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.

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.

Consequences of a DUI Conviction in Los Angeles County

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.

Consequences of a DUI Conviction in Orange County

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.

Sobriety Checkpoints Explained

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.

"Bail" Explained

After a person is arrested and taken into custody, at the first appearance before a judge they have a right to a “bail hearing” where the amount of bail is set. When a defendant makes “bail” this means they are giving a specified amount of money to the court in exchange for being let out of jail with a promise that they will return to court at their next scheduled appearance. If the defendant returns to court as scheduled, the bail is exonerated and the full amount of money is returned. However, if the defendant does not return as promise, the bail is forfeited and the money is kept by the court.

Most people don’t have large amounts of cash lying around, so the most common way for a person to make bail is through a bail bondsman. Generally, a bondsman will charge 10% and require some sort of collateral to post bail on behalf of the defendant. For example, if the bail is $10,000 (the common amount for a second DUI charge), the defendant must give the bondsman $1,000 plus some form of collateral, such as the pink slip to their vehicle. If the defendant does not skip out on bail and returns to court as scheduled, the defendant will receive the collateral back and the bondsman will receive the $10,000 back from the court and keep the 10% fee.

A defendant has a right to a “reasonable” bail. Usually, the judge initially sets bail according to a pre-determined county-wide bail schedule. For example, in Orange County, the charge of rape carries a $100,000 bail, grand theft is $20,000 or the amount stolen, and a first time DUI is $2,500.

However, a judge may deviate from the bail schedule based on many factors relating to the facts surrounding the crime charged and the particular defendant. For example, a defendant charged with a first time DUI who has no criminal history and extensive ties to the community such as a family, job, and property ownership, will likely be able to have his bailed reduced to zero. When bail is reduced to zero, the judge is letting the person off “on his own recognizance” or “O.R.”

A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that a defendant has a long criminal history, is a flight risk, or may be likely to harm another person while out of custody. When a person is facing life in prison or the death penalty, bail will always be denied.

When a person is arrested and taken into custody, the most pressing concern for most is getting out jail. However, it is often a wise decision to make your first call to an attorney and not the bail bondsman. This is because a skilled attorney will be able to negotiate on your behalf the possibility of lowering your bail, and may be able to get you release O.R. In addition, your attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.

For more information or a free and confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.

The Many Ways the DMV Can Suspend Your License

Everyone knows that being arrested for driving under the influence of alcohol can result in the loss of your license, but did you know that there are literally dozens of other ways your license can be suspended? Be aware, here are some ways you can have your license taken away that you may not have realized:

Driving under the influence of ANY drug. The law does not distinguish between illegal and over the counter drugs. This means that if your driving is impaired, you may be arrested for a DUI just as readily from being drowsy from too much NyQuil as being high on cocaine.

Lack of insurance. If you drive in California, you must have a minimum amount of insurance coverage. If you are visiting or just moved to the state, be sure to check with your out-of-state insurance company to confirm they are authorized to do business here.

Refusing to consent to a BAC test. Under California’s implied consent law, by driving a motor vehicle you are agreeing to consent to a chemical test of your breath or blood to determine blood alcohol content.

Failure to appear or pay a traffic ticket. When you sign at the X on a traffic ticket, you are agreeing to pay the fine or appear in court. Failure to do so, even if you never receive anything in the mail, can result in your license being suspended.

Too many points on your record. Four points in one year, six in two years, or eight in three years can result in your license being suspended by the DMV.

Failure to pay child support. If you have failed to pay child support, your license can be suspended, and you may not know why even after you have been arrested.

Vandalism/Graffiti. California law allows the courts to suspend a person’s license for up to two years upon a conviction of vandalism. If the person does not yet have a license, the court may delay the issuance of a license for up to three years.

Possession of firearms or live ammunition. If a minor is convicted of possessing a concealable weapon or live ammunition, the court may revoke or suspend driving privileges.

Other ways your license may be suspended include:

• Engaging in prostitution in a vehicle within 1000 feet of a residence.
• Engaging in a “speed contest” i.e. drag racing against another person or a clock.
• Assaulting a driver, passenger, bicyclist, or pedestrian on a highway. (“Road Rage”)
• Failure to stop at a railway grade crossing.
• Recklessly fleeing a law enforcement officer.
• Leaving the scene of an accident or injury without filing a report.

