A fairly recent California Appellate Court decision should be hailed as a landmark case for pot smokers. In People v. Hua, (158 Cal. App. 4th 1027) a court ruled that law enforcement must have a warrant to enter a private residence when the only evidence of a crime being committed is for simple possession of marijuana.
In Hua, two police officers walked up to an apartment in response to a complaint of a noise violation and saw, through a window, four college kids sitting around a table passing around a couple of blunts. The police officers knocked on the door and asked to come in. The kids said no but the officers entered anyway. In the apartment, the police found 46 marijuana plants. The young man who lived at the apartment, Hua, was arrested and charged with cultivation of marijuana.
A little legal background info at this point: As you may know, the Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, meaning police must have a warrant to enter any private area. Any evidence obtained from an illegal police search is suppressed, and may not be used against a defendant in court. However, there are several exceptions to the warrant requirement. For example, if the police reasonably believe that evidence will be destroyed if they don’t enter immediately, they may legally do so.
And that was the excuse the officer in Hua used; if he had not entered immediately (and without a warrant), the evidence of pot would have been destroyed. However, possession of less than 28.5 grams of marijuana is at most a misdemeanor (and often charged as merely an infraction), and a non-jailable offense. The Appellate Court cited the 1984 Supreme Court Case Wisconsin v. Welsh (466 U.S. 740), which stated that “entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor.” The court in Hua reasoned that possession of marijuana was exactly the sort of minor crime described in Welsh.
The officers in Hua, when looking through the window, saw evidence of only the crime of possession of less than 28.5 grams of weed (they did not notice the dozens of marijuana plants when they first peeked in). The court determined that the minor seriousness of the crime was outweighed by the protection given to citizens by the Fourth Amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The entry by the officers was illegal, and thus all evidence seized from the illegal search was thrown out. Despite being found with 46 pot plants, Hua got off scot-free.
What does this mean? Well, it basically means you can smoke weed on your balcony while smiling down at a cop and he can’t do a thing, short of leaving to find a judge to sign a warrant. This case is truly a landmark victory for pot smokers everywhere.
However, that doesn’t mean that smoking pot in plain view of an officer is a good idea; always use common sense! Just because a warrantless entry by law enforcement is illegal doesn’t mean it won’t be done. And while you may have law as determined by the Hua court on your side, it’s definitely not worth going through the legal process to be proclaimed innocent. So if you choose to smoke marijuana, be sure to do so carefully. And if you are ever arrested for any sort of drug related crime, you should contact the Law Offices of Scott R. Ball today.
9/4/09
"Bail" Explained
After a person is arrested and taken into custody, at the first appearance before a judge they have a right to a “bail hearing” where the amount of bail is set. When a defendant makes “bail” this means they are giving a specified amount of money to the court in exchange for being let out of jail with a promise that they will return to court at their next scheduled appearance. If the defendant returns to court as scheduled, the bail is exonerated and the full amount of money is returned. However, if the defendant does not return as promise, the bail is forfeited and the money is kept by the court.
Most people don’t have large amounts of cash lying around, so the most common way for a person to make bail is through a bail bondsman. Generally, a bondsman will charge 10% and require some sort of collateral to post bail on behalf of the defendant. For example, if the bail is $10,000 (the common amount for a second DUI charge), the defendant must give the bondsman $1,000 plus some form of collateral, such as the pink slip to their vehicle. If the defendant does not skip out on bail and returns to court as scheduled, the defendant will receive the collateral back and the bondsman will receive the $10,000 back from the court and keep the 10% fee.
A defendant has a right to a “reasonable” bail. Usually, the judge initially sets bail according to a pre-determined county-wide bail schedule. For example, in Orange County, the charge of rape carries a $100,000 bail, grand theft is $20,000 or the amount stolen, and a first time DUI is $2,500.
However, a judge may deviate from the bail schedule based on many factors relating to the facts surrounding the crime charged and the particular defendant. For example, a defendant charged with a first time DUI who has no criminal history and extensive ties to the community such as a family, job, and property ownership, will likely be able to have his bailed reduced to zero. When bail is reduced to zero, the judge is letting the person off “on his own recognizance” or “O.R.”
A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that a defendant has a long criminal history, is a flight risk, or may be likely to harm another person while out of custody. When a person is facing life in prison or the death penalty, bail will always be denied.
When a person is arrested and taken into custody, the most pressing concern for most is getting out jail. However, it is often a wise decision to make your first call to an attorney and not the bail bondsman. This is because a skilled attorney will be able to negotiate on your behalf the possibility of lowering your bail, and may be able to get you release O.R. In addition, your attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.
For more information or a free and confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
Most people don’t have large amounts of cash lying around, so the most common way for a person to make bail is through a bail bondsman. Generally, a bondsman will charge 10% and require some sort of collateral to post bail on behalf of the defendant. For example, if the bail is $10,000 (the common amount for a second DUI charge), the defendant must give the bondsman $1,000 plus some form of collateral, such as the pink slip to their vehicle. If the defendant does not skip out on bail and returns to court as scheduled, the defendant will receive the collateral back and the bondsman will receive the $10,000 back from the court and keep the 10% fee.
A defendant has a right to a “reasonable” bail. Usually, the judge initially sets bail according to a pre-determined county-wide bail schedule. For example, in Orange County, the charge of rape carries a $100,000 bail, grand theft is $20,000 or the amount stolen, and a first time DUI is $2,500.
However, a judge may deviate from the bail schedule based on many factors relating to the facts surrounding the crime charged and the particular defendant. For example, a defendant charged with a first time DUI who has no criminal history and extensive ties to the community such as a family, job, and property ownership, will likely be able to have his bailed reduced to zero. When bail is reduced to zero, the judge is letting the person off “on his own recognizance” or “O.R.”
A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that a defendant has a long criminal history, is a flight risk, or may be likely to harm another person while out of custody. When a person is facing life in prison or the death penalty, bail will always be denied.
When a person is arrested and taken into custody, the most pressing concern for most is getting out jail. However, it is often a wise decision to make your first call to an attorney and not the bail bondsman. This is because a skilled attorney will be able to negotiate on your behalf the possibility of lowering your bail, and may be able to get you release O.R. In addition, your attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.
For more information or a free and confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
9/1/09
Sentencing Alternatives to Jail Time
If you are facing the possibility of jail time, there are actually many sentencing alternatives that may be available to avoid any actual time behind bars. While the availability of such programs vary greatly from county to county, the following options are often possible:
1. Home Electronic Confinement – This type of sentencing requires a person to remain at home but allows you to leave to perform your normal activities such as attending work or school, court or DMV appointments, caring for dependants, or shopping for necessities. Electronic confinement can be arranged by either the probation department or a private company. There is generally a nominal cost associated with using this program.
2. CalTrans Work – This is a sentence often given in lieu of jail time. CalTrans are the crews wearing orange vests you see as you drive down the freeways in California. A court may allow a defendant to work on a CalTrans crew instead of going to jail. This can be hard work, but is often a welcome alternative to jail time.
3. Community Service Work – Similar to the CalTrans program, each court has a separate office responsible for assigning community service in lieu of jail time. An individual must be approved by the prosecutor and judge to perform community service work. Generally, 8 hours of community service for an approved community organization converts to 1 hour of jail time. Community service may also be available to pay off fines ordered by the court.
4. Work Furlough – This privileges means that during the day you are allowed to go out and work at your regular job and after work, you are required to spend the remainder of the evening back in jail. While you do remain incarcerated, this option will allow you to keep your job.
5. Private Jail - In some instances, where the judge requires that you serve actual jail time, many people choose to serve their sentence in a private jail facility. This alternative can be somewhat costly, however, in a private jail, the facilities are much nicer and work furloughs are also more likely to be available.
If you are facing a jail sentence, it is important to have an attorney on your side to explore the possibilities of alternatives to time spent in the clink. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
1. Home Electronic Confinement – This type of sentencing requires a person to remain at home but allows you to leave to perform your normal activities such as attending work or school, court or DMV appointments, caring for dependants, or shopping for necessities. Electronic confinement can be arranged by either the probation department or a private company. There is generally a nominal cost associated with using this program.
2. CalTrans Work – This is a sentence often given in lieu of jail time. CalTrans are the crews wearing orange vests you see as you drive down the freeways in California. A court may allow a defendant to work on a CalTrans crew instead of going to jail. This can be hard work, but is often a welcome alternative to jail time.
3. Community Service Work – Similar to the CalTrans program, each court has a separate office responsible for assigning community service in lieu of jail time. An individual must be approved by the prosecutor and judge to perform community service work. Generally, 8 hours of community service for an approved community organization converts to 1 hour of jail time. Community service may also be available to pay off fines ordered by the court.
4. Work Furlough – This privileges means that during the day you are allowed to go out and work at your regular job and after work, you are required to spend the remainder of the evening back in jail. While you do remain incarcerated, this option will allow you to keep your job.
5. Private Jail - In some instances, where the judge requires that you serve actual jail time, many people choose to serve their sentence in a private jail facility. This alternative can be somewhat costly, however, in a private jail, the facilities are much nicer and work furloughs are also more likely to be available.
If you are facing a jail sentence, it is important to have an attorney on your side to explore the possibilities of alternatives to time spent in the clink. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
8/26/09
Defending a Charge of Driving Under the Influence: Challenging a Breath Test
If you have been arrested for driving under the influence and a breath test was used to determine your blood alcohol content (BAC), it is important to be aware of possible defenses to the use of such a test to prove you guilty of a DUI. Possible defenses include, but are not limited to, the following:
1) Inadequate or broken observation period. In order to properly read your BAC by a breath test, the testing officer must observe you continuously for at least 15 minutes before taking a sample. If you belch, vomit, or regurgitate gas in your mouth before the test, your BAC may read inaccurately high. If the officer has not observed you continuously for 15 minutes prior to measuring your BAC, it will be impossible for him to say that you did contaminate your own breath test.
2) Something in your mouth causes an inaccurate reading. Common items such as cough drops, breath mints, or chewing tobacco may remain in your mouth when a breath test is administered and can contaminate the results.
3) Your own personal medical history. If diagnosed prior to your arrest for DUI, many conditions, such as gastric reflux disease, intestinal problems, diabetes, and respiratory problems, can be used to show the likelihood of an inaccurate BAC reading from a breath test.
4) Your own personal dental history. Gum disease, gingivitis, and pockets around the roots of your teeth, as well as dentures or bridgework may trap alcohol in your mouth and contaminate a breath sample.
5) Your behavior or actions do not match test results. If there are witnesses, video tape, or observations by officers that suggests you were not intoxicated, it may be possible to challenge the readings from a breath test.
6) Rising blood alcohol level. If your first breath sample registers slightly over the legal limit, and a second sample taken later is higher, it is clear your BAC is rising. If this is the case it may be possible to argue that, at the time you were driving, your BAC was not over the legal limit.
