived from it become inadmissible.

Although your right to remain silent exists regardless of whether you are under arrest, the requirement that you be informed of the right extends from the point of arrest throughout the suspect's involvement in the criminal justice system.

Many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, however studies have shown that conviction rates have not changed significantly since the Court first required police to inform arrestees of their right against self-incrimination.

When you find yourself facing police questioning, whether you are in custody or just curbside, remember your right to remain silent and use it and do not allow yourself to get sucked into the criminal justice system without a lawyer.

For more on this and other criminal defense issues in California, visit http://www.thelegalguardian.net/ or call The Law Office of David J. Givot at (888) 293-0396.

New Case Results

2010-06-12T10:30:00.000-07:00

Felony Possession/Transportation of Ecstasy: Orange County, CA

Client and passenger were stopped by police for a broken tail light. The officer smelled the odor of marijuana coming from the car and exited the driver, my client, from the vehicle.

As the officer was dealing with my client, the passenger, who had a large quantity of ecstasy pills in his backpack, stashed those pills behind the seat of my client's car. With nothing to hide and no knowledge of the pills, my client consented to a search of the car by police and the ecstasy was discovered.

The passenger told police that he knew nothing of the pills. My client was arrested and released. Nearly a year later, my client received a notice in the mail saying that he was facing multiple felony charges. He contacted me wondering whether he needed a lawyer.

I performed a thorough investigation, I discovered that six weeks after the initial traffic stop, the passenger was arrested for selling the identical pills to an undercover officer at a rave in another county.

After persistent negotiation, along with subpoenaed police records from the other county and a lot of legwork, all of the felony charges were dismissed.

Now, after the client jumps a few more hoops, the entire case will be dismissed and the arrest record destroyed.

Attempted Murder: San Joaquin County, CA

Client, on felony probation for burglary, was arrested & accused of shooting into an occupied dwelling and held without bail.

We swiftly employed the services of a private investigator to speak with witnesses. The private investigator quickly procured a video-recorded sworn statement from the witness/victim who confirmed that my client was not involved.

When that fact was brought to the attention of law enforcement, they responded by filing a probation violation "in lieu of" attempted murder prosecution in an effort to avoid a trial by jury and the "beyond a reasonable doubt" standard.

After additional negotiation and examination of evidence, my client was sentenced to 180 days in local jail for possessing ammunition in violation of his felony probation. He will be home in less than 3 months.

Misdemeanor Shoplifting: Los Angeles County, CA

Client, just 22 years old and an honors student & scholarship athlete at a local university, was just weeks away from graduating with a degree in criminal justice and an eye toward a future in law enforcement when she allegedly stole some jewelry from a local department store.

When she called me, her entire future was on the line; a conviction would surely destroy all hopes of the career she worked so hard to pursue.

After comprehensive investigation into both the incident and the client's background, the case was resolved and the criminal charges were dismissed.

Misdemeanor Obstructing Police Officer: Orange County, CA

Client, an off-duty paramedic, was out for an evening in Newport Beach with her husband and brother-in-law. The brother-in-law was involved in an altercation inside a bar and the police were called.

The brother-in-law and husband were detained by police for questioning while my client waited patiently several feet away.

Sometime later, an additional officer arrived and directed my client to move along. She explained that she was with her husband and they were far from their home, but the officer did not care and told her to leave the area. She again explained that she had nowhere to go and no way to get there without her husband. The officer became aggressive and abusive telling to leave lest she be arrested. When she asked him where she was supposed to go, he arrested her and took her to jail.

I took the case and worked closely on a resolution with the DA. I collected and presented evidence of my client's character, professionalism, and ongoing career-oriented education to show that this was most likely a case of a police officer abusing his authority.

We jumped through a few hoops, however at the end, the case was completely dismissed.

An Open Commencement Address for Every New Paramedic

2010-06-09T17:58:00.000-07:00

As graduation season is once again upon us, I offer the following words as if I were to address your graduating class personally.

The last time I addressed a paramedic school graduating class was my own… twenty-one years ago, almost to the day. On that day, I read a poem. I don’t remember the poem… I don’t know what it was about or who wrote it… it was just what the staff told me to read. I would have given the valedictorian speech, but I missed it by a tenth of a percent. I’m not bitter… I’m just saying that by a tenth of a percent Josh Binder gave the valedictorian speech and I read some crappy poem.

Today, though, is a much different day, for all of us. Today, instead of reading a poem that somebody else wrote, I get to tell you how it really is; from real experience with real people and real blood. I get to tell you what I know to be true about being a paramedic.

When I say that I believe "paramedic" is the single most significant job there is, I'm not just blowing sunshine up your collective rectums because this is a paramedic school graduation; and I'm not saying it because I spent most of my adult life working as a paramedic; and I'm not saying it because defending Paramedics and EMS providers is the cornerstone of my legal defense practice and some of you look like potential clients.

I say that "paramedic" is the most significant job there is because I know it's true. Think about this: Unlike even other EMS providers, it is the paramedic who willingly puts himself or herself smack in the middle of tragedy. It is the paramedic who willingly seeks out life's worst moments and brings hope and comfort. It is the paramedic who willingly faces the absolute worst that human kind has to offer and takes control with a level head, a firm voice, and gentle hands.

But, more than all that, it is the paramedic - and nobody else - who goes to work every morning, takes out their license to practice, slams it on the table and says: "I dare you, world; I dare you to take this away from me today. I dare you to take my livelihood, my possessions, and even my life. I dare you." Because, unlike any other profession, in EMS a simple twist of fate, a simple mistake, a simple misjudgment, can cost you everything. I've tried, but I cannot think of any other profession where that is true. There are jobs that are singularly more difficult. There are jobs that are singularly more dangerous. But there is no other profession that is more significant for those reasons and many more.

To add a little perspective, I remember lying awake some nights in quarters thinking to myself: "Wow, if I called 911 right now, I would get...me. That's it. I'm it." For all intents and purposes, that was true. There is no 911 for 911 to call: You are it. For that reason alone, most people cannot do this job. Most people are not willing to take the kind of risks that you will take every minute that you hold a paramedic license.

Notice, I did not say "every minute that you are working," I said every minute that you hold a paramedic license. Because your status as a licensed paramedic, what is expected of you, is not limited to who you are and what you do on duty. As an attorney who defends paramedics against actions taken by the California State EMS Authority, I am here to tell you, the State cares very much who you are and what you do all the time. As far as the State is concerned, who you are and what you do away from the job can have just as detrimental an impact on your license -- and you career -- as when you are working.

Again, most normal people are simply not willing to be held to those kind of standards... but you are -- and you'd better be.

Experience has shown me that there are only three kinds of paramedics. There are the naturals; the ones for whom it is effortless... guys like Victor Oseguera, Paul Cooper, Kevin Murphy, or Mr. "tenth-of-a-percent" Josh Binder...these guys have it flowing through their veins. Then there are the ones who work very hard to be the best they can be; they read everything they can, they do twice the amount of CE they need to; the ones who bust their butts to make it look easy because being good is that important. That was me. (Probably why I only got to read a poem). And then there are the rest. The ones who slipped through the cracks. The ones who view being a paramedic as just another part of the job. The ones who reach limply for the bare minimum. The ones who, when you know they are working, you stay out of their first-in.

Which one are you? Each of you knows the answer already and I hope my words here today will solidify what you need to do with that answer.

Standing here now...as a lawyer...it seems surreal that it has been 21 years since the Spring of 1989 when I did my internship at the old LA City 66's at Florence and Western.

I clearly remember that my preceptors, Kelly McKee and Mike Samudio, spent a lot of time making sure I knew my policies and procedures...and my drug dosages. In fact, Kelly carried with him a toy squeaky hammer and gummy-bears. When we would meet up with other crews he would show off what I knew by asking me difficult questions; if I answered correctly, I got a gummy-bear. If I was wrong, he would hit me in the head with the squeaky hammer.

Kelly and Mike showed me that as serious as this job is, it can also be fun; that, more than anything, the job is about people...people who depend on and deserve the best we have to offer...every time, no matter what.

Of course, I also learned that the right amount of armor-all makes it impossible to stay in one place on the bench seat.

That was two decades ago. I was 20-years-old and ready to save the world. And back then, I believed I could. And I believed I would.

Now, looking back, on those two decades, I believe I did. If only for one family, though I know it was many, many more, I did change the world. And now it’s your turn.

The question now is… "How will you change the world?"

Who will you be?
Will your commitment and your effort allow an elderly couple to enjoy just one more anniversary? Or will your complacency and disinterest cause a grieving widow to wake up alone for the first time in 50 years?

Will your knowledge and skill remind you that a stomach ache is not always a stomach ace? Or will a culture of burn-out and malaise allow you to believe that a drunk is always a drunk.

Will your passion lead you to find or create innovative solutions to problems old and new? Or will just enough, be enough?

Today is the day, now is the moment to ask yourself, not only what kind of Paramedic you want to be or will be… but how will you change the world. Because, for Paramedics, changing the world is not some ethereal or esoteric notion, it is what you will do every single day.

In fact, right now, someone somewhere is going about their regular daily life. They are not thinking of you any more than you are thinking about them. But they are out there; sitting in traffic, buying groceries, having a late lunch with an old friend, planning a wedding, making a baby, walking between classes, or just lounging by a pool somewhere having a drink. Wherever they are, they are just doing their thing.

