Five Common Halloween "Crimes" (And How to Avoid Legal Issues While Still Having Fun)

Halloween is a time of revelry.  While it is a children’s holiday, it is also celebrated by adults as a (perhaps unintentional) variation of "Mardi Gras."  Large numbers of twenty-somethings and thirty-somethings take to the nightclubs, taverns, and bars in droves in search of a good time. Sometimes, the debauchery can rise to Caligulan proportions, with people drinking more heavily, indulging in the use of controlled substances and generally engaging in other risky behavior. Consequently, you can be certain that law enforcement will step up it’s presence on the streets, targeting drunk drivers, revelers, brawlers and others whom they believe to be creating a public disturbance.  Here are five common California crimes for which people are often arrested on Halloween.

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. 

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.

Five Things About California Gun Law That Might Surprise You

California is known to have some of the most restrictive gun laws in the United States. Many Second Amendment advocates lambaste the California legislature for having unfairly encroached on citizens' gun rights. However, California firearms law is not so black-and-white. There are some surprising nuances.  

1. No Open Carry

Unlike other states, California is not an “Open Carry” state.  It used to be legal to openly carry a firearm...until the California legislature passed Assembly Bill 144 (codified as California Penal Code Section 26350.2 PC).  The date in which this open carry ban went into effect was January 1st, 2012.  Previous to that date, anybody could lawfully have had an unloaded firearm, on their person, in public. Thus, openly carrying either loaded or unloaded firearms is now a crime in California.

2. “Stand Your Ground” in California? 

With so much national hoopla regarding the George Zimmerman case and the shooting death of Trayvon Martin, many Californians have wondered: “do we have ‘stand-your-ground’ in this state?”

There is no legislatively codified “Stand Your Ground” law in California that explicitly a enunciates a “no retreat” policy or “castle doctrine.”  However, the common law (that is, case law) tells us that there a person may use deadly force against another who is threatening imminent death or great bodily injury.  Granted, you cannot use more force than is reasonably necessary to stave off the threat.  But, if the threat rises to the level of prospective fatality or severe bodily harm, one may use that force (which is commensurate with the threat) to thwart the attack.  In essence, this is California “self-defense.” 

The only qualifier appears to be that convicted felons who possess firearms do not have this right. In the first place, they are not entitled to possess firearms.  But it appears, from the case law, that this qualifier only attaches where the accused has actually been charged with being a “felon in possession of a firearm.”

Other than that, doesn’t sound too different from Florida’s controversial “Stand Your Ground,” does it? 

3. California Concealed Weapons Permit 

Contrary to popular belief, California does allow certain individuals to carry firearms in a concealed manner.  However, such persons require a “Concealed Weapons Permit.”  Let’s look at the requirements to be eligible for one:

a) The applicant must be of “good moral character;”

b) the applicant must be either (i) a resident in the county or a city in a county or (ii) spend a substantial portion of his or her time at his or her place of employment or business that is situated in a county or a city in a county; 

c) have good cause to warrant the grant of a permit;

d) have finished a certified/approved firearms training program.

“Good cause” can be established if the applicant demonstrates that:

1) there is a “clear and present danger” to the applicant’s person or immediate family; and

2) if the applicant is allowed to carry a concealed weapon, this would alleviate any such danger.

Judges, criminal defense attorneys, prosecutors, process servers and private investigators are more readily eligible for a concealed weapons permit given the potentiality of interacting with potentially dangerous individuals. 

4.  Felons Can’t Own, Possess, Buy, Sell or Receive Guns

If you are a convicted felon, are a narcotic drug addict, or have been convicted of certain misdemeanors (certain sex offenses, “assault with a deadly weapon,” etc.), you are legally barred from having a firearm.  Cal. Pen. Code Section 29800 PC.  This includes carrying, owning, being in possession of, purchasing or being in receipt of a firearm.  While gun rights can be restored in certain situations, there are suspension periods that can last from 10 years to life.  

5. You Need a Valid Permit to Lease, Sell or Transfer Firearms. Period. 

Unless you have a valid permit, or fall into a certain category (law enforcement officer, disposing gun you inherited, transferring guns at a gun show but do so infrequently, or in certain other situations), you simply cannot transfer, lease or sell a firearm.  

California firearms law and guns law can be extremely intricate and complex. Our San Gabriel Valley Criminal Defense Law Firm is highly versed and equipped with the knowledge and skill it takes to defend your Second Amendment rights.  If you have been charged with a gun crime, contact us at 1-855-FUK-JAIL (1-855-385-5245) or visit us at CoimbraLaw.com.  Free consultations available.

Caveat: Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Picture above is featured for illustrative purposes only and is no reflection on the person depicted whatsoever.  Attorney licensed in the State of California and, therefore, accepts California cases only.

Five Ways Posting on Facebook or Twitter Can Land You in a World of Hurt

By #CoimbraLaw California Social Media Lawyers 

It seems there is almost nothing people will refrain from revealing about their personal lives on Facebook.  While it can be cathartic to use social media as your personal journal, it can also be dangerous and subject you to legal liability if you are reckless.  And because it provides a platform for potentially hundreds or thousands of people to view you, it can also appeal to the worst human impulses, including egotism and narcissistic behavior.  It can evoke strong emotions where conflict is involved, which can escalate into criminal or civil malfeasance. Here are some examples of social media content you may want to think twice about posting.

Making Criminal Threats

To prove that you are guilty of having made a criminal threat, the prosecutor must prove that:

a.  You willfully threatened to (unlawfully) kill or inflict great bodily harm on another person;

b.  You communicated the threat to the alleged victim (in oral or written fashion, including digital, electronic, etc.);

c.  It was your intention that the statement be understood to be a threat;

d.  The alleged threat was so unambiguous, clear, immediate, unconditional, and specific as to convey a serious intention and the impending possibility that the threat would be carried out;

e.  The threat actually caused the alleged victim to be in sustained fear for his or her own safety;

f.  The alleged victim’s fear was reasonable under the circumstances.