It is important to be aware of the ways in which your license can be suspended so that you can avoid them. Driving on a suspended license is a criminal offense and can be punished by a $1,000 fine and up to six months in jail. However, if you are charged with or are facing one of the above situations, it is important to have an experienced attorney on your side. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.

"Probation" Explained

You’ve probably met or heard of a person who is “on probation” but have you ever wondered what that actually means? Well, depending on whether the person is on formal or informal probation and the particulars of the crime, it could mean any number of different terms to each individual.

Formal, or “supervised” probation, is the more serious form. Formal probation requires the individual sentenced to make regular reports to a probation officer. Informal probation, also known as a “summary” or “court” probation, or “conditional sentence,” does not require the individual to make regular reports to a probation officer. Both kinds of probation, however, can subject an individual to the loss of many freedoms.

Often, probation is given in lieu of a jail or prison sentence. At the time of conviction, if a defendant is eligible for probation, the judge may either impose a sentence and then suspend the execution of that sentence, or may suspend imposing the sentence at all, in favor of granting probation. Probation consists of a fixed term during which the probationer must abide by the terms set by the court or probation officer. If the probationer breaks his or her probation, for example by committing another crime or failing a drug test, he or she will be subject to the sentence that was suspended by the court at the time probation was granted. This means if you screw up your probation, you are almost assuredly going to jail.

The court or probation officer have broad discretion to impose any “reasonable conditions” necessary to secure justice and assist the “reformation and rehabilitation” of the probationer, as long as the conditions are reasonably related to the offense and aimed at deterring such misconduct in the future. These terms include things like mandatory alcohol or drug testing, community service, counseling, curfews for minors, stay-away orders, electronic monitoring, home detention, travel restrictions, or suspension of a driver’s license.

Probation might not sound like very much fun, but it is often a welcome alternative to jail time. If you are facing a potential conviction on criminal charges, it is important you have an experienced attorney to negotiate on your behalf. A skilled attorney familiar with the judge and district attorney in your case can arrange for probation instead of jail, and will be able to get the best possible terms. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Understanding Sentencing for Multiple Convictions

Often, a defendant is charged with multiple crimes stemming out of the same incident. For example, a person involved in a bar fight may be charged with both assault and disturbing the peace. While both charges are based on the same course of conduct, it is still possible to be found guilty of violating both laws.

In California, the crime of simple assault carries a maximum of six months of jail time while the crime of disturbing the peace carries a maximum of 90 days jail time. However, it is important to realize that while multiple convictions based on a single act or course of conduct are allowed, multiple punishments are barred. This means that a defendant found guilty of both assault and disturbing the peace will only be exposed to the higher of the maximum punishments, in this case, six months in jail for the assault conviction. Other sentences for convictions from the same act must be stayed.

The key to understanding the limit on multiple punishments is whether the course of conduct was in fact an indivisible single transaction. This will depend on the actor’s intent and objective. In the case of the bar patron starting a fight, if the court determines that his intent was to fight an individual, while he can be convicted of the two crimes, he cannot be punished for both.

There are several exceptions to this general rule. Acts of violence with separate victims, multiple sex acts, and certain vehicle code violations are statutorily exempt from this law. Further, if the court can point to a separate objective or similar but consecutive objectives for one of the crimes, it will not be subject to the bar on multiple punishments. If you are facing multiple criminal charges stemming out a single incident, you should speak with an attorney today. These sort of factual distinctions can often be decided both ways, and a skilled attorney is invaluable to have on your side if you face the possibility of multiple sentences. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Clearing Your Criminal Record: Are You Eligible?

California law has several ways in which a person may clean up their criminal record. Depending on the time since your conviction and the circumstances surrounding the charge, it may be possible to have the conviction expunged from your record. When a criminal record is expunged you may legally answer “no” when asked by private employers if you have ever been convicted of a crime.

If you have been convicted of a misdemeanor and were not sentenced to probation or have successfully completed probation: If this is your situation, it is highly likely you will be able to have your record expunged. Contact an attorney today to get started immediately to clear your record. The process can take several months, so it is important to take care of this now, before it becomes absolutely necessary.

If you have been convicted of a misdemeanor and are still on probation: Even though you have not yet completed your probation, it is still possible to have you record expunged. If this is the case, it will be necessary to file a motion to terminate probation. The court will grant such a motion when it serves the “ends of justice.” This means you must have a good reason, i.e. you are unable to find a job or obtain licensure. An experienced attorney can work with you to be able to make a compelling argument to the court. If a motion to terminate probation is not granted, it will still be possible to have your record expunged upon completion of the terms of your probation.

