California Supreme Court DUI Ruling: Coffey v. Shiomoto

Last month, a California Supreme Court case made it more difficult to escape a DUI charge. The California Supreme Court ruled that the Department of Motor Vehicles is now able to consider circumstantial evidence (i.e. swerving in and out of lanes, failing field sobriety tests) to prove a driver was impaired behind the wheel. This decision has provided wiggle room for the DMV to suspend drivers’ licenses when a breathalyzer or blood test determines a driver’s blood alcohol level is close to the legal limit or a test result is inconclusive. The Coffey decision makes it more difficult for those drivers who are subjected to sobriety tests with borderline results to prove that they were not driving while impaired. This ruling could cause a spike in DUI convictions.

The facts of the case are as follows: Ashley Coffey was arrested in November of 2011 for driving under the influence of alcohol, when an officer observed her swerving on the freeway. The officer administered field sobriety tests, which Coffey failed. Approximately one hour after Coffey was pulled over; her blood-alcohol level was measured at 0.08 percent. Three minutes later she was given another test, which measured 0.09 percent. Later still, Coffey was given a blood test which measured 0.095 percent. Coffey had an expert testify on her behalf at an administrative hearing and at trial contesting the suspension of her driver’s license. The expert testified that her blood-alcohol content was rising at the time of the breathalyzer and blood tests, which suggested that her blood-alcohol level was below the legal limit at the time she was driving. This expert testimony was disregarded by both the DMV and the trial court.

Under California law, prior to this decision, the 0.08 blood-alcohol level creates a rebuttable presumption that the driver was impaired within three hours after driving. A defendant can rebut the presumption by presenting evidence negating the fact that the driver was impaired. Coffey tried to rebut the presumption that she was impaired, but was unsuccessful. The California Supreme Court concluded that “the Evidence Code says nothing about the quality of the evidence…only that, once the opponent introduces evidence of a fact negating the presumption, the [judge] has to weigh the inferences arising from the facts that gave rise to the presumption against the contrary evidence and resolve the conflict.” This essentially means that when a defendant presents evidence to rebut the presumption, the DMV is allowed to rely on evidence other than breathalyzer or blood tests to prove that a defendant’s blood-alcohol level was above the legal limit while driving.

The Court held that circumstantial evidence is relevant and admissible in a DUI hearing. The judge is the one who determines whether the evidence is credible. Further, the court said that prior case law that has held circumstantial evidence coupled with blood-alcohol level tests can be combined to prove that a driver was driving drunk. Though the court cautioned on the potential abuse of this ruling, it is not unlikely that it will make the defense of a DUI charge more difficult. This ruling allows much wider discretion for DMV hearing officers to penalize those driving legally below the limit.

If you have been charged with a DUI, the Law Offices of Sean F. Leslie can help. We have years of experience in reducing the charges of DUI clients. Contact us today for a consultation.

California Drug Possession Laws

The attorneys at the Law Offices of Sean F. Leslie are well versed in defending clients accused of drug possession charges in California. We know that prosecutors often allege sales charges instead of possession charges, as charges for selling drugs make defendants ineligible for drug diversion programs generally available to first-time drug possession offenders. Our firm has years of experience persuading the prosecution to reduce the charges for our clients. Unfortunately, many police and prosecutors believe that every social drug user is also a drug dealer. We know this is not the case. It is important to know the penalties you could face for possession and use of drugs in our state.

Penalties for drug possession charges in California vary. They can be classified as infractions, misdemeanors, “wobblers,” or felonies. An infraction is most often for first-time offenders, and is the least serious charge with no jail time associated. Drug-related misdemeanors can result in up to one year in jail, and drug-related felonies have a minimum prison sentence of one year. A “wobbler” offense is charged either as a misdemeanor or a felony depending on the circumstances of the case, as well as the prosecution and the judge. In November of 2014, California voters passed Proposition 47, which reduced some simple drug possession crimes to misdemeanors.

