Saturday, January 28, 2006

You're Under Arrest: Now What?

I have yet to have a client who wasn't completely caught off guard when they were arrested. Most "law abiding citizens" break the law every single day (do you always drive the speed limit?). Granted, you will not get arrested for speeding; however, many of us have had one too many drinks or have ingested controlled substances which could put us at risk for being arrested.

Once you're arrested it's important to be respectful with those who are handling you regardless of their attitude toward you. The officers who arrested you can make your experience a great deal easier or make it a living hell depending upon your attitude.

Depending on the offense you were arrested for, the arresting agency will determine the necessity and amount of bail according to a "predetermined" bail schedule depending upon the seriousness of the offense, your likelihood of showing up to court, your potential danger to the community, etc. The arresting agency will also run your name to see if you are on probation on another case, have any outstanding traffic or other warrants or holds. If you have these, bail may be denied entirely and you generally will be brought before a judge within 48 hours (not including weekends).

Once your bail is established, it would generally be worth your time and effort to contact the probation department to see if you qualify for a bail reduction or an own recognizance release ("O.R." release -- release without paying bail). This phone number is generally posted on most jail walls. It takes aproximately 24-hours to process this procedure; however, if you do qualify for it, you can often save yourself thousands in bail bond fees -- money that may be better spent latter for attorney fees, court costs, etc.

Once your bail is set, you have a few options. The most cost-effective would be to contact an attorney and have him appear with you at your initial hearing and try to have you released O.R. or at least try to have your bail significantly reduced. That hearing date is generally within one to three days after your initial arrest. You can also pay the entire bail. You give the exact amount to the court which they hold on to until the end of your case; or pay a bail bond person a fee (generally 10 percent of the established bail) to give the bail amount to the court (however, any fee you pay the bail bond person is nonrefundable).

Getting arrested is an extremely stressful experience. However, it is important that you make the right decisions calmly and are aware of the potential costs and use your resources wisely. Additionally, it is very important that you clear up any outstanding traffic warrants or other arrest warrants that may exist as they will prevent you from being released.

If you have any questions regarding this or any other mattter contact Carl Simons, attorney at law (310) 749-4529.

Driving Under The Influence

You can legally operate a motor vehicle with alcohol in your system -- technically you must be at .08 percent or above to be considered DUI. However, if you are operating a motor vehicle and you have any measurable amount of narcotics (recreational or prescription) in your blood and this is discovered by law enforcement, you are also DUI. There is no minimum amount requirement, and the test given will show narcotics that you have ingested up to three or more days prior to the date of the test.

Before getting behind the wheel of an automobile, listen to your intuition. If while at a holiday party, you consumed more than two drinks or any other substances, have someone else drive. If you still choose to drive and have contact with the police, it's best to treat them with respect. Remember officers are enforcing the laws, they do not make the laws, and they are the ones that make the decisions to ticket you, arrest you, or let you go.

In order for an officer to make initial contact with you, they are legally supposed to have "probable cause," which is legalese for a "reasonable" belief that you have committed some type of legal offense or vehicle code violation. Probable cause is not a difficult burden to overcome, it can be anything from speeding (even one mile over the speed limit), excessive lane changes (easily described as "weaving"), a missing front license plate, or burned out head taillight.

Once the officer makes contact with you, they are determining what other types of offenses may have been committed. Legally, they may question you; do a "plain view search" of your vehicle (anything within plain view that may be a violation is fair game, i.e. the bumper or roach in the ashtray); they also may rely on their senses (i.e. odor of alcohol or marijuana) in their determination if you have committed a legal offense.

When the police make contact with you, you are under no legal requirement to speak with them. In fact anything you say or do prior to your arrest by them can and will be used against you in their case should you be arrested. However, if the officer requests that you take a blood, breath, or urine test you must not refuse to take the test, or you run the risk of loosing your privilege to drive in California for a year or more

Most people think if they cooperate with the police, answer their questions, do their field sobriety tests, etc., the cops will go easy on them. However, the reality is if you are DUI and know it, you are simply giving them more evidence to prove their case against you.

Most people are familiar with their Miranda rights -- but what most of us believe about Miranda is incorrect. Not being read your Miranda rights is insufficient grounds for dismissal of any case against you. Miranda only comes into play once you have been arrested, and only has to do with what evidence the prosecution may or may not use against you at trial. Officers question you and make decisions prior to arresting you. They generally gather their case against you prior to your arrest, therefore anything you say after your arrest is relatively unimportant in their prosecution of their case against you.

