Nicole Valera – Criminal Defense

Fighting the system, one case at a time…

I was pulled over for a DUI…


…no, I didn’t get arrested.  But I do think that the universe is trying to tell me something – this is the 3rd time in the past 6 months that I have been pulled over for a DUI.  The first two times were the result of a DUI checkpoint.  And no, I’m not driving around the streets drunk out of my mind trying to get arrested.   I thought being a criminal defense attorney would bring interesting insight to this topic and wanted to share it with you.

Saturday night, a friend of mine had a party to celebrate finishing a triathlon.   She lived close by but not within cabbing distance so I agreed that I would be the designated driver.

We get to the party between 8-9pm.  I had some snacks, but didn’t eat too much as I had eaten a big dinner at around 7.  I had one beer – an Amstel Light to be exact.  My other friends were drinking, we were all having a good time, congratulating the triathlete and hanging out.  I did not consume any more alcohol.

At around midnight the party starts to thin out.  A couple people decide to go to a nearby bar and they invite us.  Myself and my friend (whose car I’m driving) decide to meet them over there.  My friend has another beer and we call it a night at around last call.

We stop and get some late night McDonalds (ugh, I know), and head home.  I stop at a red light at an intersection which serves as the border between two cities.  I look in my rearview and see a patrol vehicle.  He’s not lit up.  I tell my friend there’s a cop behind us.  She’s not too worried since she knows I’m fine and I haven’t been drinking.

The light turns green and I cross the intersection from one city into the next.  The minute I hit the other side of the street, I see the lights flashing in the rear view.  I signal to pull over and he directs me over the loud speaker to pull into a side street and off the main road.  I do so.  I put the car in park, roll down the windows and place both hands on the steering wheel.  

The officer comes up and shines his flashlight in my face.  I had Lasik surgery a few years back so my eyes are sensitive to light.  I flinch a bit and he asks for my drivers license.

Me: My license is in my purse which is in the backseat.  I’m going to reach back and get it.

Officer: Ok. (He shines the light in the back seat where my purse is.)

I open my wallet up and smack dab right next to my ID is my bar card.  He’s shining the light into my wallet (probably looking for contraband that isn’t there).  I pull the ID out.  I have no idea if he sees the bar card. Nor am I about to trot it out.

Officer: I need your registration and insurance as well.

My friend opens up her glove compartment – he shines a light into the glove compartment.  It’s chock full of papers.  She’s having problems locating the registration.  She has the insurance.

Officer: I pulled you over because you were weaving within your lane.  And because your back brake light is out.

Me: I wasn’t aware of the brake light – this isn’t my car.

UHHHHH, I WASN’T WEAVING!  And even if I was, weaving *within* my lane is not illegal.  It’s when those tires cross the lines that weaving becomes a problem.

Me: We picked up McDonalds and I might have reached for a french fry.

I am careful not to make an admissions, although, really would it have mattered? I can just imagine how the police report would’ve read, “Suspect admitted to weaving as she was reaching for a french fry.

Officer: Have you been drinking?

Me: I had a beer between 8-9pm.

Silence.  I’ll admit my heart pounded a bit.  Would I get to do the FST’S?!?  Would he pull me out of the car??

Officer: Ok, well, you’re not drunk, so I’ll let you go. I won’t write you a ticket, but get that tail light fixed.

Me: Thank you, Officer.

So what did we learn here?

1.  Don’t ask questions – most police officers I talk to tell me that annoys them.  The “What’s this about, Officer??” question probably gets under their skin.  Let them ask the questions.

2.  Check your friends brake lights before you drive her car to a party.  I’m kidding, but not really.  Small traffic infractions (failed to signal, running a stop sign, etc) and car malfunctions are the easiest form of probable cause to pull you over.

3.  Don’t drink and drive!  Although, technically, as I say in my voir dire, drinking and driving itself is not illegal.  Driving while under the influence (Ca Vehicle Code Section 23152(a)), and/or driving with a blood alcohol content above a .08% (Ca Vehicle Code Section 23152(b)) in California IS illegal, however.  It’s a nuance that is important if you have a client whose blood alcohol content is below the .08% but they are still charged with the (a) count.