They are happy and relaxed because they don’t know that one day next week, next month, or maybe next year their entire existence is going to be hanging by a thread; their breath may be short, their heart may be fibrillating, their limbs may be convulsing… or they may be staring helpless at the bloody, lifeless body of their child and the twisted metal that moments before was a bicycle… and there will be you. Your senses, your hands, and your decisions in that moment will be the difference between hope and hurt, life and longing, another birthday party or a child’s funeral. What you do in that moment will change the world for them and for you and that change cannot and will not be undone.

So, I ask you: Who will you be in that moment? Will you be prepared or preoccupied? Will your passion for perfection carry the day? Or will the pursuit of mediocrity be too little, too late?

As you sit there, the slate is clean; the choice is yours and I offer you this:

Being a Paramedic is the single most significant job there is; it is rich with reward and possibly the most fun you can have with shoes on... but there are no second chances; not for you and not for those who depend on you. Who will you be? How will you change the world?

For more about how I can help your agency, contact me at www.TheLegalGuardian.com and if you find yourself in legal trouble here in California, contact me at www.TheLegalGuardian.net.

Paramedic Nailed for Saving a Life...

2010-06-09T17:36:00.000-07:00

As I continue to travel the country discussing EMS/Legal issues with providers and agencies of every description, one question comes up over and over and over without fail: If the choice is life or death, is it okay to function within [our] scope of practice but outside medical control? Like most of my answers, this one begins with "Well, I have a client…"

My client attended and completed paramedic training in South Dakota. Among the skills she learned and practiced was Rapid Sequence Intubation (RSI), an aggressive treatment for the most life-threatening circumstances. She went to work in the Washington State, where she was tested again and licensed to perform RSI — a skill she was able to use in the field. She ultimately moved with her husband to Riverside County, California, where she worked as a paramedic onboard a rescue ambulance and built an impeccable reputation for quality care and compassion.

During a particularly devastating wildfire season, it seemed as if most of Southern California was burning. With local resources tapped, firefighting agencies from throughout the western United States converged on the area to either fight on the frontlines or backfill fire stations in outlying communities. Such was the case of a paramedic engine company from Richland, Washington; the same community where my client had worked – and performed RSI. The Richland crew was stationed to cover in the same Riverside County jurisdiction as my client.

As fate would have it, an off-duty fire captain from the very station in which the Washington crew was at the ready, was involved in a roll-over vehicle accident and critically injured. Within minutes, a local engine company — the Richland paramedic-engine company, and my client in her rescue ambulance, were on scene.

They found the fire captain unconscious and unresponsive, with decorticate posturing and respirations in the single digits with minimal tidal volume. The patient's clenched jaw and vomiting made airway management virtually impossible. The Richland crew, operating on mutual aid protocols which allow them to function as if they were home, quickly determined that RSI was indicated. Although RSI is not within the California or Riverside County paramedic scope of practice, everyone on scene concurred that RSI was indicated and an available option for the Washington paramedics.

One of the two Richland paramedics quickly attended to the intubation, while the other saw to the RSI drugs, Lidocaine, Etomidate, and Succinylcholine. Amid the chaos and added tension of the scene, the second Richland paramedic called out for some assistance from the local paramedics who hastily declined for lack of experience, training, or authorization to perform RSI...except my client.

My client, without hesitation, offered to put her experience, training, and out-of-state, though current, licensure to work toward saving the life of the fire captain — who is also her co-worker and friend.

In a flash, my client pushed two of the RSI drugs, the Richland paramedic quickly followed with the third, and the ET tube was placed, secured, and the patient rapidly transported to the trauma center.

The Backlash
The patient made a 100 percent recovery and is back to work; however that is not the most dramatic outcome of the call. My client spent most of the next year dealing with the backlash from the agency, the hospital, the local EMS authority, and the State of California. There were investigations, reviews, incident reports, interviews, and intra-agency remediation of the most absurd nature. After all that, she spent yet another year fighting the revocation of her paramedic license by the State EMS Authority.

Ultimately, we brought the matter before an Administrative Law Judge for a hearing that lasted two days. While the story of the hearing is complicated and entertaining, it is too long to discuss here. Simply put, one of the pivotal issues was whether she acted unreasonably and with reckless disregard for California law when she assisted in the RSI.

If she was reckless and unreasonable, then she would face the maximum penalty of full license revocation. If, based on the totality of the circumstances, her conduct was reasonable and not demonstrative of her "rogue medic" propensities, she faced the bare minimum of a small fine and nothing more.

I believe the turning point was when the Judge asked my client one simple question: "If you had it to do all over again, in the exact same situation, after all that you have gone through, would you do it again?" My client sobbed quietly, tears streamed down her face. Then, she took a deep breath, regained her composure and turned to the Judge. She looked him square in the eyes and said, "If I had it to do all over again? The exact set of circumstances? Yes. I would do it again. If the choice is life or death, I will always choose life."

In my closing argument I conceded that my client functioned outside medical control and beyond her California scope of practice. But, I added, she functioned within her training and experience and within her then-current Washington State licensure in a situation that left her with an impossible circumstance and a non-choice; help and save a life or withhold and watch her friend die. "This," I told the Judge, "was a no-brainer. She was faced with a life and death decision and she chose life." In contrast, the attorney for the State EMS Authority argued that my client was a rogue medic with a Wild West mentality who had no regard for the rule of law. In response to my argument, the State's attorney argued that her license should be revoked because "Paramedics are not there to determine what is or isn't a life and death situation" And, much like your reaction, all eyes in the court drew wide open and all jaws dropped. That, however, is the position of the State EMS Authority.

When it was all said and done, the Judge agreed that my client exceeded her California scope of practice, but that her conduct was neither reckless nor unreasonable. He recognized that the confluence of circumstances was a freak of fate and timing and not likely to ever happen again to anyone anywhere, much less to my client. He said that although she admitted she would do it again, the circumstances would never present themselves to make it possible to do so. With that, he ruled that a simple fine was appropriate and no further punishment necessary. Months later, with a very minor adjustment, the State agreed.

When I am asked about doing what's right versus doing what's allowed, my answer is this: For every action there are consequences, sometimes positive, sometimes negative, but always consequences. You have to sleep at night and you have to look yourself in the eye every day. If you can sleep at all, what do you dream? When you look at yourself, who do you see? Finally, ask yourself a simple question…What consequences are you prepared to face and how willing are you to face them?

If you are a California EMS Provider and you find yourself facing criminal or administrative charges, remember your right to remain silent and remember to contact TheLegalGuardian for EMS.

California Drunk Driving Laws ... Did You Know?

2010-05-13T09:04:00.000-07:00

Did You Know?
When you are charged with DUI/DWI in California, two legal processes are set into motion:

A criminal case involving the state court system
An administrative process involving the Department of Motor Vehicles

In most situations, the arresting officer will confiscate your California driver's license and issue you a 30-day temporary license, often referred to as a pink slip. You have 10 days, after this point to request a DMV hearing. If you fail to do so, you risk automatic suspension of your license.

Protect Your Rights
The arresting officer will probably ask you to take a breathalyzer test and perform field sobriety tests, such as the "walk and turn" or "put your finger on your nose" test, in order to determine your blood alcohol level.

In California, if you are 21 or older, these tests are voluntary. If you refuse, you will be arrested. But, your license will not be automatically suspended.

The officer is not required to explain your right to refuse these roadside coordination tests and will most likely not tell you of your right to refuse.

Know your rights. Protect them.

I'm Here to Help
To discuss how I can help you fight a DUI/DWI charge, contact me online or call my office locally at 310-699-0070.

http://www.thelegalguardian.net/

Case Results Update

2010-02-04T14:41:00.000-08:00

The following is a brief list of results obtained

by Criminal Defense Attorney, David J. Givot

(310) 699-0070 - www.DavidGivot.com

Please understand that every case is different and there are many factors that determine how a case will resolve. The following are a few recent case results for The Law Office of David J. Givot. These results are not a guarantee or prediction of how your specific case will result.

Third Strike Felony Providing Marijuana to a Minor: Client, just 25 days away from completing parole and in possession of a valid California Medical Marijuana Card, was arrested after an individual standing near him and among a group of others, was seen by police smoking marijuana from a pipe in public. The individual was 16-year-old.

My client was arrested after the frightened teen told police that my client had provided it through is California card, despite witness statements to the contrary. Because of his two prior strikes, the District Attorney sought 25-years to life in prison for my client.

After extensive & thorough private investigation and securing the cooperation & support of his parole officer, I was able to negotiate a settlement directly with the Judge, bypassing the DA altogether, and my client will be home in approximately 13 months.

Felony Possession of Controlled Substance & Deadly Weapon: Client was arrested during a raid on the home in which he was renting a room. Although the client was neither named in the warrant nor believed to be involved in any illegal activity, he was taken into custody and his rented room searched.

During the search, law enforcement discovered and the client was arrested for possession of a small amount of marijuana and several pills, later identified as Hydrocodone and Phenobarbital along with a rifle, a handgun, and a Billy club.

After some simple research, I was able to show the DA the blatant flaws in the Police Department's investigation. Case dismissed.

Misdemeanor Theft: Client was seen on security video concealing DVDs in his pants and exiting the store. He admitted to both store security and Police that he had stolen the DVDs. His record showed similar conduct in his passed.

He was arraigned and charged with the misdemeanor.

After negotiation with the District Attorney, the complaint was amended to include petty theft as a civil infraction and the misdemeanor was dismissed. No Jail. No Probation. No Criminal Conviction.

