The Law Office of Ben Mironer

03/28/2022

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 handles all facets of criminal cases. We emphasize in DUI and drug related charges, domestic violence, violent crimes, vehicular crimes, s*x crimes, white-collar crimes, as well as post conviction matters.

03/25/2022

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.

03/24/2022

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.

03/23/2022

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.

03/22/2022

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.

03/21/2022

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.

03/18/2022

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 . . .”

03/17/2022

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.

03/16/2022

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?”

03/15/2022

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.

CALL ME FOR A FREE CONSULTATION

The Law Office of Ben Mironer handles all facets of criminal cases. We emphasize in DUI and drug related charges, domestic violence, violent crimes, vehicular crimes, s*x crimes, white-collar crimes, as well as post conviction matters.

03/14/2022

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.