Criminal Law - Full Protection
Whether you have been wrongfully accused or simply made a mistake in judgment, you are entitled to the full protection of the law under the constitution of the United States of America.
How to handle yourself when dealing with the Police
The following instructions are meant to be general guidelines in any encounter between a citizen and a police officer. Generally speaking, the following instructions are guidelines to follow for individuals who ask themselves what they should do if they are stopped by the police.
- You should be polite and respectful. Never badmouth a police officer. Stay calm and in control of your words, body language and emotions. Do not get into an argument with the police. Remember, anything you say or do can be used against you. Keep your hands where the police can see them. Don't run. Don't touch any police officer. Don't resist even if you believe you are innocent. Don't complain on the scene or tell the police they're wrong or that you're going to file a complaint. Do not make any statements regarding the incident.
- Ask for a lawyer immediately upon your arrest. Remember the officer's badge and patrol car numbers if available. Write down everything you remember as soon as possible. If you are in a holding cell, ask the police officers at the detention facility to give you a pen or a pencil to write down your freshest thoughts regarding the incident. You should try to find witnesses and their names and phone numbers. If you are injured, immediately take photographs of the injuries as soon as possible, but make sure you seek medical attention first. If you do seek medical attention, be sure to document the name, address and telephone number of any and all medical providers by whom you are seen.
- If you feel your rights have been violated, file a written complaint with the Police Department's Internal Affairs Division or Civilian Complaint Board, but only after you have consulted with an attorney to ensure that anything you say in a written complaint will not subject you to additional criminal penalties and/or fines and incarceration.
Please be advised that you should never interfere with effective law enforcement, but should always understand your own rights and responsibilities and how you may invoke them in your encounters or relationships with the police. All individuals have the right to courtesy and respectful police treatment and the police should be treated in kind. If you believe your rights have been violated, do not try to handle the matter on your own without consultation by an attorney. If you find yourself in any of the situations described herein, immediately contact the Law Office of Robert C. Smith at 909-563-8644.
If you are stopped for questioning
- It is not a crime to refuse to answer questions. However, refusing to answer can make the police suspicious about you. You can't be arrested for merely refusing to identify yourself on the street. However, please be advised that if the police are acting on a tip or what is referred to as exigent circumstances you may be detained for the purpose of determining whether or not you fit the description of any individuals that the police are looking for. Remember that in this situation, anything you say can and will be used against you.
- Police may "pat down" your clothing if they suspect a concealed weapon is on your person. Please remember not to physically resist, but be clear that you do not consent to any further search and verbalize your lack of consent to the police officers. If you are within ears length of any other people, be sure to state your non-consent unequivocally and in a loud enough manner that it can be heard by those around you or in the near vicinity.
- Ask if you are under arrest. If you are, you have a right to know why. In such situations where you believe you are under arrest, but the officer has not specifically stated so, simply ask the officer, "am I free to leave?" If the officer states you are not free to leave then you are under arrest.
- Do not bad mouth the police officer or run away even if you believe what is happening is unreasonable. If you attempt to run away or begin to bad mouth the police officer, this could lead to your arrest.
If you are stopped in your car
- Upon request by a peace officer, show them your driver's license, registration and proof of insurance. In certain cases, your car can be searched without a warrant as long as the police have probable cause to believe that a crime has been committed by you. Recently, the Court decided that police may look through your vehicle in any location within the passenger compartment where they believe a driver's license or registration may be present to assist them in identifying you as a result of a traffic stop. Therefore, if you want to avoid police searching your vehicle without your consent, be sure to have your driver's license and registration in a location within the vehicle from which you can retrieve it immediately upon request. To protect yourself later, you should make it clear to the police that you do not consent to a search of your vehicle. It is not lawful for police to arrest you simply for refusing to consent to a search.