If you are arrested for a DUI, it's extremely important that you contact an attorney immediately to discuss your options. In a nutshell, you have two actions going on against you: one by the criminal court and one by the DMV, who will try and have your driver's license suspended. In the DMV matter, you have only 10 days from the date of arrest to act upon the DMV suspension or your license will be automatically suspended.

If you have any legal questions regarding this or any other pending legal matter please contact the Law Offices of Carl Simons at (310) 749-4LAW.

Friday, January 27, 2006

Protecting yourself and your partner: Marriage/Domestic Partnership Rights and Responsibilities

For years now I have explained to the Gay and Lesbian Community that although in the State of California we did not have the legal right to "marry" each other YET,we have always had the right to contract with one another and define the parameters of our relationships through various legal documents.

Although I personally continue to support our right to marry; I have and continue to encourage members of our community to take care of our personal business; or else it will be taken care of in ways we may not agree with.

Even without the right to marry, it is important to know, we have the ability to have attorneys draft domestic partnership agreements that outline how we merge our properties together and how we should split up property should the relationship fail. We have the ability to draft powers of attorney directing how and who is to take care of us should we become medically or mentally incapacitated. We also have the ability to draft wills and trusts to direct how we wish to distribute our estates should something happen to us. We also have the ability to decide how to hold our real property, whether as sole owners, joint tenants or tenants in common. Additionally, if we choose to have our partners, or even our friends be our beneficiaries instead of our blood relatives on our life insurance policies, these wishes will also be granted.

If you are entering into a domestic partnership with an individual and there are property rights involved its a good idea to consult with an attorney to best decide how to protect your interest as well as your partners. It is important to understand that laws regarding our relationships are changing all over the country as well as in California. With these laws come new rights and responsibilities should the relationship end.

Additionally it is important to know that the laws in California changed drastically last year regarding domestic partnerships and if you have registered your partnership as "a legally recognized domestic partnership." Although Gay and Lesbian people still do not have the FULL right to marry (it is only a matter of time, however until this is granted as well) we are NOW subject to many of the same laws and legal responsibilities should a relationship break up.

Although many domestic partnership laws have yet to be tested in the courts, few people have the expenses to afford long legal battles and attorney fees during a relationship dissolution (divorce). It is in this regard that is important to consider hiring 1 attorney to act as a mediator should your relationship end and there be property issues unresolved in lieu of delving into the extremely expensive "Family Court" system.

A legal mediator will sit down with both partners, analyze each person's contribution to the relationship and in most cases come up with an amicable dissolution of the relationship and property distribution without the cost of utilizing TWO attorneys and the court system.

Although we rarely give thought to the legal ramifications of end of our relationships, it is important to understand that our relationships have been now legally recognized on some level and with that recognition have come some important responsibilities.

These suggestions are in no way meant as a substitution for good solid legal advice from a professional, as each individual case may vary. If you have questions regarding this or any other legal matter, feel free to contact the Law Office Of Carl Simons at (310) 749-4LAW.


I have been licensed to practice law since June 1, 1995. However, I actually began my legal career rather young; as for various reasons I was forced to defend myself for my beliefs or simply because of who I was. Although I was a little red haired kid (this was before I discovered body building), I was a courageous and strong willed individual who had no problem sticking up for myself and those I cared for.

I was fortunate enough to have had a mentor in my life who provided a tremendous amount of support throughout my law school experience. Unfortunately, after passing the bar and finally bringing in an income where I could give something back to this individual to thank him for his years of support; he passed away. It is through these experiences that I have always felt a tremendous need to disseminate legal counsel and information to those less fortunate in an effort to give something back to the universe that was so kind to me.

I am currently in private practice in Century City, California; largely focusing on criminal law, personal injury and domestic partnership contracts, dissolution and mediation. Over the past 10 years I have taken on hundreds of pro bono clients through my office, done pro bono clinics for various community organizations, held monthly pro bono clinics and written legal information columns for various magazines. Its now time to enter the 21st Century bring this information to the blogosphere.

In addition to the legal information you will find below, please feel free to write to me or contact me through my office should you have any further questions or concerns about the articles below.