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

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

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

War Veterans and The Trenches of Criminal Defense


American Flag waving

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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

Criminal Defense Pet Peeves.


One of my biggest pet peeves as a criminal defense attorney is when some prosecutors think that just because a defendant has the opportunity to get a case dismissed through a deferred entry of judgment program, that they shouldn’t fight the case.

What I mean is this: In the criminal defense world in california there are drug programs where once successfully completed, can lead to dismissal. One of them being PC 1000, or DEJ (Deferred Entry of Judgment). If the client is eligible, after taking approximately 20 weeks of classes and staying out of trouble for 18 months, the court will dismiss the case. Sounds great, right? Most of the time it is, and I have seen many clients benefit from such programs. HOWEVER, I can’t STAND when I have a drug possession case where the stop is bad, meaning illegal under the 4th Amendment and prevailing case law, and the prosecutors think that my client should just take the deal.

Why should my client have to do a program AT ALL when he was stopped and searched illegally? Why should my client roll over when THE PROSECUTORS have the burden to prove that the warrantless search was legal? And the best part is that when I challenge the stop and the subsequent search, I get eyes rolled at me, called up to the bench and asked, “Why are we doing this motion?”

I personally think that questions should not be directed at me as the criminal defense attorney, but rather the prosecutor whose burden it is to prove the legality of the search. BUT, if i have to answer that question, here’s my answer:

The reason I am challenging the validity of the search on behalf of my client is due to the fact that they have the constitutional right to be protected from illegal search and seizures. We ALL enjoy that right. I view it as my responsibility to challenge injustices wherever they exist, whether it is in a simple marijuana possession case, or a complex murder case.

And I will NOT advise a client to roll over and take a deal out of convenience for the court.

April 14, 2010 Posted by | Minor Infractions | , , , , , , , , , , , , | 1 Comment

Saved by the Bell


I was having a really rough week.  As a criminal defense attorney, you deal with all sorts of cases:  sex crimes, juvenile cases, DUI, domestic violence, drug possession, etc, etc.   And on top of that you often have to be in 2 places at the same time (if you’re lucky enough to be that busy, which thankfully, I am).  Because of the hurdles and hoops I must sometimes jump through, along with the constant demand for my time and attention, it can be easy to lose sight of why I am a criminal defense lawyer.  And today on the way back from criminal court, I was starting to feel that way – distracted with daily procedure and protocol.  Frustrated and stressed out.

Then the phone rang, but I was unable to pick it up in time.  They left a voicemail.   It was the mother of a juvenile client I had represented in a potentially life changing case. She was calling to thank me and left a heart felt message that almost brought tears to my eyes.  Cheesy I know.  But it snapped me right back onto the right path and reminded me of why I love being a criminal defense attorney – even through all the procedure, the stress, the frustration, the anxiety – I am able to make a difference, and that feels good.

March 19, 2010 Posted by | General Thoughts, Juvenile Criminal Defense, THIS is why it's worth it | , , , , , , , , , | Leave a comment

   

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