Anyway, it was a fascinating experience.  Next week I have jury duty – and I’m sure that it will be fascinating as well.  Of course, I probably won’t get picked, but one can dream, no…?

November 10, 2010 Posted by | DUI | , , , , , , , , , , , , , | Leave a comment

Why Men Should Wear Man Purses


As a criminal defense attorney in Los Angeles, I spend a LOT of time in security lines.  Being an attorney, I’m usually able to skip to the front.  However, from time to time, I find myself stuck behind men who are taking FOREVER to put their belongings in that little plastic tray that goes on the conveyor belt and into the x-ray machine.

They take their wallet out, then their keys, then their cell phone.  They start to go through the metal detector.  Wooops!  It beeps.  They have to go back – what could be beeping?  Ohhhh, you have all that change in your pocket.  Yes, that’s metal.  It will make the METAL detector beep…

Meanwhile I am tapping my foot behind them, ready to place my purse with ALL my belongings, on the conveyor belt.  So easy!

Men should wear Man Purses like this one:  

 

That way they don’t have an impatient criminal defense attorney behind them…

 

 

October 28, 2010 Posted by | General Thoughts, Hmm...inneresting... | , , , , , , | Leave a comment

Sheriff Baca – Are you a lawyer?


I’m not sure if it’s just because I’m a criminal defense attorney that I find today’s article in the LA Times about LA County Sheriff Lee Baca, funny.   What I found particularly funny wasn’t his stance against the legalization of marijuana (predictable, snoooooze), but the fact that Baca predicted that Prop 19, if passed, would be superseded by federal law (true) and would be found unconstitutional (huh???).

When did Sheriff Baca become an attorney?  And why exactly does he believe that it is within his purview to enforce laws that are no longer in existence simply because he believes that they could be found unconstitutional at some later point?  That’s preposterous.   His job is to enforce the laws of the State of California – he doesn’t get to choose which laws are enforced and which are not based upon his own personal opinion of what might happen at a later date in some appellate court that he will not even be permitted to argue in front of.

October 18, 2010 Posted by | Drug Cases, General Thoughts | , , , , , , , , , , , | Leave a comment

Phaedra Parks: Real Housewife of Atlanta? Or Real Waste of an Opportunity?


I hate to admit it, but I am an avid fan of Bravo TV’s, Real Housewives of Atlanta.   The outfits, the makeup, the shopping, the bickering, the pop songs and wigs … what a great formula for irresistible trash TV! (Don’t judge me, I also read – just finished “The Corrections” by Jonathan Franzen.  It’s all about balance).  So of course I was more than excited about this upcoming season as I heard that an attorney (and a criminal defense attorney at that!) would be featured as one of the Housewives.   I was wondering what kind of casting Bravo had done – would she be a cliche?  

Episode 2 of Season 3 was entitled “Model Behavior”.  They introduced the final housewife, who is in fact, a model.  It was of course, a play on words as good behavior is always an issue with the any of the housewives.  This episode also shows Phaedra Parks in her office and that particular scene surprised me.

Living in Los Angeles, I am surprised I don’t bump into a reality TV production crew on every street corner.  When I was a public defender, I heard rumors of a reality show focusing on some of the attorneys in that office.  Another time there was an email being sent around our office about some filmmakers who wanted to do a documentary on the lives of public defenders.  My understanding was that most of these projects got shot down because of issues of confidentiality.  How would the producers of these projects be able to capture criminal defense attorneys in their natural habitat?  Getting cameras in a courtroom would be problematic, and certainly cameras wouldn’t be allowed into lockup or during client interviews…

So that was why I was so surprised with that particular scene.  I’m assuming she had him sign a waiver of confidentiality for that particular scene.  Even still…I found it disturbing.  She allowed her client to make a statement about his case ON CAMERA.

I spend most of my time telling my clients not to say anything to anybody, ESPECIALLY if they know they are being taped or recorded.  That is my gut instinct as a criminal defense attorney – the less statements from your client, the easier your job is, the better you can protect them.

