Fresno Criminal Defense Attorney | Fresno DUI Attorney Serving all of California

        Avvo
Call for a free case evaluation.
559.441.1418

Contact Us

Send us a quick email

Please type your full name.
Invalid email address.
Invalid Input
Invalid Input
Enter Code
Invalid Input

If you or a loved one has been arrested or facing Drunk Driving charges give us a call we can help you through this time. As an Attorney with more than 15 years of experience I can tell you that dealing with a driving under the inlfuence charge can be difficult and time consuming. We can help you. Give us a call at 559441-1418. 

Below I will describe the difference between a Misdemeanor and Felony Drunk driving and some information regarding both offenses. 

WHAT IS THE DIFFERENCE BETWEEN A MISDEMEANOR DRIVING UNDER THE INFLUENCE AND FELONY?

One way to be charged with Felony Driving Under the Influence is if you meet the following elements within a 10 year period.

 

1. Defendant drove a motor vehicle.

2. Defendant did so while under the influence of an alcoholic beverage.

3. The defendant has suffered three prior convictions of the Misdemanor section. 

an all of these factors occured withing a 10 year period. 

 

If the following are true then there are many consequences that may occur. 

PRISON

You are eligible for prison.  Becuase it is a Felony to have four convictions wthin 4 years you can be sentenced to prison for a period of 16 months 2, or three years. 

The facts are important  here.  Was anyone injured? how close in time are the convctions? what is the BAC when the offenses occured. Was there property damage.  Has the defendant been afforded the oppurtunity at treatment at an earlier time and did not take advantage of that treatmen.  All of these things will come into play when the Judge makes a determination as to what your sentence will be. 

The Judge will have to make a determination of both whether or not you should be given Felony Probation, or sent to prison.  The Judge will also have to determine if the defendant should serve 16 months 2, or 3 years.  

If given Felony Probation you will usually be ordered into in patient treatment, or sent to County Jail for  a period od 1 year. If you are given a 1 year sentence you will have to do six months of that sentence and then still serve a period of probation.  If you violate your Felony probation you could be sent to prison for any of the terms of the sentecning range.  In other words for 16 months 2, or 3 years.  

If you are given Felony Probation you could be ordered to attend substance abuse in patient treatment. Or out patient treatment.  Failure to comply with the treatment program could be a violation of probation.  And again subject you to prison.  

It is always best to be proactive.  If you have a fourth DUI you should be going to AA meetings and obtaining proof.  And admitted to your alcohol problem.  Making sure you get on the scram x program which will give an indication if you are drinking alcohol.  

You will be booked for a fourth DUI and you will have to get bail money and there could be terms placed on you as part of your bail.  You should folow those terms as closely as possible.  And of course do not drive.  Do  not consume alcohol, and prove that through both the scram x and going to outpatient treatment and AA.  The in patient treatment should be reserved for after the conviction in most circumstances.  

If you have any further questions do not hesitate to give us a call and we can help you through this. Be proactive get into contact with us and a Bail bondsman.  Our phone nyumber is 559 441-1418, I have done  many hundreds of DUI cases in several different counties and can help you through this and help you hopefully stay  out of prision.

There have been many changes to Marijuana laws over the past year.  Many people even Attorneys have had a hard time keeping up.  Many people even Attornys make the mistake of thinking the Marijuana laws relate to smoking Marijuana.  However, most of the law of Marijuana if not all of them relate to possession or the amount of the possesion.  

POSSESION OF A SMALL AMOUNT OF MARIJUANA

Possession of 28.5 grams of Marijuana if you are over the age of 21 is legal.  Meaning you cannot be given a fine or imprisonment.  

Where this could get tricky is say you are at a concert and smoking marijuana but have only 1 joint on you?

This is not legal advice, every case is different.  However, under the statute as it stands to posses less than 28 grams if you are an adult is not illegal to possess les than 28.5 grams there could be city statutes and other statutes that deal with smoking marijuan in public so don't lite up in public unles you have spoken to an Attorney regarding your legal rights.  

IF YOU  ARE UNDER THE AGE OF 21 

If you are under the age of 21 and you have less than 28.5 grams of Marijuana then it is an infraction and you can later have the infraction expunged from your record at a later point you will also have to pay a $100.00 fine. 

Part of the reason for the changes in the law is to de criminalize certain what the legislature considers low level recreational drugs.  The reason is that a criminal conviction for these types of offenses can have a huge impact on someones ability to get a job and to get certain rental properties loans etc.  Once you have an infraction it is not a misdemeanor and you can still even though the crime is not a misdemeanor have the offense expunged from your record.  

It is still illegal to possess Marijuana with intent to sell.

