A defendant was “held to answer” after a preliminary examination hearing and was headed to a jury trial on a first degree burglary charge. A burglary charge generally requires entry, regardless of how slight, into some type of a building. Part of the evidence in the case was that the defendant opened a garage door with a remote control device but never actually entered the garage. Similar arguments regarding lack of entry are often made by a Napa criminal lawyer, a Santa Rosa criminal lawyer and a Marin criminal lawyer.

Initially, a Court of Appeal held that the evidence presented at the preliminary hearing established only an attempted burglary because the defendant did not actually enter the garage. On appeal, in the case of Magness v. Superior Court (2012), the California Supreme Court agreed. It held that the slightest entry by a person’s body or something held by the defendant is a necessary component of a burglary charge. Here, the defendant was outside the building and used a remote control device to open the garage door but neither the defendant nor anything held by the defendant crossed the threshold of the garage. The Supreme Court held that a person who opens a door but does not enter the structure may be charged with attempted burglary, but not with a completed or actual burglary. This is a decision that is applauded by Napa criminal lawyers, Santa Rosa criminal lawyers and San Rafael criminal lawyers.

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A criminal charge of DUI can be elevated in the seriousness of its consequences if a district attorney is successful in charging a prior conviction. In California, a prior conviction of another DUI or a lesser charge such as a “wet reckless” (which is an alcohol-related reckless — Vehicle Code §23103.5) which occurs within 10 years of a current offense (the 10 years runs from the offense date of the prior conviction to the offense date of the current case) can emanate from a case either in California or from another state.

To constitute a prior conviction from another state, a recent decision by the Court of Appeals held that a conviction in Arizona which makes it unlawful to drive while under the influence “if impaired to the slightest degree” does not qualify as a conviction which is equivalent to California’s Vehicle Code §23152(a), which is the most common driving under the influence charge. This decision is in agreement with a 2006 Court of Appeals decision, People v. Crane, which reached a similar decision in reference to a Colorado conviction. This line of decisions is encouraged by a leading Santa Rosa DUI lawyer, a Marin DUI lawyer and a Napa DUI lawyer.

In California, a DUI requires an appreciable degree of impairment and is generally described as the inability to drive with the care and caution of a sober person. In Arizona, a DUI occurs when a person is impaired “even to the slightest degree” and, therefore, is a lesser level than that which is required in California. Since the Arizona statute is not equivalent to California’s DUI stattute, the court ruled it cannot be used as a prior conviction.

The prosecution also attempted to qualify the Arizona conviction as a prior conviction in California pursuant to the second part of the California statute, Vehicle Code §23152(b) which is our per se statute which makes it illegal to drive, regardless of the driver’s ability, with a blood alcohol concentration of .08 or higher. In the Arizona case, the charge involving the per se blood alcohol level of the defendant was dismissed and therefore did not qualify as a prior conviction.

In summary, if an individual is charged with a DUI in another state, if the opportunity presents itself to plead to the general DUI statute as opposed to the per se .08 blood alcohol concentration section of the statute, pleading to the general DUI statute which is based on various levels of the ability to drive is probably the best choice to prevent that statute from being used in California as a prior conviction. Further, it always best to have a Santa Rosa DUI attorney, a Marin DUI attorney or a Napa DUI attorney analyze an out of state conviction to determine whether or not it can be used to elevate a DUI charge in California.

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Police officers generally are not allowed to enter your home if they do not either have a warrant or exigent circumstances do not exist. For police officers who do not apply for a warrant, what are “exigent circumstances” that would justify the entering of a home. Generally, “exigent circumstances” exist when the police perceive that someone is in danger of having recently been harmed or is being harmed or if evidence is being destroyed. The “exigent circumstances” principle permits police officers to conduct a warrantees search of a home after (1) they knock on the door of the home and announce their presence and (2) as an example, they hear the occupant attempting to destroy evidence.

If the police have not violated the Fourth Amendment by threatening to come into the home unless someone lets them into the home then they may be able to constitutionally enter the home if exigent circumstances actually exist. This restriction on entering the home has been applauded as a correct decision by a Santa Rosa criminal defense attorney, a Marin County criminal defense attorney and a Napa criminal defense attorney.

The United States Supreme Court in Kentucky v. King, (2011) recognized that the prevention of the imminent destruction of evidence has long been recognized as a sufficient justification for a search without a warrant. The exception to this justification is if the exigent circumstances are created by the conduct of the police.