Misdemeanor Driving with Suspended License: Client was cited and charged with three criminal counts when he was discovered driving after his license had been suspended because of a recent DUI. After considerable negotiation with the City Attorney, two of the three charges were dismissed and the client was sentenced to unsupervised probation and NO Jail!

Felony Assault with a Deadly Weapon: Client was arrested and booked on suspicion of Assault with a Deadly Weapon after a fight in which his opponent was sent to the hospital by ambulance with serious injuries, including a severed temporal artery.

Within hours of receiving the call, I had met with the client in custody, investigated the scene of the incident, and reviewed the surveillance video - before the Police had reviewed it.

I concluded from the evidence I had gathered, that the opponent was the aggressor and that my client had a clear case of self defense. I met with the head DA, before the Police even submitted the file, and the case was summarily rejected when it arrived. Case dismissed before it was filed.

Felony Commercial Burglary: Client, a sworn peace officer, was arrested and booked on suspicion of Commercial Burglary when it was discovered that, without her knowledge, her shopping companion - now former friend - had shoplifted merchandise from a Beverly Hills department store.

Within hours of receiving the call, I had been to the store, met with the lead detective, and reviewed the surveillance video that showed no criminal conduct by my client.

The following morning, I met with the charging DA along with the detective and discussed their lack of evidence against my client.

Although her companion was arraigned. No charges filed against my client.

Felony Drug Possession: Client was charged with felony transportation & possession of marijuana for sale. After negotiating with the DA and the Judge, my client received probation for 18 months after which the charge can be reduced to a misdemeanor and then expunged. No State Prison, No Jail.

Felony Cocaine Possession: Client was charged with possession of cocaine in a vehicle. After I demanded additional evaluation of the evidence, including finger print analysis to link the drugs to my client... All charges dropped, case dismissed.

Felony Drug Possession with a Gun Enhancement: Client, a medical professional, was charged with felony possession of meth in a vehicle while also in possession of a loaded handgun. after negotiation with the DA, client received only unsupervised probation and diversion classes. No State Prison, No Jail!

Felony Identity Theft: Client was charged with multiple felony counts when it was discovered that he had used the identity of another when he was arrested and convicted for DUI. Client was facing 19 years in state prison. After filing and arguing a variety of motions, the client received 180 days of recommended work furlough followed by probation. No State Prison. No Jail.

Multiple Misdemeanor Counts: Client was charged with drug possession, receiving stolen property, false vehicle registration, and driving on a suspended license...ALL IN ONE TRAFFIC STOP! After arguing certain motions, the client received only 4 days in private jail followed by probation.

Misdemeanor Possession of Meth: Client was charged with possession of meth in a vehicle. Probation and diversion only. No Jail.

If you or a loved one has been arrested, charged, or even accused of a crime, call The Law Office of David J. Givot at (310) 699-0070 for a FREE confidential consultation or visit www.DavidGivot.com

Perception is Reality, Until it's Not

2010-01-23T13:17:00.000-08:00

Perception is Reality, Until it's Not.

by David Givot

When did it become inconvenient to discover all of the facts before casting judgment? It seems that this new world of instant information and instant gratification has mutated into a world of instant castigation. It seems the world is all too willing to believe and react to what we think we see without bothering to understand what we actually see. Consequently, by the time the dust settles and reality is revealed, the damage of that reaction is done.

Such may be the case for two FDNY Dispatchers accused of ignoring pleas for help and letting a twenty-five-year-old pregnant woman die.

Last month, Eutisha Rennix, a cashier at a bakery in downtown Brooklyn, New York, near the fire department's headquarters, developed shortness of breath. EMT/Dispatchers Jason Green and Melissa Jackson were inside the bakery at the time. That is about all we know for sure.

The rest of the story, according to various news reports and statements made by those closest to the individuals involved, is anything but clear. One alleged witness paints a picture of a woman falling dead to the floor, at the feet of the EMTs who callously ignore her and leave the store sipping coffee and [metaphorically] laughing. Another says the woman collapsed in a back room and not within the EMTs sight. Still another says the EMTs saw that she was having difficulty breathing, while yet another says that the two were only told that the woman was in the back of the bakery feeling ill. So what really happened? We don't know.

Nevertheless, not knowing what really happened that morning has not dissuaded outlets like the NY Post, CBS, and others from reporting the unknown as fact. Perhaps the most scathing and, at that moment, unsubstantiated criticism came from the Mayor himself. Shortly after the incident, with no more information than what you have read so far, Michael Bloomberg told a TV news crew: "There's no excuse whatsoever...Drop your coffee and go help somebody if they're dying. Come on." What happened to the days of standing by your employees or at least remaining neutral until the investigation is complete?

If it is true that the two could have done something other than what they did or didn't do, then shame on them and let the punishment fit the act. But, as I write and as you read, we don't know what really happened and nobody seems to care.

Well, I care. I care because two careers have been irrevocably tainted if not ruined altogether by an angry mob quick to judge but slow to verify; vilified by the City that, moments earlier trusted them with their collective lives.

If it is ultimately determined that the two were negligent or worse, then let the chips fall where they may. But until then, slow down, take a deep breath and reserve judgment. And always remember that the fingers pointing at them can just as quickly be pointed at you.

"The Legal Guardian for EMS," David Givot, appears on CNN to defend two FDNY EMTs accused of allowing a pregnant woman to die: http://www.cnn.com/video/data/2.0/video/bestoftv/2009/12/22/jvm.emt.woman.distress.cnn.html

Complacency Kills…Patients and Careers

2009-12-12T14:14:00.000-08:00

Prologue
I did my paramedic internship at Los Angeles City, Rescue 66, in the spring of 1989. You might think I am crazy, but I recall that as being one of the best times of my life. My preceptors, Mike Samudio and Kelly McKee were clinically tough, but very fair. They did what they had to do to make sure that I could do what I had to do when I had to do it.

What I remember, and appreciate, the most is that they took the time and spent the energy to make sure that I always considered and appreciated the role of a paramedic from the patient’s perspective. With them, even the twentieth patient in as many hours received the attention, respect, and care as the first. The sweet old lady with chest pain, the juiced-up gang-banger with a gunshot wound, and the homeless drunk with a bellyache since 1964 were all treated with the same attention to proper care (as patients) and proper treatment (as human beings).

As it is with many interns, about half way though my internship I became too comfortable with my preceptors and my skills. I recall one particular incident like it was yesterday. It was the middle of the night; I was tired and cranky and faced with (another) young woman who was emotionally upset over something her boyfriend had done. She was in no distress and the very thorough assessment – including an EKG – revealed nothing more than big trouble for boyfriend when he returned. Nevertheless, with the Captain, Engine Company, family members, and preceptors watching, I presented her with disposition options: First, I told her, we could take her to the hospital if she desired. Or, I continued, she could stay home with her family and see her private doctor in the morning. Had I stopped at those two options, there would be nothing about which to write. Of course, I did not. Her third choice, I presented smugly, was “…or we could take you to Disneyland. That always makes me feel better…”

I could see the words as they left my mouth and hit the air. They would not be retrieved. The damage was done. The simultaneous and confounded looks of disappointment on my preceptor’s faces said it all. I am reasonably sure that, if I had a tail, it would have instantly lowered and tucked itself between my legs.

When the dust settled, and there was a lot of dust, Kelly McKee pulled me aside and calmly gave me some of the best advice I have ever received: “Dave,” he said, “your not going to like everyone you come in contact with. Sometimes you’re going to be tired and sometimes you may not want to be there. But, as long as you are, remember this: Complacency Kills. The minute you begin to treat people differently or cut corners, someone is going to die…and it could be you.”

I have never forgotten that lesson. I have passed that wisdom on to every intern I ever precepted and tried to apply it in my daily life. Now, I pass it on to you.

I shared my story, albeit rife with sentimentality, to provide a bridge from conceptuality to tangibility; to encourage some reflection on your own career as we analyze a case where complacency did kill.

Wright v City of Los Angeles
On May 19, 1979, witnesses saw a fat man picking up Jerry Wright and hitting him up against the side of a car as Wright screamed, “Help, police, I'm being robbed.” Wright tried to get into the car, but the other man pulled him away and continued to beat him. Moments later, a man came out of an apartment across the street and hit the fat man, who fell under the car. The man then helped Wright into the car. When he started it up, it rolled backwards, and then stopped; Wright just sat there.

Moments later, two police officers arrived; one had his gun drawn and pointed at Wright and ordered him to come out of the car, but he did not comply. He remained slouched and leaning against the back of the driver's seat. Another witness urged the police not to shoot, saying that Wright could not get out of the car because he was beaten up or hurt, and that the man on the ground had done it. The officers opened the passenger door and pulled him out, half into the gutter. One of the officers poked him with a baton, but he did not move. The other officer pushed him over onto his stomach, put his hands behind him and handcuffed him. He was lying on a grass parkway, with his head leaning over the sidewalk; one of the officers kicked him between his neck and shoulders and moved his head back onto the grass.

Witnesses heard Wright loudly complaining that his head hurt, that he hurt all over and needed an ambulance. The police called for paramedics. Soon after, an ambulance with two paramedics arrived to find numerous police vehicles and officers, and the fat man lying in the street. A police officer directed one paramedic to Wright; the other attended the fat man. The paramedic did not recall being told Wright had been complaining of pain or that he hurt all over and had asked for an ambulance. He knew that there had been a fight and assumed that was why the paramedics had been called, he never asked the police why they had been called.