- In DUI cases, if the officer advises you that he is going to subject you to a preliminary alcohol screening device, you should immediately ask the officer whether you have a right to refuse such a preliminary alcohol screening test. If the officer is honest, he will advise you that you have a right to refuse the preliminary alcohol screening test; however, if you do submit to a preliminary alcohol screening test, it does not satisfy your requirement under the Implied Consent Laws to provide an additional breath or blood test once transported to the police station and/or the nearest jail facility. (only on DUI cases) If you are confronted with a preliminary alcohol screening test, then simply ask the officer whether you have a right to refuse it. Upon being read the advisement by the officer, respectfully advise the officer that you choose to invoke your right to refuse the test and do not submit to the preliminary alcohol screening test. Do not make the mistake of refusing to submit to the implied consent test of either blood or breath once you have been transported to the police station or the jail for further testing. If you refuse to submit to an implied consent breath or blood test, you will be subjecting yourself to a possible one-year license suspension in the event that the allegation of a refusal is proved to be true in Court and/or before the Department of Motor Vehicles.
- If you are given a ticket, you should sign it, otherwise you can be arrested. You can always fight the case at a later time in Court once you have sought the advice of counsel.
- If you are suspected of a DUI and refuse to take a blood or breath test, your driver's license may be suspended.
To receive a free consultation contact the Law Office of Robert C. Smith by completing our online Client contact form or call 909-563-8644.
If you are arrested or taken to the police station
- You have a right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Don't give any explanations, excuses or stories. You can make your defense later in Court after consultation with an attorney based on what you and your attorney decide is best. However, in the meantime do not try to be your own lawyer. Many people make the mistake of trying to talk themselves out of a problem and end up creating a bigger problem based on the admissions and statements they make regarding the incident. Remember, if you were a doctor and needed surgery you would be the last person to perform that surgery. It is the same situation in a legal matter. A person who represents himself has a fool for an attorney.
- Ask to see a lawyer immediately. If you cannot afford a lawyer, you have a right to have one appointed for you free of charge if you cannot afford to pay for one. You should always ask the police how you can contact a lawyer. I repeat, do not say anything without a lawyer present or after consultation with a lawyer.
- Within a reasonable time after your arrest or booking at the jail, you have the right to make a local phone call to a lawyer, bail bondsman and/or any relative or other person. The police may not listen to the call to the lawyer and any such communications made to your lawyer should be discrete and made in such a way that they cannot be overheard by any third parties.
- In some situations, you can be released without bail or have bail lowered. Generally, this is referred to as a sheriff's release on your own recognizance and you will be given a date to appear in Court. Please be sure to maintain any documents upon which your date to appear and Court location is identified. Upon release, you should immediately contact a lawyer regarding the possibility of bail and/or release on your own recognizance if you are unable to secure an OR release from the sheriff's and/or jailer. In the event that you remain in custody, you must be taken before the Judge on the next Court day after your arrest. Generally speaking, this will occur within 48 hours of your arrest whether you were arrested on the weekends or any other date during the week. Do not make any decisions in your case until you have spoken to an attorney.
If you are questioned in your home
- If the police knock and ask you to enter your home, you do not have to allow them into your residence unless they have a search warrant which is signed by a Judge. The search warrant will describe in specific terms the location which the officers intend to search and generally will describe what items they are looking for. Upon being provided with a copy of the search warrant, allow the officers to conduct the search pursuant to the search warrant after you have verified that the location on the search warrant matches the address of your particular residence. Do not make any attempts to interfere or delay the officers in the performance of their duties regarding the search warrant. If the police knock and ask to enter your home, you should ask them to identify themselves with ID numbers prior to entering the residence. If they do not have a warrant and it is not an emergency situation, you should direct the officers to contact their local watch commander and have the watch commander contact your residence before allowing the officers to enter. If they do not have a search warrant and there are no exigent circumstances, you should not under any circumstances allow officers to search your residence without your consent. If you fail to register your objection or remain silent during the officer's questioning, you may be deemed to have engaged in an implicit and/or silent admission which will constitute a consent. Generally speaking, you should not allow anyone to search your residence and be emphatic in doing so without interfering with the officers during the performance of their duties. If a search warrant is presented to you and it clearly identifies your residence as the place to be searched and has been signed by a Judge, then you should allow the search to take place while at the same time indicating your objection for the record.
- In some emergency situations or what is deemed to be exigent circumstances (for example, when a person is screaming for help inside or when the police are chasing someone towards and in or through your residence) officers are allowed in such situations to enter and search your home without a warrant in order to effectuate arrest and/or investigate an emergency situation.