If you have been convicted of a felony and have successfully completed probation, but did not serve time in state prison: If this is the case, you may file a motion to have the felony reduced to a misdemeanor, and then a motion to have the misdemeanor expunged.

If you have been convicted of a felony and have not yet completed probation, but did not serve time in state prison: Even if you haven’t yet finished your probation, it is STILL possible to have your record expunged! However, it will be necessary to have a very good attorney on your side, as several important steps will need to be taken.

If you have been convicted of a felony and sentenced to state prison: Believe it or not, even if you have spent time in state prison, the law still allows a person to improve what is on their record. To have a felony cleared from a person’s record, it is necessary to obtain a certificate of rehabilitation and pardon from the governor.

Remember, in these uncertain economic times, it is more important than ever to have a clean criminal record. Contact the Law Offices of Scott R. Ball today for your free and completely confidential evaluation.

Know Your Rights: Breathalyzers and DUIs

When a person is pulled over for suspicion of drunken driving in California, the officer will often just say “blow in this” and thrust a breathalyzer into his or her mouth. However, it is of the utmost importance for you to be aware: you do not have to submit to such pre-arrest tests!

The California Vehicle Code actually requires that an officer advise a motorist suspected of drunk driving that such a pre-arrest test can be refused. In reality, however, this is extremely rare. Breathalyzers and field sobriety tests like walking a line or touching your finger to your nose are designed to be used as investigative tools for an officer to determine if a person is under the influence of alcohol. However, if you have not been placed under arrest, they are COMPLETELY OPTIONAL.

Once you have been placed under arrest, you MUST submit to a chemical test, but you have the choice of either a breath or blood test. A refusal to submit to a test after being placed under arrest will result in an automatic one year suspension of your license in addition to the DUI charges.

If you have been drinking and are pulled over, there are several ways to use this knowledge to your advantage:

-If you believe you may be close to the legal limit but think you can handle yourself fine, you should agree to perform the field sobriety tests and refuse the breathalyzer. Politely tell the officer that you are concerned about the accuracy of hand held breathalyzers and agree to walk the line, etc. to demonstrate your sobriety. If you can show that you are in control of your motor functions, they might let you simply drive away.

-If you believe you may be close to the legal limit but are nervous or concerned about performing the field sobriety tests, simply refuse all pre-arrest tests. Politely tell the officer that you do not wish to take any pre-arrest sobriety tests because your attorney has advised you that they are extremely inaccurate. You will probably be placed under arrest at this point. You should now insist on a blood test. It will take some time to get to a station where a blood test can be performed. If you are close to the legal limit, by the time you get to the station your BAC may have declined to under .08%.

-If you know for a fact that your BAC is well over the legal limit, politely decline any and all pre-arrest tests. Speak as little as possible, and do not admit any alcohol consumption. Any thing you say or do indicating that you are intoxicated WILL be used against you in court. If you are arrested, insist on a blood test. Again, the time it will take to get you to a station can be an opportunity for your BAC to decline. A BAC over certain limits will result in harsher penalties, and a BAC close to the legal limit may be more easily challenged.

Remember, you pre-arrest tests are optional and post-arrest tests are not. If an officer tries to force you to take a test, simply ask him if you have been placed under arrest. Always be polite and respectful. If the officer asks you why you are refusing a test or requesting a different test, simply tell him you are doing what your lawyer advised you.

For more information on how to fight and prevent DUI arrests and convictions, contact Scott R. Ball today. A confidential evaluation of your case is always free.

Civil Compromises Lead to Dismissal of Criminal Charges

If you have been arrested on criminal charges dealing with damage to another person’s property, it is possible that you may be able to have those criminal charges dismissed through a civil compromise. A civil compromise is available when an offense charged involves damage for which the victim may seek a civil remedy (i.e. a civil suit for damages) and the victim agrees to drop the charges in exchange for payment for the damages. For example, if you are charged with a hit and run for backing into another vehicle, you may be able to pay for the repairs to the victim’s vehicle in exchange for the criminal charges against you being dismissed.

For a court to order a civil compromise, it is NOT necessary for the prosecution to agree to this disposition. As long as the case at hand falls within the statutory guidelines, a civil compromise is appropriate. This outcome is often favorable to both the defendant charged with committing the crime and the victim. The former receives no conviction and resulting criminal record while the latter is fully compensated for his or her loss.

