Brother detained for no good reason under California penal code 11550 (a) HS

[EricCW]

Earlier this month my brother was out taking photographs of spiders when two cop cars pulled up and insisted he explain what he was doing. They didn't buy that he was just out taking pictures of spiders, and examined his pupils and heart rate. Of course he was scared and had a high heart rate, and they charged him with 11550 a (HS), "Under the influence of a controlled substance".

He was not under the influence of anything, but they took him to jail, took a urine sample, and detained him for 14 hours. He never got the results of the urine test.

Now he has to appear in court for arraignment next month. My question is, what should we do? The charge is bogus, he was thrown in jail for no reason, it's not possible for the cops to have evidence against him since he was totally sober, but we don't know what's going to happen and it's worrying us. The public defender is not interested in talking to us yet and we can't afford a lawyer.

Any advice is much appreciated.

Thanks,
Eric

 

[sandyclaus]

Earlier this month my brother was out taking photographs of spiders when two cop cars pulled up and insisted he explain what he was doing. They didn't buy that he was just out taking pictures of spiders, and examined his pupils and heart rate. Of course he was scared and had a high heart rate, and they charged him with 11550 a (HS), "Under the influence of a controlled substance".

He was not under the influence of anything, but they took him to jail, took a urine sample, and detained him for 14 hours. He never got the results of the urine test.

Now he has to appear in court for arraignment next month. My question is, what should we do? The charge is bogus, he was thrown in jail for no reason, it's not possible for the cops to have evidence against him since he was totally sober, but we don't know what's going to happen and it's worrying us. The public defender is not interested in talking to us yet and we can't afford a lawyer.

Any advice is much appreciated.

Thanks,
Eric

How do YOU know that your brother wasn't under the influence of anything?

There's definitely more to this story than what the brother is telling us. Just "photographing spiders" isn't going to get you an Under the Influence charge. And if the drug test came out clean, there would be no pending charges.

When your brother appears at his arraignment, tell him to speak up and ask for an attorney while before the judge, and that he can't make a plea until he does.

 

[Dillon]

When your brother appears at his arraignment, tell him to speak up and ask for an attorney while before the judge, and that he can't make a plea until he does.

this state lacks legal standing for no injury or damages and because nobody's legal rights were violated.

Gee, who's the accuser if no damage or injury and no ones legal rights violated.



If me, Id file a counter-claim in a court of record for false arrest and aggravated kidnapping for starters

California Penal Code Section 825(a)

(1)Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay

California's kidnapping laws, found under Penal Code 207, 208, 209 and 209.5 PC, when you

1.move another person
2.a substantial distance
3.without that person's consent
4.by using force or fear

"Force or fear" means
that you actually inflict physical force upon the alleged victim, of
that you threaten to inflict imminent physical harm.

 

[Dillon]

He was not under the influence of anything, but they took him to jail, took a urine sample, and detained him for 14 hours. He never got the results of the urine test.

Thanks,
Eric

California Penal Code Section 825(a)

(1)Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay


The only permissible delay between the time of arrest and bringing the accused before a magistrate is the time necessary: to complete the arrest; to book the accused; to transport the accused to court; , and to complete the necessary clerical and administrative tasks to prepare a formal pleading.’ ” (Youngblood v. Gates (1988) 200 Cal.App.3d 1302, 1319 [246 Cal.Rptr. 775] )

I would arque the law requires probable cause hearing before Jail. you know, innocent till proven quilty.

 

[sandyclaus]

this state lacks legal standing for no injury or damages and because nobody's legal rights were violated.

If me, Id file a counter-claim in a court of record for false arrest and aggravated kidnapping for starters

California Penal Code Section 825(a)

(1)Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay

California's kidnapping laws, found under Penal Code 207, 208, 209 and 209.5 PC, when you

1.move another person
2.a substantial distance
3.without that person's consent
4.by using force or fear

"Force or fear" means
that you actually inflict physical force upon the alleged victim, of
that you threaten to inflict imminent physical harm.

