Sonoma County Lawyer Blog

In US vs. Jones, the US Supreme Court was asked to decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

In a unanimous decision, the Supreme Court ruled that police cannot attach a GPS device to a criminal suspect's car to track their movements without first obtaining a search warrant.

While the Government contended that no "search" occurred, the Court thought differently. It is beyond dispute that a vehicle is an "effect" as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977). Based on this, the Court reasoned that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a "search."

Associate Justice Antonin Scalia said that the government's installation of a GPS device, and its use to monitor a vehicle's movements, constitutes a search, meaning that a warrant is required.

"By attaching the device to the Jeep" that Jones was using, "officers encroached on a protected area," Scalia wrote.

This is probably not the end of these types of cases making their way to the US Supreme Court because the court did not rule on whether the exact search was reasonable, which means even if the Fourth Amendment applies in cases like this, it's possible that the use of GPS devices may be considered acceptable in some circumstances.

Continue reading "US Supreme Court Holds That Law Enforcement Need A Warrant Before GPS Tracking Can Be Used" »

Generally in court, documentary evidence such as records, letters, bills, contracts, and similar writings have to be authenticated or identified before being admitted in evidence as genuine.

In today's society, information obtained on social networking websites is being used in court as evidence against the party who made the post.

This seemed to have begged the question, how do you properly authenticate a social networking post? That question has been answered in People vs. Valdez.

In Valdez, supra, a jury convicted Vincent Julian Valdez, Jr., of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism (Pen. Code, § 186.22, subd. (a)), arising from two separate drive-by shootings. Valdez asserts challenges to the sufficiency of the evidence to support his conviction of street terrorism by arguing that the trial court erroneously admitted pages from his MySpace social networking site that included his gang moniker ("Yums"), a photograph of him making a gang hand signal, and written notations including "T.L.F.," "YUM $ YUM," "T.L.F.'s '63 Impala," "T.L.F., The Most Wanted Krew by the Cops and Ladiez," and "Yums. You Don't Wanna F wit[h] this Guy."

Continue reading "Contents of MySpace Page Are Sufficient To Establish Its Authenticity" »

In the case of Cragen v. Maxwell the plaintiff (Cragen) believed he contracted a sexually transmitted disease from debtor (Maxwell) and threatened to sue her. To avoid suit, Maxwell agreed to pay Cragen $35,000. She signed a promissory note to which the plaintiff agreed to release her from any claims sustained by or resulting from contracting a sexually transmitted disease from Maxwell.

11 USC 523(a)(6) provides that debts for willful and malicious injury by the debtor to another can't be discharged in bankruptcy.

Pursuant to Section 523(a)(6), after Maxwell filed for Chapter 7 protection, Cragen filed a complaint alleging his claim was nondischargeable.

He alleged that Maxwell willfully and intentionally exposed him to human papilloma virus by engaging in unprotected sexual intercourse with him without informing him of her diagnosis. Maxwell denied having a past diagnosis and argued that her actions did not rise to the level of willful and maliciousness.

Continue reading "Unprotected Sex Is Not Willful and Malicious Act For Purposes of Non-Dischargeability" »

A couple was arrested with possession of and trafficking in heroin and crack cocaine after receiving a Chapter 7 discharge. What is that? It is an elimination of debts as if they never existed. A "discharge," when granted by the Court, terminates all liability for repayment, all obligations, rights and duties associated with the claim.

The U.S. Trustee (UST) attempted to prove that wife and debtor Lisa Shiloh, illicitly sold drugs and profited from doing so in order to revoke her discharge. The debtor was found guilty on six counts of delivery of a controlled substance, one count of criminal conspiracy, four counts of criminal use of a communication facility, and one count of child endangerment.

The UST used evidence documents from the criminal trial that revealed the amount of drugs and the frequency of the purchases but there was no proof of the amount of money Lisa allegedly accrued from the sale of drugs up until the filing of her Chapter 7 petition.

The court said there was testimony regarding the sale of drugs but the UST did not prove that Lisa derived income from the transactions during the prepetition period. The court noted that the state needed to prove only that the debtor sold drugs, not that she earned income from doing so, which they didn't. The moral of the story, even criminals can receive a discharge.

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their bankruptcy and criminal defense needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

Well, maybe a bankruptcy trustee can't be sued in state court under an intentional tort theory; this does not mean a trustee can't break the law. Former bankruptcy trustee Marika Tolz was sentenced to 81 months in jail, followed by 18 months of house arrest. In May, Tolz pleaded guilty to one count of conspiracy to commit wire fraud in a $16 million conspiracy. Tolz had been a member of the panel of Chapter 7 trustees for the US Bankruptcy Court, Southern District of Florida, for more than 20 years.