There are several limitations to when a court may order a civil compromise. If the crime committed by the defendant was against a peace officer, or committed riotously or with felonious intent, a civil compromise will not be available. Further, it will not be available when the crime was committed against any family or household member, or against a child or an elder. Many of these definitions, however, are subject to interpretation. A skilled attorney with experience in negotiating civil compromises can successfully argue that a case is eligible for this sort of favorable disposition.

If you have been arrested for a crime and believe you may fit the above criteria to be eligible for a civil compromise, you should contact the Law Offices of Scott R. Ball today. Making a victim whole by compensating them for their damages can lead to the complete dismissal of any criminal charges, leaving all parties satisfied with the outcome.

The Difference Between "Guilty" and "No Contest" Explained

When a person no longer wishes to fight a criminal charge against him or her, he or she has the option of pleading “guilty” or “no contest.” While these may sound quite different, they are actually very similar, albeit with one major difference.

To accept a guilty plea, the court must find a factual basis for guilt. This generally means the judge must be convinced that the defendant admitting guilt, is in fact guilty. A guilty plea is telling the court, “I have committed the criminal acts with which I am charged.”

A no contest plea, also known as a “nolo contendere” plea, has one important difference from a guilty plea. Entering a plea of no contest is effectively telling the court, “I am not admitting I did the criminal act with which I am charged, but I do not wish to challenge these charges.” This is an important difference because a no contest plea allows the defendant to dispose of the criminal proceedings without admitting guilt which may be used against him or her in a later civil trial.

A good example of where a no contest plea would be useful arises when a defendant is accused of running a red light and getting into an accident. The defendant may be facing the criminal charge of a ticket for running the light as well as a civil suit by the owner of the vehicle he hit. Wishing to simply pay the fine for traffic ticket and take traffic school, the defendant here should enter a plea of no contest. That way, he can dispose of the criminal charges without admitting that he did indeed run the red light and open himself up to liability in the much more expensive civil suit.

If you are facing dual criminal and civil charges, it may be wise of you to enter a plea of no contest. Contact criminal defense attorney Scott R. Ball today to discuss your case and find out your options. As always, any consultation is free and completely confidential.

Stopped by Police? Know Your 4th Amendment Rights!

One of the most important protections guaranteed by the United States Constitution is the Fourth Amendment right to be free from unreasonable searches and seizures. However, if one is not aware of such rights, the protections it offers will often not be realized. This is often the case when a motorist is pulled over by a police officer and questioned.

The most important thing to remember is that you NEVER have to give permission to an officer to search anything. Police officers will often “ask” if you mind if they take a look at something in such a way that implies they will do it anyway, and receiving your permission is just a formality. If you say “yes,” then you have just surrendered one of your most important rights! Even if you don’t believe they will find anything illegal, you never know what your buddy might have left in the backseat the night before. Don’t ever let an officer search your person, vehicle or anything else by giving them permission!

For a law enforcement official to search any of your property, they must have significant justification to do so. This can be provided by a search warrant. If an officer does have a search warrant, ask to inspect it before allowing the officer to search anything. A search can also be conducted when an officer has probable cause to believe that such a search will find evidence of illegal activity. This standard is slightly relaxed, however, for a search of your vehicle. In that situation, the officer must only show a “reasonable suspicion.”

If a search of your property has turned up evidence of illegal activity, the officer must show specific evidence that gave rise to show probable cause or reasonable suspicion. An experienced attorney can challenge these findings as failing to give rise to such justification. A successful Fourth Amendment challenge will result in the evidence being thrown out, and probably the case as well!

However, if you have given permission to the officer to perform the search, no such justification is necessary. Therefore, remember to NEVER give permission to an officer to perform any search.

If you have been stopped by law enforcement and you believe you may have been searched illegally, you should contact criminal defense attorney Scott R. Ball today. An evaluation of your case is completely confidential and always free.

P.C. 647(f) “Drunk in Public” Arrests Explained

Also known as a “drunk and disorderly,” California Penal Code Section 647(f) makes it a misdemeanor crime for a person to be under the influence of alcohol or drugs in a public place and to be in such a condition that either:

1) the person’s intoxication makes him or her “unable to exercise care for his or her own safety or the safety others” or

2) due to his or her level of intoxication, the person “interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.”

