The Law Office of Ben Mironer

SHOULD WILL SMITH GET CHARGED???

Many people believe that it is up to the victim, of a violent crime, to decide whether they want to press charges. In reality this is untrue, it is always up to the prosecuting agency to determine whether or not charges are filed. An officer can make an arrest based on a probable cause to believe a crime has been committed. A statement from a victim about a crime is sufficient to provide an officer with probable cause to make an arrest. Sometimes, there is no statement from the victim, but there are other witnesses that tell the police what happened. Other times a crime is caught on video, and that video evidence is sufficient to make an arrest.

On March 27, 2022, during the Oscar Awards, the world watched actor Will Smith slap comedian Chris Rock in the face. This action constituted a criminal offense. However, Mr. Rock decided not to press charges against Mr. Smith. LAPD issued a statement about the event saying, “the incident involved one individual slapping another. The individual involved has declined to file a police report.” This does not mean Mr. Smith is out of the woods. He can still get charged for a criminal offense by a prosecuting agency. The police can potentially get an arrest warrant, and make an arrest even though Mr. Rock refuses to press charges.

Even though this incident was caught on camera, criminal offenses are usually not recorded. Often times a victim will make a statement at the scene, but then change their mind, and change their statement to a prosecutor. Unfortunately, once charges are filed, it generally doesn’t matter, a prosecutor will not dismiss the case. They will simply argue that the victim is now lying on behalf of the defendant to keep them out of trouble.

If Will Smith is arrested, he could potentially face charges for battery. Given that Mr. Rock was not badly injured, it is most likely a misdemeanor battery. This means that Mr. Smith would be facing a maximum of 6 months in county jail, along with other fines and possible programs. However, it does not seem that the LAPD or the LA District Attorney’s office is intending to file charges, but you never know.

Do you think Will Smith should get charged?

The Law Office of Ben Mironer The Law Office of Ben Mironer handles all facets of criminal cases. We emphasize in DUI and drug rel

PICKING THE RIGHT LAWYER

Finding the right lawyer to represent you is a very daunting task. This is especially true if you don’t know anybody who can refer you to a good attorney. Most people start by asking a family member or family friend, if they know someone. The problem is that unless that attorney has already represented someone you know, you can’t be sure about their abilities.

Nowadays, most people go on the internet to shop around for an attorney. This can be extremely tricky, because there are so much misleading marketing strategies utilized by law firms, on the internet. For example, some firms or attorneys pop up everywhere on the internet. This is because they are paying to advertise their website. This has nothing to do with their abilities as attorneys, they work on pure volume. These firms figure that they can bring in a ton of leads, and they just need to sign a few of them. These firms pay less attention to providing excellent service to their clients, and more on acquiring as many new clients as possible.

This is the reason why the firms that advertise the most, actually provide the worst service. They don’t care as much about their reputation because they simply pay for their leads. Even worse, they must charge a premium to cover their overhead and marketing expenses. Thus, you could end up paying much more, and getting much less.

When searching for an attorney online, it is crucial to read their reviews. Try to decipher which reviews are legitimate. The longer the review, the more likely it’s coming from an actual pleased client. Also, it’s important to check all reviews, recommended reviews or not recommended. These firms that advertise a lot, also pay to have bad reviews taken to the bottom.

Remember, it’s important to call the attorney, and make sure you’re speaking with the attorney that’s going to represent you throughout the case. Some firms have salesman attorneys that make the sale, sign the client, and then hand it off to the real attorneys that actually handle the case. You can get a junior associate that has just started practicing, even though you think you’re getting an experienced pro. Your attorney is an extension of you in court. The way the prosecutors and Judges see your attorney is the way they see you. Always go with your gut instincts.

DO I HAVE TO SHOW MY ID TO AN OFFICER?

A police officer can always ask for identification. This is simply a request, not a requirement. An officer can not cite or arrest someone for refusing to provide their license or ID. Of course, if you’re pulled over driving, you must show your drivers license. But, if an officer is looking for a suspect, you’re not legally required to provide the officer with an ID. If you don’t want to provide identification, you can politely say you do not want to do so, and ask whether you are free to go.

