WHAT IS A DEMURRER
A demurrer is a way to win your criminal case in Los Angeles by convincing the judge that the complaint does not properly describe the crime.
HOW IS IT DONE?
By filing a motion, called a demurrer, which argues that Los Angles Prosecutor does not have enough information in the complaint to describe the crime. It is best when this motion is filed as soon as possible, ideally at the arraignment stage, typically the very first court appearance on the case.
One example is a demurrer to the special allegation of a refusal to submit to a chemical test as part of a Los Angeles DUI Investigation. Usually, a person who is arrested for a DUI in Los Angeles and refuses to submit to a chemical test of his blood, such as a breath or blood test, will be accused of two crimes. First, Los Angeles City Attorney or Los Angeles District Attorney will file a criminal complaint in which you will be accused of a DUI. Second, Los Angeles City Attorney or Los Angeles District Attorney in the same criminal complaint will allege that you refused to submit to a blood or breath test after lawfully requested to do so by the police officer. This violation of California Vehicle Code section 23577. Under this violation a person can be sentenced between additional 48 hours and 10 days depending on how many priors he has.
However, under federal law, a sample of blood taken from a defendant is considered to be a search. Thus, demurrers can be used to attack the special allegation under CVC 23577 because it conflicts with federal law
ANOTHER EXAMPLE: RESISTING ARREST, PC 148
Some Los Angeles Criminal Defense Attorneys believe that California Penal Code 148, commonly known as “resisting arrest”, is so poorly drafted that it can rarely be property used in California Courts. Calfornia Penal Code section 148(a) reads:
(a) (1) 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.
Here is the argument: The statute can be violated only when an officer has prevented in the discharge of his duties. However, because police officers do not have any duties, the statute cannot be violated. They are in fact not required to arrest you and can let you go, thus it cannot be a duty if it is optional.
Often, police arrests defendants for resisting arrest when the defendants are not resisting arrest. Thus, the name “resisting arrest” is a misnomer and the police can place a person under arrest for something completely unrelated, such as disobeying his order.
WHAT TO ARGUE
Under the legal requirement of pleading, a Statute must be sufficiently definite to provide adequate notice of the conduct prescribed. A statute that 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) . In another case, the US Supreme court said that “vague laws may trap the innocent by not providing fair warning (Greyned v. City of Rockford 408 US 104).
In the case of People v. Caswell, a violation of California Penal Code section 647(b) was challenged. That statute criminalized “loitering near toilets for the purpose of engaging in a sex act”. The court decided that the statute is not vague – however, the court compared PC 647(b).
DEMURRE TO DUI SPEED ENHANCEMENTS
Some Los Angeles DUI arrests involve a police stop after a high-speed chase. If you are arrested for a DUI and the police officer wrote down that you drove with a speed above 30 MHP on the freeway or 20 MHP on the street, you will be accused of a special speed enhancement under California Vehicle Code 23582. However, the language requires not only speeding but a violation of Reckless Driving, thus speeding itself is not sufficient:
(a) Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of Section 23152 or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.
(b) If the court grants probation or suspends the execution of sentence, it shall require as a condition of probation or suspension that the defendant serve 60 days in the county jail, in addition and consecutive to any other sentence prescribed by this chapter.
(c) On a first conviction under this section, the court shall order the driver to participate in, and successfully complete, an alcohol or drug education and counseling program, or both an alcohol and a drug education and counseling program. Except in unusual cases where the interests of justice would be served, a finding making this section applicable to a defendant shall not be stricken pursuant to Section 1385 of the Penal Code or any other provision of law. If the court decides not to impose the additional and consecutive term, it shall specify on the court record the reasons for that order.
(d) The additional term provided in this section shall not be imposed unless the facts of driving in a manner prohibited by Section 23103 and driving the vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, are charged in the accusatory pleading and admitted or found to be true by the trier of fact. A finding of driving in that manner shall be based on facts in addition to the fact that the defendant was driving while under the influence of alcohol, any drug, or both, or with a specified percentage of alcohol in the blood.
Thus, for any charges under 23582, the defendant should file a demurrer to dismiss the special enhancement and strike requirement to spend 60 days in jail.
For questions about your criminal case in Los Angles please call directly 323-464-6424 to talk to Los Angeles DUI attorney or Los Angeles Criminal Defense Attorney now.