The paramedic approached Wright and asked him what was wrong or what had happened; Wright did not respond. He asked Wright if he was hurt and Wright said he was not hurt; he did not complain that he hurt all over. The paramedic did not ask Jerry a series of orientation questions. While the paramedic was talking to Wright, he was examining him visually to determine why they had been called to the scene. He then did what he called “…the 60-second examination…” a brief visual examination of the body to determine if there is a life-threatening situation. It was the only examination he did; he did not check a pulse or blood pressure. He did not recall if he touched Wright’s skin, although he could have done so while examining his body for visible injuries. After the 60-second examination, he told a police officer if Wright was to be booked he should probably see a doctor first; the paramedics then left.

Wright died at the scene a short time later from Sickle Cell Crisis. The paramedic was found liable and the plaintiffs were awarded millions.

Wright v. City of Los Angeles has become a landmark case for EMS providers everywhere the duty to act is at issue. Recall from my column “Are You Just Down the Street From a Lawsuit,” the Zepeda case established that staging away from certain non-secured situations did not violate the provider’s duty to act, particularly because the paramedics never initiated patient contact before the police arrived. In Wright, however, the scene was secure and the paramedic initiated patient care by approaching, asking questions, and making a substantive disposition.

When it comes to a provider’s duty to act, most every jurisdiction follows the same essential rules: The provider has a duty to act as would a reasonable provider with the same level of training and skill, in the same locality, and under the same or similar circumstances. Acting reasonably is not rocket science, yet so many providers continue to stumble around the standard, guided by what they think they know rather than what they actually know.

One of the first questions for the jury was: did the paramedic have a duty to act? Of course he did. He was summoned to the scene of an emergency to perform the duties for which he was hired; to empirically determine the patient’s condition through the use of available diagnostic tools and assessment skills. Likewise, he had a duty not to rely solely on the statements or non-statements of others, including the patient himself.

In this instance, a “reasonable” paramedic would have asked more about the circumstances which led to the response. A “reasonable” paramedic would have been motivated by the story of a fight to do a physical assessment including vital signs. A “reasonable” paramedic would have wanted to know about medical history because that is what reasonable paramedics do; like lawyers, they gather as much information as possible to get to the truth, or to at least reach an informed conclusion. A “reasonable” paramedic knows that what you see is not always what you get.

The next question for the jury was: did the paramedic breach the duty? Where one owes a duty and fails to perform, he is in breach. This was not a stretch for the jury and it will not be a stretch for you either. Chances are, unless you are absolutely clueless, you already know as you walk away from a call whether you did everything you should have – according to local training, protocols, procedures, and standards of care, not according to your psychic abilities and unquestionable experience. If you didn’t, then the possibility that you missed something, as infinitesimal as it may seem, will follow you wherever you go… at least until the statute of limitations runs out.

The last questions for the jury included: were there damages and did the paramedic’s breach of his duty cause them?

Determination of cause essentially boils down to two words: “But for…” But for the paramedic failing to do the full and complete assessment which was his duty, would Mr. Wright have died as, how, and when he did? The truth is there is no way of knowing.

On the other hand, we do know that if the paramedic had done a full and complete assessment and learned of the sickle cell disease and transported the patient to the hospital, rather than passively suggesting to the police that a doctor look at him if he is to be booked, Mr. Wright would have received advanced medical attention and his odds of survival would have improved exponentially over what he received face down in the grass.

All too often paramedics develop preconceived notions and even generate conclusions before they arrive on the scene. Sometimes that works. If you know you are going to the scene of a vehicle roll-over, it is safe to assume that a trauma center is a probable destination. Or if you are called to the scene of an overdose, person not breathing, you may reasonably forecast the use of Narcan®. Experience tells you certain things.

However, a drunk is not always a drunk. Each patient and every situation is unique, even those you have seen a thousand times. And you will never know until you have done a comprehensive and thorough assessment. Would you do a 12 lead EKG on a 34 year-old female with abdominal pain? I recall an afternoon when my partner and I did, mostly because we could. Wouldn’t you know it? She was having an MI.

As long as I live I will never understand how some providers continue to find a disadvantage to doing a full and complete assessment; how, as a matter of course, they rationalize circumstances where it’s just to burdensome to check vital signs and ask all of the necessary and appropriate questions. Perhaps it was my training, or maybe it’s just me. But it will never make sense.

Next time you find yourself on scene with “nothing,” I suggest you prove it. Because, when you forget...you will need me.

Wright v. City of Los Angeles: 219 Cal.App.3d 318, 268 Cal.Rptr. 309 Cal.App. 2 Dist.,1990.
Zepeda v. City of Los Angeles: 223 Cal.App.3d 232, 272 Cal.Rptr. 635 Cal.App. 2 Dist.,1990.
Torts-Cases and Materials: Prosser, Wade and Schwartz, 10th (2000)

Sometimes When You Lose, You Win

2009-12-11T16:11:00.000-08:00

When I was a Paramedic, some of the most difficult days involved witnessing the senseless violence and death that have become commonplace in society. I remember a man who was shot in the stomach for the rims on his car. I remember holding the lifeless body of a four-year-old who had choked to death while eating a hamburger alone in his bedroom. I remember the 18-month-old who was raped by her babysitter's boyfriend. I remember the way I felt inside when there was nothing more I could do, though I had done everything possible.

As a Criminal Defense Lawyer, the most difficult days are not too different and I had one of them last week.

My client, a 31-year-old black man with two strikes on his record and just days away from cleanly completing three years of parole, was arrested and charged with furnishing marijuana to a minor.

It seems my client was one among a group of individuals standing together in an alley behind a home. One of the individuals in the group produced and began smoking marijuana from a pipe. In the ultimate demonstration of bad timing, a police car turned into the alley and witnessed the individual smoking. Naturally, the officer commenced an investigation and called for backup.

When the officer questioned my client, he was immediate, honest, and up-front. "Do you have 'anything' on you?" the officer asked. "Yes," my client answered, "I have a little bit of weed and my California Medical Marijuana Card." He produced both for the officer and further explained his status as a parolee as required by law. In keeping with department policy, the officer cuffed my client and sat him in the patrol car.

However, when my client told the officer about the medical marijuana card, the other three individuals - mere acquaintances of my client - seized the opportunity to save their collective skins. The officer quickly identified the [the only] individual who had been seen smoking as being 16-years-old. "Where did you get the weed?" The officer asked of the boy, now fearful of what his father would do to him when he got home. Knowing that he had pulled it from his own pocket, he nervously told the officer, "he (my client) gave it to me because he has one of them cards that makes it legal." The other two chimed in with their sudden agreement, "...yeah, that dude has a card...it's legal." And that was all the officer needed.

The boy was sent home with his parents and the other two were released at the scene. My client was booked, processed, and charged with a felony. The police report and the witness statement had more holes than a block of Swiss cheese, but one thing was consistent: the witness statements all matched and were in diametric opposition to my client's story.

At the arraignment, the District Attorney made no plea offer. "This is a third strike," he told me, "we want 25 to life." While I was dumbfounded by the coldness, I was not surprised. A conviction of third striker is just what an up-and-comer needs to boost his résumé. It didn't matter. My client was factually innocent of the charges against him. I was ready to fight. Nevertheless, in the interest of full due diligence, I did ask the Judge if the Court was willing to extend an offer. And much to my surprise, the Court offered to strike the strikes and give my client the statutory minimum of three years at half time; with good time credits he would likely be out in about a year.

Graciously, the Judge gave us a week to consider the offer. My client went back to jail and I went to work. I had five work days and a weekend to carefully evaluate and determine the strength of their evidence, the strength of our evidence, and to find any other evidence that could help...or hurt.

By the end of the week my private investigator had interviewed everyone involved and even found a missing witness who had left the scene just moments before the police arrived (no, there was no connection). Although the minor told my investigator that someone other than my client handed him the marijuana, he would not fess up to the fact that my client did not even provide it.

By the end of the week I had employed - at my own expense - another Criminal Defense Attorney and a legal researcher to work with me to uncover and consider every possibility. We all worked overtime.

Was the boy an accomplice? Not within the statutory meaning. Was the boy's statement that my client did not physically hand the marijuana to him relevant? Not the way "furnishing" is defined and applied in the case law. Was the fact that my client did not know they boy, much less that he was under 18 helpful. Nope. Strict liability. What about the holes in their story... that they didn't know my client, but that he gave them free weed? What about the other stuff they said (but I cannot discuss here)? The only way to challenge it would be my client testifying at trial, where the DA would be able to ask my client about his previous felony convictions - even though they were not drug related. The jury is going to believe a two-striker over the testimony of three or four others with minimal or no records at all? Not likely. And not worth risking the rest of this man's life.

By Friday, I was exhausted as were my options. A private investigator, a legal researcher, and two attorneys had spent countless hours looking for a way to exonerate my client. To no avail.

As I drove to the jail to deliver the inevitable advice, I racked what was left of my brain. Nothing. When I got there, I looked him in the eye and broke the bad news. "We can take this all the way...and we might even win, but if we don't you are going to spend most of the rest of your life in prison... all the while knowing you could have been out in a year. I understand the principle, but sometimes when you lose, you really win." Had he wanted to go all the way, I would have taken him there and the fight would have been tough. But the risk was just too high. I advised him to accept the Judge's offer.

Driving away from the jail, I felt a burn in my gut. I just advised an innocent man to accept a year of prison. As I drove, in a last ditch effort and with really nothing to lose, I called the DA. The call was friendly and nice, but the bottom line was simply stated: "...this office never extended any offer. We want your guy for twenty-five to life on the third strike. You want me to make a better offer than the one we never made to begin with? I admire your fortitude and your client is lucky, but it's not going to happen."

