Posts Tagged ‘Santa Barbara DUI Attorneys’
Monday, June 21st, 2010
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Lawsuit filed against Judge Bernie LaForteza by Dr. DUI
Wednesday, April 21st, 2010Okorie OKOROCHA, Esq., SBN 226658
California Legal Team
117 E. Colorado Blvd., Suite 465
Pasadena, CA 91105
(626) 792-1301
Attorney for Plaintiff The Defendant
and Prospective Class Members
THE UNITED STATES DISRTICT COURT
CENTRAL DISTRICT OF CALIFORNIA
1. Comes plaintiff The Defendant individually, and as class representative for those persons similarly situated as arrested and prosecuted for crimes under California law (“Defendant”), who files this civil rights complaint pursuant to Title 42 U.S.C. §1983 for violation of the excessive bail clause of U.S.Const.Amend. VIII, and for imposing a more severe penalty for exercising the right to a jury, a due process violation under U.S. Const.Amend. XIV and the right to a jury trial under U.S. Const.Amend. VI.
2. Defendant sues Defendant Bernie Laforteza (“Laforteza”) in his individual capacity only for declaratory relief only. Laforteza is an agent of California, and is sued vicariously under the doctrines of respondeat superior and ratification for prospective injunctive relief only. This declaratory relief action is cognizant under Title 42 U.S.C. §1983 pursuant to Wilkinson v. Dotson, 544 U.S. 74 (2005).
3. This court has proper jurisdiction pursuant to Title 28 U.S.C. §1367(a), and proper venue pursuant to Title 28 U.S.C. §1391(a)(2); both as Laforteza was the presiding judge on Defendant’s case in its Superior Court In And For The County Of Los Angeles.
GENERAL ALLEGATIONS
4. The instant case was a standard Driving Under the Influence case pursuant to Cal.Veh.Code §§ 23152 (a) and (b) (“DUI”). Defendant had no bad driving record, and was a completely cooperative suspect who was pulled over initially for not having a registration sticker.
5. At the Antelope Valley/Lancaster Court, the standard punishment on a first time DUI offense for those who plead guilty is 3 days of County Jail. The Defendant is given credit for time served and is not forced to go to jail but making up the days of jail by doing Community Labor through the California Transportation Department for up to three (3) days depending on credit.
6. In the instant case, Defendant had used her inhaler which contains alcohol prior to administering the test. Defendant testified that she did use the inhaler but that she could not recall exactly when she used the inhaler in relation to the breath tests that she took. Defendant took both preliminary alcohol screening tests and had readings of 0.20 and 0.19 and evidentiary breath tests one hour later with readings of 0.13 and 0.12. There were no blood tests.
7. The Criminalist for California, Ed Barley (“Barley”) attempted to lie by stating that the inhaler could only increase Defendant’s blood alcohol reading by 0.01 based on a particular article. Barley was later impeached with the same article he was lying based on and shown that the article indicated alcohol based inhalers cause an increase of 0.20 in the blood alcohol reading on breath machines. Barley also could not explain the drastic difference in readings and testified that such a drop is only seen in alcohol detoxification.
8. Prior to the trial, Defendant was offered a plea bargain of 3 days Caltrans labor, standard fines, alcohol and MADD classes However, throughout the trial, Counsel for Defendant was consistently worried that the Laforteza would severely punish her for exercising her right to counsel and a trial as he was passively supportive of the Deputy District Attorney Donna Rappaport when she indicated that the People would seek the maximum if Defendant attempted to exercise her jury trial rights. Counsel was so concerned that prior to the jury’s return, multiple briefs were filed on the subject of bail pending appeal and increased punishment for going to trial
9. Defendant was convicted at a jury trial on March 18, 2010. Despite Laforteza being informed of the law, he sentenced the Defendant to sixty (60) days in jail and gave no reason on the record. When asked for bail, he set the “reasonable” bail at $150,000. The bail schedule for the offense is $5,000 and Defendant was a young nursing student with close community ties.
10. There is no doubt that the sentence was in retaliation for exercising the right to go to trial. Furthermore, counsel for Defendant filed these brief’s because the Antelope Valley/Lancaster Court consistently violates the U.S. and California Constitution in this manner and uses other unconstitutional methods such as remanding Defendants upon conviction and making them serve five (5) days before sentencing, the maximum allowed under the law, to make sure the Defendant gets jail time.
