Beyond A Reasonable Doubt Defense

Orange County Creates Court Designed For Veterans Only

2012-02-07T14:07:00.000-08:00

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"

2012-02-07T13:52:00.000-08:00

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."

Matt Wallin - Client Reviews & Testimonials

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

2012-01-26T13:49:00.000-08:00

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)

2012-01-26T13:47:00.000-08:00

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
Matthew B. Wallin, Esq. - Lawyer Profile & Rating

WHAT STANDARD OR BURDEN OF PROOF APPLIES TO MY CASE?

2012-01-16T12:25:00.000-08:00

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"

2011-12-29T15:29:00.000-08:00

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

2011-12-28T10:33:00.000-08:00

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...

2011-12-22T13:20:00.000-08:00

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

2011-12-19T11:04:00.000-08:00

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?

2011-12-07T15:06:00.000-08:00

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?

2011-12-07T14:39:00.000-08:00

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

2011-11-30T17:25:00.000-08:00

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...

2011-11-30T15:44:00.000-08:00

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:

The prosecutor is each case is acting (1) responsibly (2) with an eye toward seeking justice for the victim, the accused, and society;
The prosecutor does not want to prosecute an innocent person, and does not want to see a guilty person go free;
The prosecutor would not be motivated by the negative effect an acquittal may have on their career and/or reputation;
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)

2011-11-08T17:18:00.000-08:00

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.

2011-11-08T17:05:00.000-08:00

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

2011-11-08T16:18:00.000-08:00

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

2011-10-29T15:12:00.000-07:00

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?

2011-10-28T15:22:00.000-07:00

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?

2011-10-25T17:12:00.000-07:00

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

2011-10-25T14:49:00.000-07:00

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?

2011-10-24T15:06:00.000-07:00

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.

2011-10-24T14:54:00.000-07:00

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

Avvo.com

When The State Launches A Case Against You

2011-10-24T14:46:00.000-07:00

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

2011-09-22T16:56:00.000-07:00

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?

2011-07-13T15:12:00.000-07:00

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

2011-07-13T15:07:00.000-07:00

“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")

2011-06-01T06:00:00.000-07:00

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

2011-05-24T16:11:00.000-07:00

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:

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

Criminal defense attorneys help their clients through difficult times

2011-05-15T06:00:00.000-07:00

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

2011-05-02T06:00:00.000-07:00

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

2011-05-01T06:00:00.000-07:00

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:

2011-04-29T14:55:00.000-07:00

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)

2011-04-28T15:29:00.000-07:00

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

2011-04-27T13:41:00.000-07:00

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

2011-04-25T13:41:00.000-07:00

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

2011-03-18T17:21:00.000-07:00

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

2011-02-02T16:13:00.000-08:00

"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

2010-12-30T15:52:00.000-08:00

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

2010-12-30T15:38:00.000-08:00

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

2010-12-29T16:50:00.000-08:00

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!

2010-12-28T15:40:00.000-08:00

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

2010-12-28T15:32:00.000-08:00

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"

2010-12-28T15:22:00.000-08:00

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

2010-12-22T09:55:00.000-08:00

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

2010-12-22T09:49:00.000-08:00

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

2010-12-22T09:46:00.000-08:00

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

2010-11-18T06:00:00.000-08:00

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

2010-11-15T06:00:00.000-08:00

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

2010-11-12T16:55:00.001-08:00

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

2010-11-10T06:00:00.000-08:00

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

2010-11-08T15:07:00.000-08:00

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

2010-11-08T14:59:00.000-08:00

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"?

2010-11-08T14:52:00.000-08:00

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

2010-10-20T14:34:00.000-07:00

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]

2010-10-15T12:43:00.000-07:00

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

2010-10-07T11:10:00.000-07:00

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

2010-10-06T11:16:00.000-07:00

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

2010-08-01T06:00:00.000-07:00

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

2010-07-31T16:56:00.000-07:00

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

2010-07-30T12:52:00.000-07:00

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!!!

2010-07-28T09:35:00.000-07:00

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

Many police use cameras to record interactions

2010-07-28T09:26:00.000-07:00

Many police use cameras to record interactions
(Click above to read the article...)

Blagojevich Defense Attorney Clashes With Judge, Could Be Held In Contempt

2010-07-27T10:51:00.000-07:00

"You will follow the order because if you don't, you'll be held in contempt," Zagel responded calmly.

Read Article HERE

CAN (AND WILL) POLICE LIE TO ME, REALLY?

2010-07-26T14:53:00.000-07:00

CAN (AND WILL) POLICE LIE TO ME, REALLY?

Yes. If you don't believe me, I refer you to the United States Supreme Court which has explicitly laid out the appropriateness of police lies, deceit, and trickery in the course of an investigation. Not to mention, the formal and extensive training an officer is forced to complete where they learn the most recent and effective ways to lie, confuse, and ultimately trick a suspect into providing a pro-prosecution statement, answer, name, number, address, head nod, etc.

