Elements of the Crime
In order to be convicted of California Penal Code Section 594, vandalism, the prosecution must prove beyond a reasonable doubt that the accused person:
1) maliciously
2) defaced, destroyed, or damaged
3) the property of another.
To act “maliciously” means that the person acted with the intent to cause the damage or defacement. Doing an act which accidentally causes damage, like bumping into a precariously perched vase at a department store and knocking it over, is not vandalism. However, acts will not be considered accidents if, as your mom would say, “you should have known better.” Claiming that you were aiming for a bird when you throw a rock through an office window will not be considered an accident, even if you really were… because you should have known better.
To “deface” property, a person merely needs to make any sort of unauthorized writing, marking, figure, or scratch. It does not need to be permanent. This includes graffiti, scratching initials on a wooden table, writing in a bathroom stall, and technically could even include having a pickle race by throwing them on a glass window (although prosecution in that case is unlikely). Further, property does not have to be destroyed, or even permanently damaged. Even using marker on a glass window, which can be easily washed, can be considered vandalism.
The property of another includes public property or property of which you are the joint owner. This means if you share a home, come home drunk one night, and rip the door off the hinges, you can be found guilty of vandalism. Further, property includes not just personal property but things such as land, buildings, and landscaping like flowers, bushes, and trees.
Punishment
Vandalism can be charged in several different ways, mainly based on the amount of the damage.
Infraction
If you have defaced (but not damaged or destroyed) property of another, the damage is less than $250, and you have not previously been convicted for a vandalism crime, you may be charged with an infraction. You may be fined up to a maximum of $1,000 and will probably be required to do some community service. The court may also order the defendant (and/or his or her parents) to keep specified property in the community free of graffiti for up to 180 days.
Misdemeanor
If you are convicted of maliciously defacing, damaging, or destroying less than $400 of property of another, you can be convicted of misdemeanor vandalism. A sentence for misdemeanor vandalism generally consists of up to three years informal probation, up to one year of county jail, up to $1,000 fine, a one year suspension of your driver’s license (or a delay of one year if you have not received it), counseling and/or community service, and personally cleaning, repairing, replacing, or cleaning the damaged property or keeping specified property in the community free of graffiti for up to a year.
Felony
When the damages to the vandalized property are $400 or more, the prosecutor has the option of charging the crime as either a felony or misdemeanor. Consideration will be given to the circumstances of the crime and your personal criminal history to make this determination.
In addition, even if the damage to the property is less than $400, you may be charged with a felony under certain circumstances, such as if you vandalize a church or use caustic chemicals. If the vandalism can be categorized as a hate crime, it will automatically be charged as a felony.
A felony conviction will subject a person to the terms described above, as well as a state prison sentence of 16 months, two, or three years, a fine of up to $10,000, and formal probation.
If you have been charged with vandalism, contact the Law Office of Scott R. Ball today for a free and confidential evaluation of your case.
The US Constitution protects a person from being stopped by the police without a legitimate reason. Law enforcement may not pull over a vehicle without reasonable suspicion that some sort of crime has been committed. However, that reasonable suspicion can be for ANY crime, including very minor vehicle code infractions. Further, even if the true reason for the stop is because, for example, the driver is black and driving an expensive car in a nice neighborhood, or the occupants are four young men leaving a bar, as long there is a legitimate reason for the stop, these police actions are legal.
There are a number of minor violations police regularly use as an excuse to pull someone over based simply on prejudice. What can you do to avoid these? Don’t commit the following common vehicle code violations.
-Failure to have a front license plate. If your state issues two license plates (as does California), you are required to have both affixed to your vehicle.
-Illegal window tinting. Front side windows must allow at least 70% of light to pass through, and only the top four inches of the windshield may be tinted.
-Burnt-out lights. It is a vehicle code violation for any lights to be inoperable on your vehicle – not just tail and brake lights, but the small light that illuminates your license plate as well.
-Expired registration. This is an easy one to avoid, and probably the one most likely to get you pulled over. Pay your renewal fees, get your smog check, and make it legal!