- If you are arrested, the police can search you and your area close by or any area within close proximity of where you are arrested. Under the law, this is deemed to be a search incident to arrest. If you are in a building, "close by" usually means just the room you are in. However, depending on the circumstances and nature of the case, officers will be allowed to search areas adjacent to the room you are in if it is reasonably related to the exigent circumstances and/or emergency situation.
After you have been detained, arrested,visited, interviewed or questioned by the police, write down everything that took place. This includes the conduct of the police, the questions they asked, the advisements/miranda warnings issued by the police, things searched and seized to the statements you made. Do this as soon as possible so that it is fresh in your mind and then consult the attorneys at the Law Office of Robert C. Smith for a free consultation at 909-563-8644 or complete the online Client contact form.
Domestic Violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.
Domestic violence laws can be found at California Family Code section 6203. And criminal domestic violence laws in the California Penal Code, like Penal Code section 273.5, Penal Code section 243(e)(1), and others.
The domestic violence laws say “abuse” is:
- Physically hurting or trying to hurt someone, intentionally or recklessly;
- Sexual assault;
- Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
- Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.
The physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of the family pets.
Also, keep in mind that the abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.
If you are being abused in any of these ways or you feel afraid or controlled by your partner or someone you are close with, it may help you to talk to a domestic violence counselor, even if you do not want (or are not sure if you want) to ask for legal protection.
Domestic Violence Restraining Orders
A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone they have a close relationship with.
You can ask for a domestic violence restraining order if:
- A person has abused (or threatened to abuse) you;
- You have a close relationship with that person. You are:
- Married or registered domestic partners,
- Divorced or separated,
- Dating or used to date,
- Living together or used to live together(more than roommates),
- Parents together of a child, OR
- Closely related (parent, child, brother, sister, grandmother, grandfather, in-law).
If you are a parent and your child is being abused, you can also file a restraining order on behalf of your child to protect your child (and you and other family members). If your child is 12 or older, he or she can file the restraining order on his or her own.
If you do not qualify for a domestic violence restraining order, there are other kinds of orders you can ask for:
- Civil harassment restraining order (can be used for neighbors, roommates, coworkers, or more distant family members like cousins, uncle or aunt, etc.).
- Elder or dependent adult abuse restraining order (if the person being abused is 65 or older; or between 18 and 64 and a dependent adult).
- Workplace violence restraining order (filed by an employer to protect an employee from violence, stalking, or harassment by another person).
What a restraining order CAN do
A restraining order is a court order. It can order the restrained person to:
- Not contact or go near you, your children, other relatives, or others who live with you;
- Stay away from your home, work, or your children’s schools;
- Move out of your house (even if you live together);
- Not have a gun;
- Follow child custody and visitation orders;
- Pay child support;
- Pay spousal or partner support (if you are married or domestic partners);
- Stay away from any of your pets;
- Transfer the rights to a cell phone number and account to the protected person.
- Pay certain bills;
- Not make any changes to insurance policies;
- Not incur large expenses or do anything significant to affect your or the other person's property if you are married or domestic partners;
- Release or return certain property; and
- Complete a 52-week batterer intervention program.
Once the court issues (makes) a restraining order, the order is entered into a statewide computer system (called CLETS) that all law enforcement officers have access to. And your restraining order works anywhere in the United States. If you move out of California, contact your new local police so they will know about your orders.
What a restraining order CANNOT do
A restraining order cannot:
- End your marriage or domestic partnership. It is NOT a divorce.
- Establish parentage (paternity) of your children with the restrained person (if you are not married to, or in a domestic partnership with, him or her) UNLESS you and the restrained person agree to parentage of your child or children and agree to the court entering a judgment about parentage
Effect of a restraining order on the restrained person
For the person to be restrained, the consequences of having a court order against him or her can be very severe.
- He or she will not be able to go to certain places or to do certain things.
- He or she might have to move out of his or her home.
- It may affect his or her ability to see his or her children.
- He or she will generally not be able to own a gun. (He or she will have to turn in, sell or store any firearms he or she has, and will not be able to buy a gun while the restraining order is in effect.)
