Blog Jay Leiderman Law

DUI – Prescription Drugs & Drugged Driving: What Should You Know

When most people think of DUI, they associate it with drinking and driving. However, in all U.S. states, someone can be charged with some form of DUI for operating a vehicle while under the influence or prescription drugs or other controlled substances.


Operating a vehicle under the influence of prescription drugs can be dangerous, especially when the drugs are mixed with alcohol

This could create a real problem for drivers who do not know that the prescription drugs they are taking could land them in legal trouble – even resulting in jail time in the states with severe DUI penalties. Let’s take a closer look at the drugged driving laws and it would be a good time to hire a DUI lawyer.

What is Driving Under the Influence?

While DUI laws vary from state to state, there is one common factor. It is illegal to operate a motor vehicle while under the influence of an illegal substance, or a legal substance if that substance caused you to be impaired at the time you were driving.

Who is Subject to Conviction?

Anyone operating a motor vehicle while under the influence of drugs is subject to conviction, even if that person has been prescribed the drug in question.

What Are the Penalties?

Individual states will determine what kind of penalty someone could face. In states such as California, even a first-time conviction will result in jail time and license suspension. In most states, the penalties are less severe for first time offenders or those who are only impaired to the slightest degree.

The penalties for driving under the influence of drugs are typically similar to those of an alcohol-related DUI.

The penalties for driving under the influence of drugs are typically similar to those of an alcohol-related DUI

Someone with previous convictions will face harsher penalties and in some cases, could even be charged with a felony offense.

The risk of being accused of a drug-related DUI is much higher for some people. For instance, someone with a chronic condition may have to take certain prescription drugs every day. Most people need a car to take care of all their daily tasks, such as getting to work, shopping and other errands, and may have to drive after taking medication.

Another risk factor is that many people on prescription drugs aren’t aware that they are not allowed to operate a vehicle.

When Should You Speak to an Attorney?

If you are arrested and accused of driving under the influence of drugs, you should contact a skilled attorney as soon as possible. A lawyer who specializes in DUI defense will have close working knowledge of the laws and how evidence is collected.

Prosecutors will always try to convince you to plead guilty, but this is not always the right choice. Your lawyer will help determine the strength of the case against you and negotiate a fair outcome outside of the courtroom, or fight to defend you at trial.

It’s important to know and weigh your legal options and it’s sometimes impossible to do so without the knowledge and guidance of a skilled attorney.

How Do You Protect Your Rights During an Arrest?

Field sobriety tests are a no-win proposition

Most DUI defense lawyers will agree that defendants make their cases harder to win by saying too much to the police at the time of their arrest. It’s important to exercise your Fifth Amendment constitutional right to remain silent. Anything you tell an officer at the time of arrest can be used as evidence against you when your case goes to court.  Also, most people do not know that they can refuse to do field sobriety tests in California.  You can and in most cases you should refuse such tests. They are designed to make you fail.  The police will tell you how well you are doing on these tests, only to turn around and write a report that states you failed.  Field sobriety tests, or FST’s are a no-win proposition.  Implied consent laws in California only require you to take a breath or blood test.

You are most likely not going to talk your way out of a DUI arrest.  Your best course of action is to answer only the questions that the police require you to answer and save your statements until you can speak with a defense lawyer.  You are entitled to ask a police officer if you are required to answer certain questions.  Make clear that you are not refusing to answer questions.


Even legal prescription drug use can lead to a DUI in all states

The smartest course of action during a DUI arrest is to say as little as possible and contact an attorney as soon as you are cleared to make a phone call. It’s also important to ensure that your attorney is the only person you talk to about the details concerning your case. Prosecutors may try to summon people you know as a witness to question them about what details you may have discussed concerning your case.

About the Author

Andi Saivetz is a blogger who enjoys learning and writing about legal issues.

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In 2012 the cases of Jeremy Hammond and Andrew Aurenheimer were yet to be decided.  Questions abounded about how the law would be applied to these two hacktivist test cases.  The below article by Andrew Blake spoke to the zeitgeist of 2012 with perfection.  The full article can be read here:  Below are only my quotes from the story.


