If you receive a ticket which you felt was totally unjustified, you have every right to challenge it. The problem is, to do so you need to take time off from work to go to court, right? And c’mon, you’ve seen traffic court, it is a total PAIN, as you may spend hours simply waiting for your case to be called.
There is another solution. California allows a person to file what’s called a Trial By Declaration (TBD), which is basically fighting your ticket through the mail. It works like this:
In order to file a TBD, you must post bail, which will be the amount you owe on the ticket. (Don’t worry, if you win, you will get that money back.) The court will not allow you to file a TBD without first posting bail. Call the court clerk in your county with your case number and ask for the bail amount.
Also ask the clerk if there are any local rules you must follow to file a TBD, as there may be procedural differences between counties. However, the forms you fill out are state wide, and the official forms will be accepted throughout California.
The forms you will initially need are the TR-200 “Instructions to Defendant” and TR-205 “Request for Trial by Declaration.” These forms can be downloaded here.
Completely fill out the Request for TBD form and sign it. You may include evidence such as photographs, diagrams, and a statement of what happened (just attach whatever you need). Your written statement must always include the following language: “I declare under penalty of perjury that this statement is true and correct.”
It is helpful to review the law and understand what you have been cited for. You should look up the vehicle (or other) code section to see if you can disprove an element of the offense. A copy of the vehicle code can be found online here.
Once you have filled out your form with your argument, send the completed form along with the proper bail amount to the court clerk. Once the request is received, the court will notify the officer to prepare a declaration regarding the infraction as well. A judge will review the declarations and make a decision.
In your declaration, you may request traffic school in the event you are found guilty. If you do not intend to challenge that decision, and you are eligible for traffic school, this is a good idea. However, a judge does NOT have to grant traffic school, as it is discretionary at that point. Prior to any type of trial, if you are eligible, you may always attend traffic school.
If you are found guilty, you really haven’t lost everything yet, because you can still request a “Trial de Novo”, which is a new trial in court with the officer present. When you receive notice that you have been found guilty based on the TBD, you have 20 days to request a new trial. To do so, you will need to fill out the form TR-220 “Request for a New Trial”, also found at the website provided above.
When you request a new trial, a date will be set by the court for you to appear. The officer will be subpoenaed to appear as well. At that point, you first want to cross your fingers and hope you win the “traffic cop lottery”. If the officer does not show, your ticket will be dismissed. If s/he does show, you can then either request traffic school prior to trial or proceed to argue your ticket. If you are found guilty, you can still request traffic school but it will be discretionary for the judge to allow it, and many will not do so after trial.
Trials by declaration are a handy way to avoid having to spend a morning or afternoon in court. They are not as successful as a court trial, but they can beat your ticket, especially those that are decidedly undeserved.
If you have questions regarding how to prepare a TBD or fight any traffic or criminal matter, feel free to email at attorneyscottball@gmail.com or call me at 714-973-2024. Thanks and good luck!
4/21/11
Common Traffic Tickets in CA Explained: Failure to Yield
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. This kind of subjectivity can be brought into question in court, and an experienced attorney can often create the reasonable doubt necessary for a finding of not guilty. 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 $450 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 by a skilled attorney.
• 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 common traffic infractions, 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. If you would like a free and completely confidential evaluation of your case, contact the Law Office 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. This kind of subjectivity can be brought into question in court, and an experienced attorney can often create the reasonable doubt necessary for a finding of not guilty. 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 $450 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 by a skilled attorney.
• 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 common traffic infractions, 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. If you would like a free and completely confidential evaluation of your case, contact the Law Office of Scott R. Ball today.
3/11/11
Underage Drinking and Driving - VC 23136 & VC 23140
You probably know that if you are over the age of 21, it is illegal to drive with a blood alcohol level over .08%. You may even be aware of your right to refuse to take the road side breathalyzer test (referred to as a preliminary alcohol screening, or PAS test) if you have not been placed under arrest. (Remember, if you are placed under arrest, you MUST submit to a chemical test, either of your blood or breath.)
But it’s a whole different ball game if you are under 21.