A conviction for a drunk in public carries with it up to six months of jail time, fines, and probation. Repeat offenders with two prior convictions may face up to a year in jail.

To be convicted of this crime, the prosecution must prove several elements beyond a reasonable doubt. First, the person must be in a public place. Courts have defined a public place as the “area outside a home in which a stranger is able to walk without challenge.” This definition has been expanded somewhat by case law to include a car parked in a public street, the hallway in an apartment building, and the area in front of a house, including the driveway and front porch.

Next, it must be shown that person was in one of the two conditions stated above. An example of person who is unable to care for his or her own safety or the safety of others would be a person who is falling down drunk, unable to walk, with the potential of wandering into traffic. Merely being intoxicated, if you are in control of your facilities, is not enough for a conviction under this standard.

The second way a person may be convicted of this crime is if he or she interferes or obstructs a street, sidewalk, or public way. This can be shown when a person is lying on a street or sidewalk, or otherwise incapacitated in some way. Again, mere intoxication is not enough for a conviction. If you were lying on the ground asleep, but wake up as soon as you are approached by the officer and remove yourself as an obstruction, you should not be found guilty!

In reality, drunk in public violations are often charged, but with the help of a skilled attorney, should rarely result in convictions. Simply put, you must be pretty darn wasted to be found guilty. Even in that case, however, due to the minor nature of the offense it is often possible to enroll in a diversion program in which you may complete an alternative sentence, such as community service or Alcoholics Anonymous classes, and then have the charges dismissed completely. For most people, the most important consideration is the desire to keep a conviction off his or her record. With a charge of P.C. 647(f), that should be possible.

If you have been charged with a drunk in public violation due to a night out of drinking that got just a bit too wild, you should contact an attorney today. Even though this is a minor charge, it is important to make sure you do not end up with an ugly black mark on your record. Contact the Law Offices of Scott R. Ball today for a completely free and always confidential evaluation of your case

What it Means to “Expunge” a Criminal Record

If you have been convicted of a crime, the stigma associated with the conviction is something that can haunt you for the rest of your life. Having to check “yes” on a job application when asked if you have ever been convicted of a crime is often enough to cost you the job, especially in these tough economic times. However, if you were convicted of a misdemeanor and have stayed out of trouble since then, it is actually relatively easy to have that record “expunged.”

It is important to understand what an expungement entails. Most important, after a motion for expungement under CA Penal Code 1203.4 is granted, you may legally check “no” when asked by private employers if you have ever been convicted of a crime. When a criminal conviction is expunged, the law no longer considers you as having been convicted of the offense.

However, it is also important to realize what an expungement does not do. It does not relieve you of your duty to disclose the conviction when you are applying with government employers or government licensing applications. In that situation you may state “Yes – conviction dismissed.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards), will treat you the same as if you had never been convicted of the crime.

In addition, an expungement does not erase the conviction for several other purposes. An expunged criminal conviction can still be used to increase your punishment in future criminal cases. If your conviction prevented you from owning a gun, possessing a driver’s license, or holding a public office, an expungement will not re-instate those privileges.

If you have successfully completed all terms of your probation, paid all of your fines and fees ordered by the court, and have stayed out of trouble (traffic tickets are OK), then it is relatively easy to have a misdemeanor conviction expunged from your record. While there are no guarantees, if all of the above are true in your case, there is an excellent chance your motion for expungement will be granted.

Expunging a criminal record can have a substantial therapeutic effect on a person. For many people, a single youthful transgression can mar an otherwise outstanding record. By expunging your record, that mistake can be forgotten. It’s also great to finally be able to check “no” on that job application!

If you wish to close a forgettable chapter of your life, you should contact the Law Offices of Scott R. Ball today. A discussion and evaluation of your case is completely confidential and free.

Domestic Violence and Victim Restitution – Why You Need to Protect Yourself Even After Disposition

If you are facing criminal charges of domestic violence, it is important to know that there is more to your case than simply the sentence imposed by the court. After a finding of guilty or no contest, the court may then impose additional restitution in an effort to compensate the victim for his or her damages.

A restitution hearing is a type of mini-trial designed to restore the victim’s economic losses he or she suffered due to the defendant’s crime. This can include:
· medical expenses, including mental health and counseling expenses;
· the value of stolen or damaged property;
· lost wages and profits, including wages lost due to injuries suffered from the crime, testifying in court, and attending trial.
· relocation and security expenses;
· investigative expenses incurred by the victim related to the criminal case; and
· attorney’s fees incurred by the victim.