Misdemeanor (max 6 months in jail and / or $500.00 fine)  however if you possessed with intent to share Marijuana this is a different and is a defense of course depending on the facts of your case you could have a valid defense if your only intent was to give or deliever someone marijuana.  

This of course is depending on the circumstances. did you have pay owe sheets or other indicia of sales rather than intending to give someone marijuana. If you have questions give us a call at 559 441-1418. 

If you or a loved one has been arrested or charged with Domestic Battery it is important you seek legal advice as soon as possible.  You should not make statements to police wihtout first getting legal advice and counsel. 

Domestic Battery charges are complex and require experienced counsel.  As an Attorney with more than 15 years of experience with Domestic Battery cases I can help you throught this time.

Domestic Battery cases involve several overlapping areas of law, including possibly custody matters, restraining orders, and criminal cases.  If you do not seek legal counsel right away you run the risk of violating even more laws and getting  yourself into further legal problems.  Below I will go through a brief outline of the law as to the most common domestic battery chages which are the corporeal injury to a spouse as both a Felony and a Misdemeanor.  

This charge is a wobbler which means it can be charged as either a Felony or a Misdemeanor.  I will briefly go through the elements for both.

FELONY

1. Defendant willfully inflicted corporeal injury on victim.  

2. Victim was either:

defendant's spouse or former spouse 

person with whom he or she is or was in a cohabitating with

fiance or fiance or someone with whom the offender has or previously had an engagement or dating relationship.  

the mother or father of his or her child. 

3. Corporeal injury resulted in a traumatic condition

MISDEMEANOR

1, Defendant willfully inflicted corporeal injury on the victim 

2. Victim was either: 

defendants spouse 

person with whom her or she was cohabitating with 

fiance or fiance, or someone with whom the offender has, or previously had a dating relationship 

the mother or father of his or her child. 

corporeal injury resulted in a traumatic condition. 

Another common charge in relation to domestic battery is the charge of 243 e 1 domestic battery upon a spouse.  I will go through the elements in those type of cases. 

1. Defendant committed battery upon victim. 

2. At the time of the battery, Victim was the defendants spouse or fiance or an individual with whom defendant currently has, or has previously had a dating relationship 

Pc 243e1

 

These are the most common charges when it comes to Domestic Battery all have there own unique defenses.  

One thing that may occur and I have seen happen on several occasions is that after an allegation is made the prosecutor will have the alleged victim phone the person they say battered them.  When this happens they are trying to elicit incriminating responses from the person on the phone.  These can be used as evidence against you. Because they are made at the behest of Law Enforcement they can be used even if you do not know you are being taped.  This is one reason you should get legal counsel even before your first court date there are many others. 

The district Attorney often has a small amount of information to go on.  Usually they do not have your side of the story. It is up to your defense attorney and investigator to fully investigate the case even before charges are brought and give that evidence over to the prosecution so that the prosecution has a more full picture of exactly what happened. 

This could include pictures, of your injuries

witness statements

and or video evidence that constradicts the statement of the accuser.  These type of things need to be done from the beggining of the case in order for you to mount an effective defense under any of the charges listed above.  

So again if you or a loved one has been arrested investigated or charged give us a call 559-441-1418.

 

If your child has been arrested or in custody at one of the local juvenile halls you need experienced representation for him or her.  Juvenile Law is much different than adult criminal defense and obtaining a lawyer that does not have extensive experience in the Juvenile Courts is not optimal. 

As an Attorney that has practiced criminal defense in Juvenile Court for more than 14 years and was a Juvenile Probaiton Officer, before becoming an Attorney  I have the knowlege to help your child.  Below I will discuss the Juvenile court process and will continue with further blogs about some of the programs in Juvenile Court.

DETENTION HEARING

The first appearance a minor will make will be a detention hearing.  At that hearing the court will read the charges to the minor and determine if the minor should be detained in the juvenile Hall or released to the parents or placed on some sort of supervision such as the global positioning system.   This hearing is similiar to an arraignment in adult court. 

WHAT FACTORS DOES THE COURT CONSIDER IN WHETHER TO RELEAS THE MINOR

The court will consider several factors as to whether to release the minor including:

seriousness of offense

whether there are gang allegations or membership

past juvenile petitions

possible substnce abuse 

minors school performance

WHAT HAPPENS IF THE MINOR IS DETAINED 

If the minor is detained an adjudication hearing must be set whithin 15 days unless there is a time waiver.  A time waiver may be necessary depending on the complexity of the case. 

IF THE MINOR IS RELEASED

If the minor is released then the District Attorneys office has up to 30 days to bring the minor to trial absent a time waiver.

WHAT CAN HAPPEN IF MY SON OR DAUGHTER TAKES A PLEA OR IS PLACED IN DIVERSION PROGRAM

There are several diversion programs available for minors I will discuss some of them below.

