California Criminal Lawyer Blog

In most cases, the person arrested for drunk driving will have his driver's license confiscated by the officer if he (1) takes a breath test showing .08% blood-alcohol or higher, (2) gives a blood or urine sample which will be analyzed later, or (3) refuses to be tested. He will also be given a pink sheet of paper which serves as both a notice of suspension and a 30-day temporary license. (For out-of-state drivers, the license will not be seized and the suspension will only be of the privilege to drive within California.)

It is critically important to CALL THE California DMV WITHIN 10 DAYS OF THE ARREST to request a hearing to contest the suspension; failure to do so will result in the suspension taking effect 30 days after the arrest. Requesting a hearing will also result in an extension of the 30-day temporary license, usually for another month or two depending upon when the hearing is held. Nothing is lost by requesting a hearing and a good DUI attorney has a fair chance of getting the suspension thrown out.

The California Department of Motor Vehicles is a huge bureaucracy with all of the inefficiency and incompetence that one has come to expect. The division of the DMV responsible for the "APS" suspension of licenses is the Drivers Safety Office (DSO), with branch offices located around the state. It is at these offices that the hearings will take place, presided over by a "hearing officer" -- a DMV employee without legal training who will serve as both prosecutor and judge. Without an attorney experienced in such hearings, the chances of obtaining a "set-aside" of the suspension are not good.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

In most cases, the person arrested for drunk driving will have his driver's license confiscated by the officer if he (1) takes a breath test showing .08% blood-alcohol or higher, (2) gives a blood or urine sample which will be analyzed later, or (3) refuses to be tested. He will also be given a pink sheet of paper which serves as both a notice of suspension and a 30-day temporary license. (For out-of-state drivers, the license will not be seized and the suspension will only be of the privilege to drive within California.)

It is critically important to CALL THE California DMV WITHIN 10 DAYS OF THE ARREST to request a hearing to contest the suspension; failure to do so will result in the suspension taking effect 30 days after the arrest. Requesting a hearing will also result in an extension of the 30-day temporary license, usually for another month or two depending upon when the hearing is held. Nothing is lost by requesting a hearing and a good DUI attorney has a fair chance of getting the suspension thrown out.

The California Department of Motor Vehicles is a huge bureaucracy with all of the inefficiency and incompetence that one has come to expect. The division of the DMV responsible for the "APS" suspension of licenses is the Drivers Safety Office (DSO), with branch offices located around the state. It is at these offices that the hearings will take place, presided over by a "hearing officer" -- a DMV employee without legal training who will serve as both prosecutor and judge. Without an attorney experienced in such hearings, the chances of obtaining a "set-aside" of the suspension are not good.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.
CA DUI Guide

An attractive alternative to a jail term is electronically monitored "house arrest," or home detention. Authority for the home detention program can be found in Pen C § 1203.016:

• (a) Notwithstanding any other provision of law, the board of supervisors of any county may authorize the correctional administrator ... to offer a program under which minimum security inmates and low-risk offenders committed to a county jail ... may voluntarily participate in a home detention program during their sentence in lieu of confinement in the county jail. Penal Code § 2900.5(f) further provides for credit for time served towards any mandatory minimum jail sentence. Electronic house detention commonly involves periodic telephone checks, wearing a bracelet or anklet transmitter, or both telephone checks and wearing a transmitter. The restriction is not necessarily 24 hours a day, however: The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. [Pen C § 1203.016(f)]. Time is also usually given the detainee to shop for food, pick up cleaning, and pursue other necessary chores. Until recently, a sentencing court could, with the defendant's consent, order home detention. Currently, however, the court is limited to restricting or denying participation in the program; approval of participation in the program in lieu of jail rests with the sheriff or other county correctional administrator. In practice, however, and by statutory mandate, a sentencing judge's recommendation is usually given considerable deference. (e) The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. Home detention programs require the defendant to pay a private company to install and monitor the electronic equipment used to ensure his or her restriction to the home. Although the enabling statute says that "Inability to pay all or a portion of the program fees shall not preclude participation in the program" [Pen C § 1203.016(g)], the simple fact is that the companies supplying the equipment are in the business to make a profit and few counties are in a position to provide the funds. To learn more about this call our office and speak with one of our knowledgeable attorneys at (916) 447-7842. CA DUI Guide

Home detention programs require the defendant to pay a private company to install and monitor the electronic equipment used to ensure his or her restriction to the home. Although the enabling statute says that "Inability to pay all or a portion of the program fees shall not preclude participation in the program" [Pen C § 1203.016(g)], the simple fact is that the companies supplying the equipment are in the business to make a profit and few counties are in a position to provide the funds.