California’s Classification of Controlled Substances

The State of California divides its controlled substances into schedules, as governed by California Health and Safety Code Sections 11053 to 11057.

  • Schedule I: Marijuana or opiates
  • Schedule II: Morphine, raw opium, hallucinogens
  • Schedule III: Pentobarbital, anabolic steroids
  • Schedule IV: Diazepam, zolpidem
  • Schedule V: Prescription narcotics

Possession of any amount of any of these controlled substances (except marijuana) can be punishable by up to one year in county jail. However, Proposition 47 has made reduced penalties available to those who qualify – those that are not registered sex offenders or have previous violent crime convictions.

Penalties for the Possession of Marijuana

The penalties associated with the unlawful possession of marijuana are charged based upon the amount in question.

  • Any amount of concentrated cannabis: Either a $500 fine or up to one year in jail, or both.
  • No more than 28.5 grams, other than concentrated cannabis, is classified as an infraction and the penalty is a $100 fine.
  • Greater than 28.5 grams, other than concentrated cannabis, is penalized by either a $500 fine, up to six months of jail time, or both.
  • An adult possessing less than 28.5 grams of marijuana (other than concentrated cannabis) on the grounds of a school during school hours will be charged with a misdemeanor. The penalty is either up to ten days in jail, a $500 fine, or both.
  • A minor found in possession of less than 28.5 grams of marijuana, other than concentrated cannabis, on school grounds will be fined $250 for their first offense. Any subsequent offenses can be punished by up to ten days in a juvenile detention facility and a fine up to $500.

If you have been charged with drug possession, the Law Offices of Sean F. Leslie can help. Contact us today for a consultation.

Chapter 7 Bankruptcy: The Basics

Today’s economic climate has caused many families and individuals to feel trapped by debt and struggling to make ends meet. Whether you have been laid off, accumulated medical debt, or accumulated credit card debt, debt can make life incredibly difficult and stressful. Bankruptcy may be an option for you to start fresh with your finances. Are you prepared to take control of your finances and free yourself from the harassment of debt collectors? If so, then filing a Chapter 7 Bankruptcy may be right for you.

A Chapter 7 Bankruptcy allows you to wipe out most debt and start fresh. This type of bankruptcy is a liquidation of your assets by a trustee. The trustee then sells all of your non-exempt assets. The proceeds of the liquidation are distributed to your creditors in satisfaction of your debt. The trustee will take a commission for overseeing the liquidation and asset distribution. Certain debts are classified as non-dischargeable. This type of debt includes student loans, fraudulent debts, alimony, child support, any fines for legal violations, tax debts, debt for personal injury or death caused by driving under the influence of alcohol or controlled substance, or any debt you forget to list in your bankruptcy filing. You will be responsible for paying these debts in full.

The filing of a Chapter 7 Bankruptcy does not require you to surrender all of your assets. Generally, you may keep your home, car, clothing, furniture, employer retirement plans, etc. An experienced attorney can help you determine which assets you must turn over and which you may keep.

If you plan to file a Chapter 7 bankruptcy, you must pass the California means test. This test applies to higher income bankruptcy filers, which means that if your income is below the required median, you will be exempt from this test. Other exemptions from the California means test include those whose debts are primarily consumer and disabled veterans who incurred debt while actively serving in the military. In order to be exempt from the means test, for example, an individual in a one-person household must have an income below $47,798.00.

The basic process of filing a Chapter 7 Bankruptcy is fairly straightforward and consistent. First, you must complete a bankruptcy petition, provide all necessary documentation, and complete a credit counseling course. After these initial requirements, you can then file a Chapter 7 bankruptcy. Approximately one month after filing for a Chapter 7, a Meeting of Creditors is held, where a trustee is appointed. Prior to the conclusion of your bankruptcy proceedings, you must also take a second course in financial management. After the Meeting of Creditors, unless there are any outstanding problems with your filing, no further action will be required from you. Approximately two months following the Meeting of Creditors, you can expect a court order discharging your debt.