According to court records, Tolz and others conspired to misappropriate money from bankruptcy estates, receiverships, and other matters in which Tolz had been appointed as trustee, receiver, or personal representative, by writing or causing the writing of unauthorized checks from various fiduciary accounts which contained funds she was appointed to safeguard, without authority or legal justification. The money was then used for her own benefit, and to conceal her previous misappropriations by using the money to restore the balance of other fiduciary accounts from which she had previously taken funds.

Debtors are not the only players in the bankruptcy system that have an obligation to be honest. A trustee, obviously, can't rob Peter to pay Paul. The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their criminal defense and bankruptcy needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

Statewide, there was an increase in drunken driving arrests and alcohol-related fatalities this Labor Day weekend compared to last year, the California Highway Patrol reported Tuesday.

Statewide, 1,531 drunken driving arrests were made over the three-day weekend, compared to 1,521 last year.

There were also 21 fatalities in CHP jurisdiction, compared to 10 last year, the CHP said.

Drivers who had children in their vehicles at the time of their arrests can face additional criminal charges of willful cruelty or child endangerment.

Continue reading "DUI Arrests Up Over Labor Day Weekend Which May Complicate A Child Custody Dispute" »

A Pennsylvania couple was convicted in federal court of fraudulently trying to give new hope to homeowners facing foreclosure. Edward and Jacqueline McCusker face up to 240 years in prison for their involvement in what US Attorney Zane David Memeger described as a $14.6 million mortgage fraud scheme that resulted in at least 35 fraudulent mortgage loans.

The McCuskers operated Axxium Mortgage Inc., along with co-defendants John Bariana, Jeffrey Bennett and Stephen Doherty, owners of the law firm Bennett & Dohnerty.

The defendants targeted financially distressed homeowners facing foreclosure, falsely promising to help them save their homes. They said they would find investors, but what they did was arrange for a straw purchaser to obtain a fraudulent mortgage and then transfer title of the homeowner's residence to the straw purchaser.

Continue reading "If It Sounds Too Good To Be True, It Is: Couple Convicted of Foreclosure Rescue Fraud" »

In the case of Turner vs. Rodgers, a father was subjected to State civil contempt proceedings for failing to pay child support to mother. The father was incarcerated for 12 months he served without paying the past due child support. The Supreme Court of South Carolina held that the father was not entitled to appointed counsel in the proceedings.

On June 20, 2011 the United States Supreme Court agreed. The United States Supreme Court vacated the Supreme Court of South Carolina's ruling, holding that the father was denied due process, although due process did not automatically require the State to provide counsel in civil contempt proceedings to an indigent parent subject to a support order who faces incarceration. The right to counsel was limited based upon the parent's ability to pay, the equality of representation between the parties, and State procedural safeguards. In the father's case, counsel was warranted since the State did not provide clear notice that the father's ability to pay was the critical question and made no findings concerning his ability to pay.

Under current Sixth Amendment precedent, the Constitution guarantees a defendant the right to counsel in criminal cases and in "criminal contempt" cases. However, there is no such precedent over "civil contempt" cases. This case, while the Court did vacate the State Court's ruling, does not change this rule.

Continue reading "Indigent Persons Subject To Civil Contempt Proceedings For Back Due Child Support Are Not Entitled To Appointment Of Counsel - Santa Rosa Family Law & Criminal Law " »

In two of my past postings, one on February 28, 2011 and one on January 7, 2011 I discussed the downfalls and potential consequences for failing to disclose assets in your bankruptcy petition. Well, two Indianapolis debtors should have been reading my blog.

Christopher and Tiffany Welton were sentenced to house arrest and 36 months probation following their guilty plea to two counts of bankruptcy fraud.

The debtors filed a Bankruptcy Petition under Chapter 7 of the Bankruptcy Code. In their Schedule "B" under the jewelry section they listed one wedding ring valued at $1,000. No other pieces of jewelry were listed as an asset. At their meeting of creditors both debtors testified that they had owned jewelry in the past but had sold it all prior to filing the bankruptcy petition.

Two months after the petition was filed, and after the meeting of creditors, the debtors admitted that they had not disclosed all of their jewelry and had undervalued the listed wedding ring by $27,613. Contrary to their bankruptcy petition, and their testimony at the meeting of creditors under oath, the evidence established that they owned six pieces of jewelry in addition to the wedding ring that was listed in their schedules. The evidence established that the appraised value of the undisclosed jewelry was $61,749. The jewelry was turned over to the trustee and sold at auction for $17,400.