To learn more about this call our office and speak with one of our knowledgeable attorneys at (916) 447-7842.

CA DUI Guide

When a California driver is arrested for driving under the influence of alcohol, his driver's license is immediately confiscated by the police and he is served with the DMV's "Notice of Suspension". This one-page document (fine print on both sides) serves to (1) formally suspend the license, (2) provide a temporary driving privilege for 30 days, and (3) explain some aspects of the applicable law. Buried in this fine print on the back side is the most important legal provision: there is a right to an administrative hearing to contest the suspension and force the DMV to return the license -- but only if the individual or his DWI attorney contacts the DMV's local Driver Safety Office (DSO) and formally demands a hearing WITHIN 10 CALENDAR DAYS of the arrest. If the call is not made, on the eleventh day the right to contest the suspension is lost and it will begin 30 days from the arrest regardless of any possible defenses.

This immediate suspension is for either (1) having .08% or higher blood-alcohol (.01% for drivers under 21); (2) providing a blood or urine sample when the officer believes the eventual analysis will be .08% or higher; or (3) refusing to take a chemical test. This is referred to as an administrative suspension (or sometimes "administrative per se" or "APS" suspension), and is to be distinguished form a license suspension or restriction which may (and probably will) later occur in the criminal courts -- in addition to the administrative suspension. Although this may seem to constitute "double jeopardy" or multiple punishment, the courts in their infinite wisdom have decided that the first suspension is only an "administrative sanction", as opposed to the second suspension in court which is a true "punishment".

If the driver is from another state, the officer has no right to seize the license, as that document is the property of another state. Similarly, California has no jurisdiction to suspend a driver's license issued by another state. The officer can and will, however, issue a "Notice of Suspension" identical to that given California license holders; this acts only as a suspension of the right to drive (after 30 days) within the State of California. If there is a conviction, California (as a member of the Interstate Driver's License Compact) will notify the home state of that fact; that state will then usually suspend the license in the same way as if the person had been convicted in the home state.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

Administrative Hearing
The hearing officer will open the hearing by testing the tape recorder, then having each person present identify himself or herself. The hearing officer will then state the purpose of the hearing and recite the issues to be determined. The next step will be to identify and mark as exhibits the documents which will usually constitute the department's entire case. At a minimum, this will consist of the "officer's statement" signed under oath, containing evidence of driving and of a breath test, and the notice of suspension. Exhibit documents will usually also include the licensee's driving record, the arrest report and, if blood or urine was tested, laboratory certification. Exhibits may also include accident reports, and supplemental investigations. If the officer testifies and uses reports to "refresh his memory" which were not forwarded to the department, the hearing officer will probably make copies of those and introduce them as well.
California DUI lawyers will undoubtedly have objections to most of these documents. The hearing officer will rule on these objections -- overrule them -- and then admit them into evidence. It should be clearly understood by counsel that the hearing officer has no legal education, and so will simply not understand the objection in most cases, nor any statutory or case authority cited by counsel. The hearing officer will understand only the memorandums on legal issues periodically forwarded from Sacramento which present the department's official policy toward issues.
The hearing officer may attempt to call the licensee if he or she is present. If counsel does not want the client to testify, counsel can simply advise the hearing officer that the licensee is asserting his or her Fifth Amendment rights. Although there is some language in an old appellate decision stating that the licensee has no self-incrimination privilege [Goss v. Department of Motor Vehicles 264 Cal.App.2d 268, 70 Cal.Rptr. 447 (4th Dist.l968)], hearing officers will never take the extensive time and effort necessary to compel the testimony.
When the hearing officer has finished accepting his or her own documents into evidence, the officer will rest the department's case. If, however, the hearing officer realizes that an element of the case is missing, the hearing officer can request -- and grant -- a continuance.
Note: the law on this subject is unclear; it is at least arguable that there is no statutory authority for a continuance prior to administrative review of a decision without the licensee's consent.