Contact an Experienced Attorney

If you are considering Chapter 7 Bankruptcy as a means to rid yourself of crippling debt and get a financial fresh start, the first step is to consult an attorney to ensure this is the correct path for you. The knowledgeable attorneys at the Leslie Legal Group are here to help guide you through every step of the bankruptcy filing process. Contact us today for a consultation.

Revocable Living Trusts: An Overview

A living trust is a significant part of an estate plan. A revocable living trust is a partial substitute for a will. You can put your assets into the trust, and they are managed for your use during your lifetime. The remaining assets are transferred to your beneficiaries upon your death. Generally, most people will name themselves as trustee (person in charge of managing the trust), so they can remain in control of their own assets for their lifetime. It is advisable to name a replacement trustee, in the event of your incapacitation or death. A revocable living trust can be revoked or amended at any time by the settlor (the person who created the trust).

A revocable living trust should:

  • Provide the trustee with the right to control the assets within the trust;
  • Declare that the trustee manage the trust’s assets during the lifetime of the settlor;
    • The trustee has a fiduciary duty to act in the best interests of the settlor; and
  • Identify future beneficiaries that will receive the assets of the trust upon the death of the original trustee.

Who needs a Revocable Living Trust?

A revocable living trust is not for everyone. Those with simple estate plans and who do not have significant assets may not need a living trust. A living trust is important for those with significant assets. Having a revocable living trust can make the management and distribution of your estate much less complicated should you suddenly become incapacitated or upon your death. Your chosen successor trustee would then be able to manage the assets for you. However, if you did not have a living trust and did not appoint someone to manage your assets should you become incapacitated, the court would have to determine who could manage your assets instead. Having a revocable living trust with pre-made arrangements can save your heirs time and expense, as no court proceeding would be necessary.


As previously stated, one of the main advantages to a revocable living trust is that it is probate free. A revocable living trust is revocable and changeable for the lifetime of the settlor. This type of trust minimizes or eliminates challenges to the will. In California, the settlor is allowed to add a provision providing for disinheritance to those who dispute the specified distribution of the estate.


Because living trusts are not supervised by the court, one of the main potential advantages can also become a disadvantage in the event that you appoint the wrong trustee. The risk that a trustee would be able to not act in your best interest is greater than when an executor is directly supervised by the court. Creation of a living trust can also be expensive and potentially higher than the cost of preparing a will, though this varies on a case by case basis. Another potential disadvantage to a living trust is that lenders may not be willing to lend to a trust in order to purchase real property. This can cause additional administrative headache and paperwork.

Contact an Experienced Attorney

It is vital to ensure that your assets are protected in the event of your incapacitation or death. Creation of an estate plan, including a revocable living trust, can be a complex and overwhelming legal endeavor. The knowledgeable attorneys at the Leslie Legal Group are here to help guide you through this process and create an estate plan that is right for you. We will ensure that you understand every step in the estate planning process. Contact us today for a consultation.

Dog Bite Liability in California

Dog bite liability laws vary from state to state. Many states have a “one free bite” policy, which does not hold the owner strictly liable if the dog has never bitten anyone and has never shown tendencies toward aggressive behavior. California has eliminated the “one free bite” policy. This means that a dog owner can be held strictly liable if their dog bites someone, even if it was the dog’s first bite or the dog never showed a tendency to bite. California’s dog bite liability is governed by California Civil Code Section 3342.

California’s Dog Bite Law

The law states that a dog owner will be subject to liability for damages caused by their dog if the damages were caused by a dog bite, and the person injured by the bite was in a public place or lawfully in a private residence. An exception exists for those bit by a dog involved in police and military work. This statute only applies to dog bites – no other injury that may have been caused by the dog. In situations where an injury is caused by a dog but was not a bite, California negligence rules would apply.

