California DUI - No Driving Defense

California DUI - No Driving Defense

The first element that must be met before anyone can be convicted of a DUI in California is "driving" a motor vehicle. This blog will discuss the element of "driving" and how it can be proven even without an actual witness to the alleged driving.

Circumstantial evidence of driving for DUI prosecutions

When the defendant is in the driver's seat of his car as he speeds down the 405 freeway, "driving" will not be an issue. The issue of "driving" typically arises when the evidence of driving is merely circumstantial. In those instances, usually, the defendant is found passed out behind the wheel of a parked car, or standing outside the vehicle when the police arrive on the scene of a crash. Despite the lack of an eyewitness to driving, the circumstances can dictate that the defendant had been operating the vehicle just prior to the arrival of the police.

Below are a few examples of cases that illustrate scenarios in which a court may find sufficient circumstantial evidence of "driving" a motor" vehicle.

• The defendant was the registered owner of a car that appeared to have just been in a collision and matched the witness' description; defendant was visibly shaken when police spoke to him at the scene and he cooperated with field sobriety tests;
• Defendant who had been observed driving away from a bar was later found behind the wheel of the wrecked vehicle;
• Sole occupant of a car was found slumped over the driver's seat immediately after the collision, even though the car's engine was not running and the car was not moving.

Consult with an Orange County DUI Defense Lawyer to discuss the possibility of a "no drive" defense to successfully avoid a DUI conviction.

What Is Retrograde Extrapolation?

Retrograde extrapolation is the process of predicting what an alcohol level would

have been at an earlier time based on a Blood Alcohol Concentration (BAC) taken some time later. 

This becomes important when there is a delay in obtaining the blood or breath alcohol sample or when alcohol was supposedly consumed after the offense but prior to providing the sample. Retrograde extrapolation is also used to predict the number of drinks a DUI suspect would have had to consume to reach the reported BAC. It is affected by numerous factors such as the amount a subject had to drink, types of drinks ingested, and what and when the person last ate.

Retrograde extrapolation is not a simple task. In order for it to accurately predict the BAC at the time of the offense, an expert witness would need to know several pieces of information, such as:

• the weight of the subject, 
• when the last drink was ingested, 
• what/how much the subject ate before drinking, 
• the percentage of alcohol in the drinks consumed and the volume of the drinks consumed. 

Note: this process assumes that the defendant has reached peak absorption and is in the elimination phase at the time of the test. 

Matthew B. Wallin, Esq.
MBW@wklaw.com

10.0 rated Criminal Defense Lawyer

Lawyer Matthew Wallin | Top Attorney Criminal Defense

Drunk Driving Information - Indicators of Intoxication

Appearance and Demeanor

It is almost universally accepted that the indicators of intoxication are fatally flawed because sober individuals can be characterized as drunk drivers. According to legislative findings, there are approximately 60 pathological conditions that exhibit symptoms of alcohol consumption, despite the lack of alcohol being present. Alcohol symptoms may be the product of illness or medication, insulin overdose or deficiency, nervous system injuries, concussions, or hypoglycemia. Nevertheless, officers are adamant that their observations conclusively prove intoxication.


The following is a list of the most frequently cited activities that indicate intoxicated behavior:
1) odor of alcohol
2) fumbling with wallet
3) bloodshot, watery or glassy eyes
4) slurred or thick speech
5) flushed complexion
6) staggering and stumbling
7) clothing in disarray or poor grooming
8) rambling or despondent

Hiring a DUI defense lawyer is imperative. Your attorney must rebut this evidence by providing alternative explanations for the officer's alleged observations. A savvy criminal defense lawyer knows that each indicator of intoxication can be refuted with legitimate sober behavior. This can create reasonable doubt to gain an acquittal.

Miranda Warnings and Miranda Myths

Miranda warnings are connected to your right against self-incrimination and your right to have legal counsel before a custodial interrogation.

Miranda Warnings
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to have an attorney present before any questioning.
4. If you cannot afford an attorney, one will be appointed to represent you before any questioning.
5. Do you understand these rights?

MIRANDA MYTHS

Miranda does not always apply. Miranda only applies when all three of the following are present:
1. you are being interrogated;
2. you are being interrogated by a police officer, or another law enforcement official; and
3. you are in custody or reasonably believe that you are in custody.

WHEN IS A SUSPECT CONSIDERED "IN CUSTODY" FOR PURPOSES OF MIRANDA?

There is no easy clear-cut answer here. Generally, you are deemed in custody when you, as a reasonable person, do not feel free to leave the situation. Sometimes referred to as the "free to leave" standard. For example, you are either being physically restrained or told by a law enforcement officer that you are not free to leave.

It is important to understand that under certain circumstances cops can approach and question you without having to read you your Miranda rights. Miranda is generally not required at a traffic stop or during a DUI investigation. In addition, Miranda warnings are not always required immediately upon an arrest.

Consult with a knowledgeable criminal defense lawyer to determine whether any of your constitutional rights were violated during an encounter with cops.

Beyond A Reasonable Doubt: The Burden of Proof In A Criminal Case

Read my article on Schools.com about the burden of proof in a criminal case, beyond a reasonable doubt

Here is the link: Beyond A Reasonable Doubt: The Burden of Proof In A Criminal Case

"REASONABLE DOUBT" - confusing the hell out of jurors since 1657

Referral For Prosecution — Classification of Crimes

If the prosecutor decides to file charges...

A criminal complaint will be prepared and filed with the appropriate court accusing a defendant with the commission of one or more crimes. The complaint is filed with the clerk of the court and assigned a case number and arraignment date.

Read more:  Referral For Prosecution — Classification of Crimes 

What Kind of "Agreement" Amounts To Criminal Conspiracy In California?

Read this free legal guide regarding criminal conspiracy charges in California - Criminal Conspiracy In California

Matthew Blake Wallin's - PRACTICE AREAS

Matthew Blake Wallin's PRACTICE AREAS:

1. Southern California Criminal Defense Law
2. Felony
3. Misdemeanor
4. Avoiding Jail Time
5. Drunk Driving
6. Orange County Criminal Courthouses
7. Los Angeles Criminal Courthouses
8. Legal Representation
9. Drug Cases
10. Expungements
11. Sealing Criminal Record
12. Alternative Sentencing
13. Juvenile Law
14. Criminal Law
15. Criminal Defense
16. Legal Research
17. Appeals
18. Sentencing
19. Probation and Parole
20. Suspended License
21. Alcohol Offenses
22. DUI
23. Theft Offenses
24. Burglary
25. Hit and Run
26. Legal Marketing
27. Restraining Order
28. Family Law
29. Warrants
30. Assault & Battery
31. Bail
32. County Jail
33. Domestic Violence
34. Drug Diversion
35. Internet Crimes
36. Weapon Offenses
37. Marijuana Defenses
38. Criminal Process
39. Jury Trial
40. Infraction
41. Litigation
42. Petty Theft
43. Shoplifting Defenses
44. Vandalism
45. Driving Offenses
46. Military Crimes
47. Veterans Court
48. DUI Court
49. DMV Hearings
50. DMV Matters

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I believe BEYOND A REASONABLE DOUBT - Matthew B. Wallin, Esq.

I believe BEYOND A REASONABLE DOUBT in standing up for the dignity of the human beings who I come to represent in criminal courts. I embrace my duty to demand respect for the accused from the very system that is prosecuting them. My mission is to help each client realize some sense of the elusive presumption of innocence - Matthew B. Wallin, Esq.

The Science Behind Successful DUI Defenses - Matthew B, Wallin, Esq.

In order to successfully defend those charged with DUI in California, a criminal defense attorney must understand the science of Drunk Driving offenses. DUI cases are very unique and require specialized knowledge and attention.

