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

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

Less is More


Blue ribbon

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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

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

Criminal Defense: Vile? Or Necessary?


US Supreme Court

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I had known in law school that I wanted to practice criminal defense and the minute I passed the bar I applied to and was accepted for employment with the Los Angeles County Public Defender‘s Office. I had clerked there for 2 years in law school and was so excited to be able to finally do what I was sure I would love.

And I did love it. Only when I told other people (even other lawyers) that I was a criminal defense attorney, most people looked at me with shock in their face. This shock did not come from the fact that I was young (I was 26 when I started practicing law), but from the fact that I was practicing (in their opinion), a vile and despicable area of law. I fielded (and continue to field) questions like, “How do you sleep at night?” “How can you live with yourself?” “Aren’t you scared of your clients?” “Well you plead them all guilty automatically if they’re guilty, right?”

I don’t really look at criminal defense that way. Some people have the luxury of making it a black and white issue. I do not. My job is to make sure that the constitution is protected. My job is to make sure that the constitution isn’t just a lot of words written down in a book, but an actual way of life. My job is to prevent the police from just stopping you on the street for no reason. My job is to prevent the government from locking you up without probable cause or reasonable suspicion. My job is to prevent us from living in a police state. My job is to make sure that laziness and bureaucracy do not take precedence over your rights and what is just. My job…is hard.

I am in private practice now and my philosophy hasn’t changed. Of course there is a business aspect to it, but I make sure that my clients rights come first, sometimes before my own needs, and of course, within reason. It is easy for the people in ivory towers and the talking heads to brand someone a criminal, call them guilty, and move on to the next news story about the latest celebrity scandal. But people are not perfect, and you never know when a simple mistake, a bad decision, an unfortunate circumstance, or bad timing, can put you in a position where you or your loved one are forced to defend your reputation, your freedom, and even your life. If you or someone you loved were ever to be in that situation, wouldn’t you want someone who didn’t pass judgment on you? Wouldn’t you want someone who treated you like a human being, and respected and revered the constitution and all the rights and liberties it bestows on everyone here in America? I would.

So, to answer one of the oft asked questions – I sleep just fine at night.

January 22, 2010 Posted by | General Thoughts, Minor Infractions, THIS is why it's worth it | , , , , , , | 3 Comments

   

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