Twice last week, the justice system heard cases related to hacking, and in both instances, information sharing and cyberlaw were dealt a seriously heavy-handed blow. The government was the bully here, and the dorky little hacker had his glasses knocked square off his face.


After details from both the [Andrew “weev”] Auernheimer and Hammond cases came in Tuesday evening, I called Jay Leiderman, a defense attorney from Southern California who has represented a fair share of alleged computer criminals, including some aligned with the Anonymous movement that spawned LulzSec. When Leiderman picked up the phone, he was just finishing a day of lawyering near Los Angeles and had barely heard any news from the East Coast yet.

attorney jay leiderman, ventura california, near los angeles, jeremy hammond, hacktivist, weev, andrew aurenheimer, cfaa, computer fraud and abuse act
Jay Leiderman

“Hammond was told he can’t do house arrest and could be put away for 39 years to life,” I told him. He paused. For a while.

Leiderman suggests there’s no way in hell that Hammond will be put away for life for sharing the Stratfor data, but says that the way his and Auernheimer’s cases were handled say a lot about the justice system.

“The way the government is reading these laws [the computer fraud and abuse act or CFAA] really makes about all behavior criminal,” Leiderman tells me.

In the case of Auerenheimer, Leiderman says, “He didn’t access a protected computer yet he was convicted of it.”

He didn’t access a protected computer yet he was convicted of it

“It is clearly a situation of them striking while the iron is still ambiguous,” he says. For right now, there is a real lack of well-defined cyberlaw.

“At some point the federal courts are going to have a chance to consider these issues and realize the prosecutions that they are currently undertaking are in fact what the laws were designed to prevent,” he says. “But before that happens, the federal government is intensifying their pound of flesh. They are trying to scare everyone and make them think that every time they punch upon that keyboard that they are risking 15 years in federal prison. And for as long as that, it’s nothing but a scare tactic and one that ultimately can’t survive in an era of internet freedom.”


“I do think that Hammond’s prosecution is 100 percent political, not withstanding whatever actions he may have taken,” Leiderman says.

“I think we’ve come to a place in America where we no longer value the political dissident. Where speech that is contrary to government is no longer seen as a valuable thing in society,” he says.

“The way that speech works and the way that free speech works is that if an idea is too radical and if an idea is too far flung and too far fetched—like dumpster diving for your food—it’s going to be rejected by the people in the marketplace of ideas, and that’s the way the marketplace of ideas works. But when it’s the government telling us, ‘Nah, this idea is no good. We need to reject it,’ then it’s no longer free choice in the marketplace of ideas. We’re being told what to think and that’s where it gets scary.”

“It is scary when you put it that way,” I told Leiderman.


“If recent events have taught us anything it’s that Congress is absolutely useless and is not likely to do anything on any issue at any time,” says Leiderman. “They are the most impotent band of individuals on the planet, so we need to leave it to the court to let this shape out. And you know, the courts don’t suffer fools lightly. The courts have historically done a reasonably good job in protecting our freedoms and narrowly circumscribing crimes such that bold behavior isn’t criminal. And the way the government is reading these laws really makes about all behavior criminal.”

For now, says Leiderman, interpretation in regards to computer crimes is weak. While it’s arguable that the justice system will never keep up with the pace of technology, at this rate it could be too late before laws are finally structured in such a way that Hammond and Auernheimer aren’t looking at guaranteed, asinine sentences.

This isn’t what these laws were meant for

Meanwhile, says Leiderman, the state of affairs is ludicrous. “They’ve made a rule so broad, so amorphous and so ambiguous,” he says, “that reasonable people can’t ascertain what conduct is in fact covered.”

“We’re at a point in the history of these prosecutions where the government can literally charge anyone for anything and they seem to be doing that in a very targeted manner. They are going after people they don’t like for speech that they don’t like and they are going to get these convictions up until the point where courts start telling them, ‘Stop it. This isn’t what these laws were meant for.’”

That’s assuming the people have a voice long enough to make that opinion heard.

Blake is a web producer for Russia Today. Follow him on Twitter. 