For example, when an individual consumes an alcoholic beverage or has a shot of alcohol, the alcohol is absorbed through the stomach and large intestine. It is then carried in the blood to the brain. The absorption phase takes sufficient time. Generally, it is said that one's body reaches peak absorption approximately fifteen to thirty minutes after the first drink (on an empty stomach). If a large meal is involved or drinking occurs on a full stomach, peak absorption it more difficult to predict. On a full stomach, peak absorption may occur 30 to 90 minutes plus after the first drink.

WHY IS THE ABSORPTION PROCESS IMPORTANT IN THE DUI CONTEXT?

If you look at California DUI Laws (California Vehicle Code Section 23152a and California Vehicle Code Section 23152b) you will notice that the law specifies "above the legal limit AT THE TIME OF DRIVING. Notice the law is not at the time of chemical alcohol testing - which can occur anytime after a DUI arrest. A chemical test result for Blood Alcohol Content (BAC) may be inaccurate based on the scientific breakdown of absorption.

In summary, science is at the very heart of DUI prosecutions and successful defenses. Make sure your DUI attorney has the requisite knowledge and experience.

KNOW YOUR RIGHTS. PROTECT YOUR FREEDOM

Matthew B. Wallin, Esq. - Connect on LINKED in
MBW@wklaw.com

Matthew Blake Wallin - California’s Top 50 Criminal Defense Attorneys Online

Top 50 California Criminal Defense Attorneys Online, which recognizes California’s most influential and social attorneys in various online media.

Top 50 Criminal Defense Attorneys

Lawyer Matthew Wallin | Top Attorney Criminal Defense

Orange County Creates Court Designed For Veterans Only

Follow this link - Orange County Creates a Veterans Court - to read about the purpose and goals of Orange County California's Veterans Court.

If you are looking for a veteran's attorney in Orange County, contact Matt Wallin of Wallin & Klarich. Wallin & Klarich is an experienced criminal defense firm, unique from other criminal defense firms. Our attorneys not only have a superior understanding of the specific laws and evidentiary standards applicable to your case, we are also well-versed in determining the availability and potential eligibility for ways to get our clients the treatment they need and deserve, rather than the reality of state prison or county jail time they face.

Matt Wallin - Attorney Endorsement - "His knowledge of the law and the courts was extraordinary"

Matt Wallin - Attorney Endorsement 

"It was immediately obvious that attorney Matt Wallin was remarkably distinct from any other lawyer we had met"

"My sister and I came to Matt Wallin filled with more anxiety and stress than either of us had ever experienced before. My sister was accused of a misdemeanor offense; if found guilty this would compromise her entire future as a prospective law student and would devastate her life and career prospects.  We were fortunate enough to meet Orange County criminal defense lawyer Matt Wallin after having already visited 8 other attorneys from other firms in whom we lacked trust. It was immediately obvious that Matt Wallin was remarkably distinct from any other lawyer we had met. 

From the moment we met, Matt Wallin was attentive, empathetic and kind. He provided constant reassurance that he would strive to achieve the best outcome for my sister. It was very apparent that his knowledge of the law and the courts was extraordinary. His familiarity with other such cases reaffirmed to us that it absolutely had to be Matt Wallin who would represent my sister. 

We were constantly reminded that we should feel free to ask as many questions as we deemed necessary. Attorney Matt Wallin is an extremely compassionate and patient person. He treated us with the utmost respect and is a complete gentleman. 

We had become so disillusioned by other attorneys that it was so refreshing to meet someone passionate and tenacious about his work. Matt Wallin sincerely cared that he achieved the best outcome for my sister. He proved this by being relentless in his pursuance of the best outcome. Matt Wallin achieved what 8 other attorneys had told us was unlikely – A COMPLETE DISMISSAL! I thank God that we met him. He alone has restored our faith in the justice system and has given my sister her life back. We consider ourselves to have made a good friend in the process and cannot even begin to express our gratitude - D.I."

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The 4th Amendment, the Cell Phone and “Inevitable Discovery”

Read this article regarding the 4th Amendment as it pertains to your iPhone or Blackberry.

4th Amendment, the Cell Phone and “Inevitable Discovery”

California Drunk Driving DUI - Important Factors - Matthew B. Wallin, Esq. (2012)

There are numerous factors relevant to determining what kind of California Drunk Driving DUI case you have. Below is only a few factors.

[1] Blood Alcohol Concentration (BAC):  Generally, this is the most important piece of evidence in a DUI case. See Alcohol and the Human Body for information on blood alcohol concentration.

[2] Driving:  The manner of driving is a factor to be considered by the jury, not to mention whether volitional movement of the vehicle can even be proven by the prosecutor. There is no better DUI defense than insufficient evidence of driving.

[3] Admissions and other statements:  "You have the right to remain silent. Anything you SAY or do can and will be used against you in a court of law."

[4] Symptoms of Intoxication:  Symptoms of intoxication may include: the odor of alcohol, red eyes, slurred speech, and unsteady gait. In addition, one's performance on the voluntary Field Sobriety Tests will be considered. Particularly the standardized field tests: (1) Nystagmus; (2) Rhomberg; and (3) Walk and Turn.

For more information visit: www.wklawdui.com
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WHAT STANDARD OR BURDEN OF PROOF APPLIES TO MY CASE?

What standard of proof is required depends on what type of case you are dealing with. In courtrooms across America, there are five different standards of proof. Each is discussed briefly below...

#1) Reasonable suspicion

• reasonable suspicion is more than just a hunch or guess, based on specific facts
• reasonable suspicion is the standard of proof required for a citizen to be lawfully STOPPED and investigated
• reasonable suspicion is often an issue in a Drunk Driving (DUI) case in California

#2) Probable Cause

• probable cause is trustworthy information that a person has committed a crim
• probable cause is the standard of proof required to make an arrest.

#3) Preponderance of the Evidence

• preponderance of the evidence standard of proof applies to civil case
• preponderance of the evidence is enough in a civil case to award money damages from one person to another. 
• preponderance of the evidence is sometimes referred to as "51%" or "more likely than not."

#4) Clear and Convincing Evidence

• clear and convincing evidence is a firm belief that the allegations are true
• For example, clear and convincing evidence is enough evidence for a family law court to take a child from their parent based upon allegations of neglect or child abuse

#5) Beyond A Reasonable Doubt

• beyond a reasonable doubt is applicable to criminal cases
• the prosecution must to prove all of the elements of the charge to the exclusion of any and all reasonable doubts in order to support a conviction.
• the prosecution must meet a burden of proof that is even higher than the standard of proof required to take your child from you

Any questions, email MBW@wklaw.com.

"Innocent Until Proven Guilty"

What about the presumption of innocence for the accused?
The presumption of innocence is always the goal. However, this most sacred constitutional protection is often rejected immediately by law enforcement, prosecutors, judges, juries, and the community at large. What so many inside and outside of our criminal justice system fail to understand is that the accused (through defense counsel) has absolutely no burden to prove anything. The defense has no burden to "create reasonable doubt." The defense need not assert or prove the presumption of innocence. The burden is not on the accused to prove the negative - to prove that he did not do something.

Our constitution and system of justice places the heavy burden of proof solely on the state. The prosecution, through use of their law enforcement agents, must prove each element of the crime alleged beyond a reasonable doubt. The state brought the charges, now let them prove it to the exclusion of and beyond any and all reasonable doubt.

Did you get the picture yet? I'm painting you a portrait...

By: Matthew B. Wallin

Attorney At Law

Southern California Criminal Defense Lawyer

A Person Accused of a Crime is Guaranteed Certain Rights

A person accused of a crime is guaranteed certain rights to ensure a fair process that produces a just outcome.  Those rights include:

• Right to a trial by jury of one's peers;
• Right to have one's lawyer cross-examine the prosecution's witnesses to test the truthfulness of testimony
• Right to present evidence

In a perfect world...these rights make certain that alleged facts are subjected to tests - which serve to counterbalance the lopsided battle between: The STATE (represented by the prosecutor through use of their law enforcement agents) AND The ACCUSED (represented by the defense lawyer)

"Reasonable Doubt" - Confusing the hell out of jurors since 1657...