If an officer reasonably suspects you committed a crime, they can detain you to investigate that crime. In a few states, they have what are called “Stop and Identify” laws, which require someone suspected of criminal activity to provide identification to police. It is a crime just for refusing to provide ID. In California, even a suspect in a crime is not required to show their ID. The police can’t arrest someone just for refusing to provide their ID. However, in any driving related crime, you are required to provide a valid drivers license. Failing to provide your license will be held against you.

Sometimes providing identification to police, when you really haven’t done anything wrong, can be very beneficial. By knowing your identity, the police can sometimes quickly resolve their investigation in your favor. Refusing to provide identification could substantially prolong a situation.

To provide identification can also just help an interaction with an officer go smoothly. Police may want to check for warrants, so they can be sure they’re not dealing with a dangerous, wanted criminal. They may treat you better if they know who they’re dealing with.

THE DEATH PENALTY

In November of 2016, California voters passed Proposition 66, which was intended to speed up the time between a death sentence and an ex*****on. At the same time, voters rejected Proposition 62, which would have repealed the death penalty all together, and would’ve replaced it with life in prison, without the possibility of parole. What’s interesting is that we haven’t had an ex*****on in California in over 15 years.

In 2019, Gov. Newsom declared a moratorium on ex*****ons in California. Currently, there are close to 700 inmates on Death Row. These cases take years on appeals, while the families of the victims sit and wait anxiously for justice.

Some have argued that death sentences are disproportionately handed down on people of color. There is also an argument that a death penalty sentence is applied inconsistently, meaning the prosecutor in one county may seek a death penalty sentence in a case, where a prosecutor in another county may not. Thus, a lot of discretion is given to prosecutors in determining whether or not to seek the death penalty.

However, some murders are so heinous, the families of the victims want the prosecutor to seek the death penalty. A prosecutor must weigh the public interests involved as well. It appears that the voters had decided to move forward with the death penalty in California, by passing Proposition 66, and rejecting Proposition 62. However, our government officials have decided to actually do the opposite.

NEVER ANSWER QUESTIONS

If contacted by law enforcement, the most important thing is to never answer any questions. Most people tend to think they can talk their way out of getting arrested, however, this usually back fires.

Officers tend to misinterpret or misunderstand what you are trying to tell them. This is why you should know that anything you say can and will be held against you. If an officer is asking you questions, it usually means they are interrogating you. During the interrogation they may tell you that the court will go lighter on you if you confess. However, this is a lie because the officer does not determine the consequences or what happens to you in court. It is up to a prosecutor or judge to decide whether or not to be lenient.

If an officer believes that you have committed a crime, they will arrest you no matter what you tell them. If you are being interrogated, the officer is trying to get additional information to prove your guilt. By not saying anything you limit the evidence that the prosecutor can use against you, and you limit the amount of information the officer has to make a decision about whether or not to arrest you. The only information you should ever provide an officer is your name, date of birth and drivers license number.

FRUIT OF THE POISONOUS TREE

Criminal defense attorneys try to uphold the Constitution, in order to protect all of our rights. One of our most important rights is that an officer can not just search us, or seize evidence from us, in an unlawful manner. If the search is unconstitutional, then any evidence they get from the search is inadmissible.

In essence, the unlawful search is like a tainted poisonous tree, and any evidence that comes from it, the fruit, is tainted too. This is why it’s important for a defense attorney to first examine the initial contact between the officer and a defendant. It is important to make a determination whether an officer had the right to conduct an investigation at all. If they didn’t, then the entire case must be dismissed. This is true even if the investigation leads the officer to a substantial amount of evidence.

For example, a police officer searches a house after obtaining a search warrant. The officer finds drugs and guns, in the house, and the homeowner turns out to be a prior felon. However, it turns out the search warrant was actually for the house next door. Since the officer had no right to search the house in the first place, none of the evidence found inside the house is admissible. It is all fruit of the poisonous tree.

WE HAVE A VERDICT

Listening to a verdict in a criminal trial is one of the most heart pumping, gut-wrenching experiences a defendant and their attorney can go through. Most defendants only have to do it once in their life, but a criminal defense trial attorney must experience it over and over again.

