Theft Crimes: Theft By False Pretenses Is Not Robbery

Orange County criminal defense lawyers

Robbery is a serious theft crime. California Penal Code Section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Robbery is a very serious felony and is considered a strike offense in California. Moreover, it is NOT a “wobbler”—which is to say that it cannot be charged as either a misdemeanor or felony. It is only charged as a felony offense punishable by imprisonment in the California state prison.

Your Orange County criminal defense lawyer will tell you that one of the defining features of robbery is that the taking of property is done by using force of fear. For example, physically grabbing an object from another, such as a purse, would constitute robbery because force was used. Also, threatening someone or otherwise cause them to be in fear of their safety in order to get them to give up their property would also constitute robbery. But if force is used during the course of committing some other theft offense does not necessarily constitute the serious offense of robbery. For example, in the recent case of People v. Williams which was decided on August 26, 2013, a defendant was using bogus credit cards to buy gift cards from Walmart. The defendant completed the purchase when the clerk noticed something strange about the credit card numbers. Store security then tried to detain the defendant who used force to resist. The defendant was charged with robbery.

The defendant’s  criminal defense lawyer in Orange County argued that defendant did not commit a robbery, but rather he committed a theft by false pretenses. Once the defendant completed the transaction, the theft was complete. The force used by the defendant was used after the completed offense of theft by false pretenses. The court agreed and ordered the robbery charged dismissed in favor of the lesser offense of theft by false pretenses.

If you or a loved one is facing charges for theft, burglary, receiving stolen property, robbery or any other crime in the Orange County courts call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation. We have offices at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627 and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

criminal defense lawyers in Orange County

DMV Hearing: In Person Or Telephonic?

DUI Attorneys in Orange County

When you are arrested for a DUI  in Orange County, the arresting officer, whether from the California Highway Patrol, Orange County Sheriff’s Department, or a city police officer, will confiscate your California driver’s license. Any DUI Lawyer will tell you that the officer is actually required by law to take your license. The officer must then give you a pink piece of paper from the DMV that is full of small print that you will probably not want to read; but you should.

This pink paper that the DUI officer served you is both your temporary driver’s license and a notice to you of your right to a  DMV hearing to determine whether there is grounds to suspend your license. The paper will also state that if you, or your Orange County DUI Attorney don’t request a DMV hearing within ten days of being arrested for DUI, then the license suspension will begin automatically and that you waive and give up any right to a hearing. If you do not request a hearing within this critical ten days, your license can be suspended even if there were no grounds to do so.

Although it is preferable to let your DUI Attorney in Orange County make the call the DMV office of driver safety, you will have to do it if you haven’t yet found a   DUI Lawyer. When you call, you should have your driver license number and date of arrest available. After being on hold for a minute or two you will speak to a DMV employee. The employee will also need to know what police agency made the DUI arrest and whether you submitted to a breath test, blood test, or it was a refusal.   

Once the DMV employee has this information, he or she will give you possible hearing dates for you to choose from. The DMV hearing, called an Administrative Per se or APS hearing, can be set in the morning or in the afternoon. The DMV employee will then offer you the choice of an in-person or telephonic hearing. If you plan on hiring a DUI Attorney to represent you, then you can choose any date as your DUI lawyer can change the date when he or she assumes representation. The same is true with the choice of an in-person or telephonic hearing.

There usually is not much of an advantage either way as far as in-person versus telephonic is concerned. If you or your Orange County DUI Lawyer have complicated exhibits to explain to the hearing officer or to a witness, then an in-person hearing is best. Also, if a witness is going to testify, an in-person hearing gives your DUI Lawyer in Orange County an opportunity to assess how “presentable” the witness is; that is to say, whether a jury in a DUI trial would like this witness. This factor may be important when you and your DUI Lawyer are deciding whether to take your case to trial.

To learn more about the DMV hearing in a DUI case call The Law Offices of EJ Stopyro at (949) 559-5500 for a free telephonic consultation with an experienced DUI Attorney. We have offices at 1901 Newport Blvd., Suite 350, in Costa Mesa, CA 92627 and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

Orange County DUI lawyers

Missouri v. Mcneely Not Addressed By People v. Cuevas

Orange County DUI lawyers

The recent case of Missouri v. Mcneely has certainly rocked the foundation of the DUI defense world. As an Orange County DUI Lawyer  I have been asked by many people, defendants and outer DUI lawyers, about the ramifications of Mcneely. Missouri v. Mcneely was a case decided in April of this year in which the United States Supreme Court seems to have invalidated the Implied Consent laws of all states by holding that a warrant is required in order to take a blood sample from a person arrested for DUI.

In July of this year, the 1^st District California Court of Appeal decided seven consolidated cases in which all defendants had been arrested for DUI and had elected to take a blood test. However, it doesn’t appear that the  DUI Attorneys in the cases actually challenged the blood tests on the grounds that a warrant was required. Rather, these cases dealt with the issue of whether the blood tests taken after the DUI arrests were shown to have been conducted in a medically approved manner as prescribed by the landmark case of Schmerber v. California.  In all seven cases, the DUI Lawyers brought a suppression motion in the trial court. At the suppression motions, the prosecutors proof that the blood tests were conducted in a medically approved manner consisted of the testimony of the arresting police officer, NOT from the blood tech who actually performed the blood draw.

