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.
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.
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