I can't say it enough; bankruptcy favors the honest debtor but can come down like the wrath of a Greek God on debtors who are dishonest. An experienced Santa Rosa bankruptcy lawyer can assess your situation and guide you in preparing an honest and accurate bankruptcy petition. When it comes to your bankruptcy schedules, there is no room for dishonesty or liberal valuations of your assets. The price can be too high.

The Law Offices of James V. Sansone is located in Santa Rosa, California and helps people file for bankruptcy relief under the United States Bankruptcy Code throughout Sonoma County, Mendocino County, and Lake County, including Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, and Kelseyville.

1. SB 1449: California starts the year by downgrading possession of an ounce or less of marijuana from a misdemeanor to an infraction.  Though the fine remains $100, there's no jail time or notation on your criminal record.


2. AB 2486, the "Teen Alcohol Safety Act of 2010," opens a "social host" who is 21 or older to the risk of legal liability for property damage, injury or death that results from knowingly serving alcohol to underage guests. 


3. AB 962: Thumbprints, ID will be required for the sale of ammunition.  Actually passed during 2009, Assembly Bill 962, the "Anti-Gang Neighborhood Protection Act of 2009," takes effect February 1, 2011.  The new law requires handgun ammunition sellers to record a buyer's thumbprint along with other valid identification and make the records available to law enforcement for five years.


4. AB 119 prevents insurance companies from charging different rates for men and women for identical coverage.


5. SB 782 prevents landlords from evicting tenants who are victims of domestic or sexual abuse or stalking.  See more new laws for landlords in 2011. 


6. AB 1844—informally known as Chelsea's Law and authored by local Assemblyman Nathan Fletcher—will increase penalties, parole provisions and oversight of sex offenders, including a "one-strike life-without-parole penalty" for some.


7. SB 1411 makes it a misdemeanor to maliciously impersonate someone via a social media outlet or through e-mails.


8. SB 1317 allows the state to slap parents with a $2,000 fine if their K-8 child misses more than 10 percent of the school year without a valid excuse. It also allows the state to punish parents with up to a year in prison for the misdemeanor. 


9. AB 12 allows foster youth to acquire state services until the age of 21.


10. SB 1399 allows California to medically parole state prison inmates with physical incapacitating conditions and ultimately shifts some of the cost of care to the federal government.


11. AB 97 bans the use of trans-fats in food facilities.

Happy New Year California! 

According to Terry Davidson of the Toronto Sun, if Mothers Against Drunk Driving CEO Andrew Murie has his way, drivers across Canada could be forced to take a breathalyzer test anywhere, anytime — whether police suspect drunk driving or not.

This new policy would replace Canada’s current, 40-year-old way of doing things, where police can demand a breath test only if they have reason to suspect a driver is too drunk to drive. 

I for one believe, as Nathalie Des Rosiers of the Canadian Civil Liberties Association does, this new policy would be a slippery slope for a free and democratic country such as Canada and the United States. 

DUI attorney Lawrence Taylor is correct when he warned that MADD USA will soon push to make random stops and breath tests their next legislative goal. This is a logical progression in the long series of drunk driving laws and court decisions which have steadily eroded our Constitutional rights.  Where does it end? 

I, like the majority of Americans, recognize that the number of drunk drivers must be minimized, but at what cost?  Remember, there is a very delicate balance between freedom and security.  You can’t have an increase in one without a decrease in the other. 

At what cost to our personal freedom are people willing to accept to gain some sense of artificial security?  I for one value security but at no time do I ever want to live in a police state.  As Thomas Paine once wrote: “It is the responsibility of the patriot to protect his country from its government.”

While government does exist to protect us from each other, government has gone beyond its limits when it decides to protect us from ourselves.

As reported by CNN, bullying and harassment in schools often includes violations of federally protected civil rights, the federal government warned in new guidelines for educators on how to address the problem.

If school administrators fail to properly deal with harassment based on gender, race or other issues, they risk being cited for contributing to a pattern of civil rights violations that could, in extreme cases, lead to a cut in federal funding.

"In extreme cases, schools could be stripped of their federal education monies if they don't comply with all of our civil rights laws," said Russlynn Ali, assistant secretary for civil rights. Also on the call were Arne Duncan, secretary of education, and White House Domestic Policy Council Director Melody Barnes.

The issue of harassment gained prominence this year after a spate of suicides by students who were being bullied. President Obama has called for greater awareness of the problem, saying the nation must "dispel the myth that bullying is just a normal rite of passage or an inevitable part of growing up."