- The restraining order may affect his or her immigration status. If you are worried about this, talk to an immigration lawyer to find out if you will be affected.
If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both.
Types of Domestic Violence Restraining Orders
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So, a police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night.
The emergency protective order starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim and any children for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.
To get an order that lasts longer than an EPO, you must ask the court for a temporary restraining order (also called a “TRO”).
Temporary Restraining Order (TRO)
When you go to court to ask for a domestic violence restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order.
Temporary restraining orders usually last between 20 and 25 days, until the court hearing date.
“Permanent” Restraining Order
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 5 years.
At the end of those 5 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.
Criminal Protective Order or “Stay-Away” Order
Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.
The Restraining Order Process
When someone asks for a domestic violence restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are:
- The person wanting protection files court forms asking for the domestic violence restraining order. There is NO fee to file.
- The judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner.
- If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until your court date. The court date will be on the paperwork. These temporary orders can include issues like:
- Ordering the restrained person to stay away and have no contact with the protected person (and other protected people and family pets);
- Child custody;
- Who can use the family home; or
- Who can use other property, like a car.
- If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will not be a restraining order.
- If the restrained person does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account.
DUI Defense and Field Sobriety Tests
At the Law Offices of Robert C. Smith, almost all of our clients are charged with DUI as a result of field sobriety tests (FSTs) administered by the arresting officer. However, it is important to note that field sobriety tests are subjective exercises that try to determine a person’s balance, coordination, and divided attention. They are not entirely accurate and they do not determine if a person is impaired or not. Serving San Bernardino, Riverside, Orange, and Los Angeles Counties, our law firm can help if you, a friend, or a loved one has been arrested for driving under the influence based in part on the results of a field sobriety test. The following questions are queries frequently asked of us by our clients, so we have provided them below for your convenience. To learn more or to schedule a free consultation, contact the Law Office of Robert C. Smith today at 909-563-8644.
- Do I have to submit to a field sobriety test?
- What are the most common field sobriety tests?
- Can field sobriety tests be challenged?
Do I have to submit to a field sobriety test?
No. Field sobriety tests are voluntary, and the police officer who pulls you over generally does not tell you this. However, if a police officer feels that you are impaired and you decline the field sobriety test, he or she may arrest you and require you to submit to a chemical test under the California Implied Consent Law. Though after arrest you are required by law to submit to chemical testing if asked by a police officer, you should know that the results of such tests can be challenged in court by our law firm.
What are the most common field sobriety tests?
There are a variety of exercises administered by police officers during field sobriety tests. Three of these exercises have been deemed standard by the National Highway Traffic Safety Administration (NHTSA), and are considered to be the “Standardized Field Sobriety Tests” (SFSTs). However, field sobriety tests are still subjective in nature, and can be challenged in court. The standardized field sobriety tests consist of the following:
- Horizontal Gaze Nystagmus (HGN) – The HGN test is used to measure the involuntary jerking of the eyes as they look left and right towards the peripherals. When an individual is impaired, the tendency for eye jerking may become more pronounced and occurs at a less extreme angle. To administer this test, the police officer will hold an object in front of the driver’s eyes, and move the object side to side. The individual being tested is asked to follow the object with his or her eyes without turning their head. However, there are several factors that can cause horizontal gaze nystagmus, including seizure medication, and the use of other prescribed medication. Even the police officer’s cruiser strobe lights can give the appearance of HGN.
- Walk-and-Turn Test – This test helps determine a person’s coordination, balance, and motor skills. The walk-and-turn test and the one-leg stand test (below) are known as “divided attention” tests because the tests task the individual with performing more than one action at the same time. During the walk-and-turn test, the individual is asked to walk in a straight line, heel-to-heel, for nine steps. At the end of this line, the person must pivot on one foot and return in the opposite direction in the same manner. If the individual fails to perform the test to the officer’s satisfaction, then he or she may ultimately be arrested for DUI.