To have any questions answered contact our office at (916) 447-7842
Information from CA DUI Legal Guide

California has two basic drunk driving laws, found in Vehicle Code section 23152, sections (a) and (b):
• 23152(a) It is a misdemeanor to drive under the influence of alcohol and/or drugs.
• 23152(b) It is a misdemeanor to drive with .08% or more of alcohol in your blood.
Note: In most cases, both the 23152(a) and (b) offenses will be charged. Even though there is only one act, the law says that a defendant charged with drinking and driving can be convicted of BOTH offenses -- but can only be punished for one (the punishments are identical). Vehicle Code section 23153 sets forth the "felony DUI" provisions where an injury results from the drunk driving, while Penal Code sections 191.5 and 192 describe the crime of "vehicular manslaughter" where there is a death.
Procedurally, you should be aware of certain legal rights you have -- rights which are commonly ignored by the police:
• There must be legally sufficient facts to constitute "probable cause" to stop, detain and arrest you.
• You should be advised that submission to field sobriety testing and portable field breath testing is not required by law.
• Once arrested, you must be advised of your constitutional rights -- the "Miranda" warning -- before any further questioning takes place.
• You must be given a choice of breath or blood testing; if you refuse, you must be advised of the legal consequences (the "implied consent" advisement).
• If a breath test is administered at the police station, since the breath sample is not saved, you must be given a chance to obtain a blood sample for later independent testing by your defense attorney.

To have any questions answered contact our office at (916) 447-7842

Information from CA DUI Legal Guide

What is a DUI?
DUI is an acronym that stands for Driving Under the Influence. What does "under the influence" mean? Drugs (whether legal, illegal, prescription or over-the-counter medications) and alcohol are known to affect or "influence" a person's behavior. Alcohol is a depressant, which can slow down a person's motor skills, therefore affecting driving ability. Drugs can be a depressant or a stimulant. A stimulant speeds up the body such as heart rate and metabolism and can also affect one's driving ability.
In every state in the U.S. it is illegal for a person to be operating a motor vehicle while under the influence of drugs or alcohol. You can be charged with a DUI if police have reasonable evidence that your driving ability was affected by drugs or alcohol. You can also be charged with a DUI if you are found to be driving with a blood alcohol content above the state's legal limit.
What is a DWI?
There are some states such as New York that refer to drunk driving as DWI or Driving While Intoxicated. A person is intoxicated when he or she has consumed drugs and/or alcohol to the point where it affects their mental or motor skills. Some common symptoms of intoxication include slurred speech, fumbling for items such as a driver's license, difficulty maintaining balance, red eyes and a flushed face.
If police consider you to be intoxicated, they will ask you to submit to a field sobriety test and a chemical test. A field sobriety test (like the Walk and Turn) checks your mental and motor skills to see if you are exhibiting signs of intoxication. A chemical test (blood, breath or urine) measures a person's blood alcohol content. If you are over the state's legal limit (.08%) you can be charged with DWI.
Other states that refer to drunk driving as DWI are Alaska, Arkansas, Connecticut, Louisiana, Missouri, Nebraska, New Jersey, New Mexico, Texas and West Virginia.
While DWI and DUI essentially mean the same thing, the penalties vary from state to state. Other acronyms include: OWI: Operating While Intoxicated (Indiana, Iowa); OUI: Operating Under the Influence (Massachusetts, Rhode Island); OVI: Operating a Vehicle While Intoxicated (Ohio); DUII: Driving Under the Influence of Intoxicants (Oregon).