-Obstructed windshield. It is illegal to have anything attached to the windshield or side windows that may obstruct the view of the driver. This section is commonly violated by affixing a GPS device with a suction cup to the front windshield, or hanging things from the rear view mirror. There is an allowance for stickers or other material in a five inch square on the bottom corner of the windshield on the driver’s side and a seven inch square in the bottom corner of the passenger side.
-Talking on your cell phone. Get a hands free device. They cost significantly less than the $140-something ticket. And given that this is a relatively new law, police WILL pull you over if they see you doing it.
-Don’t be an idiot in general. Excessive speeding, reckless driving, frequent lane changes, failing to signal, rolling through stop signs, and hundreds of other common violations of which you are already aware exist. Use common sense, and don’t give law enforcement the excuse they need to interrupt your commute.
For more information or advice on how to avoid being pulled over, contact The Law Office of Scott R. Ball today. All consultation are free and totally confidential.
Everyone has heard the familiar lines in your favorite police drama: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney…” Most are probably familiar that these warnings are known as a person’s Miranda rights. But what exactly do Miranda rights do?
Miranda rights are meant to inform a person who has been arrested of their basic constitutional rights to remain silent and to speak with an attorney before answering any questions. Miranda warnings are required to be given to a person who has been placed under arrest and is being questioned. If a person who has been placed under arrest is not warned of their constitutional rights, any statements made by that person in response to police questioning may not be used against them in court.
However, if a person is merely detained, and not under arrest, Miranda warnings are not required. This means any statement made before being arrested, for example while performing field sobriety tests after being pulled over on suspicion of DUI, are not subject to the protections of Miranda. If you are placed under arrest and are never given Miranda warnings, this does not offer any protection if no statements are used against you. Further, statements are in violation of Miranda only if they are a result of police questioning. If a person volunteers information without prompting by law enforcement, failure to give Miranda warnings will not protect the admissibility of the statement in court.
Miranda warnings are given for a good reason – so listen to them and understand them! You have an absolute right to remain silent. Chances are, if you have already been arrested, you will not be able to talk your way out of it. You also have the right to speak with an attorney. These are the magic words – once you request an attorney, all questioning MUST stop. This is always a smart thing to do.
If you are being questioned by law enforcement about something you don’t want to discuss, your first question should be, “Am I free to go?” If they say yes, then leave. If they say no, then politely but firmly ask for an attorney.
If you have been arrested for a crime in which you believe statements may have been taken from you in violation of your Miranda rights, contact The Law Office of Scott R. Ball today for a free and confidential consultation.
On November 2nd, California voters will have the opportunity to pass a law which largely decriminalizes simple use and possession of marijuana in California. The legislation would have the effect of allowing a person over the age of 21 to legally possess and use up to one ounce of marijuana, and to grow in an area up to 25 square feet.
The proposed legislation also has important financial effects for California. A modest $50 tax per ounce of marijuana sold could raise an estimated $1.4 billion in revenue for the state. State and local governments will save tens of millions more annually due to the reduction of individuals incarcerated, on probation, or on parole. Further, because an estimated 60,000 arrests are made in the state every year for crimes which would no longer be considered criminal activity with the passage of Prop 19, law enforcement would be freed up to focus on fighting actual crimes.
It is important to note the legislation will not change many important marijuana related laws. Selling marijuana, unless by a licensed provider, will still be a serious crime punishable by a state prison sentence. In addition, laws regarding driving under the influence of marijuana remain unchanged, and employers may still test and question employees about marijuana use that affects job performance. Prop 19 will also create several new crimes dealing with providing marijuana to minors.
The net effect of Prop 19 is to allow the controlled use of marijuana in an effort to tax its use, free up law enforcement resources, and cut off the illegal trade from drug cartels. Prop 19 will require a simple majority to pass and currently, most polls show a slight majority in favor of the initiative. However, the proposition faces strong opposition and the passage of Prop 19 is by no means a sure thing.