Does that mean that police can lie to me and tell me they have a picture, taped statement or confession which directly implicates me? Yes.

But I was taught that the police are out to protect me, my mom never lied to me like that. The police are not your mother.

"LOOSE LIPS SINK SHIPS"

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

WHAT DOES A STATE PROSECUTOR DO?

2010-07-26T14:47:00.000-07:00

WHAT DOES A STATE PROSECUTOR DO?

Whether it be district attorney, state attorney, United States attorney, they all prosecute. They do not arrest, the police do that. The prosecutor makes critical decisions on what charge(s), if any, to file against a defendant. This can be accomplished by presenting their allegation to the grand jury (through an indictment) or by the filing of an information (through a criminal complaint). The indictment or information is the actual document that notifies the defendant of the charges against him or her.

The police can only investigate, arrest, and make recommendations for potential prosecution. When you are arrested, the arresting office will identify a plausible criminal charge, but that is not necessary the actual charge filed.

The prosecutor, not the police begin the process of bringing you before a judge and/or jury. As such, the importance of hiring an attorney with great relationships with the local prosecutors cannot be overstated. An attorney's positive reputation, familiarity, and experience with the prosecutors can seriously be the primary reason you avoid jail time. I refer to it as "LAY OF THE LAND." Make sure your attorney has it....

Immediately upon hiring Matt Wallin, steps will be taken to reach out to the prosecutor's office and get in touch with the prosecutor assigned to making your filing determination. Hiring the right criminal defense attorney can mean the difference between straight jail time and freedom.

Matthew B. Wallin, Esq. - Linkedin.com

CAN I CHANGE JUDGES IN MY CRIMINAL CASE?

2010-07-26T14:02:00.000-07:00

CAN I CHANGE JUDGES IN MY CRIMINAL CASE?

Yes, but it depends. Technically, "judge shopping" is prohibited. However, upon a showing of appropriate grounds, a judge may be recused.

In criminal courts judges are assigned to cases, at random. You cannot choose a judge, but under certain circumstances, through your attorney, you can ask a judge to step down or be "recused."

The general standard is whether the facts would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Judges can be disqualified for showing bias, communicating privately with either party, appearing impartial to a party or side, helping either the defendant or prosecutor by providing tips or advice. The list is even more extensive.

Speak with your attorney about details in this regard.

Matt Wallin - Attorney Profile

WHEN IS "ENTRAPMENT" A VALID LEGAL DEFENSE IN A CRIMINAL CASE?

2010-07-26T13:57:00.000-07:00

WHEN IS "ENTRAPMENT" A VALID LEGAL DEFENSE IN A CRIMINAL CASE?

Under certain circumstances, the defense of entrapment can be extremely effective. Entrapment is best understood and explained by dividing the defense into two forms.

(1) Objective Entrapment: focuses on the specific conduct of law enforcement. It may be a bar to prosecution when the government's conduct is so egregious that it offends decency and our sense of justice such that it amounts to a denial of due process.

(2) Subjective Entrapment: focuses on an apparent lack of predisposition on the part of the defendant. Simply put, when the police (or more commonly an undercover agent/informant) present a criminal opportunity to a person not looking for it.

If you are trying to figure out whether law enforcement violated your rights, this article should be helpful in that regard. If you have additional questions or would like to discuss your matter more specifically, contact me by email (MBW@wklaw.com) or phone (949) 702-3382.

Matt B. Wallin

Attorney At Law

Anatomy of a Criminal Case

2010-07-25T18:19:00.000-07:00

Anatomy of a Criminal Case

A criminal case begins when a crime is committed and reported. Police respond by investigating the crime. This investigation may include interviewing victims, witnesses, and suspects; collecting physical evidence; viewing crime scenes and photographing; and identifying suspects through line-ups.

Police Make an Arrest/Request a Warrant
When a crime is committed in a police officer's presence an officer may arrest a suspect on the spot without an arrest warrant. The officer may also arrest without a warrant if he/she has probable cause to believe that certain misdemeanors or any felony was committed even though not in the officer's presence. In other situations an arrest warrant is required. Even when an officer has the right to arrest a suspect without a warrant, the officer may decide to wait and obtain a warrant. The officer will later submit a request to the District Attorney’s Office requesting a formal complaint and warrant and suggesting potential charges to be authorized.

Orange County Criminal Defense Blog: Making a statement to the police is never – never – in a criminal defendant’s interest

2010-07-23T14:36:00.000-07:00

Orange County Criminal Defense Blog: Making a statement to the police is never – never – in a criminal defendant’s interest

Making a statement to the police is never – never – in a criminal defendant’s interest

2010-07-23T14:34:00.000-07:00

Criminal Defense Core Principle:

Making A statement To The Police Is NEVER

In A Criminal Defendant’s Interest

Talking to the cops is a bad idea, even if you are the one who called them. This is true whether you are Martha Stewart, who secured a jail term when she foolishly decided to make a voluntary statement to the authorities, or a regular suspect or defendant confident in manipulating the cops. This is one of the few things that ever criminal law will agree on: in the crucible of police interrogation, the police will always win.