Of course her clients’ statement was a denial, and was it just me, or did the whole thing seem staged?  I’m not questioning his innocence, because after all, we are ALL innocent until proven guilty, right?  And I shouldn’t be surprised that reality shows are often staged…it’s just that the whole scene just didn’t sit right for me.

I understand that these women go on these shows to promote themselves and maybe make some cash (Don’t be Tardy for the Party – Woaaaahhhh, woaaahhh), but that scene got to me.  I don’t care that she’s married to an ex-felon, and I don’t care that she used to represent Bobby Brown (and as Nene artfully pointed out – “EXCUSE ME, Bobby Brown was 10 years ago!”).  But if she wanted to expose the inequalities of the criminal justice system, she wasn’t doing that in that scene.  She was just promoting herself  - that was all about how great Phaedra was – you see her receptionist in the front of her posh office which appears to be in a highrise building.  She meets him in a tastefully appointed conference room, dressed to the nines, makeup perfect, and not a hair out of place.  She posts something on Bravo’s website “Phaedra on Felons” but the comment seems more like an after thought and an opportunity to – surprise – promote herself further and justify her upcoming nuptials to an ex-felon.

First of all – no one cares – you’re not the first attorney to marry a client or an ex-felon, and you probably won’t be the last.  Secondly – what a waste of a unique opportunity!  You’ve got a national platform to talk about the criminal justice system and instead you sandwich that between 2 paragraphs about your fiancee on Bravo’s website?!?

What a Real waste.

October 13, 2010 Posted by | General Thoughts, Hmm...inneresting... | , , , , , , , , , , , , | 3 Comments

Law & Order? I don’t think so – Prosecutorial Misconduct in California


My last post criticized the LA Times – this post is going to praise them.  An article about prosecutorial misconduct! As criminal defense trial lawyers, we know it happens – we hear about it when it happens to our friends and colleagues, and we see it for ourselves.  I have often been asked  how I can live with myself doing the job that I do –  Well this article highlights one of the most important reasons I am a criminal defense attorney:  to defend the public against people like this.  

Now don’t get me wrong – I have had the pleasure of going up against many fine and ethical prosecutors.  In my personal experience, most prosecutors have an excellent standard of ethics.  It’s the ones who you know are playing hide the ball – that are pushing you and your client towards trial with the knowledge that they can’t prove their case beyond a reasonable doubt, when really, they should either be dismissing or offering you a really REALLY good deal.  Now I know that behavior may not be defined as prosecutorial misconduct by an appellate court, but I happen to think that it’s shady.  Sometimes our opinions may differ – I may think they have a weak case, they may look at it differently – but that’s not the situation I’m talking about.  It the situations where they KNOW they haven’t been able to speak to a key witness, or where they spring a suggestive six pack color lineup on you during trial where identification is the defense (that happened to me in my first trial EVER) – those are the situations I’m talking about.

What was most disturbing to me about the article, wasn’t that it happens- but that reprimand by the State Bar is so infrequent.  6 out of the 707 cases of prosecutorial misconduct over the past 12 years have been disciplined.  Only 6.  Keep in mind that these are just the cases that are reported – if a court finds the misconduct to be harmless, they are not required to forward this finding to the State Bar.  They should be.

After reading this article, I hope the general public starts to understand how important a criminal defense attorneys job is.  I feel like I’m always whining about how under appreciated we are, but maybe there’s a good reason for it.  I had a prosecutor friend say to me the other day, “You should come over to the side of Law & Order.”  And my response was, “I already am!”

October 5, 2010 Posted by | General Thoughts, Hmm...inneresting..., The Latest | , , , , , , , , , , , , , , | Leave a comment

The Press – Friend and Foe


I woke up this morning to get ready to go to court – just have one  matter and I will be done in court for the day.  I was going through my morning routine, which includes reading the news, getting my breakfast ready, picking out the clothes I am going to wear, when I came across this LA Times Article “Judge Halts Execution of Rapist and Murder”.  I am an opponent of the death penalty so this article piqued my interest, and especially the way the article was titled.

That title is meant to get you incensed – how on earth could a judge do such a thing? Save a rapist?  Save a murderer? Halt this monsters’ execution?