So much emotion and effort goes into a trial. The attorneys know that they must be prepared, and at their best. The defendants don’t want to be there, but they have to in order to defend themselves. The final preparations for trial begin when the attorneys have completed their investigations, and can’t agree to a resolution. Lots of effort goes into trying to resolve a case without trial. Trial is always the last resort.

A trial is a very stressful experience, which requires patience and focus. Some trials are a few days, others are a few weeks. The prosecutor spends days examining their witnesses, before the defense has an opportunity to present their case. All the while the tensions continue to grow, until they reach a crescendo with closing arguments.

Once the arguments are concluded, the real stress begins. The jury begins to deliberate, and the defendant and attorneys are left to wait for a decision. During deliberations, jurors sometimes have questions. Other times, jurors want to listen or watch certain recordings, or they need clarification on an instruction. Sometimes they even need further argument from the attorneys.

If the jury can’t reach a verdict, can’t all agree on guilty or not guilty, the Judge instructs them to go back and keep trying. This can happen several times, before declaring a hung jury. Finally, when there is a verdict, the attorneys get a phone call from the clerk of the court indicating there’s a verdict. The defendant and attorneys must rush back to the court, and try to keep calm.

The defendant and the attorneys stand up when the clerk is about to read the verdict. The jury foreman hands the bailiff their verdict forms. The bailiff gives the forms to the Judge. The Judge gets to look at them before it’s read aloud. The Judge must keep a straight poker face when seeing the verdict. The Judge then hands the papers to the clerk to read it. The clerk reads, “The jury, in the above entitled matter, as to count 1, we find the defendant . . .”

MURDER WAS THE CASE THAT THEY GAVE ME

The felony murder rule is an old law that allowed someone to get convicted of murder, if a victim is killed during the commission of a felony. It didn’t matter whether that person was responsible for the killing, or whether they intended for anyone to be killed. Even if the killing was an accident, it didn’t matter. For example, someone breaks into a home with the intent to steal items. The homeowner hears the burglar, and decides to escape through a window. He then accidentally falls and dies from his injuries. The perpetrator could then be convicted for murder.

Unfortunately, this led to many Murder convictions where the defendant was part of the commission of the felony, but not a participant in the actual murder.

In California, on January 1, 2019, a new law passed that completely changed the old felony-murder rule. Under Senate Bill 1437, the felony-murder law now makes it that only the person responsible for the killing can get convicted of murder.

Furthermore, this law is retroactive, which means that all of the people that had been convicted of felony murder under the old law, but were not personally responsible for the murder, may now get re-sentenced. Some may even be eligible to get released immediately.

CRISS-CROSS

Cross-examination is a lawyer’s opportunity to confuse a witness, and to get them to make important statements. Statements that a witness would not necessarily volunteer, unless properly asked. It is very important to ask questions in the right order, and to phrase them properly. (Example: An attorney wouldn’t say, “Why did you follow them for a quarter mile before pulling them over.” This question allows an officer to come up with a creative response like “I wanted to make sure that I saw violations of law that were consistent with signs of impairment.” Instead the attorney would ask “if someone is an immediate danger to others on the road, you would pull them over immediately, correct?, Since you didn’t pull the defendant over for a quarter mile, they were not an immediate danger to others, right? This way you force the officer into saying exactly what you want, not what they want. There are various techniques that are used by attorneys to ensure that a witness stays honest, or suffers the consequences if they lie.

One of the most common techniques used by criminal defense attorneys, when cross-examining a police officer, is to “attach them to their arrest report.” In order to do this, an attorney must start off with various questions about the officer’s training in report writing. Questions about how accurate their reports are supposed to be, how they write them immediately after an arrest because they know they will have to rely on their reports months later in court.

By doing this, the officer can no longer deviate from exactly what they wrote in their report. They can’t add or embellish on the story, while on the stand. More importantly, if they do deviate from their report, the attorney can then impeach them.

This means the attorney can ask them, “well officer, are you telling the truth now, or were you telling the truth in your report? The report you were trained in preparing accurately? immediately after an arrest? Because you knew you will have to rely on it months later in court, right?”