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Hacktivist’s Advocate: Meet the Lawyer Who Defends Anonymous


As a lawyer not particularly immersed in the technology world, Jay Leiderman first became interested in the hacker collective Anonymous around December 2010. That was when Anonymous activists launched distributed denial of service attacks (DDoS) against Mastercard and PayPal, who stopped processing donations to WikiLeaks.

Since then, he has represented a number of high-profile hackers, including Commander X, who is on the run from the FBI for a DDoS attack on a county website in Santa Cruz, California, to protest a ban on public sleeping, and Raynaldo Rivera, a suspected hacker from LulzSec who is accused of stealing information from Sony computer systems. Both Commander X and Rivera could face up to 15 years in prison.

Leiderman, who represents many of his hacker clients pro bono, argues that the law should be changed on DDoS. In an interview I conducted with Leiderman recently, he told me why slapping teenaged hackers with harsh prison sentences is counterproductive.

How did you first become involved with representing Anonymous?

The politics of it spoke to me and the fact that it was a newly emerging area of law really spoke to me. My partner and I do a lot of medical marijuana law. Primary among the reasons that we do that are that it’s new and emerging so we can help shape the way that the law ultimately fits society. And because we believe in the politics behind it. And it’s the exact same with Anonymous.

We have an opportunity here to make the courts, as these cases wind their way up, understand privacy issues, emerging tech issues, against the backdrop of civil rights and through the prism of free information. And that was something that was just an amazing opportunity for me and something that still engages me as I continue to take on these cases.

You’ve said about DDoS attacks that “they are the equivalent of occupying the Woolworth’s lunch counter during the civil rights movement,” but under U.S. law DDoS attacks are illegal. Do you think the law should be changed?

Oh, absolutely. Keep in mind that I didn’t say that in an unqualified manner about DDoS. If you were knocking someone’s front page offline to ultimately rape their servers and take credit-card information and things like that, that’s not speech in the classic sense. When you look at Commander X’s DDoS, what he was accused of in Santa Cruz, or with [the] PayPal [protests], these are really perfect examples. And very rarely in law do we have perfect examples.

Take PayPal for example, just like Woolworth’s, people went to PayPal and said, I want to give a donation to WikiLeaks. In Woolworth’s they said, all I want to do is buy lunch, pay for my lunch, and then I’ll leave. People said I want to give a donation to WikiLeaks, I’ll take up my bandwidth to do that, then I’ll leave, you’ll make money, I’ll feel fulfilled, everyone’s fulfilled. PayPal will take donations for the Ku Klux Klan, other racists and questionable organizations, but they won’t process donations for WikiLeaks. All the PayPal protesters did was take up some bandwidth. In that sense, DDoS is absolutely speech, it should absolutely be recognized as such, protected as such, and the law should be changed.

But say that I had a rival law practice across town from you and I was perhaps a bigger more powerful rival with more money and perhaps I wanted to down your website every single day. Isn’t that just the equivalent of me just going outside and spray painting and taking down your sign every day and preventing customers from coming to you?

Jay-Leiderman.jpgBut both of those actions would be illegal in the abstract. Taking down my sign or vandalizing it would be a graffiti or vandalism type charge whereas repeatedly DDoSing my site would be similar in method and manner to that. It’s why you have to be careful with the speech. What you have with PayPal, it’s a pure form of speech — it was a limited and qualified thing like Woolworth’s. African-Americans went into Woolworth’s and said, I want lunch, feed me lunch, I will eat it, pay for it, and leave. Same with PayPal.

Santa Cruz perhaps provides a more compelling case on that because Santa Cruz was about literally petitioning the government for a redress of grievances. Santa Cruz wanted to essentially criminalize — or did criminalize — homeless people sleeping in public without qualification. And the city council wouldn’t listen, the police wouldn’t listen, no one would listen. People regularly die from exposure, because they can’t find safe and secure places to sleep in the community. Therefore getting your government’s attention in that manner should not be something that the U.S. government is interested in criminalizing and spending resources to prosecute. So in those regards, it’s different from the examples you gave, where I would be under perpetual DDoS.

So you’re not saying decriminalize DDoS per se, but perhaps it’s the way that DDoS is used and other legal factors would come into play there.