- One-Leg Stand Test – In the one-leg stand test, the officer has the individual stand on one leg for 30 seconds and count upwards in one-thousands. If the individual sways, uses his or her arms for balance, hops on one foot, or puts both feet on the ground, the officer may ultimately make an arrest for DUI as well. However, the NHTSA estimates that only 65 percent of the individuals who fail this test are intoxicated.
In addition to the Standard Field Sobriety Test, he or she may be asked to perform one or more of the following:
- Rhomberg Test – The Rhomberg test tasks the individual with standing feet together, arms down at the sides, tilting the head back with eyes closed, and estimating the passage of 30 seconds. If the individual is unable to maintain balance, grossly underestimates or overestimates the passage of 30 seconds, fails to properly follow instructions, or experiences body tremors, it may also lead to an arrest.
Finger-to-Nose Test – Standing in a manner nearly identical to that in the Rhomberg test, with the feet together, the eyes closed, and the head slightly tilted back, the individual is asked to touch the tip of the nose with the tip of the index finger, alternating between the left and right hand. The officer will instruct the individual with which hand to perform the test, and in total, will have the individual perform the test three times with the left hand and three times with the right hand. If the individual displays an inability to perform the test to the officer’s satisfaction, it may be used in part for a basis of an arrest.
- Finger Count Test – Holding the palm out in front of the body, facing upwards, the individual is tasked with touching the thumb with the index finger, the middle finger, the ring finger, and the pinky finger in succession, as they count aloud from one to four. They are then asked to continue the task in reverse and so forth until three complete cycles have been performed. If the individual is unable to perform the task as it was instructed, there may also be cause for an arrest.
If you have been arrested for DUI contact our law office to schedule a free consultation with our knowledgeable and experienced staff, call 909-563-8644.
Can field sobriety tests be challenged?
Yes. Field sobriety tests are subjective exercises that are designed to test an individual’s divided attention and motor skill abilities. We understand the difficulties people have doing these tests who have never done them before or are doing them under an extremely stressful situation. Our DUI defense lawyers have an exhaustive understanding of DUI law and extensive experience fighting DUI charges. If you, a friend, relative or a loved one has been arrested on suspicion of DUI based on the results of a field sobriety test, we have the resources and the knowledge needed to demonstrate the inherent shortcomings of such tests.
Driving Under the Influence (DUI)
If you are arrested for a DUI there are several things that you should do after the arrest. However, if you have the advantage of reading this article prior to that unfortunate event occuring several tips will be provided that will help if and when that incident occurs.
Stages of a DUI case
At the Law Office of Robert C. Smith, we strongly believe that an educated and prepared client can serve as an asset to his or her case. Understanding the stages of a DUI case and how the process works helps ease some of the anxiety and provides our clients with a realistic assessment of what to expect. Because we believe that prepared clients have an advantage over unprepared clients, we have included information relating to some of our client’s most frequently asked case questions below. If you have been charged with driving under the influence, you can depend on our law firm to keep you fully informed of every step in your case. To schedule a free consultation, contact our experienced attorneys at the Law Office of Robert C. Smith at 909-563-8644.
What are the stages of a DUI case?
The process for a DUI case can seem long and complicated, and it involves a multitude of steps. The process begins when an individual is arrested and can culminate in a dismissal, acquittal, reduction of charges, or a DUI conviction, depending on the circumstances of the specific case. The stages of a DUI case, though slightly different for every defendant, are as follows:
- Arrest – Once a police officer arrests an individual for driving under the influence, the DUI case process begins. A police officer has the legal authority to make an arrest based on probable cause. If a police officer can reasonably conclude that the suspect had committed a crime based upon facts and circumstances, then the police officer has probable cause to make an arrest.
- Booking – After an arrest is complete, the suspect is brought into custody for “booking.” During this process, the police officers record pertinent information about the suspect, such as his or her name, personal address, age, and physical characteristics. The officers then file a report of the suspect’s alleged crime, cross-check existing records to verify if the suspect has a prior criminal record, take fingerprints and photographs (”mugshots”) of the suspect, search the suspect for contraband, confiscate personal property for return upon the suspect’s release, and place him or her in a holding cell until an arrangement for bail has been made or the person is eventually brought to court.