If you support this important piece of legislation, be sure to register to vote. The deadline to register for the November 2010 election is October 18. You may do so here.
If you have any additional questions regarding Prop 19, the use of marijuana, or any other legal issue, contact the Law Office of Scott R. Ball today.
If you are convicted of driving under the influence in Los Angeles County, a typical first offense without extenuating circumstances will generally have the following consequences:
-Minimum fine of about $1,750. This can be higher based on your prior record and if the arresting agency requires booking fees, which can push it up several hundred dollars.
-Three years of informal probation. Terms of probation include that you violate no law, do not drive with a measurable amount of alcohol in your blood, submit to a chemical test on demand, do not drive without a license or insurance, and disclose your probation status when asked by any law enforcement officer. A violation of your probation can result in additional fines and/or jail time.
-Attend and complete a three month first offender alcohol program, called the AB-541. This class generally consists of weekly meetings of two to three hours in length and costs between $500 - $700.
-Completion of the Mothers Against Drunk Driving Victim Impact Panel class. This is a single two hour class which costs $30 to attend.
-Suspension of your license for six months. However, if your license has already been suspended by the DMV prior to your conviction in the criminal court, the suspension will be retroactive to the date of that suspension. In addition, following the mandatory 30 day hard suspension of your driving privileges by the DMV, you may receive a restricted license once you present proof of financial responsibility and enrollment in the AB-541 program to the DMV.
-Required installation of an ignition interlock device (IID) on your car for five months. An IID is a device into which a driver must provide an alcohol-free breath sample to start his or her vehicle. The device will cost about $150 to install and the maintenance and service for the IID will run about $70/month.
-Increase in insurance premiums by 200% - 500%. Most people don’t realize this hidden cost of a DUI, which can actually be the most expensive penalty of all. However, there are a few tricks that can be utilized to keep this cost to a minimum.
There are many other factors that can increase your total exposure for a DUI conviction. For example:
-If you have any prior convictions for DUI, your penalties will be greatly enhanced, and will most likely result in jail time.
-If you were involved in an accident which resulted in an injury to another, you may be charged with a felony. Even if there is no injury and you are not charged with a felony, you will be required to make restitution to the victim of the accident.
-If it is proved that you refused to submit to a chemical test, your license will be suspended by the DMV for one year and you will likely face jail time.
-If it is proved that you had a blood alcohol level of greater than .20, you will be required to attend a nine month alcohol offender program. This program is similar to the AB-541, but is three times as long and costs around $1,000.
-If you were speeding and driving in a reckless manner, or had a minor in the car at the time of your driving, this can also result in mandatory jail time.
Please keep in mind that these are the consequences for many DUI convictions in Los Angeles County – but there are many circumstances which can increase or decrease your total exposure, and penalties can vary greatly county to county. Further, the law is constantly changing, and fines have increased dramatically in the past few years. For the most current information, contact the Law Office of Scott R. Ball today. Consultations are free and completely confidential.
If you are convicted of driving under the influence in Orange County, a typical first offense without extenuating circumstances will generally have the following consequences:
-Minimum fine of about $1,900. This can be higher based on your prior record and if the arresting agency requires booking fees, which can push it up several hundred dollars.
-Three years of informal probation. Terms of probation include that you violate no law, do not drive with a measurable amount of alcohol in your blood, submit to a chemical test on demand, do not drive without a license or insurance, and disclose your probation status when asked by any law enforcement officer. A violation of your probation can result in additional fines and/or jail time.
-Attend and complete a three month first offender alcohol program, called the AB-541. This class generally consists of weekly meetings of two to three hours in length and costs between $500 - $700.
-Completion of the Mothers Against Drunk Driving Victim Impact Panel class. This is a single two hour class which costs $30 to attend.
-Suspension of your license for six months. However, if your license has already been suspended by the DMV prior to your conviction in the criminal court, the suspension will be retroactive to the date of that suspension. In addition, following the mandatory 30 day hard suspension of your driving privileges by the DMV, you may receive a restricted license once you present proof of financial responsibility and enrollment in the AB-541 program to the DMV.
