It’s late at night. You’re driving home from a friend’s house after having a few drinks. And those dreaded red lights flip on behind you.  As you pull over to the side of the road, you hope the police car will swerve around you, off to stop a real “bad guy.” But instead of passing you, the car pulls to a stop behind you.  So what do you need to know?

Anywhere in the United States, under the Fourth Amendment, law enforcement officers need probable cause to stop you.  This probable cause can be anything that would lead a reasonable person to believe that you, as the driver, has committed a crime.  While some people think that the officer needs to have seen you swerve, run through a stop sign or stop light, or hit an object, the truth is that even simple traffic infractions such as speeding, having a taillight out, not having a front license plate, or failing to wear your seatbelt are enough.

Once stopped, the officer is free to approach you and your car to investigate.  One of the telltale signs a driver has been drinking, and one of the first observations an officer usually makes in DUI cases, is that an odor of alcohol permeates the car.  Should an officer smell alcohol, you can bet he’s going to start asking questions to see if he’s just pulled over another DUI driver.  It’s at this point when even benign facts start working against you.  While you may rightfully claim that you smell like alcohol because you did drink earlier, or that a friend spilled a drink on you, the officer will worry it’s because the smell is emanating from your breath ad you’re still intoxicated to the level you might be impaired.  While you may rightfully claim that your eyes are bloodshot because you’re tired, the officer is worried that you have so much alcohol in your system that the alcohol is causing small blood vessels in your eye to become dilated and inflamed.   While you may rightfully claim that you’re having trouble communicating clearly is because English is not your native language, the officer is worried you’re so intoxicated your speech is slurred.

Chances are, the next thing the officer is going to do is start asking you questions.  It’s important to keep in mind that you have the right to remain silent. As defense attorneys, we cannot underscore this enough.  But should you feel compelled to speak with the officer, keep in mind that anything you say can and will be used against you.  Some of the routine questions are these:

• Have you been drinking tonight?
• When did you have your last drink?
• When did you last sleep?
• Are you on any medications right now?

If, after asking you these questions, whether you answered or not, the officer still believes you may have been driving under the influence, you’re going to be asked to take a series of field sobriety tests (FSTs).  Most of the FSTs are designed to test your ability to multitask at a very basic level.  You’re asked to perform a mental activity—such as counting—with a physical activity—such as maintaining your balance. Another test you’ll almost certainly be given is the “horizontal gaze nystagmus” test, in which the officer will ask you to follow an object—typically his pen—with your eyes while keeping your head still.  What he’s looking for is whether, and where, your eyes begin to involuntarily jerk.  This jerking, called nystagmus, is an involuntary reaction that occurs when alcohol depresses the central nervous system. If this jerking begins before the gaze reaches approximately a 45-degree angle-from-center, it indicates a possible blood alcohol content level over .05%.

The last of the FSTs is the breathalyzer test, in which the officer asks you to blow into a device, which measures the alcohol content from the air deep within your lungs.  It is important to note that YOU DO NOT HAVE TO CONSENT TO THESE FIELD SOBRIETY TESTS.

If the officer believes that he has probable cause that you were, in fact, driving under the influence, he can place you under arrest.

Post arrest, the officer will ask you to take another chemical test. This time, you ARE REQUIRED to provide a sample: either blood or breath.  Why are you required to give a sample this time? Because at the time you received your driver’s license, one of the terms of that license was that you would consent should an officer have probable cause to believe you were driving under the influence. Further, Penal Code 23612 states “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for [a DUI] offense.”

The results of those tests usually dictate whether you become involved in a battle on two fronts: the DMV and the Criminal Justice System.

In 2011, California was ordered by the U.S. Supreme Court to reduce the overcrowding in its state prisons. The state has worked to address the problem by implementing programs aimed at allowing some inmates to earn additional credits that can be applied towards their time served, allowing early release to some inmates, and starting alternative custody programs. The Santa Rosa criminal defense lawyers at Li & Lozada know that the best way to handle criminal charges is having a talented attorney by your side, but if you’re already in the state prison system, these are ways to potentially reduce your sentence.

Credits

Additional credits for non-violent second strikers

Prior to 2014, non-violent[1] second strikers were given 20% credit for the time they served, but that number was increased to 33.3% last year. For example, under the previous system, an inmate sentenced to one year in prison would have been eligible for release after 304 days, however, under the new system the same inmate would now be eligible for release after serving 273 days in prison. These credits only apply to inmates serving time for non-violent offenses and offenses which do not require the inmate to register as a sex offender, and only apply prospectively, not retroactively.

The CDCR reported that from the time the program was implemented in February 2014 through October 2014 over 2,500 eligible inmates were released from prison under the program.

“Milestone” credits

In addition to the program above, non-violent second strikers are eligible to receive up to six weeks of credits once they have completed certain in-prison programs such as academic or vocation training, or a substance abuse program.

For more information on the milestone credit program, see this CDRC page.

Early Parole

Early Parole for non-violent second strikers

The same court order that implemented the programs above, also required the state to change the timetable used to evaluate when non-violent second strikers[2] would be considered for parole. As of January 1, 2015, non-violent second strikers are now eligible for parole consideration after having served 50% of his or her sentence. The state has defined “served 50% of their sentence” to mean “actual continuous time served in custody,” and does not take into consideration any credits.

As part of the parole review process, the District Attorney from the county in which the offender committed his or her crime and the offender’s victims will be allowed to provide feedback on whether they believe the inmate should be paroled. This information, along with that contained in the prisoner’s central file will be considered in assessing the inmate’s potential to pose an unreasonable risk to safety.

The State estimates that between 5,000 and 6,000 inmates will be eligible for this program in 2015.