11. Defendant sues as class representative for those similarly situation as persons arrested and prosecuted for crimes in Los Angeles County. The actions brought by the case at bar are best resolved by class action status because they are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. Further, there are predominant common questions of law or fact between all plaintiff’s; Defendant as class representative has claims or defenses typical of the class; and class counsel will adequately s represent the entire class equally as no monetary damages are sought. Thus, all of the requirements of Fed.R.Civ.P. 23 are met for numerosity, commonality, typicality and adequacy of representation of the entire class.
CAUSES OF ACTION
1.
IMPOSING EXCESSIVE BAIL THAT SHOCKS THE CONSCIOUS
IN VIOLATION OF U.S.CONST.AMEND. VIII. EXCESSIVE BAIL CLAUSE (DECLARATORY RELIEF ONLY)
12. Defendant realleges and incorporates all facts and allegations expressed in paragraphs no. 1-11, inclusive, as if alleged and incorporated herein.
13. Defendant and others similarly situated have a constitution right under U.S.Const.Amend. VIII to not have an excessive bail amount imposed on her that shocks the conscious.
14. The standard and customary bail schedule for the offense is $5,000. However, upon Defendant’s conviction on March 18, 2010, Laforteza imposed a bail of $150,000 for a first time DUI conviction for violating Cal.Veh.Code §§ 23152 (a) and (b), both misdemeanors. This imposition of excessive bail worthy of a violent felony was such that it shocks the conscious and in violation of U.S.Const.Amend. VIII.
15. Laforteza has a policy, pattern and practice in his rulings and decisions made while a judge in the Los Angeles County Superior Court, criminal division, of imposing such excessive bail amount on those criminal defendants that come before them prosecuted in violation of U.S.Const.Amend. VIII.
16. A declaration should issue establishing that Laforteza has and does impose excessive fines upon all criminal defendants that come before him that shock the conscious in violation of U.S.Const.Amend. VIII.
//
//
2.
IMPOSING A MORE SEVERE PENALTY IN SENTENCING UPON EXERCISING THE CONSTITUTIONAL RIGHT TO A JURY TRIAL
THAN WOULD BE RECEIVED UPON PLEADING GUILTY IN VIOLATION OF THE DUE PROCESS CLAUSE UNDER U.S.CONST.AMEND. XIV AND THE RIGHT TO A JURY TRIAL CLAUSE UNDER U.S.CONST.AMEND. VI. (DECLARATORY RELIEF ONLY)
17. Defendant realleges and incorporates all facts and allegations expressed in paragraphs no. 1-16, inclusive, as if alleged and incorporated herein.
18. Defendant and others similarly situated have a constitution right under U.S.Const.Amend. XIV to the due process of law to not have a more severe punishment imposed upon them upon any conviction for exercising their constitutional right under U.S.Const.Amend VI to take their case to a jury trial, as opposed to pleading guilty and waiving the right to a jury trial.
19. A plea offer was made by Laforteza before trial that was for of 3 days Caltrans labor, standard fines, alcohol and MADD classes. No additional material facts were proffered at trial which would justify any increased penalty from the plea offer made to Defendant. However, upon Defendant’s conviction on March 18, 2010, Laforteza imposed a sentence of 60 days in jail, well above the plea bargain offered.
20. Laforteza has a policy, pattern practice in his rulings and decisions made while a judge in the Los Angeles County Superior Court, criminal division, of imposing a more severe penalty upon defendants that come before them prosecuted, and who exercise their constitutional right to a jury trial than upon those who plead guilty and waive the right to a jury trial, in violation of the due process clause of U.S.Const.Amend. XIV and the jury trial clause of U.S.Const.Amend. VI.
21. A declaration should issue establishing that Laforteza has and does impose a more severe penalty upon those defendants who exercise their constitutional right to a jury trial as opposed to leading guilty and waive their right to a jury trial in violation of the due process clause of U.S.Const.Amend. XIV and the jury trial clause of U.S.Const.Amend. VI.
PRAYER FOR RELIEF
22. Wherefore Defendant and all plaintiffs pray for such relief as follows:
a) A declaration establishing that Laforteza has and does impose excessive bail amounts that shock the conscious upon any criminal defendants that come before them prosecuted for alleged crimes in violation of U.S.Const.Amend. VIII;
b) A declaration establishing that Laforteza has and does impose a more severe penalty upon those defendants coming before them and prosecuted for alleged crimes who exercise their constitutional right to a jury trial that they were offered to plead guilty and waive the right to a jury trial.
c) For attorney’s fees pursuant to Title 42 U.S.C. §1988.
d) For all costs of suit.
` e) For all other such relief as the court deems proper and justified.