-Increase in insurance premiums by 200% - 500%. Most people don’t realize this hidden cost of a DUI, which can actually be the most expensive penalty of all. However, there are a few tricks that can be utilized to keep this cost to a minimum.
There are many other factors that can increase your total exposure for a DUI conviction. For example:
-If you have any prior convictions for DUI, your penalties will be greatly enhanced, and will most likely result in jail time.
-If you were involved in an accident which resulted in an injury to another, you may be charged with a felony. Even if there is no injury and you are not charged with a felony, you will be required to make restitution to the victim of the accident.
-If it is proved that you refused to submit to a chemical test, your license will be suspended by the DMV for one year and you will likely face jail time. A typical offer would be five days.
-If it is proved that you had a blood alcohol level of greater than .20, you will be required to attend a nine month alcohol offender program. This program is similar to the AB-541, but is three times as long and costs around $1,000.
-If you were speeding and driving in a reckless manner, or had a minor in the car at the time of your driving, this can also result in mandatory jail time.
Please keep in mind that these are the consequences for many DUI convictions in Orange County – but there are many circumstances which can increase or decrease your total exposure, and penalties can vary greatly county to county. Further, the law is constantly changing, and fines have increased dramatically in the past few years. For the most current information, contact the Law Office of Scott R. Ball today. Consultations are free and completely confidential.
While it might not be on the level of Roe v. Wade or Brown v. Board of Education, a recent ruling by an Orange County appellate court may be just as groundbreaking… in the world of red light camera traffic tickets.
In People v. Khaled, a panel of judges in Santa Ana reviewed a conviction of the defendant on a red light violation. The evidence presented consisted of a video of Khaled driving through an intersection after the light had turned red and the testimony of a Santa Ana police officer. While the officer regularly testified on these types of cases (in fact, is common for these officers to do so dozens of times in a single day), the camera itself was installed and maintained by a private company which had contracted with the city to issue red light tickets. This formula of private company installation and maintenance of the camera plus a police officer testifying to the placement and accuracy of the device has resulted in literally tens of thousands of convictions since red light cameras were invented.
However, the rules of evidence, which are often somewhat ignored in traffic courts, require that for video or photographic evidence to be admissible, a proper foundation must be laid. This means there must be testimony from someone with personal knowledge to say under oath that the camera was in proper working order at the time the picture was taken and that the picture was taken at the place and time alleged.
And this is where the court found the problem on appeal. The officer called to testify against Khaled had no personal knowledge of how the system was maintained or how the date and times were verified, and could only offer general information on how the system worked. Without any evidence to lay the proper foundation, the evidence of the video was inadmissible. And without the video, there was no evidence against Khaled, and his was conviction was overturned.
For now, the ruling will only be binding on courts in Orange County. However, the legal reasoning is sound and may be soon followed in other counties as well. County officials are planning to appeal the decision to the California Supreme Court.
The effect of the ruling is still largely unknown. Some cities in Orange County have begun simply dismissing tickets. Others are pressing forward with prosecutions; most likely hoping defendants haven’t become aware of the decision in Khaled. If the ruling holds up, several solutions are possible, all of which will raise the cost of red light enforcement by municipalities. Potential reactions could include requiring the testifying officer to receive much more in depth training, or having a representative from the company that installed the camera testify as well.
For now, everyone cited for a red light camera violation, for which a conviction results in a fine around $450 plus a point on a person’s driving record, should fight the charge. For those in Orange County, a dismissal should be just about guaranteed. For those outside the county in California, while dismissal will not be automatic, the influential value of Khaled should be extremely important.
For more information regarding how you can fight your red light ticket, contact the Law Office of Scott R. Ball today at 714-973-2024 or attorneyscottball@gmail.com.
You’ve probably seen them before – a few signs, probably some cones, and a whole bunch of police officers with flashlights, usually slowing down a busy road to a crawl on a Friday or Saturday night. A sobriety checkpoint. These stops can either create a small annoyance or a huge concern, depending on your activities that night.