As I drove back to my office, with the setting sun piercing through the clouds, I replayed everything in my head: Two-striker. Marijuana card. Group of strangers. Marijuana smoke. And I was reminded of a sound bit of advice that Warren Oates offered Roy Scheider in the movie Blue Thunder: "When you're walking on eggshells, don't hop."

When you find yourself in trouble with the law, I will fight for you with every ounce of strength I have...but I will always tell you how it really is.

The Law Office of David J. Givot

Knowing a Little Science Never Hurts

2009-12-01T19:15:00.000-08:00

What does

The Highway Safety Desk Book

say about

DUI Breath Testing Instruments?

The more you know about what "they" know, the better able you will be to understand and protect your rights when the time comes.

The National Highway Transportation Safety Administration (NHTSA) annually publishes a list of breath testing instruments rigorously examined for accuracy and approved by NHTSA for their ability to accurately determine breath alcohol concentration, and thus blood alcohol concentration. The department of health or other appropriate agency in each state reviews the NHTSA list and test results, and issues a list of devices approved for use by law enforcement agencies in that particular state. The following is an excerpt from NHTSA.

Captured Samples
Exhaled air can be categorized into essentially three types of samples: tidal breath air, reserve breath air, and alveolar breath air. Tidal breath air is air exhaled in the course of normal breathing. It is the most shallow of the three types. Reserve breath air is exhaled when the body is exerted. It is produced through deeper breathing than tidal breath air, but great volumes of air are both inhaled and exhaled with little residence in the lung. Alveolar breath air is deep lung air. Since breath testing instruments are intended to measure indirectly the concentration of alcohol in the blood, it is essential for accuracy that the breath sample captured by the instrument for analysis be representative of the air in the alveoli of the lung, because it is in the alveoli that the 2100:1 equilibrium ratio between alcohol in the breath and alcohol in the blood occurs.

Infrared Instruments
Infrared breath measuring instruments operate on the principle that each chemical compound has unique infrared energy absorption characteristics. Ethyl alcohol absorbs energy in the 3.42 micron region of the infrared spectrum. The amount of alcohol contained in a sample can be calculated by observing energy loss when a known energy is applied to the sample. In the infrared devices, infrared energy is projected through a breath sample. A photo-detector identifies a decrease in wave amplitude caused by the absorption of energy by the alcohol. The amount of energy absorbed is equal to the breath alcohol concentration. The greater the alcohol concentration, the lower the wave amplitude. A computer on the instrument determines the breath alcohol content based upon the amount of energy loss, and then applies the 2100:1 conversion ratio to provide a digital readout of the suspect's blood alcohol content.

Because infrared instruments are based upon infrared absorption spectra, which are chemically unique, they cannot be influenced by compound such as acetone, which may have some chemical characteristics in common with ethyl alcohol. In fact, some infrared instruments also provide data on the concentrations of other compounds contained in the breath sample as well as that of alcohol.

Wet Chemical Instruments
When infrared instruments are not used, law enforcement generally uses wet chemical instruments, which operate on the basis of color changes produced through the chemical reaction of ethyl alcohol with chromate salts. These devices obtain a measured volume of alveolar breath and pass that sample through a known volume and concentration of a solution of chromate salt and acid. Chromate salt is yellow. As it reacts with the alcohol in the breath sample, it is chemically altered, resulting in a lighter color. The higher the alcohol concentration, the greater the color change.

A wet chemical instrument measures the difference between the light transmittance of a standard chromate\acid solution and the light transmittance of a sample solution. The difference in transmittance measured is directly proportional to the amount of alcohol in the breath sample.
Preliminary Breath Testing Instruments

PBT instruments are portable instruments for the purpose of BAC screening as part of the pre-arrest field testing. The suspect driver blows for several seconds through a plastic or glass tube, and the PBT provides an instantaneous determination of blood alcohol content.

In most jurisdictions, the legal basis for the use of these instruments is contained in the implied consent laws. While results of a PBT generally are not admissible as evidence of DWI, they do provide officers with additional objective information to establish probable cause for arrest and further chemical testing. They also help to detect persons who may be suffering from an illness or injury such as diabetes or head injury and are in need of chemical treatment, but would otherwise be mistaken for an intoxicated person. There are essentially three types of PBTs: electro-chemical, semi-conductor, and disposable chemical.

In electro-chemical PBTs, alcohol in the breath is absorbed into a fuel cell where it is oxidized, producing electrical current. The higher the alcohol content of the breath, the greater the current output of the fuel cell. By measuring the current produced, the instrument determines the breath alcohol content, and the BAC conversion is displayed with the aid of a computer chip. In semi-conductor PBTs, alcohol increases the electrical output of the semi-conductor. By measuring the voltage output, the breath alcohol content can be determined and the BAC conversion is displayed.

Disposable chemical PBTs are glass or plastic tubes containing a measured amount of the chemical, which is reactive with alcohol. As the suspect exhales through the tube, alcohol contained in the breath reacts with the chemical contained within. The greater the breath alcohol content, the greater the chemical reaction observed.

Non-Invasive or Passive Alcohol Sensors
Passive alcohol sensors (PAS) are instruments that detect the presence of alcohol in normally expelled breath. They require no cooperation from the driver. During the roadside interview of the driver and examination of documents, the officer places the PAS within six inches of the driver's mouth. It contains a small fan which samples the ambient air for examination. An electro-chemical mechanism analyzes the air for the presence of alcohol. Some instruments are concealed within a flashlight and can be used as a passive or active detector. NHTSA studies indicate these devices are effective during sobriety checkpoints when the decision whether or not to continue breath testing must be made quickly.

When the Police Have Questions...

2009-12-01T08:10:00.000-08:00

It is natural to want to defend yourself, and this is where most people get into trouble.

Exercising your rights and looking out for your own best interest does not make you a bad person. And it does not mean you are or feel guilty about anything. Nevertheless, law enforcement is trained to make you feel like a bad person when you do seek counsel, but don't be swayed. If you know or even suspect that you a subject in a criminal investigation, it is critical that you consult legal counsel immediately. Do not talk to law enforcement officials, potential witnesses or anyone else without first speaking with an attorney - and DON'T let anyone make you believe that you MUST talk without counsel present.

When you are approached by anyone with questions about a crime or when you come home to find a detective's business card on your door with a note that says, "...please call..." remember, what you do and say right now can have a dramatic effect on the rest of your life... even if you are not involved. Catastrophic consequences are not uncommon for people who were lured into saying the wrong thing to the wrong person.

Do not speak to or trust anyone other than your defense attorney.

It's no secret that the goal of law enforcement is to build cases that can lead to a criminal conviction. Prosecutors and investigators are willing to take their time and expend tremendous resources to build a case against you. No matter what they say, their job is not to protect your rights. It is to get a conviction.

Finally, until you have been arrested, you have no Miranda Rights against self-incrimination, that is to say: Anything that you say can and will be used against you. When you voluntarily talk to law enforcement - or anyone - you can not complain that nobody read you your rights. You do not even have the right to know the charges you are facing.

If you or a loved one is involved in a criminal investigation, please don't wait. The Law Office of David J. Givot can be there to protect your rights AND still allow you to do the right thing.

Remaining Silent: It's easier Said than Done.

2009-11-19T09:39:00.000-08:00

Bad things happen to good people. That is just a fact of life. But, more often than not, good people make their bad situation worse by trying to do the right thing. Huh? Simply put, everyone knows we, in the United States, have the right to remain silent, yet the criminal justice system can make it seem very, very difficult to exercise that right.

Most of us are raised to believe that the police are here to protect us and that we should cooperate with them whenever we can. For the most part, that is true; they are and we should. But, when your reputation and integrity and freedom are on the line, there are limits. In fact, those limits are so important to American culture that they are part of the Constitution.

Police Officers with their uniforms and guns and badges and red lights and moustaches can be very intimidating. In fact, they are trained to be intimidating. They are trained to make you feel powerless against them. When they are dealing with real bad guys, that is a good thing. When they are dealing with you, the regular person who has never had a run-in with the law, it makes them look like a*holes and it makes you feel weak. But, you are NOT weak.

Information like your name, address, and date of birth is not, by itself, incriminating and not generally protected by the Fifth Amendment. On the other hand, questions about where you have been, where you are going, and what are you doing are generally protected and up to you to answer or not. If you choose not to answer, you will not probably be breaking any laws. Of course, while your rights may be preserved, you will have one frustrated and pissed-off cop. It has been my experience that the more frustrated and pissed-off the cop, the less of a sense of humor he or she will have. But, then again, freedom isn't free.

When a law enforcement officer asks something like, "where are you going?" and you respectfully and politely answer with something like, "that's not really any of your concern," which you are entitled to do, you will immediately see the officer's face turn red and you may even see smoke emitting from the ears. Then, as they say, "it's on." Using tone and vocabulary and calculated body language, they will attempt to intimidate you into giving them what they want. They may even say things like, "...how 'bout I take you to jail and let you think about your answer there?" or "...do you WANT me to give you a ticket?" The fact is, if they CAN take you to jail or give you a ticket, they are going to; you have no obligation whatsoever to make their case against you any easier. So, don't say anything. And if they do arrest you, say politely, "I want an attorney present during any questioning." Once you say that, they are PROHIBITED from asking any questions about the case for which you have been arrested.

Even then they will use passive-aggressive techniques to get you to talk. They may tell their partner something like, "...we don't really want this guy, but he won't help himself..." or "...he wants his lawyer, so don't ask him any questions...even though he would probably get out tonight if he just helped us." Stay strong. Stay quiet. Don't let them manipulate you. Whatever they say, their ultimate goal is to build their case against YOU.