One thing that is difficult to explain to my clients is the fact that cops are actually allowed to lie. As it turns out, police officers are perfectly entitled to deceive suspects in order to persuade them to confess. Cops live thus fact, and veteran detectives and officers are often proud of their creativity when it comes to tricking people into confessing. Lying about evidence found at the scene, falsely suggesting that a co-defendant is pointing the finger at them, or fabricating the existence of nonexistent eyewitness – all have been found entirely legal and will be allowed when used to extract statements from a suspect.

If the police try to talk to you, just stay calm, ignore everything they ever tell you, and ask for a lawyer. Repeatedly. Insistently. Relentlessly. And hard as it is to believe, this is the best course of action whether or not you are guilty of anything. No one should talk, but nearly everyone does, and almost everyone regrets it.

Matthew B. Wallin, Esq.

MBW@wklaw.com | www.WKlaw.com

Client Testimonial

2010-07-21T05:00:00.000-07:00

Dear Attorney Matt Wallin,

I'm not sure how you did it but the great thing is that you did! This outcome is nothing short of miraculous to those of us who have been praying for our daughter for such a long time. To have NO conviction on her record when this is over is more meaningful than I think she even knows. But I can tell you that, as a Career Coach, a single misdemeanor (now reportable in this new era of unrest) can be the deciding factor in an employers offer for work.

She is one blessed woman to have had you as an attorney. Thank you so much for all you've done. We will continue praying her through this and hope she has learned from this experience.

Thank you SO much!
-AH

Why Are 90% Of Criminal Cases Resolved By A Guilty Plea Before Having An Actual Jury Trial?

2010-07-20T18:19:00.001-07:00

Why Are 90% Of Criminal Cases Resolved By A Guilty Plea Before Having An Actual Jury Trial?

This is because the prosecutors’ offer, if accepted, is contingent on the defendant pleading guilty to the charged offense or some other negotiated offense. After continued and aggressive negotiations with the prosecutor I will obtain the best possible offer. This offer generally includes a punishment which is far less than the maximum punishment that could be imposed under the law if found guilty at trial.

For example, for a misdemeanor petty theft, during the pretrial stage, the prosecutor may offer the defendant a punishment which includes only a fine and a limited probationary period. However, this offer is only available if the defendant agrees to plead guilty. If the defendant rejects the offer and sets the matter for trial the offer disappears. Now, it is in the hands of the jury and if found guilty the punishment could mean up to six months in county jail.

That is why I am here to advise you on the quality of a particular offer. In addition, I will be able to breakdown the pros and cons of accepting a proposed offer versus rejecting the offer and setting the matter for a jury trial.

It's important to understand that the when deciding whether to accept a prosecutors offer or proceed to trial, your actual guilt or innocence is not the only issue. Included in the decision making process will be an analysis of the likelihood of you being found guilty at trial and the probable punishment.

EXPANSION OF GENETIC CRIME FIGHTING in California

2010-07-14T19:13:00.000-07:00

EXPANSION OF GENETIC CRIME FIGHTING IN CALIFORNIA

The Los Angeles Police Department has come a long way since People vs. OJ Simpson 16 years ago. Back then, the botched handling of DNA evidence helped defense lawyers raise doubts about the blood tying Simpson to the murder scene. Simpson, of course, was acquitted. But the LAPD's DNA lab is now state of the art.

There are certain families that are going to be looked at much more closely by the police than others. This raises specters that used to be associated with the eugenics movement, the science of better breeding. It's almost the idea of corruption of blood.

Read full article

Without Compassion Nobody Will Ever Understand Why We Defend

2010-07-12T21:43:00.000-07:00

Without Compassion Nobody Will Ever Understand Why We Defend

I care about the person I know. My client is not an abstraction to me. My client is very human, very real. It is her tears I see, her hand I hold, and her mother I console. I know my clients like no one else in the justice system. I empathize with my clients the way everyone else is the justice system empathizes with the alleged victim. When I go to bed at night, I can sleep easily, knowing that I fought for freedom, and for less suffering rather than more. That I stood by someone accused so that he would not have to stand alone.

I cannot know for certain whether anyone is truly guilty or innocent, or what they deserve. I do know that we all deserve at least one person on this planet willing to stand there next us and advocate on our behalf. If you don’t agree, I’d refer you to the Sixth Amendment to the United States Constitution…

I’m an advocate, I defend people. Some are factually guilty. Some are not. None is legally guilty until that has been decided by a judge or jury – I am neither.

I stand up for my clients because someone should. I hold the government’s feet to the fire because someone must. To do those things only for those I believe to be innocent (and who am I to judge?) is to say that those believed guilty, truly or falsely, deserve nothing and no one. In my world, that’s not so. My world is not so cruel. My world does not predetermine.