Amazingly, the 1^st Division actually upheld the denial of the suppression motions, holding that the testimony of the police officers was sufficient to prove that the blood tests were properly conducted, despite no showing of any medical knowledge or training by the police officers. Hopefully, this decision will be revisited.

The bottom line is that we are still waiting for a California decision defining exactly how Missouri v. Mcneely will impact California’s implied consent law. Therefore, I think that DUI Attorneys in Orange County should continue to file suppression motions in all cases where a blood or breath test was taken in compliance to California’s implied consent law. Although the motions are bound to be denied, your DUI lawyer should make sure to preserve your rights by appealing the denial of the suppression motion. That way, when a California decision on the legality of Implied Consent does come down, the DUI conviction may actually be overturned.

If you have been arrested for a DUI or DUI with injury, call The Law Offices of EJ Stopyro today at (949) 559-5500 today for a free and confidential consultation.   

DUI Lawyer in Orange County

DUI Charge: Sometimes It Pays To Fight

DUI Lawyer in Orange County

I’ve been a DUI Attorney in Orange County for over a decade and I’ve handled hundreds of DUI  cases. Sometimes, a case will look nearly unwinnable at first, but when you fight, good things can happen. Perhaps the field sobriety test results were very bad, the driving very poor, or maybe the client’s blood-alcohol level is very high as measured by a breath test or blood test. However, when a client is charged with a DUI, it is my job to go over the evidence with a fine-toothed comb for any weakness in the District Attorney’s case.

In the case of People v. Robert G. my client was charged with hit and run and a second-offense DUI in Orange County. He was facing several months of jail time so he decided to retain a DUI Lawyer in Orange County. Robert crashed his car into a building in a downtown area at night. When the police arrived two witnesses pointed at Robert, who was standing near his car on his cell phone. His car was stuck up on a planter box. Robert exhibited a strong odor of alcohol, red, watery eyes, and trouble maintaining his balance. Robert refused to give a blood or breath sample or to take field sobriety tests. Robert resisted the officers and tried to leave the scene.

As Robert’s Orange County DUI Lawyer, once the prosecution rested its case, I recognized that the DA never really connected Robert to the car as the driver. They didn’t produce any evidence that Robert owned the car or that it was registered to Robert. Nor did the prosecution provide evidence of any car keys in Robert’s possession or that the driver’s seat and the mirrors were adjusted to someone of Robert’s height. Most importantly, the DA didn’t produce any witness who saw Robert actually drive or get out of the car. Therefore, I made a motion that the case be dismissed for lack of evidence that Robert was the driver—a point that the DA MUST prove by evidence beyond any reasonable doubt. Predictably, the trial judge denied the motion and after several days of trial, Robert was acquitted or hit and run but convicted of DUI. He was sentenced to 90-days in the Orange County jail.

As Robert’s Orange County DUI Attorney I kept Robert out of jail while I filed an appeal on grounds of insufficient evidence. The appeal was granted. The DUI  conviction was reversed and the entire case against Robert was dismissed without Robert ever serving a day of the 90-day jail sentence. (Appellate Division, Central Justice Center)

If you have been charged with a DUI, hit and run, or a DUI with injury, call The Law Offices Of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation. You’ll speak directly to an experienced DUI Attorney.

Orange County DUI Attorneys

Theft and Vandalism: Prison Enhancement Depends on the Amount of Loss

criminal defense lawyers in Orange County

If you’ve been arrested for a theft crime, including grand theft, embezzlement, burglary or forgery, or for vandalism, then you might be facing mandatory prison time. Orange County criminal defense lawyers familiar with California Penal Code Section12022.6 know that the greater the value of the property taken, damaged or destroyed, the greater the sentence. This penal code section is called an “enhancement” because the sentence the judge gives is enhanced or increased by a specific term of imprisonment. In the case of theft or vandalism, section 12022.6 imposes an additional one year of imprisonment if the value of the property taken, destroyed or damaged exceeds $65,000.00.

If there are a series of crimes, and the cumulative value of the crimes adds up to this amount, then the enhancement also applies. For example, if a defendant commits multiple acts of identity theft over a period of months, then the court must look at the total value of all the acts of identity theft when determining the amount of loss. So if a defendant commits identity theft every week for a year and the value of property taken each time is $1,000.00, then the total loss would be $52,000.00 and the defendant’s criminal defense lawyer in Orange County could successfully argue that the enhancement does not apply.

Moreover, criminal defense attorney in Orange County will tell you thatthe enhancement must be specifically alleged in the Complaint or Information in order for the enhancement to  be imposed by the judge. The District Attorney must claim that the enhancement applies before a judge can impose it. However, once the enhancement is plead and proved, then the judge must impose it. The extra time of the enhancement is added on to whatever sentence the judge imposes for the theft crime or vandalism. So, for example, if a defendant is found guilty of grand theft of $66,000.00, then the judge must sentence the defendant to a sentence of 16 months, 2 years or 3 years for committing the grand theft. Then, on top of this sentence, the judge must give an additional year of imprisonment because of the 12022.6 enhancement.

