Gimme 5: What Every Lawyer Should Know about Criminal Defense Law
by Robert A. Schwartz
(County Bar Update, February 2005, Vol. 25, No. 2)


Gimme 5: What Every Lawyer Should Know about Criminal Defense Law


By Robert A. Schwartz. Schwartz, a State Bar certified specialist in criminal law and a past president of the Los Angeles Criminal Courts Bar Association, is a member of LACBA's Criminal Justice Section. The opinions expressed are his own.


The County Bar Update wishes to thank the Criminal Justice Section for its assistance.


1. Defense counsel handling a DUI case with a blood test should always request a court order for split of the sample and have an analysis performed by an independent private laboratory. What is critical for the private lab to determine is the presence or absence of a preservative (sodium fluoride) in the vial used to store the blood sample and the quantity of the preservative, which is intended to prevent the growth of bacteria in the blood sample potentially yielding a false high reading. (The law enforcement lab will not test for the preservative unless specifically requested by a prosecutor.) Most experts would agree that the quantity of the preservative must be at least 1.0% or higher to be sufficient.


2. Although the reciprocal discovery provisions of Penal Code Sec. 1054.1 have been in effect since 1990, there is still confusion over what is the defense obligation to turn over witness statements and expert reports. The defense does not need to disclose all such statements and reports but only those items relating to witnesses that the defense "intends to call" at trial as spelled in Penal Code Sec. 1054.3(a). Although the defense cannot intentionally hold back turning over such items, the 30-day-before-trial disclosure requirement of Sec. 1054.7 should not prevent the use of witnesses at trial whose statements were taken less than 30 days before trial. Counsel also should be aware of a recent California Court of Appeal decision, People v. Roland, 2004 DJDAR 13930, which clarifies the defense obligation to provide the prosecution with oral or written summaries of unrecorded statements taken from intended defense witnesses.


3. Defense counsel representing clients on theft or theft-related felonies where the client is facing a state prison sentence of three years or less should pitch the prosecutor and/or the judge on the prospect of the client serving the sentence at the Department of Corrections (DOC) restitution center. At this center, the client is permitted to leave the facility each workday to go to the client's place of employment. One-third of the client's earnings at the job goes to the victim(s), one-third to the DOC for administrative costs, and one-third is kept by the inmate. The eligibility criteria are set forth in Penal Code Sec. 6228. Some judges will only recommend such a placement, but a court has the authority under Penal Code Sec. 6227 to order placement in the restitution center over the prosecution's objection.


4. Defense counsel seeking to suppress evidence at a preliminary hearing on Fourth Amendment grounds must provide written notice of the motion to suppress per Penal Code Sec. 1538.5(f)(2).


5. In representing a client on a misdemeanor hit-and-run violation, defense counsel should always consider the possibility of a civil compromise per Penal Code Sec. 1377-1378, which results in the dismissal of the criminal charge.

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