Just before the end of California’s last legislative session, Gov. Jerry Brown signed a bill that would allow the possibility of parole for minors tried as adults. According to the LA Times, about 6,000 inmates could go before a parole board. Their sentences could be reduced and they could be placed on parole after serving 15 years of their sentence. This means that an inmate sentenced in his mid teens would get out in his early thirties. Many were sentenced to life without parole for various types of charges including violent crimes or being an accomplice. One group lobbied for bill SB260 in order to change the approach the system takes on inmate youth.

Governor Brown referenced the signed bill in his request for an extension of time to reduce the states prison population. He explained that this bill would decrease the amount of inmates in state prisons. A federal panel of judges has given California until December 31, 2013 to reduce the numbers by around 8,000 inmates according to Reuters. Some legislators and groups would like to see the state fund rehabilitation programs in order to reduce the prison population. Families of victims have a different perspective on the issue and some believe that whether they were minors or not at the time of commission of the offense, they should serve their entire sentence.

In the state of California sex between one individual and a person who is under the age of 18 years is known as ‘Unlawful Intercourse’ under Penal Code section 261.5. This crime is commonly known as ‘statutory rape.’ Presumably, that description came about because regardless of whether the underage person gives consent, it is still a violation of the law to have intercourse with them. This law only applies to actual intercourse and not oral sex or anal sex. The laws regarding oral and anal sex with underage individuals are much harsher, almost always felonies and usually require sex registration. A conviction under Penal Code Section 261.5 does not require sex registration.

Sex between someone over the age of 18 and someone under the age of 18 where there is three years or less of age difference may be filed as a misdemeanor under Penal Code section 261.5(b); if there is more than a three year age difference the crime may be filed as a misdemeanor or a felony (Penal Code Section 261.5(c)). If the Defendant is 21 years or older and the minor is under 16 then the maximum punishment may be four years in state prison although such a long sentence is very unlikely (Penal Code Section 261.5(d).

The most perplexing issue surrounding Penal Code Section 261.5 for most people is that although it prohibits intercourse with a minor it does not require registration as a sex offender. This seems inconsistent with other Penal Code Sections that require life time sex registration for oral sex between an individual and someone who is underage.

More than likely this inconsistency arose from puritanical notions on sex which found oral sex deviant. Legally however, the California Supreme court saw this legal inconsistency as being a violation of the equal protection clause of the constitution and determined that oral sex with someone who was 16 or older should not be registerable under Penal Code Section 288. (See People v. Hofsheier (2006) Regardless, violations of Penal Code Section 261.5 are not registerable and that fact has led to other penal code section violations not being registerable.

As a practical matter, it is possible for two individuals in high school engaging in consensual intercourse that result in the one who is 18 being charged with Penal Code Section 261.5. For example, if an 18 years old high school senior has sex with his 17 or 16 year old girlfriend he can be charged with this crime. It is rare when this occurs and of course the District Attorney has discretion whether or not to file the matter. Usually when a filing does occur in this instance it is because the parents of the younger individual wish to discourage the relationship or the younger female has become pregnant and the parents are outraged. Often times, it is the angry parents who spur the District Attorney into action. Similarly though, parents of the younger person may be persuaded to ask the District Attorney for leniency since few realize that these charges can result in jail. Other times, the Defendant agreeing to a paternity test, which will then result in support payments, may soothe a parent up-in-arms over the unexpected pregnancy of the minor.

Attorney Will Bruzzo has successfully handled many Penal Code Section 261.5 cases to include complete dismissals.

Attention has been brought to the practice of “sexting”, where teenagers send provocative text messages or revealing pictures via cell phones. This trend has appeared in the news and in episodes of television series. While there is no specific law against teenagers sending explicit photos of themselves, prosecutors are charging individuals with distribution of child pornography based on the subject’s status as a minor. To date there has been no effort to prosecute inappropriate written messages. Sexting normally occurs when pictures of nude or semi-nude teenager are sent to another teenager; normally, the teenager posing for the pictures is usually the one taking and sending the photo. Officials are troubled by the possibility that the photo can be distributed to others without the consent of the subject and with the possibility of the minor being exploited. In Pennsylvania a court ruling is being criticized where a judge told a group of teenagers to attend a program on why sexting is wrong or face charges of child pornography. Naturally, the first line of discipline for teenagers is their parents or guardians and it seems like sexting has now become a relevant matter to be discussed at home. (See Penal Code Sections 311, 311.1, 311.2 and 311.3)

As the holidays are upon us now is a good time to consider the effects of drinking and driving and how you can avoid an arrest or causing an accident. My experience comes from 15 years of legal representation.

Even though the legal limit in California and many other states is a 0.08 blood-alcohol level most forensic toxicologist (folks who study the effect of alcohol on the body) will say that alcohol really starts to effect people at the 0.05 blood-alcohol level. Almost half of the legal limit! Under California Law even if you are under the 0.08 level you can still be prosecuted for driving under the influence if it can be shown that alcohol in your system impaired your driving. Some people can suffer physical impairment from alcohol at levels lower then other people. While it is important to know your limits it is much more important to count the number of drinks you have ingested over a particular time frame so nothing is left to chance. What follows is a general guide for deciding based on your weight, number of drinks and amount of time, whether you should drive.

First we have to start with ground rules: (1) a 12 ounce beer, a shot (normal size) and a 4 ounce glass of wine all have the same amount of alcohol and will effect you almost entirely the same; (2) every hour your body will burn off the equivalent of the alcohol in a 12 ounce beer, a shot or a 4 ounce glass of wine through the natural metabolism process of the body. That is, your body will naturally eliminate one of each of those amounts of alcohol about every hour. We get drunk when we drink in excess of what our body can eliminate in a given time frame.

The best way to illustrate how much we can drink is to use examples. Remember, these are approximations but they give a pretty good idea of when you may be intoxicated for driving.

(1) First subject: 110 lbs person (man or woman does not matter) drinks 2 twelve ounce beer starting at 7:00 p.m. and finish drinking both beers at 7:45 p.m. What is the person’s blood alcohol level at 8:00 p.m.? If you weigh around 110 lbs every alcoholic beverage you ingest will peak at a blood alcohol level of about 0.03 when the beverage is fully absorbed and before elimination. So by 8:00 p.m. that first beer will have been fully absorbed and eliminated from the body, which will leave one beer still in the system and thus the person will have a blood alcohol level of about 0.03.

(2) Second subject: 190 lbs. person drinks 3 twelve ounce beers and 3 shots of tequila (6 drinks total) starting at 7:00 pm and finishing the last drink of alcohol at 7:45 p.m. What is the person’s blood alcohol level at 8:00 pm? If you weigh 190 lbs one twelve ounce beer or shot will raise your blood alcohol about 0.02. So by 8:00 p.m. one of the drinks will have been eliminated which means there are still five drinks in the system which means the individual’s blood alcohol level will be approximately .08-.10. This level is over the limit of course and many forensic toxicologists will say that driving may be impaired at 0.05. or about half that amount.

The elimination of alcohol varies from person to person so the rate for one person may differ slightly from another. Also, if you are unsure of how many drinks you have then waiting an hour before driving will eliminate one drink. Be safe out there!