Information provided by www.drunkdrivinglaws.org

If you have been arrested for drunk driving in California you will face both administrative as well as criminal penalties. The outcome of the any DUI case in California depends on many factors that come up during the arrest and ensuing proceedings. For example if you are already on probation for a prior DUI and refuse to submit to a breathalyzer you could face higher administrative action against you. Because of the complexity of a DUI case you should have an attorney on your side to protect your rights.

Administrative penalties you could face:

- 1st time DUI - license suspension for at least 4 months.
- Courts will order mandated completion of alcohol assessment and treatment in order for you to get your license back at your expense.
- New law affecting Sacramento drivers - it is now mandatory to install at your expense an ignition interlock device at your expense.
- When your license is reinstated it will be reinstated with restrictions and you will be required to obtain SR-22 insurance coverage at your expense.

Potential Criminal Penalties:

- 1st Offense - Conviction carries a mandatory incarceration in County jail of 2 days.
- Fines incurred upon conviction range from $2500-$3000, but completion of sentence including adherence to probation requirements and other items (administrative penalties) will incur additional expenses.
- DUI convictions can be counted as priors for a period of 10 years.

California does allow for reduction of DUI charges. This involves negotiations with the district attorney and if there was a blood draw, the possibility of retesting your blood. A Sacramento DUI attorney is best equipped to help accomplish this goal.

Continue reading "DUI - First Offenses and what you could face" »

White collar crimes in Sacramento are considered to be non-violent and intended to reap monetary benefits.

These can vary and range from identity theft to embezzlement to Medicare and Medi-Cal fraud and computer crimes. All are intended to make money, but don't use violence or intimidation, such as robbery, to accomplish the goal.

The consequence of being charged with these types of crimes is that not only do they come with lengthy prison terms if a person is convicted, but they also can lead to restitution. Restitution is when a judge orders a certain amount of money to be paid back to the victims after a defendant has been convicted.

Sacramento criminal defense lawyers have seen many situations where a person is convicted for a while collar crime, sent to prison and then ordered to pay back restitution upon their release. What judges and prosecutors don't take into consideration is that after not working for months or years and still having outside bills, such as a mortgage, a family's cost of living expenses and others, they will come out of prison with little money.

And with a conviction, they have less of a chance of finding work, especially in this difficult economy, where jobs are scarce. With the nation's economy struggling, some people have turned to scams and schemes that are designed to help them profit. One major area of that is in mortgage fraud.

As The Sacramento Bee recently reported, three men from Elk Grove pleaded guilty in connection with a mortgage fraud scheme. Prosecutors alleged they changed their names to Muslim-sounding names in order to obtain new credit and conceal their poor credit histories.

Homes were purchased with these new identities and after the houses fell into foreclosure, they would legally change their names again. They admitted during a plea hearing that they changed their names and lied about their income levels and employment histories on loan applications.

Another prevalent white collar crime that has emerged in recent years has been the "pill mill." In these cases, doctors, pharmacists and other heath care professionals have been under the close eye of law enforcement.

In most situations where these crimes have been committed, doctors are over-writing prescriptions to people who are filling the prescriptions and illegally selling the pills to people who don't have prescriptions. As part of the scheme, doctors and pharmacists are getting a cut of the profit. Many times, Medicare or Medi-Cal is being billed for the prescriptions, which constitutes fraud on those programs as well.

In any of these white collar crimes, there are defenses. When a large-scale scheme is alleged, there are typically many people arrested. And many times, not everyone knows each other. Less-involved participants may have just been taking orders from bosses and had no idea there was an illegal scheme going on. Doctors may not have known that the patients were fake and scheming to sell the drugs. In mortgage fraud cases, title companies and loan servicers may not have been aware of a scheme run by a real estate professional.

The prosecution has a heavy burden of proving each person arrested participated in the scheme. And proving the amount that was lost is also a challenge. A Sacramento criminal defense lawyer will work to compile all evidence disputing the charges in order to ensure the defendant has a fair trial.

Continue reading "White Collar Crimes in Sacramento Can Result in Prison Time, Restitution" »

Famous anti-war mom Cindy Sheehan was arrested in Sacramento recently along with 18 other demonstrators at Cesar Chavez Park, The Sacramento Bee reports.