Dated this___day of March, 2010 CALIFORIA LEGAL TEAM
________________________
Okorie Okorocha
Attorney for Plaintiff The Defendant and the Prospective Class Members
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Crowe & Dunlevy, PC v. Stidham, 609 F. Supp. 2d 1211 – Dist. Court, ND Oklahoma
Thursday, April 1st, 2010With regard to the textual discussion of judicial immunity, the sentence immediately preceding footnote 6 indicates that plaintiffs are generally able to sue judicial officers for declaratory relief. Id. at 766 (noting “[t]he only type of relief available to a plaintiff who sues a judge is declaratory relief“). This sentence continues to state that “not every plaintiff is entitled to this remedy,” and footnote 6, which is placed at the end of this sentence, provides additional explanation regarding the identity of those plaintiffs who are not “entitled to this remedy.” The Tenth Circuit is therefore indicating that there are a subset of plaintiffs who are not entitled to the relief afforded in Pulliam, and that subset is discussed in more detail within footnote 6. Nowhere does the Tenth Circuit state that all plaintiffs are prohibited from seeking the relief permitted in Pulliam. Further, the discussion included in footnote 6 clearly indicates that this subset of plaintiffs is comprised of those suing under § 1983. Id. n. 6 (discussing FCIA’s amendment to § 1983). The footnote’s case citations follow suit, as all concern instances where the plaintiff’s claim was tied to § 1983. Id. (citing Roth v. King, 449 F.3d 1272, 1286 (D.C.Cir.2006) (holding judges of Superior Court of District of Columbia were immune from § 1983 suit for injunctive relief) (noting “42 U.S.C. § 1983, as amended in 1996 by the [FCIA], explicitly immunizes judicial officers against suits for injunctive relief“) and Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.2000) (finding district court properly dismissed plaintiffs’ Bivens action against defendant judges pursuant to FCIA amendment to § 1983) (noting that § 1983 law is incorporated into Bivens actions)).
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1983 actions and judges
Tuesday, March 30th, 2010Plaintiffs also challenge the district court’s grant of absolute immunity from plaintiffs’ claims of injunctive relief to the defendant judges. Judges are entitled to absolute judicial immunity from damages for those acts taken while they are acting in their judicial capacity unless they acted in the “`clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th Cir.1996). This immunity applies even when the judge’s acts are in error, malicious, or were in excess of his or her jurisdiction. See Stump, 435 U.S. at 356, 98 S.Ct. 1099.
1240 In Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), however, a divided Supreme Court held that judicial immunity did not protect a state judge from claims for injunctive relief in a § 1983 action. In making this determination, the Court concluded that, consistent with the development of immunity in English common law, American courts had never adopted a rule of absolute judicial immunity to claims for injunctive relief. Id. at 536, 104 S.Ct. 1970. In addition, the Court noted that, as of the time of its opinion, seven circuits had indicated that there was no immunity from prospective injunctive relief and that the limitations already imposed by the requirements for obtaining injunctive relief “severely curtail the risk that judges will be harassed and their independence compromised by the threat of having to defend themselves against suits by disgruntled litigants.” Id. at 537-38, 104 S.Ct. 1970. Finally, the Court addressed the concern that allowing federal judges to grant injunctive relief against state judges under § 1983 would be inconsistent with the doctrines of comity and federalism. In this regard, the Court stated that nothing in § 1983 indicates that Congress intended to insulate state judges completely from federal review of their actions, and, because that statute allowed for suits against state officials and did not limit the relief available against judges, the Court declined to create such a limit. See id. at 540-42, 104 S.Ct. 1970.
The dissent in Pulliam disagreed with the majority’s analysis of English common law, arguing instead that the common-law remedies pointed to by the majority were not analogous to suits for injunctive relief against judges and therefore did not support the majority’s position that such relief was available. Further, the dissenting Justices were of the opinion that the prerequisites for injunctive relief did not provide a sufficient protection to judicial independence from the threat of vexatious litigation and pointed to the case before them as an example. As a result, the dissent concluded that there was “no principled reason why judicial immunity should bar suits for damages but not for prospective injunctive relief.” Id. at 557, 104 S.Ct. 1970.