For starters, those who may not legally drink in California also do not have the right to refuse the PAS test. The Vehicle Code specifically provides that any person under the age of 21 who has been legally stopped has given consent to any chemical or screening test to determine BAC. If a person refuses to take the test, his or her license will automatically be suspended for a minimum of year – even if the person is stone cold sober. If the driver does not yet have a license, then it will result in a one year delay in receiving driving privileges.
California exercises a zero tolerance law for underage drivers behind the wheel. Registering a .01% BAC will result in a violation of V.C. 23136. Upon a finding an underage driver has violated the zero tolerance standard, by way of a DMV hearing or a conviction in court, the DMV will automatically impose a one year license suspension.
In addition to the zero tolerance law, an underage driver with a BAC higher than .05% may also be charged with a criminal offense under V.C. 23140. This charge is only used with an underage driver with a BAC between .05% and .07%, because if the driver has a BAC of .08% or higher, he or she would generally be charged with a regular DUI, just like an adult. This is a criminal charge, but it is only an infraction. This means you cannot receive any jail sentence. Any conviction for VC 23140 will result in a one year license suspension, various fines, and will require you to attend a three month alcohol program before your license can be reinstated.
Finally, any person under the age of 21 can still be charged with a DUI under V.C. 23152 just like an adult. Further, the zero tolerance violation will be added to the DUI charge, resulting in the same penalties an adult would face (several thousand dollars in fines, probation, potential jail time, mandatory alcohol education program) in addition to the one year license suspension.
Bottom line, it is extremely risky to drink and drive period, and penalties are much steeper for those under 21. If you have been arrested for underage and have been arrested for DUI, you should contact an attorney immediately. You have exactly ten days from your arrest to contact the DMV to challenge your license suspension. Contact criminal defense attorney Scott R. Ball today for a free and confidential evaluation of your case.
But it’s a whole different ball game if you are under 21.
For starters, those who may not legally drink in California also do not have the right to refuse the PAS test. The Vehicle Code specifically provides that any person under the age of 21 who has been legally stopped has given consent to any chemical or screening test to determine BAC. If a person refuses to take the test, his or her license will automatically be suspended for a minimum of year – even if the person is stone cold sober. If the driver does not yet have a license, then it will result in a one year delay in receiving driving privileges.
California exercises a zero tolerance law for underage drivers behind the wheel. Registering a .01% BAC will result in a violation of V.C. 23136. Upon a finding an underage driver has violated the zero tolerance standard, by way of a DMV hearing or a conviction in court, the DMV will automatically impose a one year license suspension.
In addition to the zero tolerance law, an underage driver with a BAC higher than .05% may also be charged with a criminal offense under V.C. 23140. This charge is only used with an underage driver with a BAC between .05% and .07%, because if the driver has a BAC of .08% or higher, he or she would generally be charged with a regular DUI, just like an adult. This is a criminal charge, but it is only an infraction. This means you cannot receive any jail sentence. Any conviction for VC 23140 will result in a one year license suspension, various fines, and will require you to attend a three month alcohol program before your license can be reinstated.
Finally, any person under the age of 21 can still be charged with a DUI under V.C. 23152 just like an adult. Further, the zero tolerance violation will be added to the DUI charge, resulting in the same penalties an adult would face (several thousand dollars in fines, probation, potential jail time, mandatory alcohol education program) in addition to the one year license suspension.
Bottom line, it is extremely risky to drink and drive period, and penalties are much steeper for those under 21. If you have been arrested for underage and have been arrested for DUI, you should contact an attorney immediately. You have exactly ten days from your arrest to contact the DMV to challenge your license suspension. Contact criminal defense attorney Scott R. Ball today for a free and confidential evaluation of your case.
3/9/11
Common Traffic Tickets in CA Explained: Impeding Traffic
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 impeding traffic, 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 impeding traffic violations:
• VC 21654 – Driving too slowly in the left lane. This section of the Vehicle Code makes it illegal to drive in any lane except for the far right lane if you are traveling at “less than the normal speed of traffic.” If you are driving in the left lane you must drive with the speed of traffic – sometimes even if the speed of traffic is above the posted limit. However, there are several defenses to violations of this infraction which are particularly effective, such as showing that you were about to make a left turn or you were in the process of passing another vehicle. With a skilled attorney on your side, tickets for this sort of infraction can often be dismissed.