- Bail – The bail process allows the suspect to pay for his or her release, with the understanding that the suspect promises to appear at all future court proceedings or is released on his or her own recognizance. If the suspect is unable to afford the bail, it is usually possible to arrange payment through a bail bond agency.
- Arraignment – The arraignment is the first time the suspect (now known as the “defendant”) can appear in court. For misdemeanor DUI cases, we almost never have our client appear on the arraignment date. At the arraignment, the defendant is informed of the charges against him or her. The judge will then ask the defendant to submit a plea to the charges that have been brought: “guilty,” “not guilty,” or “no contest.” The judge may then readdress the issues of bail and issue dates for future court appearances, if any.
- Plea Bargain – In a plea bargain, the defense and the prosecution will meet in an attempt to come to a satisfactory resolution of the case. Plea bargains often involve the defendant agreeing to plead guilty or no contest in exchange for less severe punishment. At our firm we are committed to serving our clients. If a plea bargain agreement is an option in your case, we will provide expert legal counsel on the pros and cons of such a decision.
- Preliminary Hearing – This applies to felony cases. At a preliminary hearing, a judge weighs the evidence against the defendant and decides if there is sufficient evidence to support a trial. The issue of guilt is not addressed. In many ways, the preliminary hearing is like a mini-trial, as the prosecution will introduce evidence implicating the defendant, and the defense attorney will attempt to convince the judge that the prosecution lacks the evidence needed to convince a jury of his or her guilt.
- Pre-Trial Motions – Before the trial begins, the defense and the prosecution address the judge and introduce motions. Typical motions include requests for evidence to be submitted or excluded, as well as arguments for or against a witness’s testimony. In essence, the pre-trial motion phase introduces “rules” by which both parties have to abide by during the trial.
- Trial – If a defendant pleads “not guilty” and no plea bargain is reached, then the case goes to trial. During the trial, the prosecution argues its case in an attempt to convince the jury that the defendant is guilty of the charges that have been brought against him or her. The defense counters the prosecution by presenting its own evidence to convince the jury to return a verdict or verdicts of not guilty. The trial process consists of several steps: jury selection, opening statements, the state’s case-in-chief, the defense case, closing arguments, jury instruction and deliberation, and verdict reading.
- Sentencing – If a defendant is convicted by either a plea bargain, or been found guilty by a judge or jury, then the punishment is determined during the sentencing phase. In a DUI case, the most common sentences include probation, attendance at alcohol treatment programs, payment of large fines, submit to future chemical testing, not driving without insurance, and in some jurisdictions jail.
What is a DMV hearing?
If you are arrested for driving under the influence, the police will confiscate your California driver’s license and give you a temporary permit. It is your obligation to contact the DMV within 10 days of your arrest to request a stay of the suspension and arrange a DMV hearing. At the DMV hearing, a representative of the department will determine whether or not your license should be suspended. It is important to note that the DMV hearing is an administrative hearing and not a criminal proceeding. If you are over 21 and the DMV hearing officer finds that the police officer had probable cause to stop you for driving under the influence, your arrest was lawful, you either had a BAC of .08 or greater at the time of driving or refused a post-arrest chemical test, they have the right to suspend or revoke your driving privileges. However, in non-refusal cases, if your driving privileges have been suspended or revoked but you are formally acquitted in a court of law of driving with a BAC of .08 or greater, the suspension or revocation may be reversed.
Defenses to a DUI case
The defense of a DUI case requires specialized knowledge about physics, chemistry, biology, anatomy, toxicology, pharmacology and how these scientific disciplines interrelate. Chemical testing for blood alcohol levels assumes that the subject is a normal, healthy average person. There are countless medical conditions which can effect the accuracy of chemical testing and the appropriateness of field sobriety exercises.
The following are examples:
- Periodontal (Gum) Disease
- Faulty Bridge Work
- Gastric Reflux Disease (Heartburn)
- Diseases of the Lungs
- Heart Disease
- Accidents With Air Bags
- Inner Ear Conditions
- Attention Deficit Disorder
- Pre-Existing Injuries To Back, Legs, Etc.
