The Odor Of Marijuana DOES NOT Mean The Police Can Search

Law Offices of EJ Stopyro
Orange County Marijuana Lawyers
Criminal Defense Attorney in Orange County

That familiar and distinct aroma of marijuana has always been a double-edges sword. To those of us who use marijuana, the smell is delightful. But that skunky odor can also attract trouble in the form of a police officer looking to make a bust. And until recently, the appellate courts have routinely held that the odor of marijuana is sufficient to justify a warrantless search of your car, your home and your person.

However, the recent decriminalization of marijuana in California, whereby possession of less than an ounce of marijuana is now an infraction and only punishable by a $100.00 fine, has also changed California search and seizure law.

Pot possession used to be a misdemeanor offense, which means that it technically was punishable by jail time. Therefore, if a police officer smelled marijuana coming from your house, car or person, the officer could conduct a warrantless search for pot under the rational that the officer didn’t have time to get a warrant because the suspect would destroy or hide the evidence. The fact that marijuana possession has now been reduced to a very minor non-jailable offense has changed this.

In the case of People v. Torres, decided on May 2, 2012 by the California Court of Appeals, Second District, an officer smelled the odor of marijuana coming from a hotel room. The officer ordered everyone out of the room and conducted a warrantless search. The Court of Appeal held that since marijuana possession is now a simple infraction and carries no jail time, the rational of allowing a warrantless search is no longer viable. The Court balanced the intrusion of a warrantless search on our liberty against the seriousness of the offense and found that allowing a warrantless search for such a minor offense is simply too great of an infringement on our right to be free form unreasonable searches. So unless the officer has evidence that a more serious crime is being committed, (i.e. possession of MORE than an ounce of pot), the cops can no longer search you, your car or your home based solely on the odor of marijuana.

If you face marijuana charges don’t hesitate to call the Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation with an experienced marijuana defense attorney. Or visit our website at www.EJEsquire.com and click on marijuana.

Law Offices of EJ Stopyro

Orange County Criminal Defense Lawyers
Drug Defense Attorney in Orange County

Domestic Violence: The victim cannot “drop the charges”

Law Offices of EJ Stopyro
Orange CountyDomestic Violence Lawyers
Domestic Violence Attorney in Orange County

Very often, in the heat of an argument between people who live together or who are dating, one person, (the “victim”) will call the police and report that the other person has harmed or assaulted them in some way. Once the police arrive it is almost a certainty that someone, (the “defendant”), is going to jail and will be charged with domestic violence.

Domestic violence can be charged as a misdemeanor or a felony. If the victim has any visible injury, however slight, the crime may be charged as a felony. For any domestic violence charge the victim faces jail time, a mandatory year-long anger management class, and a protective order (restraining order) preventing the defendant from having any contact with the victim—which can result in the defendant having to move out of his or her home.

Usually, the victim had no idea that the call to the police would bring such serious and dire consequences. In fact, in the vast majority of domestic violence cases handled by the Law Offices of EJ Stopyro, the victim desperately wants to “drop the charges” against the defendant. Unfortunately, it just doesn’t work that way. The victim is not the one bringing charges against the defendant—the District Attorney (DA) is the one bringing charges.

The victim is just a witness in the case. In fact, the DA will actually force the victim to testify against the defendant by serving the victim with a subpoena—an order by the court for the victim to show up and testify. If a victim doesn’t show up, the victim can be arrested and held until a new trial is set. Simply put, the DA doesn’t care whether the victim wants to prosecute the defendant. If the DA has enough evidence to convict the defendant the DA will proceed with prosecution despite the victim’s wishes.

If the victim does testify but recants the allegations of domestic violence, (changes his or her story), the DA can then use the police report to impeach the victim. The DA can tell the jury what the victim told police when the incident happened, making it clear that the victim has changed their story to protect an “abusive” defendant. Thus, handling a domestic violence charge can be tricky and should be handled by a professional with the training and experience to effectively dismantle the case against the defendant.

If you or a loved one are facing a domestic violence charge, call the Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential telephonic consultation. You’ll speak directly to an Orange County domestic violence attorney who can help explain the charges against you, the possible penalties and what options and defenses are available to you.

Law Offices of EJ Stopyro

Orange County Domestic ViolenceLawyers
Domestic Violence Attorney in Orange County

Driving Under The Influence Of Drugs Can Mean Mandatory Jail

Law Offices of EJ Stopyro
Orange County Drunk Driving Lawyers
DUI Attorney in Orange County

If you drive under the influence of drugs you not only risk a DUI conviction, you may also face a mandatory 90-day jail sentence just for being under the influence of a non-prescribed drug. (CaliforniaHealth & Safety Code §11550(a)) If you have a prescription for the drug in your system, then H&S Code §11550(a) does not apply and you will only face charges for a DUI. However, if the drug in your system is illegal or if it requires a prescription which you don’t have, then things could get ugly.

Usually, if someone is arrested ONLY for being under the influence of a controlled substance, they can avoid the 90-day jail sentence by successfully completing a state approved drug treatment program; either Proposition 36 or P.C. 1000. However, if the complaint also include a non-drug-related offense, such as DUI, then you cannot enroll in Proposition 36 drug treatment and if you have ANY prior drug charges you are also ineligible for PC 1000. Therefore, if you are convicted of BOTH a DUI and H&S Code §11550(a), you may face a mandatory jail sentence of 90 days, even if the DUI is a first offense DUI.