But if you read the article, it’s about the legality of the method in which a person is put to death in California. It reveals that recent inmates who have been executed in California may have not been completely anesthetized and may have suffered extreme pain from the cocktail of injections they received.  The way I read it, it suggest that the method in California may be cruel and unusual punishment, which is unconstitutional in our great nation.

It’s not about a judge “saving” a murderer or rapist.  The title is the first thing you read – it’s the theme that you carry with you while you read the article.  Will the average reader be able to read that article objectively?  Is the title just meant to grab the readers’ attention? Or is it meant to create fear that our justice system is getting soft and we need to toughen up on crime?  Because I can tell you, from working the front lines, a criminal defense attorneys’ job just gets harder and harder.

In my mind, I’ve always framed the death penalty issue as a human rights issue, and an issue for humanity.  I am sure that there are philosophers out there who can put it more eloquently than I will ever be able to express, so I will simply say that I oppose the death penalty.

The Press can be a friend to a cause as well – take for example, Jose Antonio Vargas and his series on the AIDS epidemic in Washington DC.  His work has inspired the documentary “The Other City”, a powerful film chronicling the real life experiences of those suffering from HIV/AIDS in our nations’ capital.

I don’t think the LA Times article does anything helpful for the anti-death penalty cause, and I have no idea if that was even the point.  I saw the title, was interested, and then immediately annoyed.  That title was there to get me to click on it.  Thoughts?

September 29, 2010 Posted by | General Thoughts | , , , , , , , , , , , , , , | 38 Comments

Juvenile Criminal Defense – 2 very different stories


I had a juvenile criminal case today which I was able to settle favorably.  The minor was a very nice kid, 14 years old, who came from a stable 2 parent, middle class household.   He made a silly mistake and his parents stepped in right away to correct the behavior.  The criminal courts stepped in as well, which cued my entry into the whole thing.  I have hopes that I was able to settle the case in a way that would allow my client to lead a happy and productive life, but also learn from his experience and not repeat the behavior.

Today I spoke with a fellow criminal defense attorney friend of mine who had a 14 year old client – only he was not a juvenile court client, his case was being adjudicated in adult court.  Even though he was not an adult, he was being treated as one. I didn’t get a chance to ask my friend what he was charged with, but for a 14 year old to be in adult court, it was probably a very serious crime, perhaps murder, attempted murder, or something of the sort.

I started to wonder if there were any similarities between her client and mine.  Was it possible that her client came from a middle class background?  From a stable 2 parent household?  Did he go to school?  Did his parents step in with a firm hand the first time he had a brush with the law?

I don’t know, but I am guessing that my client and hers came from very different backgrounds.  That while the above questions could possibly be answered in the affirmative, it was likely that they would not be.  Representing juvenile clients has been some of my most rewarding work as a criminal defense attorney, but it is not without its moments of unbelievable sadness.  It’s sometimes difficult to get out of bed in the morning and make your way to the office or to court.

The best you can do is remember who you are fighting for – the underdog, the under represented, the often misunderstood, and sometimes, the under cared for.   Remembering that makes it easier to keep fighting.

September 28, 2010 Posted by | General Thoughts, Juvenile Criminal Defense | , , , , , , , , , , , , , , , , , | 2 Comments

Less is More


Blue ribbon

Image via Wikipedia

Sometimes being a good criminal defense lawyer means saying less is more. That’s probably the best lesson I ever learned when I first started out, and it has carried me to many victories.  I think the pressure to speak and ask questions is high, especially when 1) you don’t think your client trusts you, and/or 2) Your client is paying you a lot of money and you feel like you have to sing for your supper.

Yesterday I won a juvenile court adjudication/trial for a marijuana possession charge.  The police department had put up a fight when I requested the police report (as I documented on my private Facebook page a couple of days ago), so I just sent out a subpoena and they faxed the report over. I can honestly say I have NEVER had to subpoena an initial report.  EVER.  I guess there’s a first time for everything.