The statute of limitations (deadline to file a lawsuit) to file a personal injury claim, including a dog bite claim, is two years. This means that the injured plaintiff has two years after the bite occurred to file the lawsuit. The court will not hear a lawsuit filed after the two-year deadline has passed.

Strict Liability

For dog bite injuries, California is a strict liability state. Strict liability means that a dog owner is liable for the actions of her dog, even if she claims that she did not know that the dog had tendencies to act aggressively. Dog owners are therefore responsible for all damages resulting from a dog bite, so long as the person injured was in a public place or on private property without trespassing.


A dog owner can raise the defense that the injured party was trespassing when the dog bite occurred. An injured party who was trespassing on private property at the time of the bite injury may not be able to collect damages for their injuries. If the dog was carrying out duties for the government or military at the time of the bite, the government or military may raise the defense that the dog was working at the time, or that the injured party provoked the dog. The defenses available to the government or military officials only apply if the dog was carrying out their duties in that capacity at the time of the bite.

Contact the Leslie Legal Group

Dog bites are serious injuries. If you or a loved one has been injured by a dog bite, contact the Leslie Legal Group. Our experienced attorneys can assist you with your claim against the dog owner. We can help you receive compensation for the expenses related to the attack, including medical bills and emotional distress that has resulted. Contact us today for a free consultation.

Appointing a Financial Power of Attorney

Creation of a power of attorney allows you or your aging loved one to appoint an agent to act on his or her behalf should they become incapacitated. Appointing a power of attorney provides you or your loved one with assurance that someone they trust will be making financial decisions in his or her best interest. If a power of attorney is not appointed prior to incapacitation, the family likely would be forced to undergo expensive and time-consuming measures to court-appoint a guardian or conservator to handle their financial decisions.


What is a Financial Power of Attorney?

A document in which the principal (you or your loved one) appoints an agent to act under specified circumstances. The Principal can decide what she will allow her agent or representative to decide for her, and should plan for a broad range of responsibilities to fit his or her future needs. For example, many people allow their agent to handle some or all of the following: handle everyday expenses, investments, file and pay taxes, maintain or sell property, collection of government benefits, maintain, buy, or sell insurance policies, maintain a small business, trust creation or maintenance, hire an attorney, and manage retirement accounts. The agent has a duty to act in the best interest of the principal, not commingle their property with yours, avoid any conflicts of interest, and retain accurate records.


Types of Power of Attorney

A financial power of attorney can take effect immediately when the form is signed, or it can be drafted so that it only begins upon the occurrence of a specific event, i.e., incapacitation. Many spouses maintain ongoing, active power of attorney designations in the event something unexpected happens to one spouse. It is the principal’s decision when a power of attorney begins and ends.

Conventional Power of Attorney: Effective when signed by the principal and ends when the agent becomes incapacitated themselves.

Springing Power of Attorney: Effective only when a specified even occurs, (i.e. the principal’s incapacitation), allowing the principal to remain in control of his affairs until the event. A springing power of attorney can create a whole host of problems for your agent if the form is not drafted to explain exactly when the specified event is deemed to have occurred, and the power of attorney then “springs” into action.

Durable Power of Attorney: Effective when signed by the principal, and remains in effect throughout the principal’s life, unless he or she revokes it. A durable power of attorney is often the best choice, because it remains in effect even after the principal recovers from incapacitation. There is also no ambiguity as to when this type of power of attorney takes effect. The principal can remain in control of her finances even after signing, until she can no longer make sound decisions.


Termination of a Power of Attorney

A durable power of attorney terminates at the principal’s death. As a result, you cannot give your agent power to handle your estate – naming the executor of your estate is a separate process entirely. Power of attorney can also terminate if revoked by the principal (so long as they are of sound mind), divorce (if you designated your spouse as your agent), invalidation by court order, or your agent is unavailable.