Elderly Prisoner Parole

This program aims to reduce overcrowding by potentially paroling lifers and determinate-term prisoners who are 60 or older who have already served at least 25 years of their sentence. At the hearing, the Board of Parole Hearings will evaluate the prisoner’s risk to public safety, giving special attention to the inmate’s age. As it stands, eligible candidates will have “elderly parole” considered at their next regularly scheduled BPH hearing but can ask that their case be considered earlier.

It is estimated that less than 100 inmates statewide are eligible for the program.[3]

Youth Offender Parole

Under this program, an inmate serving a long sentence for a crime committed while they were underage[4] may be eligible for early release.[5] The point at which they become eligible for a parole hearing depends on the sentence they received. If the offender received a long determinate sentence, they will be eligible for a hearing after serving 15 years. If the offender received a sentence of fewer than 25 years to life, they will be eligible for a hearing after serving 20 years. If they received a sentence of 25 years to life, they will be eligible for a hearing after serving 25 years.

Although these parole hearings will be similar to other types of parole hearings, it is expected that the hearing officers handling these cases will give more weight to (1) the fact that juveniles are thought to have “diminished culpability” due to their youth and are not as proficient as adults in understanding the risks of committing crimes and the consequences that flow from breaking the law, and (2) the personal growth and maturity of the inmate since the offense was committed.

During the program’s first nine months of use, nearly 200 “youthful offender parole hearings” had been held.

For more information, see the information sheet here.

Alternative Custody Program

Yet another way in which the state is decreasing overcrowding is to allow non-serious, non-violent offenders and non-sex offenders to serve the last portion of their sentences in an alternative custody location. These locations may include residential homes, nonprofit residential drug-treatment programs, or transitional care facilities that offer individualized services based on an inmate’s needs. The hope is that this program can help reintegrate offenders into their communities.

The State chose to implement this program by first focusing on female inmates. To be eligible, an inmate must volunteer and have 24 months or less to serve in state prison. An inmate is ineligible if they are incarcerated for committing a serious or violent felony,[6] have a current or prior sex-offense conviction or PC 290 registration requirement, made an escape attempt at any time within the last 10 years, have been cited for certain in-prison misconduct, have an active restraining order filed against them, have any affiliation with a gang, or have a felony or Immigration and Customs Enforcement hold. Although not determinative, an inmate may be denied access to an alternative custody program if she has current or prior sexual conviction not requiring PC 290 registration, current or prior child abuse arrests or convictions in which the offense was related to abuse or neglect of a child, or current or prior convictions for stalking.

At this time, it is unclear how the program will expand.

For more information, see the CDRC fact sheet here.

[1] As defined by Cal. Penal Code 667.5(c).

[2] Certain inmates are excluded from this program including those serving time for a current violent offense conviction, those who were ever convicted of a crime that requires them to register as a sex offender, those who recently served or are serving a Security Housing Unit (SHU) term, those on “C-status” (inmates who have refused to work or are not assigned to a work program due to misconduct), or have received certain 115 violations.

[3] California To Begin Paroling More Elderly, Medically Frail Inmates, available at http://www.californiahealthline.org/articles/2014/6/17/california-to-begin-paroling-more-elderly-medically-frail-inmates

[4] To be eligible the inmate must have been underage at the time they committed their crime and tried as an adult.

[5] An inmate is not eligible for this program if their sentence was a third strike under three-strikes laws; the result of a one-strike rape, of life without parole.

[6] As defined by Penal Code § 1192.7(c) or § 667.5(c).

In 2010, Darius Clark was convicted of felonious assault and child endangering for abusing a three-year-old boy, his girlfriend’s son. Because the boy was deemed “incompetent” to testify due to his very young age, prosecutors called the boy’s Head Start Program teacher to testify, to provide information as to who had caused the bruises and the swelling on the boy’s face one day. The teacher stated that when the boy was asked who had hurt him, the boy stated it was Clark.[1]

This case reached the U.S. Supreme Court because Clark claims that the trial court made an error in allowing the teacher to provide that testimony. It was an error, he believes, because it denied him his constitutional right to confront his accuser, the young boy. As a result, the court is now deciding whether “out-of-court statements that children make to their teachers about abuse can be used as evidence if a child is unable to testify in person.”[2]

Previously, the court had held that such statements, if made to law enforcement officers, would be hearsay, and thus would not be admissible. Because teachers are legally required to report suspected child abuse to law enforcement, Clark’s attorneys have argued that “teachers are in the same position as law enforcement officials when they question children” in these situations.[3] The Ohio state Appeals Court and the Ohio Supreme Court agreed, overturning his conviction.

In response, the lawyers representing Ohio asserted that the right to confront accusers applies only if (1) it is a government official or one of their agents talking to the child, and (2) the official or agent is talking to the child in preparation for a criminal prosecution. Where teachers are talking to students, he posits, “it’s simply a conversation between a teacher and student;” such conversations are to “protect children from immediate harm and remove them from danger, not to compile evidence for a criminal prosecution.” [4] This is an opinion shared by forty-two other states, citing concerns that to rule otherwise would shield abusers from prosecution.

The case was argued before the Supreme Court in early March and a decision is expected soon.

[1] Ohio v. Clark, ___ U.S. ___(2015).

[2] Sam Hananel, High Court Weighs Limits on Child Abuse Evidence, FindLaw.Com (Mar. 2, 2015).

[3] Sam Hananel, High Court Weighs Limits on Child Abuse Evidence, FindLaw.Com (Mar. 2, 2015).

[4] Sam Hananel, High Court Weighs Limits on Child Abuse Evidence, FindLaw.Com (Mar. 2, 2015).