If the act or acts if identity theft, grand theft, embezzlement or vandalism cause a loss of more than $200,000.00, then the enhancement goes up to TWO years of additional imprisonment. A loss exceeding $1,300,000.00, the enhancement goes up to THREE additional years. And a loss exceeding $3,200,000.00 draws an additional FOUR years. If you are facing charges in Orange County for vandalism or a theft crime such as burglary, embezzlement, identity theft, or grand theft, you need the advice of an experienced Orange County criminal defense lawyer. Call The Law Offices of EJ Stopyro at (949) 559-5500 today for a free and confidential consultation. Or visit our website at www.EJEsquire.com.

Suspended License Sting in the Orange County Courts

DUI Lawyer in Orange County

For several years now there have been rumors that people who have been arrested for DUI that show up for court proceedings in their case are being watched by Orange County Sheriff’s deputies. Orange County DUI Attorneys heard that their clients whose licenses had been suspended were being targeted by deputies in the courtroom and followed or monitored to see if they drove. Many DUI Attorneys in Orange County disregarded the rumors and didn’t believe that that was happening. Well, it seems that this was not mere paranoia.

An article published today in the Orange County Register reported that eight deputies had been assigned to a license suspension sting at the Harbor Justice Center in Newport Beach on Monday of this week. Under cover deputies inside the courtroom would listen to the cases being called and when a DUI case was called that involved a client with a suspended license, the deputy in the courtroom would relay a description of the driver to deputies waiting outside. After the case was called and the client finished conferring with their DUI Lawyer, the client was followed and watched to see if they drove.

Other deputies in uniform and on motorcycles were close by. If the under-cover deputy saw a   DUI defendant with a suspended driver’s license get into the driver’s seat of a car, the deputy was to alert the motorcycle cops. However, the DUI license suspension sting turned out to be a complete waste of EIGHT law enforcement officers. There were zero arrests! DUI Attorneys in Orange County  are not the only ones scratching their heads at this one. The tax paying public had the privilege of paying eight full-time salaries for the day for absolutely nothing.

If you are litigation a drunk driving charge at any of the Orange County courthouses, including the West Justice Center in Westminster; the Central Justice Center in Santa Ana; the North Justice Center in Fullerton; or the Harbor Justice Center in Newport Beach, please do NOT drive to court if your driving privileges are suspended OR restricted. Your DUI Attorney will tell you that even if you have received your restricted license you still cannot drive to court. A restricted license only allows you to do “work-related” driving, drive to and from school, and drive to and from the Alcohol program.

If you face charges for a DUI, DUI drugs, or a DUI with injury call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation.

Orange County DUI lawyers

Missouri v. McNeely: The Destruction of Implied Consent Law?

Orange County DUI lawyers

On April 17, 2013, the United States Supreme Court issued a decision in the case of Missouri v. McNeely (2013) 133 S.Ct. 1552. The decision caught the attention of DUI Attorneys in Orange County because it may be the death knell of California’s implied consent law. In McNeely, the defendant was arrested for DUI and was read implied consent—he was told that by law he must take a breath test or blood test to determine his blood-alcohol level. McNeely refused to take any test and the police conducted a forced blood draw. 

McNeely’s DUI Attorney brought a suppression motion asking the court to suppress the blood test result. The DUI Lawyer argued that, in spite of the implied consent law, there was plenty of time to get a warrant before taking McNeely’s blood and failure to get a warrant was a violation of the 4^th Amendment. The United States Supreme Court reviewed the case Schmerber v. California, (1966) 384 U.S. 757. In Schmerber a defendant was arrested for drunk driving after he was involved in an accident. The police officer on the scene had to transport him to the hospital and investigate the accident. On top of this, the blood-alcohol evidence continued to dissipate while the officer tended to these responsibilities. In this case the Supreme Court said the officer didn’t need a warrant to take the defendant’s blood because of the exigency of the circumstances.

DUI Lawyers in Orange County  know that Schmerber is the foundation of implied consent law everywhere. The idea is that because blood-alcohol evidence dissipates, this creates an “exigency” that justifies getting the evidence without a warrant. However, the Mcneely court essentially reevaluated Schmerber and held that the ruling of exigency in Schmerber was limited to that case because of the unique circumstances involved. Therefore, each case is to be evaluated to determine if there was enough exigency to justify a warrantless search in the DUI investigation. Thus, the police are not justified in making a person arrested for DUI take a blood or breath test unless there were circumstances that created an exigency. The mere fact that the evidence is dissipating is not enough grounds to create an exigency.

Mcneely now gives Orange County DUI Attorneys grounds to suppress blood or breath tests in almost every DUI arrest. The grounds to bring a suppression motion will remain until and unless the police get a warrant before forcing a driver to take a blood or breath test. The case provides a weapon for your Orange County DUI Lawyer to fight your case during court proceedings as well as at the  DMV hearing.

If you are facing prosecution for DUI, DUI with injury, or DUI drugs call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation. Or visit our website at www.EJEsquire.com.