Contact an Experienced Attorney

Creation of an estate plan, including a power of attorney, can be a complex and overwhelming legal endeavor. The knowledgeable attorneys at the Leslie Legal Group are here to help guide you through this process and create an estate plan that is right for you. We will ensure that you understand every step in the estate planning process. Contact us today for a consultation.

Back to the Basics – The Prevalence of Elder Abuse in California

This week in San Diego, a 20-year old man was accused of mugging a 74 year old College-area resident. Lucas Churchill Homes pleaded not guilty to charges of elder abuse, robbery, burglary, and identity theft. Holmes contacted the victim through a Craigslist dating page. He then showed up at his home on El Cerrito Drive at approximately 1:15am Wednesday morning. Holmes is accused of using an electric stun gun on the man before tying him up, robbing him, and putting him in a bathtub. Allegedly, he stole the elderly man’s credit and debit cards, and manipulated him into revealing his PIN numbers. Holmes was arrested that afternoon, and faces over 10 years in prison should he be convicted. This story highlights the fact that elder abuse is prevalent in this country, including in California.

The National Center on Elder Abuse conducted a study which interviewed 2,000 nursing home residents. Forty-four percent of those residents revealed that either they had been subject to abuse or neglect, had seen a peer abused or neglected. According to the National Center on Elder Abuse, elder abuse is defined as “intentional actions that cause harm or create a serious risk of harm (whether or not harm is intended) to a vulnerable elder by a caregiver or other person who stands in a trust relationship to the elder. This includes failure by a caregiver to satisfy the elder’s basic needs or protect the elder from harm.” Elder abuse often goes unreported, so it is impossible to know for certain how many seniors are affected by abuse or neglect. The senior may be afraid to report the abuse themselves due to potential retaliation, cognitive impairments or dementia, or because they do not want to report the abuser, a majority of whom are family members.

California Elder Abuse Law

The applicable law punishing elder abuse in California is California Penal Code Section 368(c). Under this statute, a person is guilty of elder abuse if they cause an elderly person to suffer unjustified physical or mental pain, or allows it to occur. Caregivers must follow normal standards of care, and those who fail to adhere to the standard of care, or are negligent when caring for the elderly may be charge with elder abuse.

The punishment for violating this law depends on whether you are charged with felony or misdemeanor elder abuse. The misdemeanor offense is punishable by up to one year in prison and a $6,000 fine. The felony offense is punishable by two to four years in prison.

If you or someone you know is facing charges of elder abuse, it is vital to have an experienced criminal defense attorney on your side to ensure your rights are protected. Contact Sean F. Leslie, Attorney at Law to discuss your case today.

Importance of Wills and Trusts

Have you created a Will yet? Or a trust? How about a Living Will? Many people today don’t realize the importance of having a plan in place in case of unforeseen circumstances, and many put off creating one for a variety of other reasons. More often than not, individuals are more focused on the here-and-now and don’t think about the end of the road; after all, one’s own death is not a pleasant thought. However, if you care about those who would be left behind if the unthinkable occurs, it’s best to plan ahead. At the very least, doing some research into what your options are can help you determine what, if anything, you need to plan for.

There are many benefits to having an estate plan in place, and it can often protect your family and loved ones from experiencing unnecessary financial burdens and heartache. The documents within an estate plan can satisfy any number of your wishes: outline a distribution of assets, determine who will look after your children (if minors), name your health care agents and health care preferences, protect your minor children from overspending (and third parties), protect distribution of investment and retirement assets, etc.

So how do you know what is right for you?

For those with minor children, you’ll want to think about setting up a Declaration of Guardianship Nomination for your minor children. This will allow you to legally declare who should have legal and physical custody of your minor children if something happens to you. Without declaring your wishes, the court cannot take what you want into consideration. Instead, it will be up to a combination of your relatives and the court system to fight it out and determine the best guardian for your children, without your say.