The 53-year-old was arrested on a charge of unlawful assembly in the park and failing to follow police orders to disperse. Occupy Sacramento is a planned protest in conjunction with the Occupy Wall Street and now nationwide and worldwide protests based on capitalism and greed that have led to financial problems across the globe.

Unlawful assembly charges in Sacramento or other misdemeanor charges are often defended by the suspects themselves, who have no experience in the law. Sometimes, judges will attempt to work with the suspect, by explaining the charges and some points about the criminal justice system. But not always.

While misdemeanor charges typically result in fines and fees or possible probation, it is possible that a jail term could be imposed, depending on the circumstances. These charges can show up on background checks and can lead to future problems, including loss of a job or disqualification from getting a job or problems with college or scholarship applications.

In some cases, police can charge someone with a misdemeanor only to see prosecutors review the case and change the charges to a felony. This would significantly enhance the possible penalties and certainly require the skills of an experienced Sacramento criminal defense lawyer.

Even in situations where felony charges aren't filed, an attorney can work to get the charges dropped or penalties lessened from possible jail time to probation or simply community service.

According to California Penal Code 407, unlawful assembly simply means when two or more people assemble to conduct an unlawful event, whether violent or if they have been warned to disperse.

According to The Sacramento Bee, the 53-year-old Sheehan was among more than a dozen supporters arrested recently. Since the protests started in early October, 58 people have been arrested at 9th and I streets across from City Hall.

Among those arrested were a person conducting a hunger strike, a person in a wheelchair and others who were protesting peacefully. Unless a person has an extensive criminal history or is a flight risk, most protesters who were arrested likely were released from custody and told to appear in court in a few days.

While it all seems like a minor situation, anyone accused of a crime faces a serious situation. Even if the alleged charge is only a misdemeanor, it is a mark on a person's criminal history record that may never go away.

In the moment, a protester might not think about the repercussions, but if their political leanings change, they want to consider a different career path or have a different outlook on life after many years go by,convictions could prove haunting.

Given the abundance of information on the Internet and the ability for people to access records and police mug shots, a person's face and information could be memorialized on the web forever. But fighting the charge, whatever it is, can preserve one's future and ensure a one-time blemish doesn't lead to a lifetime of problems.

Continue reading "Occupy Sacramento Leads to 19 Arrests, Including Cindy Sheehan" »

A 29-year-old man was shot and killed recently when he attempted to steal marijuana plants from the backyard of a North Sacramento house, The Sacramento Bee reports.

Detectives are investigating whether to file murder charges in Sacramento against the alleged shooter.

This case is eerily similar to a situation last fall in Fresno, where a 40-year-old man was killed when he tried to steal plants from a medical-marijuana garden. The 41-year-old shooter was tried, convicted and sentenced to 28 years in prison, The Fresno Bee reported at the time.

Most states have a "castle doctrine" or "stand your ground" law that allows homeowners or others who are threatened to use deadly force. But in cases where a theft is alleged, that defense may not be possible. Forms of self-defense may apply in murder cases, but only an experienced Sacramento criminal defense lawyer can sift through the facts and provide a strategy that will bring out the truth.

According to the newspaper, the 29-year-old was killed after two residents saw him attempting to steal plants from a home on Morey Avenue. When officers arrived, they found the man dead of a gunshot wound. Police said he also had blunt trauma injuries to his upper body.

The two residents were awakened by a noise in the backyard. One of the men confronted him after seeing the man trying to steal plants. Police say they are investigating the case as a homicide, and that the alleged thief was unarmed. Detectives are trying to determine whether the residents acted in self-defense or were in fear of their safety when they spotted the man in their backyard.

This will be a difficult case for police to handle because without witnesses other than the alleged shooters, they may not be able to tell if self-defense was a factor or not. Even if the man was unarmed, being awaken in the middle of the night by someone trying to steal from you can be frightening. And if the homeowner doesn't know whether the person is armed or not, how can police say they weren't in fear?

In the aforementioned Fresno case, the facts of the case did him in. While he claimed he was acting in self-defense, evidence showed the victim was fleeing the property after the man came out of his house with a shotgun. The victim in that case was killed while in a pickup truck.