Legitimacy of Motor Vehicle Searches Based on Odor of Marijuana in California

Legitimacy of Motor Vehicle Searches Based on Odor of Marijuana

Having stopped a vehicle, the police need some excuse to conduct a search. Often, they claim to have smelled the odor of "burnt marijuana". For the very reasons that make it a meaningless claim, it is a claim that cannot be disproved. After all, the odor of burnt marijuana clings for hours to clothing, hair, and upholstery. An individual about whom the odor lingers need not have smoked or possessed marijuana, he need only have been in the presence of someone using it some time in the past 12 hours. That someone may not even have smoked marijuana in the vehicle. Unfortunately, most courts in California will hold that the odor gives the officer probable cause to search the vehicle’s interior.

An aggressive marijuana criminal defense attorney will attack the officer’s inability to distinguish the odor of burnt marijuana from a myriad of similar odors. The conclusions the police drew from that odor must be challenged. Your defense attorney may begin cross-examination of the officer by asking the officer if he has ever used marijuana. This question is relevant in the sense that it tests the officer's ability to distinguish the odor of burnt marijuana from any number of other similar odors.

Other angles of attack include:

• Arguing that the officer was never tested to determine if he can distinguish odor of freshly burned marijuana from similar odors;
• Officer was never tested to determine if he can distinguish stale odor of burnt marijuana from similar odors;
• Stale odor of burnt marijuana is insufficient evidence of possession;
• No evidence in car of anyone smoking marijuana

Matthew B. Wallin's Peer Endorsements

Did Defendant Possess Marijuana For Purposes of SALE or PERSONAL USE?

How Can It Be Proven A Suspect Possessed Marijuana WITH THE INTENT TO SELL?

The issue of whether the defendant had the requisite mental state - "intent to sell" - is at the heart of many serious marijuana cases. Unlike other more precisely defined legal terms, "intent to sell" is defined in light of the totality of the circumstances surrounding the allegations. No one fact or piece of evidence is necessarily conclusive on the issue. As such, it is essential you or a loved one speak with a criminal defense attorney with experience in handling marijuana sales cases.


The prosecution routinely uses the testimony of a  qualified narcotics officer to assist in bolstering their case. Inevitably, the prosecution's narcotics officer will testify as to why the defendant's possession was for sale rather than personal use. ("Personal use" generally signifies possession only and not possession for sale). The narcotics officer’s opinions are generally based upon certain criteria, including, but not limited to, the following:

• Quantity of marijuana
• How the marijuana is held or packaged (number of packages; packaging material)
• Presence of money, scales, ledgers, cell phones/pagers
• Text messages - of late, as technology continues to evolve, incriminating text messages have become a key part of the prosecution's case against my clients.
• Presence or absence of paraphernalia

Note that your defense attorney will have an opportunity to present alternative theories, including testimony from a defense expert to counter the prosecutions' claims. In addition, the defendant has an absolute right to testify and/or call other witnesses.

Know your rights. Protecting our freedom.

Matt Wallin, Attorney At Law
Southern California Criminal Defense Lawyer
MBW@wklaw.com

Matthew Blake Wallin

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Where Can California Medical Marijuana Patients Lawfully Smoke?

SB420 is a legislative statute that went into effect on January 1, 2004. This law broadens Proposition 215 to transportation and other offenses in certain circumstances; allows patients to form medical cultivation “collectives” or “cooperatives”; and establishes a voluntary state ID card system run through county health departments. SB 420 also establishes guidelines or limits as to how much patients can possess and cultivate. Legal patients who stay within the guidelines are supposed to be protected from arrest.

So, Where Can Valid California Medical Marijuana Patients Lawfully Smoke?
SB420 bars marijuana smoking in no smoking zones, within 1,000 feet of a school or youth center except in private residences; on school buses, in a motor vehicle that is being operated, or while operating a boat. You must understand there are different rules depending upon WHERE you are. Patients are advised to be discreet so as not to attract unwanted or unnecessary attention.
 

Matthew B. Wallin, Esq.

Southern California Criminal Defense Attorney

MBW@wklaw.com

Expectation That Defendant Will Plead Guilty

It is improper for prosecutors to bring criminal charges in the expectation that the defendant likely would later accept a favorable plea offer to a reduced charge. In the same breath, it is improper for prosecutors to use overcharging as a leverage device to more readily obtain guilty pleas or provide a jury a broader range of charges that might produce a compromise verdict.

Here is the problem:  proving such improper motivation on the part of the prosecutor is nearly impossible United States v. Fine, 644 F.2d 1018, 1022 n.13 (5th Cir. 1981).

A large body of literature has addressed the problem of ensuring responsible decision-making by persons who are authorized to make complex and controversial evaluations of harm, proof, and culpability in a system that allows them virtually unfettered power to make momentous choices that can destroy a person's reputation, liberty, and even life itself.

Fairness in the formal filing of criminal charges after an arrest...

After a suspect has been arrested for a crime, a police report is generated by the arresting agency/officer. The police report generally includes, but is not limited to, the following:

• Physical evidence collected prior to and at the scene of the alleged crime;
• Statements from the suspect;
• Statements from witnesses;
• Statements from other officers or 911 dispatch;
• Law enforcement recommendation of what charge(s) to file (Remember, police can only recommend charges. Police do not have the power to actually formally charge those in which they arrest)

That police report is completed and sent to the appropriate district attorney's office (based on the location of the alleged offense). The submitted report is then reviewed by a prosecutor (sometimes referred to as the "filing D.A."). The prosecutor in charge of filing the case is armed with the decision and discretion as to what charge(s) if any to formally file against the suspect. This discretion given to prosecutors requires further analysis...

Our entire system of justice in America rests on the same body of assumptions:

1. The prosecutor is each case is acting (1) responsibly (2) with an eye toward seeking justice for the victim, the accused, and society;
2. The prosecutor does not want to prosecute an innocent person, and does not want to see a guilty person go free;
3. The prosecutor would not be motivated by the negative effect an acquittal may have on their career and/or reputation;
4. The prosecutor would not let embarrassment or public criticism take precedent over a possible acquittal prevent an otherwise valid prosecution

It is absolutely critical that prosecutors are NOT influenced by external constraints or personal ethical proscriptions. EVERYONE, REGARDLESS OF THEIR RACE, RELIGION, OR ETHNIC ORIGIN, IS ENTITLED TO BE PRESUMED INNOCENT, period.

Plea Bargaining In The Criminal Justice System (Part 2)

Plea Bargaining In The Criminal Justice System (Part 2)

Like the charging decision, plea bargaining is yet another part of the criminal justice system where prosecutors possess nearly unfettered discretion. Many in the legal community would concede that plea bargaining negotiations are controlled by the prosecutor. If the prosecutor does not agree to dismiss or amend certain charges in exchange for a guilty plea, neither the defendant nor the judge has the power to compel him or her to do so. Contrary to popular belief and one's better judgment, the judge does not have the power or discretion to dismiss or amend charges against the defendant.

What are the benefits to plea bargaining?

Both the prosecutor and the defendant may reap benefits from plea bargaining. Without it, prosecutors would be forced to conduct trials in nearly all cases in which they file charges and prosecute. No district attorney's office has the resources to take every case to jury trial, regardless of how "guilty" the defendant appears to be.

Trying cases before a judge or jury is very time-consuming. The prosecutor must subpoena witnesses/law enforcement, prepare their witnesses to testify, prepare direct and cross examination questions and exhibits, draft and review an opening statement and closing argument, and so on...