California Penal Code Section 825(a)

(1)Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay


The only permissible delay between the time of arrest and bringing the accused before a magistrate is the time necessary: to complete the arrest; to book the accused; to transport the accused to court; , and to complete the necessary clerical and administrative tasks to prepare a formal pleading.’ ” (Youngblood v. Gates (1988) 200 Cal.App.3d 1302, 1319 [246 Cal.Rptr. 775] )

I would arque the law requires probable cause hearing before Jail. you know, innocent till proven quilty.

More crap from the infamous "Citizen of Texas".

Who says that 14 hours is an unnecessary delay? And since when is an arrest considered kidnapping?

You are responding to secondhand information which can't be verified. Even if the information alleged is correct, there is no evidence of kidnapping.

 

[Dillon]

More crap from the infamous "Citizen of Texas".

Who says that 14 hours is an unnecessary delay? And since when is an arrest considered kidnapping?

chill dude, with all due respect, the copper in not a magistrate. he can't make legal determinations, he just an observer.

only a judge can rule if there was probable cause that a crime was committed. that separation of powers thing.

 

[Dillon]

You are responding to secondhand information which can't be verified. .

all infomation is second-hand

the case law is the case law, even if you dont like it.

 

[CdwJava]

Earlier this month my brother was out taking photographs of spiders when two cop cars pulled up and insisted he explain what he was doing. They didn't buy that he was just out taking pictures of spiders, and examined his pupils and heart rate. Of course he was scared and had a high heart rate, and they charged him with 11550 a (HS), "Under the influence of a controlled substance".

Being "scared" does not generally give someone a pulse rate of 100+ - and certainly not for a prolonged period. If the officers conducted the evaluation properly, there was likely good probable cause to affect the arrest. Understand that the burden of proof supporting the arrest is less than that which might be required for a conviction.

He was not under the influence of anything, but they took him to jail, took a urine sample, and detained him for 14 hours. He never got the results of the urine test.

That typically takes a few weeks to come back depending on where the test is submitted to. And, if out of custody, it becomes a very low priority.

Now he has to appear in court for arraignment next month. My question is, what should we do?

WE do not do anything. HE should consult an attorney. If he cannot afford an attorney, one will be appointed for him.

If the test results are back by the arraignment then he will be charged with a crime if the results were positive. If the results are negative, then the matter will be dropped. If the results are not back, yet, then the matter will likely be continued until they do come back.

The charge is bogus, he was thrown in jail for no reason,

No, he was "thrown in jail" based upon the articulated probable cause of the officers to believe he was under the influence of a controlled substance in violation of H&S 11550(a). It may turn out to be incorrect, but an arrest is based upon probable cause and not absolute certainty.

Now, if the test comes back positive, what then? Since you were not with him, you cannot possibly know if he was high or not - or what substance he might have been under the influence of (if any).

it's not possible for the cops to have evidence against him since he was totally sober, but we don't know what's going to happen and it's worrying us.

You also cannot possibly know whether he was under the influence or not. You might want or choose to believe he was clean and sober, but if you are being honest with yourself, you will acknowledge that it is a possibility even if remote (in your mind).

The public defender is not interested in talking to us yet and we can't afford a lawyer.

The public defender likely cannot talk to your brother just yet because their office has not been appointed as counsel. That will come at or about the time of the arraignment.

 

[OHRoadwarrior]

all infomation is second-hand

the case law is the case law, even if you dont like it.

To err is human. To interpret in err is Dillon.

 

[Dillon]

And since when is an arrest considered kidnapping?

if the OP's brother had had a probable cause hearing first before Jail it would have already been verified by a magistate.

the kidnapping happens when the alleged accused see a Jailer first before the magistrate as required by law in all cases.

punished before due process.

 

[CdwJava]

if the OP's brother had had a probable cause hearing first before Jail it would have already been verified by a magistate.