Further, an interest of ten percent can accrue on all orders of restitution made by the court.

A defendant facing potential restitution has the right to be represented by an attorney and dispute the validity and amount of any potential restitution. The court’s power to award restitution is broad and it is possible that a victim can attempt to take advantage of the system by overstating damages, lost wages, and other expenses. It is important for a defendant to have an experienced attorney at his or her side when facing a restitution hearing.

If you are facing domestic violence charges, you must be aware of the potential economic losses you may suffer in restitution damages. Restitution can result in a far greater harm to the defendant than the underlying criminal sentence. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Stages of the Criminal Process: Arraignment

When a person is charged with a crime, the first formal legal process is the arraignment. The arraignment is a hearing before a judge where several important things occur. If a person is in custody, the arraignment must occur with two to three days. Otherwise, arraignment is usually set for a date several weeks in the future.

There are several purposes of an arraignment. First, the defendant is formally read the charges he or she is facing. Next, the defendant is informed of his or her rights. For misdemeanor and felony crimes, these include a right to a jury trial, a right to present evidence, a right to confront adverse witnesses, and, if any jail time is a possibility, a right to an attorney. To be appointed a Public Defender, a defendant must meet certain income criteria. Depending on your income level and assets, the court may or may not decide that you qualify for the services of the Public Defender. If the court determines you do not qualify, generally you will be allowed to continue the arraignment in order to obtain a private attorney.

In a misdemeanor case, even if you do qualify for a Public Defender, it is often wise to obtain the services of a private attorney, because they may appear at the arraignment (and several other proceedings) without your presence. A great benefit of retaining private counsel is the simple fact that you do not have to miss work and spend all morning in a courtroom waiting to be called. This is true in some proceedings in felony cases as well, although courts vary in their requirements for the presence of the defendant.

The arraignment is also the point where the District Attorney (or City Attorney, depending on which agency is prosecuting your case) will provide you or your lawyer with a copy of the complaint (the formal document stating the charges against you) and the police report or other information on which your charges are based. Once you and your lawyer have a copy of this information, you have a much better idea what kind of case you have. The defendant is also given an opportunity at this point to enter a plea of guilty, not guilty, or no contest. At the arraignment, you should almost always plead not guilty! You have just received the evidence against you, so why would you want to admit guilt before even examining your case?

If you have been arrested and have an arraignment scheduled, it would be wise of you to contact an attorney immediately. If you do not qualify for, or do not wish to be represented by the Public Defender, it would be prudent to retain private counsel immediately or the initial arraignment will simply be a waste of a morning in court. To speak with a skilled attorney about your case and what can be done, contact the Law Offices of Scott R. Ball today.

California Penal Code 851.8 Petition for Factual Innocence

Many people do not realize that if you are arrested, even if the charges are dropped or never filed, the arrest will remain on your record. If you go to trial and receive a not guilty verdict, or have the conviction successfully expunged, the arrest will stay on your record as well. Unfortunately, even if it is clear you did not commit any crime, a background check will still reveal your arrest. In an abysmal economy, this kind of black mark on your record can make an already difficult job search even more so.

However, there is a way to have your arrest record completely destroyed. The California Penal Code provides that any person whose arrest did not result in a conviction may petition for a finding of factual innocence (PFI) under Section 851.8. This is a process by which a petitioner may prove to the court that he or she is actually innocent. A successful PFI can provide something that a jury cannot: an acquittal at trial merely means the person is not guilty beyond a reasonable doubt, but does not prove that the person is in fact innocent. A PFI does exactly that.

The result of a granted PFI is that all arrest and prosecution records are sealed, and then destroyed. In effect, this will completely wipe your record of that arrest clean. The law states that “the arrest will be deemed to have not occurred and the person may answer accordingly any question relating to its occurrence.” This can be of enormous importance when filling out job applications.

When filing for a PFI, time is of the essence. The law requires that you file your petition within two years of your arrest or the filing of charges against you, whichever is later, unless good cause is shown. Good cause can be shown in various ways, such as if the case drags unnecessarily slow through the court system.

If you have been arrested for a crime you did not commit and were never convicted and you meet the timing requirements, you are eligible to file a PFI. The broad protection afforded by a successful PFI can be invaluable to preserve your record. If you are interested having your arrest record destroyed, you should contact criminal defense attorney Scott R. Ball today.