1. Driving Under the Influence | Driving With a .08 or Higher (“DUI/DWI”)
California Penal Code Section 23152(a) criminalizes driving while under the influence of an intoxicating substance, which means alcohol and/or drugs. California Penal Code Section 23152(b), the subsection of the same vehicle code, criminalizes driving with a percentage of .08 or higher blood alcohol concentration.
On popular holidays like Halloween, California Highway Patrol, as well as city law enforcement (Hawthorne Police Department, Los Angeles Police Department, Pasadena Police Department and other regional police) engage in “saturation patrols” where they are deployed en masse in search of drunk drivers. Usually, a motorist who is swerving, speeding, driving erratically or otherwise violating the California Vehicle Code will catch the attention of a police officer. After effectuating a stop, the police will make contact with the motorist. If he or she detects bloodshot eyes, slurred speech, the “odor” of an alcoholic beverage or other indicia of intoxication, the much-dreaded DUI investigation process begins. That means stepping out of the car and performing field sobriety tests, being arrested, taken to a “drunk tank” or simply spending the night in a jail cell, and then receiving a citation to appear in court to answer to DUI misdemeanor charges.
However, oftentimes people whose blood alcohol level does not rise to the legal maximum (or above) are arrested on DUI. Technically, police can arrest a person simply for driving while intoxicated if they have probable cause to believe that is the case, even without a .08 blood count! While it can make their case much more difficult in court to prove, it is not uncommon for prosecutors to charge the DWI count, expecting most people to relent and accept a plea rather than risk a conviction.
It’s important to be cognizant of your rights. You can legally decline the field sobriety tests. This includes the preliminary alcohol screening test (PAS). You do not have to answer questions that will incriminate you. “I had a few drinks” is an incriminating remark that will end up on a police report and used against you in court. The chemical test, of course, is another issue and you do not have a legal right to decline this exam. A “refusal” will result in a one year driver’s license suspension.
It’s good to be in contact with an experienced DUI attorney if you have been arrested. And the risk of a DUI is higher on Halloween given it’s reputation for drawing motorists more likely to drink and drive on that particular night. So be careful.
2. Drug-Related Offenses
In addition to drinking, many Halloween revelers take controlled substances, including, but not limited to marijuana, ecstacy (MDMA), cocaine, heroin, methamphetamines, bath salts and other drugs and/or narcotics.
Drug offenses are generally governed by the California Health and Safety Code. For example, California Health and Safety Code Section 11357 governs personal use of marijuana. California Health and Safety Code Section 11352 governs sales or transportation of controlled substances. California Health and Safety Code Section 11350 governs possession of a controlled sustance, including opiates, heroin, peyote, GHB, cocaine and other hallucinatory narcotics.
The irony of people’s attempts to avoid DUI is that they are frequently busted in situations where they carpool, take a party bus or otherwise take collective transportation in order to avoid being a motorist on a police-saturated holiday. The reason for these frequent busts is that one or more of the revelers will be carrying controlled substances on their person. Oftentimes, in such situations, people are charged with what is known as “constructive” possession of narcotics even if they don’t have them on their person. Let’s examine an example:
Dina Driver, Peter Passenger and Tina Tag-Along are driving to a nightclub in Hollywood. Dina is the “designated driver.” Each of them are donning their provocative Halloween costumes. Peter and Tina will be free to indulge in drinking since they will not be driving. Unbeknownst to Dina or Peter, Tina has brought some ecstacy to really “spice things up” and make it a memorable evening. She is carrying it in her purse. On their way back from the club, Dina is pulled over a minor traffic violation. However, the police officer suspects that one or more of the passengers may be carrying drugs. The police search all three and, upon searching Tina, find the ecstacy in her purse. The police ask her about the ecstacy and she says, “What’s the big deal? It’s Halloween. We just wanted to have some fun.” Peter and Dina are taken aback because Tina’s comment suggests that all three were taking the substance, when, in fact, Peter and Dina did not know Tina had the drug in her possession. All three are arrested and subsequently charged with California Health and Safety Code Section 11350 H&S.
Peter hires a San Gabriel Valley criminal defense attorney who argues that Peter was not in possession of the drug at all. He was not in actual possession because he did not have the drug on his person. He was not in constructive possession, either, because he did not know that Tina had ecstacy in her possession. Peter would probably be absolved of the possession charge. (As, in all likelihood, would Dina).
Because people party together on Halloween, including “bar crawls” and riding in party buses, expect to hear about people being charged in like situations.