DUI Defenses that have worked:
- The Officer Had No Legal Right To Pull You Over
- The Police Agency Has Not Complied With The California Code Of Regulations
- You Were Not Given The Option To Take A Breath Or Blood Test
- You Were Questioned In Violation Of Your Miranda Rights
- The Sobriety Checkpoint That You Were Stopped At Was Not Run Properly
- You Requested But Were Denied The Right To An Independent Test
- You Have Been Denied Your Right To A Speedy Trial
- Your Blood Alcohol Level Was Lower When Driving Than When Tested
Therefore, as you can see you may have a valid defense and a free legal consultation could help clarify what options are available to you. Call 909-563-8644 or complete the online Client contact form today.
Possession of a Controlled Substance
California Health and Safety Code Section 11350 makes it illegal to possess certain controlled substances, including prescription drugs where one doesn’t have a prescription. When a person is found to be in possession of an illegal substance, a lot of what happens next will depend on what type of substance that person possesses, as well as how much. Depending on what the substance is, the offense may be considered a misdemeanor, wobbler, or felony.
The only direct misdemeanor is possession of less than one ounce of marijuana pursuant to Health & Safety code section 11357(b) as discussed elsewhere in this site. Other substances, such as methamphetamine, fall under the “wobblers” category and at the discretion of the District Attorney’s Office can be filed at the misdemeanor or felony level. Unfortunately for some the mere possession of certain illegal substances are straight felony offenses. For example, possession of any amount of cocaine is an automatic felony. California has a drug schedule that specifically lays out the rules which pertain to each type of drug and their quantities
The crime of simple possession requires that a person “knowingly” and “intentionally” possessed an illegal/scheduled drug without a legitimate prescription for the same. The government is required to prove that the person (1) knew that the drug was a controlled substance and (2) that he/she had either actual possession of it or some other type of control over it.
The penalties for drug possession crimes can be very severe. The charges you may face will be based on type of substance and quantity in addition to other factors/allegations/enhancements such as prior criminal history, whether the substance was deemed to be for personal use or intent to sell/distribute, weapons possession or use along with the drug possession, etc….
We can help you understand the charges you are facing and the possible penalties that lie ahead.
Possession of Drug Paraphenalia
The following are some items that are generally considered to be “drug paraphanalia”:
- Rolling Papers
The possession of any of the aforementioned “paraphenalia” are generally misdemeanor offenses that carry minimal penalties. At the Law Office of Robert C. Smith, our law firm will handle all types of drug-related criminal cases, including possession of drug paraphenalia. While many people believe these types of cases to be cut and dry, often times they are not. Depending on several factors, including location of the paraphenalia, its proximity to you, whether other people were around, etc… our skilled defense litigators may be able to get the charges dismissed, or reduced.
PC 1000 and Proposition 36 are drug diversion programs offered to certain defendants charged with drug-related criminal offenses, depending on several factors. These diversion programs essentially make it possible for those who qualify to attend treatment programs in lieu of potential jail sentences. In addition, even though you enter a plea of guilty in order to get into the program, the entry of judgment is stayed. If you don’t successfully complete the program, the plea is entered on your criminal record. If you do successfully complete the program, however, then you earn a dismissal of the charges and you never have a conviction on your criminal record.
Penal Code Section 1000 allows first time drug offenders with no prior record to plead guilty but, be permitted to attend a four month class that meets once a week, in lieu of serving jail time. Once you have successfully completed the class and a total of 18 months has passed without another criminal arrest or conviction, and all fees associated with your case have been paid, the original case against you will be dismissed by the court. A good lawyer can help make this happen for you! Call the Law Office of Robert C. Smith for help understanding if you qualify for PC 1000. If you don't know how the rules apply to you, you may be in for a rude awakening. You need a good attorney to avoid any surprises associated with your case, and to help make the process go smoothly.
Prop 36 (PC section 1210)
Proposition 36 allows an individual who has certain prior drug-related criminal offenses on their record and is now accused of a non-violent related drug offense, such as simple possession, or being under the influence of a controlled substance, to not be incarcerated as a term of probation. Prop. 36, as it is commonly referred to, is essentially your last chance after PC 1000, for not serving jail time for a non-violent, drug-related offense. However, there are many intricacies to Prop 36 that you may not know. To learn more about your options, contact an attorney at the Law Office of Robert C. Smith 909-563-8644.
