Law Offices of Gabriel H. Avina

Los Angeles Personal Injury and Criminal Defense Lawyers


Thursday, February 27, 2014

New Ruling on Using GPS of Phone while Driving!

Here it is!  The People v. Spriggs Opinion that was recently decided and certified for publication that driver's could not be cited for using their cell phone while driving if they were using their GPS function.

The Fifth District Court of Appeal concluded that the Legislature never intended the law to cover looking at a cellphone map, reversing Mr. Spriggs' conviction.  While this ruling may seem limited at first glance, it can be used as persuasive authority when cited for an alleged violation of Vehicle Code Sec. 23123(a).

Thursday, August 15, 2013

Our First Amendment Right to Record Police Officers

In the last couple years, issues of whether individuals have a constitutional right record police officers, and whether the police may prevent such recordings or later destroy recordings, has become increasingly prominent.

The Department of Justice (DOJ) Civil Rights Division has affirmed the First, Fourth, and Fourteenth  Amendment rights of citizens to record police officers in the public discharge of their duties. In an opinion letter issued on May 14, 2012  in regard to the ongoing litigation in Sharp v.  Baltimore City Police Department, the DOJ stated that the individual right to record officers who are publicly executing their duties is a First Amendment right. Relying on Glik v. Cunniffe, the DOJ letter states “Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.” (DOJ letter, page 2.)

Also in this letter, the DOJ and set forth recommendations for police policies to give law enforcement officers clear guidelines to allow them to perform their duties without violating this right. According to the DOJ opinion letter, with regard to the recordings of private citizens, police policies should:

  • Affirmatively state that individuals have a First Amendment right to record police officers; 
  • Include examples of the places where individuals can lawfully record police activity, for example individuals not only have the right to record in  public parks and public spaces (like sidewalks, streets and locations of public protests,) but also the right to record on private property where an individual has  a right to be present (including, but not limited to his or her home);
  • Include examples of the type of police activity that may be recorded;
  • Advise officers that they "may not  threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activity or intentionally block or obstruct cameras or recording devices" (DOJ letter, page 5);
  • Instruct officers that they must not search and seize a camera or recording device without a warrant, except  in limited circumstances (DOJ letter, page 5);
  • Instruct officers that even if a warrantless seizure of a camera or recording device is permitted (because there is probable cause to believe that the device holds a contraband or evidence of a crime, there is a exigency or exception to the warrant requirement, and seizure is for a limited time period), there can be no search of the recording device without a warrant (DOJ letter, page 9).
  • Prohibit officers from "destroying recording devices or cameras and deleting recordings or photographs under any circumstances"(DOJ letter, page 5);
  • Define and provide examples for the narrow limitations of the First Amendment right to record: "A person may record public police activity unless the person engaged in actions that jeopardize the safety of the officer, the suspect, of others in the vicinity, violate the law, or incite others to violate the law" (DOJ letter, page 6).
  • Include other provisions to clarify the role of the officer's supervisor, the guidelines for consent to searches, seizures under exigent circumstances, among other things.

Read the rest of the May 14, 2012 DOJ opinion letter from Sharp v.  Baltimore City Police Department for more information. This is an area of law that will continue to develop.

In addition, here is some background information on the litigation Sharp v.  Baltimore City Police Department. On May 15, 2010, Christopher Sharp recorded his friends' violent police encounter at the Preakness with his cellphone, and the Baltimore police seized and searched the phone. Christopher Sharp filed against a complaint the Baltimore Police Department, and this litigation is ongoing.

If you need legal representation call (323)299-1664 or email to set up a FREE CONSULTATION with Los Angeles attorney Gabriel H. Avina.

*For more information see our Criminal Defense page.

Thursday, June 6, 2013

New Law for Commercial Drivers: Traffic Violations in Your Personal Vehicle and General Commercial Driving Information

Traffic Violations in Your Personal Vehicle 

A new law now allows CDL holders who are charged with a traffic violation in their personal vehicle (on or after January 1, 2013) to complete a course of instruction at a licensed traffic violator school to avoid a violation point count on their driving record.  This applies to California CDL holders that are charged for violations while operating a vehicle that requires only a class C or M license. 

Here it is on record.: 
Vehicle Code section 42005 (b) To the extent the court is in conformance with Title 49 of the Code of Federal Regulations, and except as otherwise provided in this section, the court may, after deposit of the fee under Section 42007 or bail, order or permit a person who holds a class A, class B, or commercial class C driver’s license, who pleads guilty or no contest or is convicted of a traffic offense, to complete a course of instruction at a licensed traffic violator school if the person was operating a vehicle requiring only a class C license, or a class M license.  The court may not order that the record of conviction be kept confidential.  However, the conviction shall not be added to a violation point count for purposes of determining whether a driver is presumed to be a negligent operator under Section 12810.5.

IF you have been charged for a traffic violation in your personal vehicle anytime on or before December 31, 2012 the old law applies.:

The Motor Carrier Safety Improvement Act (MCSIA) of 1999 requires a CDL holder to be disqualified from operating a commercial motor vehicle if the CDL holder has been convicted of certain types of moving violations in their personal vehicle. 
If your privilege to operate your personal vehicle is revoked, cancelled, or suspended:
  • Due to violations of traffic control laws (other than parking violations) you will also lose your CDL driving privileges.
  • Due to alcohol, a controlled substance, or felony violations, you will lose your CDL for one year. If you are convicted of a second violation in your personal vehicle or commercial motor vehicle, you will lose your CDL for life.
  • You may not obtain a "hardship" license to operate a commercial motor vehicle.

