Tuesday, December 29, 2015

Domestic Violence Attorney: Marital Privilege

There are several "privileges" in the evidence code which entitle the holder to prevent another person from testifying against them. For instance, the attorney-client privilege forbids an attorney from disclosing what their client has told them, even if it is an admission to committing a crime. The therapist-patient privilege likewise requires a therapist to keep their client's secrets. Any domestic violence attorney worth their salt is quite familiar with the marital privilege. This privilege has ancient roots in the English common law and it forbids one spouse from testifying against another. So, for example, at common law, if one spouse were charged with domestic violence against the other, the defendant spouse, or their domestic violence attorney, could raise the marital privilege to keep the other spouse from testifying in court.



The marital privilege exists today in California and is found in Section 971 of the California Evidence Code. The section reads: "Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by the adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship." The plain language of this statute means that, in a domestic violence trial, a defendant's domestic violence attorney could prevent the other spouse from testifying by raising the marital privilege on the defendant's behalf.



However, the California legislature, much to the chagrin of domestic violence attorneys and their clients, added another law to limit the marital privilege. Evidence Code Section 972 prohibits the marital privilege from being raised in any court proceeding where one spouse is accused of perpetrating a crime against the other spouse. Therefore, a domestic violence attorney can no longer raise the marital privilege at a domestic violence trial.



Now, if the victim spouse no longer wishes to testify against their defendant spouse, the District Attorney will simply serve the victim with a subpoena. This is a court order compelling the victim to testify. If the victim still refuses to testify they can be jailed for contempt. However, serving the victim with a subpoena can be tricky. A subpoena is only valid if it is personally served upon the victim. If the DA simply mails a subpoena to the victim, which is their practice, it is not valid unless the victim specifically acknowledges receiving it. If the victim cannot be located the defendant's domestic violence attorney can move for a dismissal of the case.



If you would like to speak with an experienced Orange County domestic violence attorney call The Law offices of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation.

Saturday, December 26, 2015

DUI Attorney: Can Cops Wait Outside The Bar? - EJ Stopyro

Detecting and arresting drunk drivers has become a priority for many California law enforcement agencies. Consequently, DUI attorneys have seen the police develop special DUI detection tactics to increase DUI arrests. These include DUI checkpoints as well as DUI saturation patrols (extra patrols dedicated to DUI enforcement). A more controversial tactic consists of police officers waiting outside of establishments that serve alcohol and targeting motorists when they leave–looking for any reason to stop them and conduct a DUI investigation.

Although this practice may seem inherently unfair, we DUI attorneys are well aware that the United States Supreme Court has upheld the legality of these “pretextual stops” as long as the officer finds some legal justification to pull the driver over. The Supreme Court ruled that the subjective intention of the officer (looking for a DUI driver) doesn’t matter as long as the stop is for a valid law violation. So, for example, a police officer can wait outside a bar and watch the vehicles that leave. If the officer witnesses any violation, such as an inoperable license plate lamp, the officer may lawfully stop the vehicle. If, during the stop, the officer detects an odor of alcohol or any other signs of alcohol intoxication, such as bloodshot eyes or slurred speech, the cop can conduct a DUI investigation.

These “DUI stakeouts” have become increasingly popular with law enforcement. However, any Orange County DUI attorney knows that jurors tend to disfavor this particular enforcement practice. Moreover, those drivers arrested as a result of a DUI stakeout are usually in a good position to fight the DUI charge in court with a “rising defense”. Because the driver is usually arrested immediately after leaving the bar their DUI attorney can easily establish that the time of finishing the last drink was very close to the time of driving–a critical element in a rising defense.
For more information about DUI defenses that work, call The Law Offices of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation with an experienced Orange County DUI attorney.

Friday, December 18, 2015

DUI Arrest: Cop Didn’t Read Me My Rights

I’ve been an Orange County DUI attorney for many years now. And since I offer a free telephonic consultation I’ve talked to thousands of people after they were arrested for DUI. One of the main concerns I hear is that the cop never read them their Miranda rights; their right to remain silent, to have a lawyer present, and to have a free lawyer appointed if they cannot afford one.

Virtually every police drama we see on television reinforces our understanding that when the police arrest someone, even for DUI, they MUST inform them of their Miranda rights, including their right to a DUI lawyer. This legal principle is well-entrenched in public consciousness. But when must the police read someone their rights? And what is the consequence if they don’t? These are the questions I hope to answer here.



A DUI investigation typically starts after an officer stops a driver and becomes suspicious that the driver has been drinking or taking drugs. The officer then asks the driver a long series of potentially incriminating questions like “how much have you had to drink?” and “do you feel the effects of alcohol or drugs?”. Moreover, the cop asks these questions without ever informing the driver of their right to consult with a DUI defense lawyer before answering. That’s because the U.S. Supreme Court has held that the cops don’t need to advise a suspect of their Miranda rights until they are “in custody”. Custody occurs when the police physically restrain someone–such as by putting handcuffs on them or placing them in the back of a locked police car.



So, once the police put you in cuffs they MUST read you your rights before they can interrogate you. But, as any DUI defense attorney will tell you, in most DUI cases the police have already asked all their questions before they arrest  the driver and take them into custody. Since they usually have no more questions to ask, there is no need to read the driver their rights. But if the cops do ask more questions once custody occurs, the answers can be suppressed by a skilled Orange County DUI lawyer. Any incriminating statements resulting from interrogation after the driver is taken into custody are subject to suppression if the officer did not advise the driver of their Miranda rights.



If you have been arrested for DUI call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange County DUI attorney. Our main office is located at 32072 Camino Capistrano in San Juan Capistrano but we have meeting offices throughout Orange County.