One familiar with the protections entitled by the Fourth Amendment of the U.S. Constitution, which prevents unlawful searches by police, would probably wonder… how is this legal?
In 1987, the California Supreme Court established basic policies law enforcement must follow to ensure the sobriety checkpoints comply with the Constitution. A failure to follow these policies means the checkpoint is illegal – and any arrest resulting from the checkpoint is illegal as well.
First, decisions as to the location of the checkpoint and the procedures to be followed must be made by supervisory law enforcement personnel, rather than an officer in the field. This is intended to prevent important decisions being made by officers with little or no knowledge of the Constitutional requirements. In addition, the length and nature of stops must be as minimal as possible.
Vehicles must be stopped by a predetermined, neutral system – this means they must check, for example, every third car, as opposed to officers in the field making determinations as to who to stop based on appearance. Failure to do so is a clear Constitutional violation and the resulting stop is illegal and should be thrown out in court.
The location must include proper safety precautions, including proper lighting, official markings of law enforcement, and warning signs of the approaching checkpoint, so as not to surprise or frighten the motorist. Depending on the circumstances, it may also be necessary to provide an opportunity for a motorist to turn down a side street to avoid the checkpoint. Further, a person cannot be arrested for merely avoiding a checkpoint without further indication of illegal activities. Simply making a legal turn, even for the specific purpose of avoiding a checkpoint, is not probable cause, and any stop based on solely on this activity is illegal.
Finally, there should be advance publicity made as to the existence of the checkpoint.
If the above policies are not followed, then the checkpoint does not conform to the requirements of the Fourth Amendment and is an infringement of the right to be free from unreasonable search and seizure. If you have been cited for driving under the influence, or in fact, ANY criminal charge based on a stop at a sobriety checkpoint, it is important to understand these policies. If the stop was illegal, then any resulting evidence or statements made are inadmissible in a criminal proceeding, and your case should be dismissed.
For further information contact the Law Office of Scott R. Ball. Consultations are free and completely confidential.
Of course, the best way to avoid being arrested for driving under the influence is to simply not get behind the wheel if you’ve been drinking. However, we all know that sometimes your night doesn’t go as planned, so if you do choose to drive, it’s important for you to know how to be safe and avoid getting pulled over and arrested.
A law enforcement officer cannot simply pull you over at random. He or she must have a reasonable suspicion that you have broken a law. This is often accomplished when they observe a driver speeding, run a red light, swerve between lanes, tailgate, or any number of other common traffic violations. It's a simple fact that drivers under the influence of alcohol drive more recklessly. This is a very bad idea not only because it is obviously extremely unsafe for an inebriated driver to be taking such chances but also because it makes them much more likely to be pulled over. If you know that you may be near or over the legal limit it is crucial that you are highly observant of traffic rules – watch your speedometer, signal for every lane change, and check your review mirror frequently! It sounds simple but most drivers convicted of DUI are pulled over because they are careless at the exact time they should be taking extra caution.
However, even if you take every possible precaution and drive like your grandmother it is still possible to fall victim to some basic dumb luck and be pulled over. There are any number of technical violations for which you can be stopped by a police officer, such as an expired registration, broken tail light, or too-tinted windows. The Fourth Amendment protects you from unreasonable harassment from police – to a point. An officer cannot pull you over simply because you look like you are leaving a party with four obviously drunk friends on your way to pick up some late night Del Taco. However, he can pull you over if he notices that the light illuminating your license plate doesn’t work – even if his real motivation in stopping you is to check to see if you’ve been drinking.
The solution to this scenario is to be prepared. Make sure your vehicle is always in compliance with all vehicle codes. Pay your registration on time, promptly fix all broken lights, and make sure everything is in proper order on any other car you might drive.
Please remember that the only way to completely be safe and avoid a DUI is to not get behind the wheel if you are under the influence. Drinking and driving is never a good idea and in no way is this message meant to encourage it. However, it is in your own best interest to always be extremely aware of your actions and surroundings.