While many in California have fought for years to make and keep marijuana use for legal, medical purposes a reality, there have been many issues. Among them, legal pot-plant growers who have been victimized by people trying to steal their plants to potentially sell the weed on the black market.

But those who attempted to defend their plants through the use of guns may not always be able to use self-defense in an attempt to avoid a murder or manslaughter conviction in California. It may be possible, but it depends on the facts. Consult with an experienced Sacramento criminal defense lawyer, a former prosecutor, who knows how the laws work in order to make them work for you.

Continue reading "Pot Thief Fatally Shot in Sacramento; Alleged Shooter Could Face Murder Charge" »

The Sacramento Bee is reporting that a Craigslist ad led to a burglary arrest in a vacant Roseville home.

Burglary charges in Sacramento vary depending on many circumstances specific to each case. According to California Penal Code 458, burglary is entering a house or other structure with the specific intent to commit larceny or another felony.

That means the state must prove that a person or persons broke into a dwelling and it was their intent to steal from the homeowner, business owner or whoever owns the property. But they must show intent and that's first-degree burglary. Second-degree burglary is any other kind of burglary. And the stakes are high -- a defendant faces two, four or six years in prison for first-degree burglary and possibly a year in prison for second-degree burglary in Sacramento.

What sometimes happens in these situations is if officers find one person they believe committed a burglary, they then look at other area burglaries to try to determine if there are similar patterns in order to clear the glut of open burglary cases that are on the books. That can lead to a person facing multiple, and sometimes dozens, of burglary charges. Whether a person faces one charge of burglary or several charges of burglary, they must be well represented. Consulting with an experienced Sacramento Burglary Defense Lawyer should be the first step for a defendant facing these serious charges.

In this case, a Sacramento man has been arrested after police allege he broke into a vacant home that was listed for sale on the popular website Craigslist. The alleged victim told police a water heater was taken from the home.

The alleged burglary happened in Roseville, where police say a house that was unoccupied had a new, tankless water heater, still in its box stolen from the garage, along with tools the contractor was using.

The contractor, who had been in charge of remodeling the house, searched the same Craigslist site for the stolen property and found one that was listed for sale that matched the item stolen from the garage.

He contacted police and then contacted the person who put the water heater for sale on the website in order to meet to buy it. Officers met the seller, confirmed the water heater was the one stolen and arrested a 37-year-old man.

The police department reports there were burglary tools and a list of area homes for sale inside the man's truck. He is charged with suspicion of burglary, possession of stolen property and possession of burglar's tools.

What must be considered in this case is the connection between the house and the man who was trying to sell the water heater. If there are no witnesses who can 100 percent identify the man as the one who broke into the garage, the case may be tough for prosecutors.

For one, if there's no nexus -- or link -- between the burglarized house and the man it may be tough to prove he was the one who broke into the garage. Maybe he was shopping for a water heater and bought one that he didn't know was stolen. With Internet access on people's phones, a purchase could have been made very easily. It's also unclear from the news report how police connected the stolen water heater to the house.

There are possible explanations to the list of vacant homes in the area, as well. Simply suspecting a person was involved in a crime isn't the same as proving they were.

Continue reading "Craigslist Ad Leads to Sacramento Burglary Charge" »

As northern California drivers, most of us have had the unfortunate run-in with a friendly or not so friendly police officer who issued us a ticket to appear in court for a traffic violation. In most counties including Sacramento, Alameda and San Francisco the court permitted us to pay the inexplicably high fine through mail. For an additional amount you could even go to traffic school and have your case dismissed upon completion. Most of the time traffic school would make the court conviction virtually disappear, dismissing the case. Even though the wallet was a bit lighter most of us were glad to have the chance to go to traffic school and get the case dismissed. No one would have to find out about our conviction, not the DMV and not our car insurance company.

Under the current law, courts allow motorists cited with certain moving violations to attend traffic school as part of their sentence or offer outright dismissals upon completion of the traffic school. The legislature noticed that often times people would take advantage of this traffic school "loophole" and attend traffic school more than once every eighteen months as allowed by the law. The problem was that since the violation would be completely dismissed upon completion of traffic school other courts would have no way to know the reason behind the dismissal.