• VC 22400(a) – Impeding traffic. You must drive at a reasonable speed so as not to block the normal flow of traffic, regardless of which lane you are in. This is a subjective call by the officer giving you the ticket. It is possible to argue, however, that your speed was reasonable given the road conditions or the safe operation of your particular vehicle. There are many conditions, such as visibility and weather, which an experienced attorney can use to argue that you were in fact driving at a speed necessary for the safe operation of your vehicle.
• VC 21656 – Failure to use turnouts. This section requires that you were driving at a slower rate than the normal flow of traffic on a two lane highway (one in each direction), there were at least five vehicles behind you, and you failed to pull over in a marked turnout area. Unlike the previous section, it is no defense to this violation that you were traveling at speed necessary for the safe operation of your vehicle; if you failed to pull over at a turnout when you could have, you are guilty. However, it is possible to fight and win against this sort of violation with an experienced attorney at your side.
• VC 21703 – Tailgating. You may not follow too closely to another vehicle given your speed, the flow of traffic, and road conditions. This is a subjective call by the citing officer. A general rule of thumb is one car length (about 15 feet) for every 10 mph of speed. However, the determination will be what is “reasonable and prudent” – which may depend on the mood of the officer. This subjective interpretation by the officer can be often successfully be challenged in court.
If you have been cited for any of these common traffic infractions, 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. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
If you’ve been cited for one of the many violations dealing with impeding traffic, 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 impeding traffic violations:
• VC 21654 – Driving too slowly in the left lane. This section of the Vehicle Code makes it illegal to drive in any lane except for the far right lane if you are traveling at “less than the normal speed of traffic.” If you are driving in the left lane you must drive with the speed of traffic – sometimes even if the speed of traffic is above the posted limit. However, there are several defenses to violations of this infraction which are particularly effective, such as showing that you were about to make a left turn or you were in the process of passing another vehicle. With a skilled attorney on your side, tickets for this sort of infraction can often be dismissed.
• VC 22400(a) – Impeding traffic. You must drive at a reasonable speed so as not to block the normal flow of traffic, regardless of which lane you are in. This is a subjective call by the officer giving you the ticket. It is possible to argue, however, that your speed was reasonable given the road conditions or the safe operation of your particular vehicle. There are many conditions, such as visibility and weather, which an experienced attorney can use to argue that you were in fact driving at a speed necessary for the safe operation of your vehicle.
• VC 21656 – Failure to use turnouts. This section requires that you were driving at a slower rate than the normal flow of traffic on a two lane highway (one in each direction), there were at least five vehicles behind you, and you failed to pull over in a marked turnout area. Unlike the previous section, it is no defense to this violation that you were traveling at speed necessary for the safe operation of your vehicle; if you failed to pull over at a turnout when you could have, you are guilty. However, it is possible to fight and win against this sort of violation with an experienced attorney at your side.
• VC 21703 – Tailgating. You may not follow too closely to another vehicle given your speed, the flow of traffic, and road conditions. This is a subjective call by the citing officer. A general rule of thumb is one car length (about 15 feet) for every 10 mph of speed. However, the determination will be what is “reasonable and prudent” – which may depend on the mood of the officer. This subjective interpretation by the officer can be often successfully be challenged in court.
If you have been cited for any of these common traffic infractions, 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. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
3/7/11
Common Traffic Tickets in CA Explained: Non-DUI Drinking Offenses
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 non-DUI alcohol-related offenses, 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 alcohol-related traffic violations:
• VC 23222(a) – Open container on person of driver. This is the most common of the “minor” alcohol offenses. A violation of this section requires that the driver of a vehicle hold an open container with contains any amount of alcohol. While the law states that the driver must have alcohol on “his or her person” this section is often cited if an officer wishes to ticket a driver when a passenger possesses an alcoholic beverage. If this is the case, you have a very winnable case. If the officer wished to cite someone for having an open alcoholic container, he should have cited the passenger under VC 23226, as discussed below.