The guidelines were part of a letter that began "Dear Colleague" sent Tuesday to thousands of schools, colleges, universities and school districts around the country that included examples of bullying and harassment cases that constituted violations of federal civil rights laws.

So now it appears that school bullies have much more to fear than an after school detention or suspension.

Although the Holidays are when many Police Officers and California Highway Patrol are stepping up their enforcement of Sonoma County DUI checkpoints. Any time of year a Santa Rosa DUI checkpoint can be in place.  It’s often the off time of year when some folks reckon that they can get away with a few drinks. Avoiding DUI penalties and hefty DUI insurance rate increases.

A sobriety checkpoint is a tool that law enforcement use to evaluate random drivers for signs of drug and alcohol impairment. A sobriety checkpoint may be a stop on the road, freeway, or other public road. Law enforcement decides ahead of time what process to use when stopping vehicles (i.e. every fourth car is stopped).

Contrary to what many people thing, sobriety checkpoints are legal.  In 1990, the United States Supreme Court declared that sobriety checkpoints did not violate citizen's Fourth Amendment right against unreasonable search and seizure. They decided that when these checks are preformed with minimal intrusion under specified guidelines, the benefit of these checkpoints greatly outweighs the minor intrusion on individual's rights. Each state has adopted laws of their own regarding sobriety checkpoints. Currently, approximately eleven states prohibit the use of sobriety roadblocks; however California is NOT one of the eleven. 

The most common signs of impairment which are looked for during a sobriety checkpoint stop are:

• the odor of alcoholic beverages or drugs


• blood shot eyes


• the presence of alcoholic containers or drug paraphernalia in the vehicle


• slurred or difficult speech


• fumbling or other physical signs of intoxication


• admission of drug or alcohol use


• inconsistent responses to answers


• detection of alcohol by a passive alcohol screening tool

As with any routine stop, you are required to provide identifying information such as your name, address, driver's license, and registration. By law, you do not have to say anything. REMAIN SILENT. Anything you say could potentially be used against you. Admitting to drinking or consuming drugs (even in small amounts: “I just had one!”) can be construed as admitting guilt. DON'T SAY ANYTHING.

 Most police officers will not tell you this, but you do NOT have to take field sobriety tests (FST). Those are the ones where you have to walk a line, touch your nose, and do other similar stunts. These are designed for failure. You are not required by law to take these tests.  However, if you do refuse you probably will be arrested on suspicion of DUI.  What is best for you defense later on down the road is not always the best if you are trying to avoid an arrest all together. 

While you are not required to take the initial breathalyzer test, which many consider to be just another FST, you ARE required, under implied consent laws, to submit to chemical testing of your blood, breath, or urine, at the request of an officer upon arrest on suspicion of DUI. These may be done, out of the flow of traffic, at the scene of the checkpoint, or you may be brought to a nearby facility for this testing. If you are not arrested after testing, you are free to leave and do not have to say anything.

If you were charged with drunk driving after a sobriety checkpoint investigation this holiday season, you need the help of a competent attorney as soon as possible. Contact JVS Law today for your free initial consultation.

Being charged with a DUI or drunk driving conviction can be a frightening and confusing experience. With so much riding on a favorable outcome to your charges, the assistance of an experienced lawyer can be vital to protecting your wallet, your driving privileges and even your freedom.

At the Law Offices of James V. Sansone, our attorney understands the fears associated with clients who have been charged with DUI and works diligently to offer you the support you need to limit or eliminate the harm stemming from a conviction. With more than nine years of experience in the Northern California area, our staff provides the insightful and detailed assistance you need to ensure that your rights and your best interests are adhered to throughout your proceedings.

We leverage a detailed knowledge of Santa Rosa courts, prosecutors and judges to offer the insightful advice you need to make the strongest defense decisions possible when you have been charged with a DUI or underage DUI. We represent clients both during the criminal proceedings associated with your charges and the administrative license hearing before the Department of Motor Vehicles.

On your behalf, we carefully examine the events leading to your arrest, the actions of the arresting officer and the evidence obtained against you during the investigation. Any inconsistencies in evidence or deviations from police procedures can then be used to apply pressure on the prosecution. We will seek to have your charges dropped or will negotiate a favorable plea arrangement, saving you hundreds of dollars, the inconvenience of a license suspension and a lasting mark on your record.

If you have been charged with driving under the influence of alcohol, our staff can help. Contact our office online or call 707-623-1875 or toll free 877-224-8103 to schedule a free consultation.