7) Inexperience or incompetence of the arresting or testing officer. If the officer who arrested you or took your breath sample is not trained in the proper procedure or fails to follow protocol it may be possible to have the results of the improperly administered breath test thrown out.
8) Accuracy of the breath test machine. An artificially high reading can result from interference with the circuitry of a machine due to radio interference, shared power sources, or smoking in or near the machine.
9) Irregular samples. Consecutive BAC readings that vary a great deal can be used to challenge the accuracy of breath samples.
10) Statutory time limit. The prosecution must prove that the breath sample was obtained within three hours of the time you were driving in order to invoke the presumption that you were intoxicated at the time you were driving.
These are just a few of the many defenses that may be available to you if you have been charged with a DUI on the basis of a breath test. Of course, countless more defenses are available depending on the circumstances of your case. Contact the Law Offices of Scott R. Ball today to discuss your case and determine what defenses may be available for you. As always, a consultation regarding your case is completely free and totally confidential.
1) Inadequate or broken observation period. In order to properly read your BAC by a breath test, the testing officer must observe you continuously for at least 15 minutes before taking a sample. If you belch, vomit, or regurgitate gas in your mouth before the test, your BAC may read inaccurately high. If the officer has not observed you continuously for 15 minutes prior to measuring your BAC, it will be impossible for him to say that you did contaminate your own breath test.
2) Something in your mouth causes an inaccurate reading. Common items such as cough drops, breath mints, or chewing tobacco may remain in your mouth when a breath test is administered and can contaminate the results.
3) Your own personal medical history. If diagnosed prior to your arrest for DUI, many conditions, such as gastric reflux disease, intestinal problems, diabetes, and respiratory problems, can be used to show the likelihood of an inaccurate BAC reading from a breath test.
4) Your own personal dental history. Gum disease, gingivitis, and pockets around the roots of your teeth, as well as dentures or bridgework may trap alcohol in your mouth and contaminate a breath sample.
5) Your behavior or actions do not match test results. If there are witnesses, video tape, or observations by officers that suggests you were not intoxicated, it may be possible to challenge the readings from a breath test.
6) Rising blood alcohol level. If your first breath sample registers slightly over the legal limit, and a second sample taken later is higher, it is clear your BAC is rising. If this is the case it may be possible to argue that, at the time you were driving, your BAC was not over the legal limit.
7) Inexperience or incompetence of the arresting or testing officer. If the officer who arrested you or took your breath sample is not trained in the proper procedure or fails to follow protocol it may be possible to have the results of the improperly administered breath test thrown out.
8) Accuracy of the breath test machine. An artificially high reading can result from interference with the circuitry of a machine due to radio interference, shared power sources, or smoking in or near the machine.
9) Irregular samples. Consecutive BAC readings that vary a great deal can be used to challenge the accuracy of breath samples.
10) Statutory time limit. The prosecution must prove that the breath sample was obtained within three hours of the time you were driving in order to invoke the presumption that you were intoxicated at the time you were driving.
These are just a few of the many defenses that may be available to you if you have been charged with a DUI on the basis of a breath test. Of course, countless more defenses are available depending on the circumstances of your case. Contact the Law Offices of Scott R. Ball today to discuss your case and determine what defenses may be available for you. As always, a consultation regarding your case is completely free and totally confidential.
8/24/09
VC 23103 Reckless Driving: The What, How, and Why
Reckless driving, defined at Section 23103, is one of the most vaguely worded statutes in the California Vehicle Code. It states that “[a]ny person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” A person found guilty for a first offense of reckless driving can face fines of several thousand dollars, a jail sentence of up to 90 days, their car impounded for up to 30 days, and have their license suspended for a month. A second or third violation of reckless driving, or if someone was injured as a result of a person’s reckless driving, can result in a mandatory license suspension for a year and up to 6 months in jail. A reckless driving is also considered a “discretionary arrest” misdemeanor, meaning the citing officer can merely give you a ticket or arrest you and take you to jail.
A charge of reckless driving is a misdemeanor offense, which, if convicted, will result in a criminal record and two points on your driving record. Generally, two points in any eighteen month period will result in a rise in your car insurance rates. If you have previous points on your record, it could also result in an even longer suspension of your license.
However, if you have been charged with reckless driving, with a skilled attorney, it is very possible to fight and win your case. The vague nature of the phrase “willful and wanton disregard for safety” leaves a great deal of room for a skilled attorney to argue your case either does not merit a misdemeanor charge or should be dismissed entirely. California courts have held that negligence, and even gross negligence, is not enough alone to establish reckless driving. This means that the prosecution must prove beyond a reasonable doubt that the driver intentionally did something he knew, or should have known, could result in killing or injuring someone.
Generally, a rule of thumb by police officers is that three moving violations, committed in rapid succession by a driver, constitute reckless driving. However, the courts have not adopted this rule, and follow the statutory definition of “willful and wanton disregard for safety.” This means that it is possible to be cited for reckless driving for committing a single “unsafe” maneuver, as defined by the officer, such as cutting sharply across traffic to make an abrupt turn.
If you have been charged with reckless driving, you should contact a criminal defense attorney today. A skilled attorney may be able to have unfair reckless driving charges completely dismissed, keeping you out of jail and saving your license. Further, it is often possible to have the misdemeanor charge reduced to a mere traffic infraction, which will result in greatly reduced fines and, when combined with traffic school, no points on your record. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
A charge of reckless driving is a misdemeanor offense, which, if convicted, will result in a criminal record and two points on your driving record. Generally, two points in any eighteen month period will result in a rise in your car insurance rates. If you have previous points on your record, it could also result in an even longer suspension of your license.
However, if you have been charged with reckless driving, with a skilled attorney, it is very possible to fight and win your case. The vague nature of the phrase “willful and wanton disregard for safety” leaves a great deal of room for a skilled attorney to argue your case either does not merit a misdemeanor charge or should be dismissed entirely. California courts have held that negligence, and even gross negligence, is not enough alone to establish reckless driving. This means that the prosecution must prove beyond a reasonable doubt that the driver intentionally did something he knew, or should have known, could result in killing or injuring someone.
Generally, a rule of thumb by police officers is that three moving violations, committed in rapid succession by a driver, constitute reckless driving. However, the courts have not adopted this rule, and follow the statutory definition of “willful and wanton disregard for safety.” This means that it is possible to be cited for reckless driving for committing a single “unsafe” maneuver, as defined by the officer, such as cutting sharply across traffic to make an abrupt turn.
If you have been charged with reckless driving, you should contact a criminal defense attorney today. A skilled attorney may be able to have unfair reckless driving charges completely dismissed, keeping you out of jail and saving your license. Further, it is often possible to have the misdemeanor charge reduced to a mere traffic infraction, which will result in greatly reduced fines and, when combined with traffic school, no points on your record. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
8/14/09
The Many Ways the DMV Can Suspend Your License
Everyone knows that being arrested for driving under the influence of alcohol can result in the loss of your license, but did you know that there are literally dozens of other ways your license can be suspended? Be aware, here are some ways you can have your license taken away that you may not have realized:
Driving under the influence of ANY drug. The law does not distinguish between illegal and over the counter drugs. This means that if your driving is impaired, you may be arrested for a DUI just as readily from being drowsy from too much NyQuil as being high on cocaine.
Lack of insurance. If you drive in California, you must have a minimum amount of insurance coverage. If you are visiting or just moved to the state, be sure to check with your out-of-state insurance company to confirm they are authorized to do business here.
Refusing to consent to a BAC test. Under California’s implied consent law, by driving a motor vehicle you are agreeing to consent to a chemical test of your breath or blood to determine blood alcohol content.
Failure to appear or pay a traffic ticket. When you sign at the X on a traffic ticket, you are agreeing to pay the fine or appear in court. Failure to do so, even if you never receive anything in the mail, can result in your license being suspended.
Too many points on your record. Four points in one year, six in two years, or eight in three years can result in your license being suspended by the DMV.
Failure to pay child support. If you have failed to pay child support, your license can be suspended, and you may not know why even after you have been arrested.
Vandalism/Graffiti. California law allows the courts to suspend a person’s license for up to two years upon a conviction of vandalism. If the person does not yet have a license, the court may delay the issuance of a license for up to three years.
Possession of firearms or live ammunition. If a minor is convicted of possessing a concealable weapon or live ammunition, the court may revoke or suspend driving privileges.
Other ways your license may be suspended include:
It is important to be aware of the ways in which your license can be suspended so that you can avoid them. Driving on a suspended license is a criminal offense and can be punished by a $1,000 fine and up to six months in jail. However, if you are charged with or are facing one of the above situations, it is important to have an experienced attorney on your side. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.
Driving under the influence of ANY drug. The law does not distinguish between illegal and over the counter drugs. This means that if your driving is impaired, you may be arrested for a DUI just as readily from being drowsy from too much NyQuil as being high on cocaine.
Lack of insurance. If you drive in California, you must have a minimum amount of insurance coverage. If you are visiting or just moved to the state, be sure to check with your out-of-state insurance company to confirm they are authorized to do business here.
Refusing to consent to a BAC test. Under California’s implied consent law, by driving a motor vehicle you are agreeing to consent to a chemical test of your breath or blood to determine blood alcohol content.
Failure to appear or pay a traffic ticket. When you sign at the X on a traffic ticket, you are agreeing to pay the fine or appear in court. Failure to do so, even if you never receive anything in the mail, can result in your license being suspended.
Too many points on your record. Four points in one year, six in two years, or eight in three years can result in your license being suspended by the DMV.
Failure to pay child support. If you have failed to pay child support, your license can be suspended, and you may not know why even after you have been arrested.
Vandalism/Graffiti. California law allows the courts to suspend a person’s license for up to two years upon a conviction of vandalism. If the person does not yet have a license, the court may delay the issuance of a license for up to three years.
Possession of firearms or live ammunition. If a minor is convicted of possessing a concealable weapon or live ammunition, the court may revoke or suspend driving privileges.
Other ways your license may be suspended include:
- Engaging in prostitution in a vehicle within 1000 feet of a residence.
- Engaging in a “speed contest” i.e. drag racing against another person or a clock.
- Assaulting a driver, passenger, bicyclist, or pedestrian on a highway. (“Road Rage”)
- Failure to stop at a railway grade crossing.
- Recklessly fleeing a law enforcement officer.
- Leaving the scene of an accident or injury without filing a report.
It is important to be aware of the ways in which your license can be suspended so that you can avoid them. Driving on a suspended license is a criminal offense and can be punished by a $1,000 fine and up to six months in jail. However, if you are charged with or are facing one of the above situations, it is important to have an experienced attorney on your side. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.
8/11/09
HELP! I Was Arrested for a DUI! What Do I Do Now?
If you have recently been arrested and charged with driving under the influence in California, it is important to realize that time is of the essence. Your first action should probably be to contact a good criminal defense attorney. However, regardless of if and when you decide to contact an attorney, there are several important things of which you should be aware.