Searches and Seizures in Drug Cases
The Fourth Amendment of the United States Constitution protects an individual against unreasonable searches and seizures of his or her person or property. A search may involve an examination of the person or his or her surroundings and/or property. Seizure, on the other hand, refers to the taking of the actual person or property into police custody. Generally, but not always, if a seizure is determined to have been illegally made, it is because the seizure was preceded by an unacceptable search.
In many drug-related criminal cases, the arrest and evidence used to support a conviction results from a search and seizure of a person or place. If the constitutional restrictions under the fourth amendment were not appropriately followed by the investigative agency, however, the evidence may be deemed inadmissible and the charges may be dismissed through a motion that your experienced and knowledgeable defense attorney at the Law Office of Robert C. Smith would bring on your behalf.
A skilled criminal defense attorney will have the knowledge to recognize and advise his/her clients on whether the evidence leading to a drug charge may have resulted from an improper search or seizure and answer all other questions regarding the criminal justice process in state and federal drug cases.
Contact the Law Office of Robert C. Smith at 909-563-8644 if you believe a search and/or seizure was illegally conducted. We will thoroughly review your case for any possible motions to suppress evidence.
Misdemeanors and Felonies
Misdemeanors are those acts more serious than petty offenses. They include resisting arrest, public drunkenness and simple battery. As far as the seriousness of offenses is concerned, misdemeanors are a step below felonies. However, the degree in which the act is carried out also affects its classification. For example, if you were to steal an item costing less than a certain dollar amount, you would be committing petty larceny, which is a misdemeanor. However, were the item to cost more than the said amount, you would be committing grand theft, which is a felony.
Consequently, the punishment meted out to those committing misdemeanors, may be a higher fine than what would be paid for a petty offense. If a jail sentence is to be served, it is likely that it would be served for not more than a year, usually at a local, city or county jail. Misdemeanor offenses are usually dealt with in special courts with abbreviated procedures. Accordingly, in several jurisdictions, court-appointed attorneys are not provided to those who can’t afford them. Generally, a grand jury is not required to investigate and charge misdemeanors, which is usually carried out by written complaint or information. However, if a defendant desires a jury trial, he may have to make a request and pay a fee to procure one. A misdemeanor charge may be heard by a grand jury, if it is accompanied by one or more felonies.
There is hope for those with a misdemeanor on their record as they are allowed to vote, serve in the military, serve on juries and practice in licensed professions like being a lawyer. Better yet, in states where three strikes laws are adopted, misdemeanors are not counted as "strikes". Nonetheless, in cases where two prior felony convictions exist, a misdemeanor added to the list could be considered the "third strike" offense. If this were to happen, it could result in a mandatory 25-year to life prison sentence.
Felonies comprise serious crimes such as robbery, kidnapping, rape, and murder. A broad classification made by the federal government and most states, is that felonies are all crimes that carry a maximum sentence of more than one year, served at a a state or federal prison. However, if the crime is a capital offense like first-degree murder, even a death penalty may be awarded. In felony cases, the defendant has the right to a court-appointed lawyer. A grand jury trial may be mandatory in some jurisdictions.
A person convicted of a felony is likely to have more restrictions on their rights (collateral consequences). This may include professional restrictions (they cannot be lawyers or teachers), not being allowed to serve on juries, losing the right to vote, being prohibited from owning guns, or serving in the military, and in some cases, having to register as an offender (e.g., sex offender or narcotics offender).
I hope this article has made clear the difference between misdemeanors and felonies, as well as details such as misdemeanor vs felony theft. In all cases, while federal laws are constant, state laws defer. For this reason, a person facing any charges must get in touch with a qualified Lead Counsel criminal law lawyer from the state, to verify the state’s procedure for charging a misdemeanor or felony crime.
Whether you have be accused of committing a misdemeanor or a felony your freedom and life could be at stake, thus it would be in your best interest to consult an Attorney to best assess your legal options. To receive a free consultation contact the Law Office of Robert C. Smith by completing our online Client contact form or call 909-563-8644.