If you own a home, you may want to consider putting a Living Trust into place. A Living Trust can do wonders for your estate. It can help you avoid probate fees and court costs, maximize your tax exemptions, provide your children with property tax benefits, and much more. It also allows you to determine who will receive distributions in the manner you want, all while keeping it personal and out of the court system.

If you do not have children and do not own a home, a Will may be all you need to outline your wishes. A Last Will and Testament can outline you who want to receive your assets upon your death, and in what manner. Wills go through the probate process in the court system, which can be very expensive (it can cost anywhere form 3-7% of your total estate) and time-consuming, and must follow a number of rules. Because of this, anyone with a large estate, or complicated distribution issues might consider drafting a trust instead. However, those without substantial assets, or a home, may only need a Will to outline their wishes. If your total assets are under a certain amount, even a Will can outline your distribution requests without necessarily needing to go through the probate court. If you’re not sure of your situation, this is a good time to consider consulting with an attorney to outline a plan that best suits your needs.

With investments, bank accounts and retirement assets, there are ways to avoid probate altogether, but be wary of these methods and do your research. Avoid actions such as “Transfer on Death” (TOD) or “Pay on Death” (POD) which may avoid probate, but can have other repercussions relating to gift taxes, loss of assets and more. These methods can be beneficial for specific instances, but can be harmful more often than not.

Finally, don’t forget about a Living Will, which in California is referred to as an Advance Health Care Directive. This is a legal document appointing your health care agents – those you want to make health care decisions for you if you are unable. It also allows you to state your preferences for other health care wishes, such as end-of-life decisions and organ donation.

The best option is usually to find a good lawyer to consult with and go from there – feel free to contact our office for any assistance you may need!

A little talk about Chapter 7 Bankruptcy in San Diego

Let’s talk a little bit about bankruptcy. In today’s economy, it is extremely easy to get consumed in debt, and more and more individuals are resorting to bankruptcy for a second chance at financial freedom. If you don’t fully understand or know what the term bankruptcy means, it can be described as a monetary “clean slate” – hitting the reset button on life. slide4-new

Before making the decision to actually file for bankruptcy assistance, those considering it should think long and hard about whether they actually need to do it. The process isn’t to be taken lightly and can only be repeated once every eight years, and remains on your credit history for seven to ten years, thus making it important to weigh the decision carefully. Chapter 7 bankruptcy, the “cookie-cutter” version of it, is the most common type and is a relatively simple and effective process to get started. The actual process generally takes only a few months to complete, essentially wiping out some of society’s most crippling of debts. However, it is important to note that not all debts are forgiven through bankruptcy, as there are some which are nearly inescapable. The process is effective at releasing the tension and suffocation from unsecured debts such as credit cards, medical bills, etc. – but does NOT generally render the debtor exempt from obligations such as child support, student loans, taxes, or criminal restitution (although there are circumstances in which some of these may be discharged). Someone who is considering filing for bankruptcy often fits a familiar scenario – an individual who may already be suffering from financial hardship and excessive amounts of debt then encounters an added problem such as unemployment, divorce, injury, loss of insurance, etc. The law defining bankruptcy was designed originally to help people in such circumstances, providing an opportunity to live their lives again without the burden of debt and collection agencies hounding their every move. In the state of California, even before filing bankruptcy, it is possible for a person to protect their assets from being taken away. Under the Exemption Laws of California, it is possible to be “judgement-proof,” preventing unsecured creditors from taking claim of your belongings. although this may not be the best long-term solution. It is even possible to cease their harassing phone calls and letters by contacting the creditors directly, although you must be careful when doing so as offering to pay the debt, or even acknowledging that it is your debt and your intent to pay it can have drastic and negative effects. If you have been experiencing paralyzing financial difficulty and feel as if one of these options may benefit you, make sure to talk to a California bankruptcy lawyer to get some answers and find out what the best option is for you; your financial freedom awaits!