Plea Bargaining In The Criminal Justice System (Part 1) - By Matthew B. Wallin, Esq.

Plea Bargaining In The Criminal Justice System (Part 1)

Matthew B. Wallin, Esq.

The term "plea bargaining" usually evokes negative reactions from those who are not directly involved in the criminal justice system. It conjures up inaccurate images of attorneys cutting deals in back rooms, where "criminals" get undeserved breaks. Despite the public's general disapproval, plea bargaining is one of the most important and long-standing practices in the criminal justice system. Nearly all criminal cases are resolved by a negotiated disposition during the plea bargaining process. Generally, this will occur when the defendant enters a guilty plea in exchange for a negotiated disposition.

What is "plea bargaining"?

Plea bargaining is the term that describes the process of defense counsel and prosecutors negotiating in an effort to reach a resolution short of an actual jury trial. Jury trials are extremely rare. This is because most criminal cases are resolved without the need to assemble an actual jury of one's peers. Specifically, plea bargaining consists of a bargain between the defendant and the prosecutor, with the defendant agreeing to forgo his constitutional right to a trial. A defendant agrees to plead guilty to one or more charges in exchange for one or more promises by the prosecutor - usually a promise to dismiss other charges and/or advocate for a favorable sentence.

It is imperative that you speak with a criminal defense attorney BEFORE entering a guilty plea. Only an experienced criminal defense attorney will understand the nuances of the plea bargaining process. Your attorneys' experience, knowledge, and reputation will mean the difference between jail and freedom (and everything in between).

Matthew B. Wallin, Criminal Defense Attorney
MBW@wklaw.com

Discretion At The Charging Stage Of Criminal Cases

Prosecutor's Discretion At The Charging Stage Of Criminal Cases

Prosecutors can and should exercise their discretion at the charging stage of the process to ensure that similarly situated victims and defendants are treated evenhandedly and to ensure outcomes that are consistent with the fair, effective, and efficient administration of justice. They should consider the principles of punishment, including notions of rehabilitation and mercy, and they must also consider practical issues such as caseloads, resources, and particular, unpredictable issues that may arise in individual cases.

Presumption of Innocence For Criminal Defendants

Everyone, regardless of their race, religion, or ethnic origin, is entitled to be presumed innocent. That presumption of innocence stands until the prosecution has met their high burden of proving each and every element of the crime alleged beyond a reasonable doubt.

It is the duty of the prosecutor not to convict, but to see that justice is done. It is critical that prosecutors are not measured by the number of defendants they put behind bars but rather by how wisely they use their immense power of prosecutorial discretion.

Matthew B. Wallin

How Do Prosecutors Use Their Discretion When Filing Criminal Charges?

How Do Prosecutors Use Their Discretion When Filing Criminal Charges?

Whether to file formal charges against a suspect is not always a straightforward decision. Prosecutors exercise discretion in a variety of ways. It is law enforcement who makes the initial arrest upon a determination of probable cause. At that point, the arresting officer will develop a police report and "recommend" charges to the prosecutor. It is important to note that the officer's recommendation is just that, a recommendation, nothing more. Law enforcement almost always recommends charges (often additional or heightened) charges that cannot be met by the evidence. In theory, the prosecutor's role is to review the reports and supporting evidence before making a filing determination.

A prosecutor is armed with the discretion to decline to bring charges, bring only charges that they believe they can prove beyond a reasonable doubt at the trial stage of the process. The decision to forgo charges may be based on practical considerations such as the triviality of the offense and/or the victim's lack of interest in prosecution. The decision of whether to file charges should be based on considerations of fairness and justice in a particular case. Unfortunately, a prosecutor's conscious or unconscious bias toward or against a particular defendant or victim may influence the decision either to forgo or bring charges.

What baffles the mind is the fact that all of these decisions are entirely within the prosecutor's discretion, and there is frequently no readily discernible explanation for why one decision is made over another. Very few prosecutor's offices have manuals (published or non-published) with guidelines or policies on how to make charging decisions.

So where does this leave the defendant and defense counsel?

Who Decides Whether Criminal Charges Will Be Filed Against Me?

Criminal Filing Decisions - Police versus Prosecutor?

The charging decision is the most important prosecutorial power and the strongest example of the influence and reach of prosecutorial discretion. When the prosecutor makes the decision to charge an individual, he or she pulls that person into the criminal justice system, firmly entrenches him there, and maintains control over crucial decisions that will determine his or her fate.

Police officers exercise expansive discretionary power as well. Law enforcement's arrest power can have a monumental effect on a person's life. What is important to understand is that without the prosecutor's charging power, the arrest takes the suspect no further than the police station.

After the police officer makes the arrest, it is the prosecutor who decides whether that individual should face criminal charges that may lead to imprisonment. There is no law that requires an individual to be charged if he is arrested or commits a crime. That all-important decision is left in the hands of the prosecutor. If the prosecutor decides to bring charges, the suspect faces imprisonment, amongst many other negative consequences. If the prosecutor decides not to file formal charges, the person is free to go.



With this in mind, it becomes clear just how critical it is to hire a private criminal defense attorney to be your voice. Law enforcement has a voice, prosecutors certainly have a voice, will you have a voice?

If you have a criminal case pending out of Southern California contact Attorney Matt Wallin for a free legal consultation.

Prosecutorial Discretion

Discretion is a hallmark of the criminal justice system.

Prosecutors are the most powerful officials in the criminal justice system. Their routine, everyday decisions control the direction and outcome of criminal cases and have greater impact and more serious consequences than those of any other criminal justice official. The most remarkable feature of these important, sometimes life-and-death decisions is that they are totally discretionary and virtually unreviewable. Prosecutors make the most important of these discretionary decisions behind closed doors and answer only to other prosecutors.

The U.S. Supreme Court has endorsed and protected prosecutorial discretion in its jurisprudence, even making it difficult to mount legal challenges to practices that appear to clearly violate the constitutional rights of the accused and/or the crime victim.

When a person is arrested in good faith but is factually NOT GUILY?

Believe it or not, there are occasions when a person is arrested in good faith but is factually not guilty. There are also other situations where the government misuses its power and arrests innocent people to punish them for their political beliefs.

As a criminal defense attorney, in every case, the only question is whether the Government, which has accused the defendant of wrongdoing, can support its accusation with proof that erases all reasonable doubts about the innocence of the accused. It is important to understand fully that the defendant has absolutely no obligation to put on any evidence or examine the evidence presented by the Government. It is the Government who holds the sole burden of presenting a case and proving each element of the crime beyond a reasonable doubt.

New Orange County DUI Website with free information and updated sobriety checkpoint locations:  http://bestorangecountyduiattorney.com/

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When The State Launches A Case Against You

Terrible odds we face when the state launches all of its forces against us. Most of us live in a sort of curious denial—that the criminal law is irrelevant to us. Yet, in certain hidden places, we hear a small voice warning that someday, under circumstances we cannot foresee, we might be called upon to face the invidious charges of the state—perhaps even a charge of murder.

Diabetics Are At Risk Of Losing Their Drivers License in California

Diabetics Are At Risk Of Losing Their Drivers License in California

Advising the Department of Motor Vehicles in California (DMV) that you have diabetes will not necessarily result in a loss of your driving license. However, it will normally trigger the DMV's requirement that you and your physician fill out a standard medical form which will be scrutinized closely by the DMV. If the DMV becomes concerned that you are an unsafe driver after reviewing the answers provided, your license may be suspended or you may be ordered to attend a hearing to answer additional questions about your diabetes. If this occurs, contact me or another qualified Southern California DMV attorney immediately.

I have successfully represented many drivers whose licenses have been suspended based on a finding by the that their diabetes caused them to be unsafe drivers. At the DMV medical hearing, you must be equipped with an attorney who understands the ins and outs of these types of technical hearings. Such an understanding allows me to effectively demonstrate to the DMV that my client can safely operate a motor vehicle, despite being diabetic.