When you are arrested for a DUI, there are two separate and independent proceedings that are set in motion, both with the ultimate goal of punishing you. Obviously, there will be criminal charges, which will take place in the Superior Court in the jurisdiction in which you were arrested. However, there will also be a separate proceeding with the Department of Motor Vehicles where a determination will be made if your license is to be suspended.
Immediately after you are arrested the most important thing for you to do, short of obtaining a skilled attorney, is to contact the DMV’s Office of Driver Safety and request a hearing to challenge the suspension of your license. This MUST be done within 10 calendar days, or your license will automatically be suspended. The U.S. Constitution requires “due process” before your driver’s license is taken away. This means the DMV must notify you of a proposed suspension and allow you a chance to challenge the suspension.
At the hearing, you will have the opportunity to show that a suspension (or revocation) is not justified. Even if you are later acquitted by the criminal court, this hearing is the ONLY time you will be able to prevent your license from being automatically suspended.
It is important to note that since the DMV proceeding is independent from the criminal charges, if you are assigned a public defender, he or she will NOT represent you in a hearing to challenge your suspended license. Unless you retain a private attorney, you will be completely on your own trying to save your driving privileges. While it is possible to win a DMV hearing on your own, an attorney familiar with the proceeding will give you the absolute best chance to save your license.
Further, even if you lose your DMV hearing, an experienced attorney can take advantage of the proceeding by using it to obtain a favorable ruling in the later criminal charges, including possibly a dismissal. For example, by tape recording the DMV hearing, a skilled attorney may be able to later impeach a testifying officer and call into question his or her credibility. If you want to learn more about your case, contact the Law Offices of Scott R. Ball today. Any consultation is totally free and always completely confidential.
When you are arrested for a DUI, there are two separate and independent proceedings that are set in motion, both with the ultimate goal of punishing you. Obviously, there will be criminal charges, which will take place in the Superior Court in the jurisdiction in which you were arrested. However, there will also be a separate proceeding with the Department of Motor Vehicles where a determination will be made if your license is to be suspended.
Immediately after you are arrested the most important thing for you to do, short of obtaining a skilled attorney, is to contact the DMV’s Office of Driver Safety and request a hearing to challenge the suspension of your license. This MUST be done within 10 calendar days, or your license will automatically be suspended. The U.S. Constitution requires “due process” before your driver’s license is taken away. This means the DMV must notify you of a proposed suspension and allow you a chance to challenge the suspension.
At the hearing, you will have the opportunity to show that a suspension (or revocation) is not justified. Even if you are later acquitted by the criminal court, this hearing is the ONLY time you will be able to prevent your license from being automatically suspended.
It is important to note that since the DMV proceeding is independent from the criminal charges, if you are assigned a public defender, he or she will NOT represent you in a hearing to challenge your suspended license. Unless you retain a private attorney, you will be completely on your own trying to save your driving privileges. While it is possible to win a DMV hearing on your own, an attorney familiar with the proceeding will give you the absolute best chance to save your license.
Further, even if you lose your DMV hearing, an experienced attorney can take advantage of the proceeding by using it to obtain a favorable ruling in the later criminal charges, including possibly a dismissal. For example, by tape recording the DMV hearing, a skilled attorney may be able to later impeach a testifying officer and call into question his or her credibility. If you want to learn more about your case, contact the Law Offices of Scott R. Ball today. Any consultation is totally free and always completely confidential.
8/6/09
"Probation" Explained
You’ve probably met or heard of a person who is “on probation” but have you ever wondered what that actually means? Well, depending on whether the person is on formal or informal probation and the particulars of the crime, it could mean any number of different terms to each individual.
Formal, or “supervised” probation, is the more serious form. Formal probation requires the individual sentenced to make regular reports to a probation officer. Informal probation, also known as a “summary” or “court” probation, or “conditional sentence,” does not require the individual to make regular reports to a probation officer. Both kinds of probation, however, can subject an individual to the loss of many freedoms.
Often, probation is given in lieu of a jail or prison sentence. At the time of conviction, if a defendant is eligible for probation, the judge may either impose a sentence and then suspend the execution of that sentence, or may suspend imposing the sentence at all, in favor of granting probation. Probation consists of a fixed term during which the probationer must abide by the terms set by the court or probation officer. If the probationer breaks his or her probation, for example by committing another crime or failing a drug test, he or she will be subject to the sentence that was suspended by the court at the time probation was granted. This means if you screw up your probation, you are almost assuredly going to jail.
The court or probation officer have broad discretion to impose any “reasonable conditions” necessary to secure justice and assist the “reformation and rehabilitation” of the probationer, as long as the conditions are reasonably related to the offense and aimed at deterring such misconduct in the future. These terms include things like mandatory alcohol or drug testing, community service, counseling, curfews for minors, stay-away orders, electronic monitoring, home detention, travel restrictions, or suspension of a driver’s license.
Probation might not sound like very much fun, but it is often a welcome alternative to jail time. If you are facing a potential conviction on criminal charges, it is important you have an experienced attorney to negotiate on your behalf. A skilled attorney familiar with the judge and district attorney in your case can arrange for probation instead of jail, and will be able to get the best possible terms. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
Formal, or “supervised” probation, is the more serious form. Formal probation requires the individual sentenced to make regular reports to a probation officer. Informal probation, also known as a “summary” or “court” probation, or “conditional sentence,” does not require the individual to make regular reports to a probation officer. Both kinds of probation, however, can subject an individual to the loss of many freedoms.
Often, probation is given in lieu of a jail or prison sentence. At the time of conviction, if a defendant is eligible for probation, the judge may either impose a sentence and then suspend the execution of that sentence, or may suspend imposing the sentence at all, in favor of granting probation. Probation consists of a fixed term during which the probationer must abide by the terms set by the court or probation officer. If the probationer breaks his or her probation, for example by committing another crime or failing a drug test, he or she will be subject to the sentence that was suspended by the court at the time probation was granted. This means if you screw up your probation, you are almost assuredly going to jail.
The court or probation officer have broad discretion to impose any “reasonable conditions” necessary to secure justice and assist the “reformation and rehabilitation” of the probationer, as long as the conditions are reasonably related to the offense and aimed at deterring such misconduct in the future. These terms include things like mandatory alcohol or drug testing, community service, counseling, curfews for minors, stay-away orders, electronic monitoring, home detention, travel restrictions, or suspension of a driver’s license.
Probation might not sound like very much fun, but it is often a welcome alternative to jail time. If you are facing a potential conviction on criminal charges, it is important you have an experienced attorney to negotiate on your behalf. A skilled attorney familiar with the judge and district attorney in your case can arrange for probation instead of jail, and will be able to get the best possible terms. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
7/19/09
Understanding Sentencing for Multiple Convictions
Often, a defendant is charged with multiple crimes stemming out of the same incident. For example, a person involved in a bar fight may be charged with both assault and disturbing the peace. While both charges are based on the same course of conduct, it is still possible to be found guilty of violating both laws.
In California, the crime of simple assault carries a maximum of six months of jail time while the crime of disturbing the peace carries a maximum of 90 days jail time. However, it is important to realize that while multiple convictions based on a single act or course of conduct are allowed, multiple punishments are barred. This means that a defendant found guilty of both assault and disturbing the peace will only be exposed to the higher of the maximum punishments, in this case, six months in jail for the assault conviction. Other sentences for convictions from the same act must be stayed.
The key to understanding the limit on multiple punishments is whether the course of conduct was in fact an indivisible single transaction. This will depend on the actor’s intent and objective. In the case of the bar patron starting a fight, if the court determines that his intent was to fight an individual, while he can be convicted of the two crimes, he cannot be punished for both.
There are several exceptions to this general rule. Acts of violence with separate victims, multiple sex acts, and certain vehicle code violations are statutorily exempt from this law. Further, if the court can point to a separate objective or similar but consecutive objectives for one of the crimes, it will not be subject to the bar on multiple punishments. If you are facing multiple criminal charges stemming out a single incident, you should speak with an attorney today. These sort of factual distinctions can often be decided both ways, and a skilled attorney is invaluable to have on your side if you face the possibility of multiple sentences. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
In California, the crime of simple assault carries a maximum of six months of jail time while the crime of disturbing the peace carries a maximum of 90 days jail time. However, it is important to realize that while multiple convictions based on a single act or course of conduct are allowed, multiple punishments are barred. This means that a defendant found guilty of both assault and disturbing the peace will only be exposed to the higher of the maximum punishments, in this case, six months in jail for the assault conviction. Other sentences for convictions from the same act must be stayed.
The key to understanding the limit on multiple punishments is whether the course of conduct was in fact an indivisible single transaction. This will depend on the actor’s intent and objective. In the case of the bar patron starting a fight, if the court determines that his intent was to fight an individual, while he can be convicted of the two crimes, he cannot be punished for both.
There are several exceptions to this general rule. Acts of violence with separate victims, multiple sex acts, and certain vehicle code violations are statutorily exempt from this law. Further, if the court can point to a separate objective or similar but consecutive objectives for one of the crimes, it will not be subject to the bar on multiple punishments. If you are facing multiple criminal charges stemming out a single incident, you should speak with an attorney today. These sort of factual distinctions can often be decided both ways, and a skilled attorney is invaluable to have on your side if you face the possibility of multiple sentences. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
7/14/09
Clearing Your Criminal Record: Are You Eligible?
California law has several ways in which a person may clean up their criminal record. Depending on the time since your conviction and the circumstances surrounding the charge, it may be possible to have the conviction expunged from your record. When a criminal record is expunged you may legally answer “no” when asked by private employers if you have ever been convicted of a crime.
If you have been convicted of a misdemeanor and were not sentenced to probation or have successfully completed probation: If this is your situation, it is highly likely you will be able to have your record expunged. Contact an attorney today to get started immediately to clear your record. The process can take several months, so it is important to take care of this now, before it becomes absolutely necessary.
If you have been convicted of a misdemeanor and are still on probation: Even though you have not yet completed your probation, it is still possible to have you record expunged. If this is the case, it will be necessary to file a motion to terminate probation. The court will grant such a motion when it serves the “ends of justice.” This means you must have a good reason, i.e. you are unable to find a job or obtain licensure. An experienced attorney can work with you to be able to make a compelling argument to the court. If a motion to terminate probation is not granted, it will still be possible to have your record expunged upon completion of the terms of your probation.
If you have been convicted of a felony and have successfully completed probation, but did not serve time in state prison: If this is the case, you may file a motion to have the felony reduced to a misdemeanor, and then a motion to have the misdemeanor expunged.
If you have been convicted of a felony and have not yet completed probation, but did not serve time in state prison: Even if you haven’t yet finished your probation, it is STILL possible to have your record expunged! However, it will be necessary to have a very good attorney on your side, as several important steps will need to be taken.
If you have been convicted of a felony and sentenced to state prison: Believe it or not, even if you have spent time in state prison, the law still allows a person to improve what is on their record. To have a felony cleared from a person’s record, it is necessary to obtain a certificate of rehabilitation and pardon from the governor.