Anyway, when I got the report I was pleasantly surprised.  I don’t know if this is just the cynical criminal defense attorney in me, but maybe they didn’t want to send me the report because they realized how weak it is.  Anyway, I ended up doing the trial, even though my client was offered a diversion.  He felt very strongly about standing up for his principle and having his day in court.  I can’t agree more.  But sometimes you have to do a risk analysis, no matter how strong your principle is.  Even though I felt the case to be weak the diversion was tempting.

I have to say that the judge/referee in this case was extremely fair.  One thing you learn is how to size up your bench officer, but this is the first time I’d been in front of him and I didn’t know anyone else who had.  Even though I had a solid defense I proceeded with caution.  Although it was prudent, it wasn’t needed.  He could tell right away where the big hole was in the case, I asked 2 questions to clarify, and he dismissed it upon my 1118.1 motion.

So again, less is more.

September 23, 2010 Posted by | Juvenile Criminal Defense, The Latest, Wins | , , , , , , , , , , , | Leave a comment

Never a Dull Moment at a DUI Checkpoint


A sobriety checkpoint in East Haven, CT. Also ...

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After getting stopped at a DUI checkpoint for the 2nd time this year I thought that it was time to blog about it and let you know my perspective which may be unique since I’m a criminal defense attorney.

The first time I was stopped at DUI checkpoint was in Santa Barbara. I had driven up from Los Angeles in order to give a speech at my alma mater UC Santa Barbara – A large part of my speech revolved around how I became a criminal defense attorney. A dear friend of mine, Ashlee, had agreed to come with me, and the free night at Bacara was probably a big draw as well.

I was naive about the traffic and thought that 3 hours would be plenty of time to get there. It wasn’t. I had to start putting on my makeup while sitting in traffic and changed into my suit in the bathroom. I gave my speech and Ashlee and I decided to go back to the hotel right away to shower and change. Right outside of the campus we got stuck in the DUI checkpoint. It was also a license checkpoint and they were stopping every single car. I suppose that’s the new guise now – make it a license checkpoint because then you have a constitutional reason for stopping everyone, whereas if it was only a DUI checkpoint then they would not be able to stop every single car, but instead follow a pattern.

As well pulled into the checkpoint the nice sheriffs deputy asked for my license, which I couldn’t find since in the flurry of rushing to the speech I had frantically thrown every item in the car this way and that. I calmly explained to him I would be happy to look in the trunk for it since I thought that’s where it was. He said ok, followed me to the back of the car and watched as I opened the trunk (which was thankfully free of contraband). I still couldn’t find my wallet. I gave him my drivers license number and he agreed to run it for me. As we were waiting he asked where I was headed and what I was doing in town. I told him I was staying at the Bacara, that I was a lawyer and that I had just given a speech at the university. He asked what kind of law and hesitated. He smiled and said, “Ohhhh, you must be a criminal defense attorney!” I smiled back and he said, “Well, let me know when you want to come to the good side.” I laughed it off and he came back letting me know I was good to go and that I was properly licensed.

Technically he could’ve given me a ticket for driving without my license, despite the fact that I was actually licensed. But the nice deputy didn’t seem to mind so, who am I to argue with the law?

The second time this year I was pulled over in a DUI checkpoint was last night. I was taking my friend’s brother home and the both of them were in my car. The traffic began to get heavy and I looked up to see the DUI checkpoint signs. I saw the motorcycle officers sitting to my left on the corner near the legally required turnout, knowing that just down the street there were more officers waiting to pull over those who were trying to abode the checkpoint.

We started to reminisce about the first time I had been pulled over in a checkpoint (Ashlee was in the car with me again – I’m going to start thinking twice about driving with her…) and as we drove by the motorcycle cops Ashlee decided to give them a nice parade wave.

I looked at her with daggers in my eyes and I said, “What did you wave at them for? Now we’re going to get pulled over for SURE!” She laughed maniacally, and I guess it didn’t matter because I wasn’t intoxicated, but who wants to talk to cops unless they have to?

As I watched several cars in front of us get waved through the checkpoint, I tried to count how many cars in front of me had gone without getting stopped. I was trying to establish that the city of Redondo Beach was complying with the constitutional guidelines set forth for them. I couldn’t figure it out since we had been placed in a single lane there was a gigantic moving truck in front of me blocking my full view.