Some drivers have their license suspended simply for having suffered hypoglycemia and being helped by an ambulance or an emergency room physician who reported the incident to the DMV. In many cases these incidents have nothing to do with driving. My primary goal at the DMV Hearing is to establish that while hypoglycemia may be an ongoing risk to some extent, safe driving is not because the driver regularly tests blood sugars before driving, is able to recognize symptoms of low blood sugar, has been trained in handling a low blood sugar event that occurs while driving, etc.

A critical aspect to ending a medical related license suspension in California is having the driver’s physician properly complete a five page Driver’s Medical Evaluation (DME) affirming his or her belief that the patient can drive safely. Your Southern California DMV attorney must understand what specific words or phrases the DMV is looking for.

If you or a loved one has questions or needs assistance, let me know.

Matthew B. Wallin, Esq.
Wallin & Klarich, A Law Corporation
Office 714.730.5300 | Fax 714.730.0337
MBW@wklaw.com | www.WKlaw.com

How can you represent someone if you know they’re guilty?

This question is one of the first questions people ask me when they find out I am a criminal defense attorney. I choose not take offense at the question because I know that this is genuinely baffling to those who are not aware of the way our American justice system operates. Many are unaware of the frequent occasions when a person is arrested in good faith but is factually not guilty and other situations where the government misuses its power and arrests innocent people.

It must be emphasized that in every criminal case, the question is whether the Government, which has accused the defendant of wrongdoing, can support its accusation with proof that erases all reasonable doubts about the innocence of the accused.

Blackstone ratio

“Better that ten guilty men...” By Alexander Sasha Volokh “Better that ten guilty persons escape, than that one innocent suffer,” said English jurist William Blackstone. The ratio 10:1, now known as the “Blackstone ratio,” expresses the classic Anglo-American ideas of the presumption of innocence and (insofar as the statement speaks of “guilt,” “conviction,” “imprisonment,” and the like) the burden of proof “beyond a reasonable doubt” that prevails in criminal law.

DUI Jury Selection ("Voir Dire")

No jury can correctly decide a DUI case absent having a solid appreciation and working grasp of the constitutional precepts of "presumption of innocence" and "proof beyond a reasonable doubt."

A clear understanding of these notions is paramount to both effective jury service and to effective assistance of counsel. Regrettably, most jurors do not understand these constitutional principles. It is, however, hard to blame jurors for this deficiency since most judges, prosecutors, and defense lawyers also do not understand these principles. They simply lack an appreciation of the constitutional history, true meaning, breadth, and spirit of these principles.

Recognizing these criminal justice system inadequacies, a good lawyer not only sets out to teach these constitutional notions to the judge and the jury, but also to convince these legal and factual jurists to actually embrace them. Accordingly, because of judicial time constraints, learned defense counsel must thoroughly explore both of these constitutional assurances with the jury even to the exclusion of other material topics if the citizen accused is going to get the fairest trial possible.

Common Defense Attorney Drunk Driving Trial Tactics

How any DUI (driving under the influence or drunk driving) case is defended is unique to each case and is based upon the surrounding facts and circumstances of each particular case.

In many DUI cases in California, the defense attorney will attack the DUI investigation.  DUI investigation attacks tend to fall into four (4) categories:

1. ALTERNATIVE EXPLANATIONS FOR THE OFFICER'S OBSERVATIONS OF INTOXICATION;
2. ATTACKS ON THE OFFICER'S OBSERVATIONS 
3. ALTERNATIVE EXPLANATIONS FOR THE "BLOOD ALCOHOL CONCENTRATION" (BAC);
4. ATTACKS ON THE ACTUAL BLOOD ALCOHOL RESULTS

Criminal defense attorneys help their clients through difficult times

Criminal defense attorneys help their clients through difficult times, and to do so effectively, they must understand their clients. By definition, then, to be an effective defense attorney, one must practice compassion. Compassion does not entail undeserved mercy but rather decision-making based on the truth.

Gerry Spence wrote that "the first trick of the winning argument is the trick of abandoning trickery... To win, we must be believed. To be believed, we must be believable. To be believable, we must tell the truth."

What is the client’s truth? The defense attorney should listen, understand, and, notwithstanding the crime, find the goodness in the client. If this happens, the attorney will be able to marshal compelling, fact-based arguments to the prosecutor, judge, and jury. These players will therefore be more likely to follow the defense attorney’s lead because they are natural-born experts in judging credibility. They will know if the defense lawyer does not believe in the client and the argument being made in the client’s favor. The defense lawyer will know it too.

Defense attorneys may require compassion for their clients more than other attorneys

Defense attorneys may require compassion for their clients more than other attorneys.

This is so because the prosecutor’s job is to convince the judge and jury that the defendant is nothing more than his crime. James M. Doyle asks, "How can we know the murderer from the murder?" The prosecutor’s answer is, "You cannot, and you should not try."

To counter this dehumanizing focus on one brief incident, the defense attorney must review the defendant’s entire life and offer some positive representation of the defendant.6 By climbing into our client’s skin, we can discover his life and make him human again by offering a positive representation.

Proof Beyond a Reasonable Doubt Standard Applied to Individual Facts

The prosecution’s burden of proof is often stated as a burden to prove "every element of the charge." For example, Ninth Circuit Instruction 3.2 provides as follows:
The defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt.


However, more often than not, the determination of whether an element has been proved requires the jurors to decide whether other subordinate facts have been proved. Under the U.S. Constitution, due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

There are two ways in which the jury instructions can address this issue. First, the instruction defining the prosecution’s burden of proof can be modified to make it clear that the burden applies to both the elements of the charge as well as any essential fact upon which proof of that element depends.

Second, the pinpoint or defense theory instruction may properly relate the defense theory to the prosecution’s burden of proof. “As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Thus, the defendant has a right to pinpoint instructions upon his or her theory of the defense and upon the applicability of the burden of proof to that theory. Such an instruction should be appropriate whenever the defense specifically contests essential subordinate facts such as eyewitness identification, out-of-court statements by the defendant, credibility of informers, scientific evidence such as DNA, prosecution testing of evidence, chain of custody, etc.

Presumption of Innocence & Reasonable Doubt:

Presumption of Innocence & Reasonable Doubt:

Proof beyond a reasonable doubt requires "a subjective state of near certitude of the guilt of the accused." Jackson v. Virginia (1979) 443 U.S. 307, 315.  However, "nothing requires a trial court instructing on reasonable doubt to define any amount of subjective certitude required to make a finding of guilt." People v. Zepeda (2008) 167 Cal.App.4th 25.

Prosecutors and Judges Wage War on Impaired Drivers (DUI)

Prosecutors and Judges Wage War on Impaired Drivers (DUI)

The Constitution has been interpreted to provide less protection where the defendant is accused of DUI than it does where the defendant is accused of virtually any other crime, regardless of how serious or appalling. It is not a great exaggeration to say that the police have virtual carte blanche to stop, question, field sobriety test, arrest, and chemical test a DUI suspect with minimal implication of the suspect’s Fourth, Fifth, Sixth or Fourteenth Amendment rights. Simply stated, although the police, the prosecution, and the public routinely claim that the system favors the defense bar and the drinking driver, the reality is quite the opposite.

