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b2ap3_thumbnail_TheMlnariklawgrou-Memorial-Day-2017.jpgNational Military Appreciation Month reaches its peak this Memorial Day weekend, as the nation remembers the individuals who gave their lives while serving their country. There are actually two national holidays, Memorial Day and Veterans Day, which honor the sacrifice of Americans who served in the U.S. Armed Forces, and celebrate our nation’s values of duty, honor and civic responsibility. Interestingly, and likely because these holidays appear to celebrate the same thing, many people confuse Memorial Day and Veterans Day. It is important to understand their difference.

Memorial Day is a day for remembering and honoring military personnel who died in service of their country, particularly those who died in battle or as a result of wounds sustained in battle. While those who died are also remembered, on Veterans Day, this holiday is designated to thank and honor all those who served honorably in the military — in wartime or peacetime. In fact, Veterans Day is largely intended to thank living veterans for their service, to acknowledge their contributions to our national security, and to underscore the fact that all those who served — not only those who died — have sacrificed and done their duty. So you see, the holidays, though similar in the way they commemorate the sacrifices of thousands of American service members, are quite distinctly different and, as such, have different histories.

Memorial Day is the older of the two holidays, having its roots in the Civil War. First known as “Decoration Day,” it was instituted by former Union Army Maj. Gen. John A. Logan to honor those who died in the armed forces. The first official observance of Memorial Day was May 28, 1868, when flowers were placed on the graves of Union and Confederate soldiers at Arlington National Cemetery.
With General Orders No. 11, Logan designated May 30, 1868, “for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country,” and to conduct special services as circumstances permitted. He declared, “Let no vandalism of avarice or neglect, no ravages of time, testify to the present or to the coming generations that we have forgotten, as a people, the cost of free and undivided republic.” He also asked that the nation renew its pledge to assist the soldiers’ and sailors’ widows and orphans.

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b2ap3 thumbnail Mlnarik Law Patricks dayWhen advising clients on legal challenges, there are two components to every piece of advice: the legal and the practical. Advice on avoiding a fine for public intoxication is no exception to this principle. This St. Patty’s Day, here is what you need to know about drunk in public laws in California, no matter where you party.

First, the legal: Public intoxication in California is restricted by California Penal Code §647(f). In order to obtain a conviction, the prosecutor must prove that you were willfully under the influence of drugs, alcohol and/or a controlled substance (including prescription medication) and in a public place. While this seems broad, there are a number of limitations to the enforcement of this provision that you can leverage to defeat your charge or reduce your penalties.

It is worth noting first that the law requires the intoxication to be willful. This means that if one were drugged against their will, such as by ingesting a date rape drug, they cannot be convicted under §647(f). Also, the law requires that you be in a public place. This includes public property (sidewalks, streets, parks) and private property open to the general public (such as nightclubs, malls and airports). This also means that if police discover you in a private place, such as your home, and bring you into a public place (the sidewalk directly outside) there can be no conviction under §647(f).
Furthermore, there are constitutional requirements that limit enforcement. Under the Fourth Amendment, the police need reasonable suspicion based on articulable facts to stop you. They can’t just pull you off the street and question you about alcohol usage. They need to be able to testify that you were stumbling or causing a disturbance in a manner that made you appear intoxicated in order to stop and test you. Once they’ve stopped you, they need probable cause to issue a citation and/or arrest you. They usually accomplish this by performing a field sobriety test. If any of these defenses or situations applies to you, be sure to raise them. The mere act of raising them, if the prosecutor finds them to be credible, is likely to result in dismissal. The DA’s office and the police do not have the resources to be fighting questionable §647(f) cases.

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As we come face to face with another changing of the guard and our next president enjoys his inauguration, some are preparing to survive while others prepare to thrive. I can’t help but think it is all a state of mind. After all, the President of the United States has very little influence over our day-to-day activities, and whether we start the day believing it is going to be great or not, the choice is ours. We can dwell on the past election and the propaganda that motivated (or perhaps didn’t motivate) voters, or we can look ahead to the future, count our blessings and make the most of what we have been given.

      Of course there will always be those with marketing strategies that influence what we buy, sell and consume. Ultimately it is up to us to look out for our own interests. The freedoms we enjoy are great and the power we have to independently make choices of our own can result in our prosperity or our own demise.

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