"...but if I have nothing to hide, then I have nothing to worry about." Really? Is that how so many innocent people with nothing to hide get convicted by their own statements? If you have nothing to hide, that's great. Let your lawyer explain that you have nothing to hide. Law enforcement is trained to ask leading and misleading questions, to provide you the paint with which to paint yourself into a corner. Just remain silent.

When you come home and find the detective's business card on your door with a note saying they "need your help" with an investigation, call a Criminal Defense Lawyer first. Even if you are sure it has nothing to do with you. You never know what somebody said about you behind your back. You can still help with the investigation, you can still be a good guy. Just protect yourself at the same time. Bring a lawyer with you.

Finally, remaining silent means remain silent. Your cellmates are not your friends. Your friends are not your friends. When you are in custody, you have no friends. So do not talk about your case with ANYONE! Wait for your lawyer.

The Law Office of David J. Givot handles all criminal matters in all Southern California courts. If you or a loved one has been arrested, charged, or accused of a crime or are involved in a criminal investigation, call for your FREE initial consultation (310) 699-0070.

Felony & Misdemeanor...What's the Difference?

2009-11-16T12:15:00.000-08:00

Criminal violations vary from relatively minor to devastatingly violent. Nevertheless, they are all serious and can cause irrevocable damage to your livelihood and life.

Crimes are classified into levels or degrees. The classification of a crime reflects its seriousness. The actual classification of a particular offense may also vary by the jurisdiction. No matter what, if you are questioned about a crime or are accused of or arrested for a crime, you should consult an experienced attorney as early in the process as possible. A criminal defense lawyer from The Law Office of David J. Givot can explain the particular crime involved and its possible ramifications.

FELONIES

Under federal criminal law and the laws of about half of the states, a felony is a crime that is punishable by imprisonment of more than one year - in California, that means State Prison! Other states define a felony as a crime that is punishable by death or a prison sentence served in a state penitentiary. Generally speaking, the most serious crimes, such as those that are either particularly heinous, involve dangerous weapons or threaten relatively high amounts of financial damage or harm to property, are classified as felonies.

Examples of felonies include murder, treason, rape, arson, burglary and kidnapping.

For federal felonies, defendants have the right to be charged only by a grand jury. This right varies for state felonies.

Because of the seriousness of the offense and the punishment, maximum safeguards for the defendant's rights are built into the prosecution and court procedures. Indigent defendants who cannot afford to hire lawyers and are facing felony charges have the right to free state-appointed criminal defense attorneys.

In addition to social stigma, long-term consequences may include the loss of the right to vote; ineligibility for elected office or professional licenses; restrictions on the right to possess weapons; ineligibility for housing, public benefits, educational benefits or certain jobs; immigration problems; loss of the right to serve as a juror; negative impact on parental rights or divorce proceedings; or the requirement to register with certain criminal registries, such as the Sex-Offender or Drug-Offender Registry.

Persons accused of felonies have the right to jury trials.

A limited number of crimes, such as murder, can be punished by the death penalty. These crimes are often referred to as capital offenses.

MISDEMEANORS
Under federal criminal law and the criminal laws in about half of the states, a misdemeanor is a crime for which the maximum possible punishment is incarceration for one year or less. In other states, a misdemeanor is defined as a crime punishable only by fine or by incarceration in a jail.

Some states have different classes of misdemeanors, for example, "petty offenses" that are punishable by six months or less in jail and "simple" or "minor" misdemeanors that have a maximum punishment of 90 days in jail.

Generally, misdemeanors are crimes that are less violent or involve lower levels of harm than felonies do. The legal procedures for misdemeanors are usually simpler than for felonies, the penalties less severe and the long-term consequences less harsh.

Penalties typically include fines, property forfeitures or incarceration in a jail for one year or less.
There is no federal right to a grand jury for a misdemeanor, and state grand jury rights for misdemeanors vary.

Court procedures may be more relaxed than those for felonies. Indigent defendants are generally only eligible for free state-appointed legal counsel when the misdemeanor charges can result in imprisonment upon conviction.

Long-term consequences are normally less severe than those of felonies, although some of the felony consequences listed above may still apply to misdemeanors, depending on the jurisdiction. However, those convicted of misdemeanors generally retain the right to vote.

Generally, if the potential punishment is imprisonment for less than six months, there is no right to a jury trial. However, a Misdemeanor conviction IS A CRIMINAL CONVICTION that will show up on your record.

Minor Offenses
The least severe infractions are minor traffic offenses and the like. The terminology varies by state, but common terms for these offenses include petty offenses, infractions or violations of local law. Often the only penalty is a fine and sometimes the infraction may not even be considered a crime. Violations of local ordinances may be punishable by a fine or a short period of incarceration (maximum length of 90 days).

Conclusion
It is important to keep in mind that crime classifications vary by jurisdiction and that this posting provides general information.

To understand the details of a criminal charge in your jurisdiction, talk to an attorney from The Law Office of David J. Givot in Southern California, who can explain the potential punishment and ramifications.

I Don't Play the "Race Card"

2009-11-13T15:21:00.000-08:00

For the record: I detest the "Race Card." I think, for the most part, the racism that is pervasive in the national media is kept alive by those it is said to offend.

Nevertheless, from time to time the dying, but not-yet-dead beast that is racism rears its ugly head in a way that cannot be denied. When it does, there is no "Race Card," only reality.

Although I cannot prove it, I defended a client last week for whom - I believe - that reality nearly destroyed her life. ...but not on my watch.

The Story

One morning, after a decidedly good outcome in court, I received a frantic call from a young woman who had been detained by store security at a famous Beverly Hills department store and subsequently arrested by Beverly Hills Police for allegedly shoplifting clothing.

November 1, 2009 was the final day to pay her department store credit card bill without incurring late fees or penalties. She also had an appointment with her hair stylist that day to continue with the long and arduous process of braiding her hair. "As a young black woman," she said, "braiding my hair takes a long, long time." As a middle-aged, half-Jew, I had no idea how long was long.

She described the process as being very time consuming. She explained that her entire head of hair would take several sessions, each as many as ten hours in length. The session on November 1, 2009 was scheduled to last approximately ten hours. For that reason, it was imperative that she pay the bill first. Moreover, because it was the last day, it was necessary to pay in person rather than by mail.

When her hair dresser arrived at my client's home to commence the process, she explained the situation and suggested that the hair dresser accompany her to the store in Beverly Hills; together they could take advantage of the carpool lane if traffic was an issue and they could stop for coffee. It could be a "girl's" morning before what would be a long day.

When they arrived at the department store, they browsed the clearance and sale tables and the hair dresser, my client's companion, selected items to try on. The pair were escorted to the changing room area by a store employee. Although both women entered a the dressing room area, only the companion tried on any garments.

My client waited outside the dressing room and within the confines of the dressing room area. The two engaged in conversation through the closed door. At one point, the companion asked my client to check one of the racks from which [the companion] had selected items to see if there was a larger size. My client exited the dressing room area, scanned the rack and returned to the dressing room area, though not the dressing room itself.

Moments later, the companion exited the room and the pair exited the dressing room area. My client was escorted to the cashier's counter to pay her bill while her companion left the store having said she would wait in the car.

My client paid her bill and left the store. However, she did not see her companion at or near the car. She assumed the companion was still in the store browsing or trying on clothing. She waited on the benches just outside the store and under the valet awning for some thirty minutes before going back into the store to look for the missing companion. She did not find the companion in the store and continued to wait both inside and outside of the store.

When nearly an hour had gone by, and having attempted to reach her by mobile phone multiple times, my client became genuinely concerned for her companion. She explained to me that it was not unusual for [the companion] to spend long periods of time shopping, but that it had become uncharacteristic.

She approached an employee to ask whether he had seen her companion at which time she was approached by a male who asked my client if she was searching for her friend - and he described the companion. She responded affirmatively and the male told her that he knew where the companion was and that he could take her there.

She followed him through a door that abutted the parking lot and down a flight of stairs. She was led into a small room with a table and chairs and told to be seated. The male, who had not yet identified himself, asked for identification as he began going through her purse.

When my client rightfully objected to the male's conduct and demanded that he identify himself, he identified himself as a "Loss Prevention" employee. He ultimately said that her companion was being detained on suspicion of shoplifting. He asked my client to describe her role in the alleged shoplifting scheme. She explained that she was not aware of any shoplifting, much less any shoplifting scheme. The male persisted and told her that he has video proof that she, in fact, was involved in a shoplifting scheme. He threatened her with criminal prosecution if she didn't "fess up." Nevertheless, she insisted, without waiver, that she was not part of or aware of any such scheme.

The employee dumped the contents of my client's purse on the table and examined it for evidence of a crime. No merchandise from the store, save for her bill payment receipt, was present among the contents.

The employee next attempted to have my client sign an admission of guilt, which she adamantly refused to do. He further attempted to entice her to sign by telling her that he had assigned the value of her theft as ZERO. She still refused to sign any such admission.

Uniformed officers from the Beverly Hills Police Department arrived, handcuffed my client, informed her that she was under arrest for the theft allegations - Felony Commercial Burglary - and was transported to the police station. She was fingerprinted, photographed, and fully booked on felony charges.

My client posted bail and was released from custody.