Due to the intense pressure placed upon legislators, prosecutors and judges to wage war on impaired drivers - by interest groups such as Mothers Against Drunk Driving - it is rare that a year goes by without an increase in the penalties imposed for driving under the influence of alcohol or drugs (DUI - California Vehicle Code 23152(a) and 23152(b)). This pressure, combined with the lack of any organized lobbying on behalf of the drinking or drug-using driver, has led to a true double standard in which the criminal justice system has created two classes of criminals: (1) impaired drivers, and ( (2) all other criminals

Matt Wallin 

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Non-lawyers are not bound by codes of professional responsibility

Non-lawyers are not bound by codes of professional responsibility to zealously advocate for defendants. Criminal defense attorneys, however, must be their clients’ champions and thereby seek to relieve them of their suffering. This is just as true for the indigent client wrongfully accused as it is for the paying client who admits his guilt with neither shame nor remorse

Compassion toward the defendant is most important

As a criminal defense attorney, compassion toward the client is the most important aspect of representation. Compassion is the skill an attorney possesses that inspires the attorney to research and write memorandum, craft direct and cross-examinations, negotiate with the prosecutor, and argue to the judge and jury. It is the state of mind that inspires the attorney to be a zealous advocate for the client in every task the attorney performs.

ORANGE COUNTY CALIFORNIA CRIMINAL DEFENSE ATTORNEY

HARBOR JUSTICE CENTER, NEWPORT BEACH/LAGUNA HILLS; 
CENTRAL JUSTICE CENTER, SANTA ANA; 
WEST JUSTICE CENTER, WESTMINSTER; 
NORTH JUSTICE CENTER, FULLERTON

• Assault; 
• Battery; 
• Burglary; 
• Expungements; 
• Clearing/Sealing Criminal Record; 
• Weapons; 
• DMV Hearings; 
• Driving on a Suspended License; 
• Drug Cases; 
• Drunk Driving Offenses; 
• Drunk in Public; 
• Hit and Run Cases; 
• Internet Crimes; 
• Juvenile Law; 
• Petty Theft; 
• Probation Violation; 
• Recalling Bench Warrants; 
• Reckless Driving Cases; 
• School Expulsion Hearings / Suspension Hearing; 
• Sentence Modification; 
• Theft Crimes; 
• Vandalism Charges ; 
• Violation of Restraining Order; 
• Warrants; Withdrawal of Plea

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Matt Wallin Endorsement

"Unquestionably competent, consistently conscientious, endlessly hardworking, always helpful, and highly dedicated, it is well-known this exceptional lawyer is an excellent trial attorney who is a tremendous asset to the Orange County Criminal Defense Bar community. Any person in need who hires this superb attorney will know he or she is in capable hands. For a number of positive reasons, I am honored to endorse Mr. Wallin."

Matt Wallin Endorsements 

Chemical Alcohol Test Technology

The most significant advance in chemical alcohol test technology was the development of a practical breath test by Borkenstein, opening the way to its widespread use throughout the United States in the 1960s. Reliable chemical testing permitted the adoption of per se laws, first adopted by Norway in 1936, that define the offense as driving with a BAC above a proscribed limit. In the United States, per se laws were not introduced until the 1970s but now are in place in 49 states and the District of Columbia. Defendants charged with per se offenses can no longer try to prove they were not impaired, although they can challenge the validity of the BAC test. Even with per se laws, however, behavior plays a vital role in the arrest and conviction of impaired drivers in the United States in two ways. In the field, behavior provides justification for the DUI investigation and arrest, which in turn provides the officer with the authority to require
the breath test

POLICE DETECTION OF ALCOHOL AND OTHER DRUGS AMONG DRIVERS OF PRIVATE MOTOR VEHICLES

POLICE DETECTION OF ALCOHOL AND OTHER DRUGS AMONG DRIVERS OF PRIVATE MOTOR VEHICLES

How can it reliably be established that a person has consumed alcohol and/or other drugs in amounts that are illegal and /or may cause harm to that person or others?

Many people think of this as a relatively easy task, conjuring up images of the “falling down drunk,” although even this obvious display may be something else, for example, diabetic shock. The reality is that even when people have high blood alcohol concentrations (BAC) known to cause significant impairment, it can be difficult for experts and laypersons alike to detect alcohol, especially among seasoned users and among people who wish to remain undetected. Detecting drugs other than alcohol presents its own set of problems, and in many cases the behavioral cues are less obvious than when alcohol has been consumed.

ATTACKING WIDMARK CALCULATIONS IN ORANGE COUNTY DUI CASES

ATTACKING WIDMARK CALCULATIONS - MBW@wklaw.com

The Widmark formula uses AVERAGES to arrive at CONCLUSIONS. Although Widmark is a long established formula however the calculation does NOT provide any mathematical certainty. Widmark calculations are nothing more than an educated GUESS.

Problems with averages that are used in Widmark calculations...
If one leg on a man’s pants is too short, and one leg is too long, the prosecution’s tailor would have you believe that on average the pants fit just fine. Or, if when you first turn the shower on in the morning, the water is biting cold, and then it turns to scalding hot, don’t worry, on average according to the prosecution’s plumber you are having a pleasant shower.

Most jurors understand the problems inherent with using averages, and averages are the antithesis of proving something beyond a reasonable doubt.

Horizontal Gaze Nystagmus - So What!

The Horizontal Gaze Nystagmus (HGN) is often the first field sobriety test (FST) administered during a DUI investigation. Despite its use by law enforcement to justify a DUI arrest, HGN can be caused by a number of reasons OTHER THAN ALCOHOL INTOXICATION.

HGN occurs naturally in many individuals. In addition, fatigue, illness, hypertension, and common drugs such as caffeine and aspirin may contribute to HGN.

HGN test must be administered in a particular manner in order to ensure reliable results. There are roughly 25 different steps that need to be performed properly to conduct the HGN test in compliance with the National Highway Traffic Safety Administration (NHTSA) manual.

The Defendant's Eyes Were "Bloodshot" - Flawed DUI Investigations

The Defendant's Eyes Were "Bloodshot" - Flawed DUI Investigations

Most often, the arresting DUI officer has never seen the DUI suspect before the night of the arrest. I say night because most DUI arrests take place at night. The officers working the graveyard shift generally make the bulk of DUI arrests. Because the officer has not seen the DUI suspect prior to the evening of the arrest, the officer will not know what the suspect's eyes normally look like. The flaw in this alleged "objective symptom of intoxication" is the fact that the officer does not have a baseline on how the suspect's eyes typically appear.

Many people naturally have bloodshot eyes. Even if the person does not normally have bloodshot eyes, there are numerous factors that can cause one's eyes to redden (Including: allergies, fatigue, smog, smoke, contact lenses, etc.)

An Officer Cannot Determine How Much or What Type of Alcohol Defendant Consumed By "Odor of Alcohol"

An Officer Cannot Determine How Much or What Type of Alcohol Defendant Consumed By "Odor of Alcohol"

Alcohol itself is virtually odorless. The aroma associated with alcohol is the flavoring that gives the beverage its taste. An officer cannot determine how much alcohol the defendant consumed by the odor. In addition, odor of alcohol cannot even tell you what type of drink the defendant allegedly consumed.

There is no scientific backing that anyone can determine the amount of alcohol consumed by a person by the odor of alcohol emanating from them.

Was the Search of My Vehicle Legal? Attorney Matt Wallin

The scope of a police officer’s search of an automobile incident to the arrest of an occupant has been somewhat limited by a recent U. S. Supreme Court decision.

The Court held in Arizona v. Gant, that the search incident to arrest exception to the warrant requirement did not apply to the facts of this case and held that a vehicle search is not authorized incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.


The Court in Arizona v. Gant stated that an officer permitted to “conduct a vehicle search when an arrestee is within reaching distance of the vehicle” and also if “it is reasonable to believe the vehicle contains evidence of the offense or warrant.”

This allows for searches incident to arrest where the vehicle is outside of the arrestee’s reach based upon reasonable belief rather than probable cause. Assuming that the defendant had been stopped and subsequently arrested for Driving Under the Influence of Alcohol (DUI) (California Vehicle Code 23152), the officer may be justified in searching for evidence of the consumption of alcohol if the officer had a “reasonable” belief such evidence might be found.

