ENTER POLICE – DO ARREST – HOW DO YOU FIGHT IT? – ATTACK THE PLEADINGS!
- One way you can fight your case is to demure to the prosecutor’s case.
- For example, refusal allegations for a DUI can be demured to based on constitutional rights to refuse a chemical test.
- Another example is when the police file resisting arrest charges, commonly known as Penal Code section 148(a).
- The problem is that PC 148 commonly filed not only on the resisting arrest but on any disobedience of a police officer. In our opinion, this kind of filings is not described in the statute.
- Penal Code section 148(a) reads:
- Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
- A Statute must be sufficiently definite to provide adequate notice of the conduct prescribed. A statue which forbids or requires the doing of an act in terms so vague that the man of common intelligence must necessarily guess as to its meaning and differ as its application violates the first essential of due process of law (People v. Superior Court (Caswell) 46 Ca.3d 381)
- Vague laws may trap the innocent by not providing fair warning (Greyned v. City of Rockford 408 US 104).
- In Caswell, a PC 647(b) was challenged. That statute criminalized “loitering near toilets for the purpose of engaging in a sex act”. The court decided that the statue is not vague – however, the court compared PC 647(b).