A new law, AB 2499, will take effect on July 1, 2011 and it will bring changes to the traffic school system. The main change is that upon completion of traffic school, a driver's DMV record will still show a conviction instead of a dismissal. It does provide however that upon completion of traffic school no points will be counted against the driver's record. The new law also removes any confidentiality of the conviction if the person holds a commercial driver's license, the violation occurred in a commercial vehicle, or the conviction places more than one point on the driver's record.

Under the new law drivers who receive a citation for a moving violation that carries one point can still attend traffic school in order to prevent the insurance companies from finding out about the violation. Since most insurance companies do conduct a periodic DMV record check for the people they insure, it is difficult to imagine how DMV will keep the conviction information away from the curious eyes of the insurance companies. After July 1, 2011 if you believe that your insurance company raised your rates based on a conviction for which you completed traffic school, it is advisable that you contact a traffic attorney.

The new law AB 2499 not only changes the entity in charge of keeping track of traffic school attendance but also tightens up the requirements for traffic school administrators.

Continue reading "Sacramento and Bay Area Traffic Attorneys: Traffic School No Longer Dismisses Your Ticket" »

If you have been arrested for one or more domestic violence charges in Sacramento, you probably have a multitude of questions about what will happen and what to expect. Each case will have a large number of variable factors that will determine what will likely happen. Unfortunately all cases have the potential of ruining lives of adults and children. Here is an overview of what to expect following a domestic violence arrest in Sacramento.

Domestic Violence Arrest

Depending on your case, you may have a good idea why you were arrested or you may have no clue why officers took you away in handcuffs. Unfortunately law enforcement policies regarding domestic violence arrests are rather rigid and don't account for the fluidity of each relation dynamic. If officers are called out on a domestic violence call they will typically arrest the dominant aggressor. If no restraining or protective orders are in place, the officers do have a choice of whether to actually effectuate an arrest. They must however inform the alleged victim of his or her right to make a citizen's arrest. If there is a valid restraining order in place and the restrained party is in clear violation, the officers are mandated to make an arrest. If each party has protective orders in place, California Penal Code section 836(c) mandates the arrest of the dominant aggressor. To determine who the dominant aggressor was, law enforcement is to consider:

1. the intent of the law in protecting true victims of domestic violence from ongoing abuse
2. whether there are threats that create a reasonable fear of injury
3. whether there is a history of domestic violence between the persons involved, and
4. whether either person involved in the disturbance acted in legal self-defense

Booking and Bail in Domestic Violence Cases

After you are arrested for domestic violence charges within the county of Sacramento you will likely be taken to the Sacramento County Main Jail, downtown Sacramento. There you will be taken through the booking process. If the jail deputies determine that you are intoxicated they will place you in the "drunk tank" and wait for you to sober up. After being processed in, you will be taken to a jail cell. During the booking process you will typically be allowed to make a phone call and contact a bail bond agency. Your bail amount will likely be based on the charges you were arrested on. The Sacramento court provides a bail schedule that is available to the public. In some circumstances, the arresting officer may request an upward departure from the bail schedule. This is typically done in cases where the officer believes that you may be a flight risk. An on-duty judge will have to approve the upward departure. A bail agency will typically charge you 10 percent of the bail in order to post it for you.

First Court Appearance in Domestic Violence Cases

The first appearance in a domestic violence case is the arraignment. This is where the judge will inform you of the nature of the charges filed against you. You will also be asked whether you have hired an attorney, intend on hiring an attorney, or will opt for a public defender if you cannot afford a lawyer. In Sacramento the judge will typically not request that you enter a plea at arraignment. At arraignment you will likely also be presented with a domestic violence protective order signed by the judge. This order prevents you from contacting the alleged victim, from coming within a certain number of yards from him or her, and from owning or possessing any firearms. This is a temporary order that will cover the time period when the case is pending in court. The order also allows the named victim to record any unwanted contact or conversation with you. The order does not typically prevent the named victim from making contact with you.