The precise question of whether this Pulliam limit on judicial immunity applies to federal judges as well, when sued pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), is one of first impression in our circuit. It has been addressed, however, by several district courts and the Ninth Circuit Court of Appeals. See Mullis v. United States Bankr. Court for the Dist. of Nev., 828 F.2d 1385 (9th Cir.1987); Kampfer v. Scullin, 989 F.Supp. 194, 201-02 (N.D.N.Y.1997); Stephens v. Herring, 827 F.Supp. 359, 361-65 (E.D.Va.1993); Page v. Grady, 788 F.Supp. 1207 (N.D.Ga. 1992); Wightman v. Jones, 809 F.Supp. 474 (N.D.Tex.1992); Neville v. Dearie, 745 F.Supp. 99 (N.D.N.Y.1990); see also Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir.1987). Most of these courts have held that the doctrine of absolute judicial immunity serves to protect federal judges from injunctive relief as well as money damages.
In Mullis, the Ninth Circuit pointed out several “anomalies” in the potential application of the Pulliam exception to judicial immunity to federal judges. Specifically, the court stated that in cases in which a federal judge meets the preconditions for judicial immunity—that he or she acted in his or her judicial capacity—there will “invariably” be an adequate remedy at law through either ordinary appeals or an extraordinary writ. Further, the court stated that the availability of these alternate remedies would diminish a plaintiff’s ability to show a serious risk of irreparable harm as well. See Mullis, 828 F.2d at 1392.
The Mullis court also noted that to allow injunctive relief against federal judges would be to permit a “horizontal appeal” from one district court to another or even “reverse review” of a ruling of the court of appeals by a district court. Id. at 1392-93. 1241 The court then went on to conclude that these problems suggested that the Pulliam exception should not apply in suits against federal judges. Finally, the Mullis court noted that this conclusion was supported by the absence of explicit statutory authority for a suit against a federal judge as was present in the § 1983 action against a state judge at issue in Pulliam. Id. at 1393-94.
Similarly, in Page v. Grady, 788 F.Supp. 1207 (N.D.Ga.1992), the Northern District of Georgia concluded that the rationale of Pulliam does not apply in suits against federal judges. In Page, the court noted that suits against state officials are explicitly allowed by § 1983 and that suits for injunctive relief against state judges were necessary to effectuate the historical practice of federal court oversight of state courts. Id. at 1211. Because these policies are not at issue in suits against federal judges, and Bivens actions against federal officials are judicially created remedies anyway, the Page court found that it was inappropriate to limit absolute judicial immunity in Bivens suits against federal judges. Id. at 1211-12. The court also noted that to find otherwise would be to allow a new method of oversight of federal court actions by co-equal or inferior federal courts. Id. at 1212; Stephens, 827 F.Supp. at 361-65; Wightman, 809 F.Supp. at 476-79.
There is an opposing position that warrants discussion, however. Specifically, the dissent in Mullis quotes Pulliam’s conclusions that the absence of immunity from prospective relief prior to that time had not chilled judicial independence and that such independence was adequately protected by the requirements for injunctive relief as follows:
We never have had a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence … The limitations already imposed by the requirements for obtaining equitable relief against any defendant—a showing or an inadequate remedy at law and of a serious risk of irrevocable harm (citations omitted), — severely curtail the risk that judges will be harassed and their independence compromised by the threat of having to defend themselves against suits by disgruntled litigants.
Mullis, 828 F.2d at 1394-95 (O’Scannlain, J., dissenting) (alterations in original); see Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir.1989) (questioning Mullis’s need for reliance upon absolute immunity when the court’s conclusion that an adequate remedy at law existed led to the same result), abrogated on other grounds, Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993); Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir.1987) (citing Pulliam, without discussion, for the proposition that a federal probation officer’s quasi-judicial immunity from damages claims regarding the preparation of a pre-sentence report did not bar similar claims for injunctive relief); Neville v. Dearie, 745 F.Supp. 99, 102 (N.D.N.Y.1990) (citing Dorman for the proposition that judicial immunity does not bar claims for injunctive relief against federal judges).
In addition, the Supreme Court has previously held that it is inappropriate to create a distinction between state and federal officials for the purposes of immunity as follows:
There is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officials when sued for the identical violation under § 1983. The constitutional injuries made actionable by § 1983 are of no greater magnitude than those for which federal officials may be responsible.
Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). We have similarly stated that the immunities provided federal officials in Bivens actions are coextensive with those provided state officials in § 1983 actions. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.1995); 1242 Charles v. Wade, 665 F.2d 661, 666 (5th Cir. Unit B 1982); Barker v. Norman, 651 F.2d 1107, 1122 (5th Cir.1981).[6] Thus, this issue is a closer one than it would seem at first blush. After considering both sides of the issue, however, we find the stronger argument favors the grant of absolute immunity to the defendant federal judges in this case. Thus we affirm the district court’s dismissal of the claims against the defendant judges.