Upon hearing the story and agreeing to take her case, I drove to the Beverly Hills store. I located the security office and asked to speak with the person in charge. A male identified himself as the person in charge, but did not offer or tell me his name. Moreover, when I identified myself as being my client's attorney, he refused to say anything other than "contact our legal department."

From there, I drove to the Beverly Hills Police Department Headquarters. I located and spoke with the Detective in charge of the matter. Together we watched the surveillance video supplied by the store - the video the security officer said was conclusive in support of their allegations.

The Video
The video begins with a very close up view of my client and her companion browsing though and selecting items from a rack of clothing. The two are dressed comfortably for a Sunday morning in sweats and Ugg boots; both are black females. Neither looked dirty or out-of-place; neither was particularly menacing or suspicious, yet for some reason the camera was zoomed in and followed their every move.

For a few moments, the two appear to be assisted by a sales clerk who comes in and out of frame. Eventually, the companion selects several articles that appear to be jeans. Both appear natural; there does not appear to be any suspicious body language or other behavior demonstrative of a "consciousness of guilt."

After additional browsing, the pair walk toward and into the dressing room area.

Moments later, my client is seen exiting the dressing room area. She approaches the rack of clothing and appears to be searching through it. After looking through most of the rack, she turns and walks back into the dressing room area without selecting anything from the rack. Once again, she did not appear stressed or preoccupied; her movements and behavior were plain and natural.

Several moments later, the two exit the dressing room area. My client appears to be greeted by the sales clerk who escorts her toward the cash register and out of frame. The companion veers left and out of frame.

The scene changes to the perspective of a different camera and is following the companion through the store and out of the exit door. My client is not seen.

The scene changes again to the perspective of a different camera and is following the companion outside and through the parking lot where she appears to be confronted by two individuals. One of the individuals appears to be the male with whom I spoke earlier that day, though the image is not entirely clear.

The video ends. That's it. That's the compelling evidence against my client. Consistent with her story, the video depicted no evidence or even inference of any wrongdoing by my client.

The Detective and I discussed the images and agreed that there was nothing beyond the loss prevention employee's unsubstantiated assertion to support the notion that my client had engaged in any subversive or illegal activity.

The Detective did indicate that, because it was booked as a co-defendant case, he would have to submit it to the District Attorney (DA) as such, but that the DA would have discretion to sever the defendants if appropriate. He also indicated that he had additional information to gather.

I thanked him for the time and consideration.

The very next morning I arrived at the courthouse at approximately 8:30AM and met my client in the hall.

Together we proceeded to the branch office of the DA in the building. She and I met, face-to-face, with both the Charging Deputy DA and the Detective. The Detective indicated to me that he had done some additional investigation and had included those findings in the report he submitted to the DA.

Here's The Kicker
I explained the foregoing to the DA and further explained that my client is a sworn peace officer. That's right, my client is a sworn peace officer... and with no evidence whatsoever to support an accusation, much less a conviction, they flushed her through the process anyway. Not only was she completely innocent, she was the victim of an assumption of guilt by association because the companion was found to have left the store with merchandise she secreted away when my client - a SWORN PEACE OFFICER - obviously wasn't looking.

I pointed out that an arraignment, even with insufficient evidence, could and likely would be catastrophically detrimental to her career as a peace officer. I explained that, even if the charges are later dismissed, the shadow cast over her reputation and integrity would destroy any hope for career advancement.

Finally, I expressed to the Detective and DA that, if they believed and the evidence supports - however remotely - my client's involvement in the alleged incident, then they would be within their right to arraign her and we would deal with the charges accordingly. On the other hand, I submitted, if there is no evidence whatsoever to link her - in any way - to the allegations, then any complaint against her should be summarily dropped.

At approximately 11:20AM, my client and I returned to the office of the DA and were met by the Detective. He told both of us that he and the DA had concluded that there was no substantiated evidence against my client and that no charges would be brought against her absent new evidence.

Ugly situation. Great result. But...

Once again, I do not believe in playing the "Race Card." However, as an attorney I will NOT allow skin color or any other irrelevant factor to determine the future of a good person who has done nothing wrong. I am an advocate of the people I am entrusted to defend. Unless you have the evidence, then don't mess with my clients or me.

If you have been wrongly accused, let me fight for you!

David J. Givot, Attorney at Law

Patients Say the Darndest Things!

2009-11-11T08:45:00.000-08:00

Although my criminal defense law practice is open to everyone, my extensive Emergency Medical Services background makes me extra sensitive to the defense of EMS providers. From time to time, this blog will focus on EMS-specific issues.

Patients Say the Darndest Things!

On May 20, 2009, a Butler County, Kansas, EMT responded to the call of a 55-year-old male with unknown problems. What he found when he arrived on scene was William "Bill" Moore threatening to hurt himself or others. The EMT followed protocol and procedure and dutifully transported the patient to a nearby hospital.

Along the way, however, in addition to answering various questions about his medical and physical condition, Moore confessed that he had killed Carol Mould, who was murdered in her home in Benton in September 2004.

This is what we in the legal profession call an "Oh, $#!t!" moment. I am sure the EMT would agree. The EMT reported the confession and Moore was charged with one count of murder in the first degree. On October 7, 2009, the EMT was called to testify at Moore's preliminary hearing where he recounted his version of the call and the confession.

In EMS, just like the law, an "Oh, $#!t!" moment is one where, despite all the preparation in the world, you can just never be ready for it. Thankfully, they are relatively rare and when they happen, you can manage your way through them by following a few simple rules:

1. Remain calm. React like whatever just happened was exactly what you expected to happen.
2. Quietly consider your immediate safety and that of your coworkers.
3. Continue with your patient care as appropriate for the conditions.
4. Report your "moment" to the appropriate authority with the Zen-like rationality of Yoda.
5. Document every single detail of the "moment", before, during, and after.

Your documentation will come up again.

Looking back on my career as a Paramedic in the field, I think it was the perpetual prospect of a "moment" waiting around any corner that made the job so much fun. Of course, nobody ever confessed a murder to me...though I have suspected a few.

For more EMS-related information, visit my website: www.TheLegalGuardian.com

Life After a Conviction

2009-11-10T15:20:00.000-08:00

After you are convicted of a crime, you will wonder whether you will be able to find employment. In this economy, that is a VERY important concern.

As times get tougher, employers are more and more concerned about whether applicants have criminal records. The concern stems not from the assumption that ex-cons are inherently bad, but because of huge jury awards that have been rendered against employers for negligently hiring people with criminal histories who subsequently caused harm to others while on the job.

Understand where the employer is coming from. It has to balance its legal and ethical obligations to you, to its employees and to the public.

Another concern for employers relates to whether they will have to disclose the criminal conviction. For example, if a company is trying to attract investors, it may need to make certain disclosures first. Will the company have to disclose that an employee has a criminal conviction for embezzlement or money laundering?

The Double-Edge Sword

On the one hand, it is in the public interest to have those who have been convicted, regardless of whether they ever went to jail, find and hold gainful employment. A routine schedule and regular income lessen the likelihood that a person will reoffend, but a person with a criminal record may face prejudice in the job application process. On the other hand, it is important to protect the public from contact with prior offenders who may have propensities to re-commit. For example, convicted sex offenders should not work with children or vulnerable adults.

How Much to Reveal
Depending on the state, an applicant may not have to reveal any or some types of potentially damaging information, such as arrests not resulting in convictions or convictions for minor matters. Some states have procedures to judicially “erase” a criminal record. A criminal defense attorney can help determine whether you may be eligible to get a conviction sealed, expunged or otherwise legally minimized.

Tips for Workplace Re-entry
Be honest! Employers are interested in employees they can trust, and almost all information on a job application can be checked and verified. Even if it may close the door to certain positions, telling the truth is the best way to get a job that the applicant can keep over the long haul. Remember, in some states not all convictions must be revealed nor can potential employers ask for certain information.

Start the job search with family, friends and acquaintances that may be more likely to

take a chance on hiring someone they know, despite a criminal record.

Do not expect the first job after a conviction to be your ideal job. It is more important to get started somewhere and create a track record, since employers know that a good indicator of future job performance is past job performance. Consider temporary or entry-level positions to build your résumé.

Investigate employment services. Most states have public agencies that administer programs to help people find employment, sometimes specifically designed for those with criminal histories.
Refrain from alcohol and drug use. Some employers require employee drug testing.

Consider the nature of your past offense. Apply for jobs where that kind of offense is less likely to be an issue of concern.

Conclusion
Completing a jail or prison term, doing probation, or paying a fine can be just part of the price of a criminal conviction. The conviction can also affect post-conviction employment opportunities, but some employers are willing to give those with criminal records chances in appropriate circumstances. One job - any job - can be the first step toward rebuilding a career and a life.

A lawyer at The Law Office of David J. Givot will always consider the future when dealing with present charges.

2009-11-06T15:14:00.000-08:00

The Sixth Amendment of the US Constitution guarantees the right to an attorney to anyone facing federal criminal charges. The 14th Amendment and some state constitutions also afford this right to anyone facing state felony charges. Those who are indigent and cannot afford an attorney have the right to have one appointed to them for free. Most people, however, do not understand what the right to an attorney means, when this right attaches or who qualifies for a court-appointed lawyer.

If you are accused of a serious crime, it is essential that you retain the services of an experienced criminal defense lawyer to fight for your legal and constitutional rights throughout the criminal justice process. Contact The Law Office of David J. Givot to speak with a criminal defense attorney about your case today.