• VC 23225(a) – Open container kept in vehicle by driver or owner. This section varies from the violation immediately above because it does not require an open container be on the “person” of the driver. You may be cited for this offense if there is an open alcohol container located almost anywhere in your vehicle besides the trunk. However, it is not necessary to even be driving – you may be cited for this offense if you are the owner of the vehicle and someone else is driving, or if you are parked on the side of the road.
• VC 23220 – Driver drinking in vehicle. The elements to violate this section require that a person driving a vehicle drink an alcoholic beverage. However, to be found guilty on this defense, an officer must actually see you drinking from a can or bottle; an officer merely observing a driver with an alcoholic beverage and smelling alcohol on the driver’s breath is not sufficient to prove a violation of this section. It is common for a citing officer to make this improper conclusion.
• VC 23221(b), 23223(b), & 23226(b). Alcohol violations involving a passenger. Unlike the violations discussed above, these vehicle code infractions involve passengers. For these sorts of violations, it is not necessary to be the driver or owner of the vehicle, and in fact it is often not even necessary to be in a moving vehicle; a person can be cited while a vehicle is parked on a public street. However, these violations are open to the same sort of challenges as discussed above.
If you have been cited for any of these common traffic infractions, 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. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
If you’ve been cited for one of the many violations dealing with non-DUI alcohol-related offenses, 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 alcohol-related traffic violations:
• VC 23222(a) – Open container on person of driver. This is the most common of the “minor” alcohol offenses. A violation of this section requires that the driver of a vehicle hold an open container with contains any amount of alcohol. While the law states that the driver must have alcohol on “his or her person” this section is often cited if an officer wishes to ticket a driver when a passenger possesses an alcoholic beverage. If this is the case, you have a very winnable case. If the officer wished to cite someone for having an open alcoholic container, he should have cited the passenger under VC 23226, as discussed below.
• VC 23225(a) – Open container kept in vehicle by driver or owner. This section varies from the violation immediately above because it does not require an open container be on the “person” of the driver. You may be cited for this offense if there is an open alcohol container located almost anywhere in your vehicle besides the trunk. However, it is not necessary to even be driving – you may be cited for this offense if you are the owner of the vehicle and someone else is driving, or if you are parked on the side of the road.
• VC 23220 – Driver drinking in vehicle. The elements to violate this section require that a person driving a vehicle drink an alcoholic beverage. However, to be found guilty on this defense, an officer must actually see you drinking from a can or bottle; an officer merely observing a driver with an alcoholic beverage and smelling alcohol on the driver’s breath is not sufficient to prove a violation of this section. It is common for a citing officer to make this improper conclusion.
• VC 23221(b), 23223(b), & 23226(b). Alcohol violations involving a passenger. Unlike the violations discussed above, these vehicle code infractions involve passengers. For these sorts of violations, it is not necessary to be the driver or owner of the vehicle, and in fact it is often not even necessary to be in a moving vehicle; a person can be cited while a vehicle is parked on a public street. However, these violations are open to the same sort of challenges as discussed above.
If you have been cited for any of these common traffic infractions, 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. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
3/2/11
Stages of a Felony Case in CA Prior to Trial
If you are arrested for a felony in California and are taken into custody, you have a right to be brought before a judge within 48 hours, excluding weekends and holidays. This initial appearance is the arraignment. If you make bail or otherwise are not in custody, your arraignment will generally be set within a reasonable time, usually within a few weeks.
At the arraignment, you will be informed of the charges and any sentencing enhancements filed against you. If you are in custody, bail will also be set at that time. You will have the option to enter a plea of guilty or not guilty, or you may request a continuance of your arraignment to seek counsel or as part of a potential plea which may only be offered by the prosecution prior to arraignment.
Following a not guilty plea at the arraignment, the vast majority of cases in California proceed by way of a preliminary hearing, which you are entitled to have held within 10 court days. Preliminary hearings are a kind of “mini trial” put on before a judge with no jury. Unlike a jury trial in which your guilt must be proved beyond a reasonable doubt, in a prelim the prosecution must put on enough evidence only to show that there is “probable cause” to convince the judge that you committed the crimes of which you are accused – a much lower standard. The purpose of a prelim is to weed out charges that are completely unsupported by the evidence without the expense of a full-blown trial. Generally, only a few witnesses will testify for the prosecution at a prelim, and what the defense can present is severely limited. Therefore, prelims rarely last more than a few hours or so.