Remember, in these uncertain economic times, it is more important than ever to have a clean criminal record. Contact the Law Offices of Scott R. Ball today for your free and completely confidential evaluation.
If you have been convicted of a misdemeanor and were not sentenced to probation or have successfully completed probation: If this is your situation, it is highly likely you will be able to have your record expunged. Contact an attorney today to get started immediately to clear your record. The process can take several months, so it is important to take care of this now, before it becomes absolutely necessary.
If you have been convicted of a misdemeanor and are still on probation: Even though you have not yet completed your probation, it is still possible to have you record expunged. If this is the case, it will be necessary to file a motion to terminate probation. The court will grant such a motion when it serves the “ends of justice.” This means you must have a good reason, i.e. you are unable to find a job or obtain licensure. An experienced attorney can work with you to be able to make a compelling argument to the court. If a motion to terminate probation is not granted, it will still be possible to have your record expunged upon completion of the terms of your probation.
If you have been convicted of a felony and have successfully completed probation, but did not serve time in state prison: If this is the case, you may file a motion to have the felony reduced to a misdemeanor, and then a motion to have the misdemeanor expunged.
If you have been convicted of a felony and have not yet completed probation, but did not serve time in state prison: Even if you haven’t yet finished your probation, it is STILL possible to have your record expunged! However, it will be necessary to have a very good attorney on your side, as several important steps will need to be taken.
If you have been convicted of a felony and sentenced to state prison: Believe it or not, even if you have spent time in state prison, the law still allows a person to improve what is on their record. To have a felony cleared from a person’s record, it is necessary to obtain a certificate of rehabilitation and pardon from the governor.
Remember, in these uncertain economic times, it is more important than ever to have a clean criminal record. Contact the Law Offices of Scott R. Ball today for your free and completely confidential evaluation.
7/13/09
Driving Under the Influence of Drugs
Most people don’t realize that driving under the influence of drugs, even completely legal, over the counter drugs, can result in arrest and conviction of driving under the influence. The key element that must be proved to be convicted of a DUI is that the driver suffers a physical or mental impairment such that he or she cannot drive with the same caution that would be exhibited by a sober person. This means it is possible to be convicted for driving under the influence of cocaine, marijuana, cold medicine, or even coffee!
A common mistake many people believe is that they cannot be convicted of a DUI for being under the influence of a drug prescribed by a doctor. A prescription is no defense, and the cost of that mistake can have severe consequences.
Unlike driving under the influence of alcohol cases, there is no numerical limit like “.08%” when determining impairment for drugs. This can lead to trouble: a police officer’s judgment and field sobriety tests may be the key evidence against a person in a DUI drugs case. If a person is only slightly stoned but has, shall we say, a unique personality, it may lead the officer to believe he or she is far more impaired then they actually are.
Another difference between drugs and alcohol DUIs is the manner in which you may be chemically tested. If you are arrested for a DUI alcohol, you MUST submit to either a breath or blood test. If you are arrested for a DUI drugs, you MUST submit to either a blood or urine test. Remember, however, that you NEVER have to submit to any test before you are arrested.
If you are pulled over for suspicion of driving under the influence of drugs, it is important to remain calm and act as normal as possible. Do not admit that you have taken any legal or illegal drug, even if you have a prescription. Anything you say can and will be used against you! If you have not had any alcohol, consent to a breath test.
But perhaps the best advice you can get? Don’t drive if you are unable to do safely! However, if you have been arrested and charged with driving under the influence of drugs, you should contact criminal defense attorney Scott R. Ball today. A consultation is always free and completely confidential.
7/8/09
Know Your Rights: Breathalyzers and DUIs
When a person is pulled over for suspicion of drunken driving in California, the officer will often just say “blow in this” and thrust a breathalyzer into his or her mouth. However, it is of the utmost importance for you to be aware: you do not have to submit to such pre-arrest tests!
The California Vehicle Code actually requires that an officer advise a motorist suspected of drunk driving that such a pre-arrest test can be refused. In reality, however, this is extremely rare. Breathalyzers and field sobriety tests like walking a line or touching your finger to your nose are designed to be used as investigative tools for an officer to determine if a person is under the influence of alcohol. However, if you have not been placed under arrest, they are COMPLETELY OPTIONAL.
Once you have been placed under arrest, you MUST submit to a chemical test, but you have the choice of either a breath or blood test. A refusal to submit to a test after being placed under arrest will result in an automatic one year suspension of your license in addition to the DUI charges.
If you have been drinking and are pulled over, there are several ways to use this knowledge to your advantage:
-If you believe you may be close to the legal limit but think you can handle yourself fine, you should agree to perform the field sobriety tests and refuse the breathalyzer. Politely tell the officer that you are concerned about the accuracy of hand held breathalyzers and agree to walk the line, etc. to demonstrate your sobriety. If you can show that you are in control of your motor functions, they might let you simply drive away.
-If you believe you may be close to the legal limit but are nervous or concerned about performing the field sobriety tests, simply refuse all pre-arrest tests. Politely tell the officer that you do not wish to take any pre-arrest sobriety tests because your attorney has advised you that they are extremely inaccurate. You will probably be placed under arrest at this point. You should now insist on a blood test. It will take some time to get to a station where a blood test can be performed. If you are close to the legal limit, by the time you get to the station your BAC may have declined to under .08%.
-If you know for a fact that your BAC is well over the legal limit, politely decline any and all pre-arrest tests. Speak as little as possible, and do not admit any alcohol consumption. Any thing you say or do indicating that you are intoxicated WILL be used against you in court. If you are arrested, insist on a blood test. Again, the time it will take to get you to a station can be an opportunity for your BAC to decline. A BAC over certain limits will result in harsher penalties, and a BAC close to the legal limit may be more easily challenged.
Remember, you pre-arrest tests are optional and post-arrest tests are not. If an officer tries to force you to take a test, simply ask him if you have been placed under arrest. Always be polite and respectful. If the officer asks you why you are refusing a test or requesting a different test, simply tell him you are doing what your lawyer advised you.
For more information on how to fight and prevent DUI arrests and convictions, contact Scott R. Ball today. A confidential evaluation of your case is always free.
7/7/09
Civil Compromises Lead to Dismissal of Criminal Charges
If you have been arrested on criminal charges dealing with damage to another person’s property, it is possible that you may be able to have those criminal charges dismissed through a civil compromise. A civil compromise is available when an offense charged involves damage for which the victim may seek a civil remedy (i.e. a civil suit for damages) and the victim agrees to drop the charges in exchange for payment for the damages. For example, if you are charged with a hit and run for backing into another vehicle, you may be able to pay for the repairs to the victim’s vehicle in exchange for the criminal charges against you being dismissed.
For a court to order a civil compromise, it is NOT necessary for the prosecution to agree to this disposition. As long as the case at hand falls within the statutory guidelines, a civil compromise is appropriate. This outcome is often favorable to both the defendant charged with committing the crime and the victim. The former receives no conviction and resulting criminal record while the latter is fully compensated for his or her loss.
There are several limitations to when a court may order a civil compromise. If the crime committed by the defendant was against a peace officer, or committed riotously or with felonious intent, a civil compromise will not be available. Further, it will not be available when the crime was committed against any family or household member, or against a child or an elder. Many of these definitions, however, are subject to interpretation. A skilled attorney with experience in negotiating civil compromises can successfully argue that a case is eligible for this sort of favorable disposition.
If you have been arrested for a crime and believe you may fit the above criteria to be eligible for a civil compromise, you should contact the Law Offices of Scott R. Ball today. Making a victim whole by compensating them for their damages can lead to the complete dismissal of any criminal charges, leaving all parties satisfied with the outcome.
For a court to order a civil compromise, it is NOT necessary for the prosecution to agree to this disposition. As long as the case at hand falls within the statutory guidelines, a civil compromise is appropriate. This outcome is often favorable to both the defendant charged with committing the crime and the victim. The former receives no conviction and resulting criminal record while the latter is fully compensated for his or her loss.
There are several limitations to when a court may order a civil compromise. If the crime committed by the defendant was against a peace officer, or committed riotously or with felonious intent, a civil compromise will not be available. Further, it will not be available when the crime was committed against any family or household member, or against a child or an elder. Many of these definitions, however, are subject to interpretation. A skilled attorney with experience in negotiating civil compromises can successfully argue that a case is eligible for this sort of favorable disposition.
If you have been arrested for a crime and believe you may fit the above criteria to be eligible for a civil compromise, you should contact the Law Offices of Scott R. Ball today. Making a victim whole by compensating them for their damages can lead to the complete dismissal of any criminal charges, leaving all parties satisfied with the outcome.
7/5/09
The Difference Between "Guilty" and "No Contest" Explained
When a person no longer wishes to fight a criminal charge against him or her, he or she has the option of pleading “guilty” or “no contest.” While these may sound quite different, they are actually very similar, albeit with one major difference.
To accept a guilty plea, the court must find a factual basis for guilt. This generally means the judge must be convinced that the defendant admitting guilt, is in fact guilty. A guilty plea is telling the court, “I have committed the criminal acts with which I am charged.”
A no contest plea, also known as a “nolo contendere” plea, has one important difference from a guilty plea. Entering a plea of no contest is effectively telling the court, “I am not admitting I did the criminal act with which I am charged, but I do not wish to challenge these charges.” This is an important difference because a no contest plea allows the defendant to dispose of the criminal proceedings without admitting guilt which may be used against him or her in a later civil trial.
A good example of where a no contest plea would be useful arises when a defendant is accused of running a red light and getting into an accident. The defendant may be facing the criminal charge of a ticket for running the light as well as a civil suit by the owner of the vehicle he hit. Wishing to simply pay the fine for traffic ticket and take traffic school, the defendant here should enter a plea of no contest. That way, he can dispose of the criminal charges without admitting that he did indeed run the red light and open himself up to liability in the much more expensive civil suit.
7/2/09
Stopped by Police? Know Your 4th Amendment Rights!
One of the most important protections guaranteed by the United States Constitution is the Fourth Amendment right to be free from unreasonable searches and seizures. However, if one is not aware of such rights, the protections it offers will often not be realized. This is often the case when a motorist is pulled over by a police officer and questioned.
The most important thing to remember is that you NEVER have to give permission to an officer to search anything. Police officers will often “ask” if you mind if they take a look at something in such a way that implies they will do it anyway, and receiving your permission is just a formality. If you say “yes,” then you have just surrendered one of your most important rights! Even if you don’t believe they will find anything illegal, you never know what your buddy might have left in the backseat the night before. Don’t ever let an officer search your person, vehicle or anything else by giving them permission!
For a law enforcement official to search any of your property, they must have significant justification to do so. This can be provided by a search warrant. If an officer does have a search warrant, ask to inspect it before allowing the officer to search anything. A search can also be conducted when an officer has probable cause to believe that such a search will find evidence of illegal activity. This standard is slightly relaxed, however, for a search of your vehicle. In that situation, the officer must only show a “reasonable suspicion.”