COLLABERATIVE JUSTICE PROGRAM (CJC) a program where the minor could meet with the victim face to face pay any resitution and if he or she successfully completes the program have the matter dismised and the record destroyed

INFORMAL PROBATION

Informal probation is a program where a minor usually with little or no prior history and where the interest of justice would be furthered can before plea enter a program with probation to perform certain taskes i.e. community service etc. and the case will be dismissed and the records eventually destroyed

DEJ PROGRAM

This is a more stringent program for felonies there are different statutes that deal with the destruction of records in dej cases.  Usually these cases have more serious charges attached to them.  The prosecution will actually provide a sheet that states is the minor is eligible.  The minor will have to enter into an admission to the charge.  And then there will be a report from probation as to whether probation believes the minor is suitable for the DEJ program and the court will make a determiniation.  If found both eligible and suitable then the minor will be given certain things that he must do to have the matter dismissed and later expunged with a possibility of destruction of those records.   If the minor is not suitable then he or she can take back there plea and have the case set for trial or enter into a plea.   These destruction of records statutes are different from the statutes for informal or cjc program. 

These are just some of the programs availabe there is also juvenile drug court, behavioral health court, and many other options available to the minor.  If you have any qeustions give us a call 559-441-1418.

If you have been charged with domestic violence you should call our office as soon as possible.  With more than 14 years of experience as a Criminal Defense Attorney, and having handled hundreds of domestic violence cases, I have the know how to help you through this time.

WHAT IS A WOBBLER OFFENSE

A wobbler offense is a crime that can be charged as either a Felony or a Misdemeanor offense.  This is a critical distinction.  The reason is that if your crime has originally been charged as a Felony depending on the circumstances the crime may be reduced to a Misdemeanor as part of a plea bargain. 

WHAT IS A WOBBLER OFFENSE FOR DOMESTIC VIOLENCE

A good example of a wobbler offense is the offense of an alleged violation of Penal Code section 273.5.  

The elements of this offense are the following: 

1. Defendant willfully inlicted corproreal injury on victim.

2. Victim was either:

Defendant's spouse or former spouse 

Person with whom he or she was cohabitating with or

fiance or fiance or someoen with whoim the offender has or previously had, an engagement or dating relationship.  

the mother or facther of his or her child. 

3. Corporeal injury resulted in a traumatic condition.

This crime can be punished in the state prison for 2,3 or 4 years or Felony probation. 

or As a Misdemeanor meaning the crime wobbles down. 

This is a good thing. For example if the case begins to weaken, meaning the proseuction does not believe they can prove traumatic  injury or the victim is not cooperative. The prosecution can simply amend the charge to a misdemeanor count of P.C. 273.5. 

This means you would not have to be a convicted felony lose your right to vote and subject yourself to state prison possibilities. 

if the case is a Misdemeanor then the worst that could happen even if you violated your terms and conditions of probation would be up to a year in local jail. 

You would still have a 10 year restriction on the purchase of a firearm and would have to complete a 52 week batterer intervention program.  However the most serious consequences such as state prison and the loss of voting rights and loss of firearm rights for life would not be applicable.  

If you have been accused of a felony 273.5 you should give us a call and we can help you through this.  

If you have been charged with a misdemeanor offense and you are a veteran you have certain rights that may be afforded you.  One of those rights is to be treated in the military diversion program.  Penal Code section 1001.80.

WHAT ARE THE REQUIREMENTS FOR MILITARY DIVERSION  PROGRAM

A defendant who is charged with any misdemeanor offense and who satisfies the admission criteria, may be placed on diversion prior to adjudication.  A defendant is eligible if 1) he or she was or currently is a member of the United States Armed Military 2) The defendant may be suffering from mental health problems and other trauma including PTSD, and 3) the trauma resulted from military service, unlike Penal Code section 1170.9 , there is no formal eligibility requirement that the offense conduct resulted from the military service trauma, though such showing would be influential to the court in deciding whether a veteran should be diverted.    The Judge will decide if there is an appropriate and available treatment program, and if diversion is appropriate in the interest of justice. 

the court will suspend criminal proceedings during the completion of the diversion program.

Within two years of the grant of diversion, upon motion by the defendant demonstrating satisfactory  completion of the diversion program the judge will dismiss the criminal charge.  Additionally the arrest upon which the diversion was based shall be deemed to have never occured, with the exception being the application to be a peace officer, in other words if you are applying to be a peace officer in any capacity you must still disclose the arrest.  If you have been arrested or are charged with a misdemeanor offense and you are a veteran you should contact an Attorney immediately to asses  your rights.

Schwab photo

Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

Schedule a Free
Case Evaluation

Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
View Map
Phone: (559) 295-0391
Website: