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As summer is officially here, more stories of individuals leaving children in hot vehicles start to appear. Even more unfortunate are the horrific stories of children who perish as a result of heatstroke due to rising ambient temperatures while trapped in the vehicle.
While it is extremely rare for the adult to intend the child harm, in many cases, the individual responsible for the child, in fact, intended to leave the child in the vehicle, and just may not have appreciated the danger of doing so.
Regardless of the circumstances leading to criminal charges for leaving a child in a vehicle, the individual responsible for doing so should engage the services of acriminal defense attorney to assist with the legal ramifications.
In this case, the mother’s attorney is asserting that the death, while obviously unfortunate, is an accident and that the child’s mother truly did not realize that she left her daughter in the vehicle, believing until she saw her daughter’s lifeless body, that she had taken her to daycare.
A discussion of California’s Unattended Child in Motor Vehicle Safety Act (USMVSA), as well as potential arguments against prosecution, will follow below.
What Age Can You Leave a Child in The Car?
In 2002, the California Legislature passed the USMVSA, which made it a fineable offense to leave a child, aged 6 or younger, in a vehicle without supervision of someone 12 years of age or older if:
doing so presents a significant risk to the child’s health and/or safety, or
the vehicle is running or the keys are left in the ignition.
Importantly, this Act does not prevent the individual responsible for the child from being charged with any other provision of the California Penal Code, such as manslaughter.
In any event, there are a number of precautions an individual responsible for a child can take to ensure that leaving a child in a vehicle unattended does not occur, even accidentally, including:
Practicing a “Look Before Lock” routine, to get into the habit of looking in the back seat before locking the vehicle;
Avoiding distractions;
Scheduling a call as a reminder to ensure the child arrives at his/her destination; and
Placing a reminder in the vehicle to check the back seat at one’s destination, such as placing a stuffed toy in the front seat, and getting into the habit of putting it in the child’s car seat every time the vehicle is emptied.
Are There Any Defenses to Leaving a Child Unattended in a Car?
While many believe there is no excuse for leaving a child unattended in a vehicle, there are countless stories of parents making honest mistakes that, unfortunately, have led to devastating consequences.
In some cases, children can remain so quiet or sleep so peacefully that it is easy to forget they are in the back seat. In other cases, an individual’s daily routine has changed, which can lead to honest forgetfulness about dropping off or picking up a child from daycare.
Unfortunately, the heat of the summer does not concern itself with the reasons why a child has been left unattended in a vehicle, and, as illustrated above, disastrous results can occur. While it will never erase the tragic loss of a child to vehicular heatstroke, an experienced criminal defense attorney may be able to help the individual responsible for the child if his/her actions were a truly honest mistake.
In addition, evidence the accused was not responsible for the child or caused the dangerous condition could also be used to combat this charge.
Should I Hire a Lawyer If I’m Criminally Charged for Leaving a Child in a Car?
If you have been charged with violating the Unattended Child in Motor Vehicle Safety Act, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible.
Although the results may, unfortunately, be tragic, extenuating circumstances may mitigate any punishment you can receive, and the attorneys at Manshoory will use their expertise to build a defense to obtain the best possible results.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
The ability to identify individuals is an important priority for law enforcement. As time goes by, the amount of cold cases only increases, and the potential to associate a suspect with a crime can go a long way toward solving these cases. To assist law enforcement in this endeavor, in 2004, California passed Proposition 69, the “DNA Fingerprint, Unsolved Crime, and Innocence Protection Act.”
Essentially, this Act required law enforcement to take a DNA sample of everyone who is arrested on suspicion of a felony. The DNA sample is then checked against a national database to see if the arrestee was involved in another criminal matter. Anytime criminal charges are a possibility the services of an attorney experienced in criminal defense should be secured because defending against a charge in which DNA has implicated a person is almost impossible to do alone.
Further, the California Supreme Court recently upheld Proposition 69 as not violating either California or U.S. Constitutions. A discussion of this decision, and what it will mean going forward, will follow below.
People v. Buza
As alluded to above, in 2004, Proposition 69 was passed and codified into law, which directed law enforcement to obtain a DNA sample of every person arrested under suspicion of committing a felony.This direction applies to everyone arrested for a felony, including those apprehended without a warrant or any finding by a judge that there was sufficient cause for the arrest. The State then stores these DNA samples and allows these samples to be searched continuously by other law enforcement agencies around the country.
The primary issue people have with this law is that it is overreaching, in that it affects anyone arrested for suspicion of a felony, including those who are never charged with a crime, approximately 33% of all such arrestees.As a result, law enforcement agencies have this immensely private information at their disposal for an infinite amount of time. This, opponents assert, is a tremendous invasion of privacy.
The law does provide for a means by which one can have his/her sample destroyed and any registration of information contained within the sample purged from storage. However, it is a very complicated process to have it destroyed and purged, if not impossible.
The Aftermath
Initially, it is important to note that the holding in Buza is specifically limited to the facts of that particular case, and the California Supreme Court did not speculate on the constitutionality of the law as applied under different circumstances. In fact, the court noted that an individual arrested in the future without, as in Buza, probable cause, could have a valid challenge to the adequacy of the law’s expungement procedures or other aspect of the law.
The law does allow a person to refuse to submit to a DNA test. However, doing so is a misdemeanor, punishable by up to $500 in fines and up to 1 year in prison, and creates a criminal record that brings its own set of issues.
Additionally, also as mentioned above, there is a destruction and purge process. An experienced criminal defense attorney can definitely assist in this procedure to ensure the technicalities of the rules do not block a legitimate request.
The best scenario is the California Legislature corrects the serious privacy issues with the law, which it started to do in 2015, after the California Supreme Court initially granted review of this case. But, whether those revisions will materialize in the wake of the Court’s decision remains to be seen.
Hire A Criminal Defense Attorney
If you have been arrested on suspicion of a felony, and have been required to provide a sample of your DNA to law enforcement, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible. The attorneys at Manshoory will use their expertise to hopefully force law enforcement to destroy the sample, and help you keep your private information private.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
A sad reality is that anyone can be a victim of domestic violence. To protect these victims, domestic violence laws have been established. While such laws, as any law proscribing conduct which society has deemed to be detrimental, have gone a long way in punishing aggressors, in some cases, the laws, as written, cast such a wide net that unintended persons are caught.
An experienced domestic violence attorneycan help these individuals. California’s Domestic Violence Prevention Act is one of these such laws, written in such vague terms that unwarranted restraining orders have been levied against persons who are not the intended targets – that is, persons whose actions do not rise to the level of aggression intended by the California Legislature when drafting the statute.
A discussion of the vagueness of the California Domestic Violence Prevention Act, and the consequences of being accused of its violation, will follow below.
What Is California’s Domestic Violence Prevention Act?
In 1993, the California Legislature enacted the Domestic Violence Prevention Act, which is intended to prevent the abuse of a person by an aggressor with whom the person has a special (sometimes called intimate) relationship. Specifically, the law prohibits the following actions:
Intentionally or recklessly causing or attempting to cause bodily injury;
Sexual assault;
Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another;
Engaging in the following types of behavior: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying the personal property of, contacting either directly or indirectly by mail or otherwise, and/or disturbing the peace of another party.
As mentioned above, there must be a special relationship between the aggressor and the victim. Specifically, the victim must be any of the following:
A current or former spouse;
A current or former cohabitant;
A person in or formerly in a dating or engagement relationship;
A co-parent (i.e., the two persons are parents of a child together);
A child of a party; or
Any other person related by blood, marriage, or adoption within two degrees.
What are the Consequences of Domestic Violence?
As written, the statute is very vague as to what specifically constitutes domestic violence. However, as noted by a Professor of Law in the story linked above, the statute should be vague so that a wide range of detrimental behavior can, in fact, qualify as domestic violence, but it is then up to a judge to make sure the language is being applied in a fair way to every particular situation.
However, this is not necessarily what occurs, and consequences of being found in violation of the statute – the imposition of a restraining order against the violator – can have a wide-ranging effect. In fact, the article notes that a phone call or calling someone a name can be considered domestic violence, assuming they qualify as an intimate partner or household member.
Restraining orders are public records, and any individual can conduct a search to find out who has a restraining order imposed against them, including potential employers. To this end, many employers will not hire such a person. Further, some professions require termination when such an order has been imposed. Additionally, security clearances can be revoked for these people. Such restraining orders also appear in law enforcement databases.
Another issue is that one may not own a firearm during the enforcement period of the restraining order, which typically would mean the loss of a job for someone who uses a weapon in their employment, not to mention a loss of rights for anyone who owns a weapon for self-defense or for hunting. Finally, a restraining order can have a material effect on custody and visitation, potentially preventing a parent from interacting with his/her child.
If you have been charged with violating California’s Domestic Violence Law, and do not believe your actions are consistent with the intent of the statute, contact an experienced criminal defense attorney as soon as possible. The attorneys at the Los Angeles law firm Manshoory Law Group, APC will use their skills to build a defense on your behalf to obtain the best possible results.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
When apprehending or subduing a suspect, law enforcement is allowed to use reasonable physical force. Typically, such use of force would include bracing a suspect against a wall or the ground as he/she handcuffs the suspect.
If a suspect resists, then law enforcement is authorized to counter the resistance with additional degrees of force, including lethal. In most cases, the use of force by a law enforcement officer is justified.
However, when the degree of force trips the reasonable line into excessive, and, in some cases, fatal, the services of an experienced criminal defense attorney may be needed. The California Legislature is currently considering legislation that would restrict the use of lethal force by law enforcement to those situations in which it is necessary to prevent imminent and serious bodily injury or death.
A discussion of the excessive use of force by law enforcement, as well as the proposed law, will follow below.
Current Use of Force Law
The use of force generally means the amount of effort required by law enforcement to compel compliance by an unwilling individual. Use of force doctrines are employed by law enforcement in an effort to balance the needs of security with ethical concerns for the rights and well-being of individuals.
In other words, law enforcement is permitted to use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient.
Excessive force refers to situations where law enforcement, otherwise legally entitled to use force, exceed the minimum amount necessary to diffuse an incident or to protect themselves or others from harm.Constitutionally speaking, an individual’s right to be free from the excessive force is found in the reasonable search and seizure requirement of the Fourth Amendment and the prohibition on cruel and unusual punishment in the Eighth Amendment.
Existing California law authorizes law enforcement to arrest individuals pursuant to a warrant or based upon probable cause. Under this law, an arrest may be made by the actual restraint of the individual or by submission to the custody of the arresting law enforcement officer. Further, this law authorizes a law enforcement officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance.
Additionally, current law does not require a law enforcement officer to retreat or desist from an attempt to make an arrest because of resistance or threatened resistance of the individual being arrested.
If an arrestee dies due to excessive force, the homicide would most likely be justifiable if committed when the individual has committed a felony and is either fleeing or resisting the arrest.
California’s New Regulation on Excessive Force
AB 392, if passed, would redefine the situations in which a homicide by law enforcement is justifiable. Specifically, homicide would be justifiable if in self-defense or the defense of another, or when necessary to prevent the escape of a felon whose immediate apprehension is necessary to prevent death or serious injury.
Further, the bill would deem a homicide unjustifiable if law enforcement acted in a criminally negligent manner, including if the criminally negligent actions created the necessity for the use of deadly force.
How Much Force Can Police Use During an Arrest?
The U.S. Supreme Court has held that the right of law enforcement to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat. However, the degree of force used by law enforcement must be proportional to the threat and only escalate in response to the threat.
Excessive force refers to situations where law enforcement uses force that exceeds the amount necessary to diffuse an incident or to protect themselves or others from harm. The Constitutional right to be free from the excessive force is found in both the reasonable search and seizure requirement of the Fourth Amendment and the prohibition against cruel and unusual punishment of the Eighth Amendment.
Again, turning to the Supreme Court, the Court has set the floor by noting that lethal force can only be used during an arrest if:
Such force is necessary to prevent the escape of the suspect; or
Law enforcement has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
In California, the law notes that, when law enforcement has reasonable cause to believe a suspect has committed a crime, he/she “may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.”
If the suspect flees or forcibly resists, law enforcement “may use all necessary means to effect the arrest.” Finally, it should be noted that, if a suspect is aware or should be aware that he/she is being arrested, they are required “to refrain from using force or any weapon to resist such arrest.”
Additionally, the U.S. Supreme Court has held that law enforcement, only with probable cause to believe a suspect poses a threat of serious harm to the officer or others, may use deadly force to prevent escape. However, law enforcement is instructed to warn a suspect before using deadly force.
Actions that Can Be Considered Excessive Force by Police
As mentioned above, the California Assembly is debating a bill that would raise the floor set by the U.S. Supreme Court, and permit law enforcement to use lethal force only when necessary to prevent imminent and serious bodily injury or death to law enforcement or a third party.
Accordingly, the lethal force would only be justified in the following situations, given the totality of the circumstances:
There are no reasonable alternatives available, including warnings or other non-lethal means; or
Where law enforcement has probable cause to believe that the person has committed or intends to commit, a felony involving serious bodily injury or death, and there is an imminent risk of serious bodily injury or death to the officer or to another person if the subject is not immediately apprehended.
Additionally, the bill would make a homicide committed by law enforcement justifiable only if, as stated above, the use of lethal force was necessary given the totality of the circumstances, but, importantly, would exclude those situations in which the gross negligence of law enforcement contributed to the necessity.
Can I Sue the Police for Excessive Force?
If you are the subject of the excessive use of force by law enforcement, engage the services of an experienced criminal defense attorney as soon as possible. The Los Angeles attorneys at the Manshoory Law Group, APC handle a wide variety of criminal offenses and know how to use evidence of the excessive force to convince judges and prosecutors to dismiss, drop or reduce criminal charges.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
Typically, criminal trials occur in two phases – a first phase to determine guilt, and, if the determination is positive, a second phase to determine the sentence. While most people assume, due to the prevalence of trials in television dramas where the verdict ends the show, that the trial ends at this point, in reality, the trial of the now-convicted defendant moves to asentencing phase. In the sentencing phase, new and additional evidence may be presented to the court that could result in a reduced sentence.
However, there is also the possibility that the prosecution will present evidence that may have the opposite effect – increasing, or enhancing, the sentence. California has many statutes relating to sentence enhancements; its Habitual Offender Laws (also known as Three Strikes Laws) is one of the more well-known. As a result, over 80 percent of those incarcerated in California prisons are serving an extended period of time, due to at least one enhanced sentence provision.
However, the California Legislature is considering a bill to reform two of the more commonly used enhancements. A discussion of how sentence enhancements work, as well as what the bill is intended to reform, will follow below.
Sentencing Enhancements
Generally, an enhanced sentence is a sentence that is increased from one classification of offense to another, with higher classification, as a result of a prior conviction or the nature of the circumstances involved. Enhanced sentence laws are present in both federal and state laws, and, as such, vary by jurisdiction.
Looking at California, its Habitual Offender Law requires a defendant convicted of a felony, and who was previously convicted of a serious felony, to be sentenced to twice the prison term required by the newer felony. And, further, if a defendant is convicted of a serious or violent felony, with two or more prior convictions, the law mandated a prison term of at least 25 years to life, though, amendments passed in recent years allow for a sentence reduction if the third conviction was for a non-violent offense.
The intent of this law is to deter a convicted offender from committing new crimes upon release. However, and the primary reason the Legislature is considering these reform bills, there seems to be little evidence that the deterrence factor of sentence enhancing laws actually works (on the other side, proponents of sentence enhancement assert that they are necessary to allow sentences to accurately reflect one’s criminal history).
Specifically, research, including that by the National Institute of Justice, maintains that long sentences do not serve to deter people from committing further crimes, and, in fact, contribute, instead, to overcrowded prisons and cost taxpayers money.
Senate Bills 1392-1393
If enacted, the two bills, currently in the Appropriations Committee, would eliminate a one-year sentence enhancement for defendants with prior jail or prison terms, as well as allow a judge to ignore a defendant’s prior felony conviction for purposes of imposing additional sentence terms for serious felonies. According to the California Department of Corrections and Rehabilitation, these two enhancements affect 16,177 and 19,677 sentences, respectively, through Dec. 1, 2017.
It is to be noted, regarding the last aspect stated above, it is not as if the prior felony conviction will have no effect. Rather, it will be up to the judge’s discretion whether to include it when he/she is considering sentence enhancements. In this case, having an experienced criminal defense attorney on the side of a defendant is critical to convincing the judge to disregard the defendant’s prior criminal history.
Hire a Criminal Defense Attorney
If you have been charged with a crime, and have a previous criminal history, seek representation by an experienced criminal defense attorney as soon as possible. The attorneys at Manshoory Law Group have a breadth of knowledge regarding criminal law in California and will know what arguments and evidence will put you in the best possible situation. Attorneys are available 24/7 to take your calls. Contact our Los Angeles office today for an initial consultation.
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