Recent Court Decisions-DUI’S & CAR SEARCHES

DUI-You have a right to choose between a breath or blood test

The general rule is that if you are lawfully arrested for driving under the influence of a drug or alcohol, the officer should tell you that you have a statutory right to choose between a breath and blood test.  However, the California Court of Appeals recently held that when a police officer tells you that your only choice is to submit to a blood test, the results are admissible provided that you freely and voluntarily consent to the blood test.  (People v. Vannesse (May 16, 2018, B283857)-Cal.App. 5th) Therefore, if you want a breath test, you should tell the officer that you have a right to choose between the two and that you want a breath test, do not consent to a blood test.

Police officers cannot search a rental car merely because your name is not on the rental car agreement

The general rule is that an owner of a vehicle has a reasonable expectation of privacy.  But what if you are driving a rental car and your name is not listed on the rental car agreement, what then, do officers have a right to search the car?  The United States Supreme Court held that a driver who is in lawful possession or control of a rental car has a reasonable expectation of privacy even if the rental agreement does not list the person as an authorized driver and officers cannot use this as a basis to search the vehicle.  (Byrd v. U.S., 16-1371; May, 14, 2018)

Automobiles parked within the curtilage of the home cannot be searched

Generally speaking, a police officer may search a vehicle without a warrant if the officer has probable cause to believe that a crime has been committed.  However, the United States Supreme Court recently held that police officers cannot search a vehicle that is parked within the curtilage of your home. (Collins v. Virginia; 16-1027; May 29, 2018)   What is the curtilage?  It is the area immediately surrounding the home and is associated with it.

New Criminal Law Statutes Effective January 1, 2018

Sealing of Juvenile Records

AB 529 requires the sealing of juvenile records when a petition is dismissed.

Youthful Offender Parole Process Now Includes Crimes Committed By Those Under The Age Of 25

AB 1308 expands the youth offender parole process for persons sentenced to lengthy prison terms for crimes committed before age 23 to include those 25 or younger.

Elderly Prisoners

AB 1448 allows the Board of Parole hearings to consider the possibility of granting parole to an elderly prisoner who has served at least 25 years in prison.

Three Year Sentence Enhancement For Certain Drug Convictions Repealed  

SB 180 repeals the three-year sentence enhancement for certain prior drug convictions that are added to any new conviction.

Assessment Of Fees On Families Of Youth In The Juvenile Justice System Ends

SB 190 ends the assessment of fees on families of youth in the juvenile justice system.

Sealing Of Juvenile Records

SB 312 authorizes courts to seal juvenile records for certain offenses.

Record Sealing Now Available For Those Arrested But Not Convicted Of A Crime

SB 393 authorizes record sealing and removes barriers to employment for those arrested but never convicted of a crime.

Children Sentenced To Life W/O Possibility Of Parole Are Now Eligible For Parole Hearing

SB 394 ensures compliance with U.S. Supreme Court decisions by allowing children sentenced to life without the possibility of parole to be eligible for a parole hearing after 25 years.

Children 15 Years Or Younger Must Consult With An Attorney Before Waiving Their Rights

SB 395 requires children aged 15 years or younger to consult with an attorney before waiving their rights and before a custodial interrogation.

Judges Do Not Have To Impose Firearm Enhancements

SB 620 restores judicial discretion regarding the imposition of firearm enhancements. Judges retain full authority to impose such sentencing enhancements.

Honorable Discharge Program Created For Youth Who Successfully Complete Probation

SB 625 creates an honorable discharge program for youth who successfully complete probation after release from the Department of Juvenile Justice.

Sources- and California Public Defender’s Association

For full text of the bills, visit:

After The Decision In Strieff, Will Courts Allow Evidence To Be Admitted Against You Even If A Police Officer Did Not Have The Right To Stop You?

fourth-amendmentOn June 20, 2016, in a 5-3 decision, the Supreme Court of the United States in Utah v. Strieff[1], issued a holding that rocked the 4th Amendment world.  The Court carved out an exception to the Exclusionary Rule that allows law enforcement to detain and search you if you have an outstanding warrant.  You might be asking, “haven’t they always been able to do that?”  No, prior to this decision, a police officer could stop you only if the officer had reasonable suspicion to believe that you were engaged in criminal activity. If the stop was illegal, any evidence seized as a result of the illegal stop would be suppressed and could not be used against you.  The high court’s holding in Strieff effectively allows the admissibility of the evidence even if the stop was illegal as was the case in Strieff.


In Strieff, Officer Fackrell was conducting surveillance on a residence as it was suspected that drugs were being sold out of the home.  On the day in question, he observed Strieff leave the residence and detained him.  He requested Strieff’s identification, relayed this info to the police dispatcher who told him that Strieff had an outstanding arrest warrant for a traffic violation.  Officer Fackrell arrested Strieff, searched him and found meth and drug paraphernalia on Strieff’s person.  Charges were filed against Strieff, he moved to suppress the evidence arguing that the stop was illegal.  The prosecutor conceded that Officer Fackrell did not have reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband. (See Strieff, supra.)

Strieff’s motion was denied, Strieff later appealed that decision which was affirmed by the Utah Court of Appeals but was reversed by the Utah Supreme Court.  The Supreme Court of the United States granted certiorari to resolve the issue as to how the attenuation doctrine is applied when an unlawful detention leads to the discovery of a valid arrest warrant.


Simply put, the Attenuation Doctrine allows the admissibility of illegally obtained evidence if the connection between the evidence and the illegal method is sufficiently remote or attenuated.


  1. The time lapse between the unlawful police conduct and the obtaining of the evidence sought to be suppressed-the shorter the time, the less likely is attenuation of the illegality
  2. The presence of intervening circumstances
  3. The purpose and flagrancy of the official misconduct

Applying Factor #1, the Court in Strieff stated that because Officer Fackrell discovered the drugs only minutes after the stop, suppression of the evidence was favored.  Applying Factor #2, the Court stated that since Strieff had an outstanding warrant, Officer Fackrell had an obligation to arrest Strieff and since it was lawful to arrest him, he also had the right to search Strieff as a search incident to arrest. [3]Applying Factor #3, the Court concluded that Officer Fackrell’s misconduct was negligent and not flagrant.  After analyzing all of these factors, the Court held that the evidence that Officer Fackrell seized from Strieff’s person as part of the search incident to arrest was admissible.


According to Justice Sotomayor who wrote one of the dissenting opinions, this decision means that “the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment right…” “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants-even if you are doing nothing wrong.  If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”  (Strieff, supra.)


The holding in Strieff essentially gives police officers the right to make illegal stops and if evidence of a crime is found on your person, charges may be filed  and that evidence which at one time would have been thrown out because of the illegal stop will likely be admitted against you.


[1] Utah v. Strieff, 579 U.S. ___ (2016 )

[2] Brown v. Illinois, 422 U.S. 590

[3] Arizona v. Gant, U.S. 332, 339