DUI CHECKPOINT: EXIT ROUTE

St. Patrick’s Day usually has lots of checkpoint stops. Checkpoint locations generally have an “exit route” that can be taken to avoid the checkpoint. You can not be stopped for legally driving away from a checkpoint (but be aware there is usually an officer specifically assigned to monitor any cars trying to avoid the checkpoint). Those officers need a valid legal reason to pull you over. (Example: failing to stop at a stop sign)

It is interesting to know that a Checkpoint can not be set up for the purpose of “catching drunk drivers.” Some research has shown that a patrol officer can make just as many DUI arrests patrolling the streets, as they can in a Checkpoint. Patrolling actually covers more area.

Checkpoint stops are constitutional, if they comply with certain factors that ensure the intrusion is minimal, compared to the public safety they provide. For example, the law enforcement agency that sets up the checkpoint location must research (location should be a high dui accident rate area), and publicize the Checkpoint. The police should also use a “neutral formula” to pull cars over. This means, they are supposed to randomly select the cars to pull over (example: every third car or every fourth car). However, if traffic is light, they can pull over every car. The police can not pull someone over simply because someone looks impaired. Lately, they don’t provide the location of the checkpoint, and they publicize only in small publications.

There are several other factors that are supposed to ensure the checkpoint is a minimal intrusion on our fundamental expectation of privacy. Remember, the primary purpose of a checkpoint is supposed to be to promote public safety, increase awareness of the dangers associated with impaired driving, and serve as a deterrent to potential impaired and unlicensed drivers. In essence, the Courts have found that simply the knowledge that there will be a Checkpoint, should be a deterrent to stop people from driving impaired or without a license.

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The Law Office of Ben Mironer The Law Office of Ben Mironer handles all facets of criminal cases. We emphasize in DUI and drug rel

HOW DO I GET OUT OF JURY DUTY?

Most people are not pleased when they receive their notice for jury duty. They try to think of ways to get out of it. They ask friends and lawyers what to say to get kicked off of a jury. What’s interesting is that most of the potential jurors, who make it onto the jury, actually learn a lot and enjoy the legal process and experience. They learn things about the law and the facts of the case.

More importantly, jurors realize how important their role is in our legal system. They are actually the ultimate decision makers, not the Judge. The more serious the case, the more difficult it is to be a juror. A juror is the one who ultimately decides what facts actually happened, who to believe, and then they must apply these facts to the laws that are explained to them. The jurors must do what lawyers and Judges are taught to do.

Finally, a jury is the ultimate equalizer. Every juror has the same voice, the same power, and their own opinions. They bring their educational experience to the table, but also their street smarts. They must all agree in order to have a verdict, in a criminal trial. Sometimes not all jurors agree, so it important for jurors to discuss the case during deliberations, but to not get pressured into changing their opinion. For the most part, a trial is captivating and informative for a juror. You should never try to get off a jury, you should be excited and honored the next time you get a notice for jury duty.

FOR LOVE OR MONEY:
How to Pick the Best Attorney

Unfortunately, there are too many attorneys that get into the profession for the wrong reasons. These attorneys will never be happy with what they do, or they become businessmen, and pawn off their work on other attorneys. Either way, this is not the type of attorney you want representing you in court.

On the other hand, you have attorneys that actually enjoy what they do. Attorneys that grew up dreaming they could be lawyers, and eventually fulfilled that dream. The attorneys that go the extra mile for their clients, simply because they personally want to do their best. These attorneys keep their clients interests ahead of their own. Attorneys that take phone calls at all hours of the night, and meetings on the weekends, because they truly care about their clients.

Attorneys that love what they’re doing don’t try to resolve a case as quickly as possible. They keep going to court, for as long as it takes to get a good outcome. They don’t just convince clients to take a bad deal because it’s less work for them. They go to trial when it’s in their client’s best interest. These are the attorneys that make a real difference in people’s lives.