Settlement Conference in Domestic Violence Cases

The second court hearing is typically a settlement conference. The term used in Sacramento county is "Superior Court Review" or SCR. This is typically the first chance for your domestic violence lawyer to discuss the case with the district attorney in the presence of the judge. These discussions happen in the judge's chambers. An offer is typically made by the district attorney's office and that offer is negotiated with the help of a fair judge. Because each case is different it is difficult to ascertain whether it will be a good offer or a bad one without looking at numerous factors. A good domestic violence attorney will be able to analyze your case and make an individual determination of whether an offer is fair or whether you need to fight the case to trial if needed. There can be one or more settlement conferences. If a felony case does not settle at the settlement conference stage it will typically be set for a domestic violence preliminary hearing. A misdemeanor domestic violence case will be set for trial.

Domestic Violence Preliminary Hearing

A preliminary hearing in a felony domestic violence case is a hearing before a different judge where the district attorney's office will have to produce some evidence to convince the judge that there is a reasonable possibility that the crime was committed. The standard of proof is low and the defense will typically not present any evidence so as to not show their hand before trial. The named victim may or may not be called to testify. Because hearsay is allowed at a preliminary hearing in California, the DA may choose to simply have the investigating officer testify and recite another witness' statements. Due to the very low standard of proof required in a preliminary hearing, in most cases a defendant will be "held to answer." The case will then be set for jury trial.

Domestic Violence Jury Trial

A jury trial is the culminating event in a domestic violence case. The named victim will have to be called to testify and his or her credibility will be subject to examination and cross examination. At the jury trial you, as the accused, will have the opportunity to testify. There is however no requirement that you testify or present any evidence and you may choose to rely on the prosecutor's failure to present enough evidence to convince a jury beyond a reasonable doubt. It is advisable that you hire an attorney experienced in domestic violence cases to represent you at a jury trial.

Continue reading "What to Expect After Being Arrested for Domestic Violence in Sacramento" »

Most people know that sinking feeling of seeing a bright red light shining in the rear view mirror but unless you're a criminal defense lawyer you will likely not know or at least not reflect much on those constitutional rights you are entitled to at the time you're contacted by the police. Because we believe that its always best to be informed we decided to list out your rights and at the same time your responsibilities when encountering local, state or federal law enforcement. In this series we will examine your rights and responsibilities from a criminal defense perspective as well as from a law enforcement perspective. While some rights and responsibilities are commons sense, others will surprise you.

1st Right: You have the right to say absolutely nothing.

If you've ever watched a police television show or even a police action movie, you probably heard a police officer recite the "Miranda rights" to someone in handcuffs. The most memorable part of the Miranda rights is the first sentence. Yet no matter how many times people are exposed to that first sentence, they often tend to forget it or ignore it in situations where it really matters: You have the right to remain silent!

The police hope that you forget or ignore that right and that you provide a statement. They often go to great lengths to obtain such statement. You may even be asked: "If you're really innocent, why don't you want to talk? We just want to hear your side of the story." The only reason the police want to hear your side of the story is so that they can turn around and use it against you in court. Hence the second Miranda warning sentence: "Anything you say can and will be used against you in a court of law." And no, unfortunately its not considered hearsay. Reality is that rarely will your statement clear you. Most often, in the absence of a defense attorney, police officers will hope to get as much information out of you as possible. Inevitably and naturally your statement to the police will vary in minor detail from one you may give later to other officer or to a jury of your peers on the stand at a trial. The prosecutor will take full advantage of that, painting you as a person who is twisting the truth. In fact, one of the prosecutor's favorite questions to ask on cross examination when faced with differing statements is: "Mr. Defendant, I noticed that your statements were not exactly the same, were you lying when you gave the statement to the police, or are you lying now in front of the jury?"

While a good criminal defense attorney can hopefully explain the natural difference in two statements, the best advice is not to give a statement to law enforcement. If a statement was given to the police or other law enforcement and you were subsequently arrested, all is not lost. Do not provide additional statements to law enforcement. Better yet, do not speak with anyone about your case before you speak with a defense attorney.

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