If you receive a speeding ticket in California, the effects can be downright ugly. Fines can reach upwards of $500, your insurance rates can increase, and if you accumulate enough “points” on your record, the DMV will suspend your license. The good news, however, is that there are literally hundreds of ways to fight a speeding ticket when radar is used. Remember, the burden is on the prosecution to prove you guilty, so all you need to do is create a reasonable doubt! If you demand your right to a trial, here are some of the basic defenses:
Demand production of an Engineering and Traffic Survey. This is a rather technical defense, but it’s also one of the best. The California vehicle code requires that when radar is used, it must be done on a road that has had an Engineering and Traffic Survey performed on it within the last five to seven years. If no survey has been performed or the survey has expired, the use of radar makes it an illegal speed trap. Further, you can question the officer as to the stretch of the road that has been surveyed. If it is possible his radar got you outside of that area, then you have just created a reasonable doubt. Case dismissed!
Demonstrate your speed was safe for the prevailing conditions. Most people don’t realize this, but when you are ticketed for speeding at less than 55 mph, the law is actually not that you were traveling faster than the posted speed limit, but that you were going faster than was safe for prevailing conditions. That means you have the chance to prove that, actually, 45 mph in a 35 mph zone was not speeding! You can do this by proving factors that show your speed was reasonable. Was visibility excellent, on a clear, dry day? Was it a straight road with a median and no dips, intersections, or pedestrians? How heavy was traffic, what was the average speed, and how much distance was there in between cars? All these factors and more can be used to show that, in fact, your speed was actually safe despite being over the posted limit.
Question the accuracy of the radar and/or training of the officer. Has the radar been calibrated recently? Has the officer been properly trained on how to use a sophisticated piece of equipment? The farther away the officer is from the vehicle he gets on radar, the more likely he is to miss his target. The officer may mistakenly get a reading from another vehicle, a nearby train, or even windblown tree limbs or driving rain. The key is determining the width of the radar beam and the distance between the officer and the target. When these details are elicited in court, it often becomes obvious that the radar is far from perfect – and also creates a reasonable doubt as to whether you were in fact speeding.
Create reasonable doubt as to the identification of your vehicle. Here is a common scenario: An officer is pulled over on the side of the freeway. A white SUV blows by, and the radar shows a speed of 85 mph. The officer starts his engine, waits until it’s safe, and then takes off in pursuit. Five miles down the road, he catches a white SUV and gives the driver a ticket. What’s the problem here? Well, unless the officer has super-human vision, how does he know this is the same white SUV? Clearly he lost sight of the speeding vehicle when it blew by and he was completely stopped. Further, what if this happens at night, further hampering visibility? And what if the traffic is heavy? Maybe there are a half dozen white SUVs on this particular freeway. The point is, mistaken identification is very common and this is an excellent argument to make in court.
These are only some of the many defenses that can be used for fighting a speeding ticket. Depending on the circumstances of your ticket, there can be a multitude of other ways to get out of that pesky fine and hit on your record. If you want to learn more about how you can fight your ticket, contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
The California Court of Appeal ruled recently that the use of medicinal marijuana is not an automatic violation of probation for non-violent drug offenders participating in “Prop 36” programs. California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was an initiative passed by voters into law that allows qualifying defendants convicted of non-violent drug offenses to complete drug treatment programs in lieu of incarceration. If a participant violates any terms of the probation, which include regular drug tests, he or she will be found in violation of probation and be required to serve a prison or jail sentence.
In the case of People v. Beaty, decided by the Court of Appeal on January 28, 2010, the defendant had been convicted of possession of methamphetamine. The trial court suspended the imposition of a prison sentence and allowed Beaty to participate in the Prop 36 program. The terms of the probation included the usual restrictions on the use of any unauthorized drugs.