When a person is arrested in CA a probable cause declaration is completed and reviewed by a judge usually within 12-24 hours. If the defense wishes to later challenge the probable cause, they can make the appropriate motion hearing.

the kidnapping happens when the alleged accused see a Jailer first before the magistrate as required by law in all cases.

WHAT are you rambling about?!?!

Sorry, but you do not know what you are talking about. No "kidnapping" occurs when a person is arrested and booked into the jail pursuant to state law. You are listening to the voices again, Dillon ...

punished before due process.

Hardly.

Perhaps you should read up a bit on "due process" and the criminal justice system.

 

[sandyclaus]

if the OP's brother had had a probable cause hearing first before Jail it would have already been verified by a magistate.

the kidnapping happens when the alleged accused see a Jailer first before the magistrate as required by law in all cases.

punished before due process.

If OP's brother has no attorney, then that would explain why a probably cause was never requested. And probable appears to justify the arrest.

And what *I* meant by secondhand information is that we are getting the brother's story from OP's point of view. OP has NO idea what actually happened, or what prompted the probable cause that resulted in the brother's arrest - and neither do YOU. Your responses are based upon your biased assumption that everyone is automatically screwed over by "the man". You assume that there was no probable cause, and you assume that the brother was kidnapped out of some misplaced spite on the part of the police.

Dude, you really SHOULD stop while you're so far behind. You ain't getting any closer to an accurate answer here anytime soon. And as they say, it's better to be thought a fool than to open your mouth and remove all doubt. (Of course, your previous posts leave no doubt in MY mind...)

 

[Dillon]

Perhaps you should read up a bit on "due process" and the criminal justice system.

Definition of Due Process of Law - No Jail/judgement/punishment before a judicial hearing.

"The essential elements of due process of law are notice, an opportunity to be heard, and the right to defend in an orderly proceeding." Fiehe v. R.E. Householder Co., 125 So. 2, 7 (Fla. 1929).

"To dispense with notice before taking property is likened to obtaining judgement without the defendant having ever been summoned." Mayor of Baltimore vs. Scharf, 54 Md. 499, 519 (1880).

"An orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and determine the case. Kazubowski v. Kazubowski, 45 Ill.2d 405, 259, N.E.2d 282, 290." Black’s Law Dictionary, 6th Edition, page 500.

"Due Process of law implies and comprehends the administration of laws equally applicable to all under established rules which do not violate fundamental principles of private rights, and in a competent tribunal possessing jurisdiction of the cause and proceeding upon justice. It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgement is rendered." State v. Green, 232 S.W.2d 897, 903 (Mo. 1950).

"Phrase means that no person shall be deprived of life, liberty, property or of any right granted him by statute, unless matter involved first shall have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings, and it forbids condemnation without a hearing, Pettit v. Penn., La.App., 180 So.2d 66, 69." Black’s Law Dictionary, 6th Edition, page 500.

"Due Process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgement upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law." Black’s Law Dictionary, 6th Edition, page 500.

"Aside from all else, ‘due process’ means fundamental fairness and substantial justice. Vaughn v. State, 3 Tenn.Crim.App. 54, 456 S.W.2d 879, 883." Black’s Law Dictionary, 6th Edition, page 500

Due Process Cannot Be Modified By Legislation

Dont forget the big elephant in the room of Legal Standing without injury or damaged property and no man/womens legal rights being violated.

How does the Organic State of California have any injuries?

 

[CdwJava]

Dillon, if the OP's brother pursues your hackneyed theory that the state must prove injury in some way, then the OP will lose and be convicted. As it is, the state bears the burden of proof to show that the OP was under the influence of a controlled substance. At this point if the test is negative, then the matter will likely be dropped. If the test is positive, then a plea deal to drug diversion will be almost certain. Your theory is a loser, it will not succeed, and in the real world (where the rest of us reside) such an attempt to rely on a dictionary in place of statutory and case law will result in little more than an aggravated court.

Let's stick to the real world, shall we?