Federal and State Law
The right to counsel is a fundamental right of criminal defendants guaranteed by the US Constitution. Many states also include this right in their constitutions, and some states provide a broader scope of the right to counsel than the federal constitution. However, defendants facing state felony charges are still entitled to counsel, even if the state constitution does not provide such a right, under the federal constitution via the 14th Amendment.

Attachment of the Right
Criminal defendants are afforded the right to an attorney throughout every critical stage of a criminal proceeding once the right has "attached." Under federal rules, the defendant's right attaches once "adversary judicial proceedings" have been initiated against the defendant. This includes when the defendant has been charged with or indicted for a crime and during a preliminary hearing, information and arraignment.

Thus, for the right to attach, the defendant must have been charged with a crime. It does not attach if the individual is merely suspected of committing a crime. It does not attach during the investigative stage prior to the filing of actual, formal charges — even if the individual is the only suspect. An arrest, without formal charges, also does not trigger the right to an attorney. This does not mean, however, that an individual being investigated for a crime cannot hire an attorney on his or her own.

Once the right has attached, the state cannot interfere with the defendant's right to seek counsel and has a duty to ensure the defendant's right is honored. The right is not available in civil or administrative proceedings or during license suspension or revocation hearings.

Appointed Counsel
In order for a criminal defendant to receive a court-appointed lawyer, the defendant cannot merely be unable to afford the representation of an attorney of his or her choosing, but must meet the definition of an indigent. The trial court has the authority to determine whether a defendant is indigent. Some jurisdictions have guidelines based on income that allow individuals meeting the criteria to be presumed indigent. Other jurisdictions, however, do not have any guidelines and must make the determination on a case-by-case basis.

In those states that determine indigence on a case-by-case basis, the court must look at the defendant's total financial circumstances, including his or her income, assets, debts and other financial obligations before deciding if the defendant can afford to pay for an attorney. Thus, just because a defendant is unemployed does not guarantee he or she will be appointed counsel.

Defendants receiving court-appointed attorneys do not have the right to have an attorney of their choosing. If the court finds that the defendant is indigent, the court will assign a public defender to the defendant. The right to appointed counsel only extends to the trial and the first appeal of the trial court's judgment.

Waiving the Right to an Attorney
Just as all criminal defendants have the right to an attorney, they also have the right to self-representation and can waive the right to an attorney. In order to waive this important right, criminal defendants must be able to prove to the judge that they are competent (have the mental capacity) to waive this right and that their waiver is knowing, intelligent and voluntary. The judge must make sure that the criminal defendant understands the disadvantages of self-representation before allowing the waiver.

Defendants considering representing themselves in a criminal trial should carefully consider the consequences of this action. Criminal defense attorneys have years of training and understand the intricate, and often confusing, workings of the law and criminal justice system. Given the complexities of criminal procedure and, more importantly, the severe consequences a criminal conviction carries, a criminal defense attorney is best suited to protect defendants' legal rights and help them achieve the best possible outcome.

Conclusion
If you or a loved one has been arrested for a criminal offense, you have the right to an attorney. It is important to begin working with an attorney as soon as possible in the process, even if you have not been formally charged with a crime.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

The BIG 10 from the Constitution

2009-11-04T19:47:00.000-08:00

The United States Constitution and its subsequent amendments define the scope of governmental power and reserve certain individual rights to the people. The first 10 amendments, also called the Bill of Rights, contain basic, fundamental rights of individuals on which the government may not impinge. Many of these constitutional rights provide protection to criminal defendants in the criminal justice system. The Fourteenth Amendment extends substantive due process rights beyond just the federal system to criminal defendants in state courts, where the vast majority of criminal trials occur.

Fundamental Rights
Here are the main federal constitutional rights guaranteed to criminal defendants in the United States to promote fair trials. Remember that these rights have been refined and interpreted by the courts and an attorney can advise you about their role in and application to your particular case.

The right to due process of law
The right to equal protection under the law
The right to be free from unreasonable search and seizure
The right against self-incrimination or being forced to testify against oneself
The right against double jeopardy or being tried more than once for the same offense
The right to legal counsel
The right to a speedy, public trial
The right to an impartial jury trial
The right to confront witnesses against you
The right to call supporting witnesses
The right to be free from cruel and unusual punishment
The prohibition against ex post facto laws or laws that retroactively criminalize certain acts or increase criminal sanctions
The right to be free from excessive fines or excessive bail
The right to clear notice of criminal charges
The right to a grand jury in federal felony proceedings

Conclusion
Our criminal justice system is designed through constitutional protections to provide a criminal defendant with a fair trial. If you face any phase of the process, consult an experienced attorney like one from The Law Office of David J. Givot as early as possible to enlist an important ally in your quest to protect your legal and constitutional rights.

(From TheLegalGuardian.net)

California Field Sobriety Tests for DUI

2009-11-01T11:20:00.000-08:00

Field "Sobriety" Tests in California are OPTIONAL!!

Most people don't realize that field sobriety tests in California are completely optional. The police officers who pull you over and give them to you will not tell you this, nor are they required to, but they are optional. You are absolutely within your rights to politely refuse to take the California Field Sobriety Tests in their entirety. In other words, "Just Say NO, Thank You!"

The officer will probably tell you that if you do not comply, he or she will have no alternative but to arrest you. For starters, that is NOT true. And second, it is so subjective that you will probably be arrested anyway if the officer is so inclined and, if you take the tests, you will have supplied them with evidence against you.

THESE TESTS ARE DESIGNED FOR YOU TO FAIL!
These Field Sobriety Tests are not really tests at all. Instead, they are physical agility exercises that are SUBJECTIVE in nature. In other words, the police officer, who already thinks you are DUI because he is giving you the Field Sobriety Tests, is the one who is determining whether you pass or fail each test. Furthermore, police officers are agenda oriented. The more arrests and resulting convictions they make, the better their work records are. Because of this they are actually looking for you to fail.

The officer is looking for any and every mistake that you make. In fact, many people with absolutely no alcohol in their system "fail" these tests.

Field Sobriety Tests may include:

Nystagmus Test - These tests range from 65-80 percent reliable in establishing that a driver is under the influence of drugs or alcohol, which in fact leaves quite a large margin of error. Generally, alcohol slows our responses. When a person is impaired by alcohol the nerves in the eyes are stimulated and do not behave as normal. While a slower response means that a person has difficulty following an object with their eyes, and a severely intoxicated person may have to actually move their entire head to attempt to track an object with their eyes, nystagmus is exaggerated. The eyes will twitch or jerk at less than the 45-degree-angle response in a sober person. It is important to note that nystagmus is a naturally occurring phenomenon of the eyes; drugs and/or alcohol only increase or exaggerate the twitching or jerking of the eyes.

Walk and Turn Test - This test consists of asking the driver to walk heel-to-toe along a line for nine steps, turn at the end and return. It is a simple test that anyone should be able to perform without difficulty, in theory. The test does not account for performance in high heels, windy road conditions, or gravel roads. For the examining officer purpose is twofold: the driver must be able to understand simple instructions and physically manage the test. The police officer is considering if the driver follows the instructions as given; can keep his or her balance; stops to adjust balance or loses balance; uses the heel-to-toe method requested; uses the arms to try to keep balanced; or does not take the required number of steps. However, the external factors that may affect performance are often overlooked and quite often on purpose.

Standing on One Leg Test -This test also has a 65 percent reliability that a driver is impaired (BAC of .10 or higher) if s/he cannot perform this action. Combined with the walk-and-turn test, reliability is about 80 percent. However, it is important to note that even these test results combined leave a 20% margin of error. With a good attorney and the proper experts this margin of error can be exploited. Remember again there can be additional errors of these tests are not administered properly. In this test, driver is asked to stand with one foot raised about six inches. While doing so, s/he must count aloud (one thousand one, one thousand two, etc.) until asked to stop (about 30 seconds)

Finger to Nose Test - This test requires the driver to close his or her eyes and bring the finger around to touch the nose. In certain cases while you are performing the test the officer may try to distract you, thereby altering your ability to successfully complete the test. These tactics are not uncommon and well known by this seasoned Los Angeles DUI defense lawyer.

Alphabet Test - reciting the alphabet, or a portion of it.

Rhomberg Stationary Balance Test-This requires the driver to stand, feet together, and lean the head back to look up at the sky while holding their arms out to the side. The officer is simply looking for a loss of balance. Again this doesn’t take into account any other physical impairments, the road surface itself or many other eternal factors that have nothing to do with alcohol consumption.

Hand Pat Test - The Hand Pat FST requires a subject to place one hand extended, palm up, out in front of him/her. The other hand is placed on top of the first, with the palm facing down. The top hand then begins to pat the bottom hand. The top hand rotates 180 degrees alternating between the back of the hand and the palm of the hand. The bottom hand remains stationary. The DUI suspect counts out loud, "ONE, TWO, ONE, TWO, ONE, TWO, etc." in relation with each pat. The police officer is testing for the ability to follow instructions as well as coordination in performing the task.

Preliminary Alcohol Screening Test (PAS) - The preliminary alcohol-screening (PAS) test is used by law enforcement to measure your blood alcohol level. The PAS device is a hand-held breath-testing unit that gives an instant measure of your blood alcohol concentration. The validity of the test can be argued based on whether the test was properly administered and whether or not the machine was properly calibrated or tested for accuracy prior to testing.

A SKILLED CALIFORNIA DUI DEFENSE LAWYER WILL KNOW HOW TO HANDLE THESE TESTS IN COURT.

A skilled California DUI lawyer will know how to cross examine the police officer who administered and "graded" each test. He understands the possible flaws involved in each of these tests and will be able to exploit any errors.