The prelim is the first chance for the judge to see the evidence in the case. After getting this “preview” of the evidence, the judge will decide if there is in fact the necessary probable cause to believe you have committed the crimes charged. The judge may dismiss or reduce charges at this point.
Following the prelim, the prosecution will be able to review the evidence as well. If a particular witness did poorly on the stand, or if other evidence is shown to be weak, it is possible the prosecution may reduce or dismiss charges. However, they may also decide the evidence presented at prelim justifies additional or even higher charges. A defense attorney may challenge any of the charges based on the evidence presented at prelim thought a 995 motion. A 995 motion is a challenge to the sufficiency of the evidence and is brought before a different judge than the one who conducted the prelim.
If you are held to answer on any of the charges (meaning the judge found probable cause you committed the crime), you will be arraigned a second time within 15 calendar days. Again, you would be presented with the charges against you and given an opportunity to enter a plea. You have a right to a trial to begin within 60 calendar days of this arraignment.
Once your case is assigned to a trial court, your attorney can file additional motions, such as to suppress evidence or demand discovery. This is also an opportunity for your attorney to negotiate with the prosecution and attempt to settle the case.
If you have been accused of committing a felony, it is important that you understand your rights and are protected every step of the way. Contact criminal defense attorney Scott R. Ball today for a free and confidential consultation.
At the arraignment, you will be informed of the charges and any sentencing enhancements filed against you. If you are in custody, bail will also be set at that time. You will have the option to enter a plea of guilty or not guilty, or you may request a continuance of your arraignment to seek counsel or as part of a potential plea which may only be offered by the prosecution prior to arraignment.
Following a not guilty plea at the arraignment, the vast majority of cases in California proceed by way of a preliminary hearing, which you are entitled to have held within 10 court days. Preliminary hearings are a kind of “mini trial” put on before a judge with no jury. Unlike a jury trial in which your guilt must be proved beyond a reasonable doubt, in a prelim the prosecution must put on enough evidence only to show that there is “probable cause” to convince the judge that you committed the crimes of which you are accused – a much lower standard. The purpose of a prelim is to weed out charges that are completely unsupported by the evidence without the expense of a full-blown trial. Generally, only a few witnesses will testify for the prosecution at a prelim, and what the defense can present is severely limited. Therefore, prelims rarely last more than a few hours or so.
The prelim is the first chance for the judge to see the evidence in the case. After getting this “preview” of the evidence, the judge will decide if there is in fact the necessary probable cause to believe you have committed the crimes charged. The judge may dismiss or reduce charges at this point.
Following the prelim, the prosecution will be able to review the evidence as well. If a particular witness did poorly on the stand, or if other evidence is shown to be weak, it is possible the prosecution may reduce or dismiss charges. However, they may also decide the evidence presented at prelim justifies additional or even higher charges. A defense attorney may challenge any of the charges based on the evidence presented at prelim thought a 995 motion. A 995 motion is a challenge to the sufficiency of the evidence and is brought before a different judge than the one who conducted the prelim.
If you are held to answer on any of the charges (meaning the judge found probable cause you committed the crime), you will be arraigned a second time within 15 calendar days. Again, you would be presented with the charges against you and given an opportunity to enter a plea. You have a right to a trial to begin within 60 calendar days of this arraignment.
Once your case is assigned to a trial court, your attorney can file additional motions, such as to suppress evidence or demand discovery. This is also an opportunity for your attorney to negotiate with the prosecution and attempt to settle the case.
If you have been accused of committing a felony, it is important that you understand your rights and are protected every step of the way. Contact criminal defense attorney Scott R. Ball today for a free and confidential consultation.
2/24/11
Bad Law! Password Protect Your Cell Phone!
The Fourth Amendment of the U.S. Constitution protects every person from being free from unreasonable searches and seizures by law enforcement. This means the police must have either a warrant, or some other legitimate reason to be able to search anything in which a person has a “reasonable expectation of privacy”.