Police officers generally have a very good reason to announce their presence and knock on the door with force. This is something that any member of the neighborhood could do. Occupants of a home who instead of answering the door and refusing police admission begin the destruction of evidence give up their Fourth Amendment right because they, in essence, create an exigent circumstance. Clearly, to keep police officers out of your home, destruction of evidence should not occur and rather, an occupant should answer the door and simply refuse police admission into the home. In this particular case, the officers did not violate any Fourth Amendment principle and did not threaten to enter the home without a warrant prior to hearing he destruction of evidence. Therefore, the exigent circumstances of the perception of sounds that indicated evidence was being destroyed justified a search of the home without a warrant. Santa Rosa criminal defense lawyers, Marin County criminal defense lawyers and Napa criminal defense lawyers are constantly attempting to restrict the entry of police into a home which is the very basis upon which the Fourth Amendment was constructed.

In a recent California Appellate Court decision in the matter of People v. Chung, the Court held that exigent circumstances can also be created when an officer reasonably believes that his/her immediate entry into the home is required to aid an animal that is either in distress or believed to be being abused.

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Normally, the Fourth Amendment requires a police officer to have a reasonable suspicion that a crime has been committed to justify the search of a person, vehicle, home, etc. One of the exceptions to this “reasonable suspicion” involves what is termed a “regulatory search”. California courts have interpreted the Fish and Game statutes as authorizing a stop of a car occupied by a hunter or fisherman to enforce Fish and Game rules. The United States Supreme Court has held in a number of cases that an administrative or regulatory search or seizure may be conducted without the presence of a reasonable suspicion that a crime has been committed. This decision is one that unfortunately, in the opinion of a Santa Rosa criminal defense attorney, a Marin criminal defense attorney, and a Napa criminal defense attorney, deprives citizens of their rights and enlarges the ability of police to intrude upon citizens’ freedom of movement.

The courts have reasoned that without this latitude it would be impossible to enforce Fish and Game laws if a game warden were required to have a “reasonable suspicion that a crime has been committed” before stopping hunters and fisherman and demanding to be shown the animals or fish caught or killed. The court has ruled that this intrusion on privacy due to this stop and demand procedure is minimal at best and these stops are limited to people who are voluntarily engaging in the heavily regulated activity of fishing and hunting and these demands to be shown the fish or animals caught or killed is directly related to fishing and hunting.

The only requirement for this type of a stop is that the stopping of the vehicle must be reasonably close in time and to the place where the fishing or hunting took place. If so, the courts have ruled that the encroachment on the hunter or fisherman’s privacy is modest, thereby justifying it. Other decisions by the same courts have limited law enforcement’s right to stop a person or vehicle. Unfortunately, the courts have, for some time now, ruled that weighing the state’s need to regulate Fish and Game rules against the intrusion on the privacy of citizens is a reasonable procedure under the Fourth Amendment.

Santa Rosa criminal defense lawyers, Marin criminal defense lawyers and Napa criminal defense lawyers believe that recent decisions in this regard incorrectly expand law enforcement’s ability to intrude on the privacy of a citizen who is not engaged in any criminal activity. In the recent case of People v. Maikhio (June 2001), the court held that a member of the state’s Fish and Game agency, who reasonably believed that a person has recently been fishing or hunting and who lacks a reasonable suspicion that the person has violated any Fish and Game rules, can still detain the vehicle in which the person is a passenger to demand that the person show all of the fish or game that the person has caught.

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Burglary is a theft crime that requires evidence of entry into some type of building such as a house, room, apartment, shop, warehouse, store, barn, tent, houseboat, or other dwelling that is capable of being inhabited. Generally, this means that the structure is designed for dwelling purposes whether it is occupied or not. This element qualifies a theft as a first degree burglary which carries a low-term imprisonment of two years, a mid-term of four years and a maximum term of six years in California. A Santa Rosa criminal defense attorney, a Napa criminal defense attorney, and a Marin criminal defense attorney will argue for the stricter interpretation.

In a recent case, People v. Chavez (2012), the court ruled that to sustain a conviction evidence was required of entry into a building that was defined as a structure that had four walls and a roof. The evidence in this case was that the defendant’s co-conspirator, Phillips, entered a fenced yard and stole gasoline from an old junk car. Chavez was stationed near the fenced area and helped carry the gasoline away but there was no evidence that the defendant entered into any type of building. thereby, eliminating the burglary charge.

At least one Marin criminal defense attorney has noted that numerous California cases dating back to the 1800′s that require the building to have four walls and a roof. Since the defendant in this case was convicted of conspiracy to commit burglary and no actual burglary occurred, there was insufficient evidence to support the conviction for conspiracy and the verdict was reversed.

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