3. Assault and Battery
Assault crimes are codified under California Penal Code Sections 240, 245(a)(1), 245(a)(2)) PC. Battery crimes California Penal Code Section 242, 243(d) and 243(e)(1) PC.
Partying can be a pleasant and enjoyable activity. But, given the combination large numbers of people clustered together, heavy drinking and, oftentimes, the preening and posturing that occurs in the “club scene,” certain people can feel that their ego has been challenged or bruised by fellow revelers. One dirty look or glance from someone can trigger a violent reaction in some people, especially after imbibing large quantities of alcohol. It is often how beer brawls or fights get started.
Sure enough, all it takes is a push, shove or a punch to incur criminal liability for battery under California Penal Code Section 242. Even taking a swing at someone can result in an arrest for assault under California Penal Code Section 240. An assault is essentially an “attempted battery,” whereas a battery is a “completed assault.”
The dangerous thing about these crimes is that they are “wobblers,” that is, they can be charged as felonies given the right (or, better yet, the “wrong” circumstances). For example, if the assault or battery was committed with a deadly weapon or resulted in serious bodily harm, the defendant can be facing a violent felony charge that can result in him or her having a “strike” on his or her permanent criminal record. A Third Strike will result in 25 to life in prison.
All it takes is a combination of drugs, alcohol and/or a sensitive ego to result in a violent altercation or confrontation. On a party night like Halloween, pleasant circumstances can easily become volatile and escalate into a fight between two people who rub each other the wrong way, are competing for a girl (or guy), or simply happen to glance at each other with askance. The consequences of succumbing to one’s aggressive impulses are just not worth it.
4. Weapons Offenses
As silly as it sounds, people are sometimes arrested on weapons possession charges...for a prop or accessory attached to their costume! Perhaps you are dressed as a pirate and are carrying something eerily akin to a real knife or sword. Or you may be dressed as a police officer and carrying a weapon made to resemble a gun...or maybe it is a real gun but is not functional. The hypothetical situations are endless in which, technically, your costume (or a costume accessory) can land you in trouble with the law.
Suppose the following:
Nick dresses up as a ninja for Halloween. He figures, to add to the verisimilitude of his costume, that it would be cool to wear ninja stars and small dagger, which are tucked into a belt so they are partially concealed but still somewhat visible. He goes to a party with no security or anyone to prevent him entry on account of wearing these weapons. He is having a few drinks and engaging the other guests in conversation. His outfit is a real “ice-breaker” and he is having a great dialogue with the other people at the party. Anxious Annie notices the ninja stars and dagger sticking out of Nick’s belt. Annie gets nervous that Nick may use them or that they would foreseeably pose some harm to other guests. She calls the police. They arrive and arrest Nick for possession of these weapons. He is charged with Carrying a Concealed Weapon.
Nick’s attorney argues that he did not conceal the weapons because they were still visible (such that Annie was able to see them). Also, he will argue that the knives he carried were not prohibited knives. This, however, may not be a “slam dunk” argument if the ninja stars are considered “novelty knives,” which are always illegal in California.
Although it may sound absurd, you should be careful what you wear with your costume. If you are wearing some sort of knife, you may want to find out from a criminal defense attorney if it is a “prohibited knife.” In spite of your innocent motives, you may be running afoul of California’s knife laws. If you are arrested or charged with their possession, a criminal defense attorney will have to evaluate your facts to see if you have a defense that can absolve you of illegal knife possession charges.
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| Sexy Halloween costumes have become a staple of American Halloween Partying. |
5. Disturbing the Peace
Under California Penal Code Section 415 PC, you may be found guilty of “disturbing the peace” in any number of circumstances, including illegally fighting or challenging someone to fight in a public place, perturbing others with loud and unreasonable noises or using offense or vituperative words in public. As you can imagine, this will oftentimes happen in the context of loud parties or clubs and drunken guests, especially on a holiday (like Halloween) that produces boisterous and rambunctious festivities.
Halloween can be an extremely enjoyable and fun time to really “let your hair down” and express yourself with your costume. But it is still good to be mindful of the pitfalls that can come with being reckless with your alcohol consumption or behavior.
If you or anyone you know is arrested on Halloween or any other day or occasion, the Coimbra Law Office has the experience, knowledge and skill to successfully challenge your criminal or DUI case. You can reach our San Gabriel Valley Criminal Defense Law Firm and San Gabriel Valley DUI Law Firm at 1-855-325-5245 or by e-mail. Free consultation may be available.
Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Pictures above are featured for illustrative purposes only and are no reflection on the persons depicted whatsoever. Attorney licensed in the State of California and, therefore, accepts California cases only.
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