If a search of your property has turned up evidence of illegal activity, the officer must show specific evidence that gave rise to show probable cause or reasonable suspicion. An experienced attorney can challenge these findings as failing to give rise to such justification. A successful Fourth Amendment challenge will result in the evidence being thrown out, and probably the case as well!
However, if you have given permission to the officer to perform the search, no such justification is necessary. Therefore, remember to NEVER give permission to an officer to perform any search.
If you have been stopped by law enforcement and you believe you may have been searched illegally, you should contact criminal defense attorney Scott R. Ball today. An evaluation of your case is completely confidential and always free.
The most important thing to remember is that you NEVER have to give permission to an officer to search anything. Police officers will often “ask” if you mind if they take a look at something in such a way that implies they will do it anyway, and receiving your permission is just a formality. If you say “yes,” then you have just surrendered one of your most important rights! Even if you don’t believe they will find anything illegal, you never know what your buddy might have left in the backseat the night before. Don’t ever let an officer search your person, vehicle or anything else by giving them permission!
For a law enforcement official to search any of your property, they must have significant justification to do so. This can be provided by a search warrant. If an officer does have a search warrant, ask to inspect it before allowing the officer to search anything. A search can also be conducted when an officer has probable cause to believe that such a search will find evidence of illegal activity. This standard is slightly relaxed, however, for a search of your vehicle. In that situation, the officer must only show a “reasonable suspicion.”
If a search of your property has turned up evidence of illegal activity, the officer must show specific evidence that gave rise to show probable cause or reasonable suspicion. An experienced attorney can challenge these findings as failing to give rise to such justification. A successful Fourth Amendment challenge will result in the evidence being thrown out, and probably the case as well!
However, if you have given permission to the officer to perform the search, no such justification is necessary. Therefore, remember to NEVER give permission to an officer to perform any search.
If you have been stopped by law enforcement and you believe you may have been searched illegally, you should contact criminal defense attorney Scott R. Ball today. An evaluation of your case is completely confidential and always free.
6/26/09
P.C. 647(f) “Drunk in Public” Arrests Explained
Also known as a “drunk and disorderly,” California Penal Code Section 647(f) makes it a misdemeanor crime for a person to be under the influence of alcohol or drugs in a public place and to be in such a condition that either:
1) the person’s intoxication makes him or her “unable to exercise care for his or her own safety or the safety others” or
2) due to his or her level of intoxication, the person “interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.”
A conviction for a drunk in public carries with it up to six months of jail time, fines, and probation. Repeat offenders with two prior convictions may face up to a year in jail.
To be convicted of this crime, the prosecution must prove several elements beyond a reasonable doubt. First, the person must be in a public place. Courts have defined a public place as the “area outside a home in which a stranger is able to walk without challenge.” This definition has been expanded somewhat by case law to include a car parked in a public street, the hallway in an apartment building, and the area in front of a house, including the driveway and front porch.
Next, it must be shown that person was in one of the two conditions stated above. An example of person who is unable to care for his or her own safety or the safety of others would be a person who is falling down drunk, unable to walk, with the potential of wandering into traffic. Merely being intoxicated, if you are in control of your facilities, is not enough for a conviction under this standard.
The second way a person may be convicted of this crime is if he or she interferes or obstructs a street, sidewalk, or public way. This can be shown when a person is lying on a street or sidewalk, or otherwise incapacitated in some way. Again, mere intoxication is not enough for a conviction. If you were lying on the ground asleep, but wake up as soon as you are approached by the officer and remove yourself as an obstruction, you should not be found guilty!
In reality, drunk in public violations are often charged, but with the help of a skilled attorney, should rarely result in convictions. Simply put, you must be pretty darn wasted to be found guilty. Even in that case, however, due to the minor nature of the offense it is often possible to enroll in a diversion program in which you may complete an alternative sentence, such as community service or Alcoholics Anonymous classes, and then have the charges dismissed completely. For most people, the most important consideration is the desire to keep a conviction off his or her record. With a charge of P.C. 647(f), that should be possible.
If you have been charged with a drunk in public violation due to a night out of drinking that got just a bit too wild, you should contact an attorney today. Even though this is a minor charge, it is important to make sure you do not end up with an ugly black mark on your record. Contact the Law Offices of Scott R. Ball today for a completely free and always confidential evaluation of your case
6/23/09
What it Means to “Expunge” a Criminal Record
If you have been convicted of a crime, the stigma associated with the conviction is something that can haunt you for the rest of your life. Having to check “yes” on a job application when asked if you have ever been convicted of a crime is often enough to cost you the job, especially in these tough economic times. However, if you were convicted of a misdemeanor and have stayed out of trouble since then, it is actually relatively easy to have that record “expunged.”
It is important to understand what an expungement entails. Most important, after a motion for expungement under CA Penal Code 1203.4 is granted, you may legally check “no” when asked by private employers if you have ever been convicted of a crime. When a criminal conviction is expunged, the law no longer considers you as having been convicted of the offense.
However, it is also important to realize what an expungement does not do. It does not relieve you of your duty to disclose the conviction when you are applying with government employers or government licensing applications. In that situation you may state “Yes – conviction dismissed.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards), will treat you the same as if you had never been convicted of the crime.
In addition, an expungement does not erase the conviction for several other purposes. An expunged criminal conviction can still be used to increase your punishment in future criminal cases. If your conviction prevented you from owning a gun, possessing a driver’s license, or holding a public office, an expungement will not re-instate those privileges.
If you have successfully completed all terms of your probation, paid all of your fines and fees ordered by the court, and have stayed out of trouble (traffic tickets are OK), then it is relatively easy to have a misdemeanor conviction expunged from your record. While there are no guarantees, if all of the above are true in your case, there is an excellent chance your motion for expungement will be granted.
Expunging a criminal record can have a substantial therapeutic effect on a person. For many people, a single youthful transgression can mar an otherwise outstanding record. By expunging your record, that mistake can be forgotten. It’s also great to finally be able to check “no” on that job application!
If you wish to close a forgettable chapter of your life, you should contact the Law Offices of Scott R. Ball today. A discussion and evaluation of your case is completely confidential and free.
It is important to understand what an expungement entails. Most important, after a motion for expungement under CA Penal Code 1203.4 is granted, you may legally check “no” when asked by private employers if you have ever been convicted of a crime. When a criminal conviction is expunged, the law no longer considers you as having been convicted of the offense.
However, it is also important to realize what an expungement does not do. It does not relieve you of your duty to disclose the conviction when you are applying with government employers or government licensing applications. In that situation you may state “Yes – conviction dismissed.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards), will treat you the same as if you had never been convicted of the crime.
In addition, an expungement does not erase the conviction for several other purposes. An expunged criminal conviction can still be used to increase your punishment in future criminal cases. If your conviction prevented you from owning a gun, possessing a driver’s license, or holding a public office, an expungement will not re-instate those privileges.
If you have successfully completed all terms of your probation, paid all of your fines and fees ordered by the court, and have stayed out of trouble (traffic tickets are OK), then it is relatively easy to have a misdemeanor conviction expunged from your record. While there are no guarantees, if all of the above are true in your case, there is an excellent chance your motion for expungement will be granted.
Expunging a criminal record can have a substantial therapeutic effect on a person. For many people, a single youthful transgression can mar an otherwise outstanding record. By expunging your record, that mistake can be forgotten. It’s also great to finally be able to check “no” on that job application!
If you wish to close a forgettable chapter of your life, you should contact the Law Offices of Scott R. Ball today. A discussion and evaluation of your case is completely confidential and free.
6/14/09
Domestic Violence and Victim Restitution – Why You Need to Protect Yourself Even After Disposition
If you are facing criminal charges of domestic violence, it is important to know that there is more to your case than simply the sentence imposed by the court. After a finding of guilty or no contest, the court may then impose additional restitution in an effort to compensate the victim for his or her damages.
A restitution hearing is a type of mini-trial designed to restore the victim’s economic losses he or she suffered due to the defendant’s crime. This can include:
· medical expenses, including mental health and counseling expenses;
· the value of stolen or damaged property;
· lost wages and profits, including wages lost due to injuries suffered from the crime, testifying in court, and attending trial.
· relocation and security expenses;
· investigative expenses incurred by the victim related to the criminal case; and
· attorney’s fees incurred by the victim.
Further, an interest of ten percent can accrue on all orders of restitution made by the court.
A defendant facing potential restitution has the right to be represented by an attorney and dispute the validity and amount of any potential restitution. The court’s power to award restitution is broad and it is possible that a victim can attempt to take advantage of the system by overstating damages, lost wages, and other expenses. It is important for a defendant to have an experienced attorney at his or her side when facing a restitution hearing.
If you are facing domestic violence charges, you must be aware of the potential economic losses you may suffer in restitution damages. Restitution can result in a far greater harm to the defendant than the underlying criminal sentence. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
A restitution hearing is a type of mini-trial designed to restore the victim’s economic losses he or she suffered due to the defendant’s crime. This can include:
· medical expenses, including mental health and counseling expenses;
· the value of stolen or damaged property;
· lost wages and profits, including wages lost due to injuries suffered from the crime, testifying in court, and attending trial.
· relocation and security expenses;
· investigative expenses incurred by the victim related to the criminal case; and
· attorney’s fees incurred by the victim.
Further, an interest of ten percent can accrue on all orders of restitution made by the court.
A defendant facing potential restitution has the right to be represented by an attorney and dispute the validity and amount of any potential restitution. The court’s power to award restitution is broad and it is possible that a victim can attempt to take advantage of the system by overstating damages, lost wages, and other expenses. It is important for a defendant to have an experienced attorney at his or her side when facing a restitution hearing.
If you are facing domestic violence charges, you must be aware of the potential economic losses you may suffer in restitution damages. Restitution can result in a far greater harm to the defendant than the underlying criminal sentence. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
6/2/09
Stages of the Criminal Process: Arraignment
When a person is charged with a crime, the first formal legal process is the arraignment. The arraignment is a hearing before a judge where several important things occur. If a person is in custody, the arraignment must occur with two to three days. Otherwise, arraignment is usually set for a date several weeks in the future.
There are several purposes of an arraignment. First, the defendant is formally read the charges he or she is facing. Next, the defendant is informed of his or her rights. For misdemeanor and felony crimes, these include a right to a jury trial, a right to present evidence, a right to confront adverse witnesses, and, if any jail time is a possibility, a right to an attorney. To be appointed a Public Defender, a defendant must meet certain income criteria. Depending on your income level and assets, the court may or may not decide that you qualify for the services of the Public Defender. If the court determines you do not qualify, generally you will be allowed to continue the arraignment in order to obtain a private attorney.
In a misdemeanor case, even if you do qualify for a Public Defender, it is often wise to obtain the services of a private attorney, because they may appear at the arraignment (and several other proceedings) without your presence. A great benefit of retaining private counsel is the simple fact that you do not have to miss work and spend all morning in a courtroom waiting to be called. This is true in some proceedings in felony cases as well, although courts vary in their requirements for the presence of the defendant.