Unchecked, the government will abuse the innocent as readily as the guilty. Unchecked, all distinction except power fades. The guilty as much as the innocent, perhaps more, need and deserve an advocate.

To deny one is to deny all.

http://www.avvo.com/legal-guides/ugc/stages-of-prosecution-charged-with-a-felony-crime-read-this

2010-07-08T15:10:00.000-07:00

http://www.avvo.com/legal-guides/ugc/stages-of-prosecution-charged-with-a-felony-crime-read-this

The Current Climate of Probation Violations in Orange County Criminal Courts

2010-07-06T22:53:00.000-07:00

The Current Climate of Probation Violations in Orange County Criminal Courts - July & August 2010

When you watch the Lindsay Lohan's Probation Violation hearing, you get a feel for how harshly prosecutors and judges treat probation violations. Especially those probation violations in relation to DUI probation - whether it be failure to complete your court-ordered alcohol program; failure to pay fines; failure to abide by any term of DUI probation.

It is essential you retain competent private counsel when facing a potential probation violation. An attorney familiar with the courthouse your case is pending out of is preferred. Trust me, it can make the difference between jail and freedom.

Let me know if you have any legal questions at all and I'll do my best to be prompt with an appropriate response.

Matt B. Wallin, Esq.
Cell (949) 702-3382 | Office (714) 730-5300 | Email MBW@wklaw.com

Establishing ‘Reasonable Doubt’ in a Criminal Proceeding - Attorney Matt Wallin

2010-06-28T16:44:00.000-07:00

Establishing ‘Reasonable Doubt’ in a Criminal Proceeding

The standard of proof that must be established in a criminal proceeding in order to reach a guilty verdict is referred to as ‘beyond a reasonable doubt.’ Simply stated, this means that the prosecution must provide evidence to prove that a ‘reasonable person’ would find no ‘reasonable doubt’ that the defendant is guilty of said crime. If a reasonable person doubts that the defendant is guilty, then the jury is unable to render a guilty verdict since the criminal accusation has not been satisfied beyond a reasonable doubt. However, if the jury is morally certain of the defendant’s guilt beyond any reasonable doubt, then a guilty judgment should be reached.

As the highest standard of proof used in court, reasonable doubt is required in criminal trials under the Due Process Clause of the Fifth Amendment to the U.S. Constitution. It is subjective in nature, as each juror must conclude whether or not their doubts are reasonable based on all the evidence presented in the case. This stems from the Supreme Court’s ruling in IN RE WINSHIP, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) that there is a “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

The jury must begin the trial with the presumption that the defendant is innocent. With this, the burden of proof during a criminal trial lies with the prosecution, who must prove that the evidence set forth meets the reasonable doubt standard.

Goal as a defense attorney

2010-06-23T21:55:00.000-07:00

I strive to provide each and every one of my clients with the most effective representation and protection under the law. My job as a defense attorney is not to be a Judge or Jury. My job is to do everything in my power, within the bounds of legal ethics, to make the state or federal prosecutor meet their burden if proof.
That is what makes my profession special - fairness and trust.

Attorney Matt Wallin - To have NO conviction on her record when this is over is more meaningful than I think she even knows

2010-05-10T12:35:00.000-07:00

Dear Attorney Matt Wallin

I'm not sure how you did it but the great thing is that you did! This outcome is nothing short of miraculous to those of us who have been praying for our daughter for such a long time. To have NO conviction on her record when this is over is more meaningful than I think she even knows. But I can tell you that, as a Career Coach, a single misdemeanor (now reportable in this new era of unrest) can be the deciding factor in an employer's offer for work.

She is one blessed woman to have had you as an attorney. Thank you so much for all you've done. We will continue praying her through this and hope she has learned from this experience.

Thank you SO much!

AH

Orange County Collaborative Court Programs - Attorney Matt Wallin

2010-05-05T16:49:00.000-07:00

http://www.schools.com/news/law-criminal-justice/orange-county-collaborative-courts_201005054411.html

You Do Not Have To Be “Drunk” To Be Stopped, Arrested And Convicted of “Drunk” Driving

2010-05-01T06:00:00.000-07:00

By: Matt Wallin

Southern California Defense Attorney

In a sense, the phrase “drunk driving” is misleading. A driver need not be “drunk” to be deemed “under the influence” for purposes of a Driving Under The Influence (DUI) prosecution and/or conviction. The relevant inquiry is whether a driver was impaired such that he or she were not as cautious or alert as a non-drinking person would have been in similar circumstances. Proving and disproving this requires a thorough analysis of the facts and circumstances surrounding the vehicle stop and subsequent DUI investigation. The Fourth Amendment of the United States Constitution requires some minimal level of objective justification for making the stop. The officer initiating the vehicle stop must be able to articulate something more than an unparticularized suspicion or hunch.