General California Commercial Driving Information
Operating commercial vehicles require special skills and a professional approach.  Formal training is the most reliable way to learn the many special skills required for safely driving a large commercial vehicle and becoming a professional driver in the trucking industry.  

A California Commercial Driver's License (CDL) is required to operate a commercial vehicle if you are a California resident.  In order to receive a California CDL you must successfully complete the commercial driving test administered by the California Commercial Motor Vehicle Safety Program.  (Pursuant to Federal Motor Carrier Safety Administration regulations §§391.11(b)(2) and 383.133(c)(5) this test is only administered in English.)  In addition to passing the required driver's test you must also qualify under the specifications for endorsement.

Here are general rules that apply to you once you have earned a California CDL and are operating a commercial motor vehicle.:

You will lose your CDL for at least one year for a first offense for:

  • Driving a CMV if your BAC is .04% or higher.
  • Driving a CMV under the influence of alcohol.
  • Refusing to undergo blood alcohol testing.
  • Driving a CMV while under the influence of a controlled substance.
  • Leaving the scene of a collision involving a CMV.
  • Committing a felony involving the use of a CMV.
  • Driving a CMV when your CDL is suspended/revoked.
  • Causing a fatality through negligent operation of a CMV.
You will lose your CDL for at least three years if the offense occurs while you are operating a CMV that is placarded for hazardous materials.
You will lose your CDL for life for a second offense.
You will lose your CDL for life if you use a CMV to commit a felony involving controlled substances.
You will be put out-of-service for 24 hours if you have any detectable amount of alcohol under .04%.

Serious traffic violations include:
  • Excessive speeding (15 mph or more above the posted speed limit).
  • Reckless driving.
  • Improper or erratic lane changes.
  • Following a vehicle too closely.
  • Traffic offenses committed in a CMV in connection with fatal traffic collisions.
  • Driving a CMV without obtaining a CDL.
  • Having a CDL in the driver's possession, and driving a CMV without the proper class of CDL and/or endorsements.
You will lose your CDL for at least:
  • 60 days if you commit two serious traffic violations within a three-year period involving a CMV.
  • 120 days for three or more serious traffic violations within a three-year period involving a CMV.
Violation of Out-of-Service Orders
You will lose your CDL for at least:
  • 90 days for your first conviction of an out-of-service order.
  • One year for two convictions of an out-of-service order in a ten-year period.
  • Three years for three or more convictions of an out-of-service order in a ten-year period.
Violation of Hands Free or Texting Law
You will lose your CDL:
  • For at least 60 days for your second violation of the cell phone hands free or texting law, within a 3 year period, and receive one point on your driving record.
  • For at least 120 days for your third and subsequent violations of the cell phone hands free or texting law, within a 3 year period, and receive one point on your driving record.
Railroad-Highway Grade Crossing Violations
You will lose your CDL for at least:
  • 60 days for your first conviction.
  • 120 days for your second conviction within a three-year period.
  • One year for your third conviction within a three-year period.
These violations include violation of a federal, state, or local law or regulation pertaining to one of the following six offenses at a railroad-highway grade crossing for:
  • Drivers who are not required to always stop, failing to stop before reaching the crossing if the tracks are not clear.
  • Drivers who are not required to always stop, failing to slow down and check that the tracks are clear of an approaching train.
  • Drivers who are always required to stop, failing to stop before driving onto the crossing
  • All drivers failing to have sufficient space to drive completely through the crossing without stopping.
  • All drivers failing to obey a traffic control device or the directions of an enforcement official at the crossing.
  • All drivers failing to negotiate a crossing because of insufficient undercarriage clearance.
Hazardous Materials Endorsement Background Check and Disqualifications
If you require a hazardous materials endorsement you will be required to submit your finger-prints and be subject to a background check.
You will be denied or you will lose your hazardous materials endorsement if you:
  • Are not a lawful permanent resident of the United States.
  • Renounce your United States citizenship.
  • Are wanted or under indictment for certain felonies.
  • Have a conviction in a military or civilian court for certain felonies.
  • Have been adjudicated as a mental defective or committed to a mental institution.
  • Are considered to pose a security threat as determined by the Transportation Security Administration (TSA).
Convictions that occur while you are driving a commercial vehicle or as a holder of a commercial driver license are retained on your driving record as listed below:
  • Major violations and disqualification actions, 55 years.
  • Out-of-service violations and disqualification actions, 15 years.
  • Collisions, serious violations and disqualification actions, 10 years.
  • Railroad grade crossings and disqualification actions, 4 years.
  • Minor convictions, 3 years.
A traffic conviction for driving unsafely counts as one point.  Any collision you contributed to or were responsible or at fault for, is normally counted as one point.  If you are convicted of reckless driving, driving under the influence of alcohol and/or drugs, or of a hit-and-run, you are charged two points.
If you get too many points, you lose your privilege to drive.  You are considered a negligent operator of a commercial motor vehicle when your driving record shows the following point counts:
4 points in 12 months
6 points in 24 months
8 points in 36 months
You may be entitled to a higher point count (6, 8, or 10 points) if you request and appear for a hearing and if 4, 6, or 8 points were not obtained in a Class C vehicle.
A violation received in a commercial vehicle carries one and one-half times the point count.  A Class A or B driver who does not have a special certificate or an endorsement may be allowed two additional points before being considered a negligent operator.
Convictions reported by other states are added to your driving record and may result in license sanctions.  If you have an out-of-state CDL, any conviction while operating in California will be reported to your home state.
NOTE: Commercial drivers may not attend a traffic violator school to have an offense dismissed for any traffic violation (CVC §42005(c)).

Links that provide additional information and all information featured in this post.:
-New law for violations committed in personal vehicle (effective as of January 1, 2013)