The Law Office of Ben Mironer The Law Office of Ben Mironer handles all facets of criminal cases. We emphasize in DUI and drug rel

NEVER TELL AN OFFICER "I ONLY HAD 2 DRINKS"

When an officer conducts a DUI investigation, they will generally ask, “how much have you had to drink?” If you had anything to drink, this is a question that has no good answer. If you’ve been drinking, and you say you haven’t had any drinks, the alcohol testing device will show otherwise, and that statement will ruin your credibility in front of a jury.

On the other hand, if say you’ve had one or two drinks, they will use that as an admission that you’ve been drinking and driving. If your blood alcohol level is above .08%, then they will also argue that you lied about the number of drinks. If an officer believes you’ve been DUI, the only reason they’re asking you questions is to get more evidence against you. Listen carefully to the officer, but never answer any questions.

If asked whether you’ve been drinking? or how much have you been drinking? Try to reverse the questioning and ask the officer, “am I being arrested? Do you think I’ve been drinking? Am I being interrogated?” Then explain that you’ve been told by your friend, whose an attorney, never to answer questions from a police officer without an attorney being present. If the officer actually answers your questions, it could potentially benefit you in court. After all everything should be recorded, and remember, everything the officer says to you can be held against them in court too.

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PHANTOM DRIVER

The “phantom driver” is a type of DUI case where the driver allegedly disappears after an accident, usually leaving the passenger (registered car owner) to take the fall.

Even though at first, it sounds like an excuse, this can easily really happen. Instead of getting a ride from someone, and leaving their car, some people try to find someone to drive them home, in their car, so that they don’t have to leave their car. Then there’s an accident, the driver flees on foot, and the passenger appears to have been driving. Furthermore, since they don’t know the driver, they can’t identify them- it was a phantom.
As the passenger, it is important to get medical attention, or at least take photos to document the injuries. If the injuries are consistent with a passenger seatbelt (marks or bruises on the right shoulder, left hip, across the chest downward from right to left), then that is strong, undeniable evidence that the person was actually the passenger. We also try to see if both airbags deployed, and we even try to get a sample of the airbags, to test the DNA. A good attorney knows how to find the important details that prove someone is not guilty.

DUI WHILE SLEEPING IN THE CAR???

A person can get arrested and charged with DUI, even if the officer never sees the person driving. This can happen in a bunch of different scenarios, ranging from someone who falls asleep at a red light, to someone who pulls over to sleep it off (even if keys are out of the ignition and person is not in the driver’s seat), to someone who is sleeping in their car for the night, to someone who is out of their car already, but was allegedly recently seen driving.

The details related to the circumstances are really the key in these cases. If a prosecutor doesn’t know how much time went by from the time the driver pulled over, to the time they were contacted by the police officer, then there is no way to know what that person’s level of impairment was when they were driving. It’s important to contest these types of cases, and you need to have a good attorney that’s willing to go to trial if necessary. Don’t plead to a DUI before you discuss every detail of the case.

THE TRUTH AND NOTHING BUT THE TRUTH

I’ve been asked many times whether a police officer can lie to you to get an admission or confession? The answer is YES they can lie, and they do use lying as a tool. Some officers will even admit they were trained to do this. To say a statement, looking someone in their eyes, and pretending it’s the truth, knowing that it’s false.

An officer can tell you that they have a witness that saw you commit a crime, even if there’s no actual witnesses. The officer is trying to get an admission, and makes it seem like the consequences will be much lighter if you just admit to committing the crime.

When a witness, or defendant testifies in trial, they must swear that they will tell the truth. Their responses are judged for their truth and veracity, which exhibits their credibility. On the other hand, an officer or detective can tell lies during an interrogation, yet their credibility isn’t supposed to be diminished, because they’re doing their job.

I believe that an officer who lies to get an admission, does diminish their credibility for trial. How can a juror know whether an officer or detective is being forthright, if they are trained to tell a lie? If they can lie to get an admission, how can we tell whether they’re lying to get a conviction?

INNOCENT UNTIL PROVEN GUILTY

The law is to presume someone is innocent, until proven guilty beyond a reasonable doubt. However, most people tend to believe that if someone is being charged with a crime, there’s a high probability they committed it. People think that it takes a lot of investigation, and evidence gathering, before charges are ever filed. Thus, if someone has criminal charges filed against them, most people think that the prosecutor must have a strong case.