Here’s what we conceived in terms of the DDoS. The government and people who write about tech tend to call it a “DDoS attack” but in certain circumstances it’s not a DDoS attack, but a DDoS protest. So the law should be narrowly drawn and what needs to be excised from that are the legitimate protests. It’s really easy to tell legitimate protests, I think, and we should be broadly defining legitimate protests. The example you gave of the rival law firms, that’s not protest activities or traditional free speech activities.

The argument has been made that the problem with some of the sentences for Anonymous/LulzSec members is that a lot of them are really just foot soldiers, naive, young, vulnerable kids, who perhaps get into something over their heads. And they’re not skilled hackers who are trying to bring down the U.S. government and they don’t deserve long jail terms . Would you agree with that?

Absolutely, that’s probably one of the most often-repeated and truest things about a lot of these Anonymous members is that they’re not these ill-intentioned, misanthropes that really need to have the weight of the law come down on them. I agree with that 100 percent.

Who should the weight of the law come down on then? Should the weight of the law come down on the ringleaders who are behind these people?

Sabu‘s cooperation [aside], he would be a good example of someone who’s cruising for one of these eye-popping over-the-top sentences. He was a bit older, he had been involved in the hacking world for 10 or 15 years; he had a lot of prior Internet misdeeds. He was very skilled, or at least reasonably skilled, he had special skills. He was involved in other criminal activity, he was selling pounds of marijuana, which they didn’t charge him with. They dismissed those charges as part of his cooperation.

He was using his skills to commit credit-card fraud, without ideology, without politics behind it, without anything. He was literally stealing from people — this was not a big, nameless, faceless corporation…There was no ideology behind him stealing credit-card numbers from Mr. and Mrs. Smith…. He was recruiting people actively into LulzSec. One of the allegations in the case I’m handling [Raynaldo Rivera] is that Sabu recruited my client based upon my client’s skill, through another member of LulzSec, an intermediary.

Sabu was unquestionably the leader of LulzSec. When you read through the reports, as I have, it’s very clear that Sabu was giving orders, pressuring people to “get their hands dirty.” … It was Sony Pictures and the databases were organized via movie sweepstakes — names and password that were ultimately dumped on the Internet — and Sabu made individual people go in there and do individual databases so everyone had their hands dirty so that he could exert more control and get them to do more. He had importuned them to criminality.

… He’s looking at 124 years so that’s obviously beyond ludicrous. But if Sabu were to get a decade or something, that [could be] a sentence for someone like him with a really malignant heart. But for someone like Rivera and the typical member of Anonymous, no, those sentences simply don’t fit and for the most part I don’t believe they should be going to jail. A lot of these kids — and most of them are kids — don’t understand the criminal consequences here and could be rehabilitated; scared straight without a jail sentence. There are other things that we could do to them to make them understand that this is in fact illegal and not the way to express yourselves politically.

If we are not talking about harsh prison sentences, how should society respond to rehabilitate those hackers?

I really think this is a situation where a lot of these people are really scared of the consequences once they understand them. Usually someone like that, a criminal conviction in and of itself is a terrible black mark on someone’s record now. It becomes difficult to get a job. If you’re a person with computer skills, it becomes difficult to get computer clearances to be able to work your way up in a lot of these areas. So simply the conviction alone gets the message across, a probationary period where they’re being monitored or checked in on, some community-type service, working with the community in a productive manner. All sorts of creative punishments like those that are available and at the government’s disposal.

Do you think denying them access to the Internet is useful?

In some cases it might be useful and appropriate. You really have to look at the offense and the offender. If someone’s really unhealthy in their Internet use, it may not be a bad thing to look at them and say, a year, 18 months, two years, let’s see how you do without Internet in your life except work and school. That may well be a very good and healthy thing for some people, but you have to look at the offense and the offender before saying we should just yank this person’s Internet privileges.

You don’t think there’s a purpose to passing harsh prison sentences in that it sends a message and acts as a deterrent to any potential offenders?

I don’t necessarily think that message gets received by this population which are exclusively naive, not legally savvy, fairly young first-time offenders. That’s not a population who can really understand in a practical sense that if you do this, you’re going to get a harsh prison sentence. In some of their minds, it almost may be worse, to take away Internet use or modify their behavior in some ways as it so violently changes how their life ordinarily progresses.