First, the arresting officer will allege that something about a driver’s driving pattern or the condition of their vehicle led the officer to lawfully stop the vehicle. An actual vehicle code violation is most commonly cited, but not required to justify a stop. Next, the arresting officer will note in the police report any further observations of the common “objective symptoms” of intoxication (odor of alcohol, slurred speech, red eyes, flushed face, etc). The officer will detail in his police report the driver’s ability or inability to pass the roadside coordination tests (field sobriety tests). Finally, scientific evidence, concentration of alcohol in the driver’s blood or breath will be considered. Generally, this will allow the judge and jury to infer, after hearing the testimony of the state’s expert witness, that the driver was “under the influence at the time of driving.” However, this scientific evidence is not absolutely necessary for a DUI conviction. Individuals who have refused to submit to any chemical blood or breath test for alcohol concentration have been convicted of DUI solely on the basis of the testimony of police officers as to the defendant’s erratic or unlawful driving behavior.

MATTHEW B. WALLIN, Esq.

Southern California Defense Attorney

“The Suspect Had a Strong ODOR OF ALCOHOL” - Every Time?

2010-04-28T15:38:00.000-07:00

“The Suspect Had a Strong Odor of Alcohol on his Breath”

You will rarely see a DUI case where the arresting officer does not report an odor of alcohol on the suspect’s breath. The officer expects to smell alcohol and it is a psychological fact that we see, hear and smell what we expect to see, hear and smell. In fact, most police DUI reports are formatted for the usual symptoms: there will be a box for “odor of alcohol,” which the officer simply checks off. There are often three boxes, labeled "strong", "moderate" and "weak"; there is no box for "none," so that is not an option for the officer. The "strong" box is almost always checked. Presumably, the stronger the odor of alcohol, the more intoxicated the person arrested.

There is only one problem with presumption: Alcohol has no odor. Assuming the officer actually does smell an odor on the breath, what he or she smells is not ethyl alcohol. The odor, if present, is emitting from the flavoring in the beverage. The flavoring can be deceptive as to the strength or amount consumed. Beer and wine, for example, are the least intoxicating drinks but will cause the strongest odor. A much stronger drink, such as scotch, will have a weaker odor. Vodka leaves virtually no odor at all.

In addition, there can be any number of causes of an "odor of alcohol" on a person’s breath: mouth wash, throat spray, cough syrup. Illness, indigestion or simple bad breath has been the cause of more than one officer’s trigger-quick conclusion that the suspect has an "odor of alcohol on his breath".

In reality, the odor of alcohol has very little relevance in a drunk driving case. It may or may not indicate that the person has consumed alcohol. It has no evidentiary value on the much more important question of how much the person has consumed OR what he had to drink, OR when, etc. Depending upon circumstances, a person with a single drink can have a "strong odor of alcohol on his breath", and an extremely inebriated person can have a "weak" odor. And an experienced and honest DUI officer will readily admit this....if he is ever asked.

With that being said, unfortunately, the odor of alcohol on a person’s breath may have a greater impact on a DUI case than any other single factor. This is because most officers who pull a driver over for some alleged driving irregularity at night are looking for further signs of drunk driving. When the officer approaches the driver’s window and smells what he believes to be alcohol, which confirms his suspicions. Since few can pass the "field sobriety tests," particularly under the conditions in which they are given, an arrest is imminent.

Matt Wallin
Attorney for Wallin & Klarich
MBW@wklaw.com

There are two types of cases: CIVIL and CRIMINAL

2010-04-28T10:00:00.000-07:00

Civil cases usually occur between private citizens. An example of a civil lawsuit is when your neighbor hits your car with his. In that case, you would be suing him for damages.

Criminal cases (also known as prosecutions) are "offenses against society," and usually between a private citizen and law enforcement. A criminal action is where your neighbor shoots at you. In that case, even if he does not hit you, it is an "act against society," and the government prosecutes him.

The government represents "society" and prosecutes you for alleged crimes. The government can be local, state, or federal. The government is represented by a prosecutor (federal prosecutor - U.S. attorney or state prosecutor - district attorney). You should be represented by a defense attorney.

California DUI - Straightforward DUI Case Breakdown

2010-04-23T15:25:00.000-07:00

California DUI - Straightforward DUI Case Breakdown

Newport Beach DUI Lawyer - Matt Wallin, Esq.

When someone is arrested for DUI in California, there are TWO separate cases being prosecuted against the accused:

Criminal court case - which may result in jail; probation; fines; court ordered alcohol program; ignition interlock device (IID); cal trans/physical labor; community service; MADD victim impact panel; etc; AND
DMV case - where one's driver's license may be taken away

It is important to understand that there are TWO ways to be convicted of DUI in California:

Failing to operate a motor vehicle with the same caution characteristics of a sober person under the same or similar conditions - being an impaired driver as the result of drinking and/or taking drugs); OR
Driving a vehicle wile having a 0.08% or more blood alcohol content - at the time of driving

Typically, the evidence in a DUI case breaks down into three broad categories:

Driving Evidence/Driving Pattern
Field Sobriety Tests
Chemical Tests

For more information visit: www.wklawdui.com

Heather Locklear Committed a hit-and-run Crime, No Clear Proof

2010-04-22T11:33:00.000-07:00

As per the Source, prosecutors will register the allegation telling now there is “nothing approaching proof beyond a reasonable doubt” that Heather moved the car which hit the symbol...

http://www.dailylatestnews.com/2010/04/22/heather-locklear-committed-a-hit-and-run-crime-no-clear-proof-012074

Thinking Outside the DWI Voir Dire Box - The National Association of Criminal Defense Lawyers (NACDL)

2010-04-21T20:26:00.000-07:00

Thinking Outside the DWI Voir Dire Box

Voir dire is the single most important part of a DWI jury trial. “Breath test” DWI prosecutions are more difficult to defend than “no test” cases. “Blood test” cases are even harder to defend. Accordingly, voir dire preparation in breath/blood test cases is more critical than in a case with no test.

The National Association of Criminal Defense Lawyers (NACDL)

What Happened To The Presumption Of Innocence In DUI Cases?

2010-04-21T10:09:00.000-07:00

What Is "Retrograde Extrapolation?"

Retrograde extrapolation is a fancy name for trying to guess backwards - projecting backwards, using average alcohol absorption and elimination rates. The inherent problem is that a given person will metabolize alcohol at different rates depending on many variables. It is unusual for enough reliable information to be available in a given DUI case to permit a meaningful value to be obtained by retrograde extrapolation.

The legislature in California has passed a law saying that the blood-alcohol when tested is the same as it was when driving. Problem is, that is not true - blood alcohol content (BAC) is constantly changing as alcohol is metabolized. So, how can we legally presume what we know is not true?

Believe it or not, in California, the laws under Vehicle Code 23152(b) reads: "It is a rebuttable presumption that the person had a 0.08% BAC in his or her blood at the time of driving the vehicle if the person had a 0.08% BAC in his or her blood at the time of performance of a chemical test within 3 hours after the driving."

What about the State's burden of proof? What about proof beyond a reasonable doubt? What about the presumption of innocence?

MATTHEW B. WALLIN, Esq.
MBW@wklaw.com

The Defendant Does Not Have To Prove His Or Her Innocence

2010-04-20T12:08:00.000-07:00

The Defendant Does Not Have To Prove His Or Her Innocence

By: Matt Wallin, Southern California Defense Attorney

The defendant does not have to prove his or her innocence; in fact, the defendant does not have to prove anything. It would, however, benifit a defendant to present competing or exculpatory evidence or a reasonable alternative, innocent explanation of the evidence to compete with or challenge the prosecution's evidence so as to create the reasonable doubt to defeat the charge. This is only necessary, however, if it appears that the prosecution's case in chief is so convincing that there would be virtually no hesitation on the part of the jury in concluding that all of the elements of the charge were met by the facts presented by the prosecutor.

Pot Dispensary Operator Pleads Guilty; Gets 3 Years - But Why?

2010-04-14T11:07:00.000-07:00

Pot Dispensary Operator Pleads Guilty; Gets 3 Years - But Why?

Matt Wallin, Newport Beach Criminal Defense Attorney

How many more providers in California are going to plea bargain and accept prison time for such a absurdly narrow interpretation of the medical marijuana law?

A Lake Forest, California medical marijuana dispensary owner/manager pleaded guilty Tuesday to unlawful sales of marijuana.

Steven John Wick, 26, owner and operator of The Health Collective (THC) in Lake Forest, pleaded guilty to unlawful sale of marijuana and possession of marijuana for sale, and admitted to sentencing enhancements of committing a crime while he was free on bail in a separate case, reports Larry Welborn at The Orange County Register.

Wick was sentenced to three years in state prison, according to the Orange County District Attorney's Office.

As part of Wick's plea agreement, he will also plead guilty next week to possession of marijuana for sale and possessing more than $25,000 obtrained through "illegal drug sales" in his other 2009 Orange County case, according to District Attorney spokesperson Farrah Emami.

Wick, of Rancho Santa Margarita, Calif., will be sentenced to an additional year in prison on that case, according to Emami.

Wick's plea bargain is a done deal, and the man is headed to prison for a least a couple years. Under California's corrections system, he'll be required, as a non-violent offender, to serve at least half of his sentence.

But an interested observer of the California medical marijuana scene cannot help asking, "Why?"

California medical marijuana dispensary cases -- even in conservative Southern California, as evidenced by a couple of recent, high-profile spectacular losses by San Diego County District Attorney Bonnie Dumanis -- have proven extremely hard to win for law enforcement.

Judging by the track record, and by the fact that the defendant was only charged with violating California state law, Wick would have stood a very good chance of winning his case.

Are there other factors involved? If, as seems likely, Wick was threatened with an even longer prison sentence if he went to trial and lost, why did a conviction seem likely enough to make a plea bargain seem like a good idea?

Wick was charged along with employees Marilyn Geneva Manuel, 29, a manager at THC (who pleaded guilty to one felony count of possession for sale of marijuana) and Tara Elizabeth Sorenson, 22 (charged with three felony counts of the sale of marijuana, and one felony count for possession of marijuana).