One of the reasons often used by police to search a person is when the search is “incident to an arrest” – meaning, if you are lawfully arrested, police may search your clothes and any purse, backpack, etc. with you at the time of your arrest. The point of the search is to determine if you have a weapon or other contraband with you before they take you into custody. Obviously, this sort of search is necessary, and makes sense as an exception from the requirements of the Fourth Amendment. It is not unreasonable for your pockets or backpack to be searched for weapons if you have been legally arrested.
However, in the recent decision in People v. Diaz, the California Supreme Court took this exception to the warrant requirement a step further. In Diaz, the defendant was arrested for his involvement in a drug deal. After being arrested and questioned for approximately 90 minutes, a detective looked through Diaz’s cell phone and found text messages regarding a drug transaction. Diaz challenged this search of his cell phone as a violation of his Fourth Amendment right – obviously he would not be allowed to possess the cell phone in jail, and so it could not contain a weapon or other contraband. Further, if the police wished to search the phone, they could easily have obtained a warrant without any threat of evidence on the phone being deleted, as the phone was no longer in Diaz’s possession.
But the California Supreme Court instead took a dangerous step towards eroding our Constitutional rights by declaring the search legal as “incident to the arrest”. This case appears to open up a host of other privacy issues – can the police now search a person’s iPad in a backpack? What about a laptop in a suitcase? What if the device is password protected? What if the arrest is for something (like a DUI) completely unrelated to potential evidence that could be found on a phone? What if an officer justifies looking through texts or email on the basis of a sham excuse of looking for evidence of the crime, like texts about which bar to meet up with friends?
Very likely, this case will be appealed to the U.S. Supreme Court. Hopefully, the legitimacy of this sort of invasion of privacy will be struck down. Until then, however, it’s a good idea to password protect your phone, iPad, or laptop. If police ask for your password, remember your Fifth Amendment right to remain silent. Always protect yourself!
If you have any questions regarding this or any other criminal law issue, contact criminal defense attorney Scott R. Ball today. Consultations are completely confidential and always free.
One of the reasons often used by police to search a person is when the search is “incident to an arrest” – meaning, if you are lawfully arrested, police may search your clothes and any purse, backpack, etc. with you at the time of your arrest. The point of the search is to determine if you have a weapon or other contraband with you before they take you into custody. Obviously, this sort of search is necessary, and makes sense as an exception from the requirements of the Fourth Amendment. It is not unreasonable for your pockets or backpack to be searched for weapons if you have been legally arrested.
However, in the recent decision in People v. Diaz, the California Supreme Court took this exception to the warrant requirement a step further. In Diaz, the defendant was arrested for his involvement in a drug deal. After being arrested and questioned for approximately 90 minutes, a detective looked through Diaz’s cell phone and found text messages regarding a drug transaction. Diaz challenged this search of his cell phone as a violation of his Fourth Amendment right – obviously he would not be allowed to possess the cell phone in jail, and so it could not contain a weapon or other contraband. Further, if the police wished to search the phone, they could easily have obtained a warrant without any threat of evidence on the phone being deleted, as the phone was no longer in Diaz’s possession.
But the California Supreme Court instead took a dangerous step towards eroding our Constitutional rights by declaring the search legal as “incident to the arrest”. This case appears to open up a host of other privacy issues – can the police now search a person’s iPad in a backpack? What about a laptop in a suitcase? What if the device is password protected? What if the arrest is for something (like a DUI) completely unrelated to potential evidence that could be found on a phone? What if an officer justifies looking through texts or email on the basis of a sham excuse of looking for evidence of the crime, like texts about which bar to meet up with friends?
Very likely, this case will be appealed to the U.S. Supreme Court. Hopefully, the legitimacy of this sort of invasion of privacy will be struck down. Until then, however, it’s a good idea to password protect your phone, iPad, or laptop. If police ask for your password, remember your Fifth Amendment right to remain silent. Always protect yourself!
If you have any questions regarding this or any other criminal law issue, contact criminal defense attorney Scott R. Ball today. Consultations are completely confidential and always free.
12/15/10
Penal Code 594 Vandalism Explained
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.
11/18/10
Easy Ways to Avoid Being Pulled Over
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.
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.
11/15/10
Miranda Rights Explained
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.
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.
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