Further, even assuming arguendo that the Pulliam decision applies equally in Bivens actions against federal judges, that decision has been partially abrogated by statute. Specifically, in 1996, Congress enacted the Federal Courts Improvement Act (“FCIA”), Pub.L. No. 104-317, 110 Stat. 3847 (1996), in which it amended § 1983 to provide that “injunctive relief shall not be granted” in an action brought against “a judicial officer for an act or omission taken in such officer’s judicial capacity … unless a declaratory decree was violated or declaratory relief was unavailable.” At least two district courts have determined that this amendment also limits any injunctive relief available against federal judges. See Jones v. Newman, 1999 WL 493429 (S.D.N.Y. 1999); Kampfer v. Scullin, 989 F.Supp. 194 (N.D.N.Y.1997). As the court in Jones explained, there are two reasons supporting the applicability of this amendment in Bivens actions. First, as a general matter federal courts incorporate § 1983 law into Bivens actions. See Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 n. 5, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). In addition, to the extent that federal judicial officers are not immune from suits for injunctive relief, their liability is based on § 1983 law as set out in Pulliam. As a result, even assuming arguendo that Pulliam does apply to federal judges, the 1996 amendment to § 1983 would limit the relief available to plaintiffs to declaratory relief. As discussed below with regard to the defendant prosecutors, plaintiffs are not entitled to declaratory relief as there is an adequate remedy at law. Therefore, for this reason as well, the district court properly dismissed plaintiffs’ claims against the defendant judges.
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1983 Actions and Prosecutors
Tuesday, March 30th, 2010D. Defendant Prosecutors
Prosecutors are also entitled to absolute immunity from damages for acts or omissions associated with the judicial process, in particular, those taken in initiating a prosecution and in presenting the government’s case. See Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.1999); Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir.1984). Our predecessor court has held that prosecutors are not immune from claims for injunctive relief, however. See Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir.1981) (“[P]rosecutors do not enjoy absolute immunity from [declaratory and injunctive relief] claims.”). Further, we have found no case distinguishing between state and federal prosecutors in this regard as has been done between state and federal judges. However, we do not resolve this question because the district court’s dismissal of plaintiffs’ claims against the defendant prosecutors may so clearly be upheld on an alternate ground.
In order to receive declaratory or injunctive relief, plaintiffs must establish that there was a violation, that there is a serious risk of continuing irreparable injury if the relief is not granted, and the absence of an adequate remedy at law. See Newman v. Alabama, 683 F.2d 1312 (11th Cir.1982). As aptly noted by the Ninth Circuit in Mullis, there is an adequate remedy at law for the violations alleged by plaintiffs in their complaint. 1243 Specifically, plaintiffs may appeal any rulings, or actions taken, in their criminal cases not only to this Court but also to the Supreme Court. In addition, plaintiffs may seek an extraordinary writ such as a writ of mandamus in either this Court or the Supreme Court. See 28 U.S.C. § 1651. Accordingly, there is an adequate remedy at law and plaintiffs are not entitled to declaratory or injunctive relief in this case. As a result, the district court was correct in dismissing plaintiffs’ claims, albeit for a different reason.[7]
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DUI Blogs that are Networked
Saturday, March 13th, 2010
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Saturday, March 13th, 2010
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Here goes number 5
Thursday, March 11th, 2010I am in the 5th trial of the year so far (that was fast). This one is in Lancaster.
Kind Regards,
Okorie Okorocha, Attorney (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
—Cynthia Roseberry
—Cynthia Roseberry
Pasadena – Newport Beach – Santa Barbara – San Diego
toll free: 800 285 1763
toll free Fax: 888 286 1840
toll free Fax: 888 286 1840
San Diego DUI Lawyers — http://www.hslblaw.com
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Newport Beach Attorneys – http://www.cprslaw.com/
Newport Beach DUI Specialists — http://www.calegalteam.com
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Dr. DUI on the Junk Science of Breathalyzers
Wednesday, March 3rd, 2010Here is what you need to know about breathalyzers:
Okorie “Dr. DUI” Okorocha, Attorney (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
Nationally Board Certified Criminal Trial Lawyer
*By the only National Board recognized by the State Bar of California
Named to SuperLawyers 2010
Named Top DUI Lawyer for 2009
toll free: 800 285 1763
toll free Fax: 888 286 1840
“[Mr. Okorocha] is more specialized than any other lawyer that we have ever have in court” –20 Year DUI Prosecutor on the skills of Mr. Okorocha–
“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
—Cynthia Roseberry
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