The three were accused of selling pot to legal patients, with a physician's recommendation, but "without any relationship" to those customers and without "requiring or requesting them to participate in collectively or cooperative cultivating marijuana," according to Emami.

Requiring ailing medical marijuana patients to physically participate in the cultivation of plants seems to defeat the purpose of dispensaries, which are often defined as a treatment option for patients who are unable to grow marijuana for themselves.

What Happened With Ben Roethlisberger In That Dingy Bathroom Cannot Be Proven Beyond A Reasonable Doubt

2010-04-14T10:24:00.000-07:00

That's not evidence of criminal conduct, or, rather, not nearly enough evidence to prove it. And so there's no reason not to accept Bright's representation -- what happened in that dingy bathroom cannot be proven beyond a reasonable doubt.

Read Full Article
http://www.foxnews.com/sports/2010/04/13/roethlisberger-earned-punishment/

Roethlisberger's escapades might not rise to the level of criminal conduct, but beyond any reasonable doubt, they injure the integrity and reputation of the NFL and its Pittsburgh franchise. What's more, they are proof -- again, beyond any doubt -- of invincible stupidity. Remember, this is a guy who's already being sued for alleged sexual assault in Nevada.

Matt Wallin, Attorney
MBW@wklaw.com

Conviction Reversed, Grounds: Misstatement of the Presumption of Innocence

2010-04-13T21:24:00.000-07:00

Conviction Reversed, Grounds: Misstatement of the Presumption of Innocence

According to the ruling, prosecutors misstated the law during the closing argument of the trial. The prosecutor told the jury, “In order to find the defendant not guilty, you have to say to yourselves, ‘I doubt the defendant is guilty, and my reason is – blank.’ ”

The court reiterated that prosecutors who continue to employ an improper, "fill-in-the-blank" argument needlessly risk reversal of their convictions.

Spotlight on a Hot Topic: Medical Marijuana Sales in CA

2010-04-09T16:52:00.000-07:00

Attorney Matt Wallin delves deeper into a hot issue in CA in his article we featured today : Spotlight on a Hot Topic: Medical Marijuana Sales in CA

Certain Bail Laws Undermine Democratic Tenets Such As The Presumption Of Innocence

2010-04-09T15:36:00.000-07:00

Bail Laws & The Presumption Of Innocence

Lawyer, prison staff and the state's top prosecutor have combined to call for changes to the state's tough bail laws, which they say are undermining democratic tenets such as the presumption of innocence and the separation of powers

Matthew B. Wallin, Esq. - Linkedin.com

New Southern California Marijuana Ordinance - Matt Wallin, Attorney at Law

2010-04-09T05:00:00.000-07:00

New Southern California Marijuana Ordinance:

2010 Resolution Reached To Cap Number of Marijuana Dispensaries In Los Angeles At 70

By: Matt Wallin - Newport Beach Marijuana Defense Attorney

In January 2010, the Los Angeles City Council finally passed a resolution to cap the number of marijuana dispensaries in Los Angeles at 70, while leaving unaffected those that had registered with the city before November 2007. The same measure also forbade dispensaries to operate within 1,000 feet of "sensitive use" areas such as schools, parks, libraries, and other dispensaries. The vote drew cautious praise from law enforcement officials, the Los Angeles Times, and even a few defense lawyers.

Marijuana Dispensaries: "Reasonable Wages and Benefits" Requirement

However, one aspect of the new ordinance that could spell trouble for prosecutors is its requirement that dispensaries pay their employees "reasonable wages and benefits." How could a dispensary afford to pay its workers anything and not run afoul of the district attorney’s position that all marijuana sales are illegal? An answer was not forthcoming.

The Los Angeles City Counsel deserves credit for not trying to ban dispensaries in the entirety or bowing to pressure from the District Attorney's office and City Attorney to ban sales. However, this new ordinance reflects a compromised position for marijuana activists on many issues, the net result of which will likely be more litigation and patients getting hurt.

Matt Wallin - Client Reviews

Haziness of California's Marijuana Laws

2010-04-07T23:07:00.000-07:00

Today, in the face of the most serious economic crisis since the Great Depression, legalizing marijuana has once again become a topic of serious discussion, if only as a way to generate much-needed sales-tax revenue. In Mendocino County alone, where cultivation is said to account for nearly two-thirds of the local economy, pot is a $1 billion-a-year crop. Moreover, BusinessWeek magazine recently reported that Oakland’s Harborside Health Center, the nation’s largest collective, has $20 million in annual sales, with a payroll of 75 full-time employees. Oakland is also home to Oaksterdam University, where aspiring cultivators can enroll in semester-long courses at its 30,000-square-foot facility. According to Harvard economist Jeffrey Miron, if marijuana were suddenly to be legalized across the country, it would generate $7 billion in tax revenue and save about $13.5 billion in prohibition costs.