At the Law Offices of EJ Stopyro we regularly handle these “mixed complaint” cases. If our client is ineligible for drug diversion then to avoid the mandatory jail we must either convince the District Attorney’s office to dismiss the H&S Code §11550(a) charge as part of a plea bargain or go to trial an prevail on EITHER the DUI charge or the H&S Code §11550(a) charge. Because of our willingness to go to trial and our winning record when we do go to trial, we have been very successful at convincing the DA to drop the H&S Code §11550(a) charge.

If you face charges for driving under the influence of drugs or alcohol in Orange County visit our website at www.EJEsquire.com for information about the charges against you and what will happen in court. You can also call the Law Offices of EJ Stopyro today at (949) 559-5500 and consult directly with an experienced Orange County DUI attorney. We’ll be happy to explain the charges against you and what your options are. Don’t sleep on your rights and don’t expect mercy from the District Attorney’s office—you wont get it.

Law Offices of EJ Stoyro

Orange County DUILawyers
Drunk Driving Attorney in Orange County

DUI Field Sobriety Tests: You Have The Right NOT To Incriminate Yourself

Law Offices of EJ Stopyro
Orange County DrunkDriving Lawyers
DUI Attorney in Orange County

Although Field Sobriety Tests are completely VOLUNTARY, most people who are stopped by the police or highway patrol submit to the request to perform these tests. The field sobriety tests used by most California law enforcement agencies include the walk-and-turn test, the horizontal gaze nystagmus test (following an object with your eyes), the one-leg stand test and the Rhomberg test.

The results of the field sobriety tests are often the primary piece of evidence used against you to prove a violation of California Vehicle Code Section 23152(a), driving under the influence of alcohol. This is especially true where the blood-alcohol is very close to the legal limit.

The Rhomberg test is performed by standing with your feet together, arms at your side, eyes closed, and head tilted back as if you were looking at the sky. The object of the test is to estimate the passage of 30 seconds while you remain balanced. Because alcohol is a central nervous system depressant, it tends to slow down a person’s reactions as well as their sense of time. So, the theory goes, that the more impaired by alcohol you are, the more inaccurate your estimation of 30 seconds will be. And since alcohol is a depressant, you will think 30 seconds will have passed when, in fact, more than 30 seconds will have actually passed. So, for instance, if you are impaired by alcohol, then you may estimate 30 seconds has passed when in fact perhaps 35 or 40 seconds has really elapsed.  

The Rhomberg test is very popular with law enforcement and is part of the vast majority of DUI investigations. However the California Court of Appeal ruled on April 19, 2012, in the case of People v. Bejasa that it violates a person’s 5^th Amendment right to not incriminate themselves to make them estimate the passage of 30 seconds and then COMMUNICATE this estimate to the police. In order for the estimate of 30 seconds to be used against someone the police must FIRST read the person their Miranda rights—which police never do before an arrest. 

If you have been arrested for drunk driving call the LawOffices of EJ Stopyro today at (949) 559-5500 for a free and confidential telephonic consultation with an experienced Orange County DUI attorney.

Law Offices of EJ Stoyro
Orange County DUILawyers
Drunk Driving Attorney in Orange County

DUI Alcohol Program: What Alcohol Program Will I Have To Complete?

Law Offices of EJ Stopyro
Orange County DUI Lawyers
DUI Attorney in Orange County

If you are convicted of a DUI in Orange County you will be required to complete a state-approved alcohol education program BEFORE the DMV will give you your license back. The alcohol program that you will be required to complete will depend on whether you have prior DUI convictions and, if it is a first offense DUI, what your blood alcohol level was. For a free consultation on this issue call the Law Offices of EJ Stopyro at (949) 559-5500 and speak directly to an Orange County DUI attorney.

If your DUI defense lawyer is able to get the DUI charge reduced to a “wet reckless”, then you will only be required to complete the 12-hour program. (SB 1176) This is the shortest possible alcohol program and consists of 12 hours of lectures. You will be required to attend one lecture a week for 12 weeks.

First-Offense DUI

If you are convicted of a first-offense DUI, then you will be required to complete either a three, six, or nine month alcohol education program. In Orange County, if your blood-alcohol was below a .15% you will be required to attend the three-month program which consists of 12 hours of lectures, 18 hours of group counseling, and three individual counseling sessions. (AB 541) If your blood-alcohol was a .15% or higher but below a .20%, then you must complete the six-month program which consists of 12 hours of lecture, 36 hours of group counseling and 4 individual counseling sessions. (AB 762)

If your blood-alcohol was .20% or higher OR if you refused to take a blood or breath test, then you will be stuck with the nine-month class. (AB 1353) This program consists of 12 hours of lecture, 46 hours of group counseling, and 13 individual counseling sessions.

DUI With One Or More Priors

If you have at least one prior DUI within 10 years of the date the new DUI happened, then you must complete the 18-month “multiple-offender” program. (SB 38) This program consists of 12 hours of lecture, 52 hours of group counseling, and 26 individual counseling sessions. This is all completed in the first 12 months. For the last six months of the program you will be required to attend a one-hour “community reentry monitoring session” each month for the remaining six months.

For more information on alcohol program requirements call the Law Offices of EJ Stopyro for a free and confidential consultation or go to our website at www.EJEsquire.com.

Law Offices of EJ Stoyro
Orange County DUILawyers

DUI Attorney in Orange County