Are there any Anons you wouldn’t represent?

It depends. I’ve been asked that question before and I struggle with it and here’s why. I don’t have to like or agree with the people that I represent to represent them. I have represented neo-Nazis and I’m Jewish. I’ve been assigned them when I was a public defender and it never really occurred to me until someone asked me, how do you feel about representing this skinhead and I said, you know, I didn’t think about it.

Everyone is entitled to a defense and the more reprehensible they are and maybe the more guilty they seem at the beginning of the case makes them more entitled to a vigorous and hard-hitting defense. So I don’t necessarily know that there’s someone I wouldn’t represent based upon what they did or based upon their politics. I wouldn’t go ahead and represent someone whose views I didn’t agree with pro bono. I’m not going to spend my time and energy that way. … Certainly there are many people I wouldn’t represent pro bono.

Would you represent Sabu pro bono?

No. The damage he did by turning so completely on people he used to call his brother [was considerable]. People who cooperate, throw someone else into harm’s way so they can soften the blow on themselves, I tend not to represent. For those reasons, I wouldn’t represent Sabu at all. […] He hurt a lot of people and he did it to save his own skin and he hurt a lot of people worse than they would otherwise be hurt.

Copyright (c) 2012. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty, 1201 Connecticut Ave., N.W. Washington DC 20036.

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Hearing scheduled in Andrew Luster’s appeal of rape sentence

An attorney for convicted rapist Andrew Luster, an heir to the Max Factor cosmetics empire, said a hearing is scheduled for Dec. 17 to set dates and times when legal motions surrounding Luster’s appellate court issues will be heard.

Attorney Jay Leiderman said Monday that Luster raised 20 legal issues in his appeal, including whether he was denied effective assistance of counsel at his trial and whether the judge used a proper method to calculate Luster’s prison sentence in 2003.


Leiderman said Luster, 48, was offered a favorable plea bargain deal of six to 16 years in prison but that his lawyer didn’t give him proper legal advice on the offer.


Andrew Luster

Jay Leiderman, unhappy that he only was able to reduce Andrew Luster’s sentence by 74 years, leaves the courthouse. Luster’s new sentence will be served at 50% time so he will be released when he is 62 as opposed to his release date before Leiderman got the sentence reduced. His original release would have come when Luster was 99 years old.



Ventura County Superior Court Judge Ken Riley, now retired, sentenced Luster to 124 years in prison. On June 19, 2003, Luster, who is Factor’s great-grandson, was caught at a taco stand in Puerto Vallarta, Mexico, by bounty hunter Duane “Dog” Chapman. 

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Notice of habeas corpus petition

To the Court of Appeal of the State of California, ______ District, Division ____, the _____ County District Attorney, the Attorney General for the State of California, the Warden of _____ State Prison; please take notice that:

Pursuant to Article VI, section 10 and Article I, section 11 of the California Constitution and Penal Code section 1473, and In re Clark (1993) 5 Cal.4th 750 n.7, petitioner [defendant’s name] seeks this Court’s writ of habeas corpus to relieve him of his wrongful criminal convictions and/or sentence and his unlawful confinement in the California Department of Corrections and Rehabilitation’s (“CDCR”) _______ State Penitentiary. Petitioner’s confinement is unlawful for the reasons and on the grounds stated in this petition and in Petitioner’s separately filed Memorandum of Points and Authorities, and supported by the attached exhibits, the declarations attached hereto, and the files and records in this matter, as well as any oral argument that may supplement this petition and any exhibits, declarations or the link filed subsequent to this petition as a result of the ongoing investigation.


Known as “the great writ” habeas corpus petitions are the last refuge of an unjustly incarcerated prisoner

What is a habeas corpus petition?

Latin for “that you have the body.” In the US system, federal courts can use the writ of habeas corpus to determine if a state’s detention of a prisoner is valid. A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, amount of bail, and the jurisdiction of the court.

See, e.g. Knowles v. Mirzayance 556 U.S.___(2009), Felker v. Turpin 518 US 1051 (1996) and McCleskey v. Zant 499 US 467 (1991).


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