As a result of a motorcycle accident in 1998, Beaty was disabled and had been legally prescribed medicinal marijuana to combat his chronic pain. Throughout his intake process and participation in the Prop 36 program, he disclosed his daily use of marijuana to his counselors at the drug treatment center. Unsurprisingly, his drug tests came back positive for marijuana, a purported violation of the terms of his probation. Based on expert testimony that the use of marijuana was “mind altering, habit-forming, and used daily,” the trial court determined that the use of the drug, despite the fact it was legally prescribed, was a violation of Beaty’s probation.
Beaty appealed the decision of the trial court that his use of medicinal marijuana was a violation of his probation. Fortunately, the appellate court agreed with him. Comparing the use of marijuana to Adderall, another mind altering, habit forming drug used daily (to treat attention deficit disorder), the court determined that the use of legally prescribed medicinal marijuana should not be an automatic violation of the terms of probation for the Prop 36 program.
As a result of this decision, thousands of people eligible for Prop 36 will not have to suffer unnecessarily by being either being denied their rights to access safe, approved prescription medication, or by flouting the law and being locked up as a result of attempting to ease their suffering. Undoubtedly, this is a step further in the right direction in allowing for the controlled use of marijuana for medicinal purposes.
For the full text of the opinion, click here.
A criminal conviction can have the result of suspension, revocation, or denial of a real estate license in California. However, not all convictions will result in such disciplinary actions. A number of factors will be used by the California Real Estate Commissioner to determine if a suspension, revocation or denial is appropriate.
First, it must be determined if the circumstances of the crime are substantially related to the functions, qualifications, or duties of a real estate broker or salesperson. For example, a licensee convicted of vandalism for vandalizing a home he or she is attempting to sell is more likely to be disciplined than that same licensee breaking a window during a bar fight. The Commissioner will also consider the seriousness of the offense. Generally, convictions for the following crimes are considered substantially related and can result in discipline:
· any felony;
· theft, embezzlement, or fraud;
· intent or threat to commit significant harm to the person or property of another;
· any sex crime requiring registration pursuant to Penal Code Section 290;
· repeated conduct which shows a willful disregard for the law;
· contempt of court or willful disregard for a court order; and
· two or more convictions involving alcohol or drugs where at least one conviction involves driving and the consumption of alcohol or drugs.
The Commissioner will also consider the past criminal history of a licensee to determine if discipline is necessary. In addition, those holding a real estate broker license will be held to a higher standard than those holding a real estate salesperson license due to the higher level of self-regulation.
Usually the determination of whether discipline is necessary is made by an administrative hearing on a case by case basis, after the conclusion of the criminal case. At the hearing, a licensee may appear with an attorney and present evidence that the conduct was not substantially related to the licensee’s professional duties or mitigating the seriousness of the offense. However, if the licensee was convicted in the criminal court, they may not present evidence to attempt to prove he or she was not guilty.
The administrative hearing may also include an inquiry into the facts of a conviction beyond simply the plea or verdict. For example, a defendant may plead guilty to a lesser included offense that is not substantially related to his or her profession. However, if the circumstances surrounding the original charge are substantially related to his or her profession, the board may inquire regarding those facts in making a determination on whether to deny, revoke, or suspend a license.
It is also important to understand that an acquittal or dismissal of the criminal case will not bar subsequent administrative proceedings to suspend, revoke or deny a license. Even if you are found “not guilty” your license can still be taken away! This is because the “beyond a reasonable doubt” standard in criminal cases is higher than the “clear and convincing proof to a reasonable certainty” standard applicable to the administrative hearing. In the event of an acquittal or dismissal in criminal court, it is often wise for a licensee to petition the court for a finding of factual innocence under Penal Code 851.8 to prevent action against his or her professional license. In addition, a past conviction that has been expunged from a potential licensee’s criminal record can be used as a basis for denying an application for a license.
Because of the many ways in which a professional license can be suspended, revoked, or denied, any time a licensee is facing a potential criminal conviction it is wise to have the assistance of an attorney. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
If you are convicted of a traffic offense, usually you are given the opportunity to attend traffic school. If you cannot fight the ticket and get it dismissed entirely, it is often a good idea to choose the traffic school option, although it will add about $100-$150 more to the total cost you will pay, in the form of court fees and the actual cost of the school. Successfully completing the eight hour traffic school will completely mask the ticket from your record. This means you do not receive a “point” from the DMV and your insurance company will never know you received a moving violation, meaning there will be no effect on your insurance.