Criminal threats are criminalized under California Penal Code Section 422 PC. 

Making Admissions that Make You Civilly Liable

Let’s assume the following example:

Nosy Nick and Ida Inadvertent are involved in a car accident on a busy street.  Nick gets out of the car and inspects the damage on his vehicle.  Ida exclaims, “You should be more careful when you drive! Look what you did to my car!”  Nick is astonished because he could have sworn it was Ida’s fault since she sideswiped him while he was simply driving and minding his own business.  The two exchange insurance information.  Ida abrasively insists that it is Nick’s fault and he will have to pay for the damage.  He responds, “We’ll see about that.”  The two part ways. 

When Nick gets home, he turns on his computer and runs a Facebook search of Ida Inadvertent.  Her profile appears and her Facebook wall is visible to the public.  Ida’s latest post reads: “I’m so pissed.  I just hit this dude.  My phone blew up, I looked down and before I knew it, I took out his fender. [Expletive].”  Nick prints the information and saves it. He calls the insurance company to report the accident. 

Some days go by and he hears from his insurance representative.  Ida’s version of the events (as she relayed them to her insurance company) were completely different from her Facebook wall posting.  In fact, she charges that Nick hit her and, thus, is at fault.  The damage on both vehicles is such that it is not clear who was at fault.  Nick e-mails his insurance representative the wall posting from Ida's Facebook profile admitting that she was at fault. The insurance representatives for Nick and Ida ultimately both determine Ida was at fault.  

This is not an uncommon occurrence.  And personal injury is not the only context in which this occurs.  Many people use Facebook and other social media as a journal of their innermost thoughts and feelings and impulsively publicize admissions or confessions to actions for which they may be civilly liable.  By so doing, they are providing evidence that a civil opponent can use against them. 

According to California Evidence Code Section 1200(a), hearsay is a statement, made outside of court, that is offered to prove that a particular matter is true.  Hearsay is, generally, inadmissible.  The case authority and other legal literature explain that hearsay suffers certain “infirmities” that make it inherently unreliable. However, like many other laws and rules, there are exceptions available.  One such exception to the Hearsay Rule is “Admission by Party Opponent.” According to California Evidence Code section 1220, evidence of a statement made by an opponent in a legal action can be offered up against him or her.  Obviously, the admission of guilt that Ida posted on Facebook would fall under this exception. 

Making Defamatory Statements

Issuing insulting invectives and vitriolic remarks against someone in social media or online is certainly nothing new.  It is frequently referred to as “trolling.”  However, statements otherwise protected by the First Amendment (regardless of their vituperative character) can cross the line into defamatory statements in certain situations.  You can be sued for defamation if you:

1) publicized to a third party

2) a statement of fact (as opposed to an opinion) that is false

3) that can be construed as 

a) regarding the plaintiff; and

b) which has the tendency to injure the plaintiff’s reputation.

Now, if the plaintiff is a “public figure,” under a famous case entitled New York Times v. Sullivan, the plaintiff has to prove what is called “actual malice,” which means the statement was made with a “reckless disregard for the truth.”  It is an elevated standard of proof meant to protect your First Amendment to utter open criticism about a public figure or issue and to foster, generally, the “marketplace of ideas.”  However, uttering a false remark about a private person when you know that remark to be false and can harm that party’s reputation can make you civilly liable.

Engaging in Copyright Infringement

In this age of “DYI” (“do it yourself”) videos and other multi-media, using copyrighted media for which you have no license or licensing rights can trigger civil liability under the US Copyright Laws.  With software that can easily detect duplicate text or language, it is easier than ever to detect whether someone else is plagiarizing your written content or using something you created without your consent.  Plagiarizing content or lifting multimedia without the proper consent can incur civil liability. 

Bragging About or Revealing Criminal Behavior

In their youthful bravado, many young people like to brag about their exploits.  However, many of these indulgences are drug-related or reveal some other criminality.  Be it a theft-related crime, sex offense, posing with illegal firearms, underage drinking, posing with drug paraphernalia (bong, meth pipe, etc.) or some other illicit behavior, you can be sure the watchful eye of law enforcement is not far away.  Law enforcement agencies have officers and personnel who monitor social media and scan for criminal conduct.  Don’t be surprised if you end up with a letter from a detective if you posted a picture or wall post where you engaged in criminal behavior or owned up to it.






In a Bind? Our Los Angeles Social Media Lawyers Can Help You  

With regard to social media civil or criminal liability, the Coimbra Law Firm (San Gabriel Valley social media law firm) represents persons in the following situations:

- Prosecuting a restraining order against a party for harassing you online;

- Defending against a restraining order for alleged online harassment;

- Criminal Defense against a misdemeanor or felony charge, including, but not limited to cyberbullying, criminal threats, stalking, etc.; 

- Prosecuting a civil action against a person who has wrongfully accused you of a criminal or civil malfeasance (“Malicious Prosecution,” “Defamation,” “Abuse of Process”);

Our Los Angeles social media law firm is extremely aggressive and thorough in representing our clients. 

If you believe you are being investigated for a crime related to social media or you have an issue regarding civil liability for something you did on social media, you can reach our Los Angeles criminal defense law firm and Los Angeles tort law firm at 1-855-325-5245 or Esquire@CoimbraLaw.com.  Free consultation may be available.

Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Picture above is featured for illustrative purposes only and is no reflection on the person depicted whatsoever.  Attorney licensed in the State of California and, therefore, accepts California cases only.