Unfortunately, this is simply untrue. Many prosecutors are so overconfident they can get a conviction, they will pursue a case that has problems with the evidence, or is based on weak circumstantial evidence. If there is a reasonable doubt that a crime was committed, an ethical prosecutor should completely dismiss the case, not simply offer to reduce the charges.

In trial, a defendant definitely starts at a disadvantage. When jurors see a defendant on trial, they tend to assume they are guilty before even hearing any evidence. Although it is the prosecutor’s burden to prove their case, in reality, it’s up to the defendant to prove they are not guilty. Nobody wants to convict someone who is not guilty. The key in every criminal trial is determining what doubt is reasonable v. unreasonable. It’s up to the criminal defense attorney to convince the jury that there is a reasonable doubt.

TO PLEAD OR NOT TO PLEAD? THAT IS THE QUESTION

In every criminal case, ultimately there reaches a point where the client must decide either to accept the plea deal, or to go to trial. This is a very difficult decision to make because of all the factors that must be considered.

Many people believe that individuals who have been convicted of a crime, must have committed that crime. However, that is simply not true. Sometimes a defendant will plead guilty to a lesser charge, or an enticing offer, even if they know they are not guilty. This happens because the defendant is potentially facing a very harsh long jail sentence, and they don’t want to risk losing in trial. Also, trials can potentially be very expensive. Going to trial takes a lot of courage, and it’s important to have an honest and ethical Attorney will trial experience. Most people understand that if you lose in trial, the punishment could be much worse than the plea bargain offer was. However, winning in trial is the ultimate outcome. The criminal defense trial attorney must advise the client about their options, and make a recommendation based on their experience and expertise.

How many drinks are TOO many to drive?

Every time you drive your car after consuming alcohol, you run a risk of potentially being falsely arrested and wrongfully charged with a DUI. Let's identify the scientific and logical explanations that demonstrate why they were not guilty of driving under the influence. It is important to note that the laws against driving under the influence prohibit an adult (above the age of 21) from driving with a blood alcohol concentration (BAC) of .08% or above, and California Vehicle Code §23152(a) prohibits someone from driving under the influence of alcohol, even if their BAC is below .08%.

Thus, it is important to know your limits, to know how alcohol effects you, and how impaired you get from each drink. Some people have a greater tolerance to alcohol than others, based on their resistance to the effects of alcohol. But, even if someone does not feel impaired at .08% BAC, they are deemed too impaired to drive based on the law. Remember, it is not illegal to consume alcohol and drive, as long as your BAC is below .08%, and you are not too impaired to drive a car as cautiously as a sober person.

The problem is that most people, who have been drinking, have no idea when they reach .08% BAC. This is why someone may feel as though they can drive safely, but may still be considered driving under the influence based on the law.

Here is a BIG secret to most DUI cases!!! Prosecutors also don’t have any idea when you reached .08% BAC. Here is how it works. When someone consumes alcohol, it doesn’t immediately disperse evenly throughout your entire bloodstream. It takes a while to get evenly disbursed and “distributed” throughout the various organs and tissues in your body. Organs with the highest blood supply, like the lungs, get the largest initial concentration of alcohol. Thus, the BAC in your lungs, during the period of time when the alcohol is “absorbing” into your system, may read up to 3X higher than your actual BAC level. This means that potentially someone who has an actual .04% BAC, may register a false-high reading of .12% BAC in a breathalyzer, during the “absorptive phase.” Also, everyone absorbs alcohol at their own pace.

The absorption rate varies in each person, and studies have shown that it can vary from 14 minutes to 138 minutes (from end of alcohol intake to peak blood alcohol concentration). This means that a person’s body can take over two hours to fully absorb the alcohol and reach a peak, only then will the alcohol be evenly disbursed in their blood, and only then will breathalyzer readings become somewhat accurate. In essence, once you take a drink and decide to drive, you expose yourself to potentially being obligated to submit to a chemical test at the request of a police officer. These tests, as you now know, may falsely reflect a BAC level much higher than your actual level.

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