Points are added to your record by the DMV to determine negligent drivers. One point is generally accumulated for most moving violations, such as speeding or running a stop light, or for at-fault accidents. Two points are assigned for more serious violations, such as DUI or hit and run. A driver may have his or her license suspended if they receive four points in one year, six points in two years, or eight points in three years.
You may only attend the eight hour traffic school once every 18 months. If you receive a second traffic ticket in that 18 month period, some courts may allow you to take the second offender traffic school, commonly referred to as the 12 hour class. The effects of taking this class are different from the initial traffic school class. Instead of completely masking your public record, the 12 hour class merely changes your record to reflect that the ticket was dismissed via traffic school. This will keep the point off your record for DMV purposes, but will still be visible to your insurance company. Legally, your current insurance company may not raise your rates because of that ticket. However, in actual practice, it is not difficult for a company to do just that by justifying a raise in any number of other ways. Further, any future policy you purchase with that same company or any other insurance company may justifiably have a higher premium due to the conviction.
While it is not uncommon for judges to offer the 12 hour class, it is completely within their discretion. Some judges regularly offer the option while others do not. Some will offer the option only if you do not request a trial. Traffic court is very informal and varies a great deal from one court to the next. Whether to request traffic school, or even whether to plead guilty, will vary greatly depending on each individual’s situation, including his or her previous record, the nature of the offense, and the tendencies of the presiding judge.
If you have been cited for a traffic ticket, it is often a good idea to contact an attorney to discuss your options. Contact the Law Offices of Scott R. Ball for a free and confidential evaluation of your case.
When a person commits an act that is both illegal and causes financial harm to another, that person potentially exposes his or herself to both criminal and civil liability. This can result in two separate and distinct trials, which can have surprisingly different results.
The most famous case of dual criminal and civil trials happened in the mid ‘90s when O.J. Simpson was accused of murder. After O.J. was found not guilty at his criminal trial, the families of the victims brought suit in civil court alleging O.J. was liable for the wrongful death of Nicole Simpson and Ron Goldman. Despite the fact the jury in the criminal case returned a not guilty verdict, the jury in the civil case found O.J. liable for the deaths of the victims and ordered a payment of millions of dollars to the families.
Why the different result? Well, although both cases dealt with the same issue (did O.J. kill Simpson and Goldman?) there is a different standard of proof in criminal and civil trials. To be guilty of a criminal charge, the prosecution must show “beyond a reasonable doubt” that the defendant committed the act. This is the highest standard of proof in our legal system. However to be found liable in a civil suit, the plaintiff need only show a “preponderance of the evidence.” This means it is more likely than not that the defendant committed the alleged act. This is a much lower standard of proof. Therefore, although O.J.’s legal team was able to create a reasonable doubt in the minds of the criminal jury over whether he committed the murder, they were unable to convince the civil jury that it was more likely than not that he was not involved in the victim’s deaths.
As a result of the civil trial, O.J. was found liable financially for the deaths of Simpson and Goldman. Although he did not lose his freedom, he was ordered to make the families whole for the loss in the form of a payment, determined by the jury, of $33.5 million.
For almost any crime that involves a victim, there exists the possibility of an additional civil suit being brought as well. However, the vast majority of the time no civil suit is ever filed. There are several reasons for this. For one, punishment for many crimes include automatic restitution where a defendant found guilty must pay the victim for his or her loss. The main reason civil suits are uncommon, however, is the fact that most defendants simply don’t have the enough wealth to make a costly civil suit worthwhile.
If you have been charged with a crime, it is important to realize the possibility of a civil suit being brought against you, even if the criminal charges are dismissed or you are found not guilty at trial. Contact the Law Offices of Scott R. Ball for a confidential and free evaluation of your case.