The arraignment is also the point where the District Attorney (or City Attorney, depending on which agency is prosecuting your case) will provide you or your lawyer with a copy of the complaint (the formal document stating the charges against you) and the police report or other information on which your charges are based. Once you and your lawyer have a copy of this information, you have a much better idea what kind of case you have. The defendant is also given an opportunity at this point to enter a plea of guilty, not guilty, or no contest. At the arraignment, you should almost always plead not guilty! You have just received the evidence against you, so why would you want to admit guilt before even examining your case?
If you have been arrested and have an arraignment scheduled, it would be wise of you to contact an attorney immediately. If you do not qualify for, or do not wish to be represented by the Public Defender, it would be prudent to retain private counsel immediately or the initial arraignment will simply be a waste of a morning in court. To speak with a skilled attorney about your case and what can be done, contact the Law Offices of Scott R. Ball today.
There are several purposes of an arraignment. First, the defendant is formally read the charges he or she is facing. Next, the defendant is informed of his or her rights. For misdemeanor and felony crimes, these include a right to a jury trial, a right to present evidence, a right to confront adverse witnesses, and, if any jail time is a possibility, a right to an attorney. To be appointed a Public Defender, a defendant must meet certain income criteria. Depending on your income level and assets, the court may or may not decide that you qualify for the services of the Public Defender. If the court determines you do not qualify, generally you will be allowed to continue the arraignment in order to obtain a private attorney.
In a misdemeanor case, even if you do qualify for a Public Defender, it is often wise to obtain the services of a private attorney, because they may appear at the arraignment (and several other proceedings) without your presence. A great benefit of retaining private counsel is the simple fact that you do not have to miss work and spend all morning in a courtroom waiting to be called. This is true in some proceedings in felony cases as well, although courts vary in their requirements for the presence of the defendant.
The arraignment is also the point where the District Attorney (or City Attorney, depending on which agency is prosecuting your case) will provide you or your lawyer with a copy of the complaint (the formal document stating the charges against you) and the police report or other information on which your charges are based. Once you and your lawyer have a copy of this information, you have a much better idea what kind of case you have. The defendant is also given an opportunity at this point to enter a plea of guilty, not guilty, or no contest. At the arraignment, you should almost always plead not guilty! You have just received the evidence against you, so why would you want to admit guilt before even examining your case?
If you have been arrested and have an arraignment scheduled, it would be wise of you to contact an attorney immediately. If you do not qualify for, or do not wish to be represented by the Public Defender, it would be prudent to retain private counsel immediately or the initial arraignment will simply be a waste of a morning in court. To speak with a skilled attorney about your case and what can be done, contact the Law Offices of Scott R. Ball today.
5/24/09
Common Traffic Tickets in CA Explained: Stop Signs, Stoplights, and U-Turns
Did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?) If you’ve been cited for one of the many violations of the complex and lengthy California code, it could end up costing you thousands of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. However, armed with knowledge about the elements required for a traffic violation and possible defenses, you can fight your traffic ticket and win. Learn more about some of these common traffic violations:
· VC 22450 – Running a stop sign. This may be a common infraction, but there are many ways to beat this kind of ticket. For instance, if the officer has parked on a cross street when he saw you fail to stop at the sign, it may be possible that his vision was blocked and he didn’t see that you actually did come to a complete stop a few feet behind the line. Other defenses may be possible if the sign is newly installed or markings on the road have been worn away.
· VC 21453 – Running a stoplight. The wording of this law is very similar to the above infraction, but the application and defenses available differ greatly. For one, it is important to understand exactly what constitutes a violation of this section. To be guilty, you must enter the intersection when the light is red. If the front of your vehicle entered the intersection when the light was yellow, you have not broken this law. However, this does not mean you should simply slam on the gas pedal to be sure you enter the intersection a millisecond before the light turns red; an officer may still cite you for reckless driving if your actions are sufficiently dangerous. It is important to remember as well that you should never tell the officer it was a short yellow light – this is very close to admitting you did indeed enter the intersection when it was red.
· Illegal U-turns. There are three types of illegal U-turns, each dealing with the sort of “district” you are in when you are cited. The definition of business, residential, or non-residential and non-business will often be the distinction between whether you were guilty of violating these provisions or not.
o VC 22102 – U-turn in a business district. A “business district” is a place where over 50% of the property fronting the street is devoted to businesses along 300 feet of highway. You can only make a U-turn at an intersection or, on a divided highway, at an opening unless a visible sign prohibits it.
o VC 22103 – U-turn in a residential district. A “residential district” is a place where there are at least 13 houses or businesses on one side of the road or 16 on both sides over a quarter mile stretch. In these areas, you may make a U-turn at any controlled intersection or at any place where no vehicle is approaching within 200 feet in either direction.
o VC 22105 – U-turn in non-residential, non-business districts. This includes any area not defined as “residential” or “business.” Here, you may make a U-turn anywhere (including over double yellow lines, unless they are more than two feet apart) as long as you have an unobstructed view 200 feet in both directions. It does not matter whether a vehicle was approaching or not, only that your view was obstructed.
If you have been cited for any of these common traffic violations, there are very likely defenses available to you that you can use to fight and beat your traffic ticket. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
· VC 22450 – Running a stop sign. This may be a common infraction, but there are many ways to beat this kind of ticket. For instance, if the officer has parked on a cross street when he saw you fail to stop at the sign, it may be possible that his vision was blocked and he didn’t see that you actually did come to a complete stop a few feet behind the line. Other defenses may be possible if the sign is newly installed or markings on the road have been worn away.
· VC 21453 – Running a stoplight. The wording of this law is very similar to the above infraction, but the application and defenses available differ greatly. For one, it is important to understand exactly what constitutes a violation of this section. To be guilty, you must enter the intersection when the light is red. If the front of your vehicle entered the intersection when the light was yellow, you have not broken this law. However, this does not mean you should simply slam on the gas pedal to be sure you enter the intersection a millisecond before the light turns red; an officer may still cite you for reckless driving if your actions are sufficiently dangerous. It is important to remember as well that you should never tell the officer it was a short yellow light – this is very close to admitting you did indeed enter the intersection when it was red.
· Illegal U-turns. There are three types of illegal U-turns, each dealing with the sort of “district” you are in when you are cited. The definition of business, residential, or non-residential and non-business will often be the distinction between whether you were guilty of violating these provisions or not.
o VC 22102 – U-turn in a business district. A “business district” is a place where over 50% of the property fronting the street is devoted to businesses along 300 feet of highway. You can only make a U-turn at an intersection or, on a divided highway, at an opening unless a visible sign prohibits it.
o VC 22103 – U-turn in a residential district. A “residential district” is a place where there are at least 13 houses or businesses on one side of the road or 16 on both sides over a quarter mile stretch. In these areas, you may make a U-turn at any controlled intersection or at any place where no vehicle is approaching within 200 feet in either direction.
o VC 22105 – U-turn in non-residential, non-business districts. This includes any area not defined as “residential” or “business.” Here, you may make a U-turn anywhere (including over double yellow lines, unless they are more than two feet apart) as long as you have an unobstructed view 200 feet in both directions. It does not matter whether a vehicle was approaching or not, only that your view was obstructed.
If you have been cited for any of these common traffic violations, there are very likely defenses available to you that you can use to fight and beat your traffic ticket. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
Common Traffic Tickets in CA Explained: Accidents and Insurance
Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)
If you’ve been cited for one of the many violations dealing with accidents and insurance, it could end up costing you thousands of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. With a skilled attorney experienced in defending traffic tickets, however, you can fight your traffic ticket and win. Learn more about the most common accident and insurance traffic violations:
· VC 16028 – Proof of insurance. This section of the Vehicle Code requires that you carry proof that the vehicle you are driving is insured. Anytime you are questioned by an officer for proof of insurance, you must produce it or you may be cited. However, an officer may not pull you over simply for the purpose of asking if you are insured. If an officer pulls you over without a valid reason and cites you for this violation, you should speak with an attorney immediately, as you have a very winnable case. There are two ways to be cited for breaking this law:
o If you have insurance but no proof. If you actually do have insurance but merely weren’t carrying the card with you when you were pulled over, this is relatively easy to have dismissed by giving a copy of your current insurance policy or card to the court clerk. Don’t forget to do this, however, as failing to provide proof of insurance is punishable by a fine of over $1,700!
o If you didn’t have insurance when you were cited. If you are cited for violating this section and you simply do not have insurance, you have a big problem. Fines are extremely expensive for this infraction and if you have no proof that you do have insurance, there is not much you can do. However, if the vehicle you are driving is insured by someone else, such as your employer, it is possible to get this sort of violation dismissed. NOTE: NEVER give wrong information to an officer about your insurance. This crime is a misdemeanor and is punishable by an even larger fine and up to five days in jail.
· VC 16075 – Mandatory reporting of certain accidents. This section requires that in any accident involving personal injury or damage of at least $750, all drivers must file an accident report and provide evidence of insurance. Failing to do so can result in the suspension of your license for one year. In fact, even if you are driving someone else’s vehicle, you must comply with this section. If you are facing a violation of this section, it is important you contact a skilled attorney today to prevent the DMV from taking away your license.
· VC 16025 – Exchange of information at accidents. Even if the accident in which you were involved is very minor and less than $750 worth of damage is involved, you are still required by law to exchange information with other drivers involved. If you fail to disclose your name, address, driver’s license number, vehicle identification number, or insurance information, you can be found guilty of an infraction with another hefty fine. However, it is important to realize that this violation must be proved beyond a reasonable doubt.
If you have been cited for any of these common accident and insurance violations, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
If you’ve been cited for one of the many violations dealing with accidents and insurance, it could end up costing you thousands of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. With a skilled attorney experienced in defending traffic tickets, however, you can fight your traffic ticket and win. Learn more about the most common accident and insurance traffic violations:
· VC 16028 – Proof of insurance. This section of the Vehicle Code requires that you carry proof that the vehicle you are driving is insured. Anytime you are questioned by an officer for proof of insurance, you must produce it or you may be cited. However, an officer may not pull you over simply for the purpose of asking if you are insured. If an officer pulls you over without a valid reason and cites you for this violation, you should speak with an attorney immediately, as you have a very winnable case. There are two ways to be cited for breaking this law:
o If you have insurance but no proof. If you actually do have insurance but merely weren’t carrying the card with you when you were pulled over, this is relatively easy to have dismissed by giving a copy of your current insurance policy or card to the court clerk. Don’t forget to do this, however, as failing to provide proof of insurance is punishable by a fine of over $1,700!
o If you didn’t have insurance when you were cited. If you are cited for violating this section and you simply do not have insurance, you have a big problem. Fines are extremely expensive for this infraction and if you have no proof that you do have insurance, there is not much you can do. However, if the vehicle you are driving is insured by someone else, such as your employer, it is possible to get this sort of violation dismissed. NOTE: NEVER give wrong information to an officer about your insurance. This crime is a misdemeanor and is punishable by an even larger fine and up to five days in jail.
