by Andy Chen | Apr 11, 2020 | California, Constitutional Law, Criminal law
In this post, I’m going to go over a situation that I’m sure we’ve all seen. I’m not sure how often it occurs in reality, but when it does occur, it always seems to go viral. Can you take a photograph or video of law enforcement when they’re making an arrest or detaining someone for an investigation? A lot of the videos I’ve seen before where, for example, someone tries to record law enforcement officers making an arrest involve one or more of the officers threatening or informing the person to put their camera away because making a recording “interferes” or “obstructs” the officers in some way. Three thoughts come to my mind in response to a statement like that: There are enough cameras nowadays everywhere that we’re all being videotaped and photographed in some way every day. This doesn’t even consider the stuff that people voluntarily share on social media. It’s implausible for anyone to expect that anything they do out in the open on a public street is private or confidential in anyway. If you want privacy, confidentiality, etc, you’re not going to find it on a public street. Government is supposed to be transparent as well which means that any government employee (e.g. law enforcement officers) should expect that the public would be interested in what they do. For all of these reasons, I personally don’t buy in to the argument that merely recording or photographing law enforcement officers detaining someone, arresting someone, etc is obstruction, interference, or is in some way improper. If you feel similarly and you’re in California, you’re in luck because California...
by Andy Chen | Feb 17, 2020 | California, Criminal law, Statutes... and stuff
In court, there are a ton of rules about what evidence can be used and what evidence can’t be used. In past posts, I’ve described how only relevant evidence (in California; in New York and under Federal law) can be used in court. What occurred in the real world is often not what is dealt with in court. Many laypeople are shocked to know this when they get involved with their first court case. In California state court, the set of rules that govern what evidence can and can’t be used is the California Evidence Code. In federal court, there are the Federal Rules of Evidence. The specific name varies, but every jurisdiction in the United States generally has its own set of evidence rules. One major component of the evidence rules — regardless of jurisdiction usually — is hearsay. Hearsay is easy to define — I learned it in law school as (1) statement, (2) made by a person, (3) outside of court, and (4) an attempt is being made to admit that evidence for the truth asserted therein. See section 1200 and onward in the California Evidence Code. These criteria are, obviously, fairly basic. As an aside, in the real world, it’s rare that you would quickly be able to tell if these criteria are satisfied. You’d likely have to answer some more nuanced questions first, such as “What exactly is a ‘statement’?” Anyway, aside over. If these 4 basic/simplified criteria are met, then the statement can’t be used in court… unless an exception of some kind applies. As many law students in the US — and...
by Andy Chen | Apr 23, 2019 | California, Criminal law
Is it possible in California to get charged with drunk driving (aka “driving under the influence”) if you’re high on drugs instead of intoxicated on alcohol? Absolutely. I’m guessing that that isn’t widely known given the fact that I snapped the above picture on April 21, 2019 on Highway 99 in Merced County, California. Weirdly, there are several laws that apply here. I’m going to mention four of them. First, there is California Vehicle Code Section 23152(f). It’s short and sweet. It specifically says: “It is unlawful for a person who is under the influence of any drug to drive a vehicle”. You would think that this would be clear enough to not need another law, but you’d be wrong. The problem that arises under Section 23152(f), however, is that there isn’t a specific standard by which “under the influence” of a drug can be proven like it can be with a Blood Alcohol Content of 0.08 or more for alcohol intoxication. To address this problem, California has two additional laws — Vehicle Code sections 23220 and 23221 — which forbid the driver and passenger of a vehicle from using alcohol, marijuana, and marijuana products while the vehicle is being driven. Lastly, Vehicle Code section 23152(g) makes it “unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.” As always, this post is not intended to be a comprehensive discussion of the topic, but I hope you found it helpful nonetheless. If you have a situation involving a drug DUI or other topics described in one of my blog...
by Andy Chen | Oct 29, 2018 | California, Criminal law, Individual
In California, arraignments are generally the first time that a criminal defendant makes their appearance in court. Every arraignment is slightly different because no two cases and no two courts are exactly the same. If you are facing misdemeanor criminal charges in California and want to learn more about what happens at an arraignment, I have video on my Youtube channel about it. Depending on the particular court you’re in, the judge you’re in front of, etc, you may have the option of doing something called a Clerk’s Arraignment instead. It is what it sounds like — you get arraigned in front of a court clerk (i.e. a non-judge who just works for the court) as opposed to an actual judge or court commissioner. Some of you might be going ‘Whoa, what? Is that legal?’ The answer is that it is, but – in my experience at least – it is not common. I would guess that I encounter it less than 10% of the time on misdemeanor cases. All of those are on cases where the defendant has his or her own attorney (i.e. not the public defender). I have never seen a Clerk’s Arraignment done in a case where the defendant is appearing without a lawyer. If you have, leave me a comment down below. There are many reasons why a Clerk’s Arraignment might be done. One is speed. For the vast majority of misdemeanor cases, arraignment is routine and uneventful for an attorney to do. Additionally, misdemeanors are very common so it is not unusual for an attorney to wait in line for 45 or more...
by Andy Chen | Sep 16, 2018 | California, Criminal law, Individual, Law School Help
I’m guessing a lot of you know what carjacking is — namely, the stealing of a car from another’s possession. I might be wrong, but I think carjacking started happening in the 1980s or so in California when those wanting to steal a vehicle realized that stealing a parked vehicle with no keys was rather difficult. Stealing a vehicle that had been unlocked and started by the owner was much easier and all the thief had to do was threaten the owner. Anyway, in California, the criminal offense of carjacking is defined in California Penal Code section 215(a) which states: “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” Clearly this is a mouthful, but if you break it down, the basic elements of a carjacking are: the taking by means of force or fear of a motor vehicle that is in the possession of another, including a passenger of the motor vehicle from the person or the immediate presence of that other, against the will of the possessor with the intent to deprive the possessor of their possession of said vehicle Each of these elements could, in theory, be the source of disagreement between the prosecution and the defense. For instance, the prosecution might say the vehicle...
by Andy Chen | Mar 13, 2017 | California, Criminal law, Law School Help, Law, in real life, Statutes... and stuff
In a previous post, I described the offense of civil battery in California. This post is about how battery is treated under California criminal law. To remind you, the end result of criminal law is the defendant undergoes some form of incarceration (e.g. jail time, probation, etc) while the end result in civil law is to obtain a money judgment or injunctive relief of some kind for the injured plaintiff. Regardless of whether you look at it under civil law or criminal law, a battery is — in essence — the defendant hitting the plaintiff in some way. Civilly, this is phrased as a harmful or offensive touching by the defendant against the plaintiff resulting in injury. California defines criminal battery in California Penal Code section 242 as “any willful and unlawful use of force or violence upon the person of another.” (I encourage you to actually look up section 242 as it is surprisingly short. That quote above is, literally, all it says.) The potential sentence for battery is described in California Penal Code section 243(a) which is, unfortunately, much longer and a more difficult read than section 242. The sentence for battery depends, at a minimum, on who the victim is (e.g. spouse, police officer, etc) and how serious the resulting injury is. Criminal sentencing in general and California in particular can be confusing and complicated. As always, if you have any doubt about your particular situation, consult an...