As expected, we were stopped. I’m almost positive that the motorcycle cops had radioed ahead to the cops at the front to make sure we were stopped. I guess they figured that Ashlee had to be drunk to wave at them during a DUI checkpoint and were thinking that the driver (me) would be drunk as well.

The officer politely (and cheerfully, I might add) asked me for my drivers license. I gave it to him and he immediately asked if I had been drinking. I said no, with a smile and he said, “Just drunk people in the car, huh?” I smiled back at him and said nothing. Ashlee’s brother joked with the cop, “No officer, but we do have a Waver up here in the front” pointing to his sister. The officer laughed and asked if she had perfected her parade wave yet. He handed me back my license and waved me through.

Which brings me to some interesting thoughts – I have often asked a client who is stopped in a checkpoint what the pattern was for pulling cops over. What I mean by that is that cops have to pull over people in a DUI checkpoint with a formula mandated by a supervisor – for example, every 3 cars, or every 4 cars. When I was in that checkpoint, you couldn’t tell what the pattern was just because of the flow of traffic.

Another interesting thought – the officer asked if I had been drinking – if I had said yes I would’ve been pulled out of the car – he didn’t get close enough to smell any alcohol emitting from my breath, nor could he see whether my eyes were bloodshot and/or watery (which they were due to laser surgery that I had years ago). Just that question alone probably gets a lot of people without the officer having to do much work up to that point.

Anyway, Ashlee and I will no longer be driving in the same car. Although it was highly educational, I’ve had enough of going through DUI checkpoints.

September 1, 2010 Posted by | DUI | , , , , , , , , , , , , , , , | 1 Comment

War Veterans and The Trenches of Criminal Defense


American Flag waving

Image via Wikipedia

Yesterday I finally resolved a very emotionally difficult and legally complicated case. As a criminal defense attorney you try to maintain a professional distance as much as you can, but I do believe that any good criminal defense attorney should put at least a little emotional skin in the game. No one wants a robot for a lawyer.

Anyway, my client was an Iraqi war vet and had completed 2 tours of duty. He had some difficulty transitioning back into normal society and ultimately picked up a serious felony. I had been frustrated with this case for many reasons – the case had dragged on nearly a year – some of it due to my work up of the case and some of it not.

This client was a young vet, mid 20′s. This is not the first time I have represented a young client (I represent minors as young as 12), nor is it the first time I’ve represented a war veteran. However most of the vets I have represented have been from the Vietnam War. A majority of them have been homeless and suffering from substance abuse problems. I’ve had to work with the VA on numerous occasions.

Deep down inside I was afraid this client could’ve turned out like many of my Vietnam War vet clients.

At first blush, that seemed unlikely to happen – my client was young, physically healthy, enrolled in school, had many friends and lots of family. He was not going to end up one of my tattered war vet clients that had been marched into court in handcuffs and jail jumpsuits. But I always wondered what those vets had been like when they were young, just returning from war. What did they do? How did they live? Did they have loved ones to come home to? Did they ever know they would not be able to leave the war behind? Or while in the trenches where some politician had sent them, did they harbor that fear of what their life would become if they made it out alive?

With the President‘s announcement that 50,000 troops will be coming home, the legislature needs to figure out a way to deal with the new generation of vets that may become involved with the criminal justice system. Many will come home with depression, substance abuse problems, and other types of psychological disorders. In California there is no evidence or penal code section that specifically recognizes the admission of Post Traumatic Stress Disorder during the guilt phase. There are some useful sections for sentencing purposes but I do believe criminal defense attorneys need a tool for trial. My research turned up similarities to the battered women’s syndrome – perhaps we could use that as a model. It is a very real problem that needs a very real solution.

In the meantime, I have hope for my client. He is a good man with hopes and dreams and despite this setback, I think he will make a wonderful life for himself. We were able to resolve this case in a very just manner and I am thankful for that. I had to fight hard for him, but really, it was the least I could do.

August 26, 2010 Posted by | The Latest, THIS is why it's worth it, Wins | , , , , , , , , , , , , , , , | Leave a comment

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