Questioning the Suspect After Arrest

Questioning the Suspect After Arrest

If the police arrest a suspect on the scene and wish to continue questioning, the police must ensure that the suspect acknowledges his rights. As the Supreme Court has recognized, when the police provide a suspect these rights and they are fully comprehended, the inherently coercive setting of custodial interrogation is dispelled. But any voluntary statement given by a suspect after knowingly acknowledging his rights is admissible because it would constitute an implied waiver. This is because a suspect "waive[s] his right to remain silent by making a voluntary statement" where he understands that he need not make a statement. Significantly, the Court also clarified that a suspect must "unambiguously" invoke his right to remain silent. This is bright-line rule for police. Where a suspect only equivocally acts regarding his right to remain silent, there is no obligation to stop questioning. Rather, the suspect must make clear his intention that the questioning stop or that he does not want to talk to the police. This rule is now the same for the right to counsel from Davis v. United States. The suspect must act unambiguously in invoking his rights.

Questioning a Suspect on the Scene of a Traffic Stop

Questioning a Suspect on the Scene of a Traffic Stop

The United States Supreme Court has recognized that traffic stops based on reasonable suspicion that there was a traffic violation do not require the provision of Miranda warnings because the suspect is "not 'in custody' for the purposes of Miranda.'" The obligation to provide the Miranda warnings only attaches once the suspect's freedom is "curtailed to a 'degree association with formal arrest.'" In Berkemer v McCarty, the police took two statements from a suspect after stopping him based on his erratic driving. The police initially asked the suspect whether he had been using intoxicants, and he admitted that he had had "two beers and had smoked several joints of marijuana a short time before." After the suspect's arrest and without providing the suspect his rights under Miranda, the police asked whether he had been under the influence while driving, the suspect admitted that he had ("I guess, barely"). In concluding that the first statement was admissible (but not the second), the Court determined that it was admissible because the questions were asked not "in-custody" interrogation. Even if not free to leave, a motorist who is not under arrest is not surprised by questions from the police that relate to the stop.

Home Detention In Lieu Of County Jail Time

Home Detention (Another Type of Alternative Sentence To Avoid Jail Time)

Voluntary program. Low-risk defendants committed to jail or defendants participating in a work furlough program may participate in a home detention program during their sentence instead of confinement in county jail. Pen C §1203.016. A defendant must be approved for the program by the correctional administrator in charge of the program. The court may restrict or deny a defendant’s participation in the program.

Sheriff’s Work Alternative Program

Sheriff’s Work Alternative Program

The defendant may be eligible for participation in the Sheriff’s Work Alternative Program (SWAP) in which the defendant performs manual labor instead of confinement in the county jail. Pen C §4024.2. The SWAP program allows the defendant to deduct one day from his or her jail term for each day of labor. In addition, the defendant may be allowed to receive work-release credit for participation in education pro-grams, vocational training, or substance abuse programs on an hour-for-hour basis. Pen C §4024.2(b)(2).

Client Testimonial - Lawyer Matt Wallin

Lawyer Matt Wallin was there for me every step of the way. I could call him and get answers any time I needed. He was very honest and told me exactly what to expect. He was trustworthy, respectful and knowledgeable. He worked very hard to get me what I deserved.

Bail Reductions When Facing Criminal Allegations

When a person has been arrested, they are brought before a Judge who will determine if the accused is to remain in custody, released on bail or released on their own recognizance.

Generally, the bail amount is determined by a bail schedule. The bail schedule sets the bail amount for each specific charge. When a person is brought up on multiple charges, then the bail for each of the charges will summed up and the bail amount will be set at that total.

Bail Hearing To Address Bail Reductions
The judge will take into account the severity of the charges, the history of the accused, if the accused poses a threat or danger to the community and if the accused poses a flight risk. Your attorney must aggressively fight for a lower bail amount and get you out of jail as quickly as possible.

ALTERNATIVE SENTENCING - Work Furlough & Weekend Jail Sentence

Work Furlough; Weekend Sentence

Work furlough may be available to defendants who are sentenced to county jail, imprisoned in jail for nonpayment of a fine, or ordered to serve time in jail as a condition of probation. Pen C §1208(b). Under this arrangement, the defendant is allowed to continue his or her regular employment or participate in job training or educational programs. When the defendant is not working or participating in the training or educational programs, he or she is confined in a facility designated for work furlough confinement. Pen C §1208(d).

Participation in a work furlough program is subject to the approval of the work furlough administrator. The court does not have jurisdiction to place defendant directly in work furlough. The court may preclude a defendant’s participation by ordering, at the time of sentencing, that the defendant not be granted work furlough. Pen C §1208(b).

Under Pen C §1209, the court may allow the defendant to serve his or her jail time on weekends. If jail weekends are given, the court should indicate the day and hour that the defendant is to report to jail and the day and hour of release.

Informal Probation versus Formal Probation in California

Informal Probation
Otherwise known as informal probation. Under Summary Probation the defendant will not be required to report to a probation Officer. The defendant will be given specific requirements that must be met in order to complete a Summary Probation.

Formal Probation
Under Formal Probation a defendant in San Diego is required to meet with an assigned probation officer once a month. Under Formal Probation the defendant have specific requirements handed down by the court that must be met in order to remain out in the community.

Typically in California a defendant is put on probation for a period of three years. Attending counseling programs, periodic drug testing, performing community service are often requirements of probation.

Does the law firm have an "AV RATING"?

An AV Rating signifies that the lawyer has reached the heights of professional excellence. He or she has usually practiced law for a number of years, and is recognized for the highest levels of skill and integrity.

Choose the Southern Criminal Defense Firm that knows how to produce favorable results for our clients, in an ethical, aggressive, and diligent manner.

Martindale-Hubbell has maintained Ratings for lawyers for more than a century, and currently reviews or assigns ratings for over 150,000 lawyers each year. Ratings reflect the confidential opinions of bar members and the judiciary, and attest to the individual lawyer's legal ability and adherence to accepted professional standards of ethics. Exclusively developed and assigned by the Martindale-Hubbell Law Directory, ratings are considered valuable benchmarks intended for use by members of the profession.

Matt Wallin - Attorney Endorsement

Matt Wallin - Endorsement from fellow lawyer in Orange County, California community

Unquestionably competent, consistently conscientious, endlessly hardworking, always helpful, and highly dedicated, it is well-known this exceptional lawyer is an excellent trial attorney who is a tremendous asset to the Orange County Criminal Defense Bar community. Any person in need who hires this superb attorney will know he or she is in capable hands. For a number of positive reasons, I am honored to endorse Mr. Wallin.

Pot initiative: A legal high, or higher crime? [Orange County Register]

http://www.ocregister.com/news/marijuana-271200-prop-pot.html

"Marijuana money is already doing far more harm than marijuana itself," said retired Orange County Superior Court Judge Jim Gray, a longtime advocate of legalization. "We can take the thugs out of it."

Opponents, including Orange County Sheriff Sandra Hutchens, counter that the measure would actually increase criminal activity and disagree with other portrayals by Prop. 19 backers. But while there's debate over related outcomes, the basics of the proposed law are clear:

• Those 21 and over would be allowed to possess up to one ounce, and would be allowed to grow pot on private property in a plot not to exceed 25 square feet. 

• Cities and counties could decide to permit the sales and commercial farming of marijuana, and could tax those enterprises. Cities and counties could also choose to continue existing bans on commercial marijuana activities.

• Employers could no longer fire workers for simply testing positive for marijuana use. The employers would have to first show that smoking pot caused an employee "actual impairment."

Lawyer Matt Wallin was there for me every step of the way

Lawyer Matt Wallin was there for me every step of the way. Even during my initial consultation, lawyer Matt Wallin calmed my worries and assured me we would work together towards a favorable resolution. Matt Wallin genuinely cared about my situation, was attentive to my needs, and did his best to resolve my misdemeanor criminal case in a speedy manner. His relationship and reputation with the court, judge and prosecutor helped me move forward with my life. Lawyer Matt Wallin and his team at the law offices of Wallin & Klarich would be an excellent choice for misdemeanor or felony representation in Orange County California.

Actions Resulting in Loss of License in California

Actions Against An Adult's License in California

If you are stopped by a police officer and cited for a traffic law violation, you sign a promise to appear in court on or before a specified date. If you ignore the traffic ticket and fail to appear in Traffic court, the failure to appear ("FTA") will go on your driver record and may result in the issuance of a warrant for your arrest.

If you fail to pay a fine ("FTP") owed to the court, the court will notify the DMV and this will show on your driver record. In addition, a warrant for your arrest may be issued.

Even one failure to appear in traffic court or failure to pay a fine owed to the court can lead to DMV's suspension of your California Driver's License ("CDL").

Client Testimonial - Attorney Matt Wallin

My son was charged with a drug crime and faced substantial jail time. Attorney Matt Wallin represented my son in court and during extensive negotiations with the prosecutors and judge. Attorney Matt Wallin calmly and realistically presented the legal options and consequences of the case. I was extremely pleased by his professionalism, knowledge and availability throughout the criminal court process.

Because of Attorney Matt Wallin's dynamic personality and outstanding relations with the court, he saved my son from going to jail. He was able to convince the prosecutor that my son was worthy of drug treatment and rehabilitation in lieu of any jail time. Even more remarkable, the criminal case against my son will be dropped and DISMISSED, never appearing on my son's record.

Attorney Matt Wallin resolved the case with my son beyond our expectations. I have no hesitations in highly recommending his office and services.

-BV

California police department eyes controversial tactic in effort to curb drunk driving

The Huntington Beach Police Department wants to publish the names of suspected DUI offenders on its website in an attempt to prevent and reduce the crime. The department wants to send a “clear message” that they are serious about enforcement.

According to a report submitted this month to City Council, Surf City police believe drunk driving is a “significant problem,” especially in the downtown district where a high concentration of liquor vendors operate. "DUIs are a public-safety issue," said police Lt. Russell Reinhart. "Public awareness of the problem, and scope of the problem, is one way of addressing any public-safety concern."

The Huntington Beach Independent implicated itself in the proposal when writer Britney Barnes stated in a recent story:

“The Police Department considered publishing the names of those arrested for DUI after the Huntington Beach Independent stopped publishing a weekly DUI list in December, according to the city report. The Independent decided to ax the standing feature after a change in editorial policy.”

“The department is considering posting the names, which are public record, online, not to embarrass people, but to send a message that Huntington is enforcing DUIs,” Reinhart told the paper. "It's not a wall of shame we're looking to put up," he said. It's unclear how well this strategy will work, considering it is (in essence) the continuation of a policy upheld by the news agency and the police department for years with no reduction in DUI incidences since its inception.

The department has made an average of 1,700 DUI arrests a year and the report to city council members suggests that in 2008 Huntington's DUI rate was the third-highest for similar sized municipalities – cities of approximately 200,000 residents.


“What part of 'Innocent Until Proven Guilty' is not being understood?”


Read Full Article:

Controversial DUI Laws in California

Maintaining a Wall Between the Courtroom and the Laboratory

Maintaining a Wall Between the Courtroom and the Laboratory 

Orange County Criminal Courthouses

Matthew B. Wallin, Esq.

some Orange County lawyers are questioning whether local Superior Court judges, faced with an explosion of DNA cases, are fulfilling their roles in guarding the integrity of the judicial system.

Read Full Article:  Orange County District Attorney Tony Rackauckas'creation of a DNA database

Charged With A Felony Crime? READ THIS!!!

STAGES OF PROSECUTION IN CALIFORNIA

Written by: Matthew Blake Wallin

The following stages of prosecution apply to all felony prosecutions in California.

[1] Initial Investigation

During the investigation stage the police gather physical evidence and witness statements to determine if a crime occurred and who committed the crime. Suspects have rights. If you are the target of an investigation, you need an experienced attorney at this stage to protect your rights.

[2] Filing Of Formal Criminal Charges

After the investigation is complete the police submit your case to the local prosecutor (this could be the District Attorney or City Attorney depending on where the crime occurred). At this stage it is critical to have an attorney protecting your rights and fighting for you because an attorney may be able to have the prosecutor hold an office hearing instead of filing formal misdemeanor or felony charges.

[3] Arraignment (First Appearance In Court)

After formal charges are filed you must appear in court for your arraignment on a designated date. During the arraignment the judge will inform you of the charges against you and give you an opportunity to enter a plea to the charge. NOTE: If you missed your arraignment date a warrant is out for your arrest. Warrants are also issued by the court at the request of the prosecutor and police without any notice to you. If there is a warrant out for your arrest you can be arrested at any time by a police officer and taken to jail.

[4] Bail/Bail Review Hearing

This is a critical step that many public defenders and private defense attorneys miss. You have a right to a BAIL REVIEW HEARING within 5 days of your arraignment to challenge the bail set. At the arraignment, your attorney should certainly make a motion to modify the amount of your bail and request that you be released O.R. (on your own promise to appear without having to post bail). If you are denied an O.R. release and/or the bail amount set is too high, your attorney should be well versed in the setting and handling of your BAIL REVIEW HEARING. will fight to have your bail lowered as much as possible.

[5] Preliminary hearing

In all felony cases you have a right to a preliminary hearing before a judge to determine whether the prosecution has enough evidence to take your case to trial. This right does not apply in misdemeanor cases. During the preliminary hearing the prosecution presents witnesses against you. The law only allows the defense to present very limited evidence, but it is important to have an attorney to cross-examine the witnesses against you and argue to the court why a dismissal or lesser charge is appropriate in your case.

[6] Arraignment on the Information

After the Preliminary Hearing, another court date will be set to advise you of the charges the prosecution seeks to proceed to trial with. These may be the same as the original charges in the complaint or the prosecution may add charges based on the evidence presented at the preliminary hearing.

[7] Pre-Trial Stage

Pretrial hearings provide an opportunity to make sure all the discovery has been provided by the prosecution. During the pretrial stage, your defense attorney will be allowed to present and illuminate additional information in your favor obtained from defense investigation. Your attorney will discuss and negotiate the best possible resolution for you. Upon the conclusion of pretrial negotiations, you and your defense attorney will speak in detail about the pros and cons of accepting/rejecting the prosecutions offer to settle the case short of an actual jury trial. A determination will be made whether to accept the prosecutor’s offer or go forward to trial.

[8] Trial

A trial is an adversary proceeding in which the prosecutor must present evidence to prove the defendant's guilt beyond a reasonable doubt. The prosecutor calls all the witnesses necessary to prove the crime. The defendant is not required to prove his or her innocence or to present any evidence, but may challenge the accuracy of the prosecutor's evidence. Both the defendant and the prosecutor (representing the People of the State of California) have the right to a trial by a jury. Sometimes both sides agree to let a judge listen to the evidence and decide the case without a jury; this is called a “court trial.”

In a jury trial, the jury is the “trier of fact;” in a court trial, it is the judge. After the evidence is presented, the judge or a jury will determine whether the evidence proved that the defendant committed the crime. If the defendant is found not guilty, the case ends. If the defendant is found guilty, a sentencing date will be set.

[9] Sentencing

Sentencing in California varies with the crime and can be the most confusing part of the criminal process. Most often, sentences are at the judge’s discretion. The judge will consult the sentencing guidelines in the California Rules of Court, which aids the court in deciding upon an appropriate sentence. The judge may consider different alternatives, such as a fine, probation, community service, a sentence to jail or prison, or a combination.

Matthew B. Wallin, Esq. | 714.352.9868 | MBW@wklaw.com