So, it is not too shocking that, in the midst of this state’s multibillion-dollar budget-deficit crisis, California Governor Arnold Schwarzenegger has called for a debate on legalization. Nor was it surprising that, in December, the promoters of an initiative to make marijuana legal easily collected more than the number of signatures required to get the measure onto the November ballot.

Matt B. Wallin, Esq.
Wallin and Klarich
Southern California Defense Firm
MBW@wklaw.com | www.WKlaw.com

Zoning Medical Marijuana Collectives and Dispensaries: Southern California vs. Northern California

2010-04-07T05:00:00.000-07:00

Zoning Medical Marijuana Collectives and Dispensaries:

Southern California vs. Northern California

Matt Wallin, Newport Beach marijuana defense lawyer

There is a great deal of confusion out there about zoning collectives and dispensaries. All indications point to continued litigation going forward no matter what happens, because there has been such a divergence of experience throughout California. The divergence is particularly striking between Northern California and Southern California. Consider Oakland: There, last year's ballot measure to increase by a factor of 15 the gross-receipts tax at the city's four dispensaries drew 80 percent of the vote and the enthusiastic support of marijuana activists, who saw it as a big step toward legalization.

City's Curfew Ordinance Strips Underage Teenagers of their Civil Rights

2010-04-06T15:52:00.000-07:00

Although the presumption of innocence is accepted by the United States as common law, certain curfew laws and city ordinances are quick to assume the guilt of a child who may simply want to go for a walk.

See full article at: http://blog.nj.com/njv_guest_blog/2010/04/roselle_park_curfew_strips_und.html

Attempts To Cap Number of Medical Marijuana Dispensaries In Los Angeles California - By: Matt Wallin

2010-04-05T18:08:00.000-07:00

Attempts To Cap Number of Medical Marijuana Dispensaries

By: Matt Wallin

Newport Beach Criminal Defense Lawyer

As recently as November 16, 2010, the Los Angeles City Council considered making a fifth attempt to cap the number of medical marijuana dispensaries in the city. The meeting drew hundreds of activists, including at least a dozen seriously ill people who insisted that the only way they could get their medicine was through the storefronts. Others berated the council for failing to seek outside legal opinions on the matter, and promised to mount a vigorous court challenge to any zoning ordinance that closed dispensaries or relegated them to high-crime industrial areas. And still others—about a dozen, actually—braved jeers from the crowd to urge the city council to pass a zoning ordinance—even a flawed one, if necessary.

In 2005, two years after the Legislature passed the Medical Marijuana Program Act, only four dispensaries operated openly in Los Angeles. A year later there were 98, according to a report by the LAPD's then-Chief William Bratton. He warned that without an updated zoning ordinance in place, criminal elements would exploit the vagueness of the law and set up shop near schools and residential areas. The city council responded in 2007 by passing a moratorium on new pot shops. But that measure did little to check the rapid spread of outlets, since it contained a loophole allowing dispensaries to apply for a "hardship" exception. Then, shortly after the council got around to closing that loophole, a judge declared the entire moratorium unconstitutional (Los Angeles Collective Assoc. v. City of Los Angeles, No. BC422215 (Los Angeles Super. Ct. preliminary injunction issued Oct. 19, 2009)).

Medical Marijuana Compromise Reached Between Los Angeles Neighborhood Groups & Medical Marijuana Advocates

2010-04-05T16:39:00.000-07:00

Medical Marijuana Compromise Reached Between Los Angeles Neighborhood Groups & Medical Marijuana Advocates

Matt Wallin, Newport Beach criminal defense lawyer

Even in the Southland, some communities have come to a meeting of the minds. Take the city of West Hollywood. The 1.9-square-mile, ultra-liberal enclave struck a delicate compromise between neighborhood groups that wanted to cap the number of pot shops, and medical marijuana advocates who demanded storefronts in safe, accessible locations. After a brief moratorium on new dispensaries in 2005, city leaders worked out a straightforward set of rules that restrict the number of shops to seven, limit business hours, require security measures, and prohibit consumption of marijuana on the premises. As the Los Angeles Times reported in November, when the West Hollywood City Council updated its ordinance, the vote was unanimous, no residents spoke in opposition and the city's dispensary operators lined up in support.

WHAT TO DO IF YOU ARE STOPPED BY POLICE FOR QUESTIONING?

2010-04-02T06:00:00.000-07:00

WHAT TO DO IF YOU ARE STOPPED BY POLICE FOR QUESTIONING
Orange County Criminal Attorney - Matt Wallin

1. It is NOT a crime to refuse to answer questions;
2. You can’t be arrested merely for refusing to identify yourself on the street;
3. Police may “pat-down” your clothing if they suspect concealed weapon. Don’t physically resist, but make it clear that you don’t consent to any further search;
4. Ask if you are under arrest or FREE TO LEAVE;
5. Don’t bad-mouth the police officer or run away, even if you believe what is happening is unreasonable - that could lead to your arrest.

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