· VC 16075 – Mandatory reporting of certain accidents. This section requires that in any accident involving personal injury or damage of at least $750, all drivers must file an accident report and provide evidence of insurance. Failing to do so can result in the suspension of your license for one year. In fact, even if you are driving someone else’s vehicle, you must comply with this section. If you are facing a violation of this section, it is important you contact a skilled attorney today to prevent the DMV from taking away your license.
· VC 16025 – Exchange of information at accidents. Even if the accident in which you were involved is very minor and less than $750 worth of damage is involved, you are still required by law to exchange information with other drivers involved. If you fail to disclose your name, address, driver’s license number, vehicle identification number, or insurance information, you can be found guilty of an infraction with another hefty fine. However, it is important to realize that this violation must be proved beyond a reasonable doubt.
If you have been cited for any of these common accident and insurance violations, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
5/16/09
Common Traffic Tickets in CA Explained: Failure to Yield Tickets
Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)
If you’ve been cited for one of the many violations dealing with failing to yield, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common failure to yield violations:
· VC 21451 & VC 21453 – Right of way in intersections. If another vehicle is in the intersection before you, you must give them the right of way, even if your light is green, you have already come to a complete stop at a stop sign, or before making a right turn on a red light. You do not have to wait until the intersection is completely cleared before entering, but you must not deliberately crowd other vehicles. Whether you are a crowding another vehicle is a subjective interpretation by the citing officer, which can often be successfully challenged in court. NOTE: VC 21453, dealing with failure to yield at a red light, is a particularly harsh offense, with a base fine of $100, which, with penalty assessments and various court fees, will cost you over $400 for a conviction.
· VC 21800 – Uncontrolled four way stops. Remember driver’s ed? If you and one or more vehicles get to a four way stop at the same time, the vehicle to your right has the right of way. However, if any vehicle came to a complete stop first, then that vehicle has the right of way. This violation is often cited when an officer comes to the scene of an accident which they did not see. If this is the case, it is important to remember to never admit to the officer that the other vehicle was there first or that you were at fault. Your admissions can and will be used against you in court.
· VC 21801(a) – Left or U-turn. When you are making a left or U-turn and there is no controlled green arrow signal, you must yield to oncoming traffic. Again, this is another very subjective interpretation by the officer, and it is also another infraction that can be successfully challenged.
· VC 21802 & VC 21803 – Stop and yield signs. Even if you have come to a complete stop, you must still yield to oncoming traffic if, upon entering the intersection, you constitute an “immediate hazard” to any other vehicle. However, this traffic ticket can be challenged by numerous methods, such as obstructions that made you unable to see oncoming traffic, or if the other driver was driving at an unsafe speed.
· VC 21950(a) – Pedestrian in a crosswalk. You must yield to pedestrians at both marked and unmarked crosswalks, even after coming to a complete stop. An unmarked crosswalk is the prolongation of sidewalk boundaries where any two streets meet at right angles. You do not have to wait until the pedestrian has exited the crosswalk, it is only required that any pedestrians are out of the way. This is a different rule than in some states, and police officers can sometimes mistakenly cite you incorrectly. If that is the case, it is important to have an attorney with you to challenge this sort of ticket.
· VC 21951 – Passing vehicle stopped at a crosswalk. If a vehicle in front of you has yielded to a pedestrian, you may not pass that vehicle. This is fairly straight forward, but can be subject to several challenges by a skilled attorney that can create reasonable doubt about your guilt. This section is also a particularly harsh offense, with a base fine of $100, which, with penalty assessments and various court fees, that will cost you over $400 for a conviction.
· VC 21952 – Pedestrian on sidewalk near driveway. You must yield the right of way to a pedestrian on a sidewalk when entering or exiting a driveway. Just because a driveway isn’t a regular roadway, doesn’t mean that you have the right of way!
If you have been cited for any of these failure to yield violations, it may be a good idea for you to challenge your ticket. Often, these sorts of tickets can be reduced to non-moving infractions, which do not result in a point on your record (or an increase in your car insurance) or even completely dismissed. If you have more questions about how you can fight your ticket and win, contact the Law Offices of Scott R. Ball today.
If you’ve been cited for one of the many violations dealing with failing to yield, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common failure to yield violations:
· VC 21451 & VC 21453 – Right of way in intersections. If another vehicle is in the intersection before you, you must give them the right of way, even if your light is green, you have already come to a complete stop at a stop sign, or before making a right turn on a red light. You do not have to wait until the intersection is completely cleared before entering, but you must not deliberately crowd other vehicles. Whether you are a crowding another vehicle is a subjective interpretation by the citing officer, which can often be successfully challenged in court. NOTE: VC 21453, dealing with failure to yield at a red light, is a particularly harsh offense, with a base fine of $100, which, with penalty assessments and various court fees, will cost you over $400 for a conviction.
· VC 21800 – Uncontrolled four way stops. Remember driver’s ed? If you and one or more vehicles get to a four way stop at the same time, the vehicle to your right has the right of way. However, if any vehicle came to a complete stop first, then that vehicle has the right of way. This violation is often cited when an officer comes to the scene of an accident which they did not see. If this is the case, it is important to remember to never admit to the officer that the other vehicle was there first or that you were at fault. Your admissions can and will be used against you in court.
· VC 21801(a) – Left or U-turn. When you are making a left or U-turn and there is no controlled green arrow signal, you must yield to oncoming traffic. Again, this is another very subjective interpretation by the officer, and it is also another infraction that can be successfully challenged.
· VC 21802 & VC 21803 – Stop and yield signs. Even if you have come to a complete stop, you must still yield to oncoming traffic if, upon entering the intersection, you constitute an “immediate hazard” to any other vehicle. However, this traffic ticket can be challenged by numerous methods, such as obstructions that made you unable to see oncoming traffic, or if the other driver was driving at an unsafe speed.
· VC 21950(a) – Pedestrian in a crosswalk. You must yield to pedestrians at both marked and unmarked crosswalks, even after coming to a complete stop. An unmarked crosswalk is the prolongation of sidewalk boundaries where any two streets meet at right angles. You do not have to wait until the pedestrian has exited the crosswalk, it is only required that any pedestrians are out of the way. This is a different rule than in some states, and police officers can sometimes mistakenly cite you incorrectly. If that is the case, it is important to have an attorney with you to challenge this sort of ticket.
· VC 21951 – Passing vehicle stopped at a crosswalk. If a vehicle in front of you has yielded to a pedestrian, you may not pass that vehicle. This is fairly straight forward, but can be subject to several challenges by a skilled attorney that can create reasonable doubt about your guilt. This section is also a particularly harsh offense, with a base fine of $100, which, with penalty assessments and various court fees, that will cost you over $400 for a conviction.
· VC 21952 – Pedestrian on sidewalk near driveway. You must yield the right of way to a pedestrian on a sidewalk when entering or exiting a driveway. Just because a driveway isn’t a regular roadway, doesn’t mean that you have the right of way!
If you have been cited for any of these failure to yield violations, it may be a good idea for you to challenge your ticket. Often, these sorts of tickets can be reduced to non-moving infractions, which do not result in a point on your record (or an increase in your car insurance) or even completely dismissed. If you have more questions about how you can fight your ticket and win, contact the Law Offices of Scott R. Ball today.
5/8/09
Common Traffic Tickets in CA Explained: Passing and Lane Changing Tickets
Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)
If you’ve been cited for one of the many violations dealing with passing or changing lanes, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common passing and lane changing violations:
· VC 21658(a) – Unsafe lane changes. A violation of this section results when you either straddle two lanes or make a lane change without regard for “reasonable safety.” However, just because you signal your lane change does not necessarily make it “reasonably safe.” This is a subjective interpretation by the officer who gives you the ticket. An experienced attorney can challenge this subjectivity and often have this kind of citation dismissed.
· VC 21655.5 through 21655.9 – Traveling in, and crossing into a high occupancy vehicle lane. Also known as the carpool lane, these violations are extremely expensive, with a $100 base fine that comes out to a total fine and fees of over $400. However, these infractions are subject to requirements that certain surveys have been conducted within a specified time period before you received your ticket. If a proper survey has not been conducted in the requisite time period, your ticket should be dismissed.
· VC 21750 & VC 21751 – Dangerous passing. This section requires that you “interfered with the safe operation” of any vehicle or bicycle while in the act of passing. Unless you have caused a near accident, this is a violation that is relatively easy to fight due to the extremely subjective nature of the wording of the law.
· VC 21752 – Unsafe “blind” passing. Similar to the previous section, this infraction prohibits unsafe passing when there is an obstacle (such as a hill or curve) where another vehicle might approach. It does not matter if another vehicle was approaching or not.
· VC 21754 & VC 21755 – Passing on the right. You are generally prohibited from passing on the right side of a vehicle unless you are on a divided highway or the passed vehicle is making a left hand turn. There are, however, exceptions to this rule, such as where the street is wide enough to accommodate two lanes of traffic.
· VC 22526 – Entering an obstructed intersection. Also known as the “Anti-Gridlock Act,” this infraction results when you enter an intersection and there is not sufficient space to get completely through the intersection before the light turns red. Even if you entered the intersection when your light was green, if you get stuck blocking traffic, you can be cited for this offense. Further, if there are posted signs warning about the offense, your fine will be doubled.
If you have been cited for any of these passing or lane change violations, it would be wise of you to contact an attorney. Often, these sorts of tickets can be reduced to non-moving infractions, which do not result in a point on your record (or an increase in your car insurance) or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.
If you’ve been cited for one of the many violations dealing with passing or changing lanes, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common passing and lane changing violations:
· VC 21658(a) – Unsafe lane changes. A violation of this section results when you either straddle two lanes or make a lane change without regard for “reasonable safety.” However, just because you signal your lane change does not necessarily make it “reasonably safe.” This is a subjective interpretation by the officer who gives you the ticket. An experienced attorney can challenge this subjectivity and often have this kind of citation dismissed.
· VC 21655.5 through 21655.9 – Traveling in, and crossing into a high occupancy vehicle lane. Also known as the carpool lane, these violations are extremely expensive, with a $100 base fine that comes out to a total fine and fees of over $400. However, these infractions are subject to requirements that certain surveys have been conducted within a specified time period before you received your ticket. If a proper survey has not been conducted in the requisite time period, your ticket should be dismissed.
· VC 21750 & VC 21751 – Dangerous passing. This section requires that you “interfered with the safe operation” of any vehicle or bicycle while in the act of passing. Unless you have caused a near accident, this is a violation that is relatively easy to fight due to the extremely subjective nature of the wording of the law.
· VC 21752 – Unsafe “blind” passing. Similar to the previous section, this infraction prohibits unsafe passing when there is an obstacle (such as a hill or curve) where another vehicle might approach. It does not matter if another vehicle was approaching or not.
· VC 21754 & VC 21755 – Passing on the right. You are generally prohibited from passing on the right side of a vehicle unless you are on a divided highway or the passed vehicle is making a left hand turn. There are, however, exceptions to this rule, such as where the street is wide enough to accommodate two lanes of traffic.
· VC 22526 – Entering an obstructed intersection. Also known as the “Anti-Gridlock Act,” this infraction results when you enter an intersection and there is not sufficient space to get completely through the intersection before the light turns red. Even if you entered the intersection when your light was green, if you get stuck blocking traffic, you can be cited for this offense. Further, if there are posted signs warning about the offense, your fine will be doubled.
If you have been cited for any of these passing or lane change violations, it would be wise of you to contact an attorney. Often, these sorts of tickets can be reduced to non-moving infractions, which do not result in a point on your record (or an increase in your car insurance) or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.
5/7/09
Know Your Rights! How to Fight a Traffic Ticket
You see the dreaded red lights flashing in your rear view mirror. The police officer approaches your car, and before you can get a single word out he simply says “license and registration.” You sign next to the X, and a few weeks later, you get a notice in the mail saying you need to show up at a courthouse or pay a fine of several hundred dollars.
Let’s say that you feel the ticket was unfair. The cop says he caught you on radar going 85, but you know for a fact that you had the cruise control set at 75. He clearly meant to pull over that other silver Nissan Maxima and got you instead. Or maybe you’ve already done traffic school, and your insurance rates are going to take a major hike if you take another point on your record. You need to challenge this ticket. What do you do?
Pay attention to the copy of the ticket given to you at the time you are pulled over. Sometimes it will have a date to appear, sometimes it won’t. The court will send you a notice in the mail about when you need to appear in court to challenge the ticket. However, if that notice gets lost in the mail, you are out of luck if you fail to appear. The court (unfairly) assumes that if the notice is mailed, you have received it. A failure to appear will result in a civil assessment (penalty) of $300 in addition to the underlying fine for the traffic infraction.
Your initial appearance is called the arraignment. At this time, the court will explain your rights to you and ask for a plea of guilty or not guilty. It will vary by the county, but if you have not done traffic school in the past year, you will generally be allowed to plead guilty and pay the fine plus an additional assessment (usually $40-$70) to attend traffic school. This will keep a point off your record. Traffic school is generally an eight hour course and costs another $40-$80.
If you are ineligible for traffic school or just want to contest an undeserved ticket, you can plead not guilty at your arraignment and set your case for trial. However, if you represent yourself at this stage, you must post bail, which will be for the amount of your fine. If you are represented by an attorney, you will not need to post bail, and it will not even be necessary for you to ever go to court.
When you plead not guilty you will set your case for trial, usually 4 to 6 weeks in the future. The trial will usually be in the same courtroom, and will consist of you and the officer who gave you the ticket telling the judge your story, similar to the format you’ve seen on “The People’s Court.” You have the right to present evidence such as photos, and to have witnesses testify in your defense. The officer who gave you the ticket, since he writes hundreds (or thousands) of tickets, will probably testify based upon his notes. The judge will decide if, based on the evidence testimony presented, it has been proved beyond a reasonable doubt if you committed the infraction.
If you are found guilty, the bail you previously posted will be forfeited, and a point (or two, if it is a more serious infraction such as reckless driving) will go on your record. If you are found not guilty, your bail will be returned by the court, usually via check within 4 to 6 weeks.
There are many ways to win at trial! The easiest way is if the officer simply does not show up. This is fairly common. Sometimes the officer won’t recall any details of the ticket, and will admit this, and the ticket and fine will be dismissed. Even if the officer does show up and remembers giving you the ticket, it still must be proved beyond a reasonable doubt that you committed every element of the violation alleged. If radar was used to cite you for speeding, there are technical rules that must be followed to allow the use of radar. If the citation was at night or in heavy traffic, the officer must demonstrate beyond a reasonable doubt that yours was the car that committed the violation. This can often be very difficult! You have a right to cross examine the officer and challenge his powers of observation. In short, it is VERY possible to win at trial!
Of course, the best way to fight and beat your traffic ticket is to retain an experienced attorney. By having an attorney on your side, you will not need to miss at least two days of work, you will not need to post bail of several hundred dollars, and you can be sure you are not hit with any failure to appear fines. Further, an attorney who has handled many cases exactly like yours will know just how to attack any traffic infraction, and will create the reasonable doubt that will make it impossible for you to be found guilty.
If you don’t want to pay increasingly expensive fines, not miss work, keep points off your record, and avoid car insurance increases, you should retain an attorney to fight your traffic ticket today. Contact the Law Offices of Scott R. Ball today for your free and completely confidential evaluation of your case.
Let’s say that you feel the ticket was unfair. The cop says he caught you on radar going 85, but you know for a fact that you had the cruise control set at 75. He clearly meant to pull over that other silver Nissan Maxima and got you instead. Or maybe you’ve already done traffic school, and your insurance rates are going to take a major hike if you take another point on your record. You need to challenge this ticket. What do you do?
Pay attention to the copy of the ticket given to you at the time you are pulled over. Sometimes it will have a date to appear, sometimes it won’t. The court will send you a notice in the mail about when you need to appear in court to challenge the ticket. However, if that notice gets lost in the mail, you are out of luck if you fail to appear. The court (unfairly) assumes that if the notice is mailed, you have received it. A failure to appear will result in a civil assessment (penalty) of $300 in addition to the underlying fine for the traffic infraction.
Your initial appearance is called the arraignment. At this time, the court will explain your rights to you and ask for a plea of guilty or not guilty. It will vary by the county, but if you have not done traffic school in the past year, you will generally be allowed to plead guilty and pay the fine plus an additional assessment (usually $40-$70) to attend traffic school. This will keep a point off your record. Traffic school is generally an eight hour course and costs another $40-$80.
If you are ineligible for traffic school or just want to contest an undeserved ticket, you can plead not guilty at your arraignment and set your case for trial. However, if you represent yourself at this stage, you must post bail, which will be for the amount of your fine. If you are represented by an attorney, you will not need to post bail, and it will not even be necessary for you to ever go to court.
When you plead not guilty you will set your case for trial, usually 4 to 6 weeks in the future. The trial will usually be in the same courtroom, and will consist of you and the officer who gave you the ticket telling the judge your story, similar to the format you’ve seen on “The People’s Court.” You have the right to present evidence such as photos, and to have witnesses testify in your defense. The officer who gave you the ticket, since he writes hundreds (or thousands) of tickets, will probably testify based upon his notes. The judge will decide if, based on the evidence testimony presented, it has been proved beyond a reasonable doubt if you committed the infraction.
If you are found guilty, the bail you previously posted will be forfeited, and a point (or two, if it is a more serious infraction such as reckless driving) will go on your record. If you are found not guilty, your bail will be returned by the court, usually via check within 4 to 6 weeks.
There are many ways to win at trial! The easiest way is if the officer simply does not show up. This is fairly common. Sometimes the officer won’t recall any details of the ticket, and will admit this, and the ticket and fine will be dismissed. Even if the officer does show up and remembers giving you the ticket, it still must be proved beyond a reasonable doubt that you committed every element of the violation alleged. If radar was used to cite you for speeding, there are technical rules that must be followed to allow the use of radar. If the citation was at night or in heavy traffic, the officer must demonstrate beyond a reasonable doubt that yours was the car that committed the violation. This can often be very difficult! You have a right to cross examine the officer and challenge his powers of observation. In short, it is VERY possible to win at trial!
Of course, the best way to fight and beat your traffic ticket is to retain an experienced attorney. By having an attorney on your side, you will not need to miss at least two days of work, you will not need to post bail of several hundred dollars, and you can be sure you are not hit with any failure to appear fines. Further, an attorney who has handled many cases exactly like yours will know just how to attack any traffic infraction, and will create the reasonable doubt that will make it impossible for you to be found guilty.
If you don’t want to pay increasingly expensive fines, not miss work, keep points off your record, and avoid car insurance increases, you should retain an attorney to fight your traffic ticket today. Contact the Law Offices of Scott R. Ball today for your free and completely confidential evaluation of your case.
5/2/09
California Penal Code 851.8 Petition for Factual Innocence
Many people do not realize that if you are arrested, even if the charges are dropped or never filed, the arrest will remain on your record. If you go to trial and receive a not guilty verdict, or have the conviction successfully expunged, the arrest will stay on your record as well. Unfortunately, even if it is clear you did not commit any crime, a background check will still reveal your arrest. In an abysmal economy, this kind of black mark on your record can make an already difficult job search even more so.
However, there is a way to have your arrest record completely destroyed. The California Penal Code provides that any person whose arrest did not result in a conviction may petition for a finding of factual innocence (PFI) under Section 851.8. This is a process by which a petitioner may prove to the court that he or she is actually innocent. A successful PFI can provide something that a jury cannot: an acquittal at trial merely means the person is not guilty beyond a reasonable doubt, but does not prove that the person is in fact innocent. A PFI does exactly that.
The result of a granted PFI is that all arrest and prosecution records are sealed, and then destroyed. In effect, this will completely wipe your record of that arrest clean. The law states that “the arrest will be deemed to have not occurred and the person may answer accordingly any question relating to its occurrence.” This can be of enormous importance when filling out job applications.
When filing for a PFI, time is of the essence. The law requires that you file your petition within two years of your arrest or the filing of charges against you, whichever is later, unless good cause is shown. Good cause can be shown in various ways, such as if the case drags unnecessarily slow through the court system.
If you have been arrested for a crime you did not commit and were never convicted and you meet the timing requirements, you are eligible to file a PFI. The broad protection afforded by a successful PFI can be invaluable to preserve your record. If you are interested having your arrest record destroyed, you should contact criminal defense attorney Scott R. Ball today.
However, there is a way to have your arrest record completely destroyed. The California Penal Code provides that any person whose arrest did not result in a conviction may petition for a finding of factual innocence (PFI) under Section 851.8. This is a process by which a petitioner may prove to the court that he or she is actually innocent. A successful PFI can provide something that a jury cannot: an acquittal at trial merely means the person is not guilty beyond a reasonable doubt, but does not prove that the person is in fact innocent. A PFI does exactly that.
The result of a granted PFI is that all arrest and prosecution records are sealed, and then destroyed. In effect, this will completely wipe your record of that arrest clean. The law states that “the arrest will be deemed to have not occurred and the person may answer accordingly any question relating to its occurrence.” This can be of enormous importance when filling out job applications.
When filing for a PFI, time is of the essence. The law requires that you file your petition within two years of your arrest or the filing of charges against you, whichever is later, unless good cause is shown. Good cause can be shown in various ways, such as if the case drags unnecessarily slow through the court system.
If you have been arrested for a crime you did not commit and were never convicted and you meet the timing requirements, you are eligible to file a PFI. The broad protection afforded by a successful PFI can be invaluable to preserve your record. If you are interested having your arrest record destroyed, you should contact criminal defense attorney Scott R. Ball today.
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