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If you have been arrested for a crime you should call experienced cousel as soon as possible.  As an Attorney with more 15 years of experience I have the knowlge of both the local courts and the courts in Fresno in particular.  

below I will be going through some of the changes to bail that has occured recently which could impact your ability to gain your freedom while you are awaiting charges. 

NEW CASE LAW

What you should be aware of is the new case in In Re Kenneth Humphrey, 2018, CAl.App. Lexis 64 WL 5500512 (1st Dist., 1/25/18)

the decision holds that bail schedules may not be rigidly followed "wihtout consideration of a defendant's ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or flight risk." Once a court determines the defendant does not need to be detained for public or victim safety reasons and the defendant should be released on bail, "the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant's appearance at trial or a court -ordered hearing."

HOW THIS WOULD LOOK IN PRACTICE

The way this would probably look in practice is that the there would be a two step inquiry

1. The court would as before the decision make an inquiry as to the need to be detained for public or victim safety reasons

2. Does the Defendant pose a flight risk. 

Only after this analysis has been completed does the court then go further for example if the defendant does not pose a risk to the community and flight risk and says he is not a flight risk and does not pose a risk to the community does the court then have to consider the other factors.  The court must first determine the defendant should be released on bail then the important financial inquiry would be how much bail would be necessary to secure the defendant's appearance at trial or a court-ordered hearing. 

Before this case the court would have been restrained by the bail schedule now the court could determine that the person is not a danger or a flight risk and then make a determination as to the amount needed to secure the defendant's appearance in court.  And the court would not have to follow any kind of bail schedule. 

Some courts have required that the defendant submit a declaration stating that they cannot afford the amount of bail on the bail schedule.  

Although this could just be a local or court rule rather than a requirement of the case law. In bail hearings we always argue the above factors danger to the community and the flight risk.  

This law does not change the pre-trial release or or or releas on own recognizance, law.  Which means that many people who cannot afford bail in Fresno County were being releases on pre-trial releas or or.  Especially if they met the above requirments. 

If you or a loved one has been arrested or soon will be give us a call so we can go over your options.

Many people call my office regarding traffic tickets collisions and other related traffic questions.  Below I will answer some of those questions and even how you can avoid some of these offenses.  If after reading this article you have any questions do not hesitate to give us a call.  559 441-1418. 

If you get a traffic offense or are involved in an "at fault accident" you could increase your chances of having your license suspended or revoked.

WHAT IS A POINT AND HOW DOES IT AFFECT ME?

Tickets and accidents are assigned points.  Each incident is assigned a point.  Depending on the type of traffic ticket, you can get from 1-2 points for a traffic ticket 1 point for an accident. 

EXAMPLES OF POINTS

If you get a ticket for speeding, running a red light, making an unsafe lane change, or having an at fault accident, a point will be placed on your driving record.  

If you are convicted for reckless driving, hit and run, driving under the influence of alcohol/drugs, or driving while suspended or revoked, you will recieve two points on your driving record. 

HOW DOES DMV MONITOR YOUR DRIVING RECORD

DMV keeps a record of all traffic convictions and accidentss.  Each traffic violation and/ or accident is assigned a point on your driving record.  Your driving record is public information and anyone even a parent or guardian if you are underage can look up your driving record. All they need is to submit a form and pay the applicable fee. 

WHAT IF YOU ARE A MINOR WITH A PROVISIONAL LICENSE?

The department of motor vehicles will be watching your driving record very closely while you have a provisional license.  The department of motor vehicles will take action based upon the accidents or violations that appear on your driving record.  Here is what will happen: 

If you have one at fault accident or conviction within 12 months, the DMV will send you a warning letter. 

After a second at fault accident conviction (or a combination of both) within 12 months, you cannot drive for 30 days unless accompanied by your parent or other licensed adult who is at least 25 years of age. 

After a third "at fault" accident or conviction (or any combination) whithin 12 months, you will be suspended for six months and placed on probation for one year. 

If you have additional "at fault" accidents or point counts convictions while your driving privilege is on probation you will be suspended again.  (traffic law violations recieved in juvenile court are also reported to DMV.) 

If you are convicted of using alcohol or a controlled substance and you are between the age of 13-21, the court will tell DMV to suspend you for one year.  If you don't have a drivers license yet, the court will tell the DMV to wait a year longer before you can apply for a license.  You can also be required to go to a DUI program.  

Any restriction, suspension or probation will continue past your 18th birthday for its full term. 

Other stronger actions may be taken if your driving record justifies them.  Remember, when your driving privilege has been suspended or revoked you may not drive in Calfornia wiht any license or permit. 

AFFECT OF VANDALISM ON YOUR DRIVERS PRIVILEGE

Vandalism is defacing property with paint or any other liquid or by scraping or writing on any surface.  The court will suspend, restrict, or delay for one year the driving  privilege of a minor age 13 years or older.  

Adult drivers will also have there drivers privilege suspended for one year if convicted of a similiar acts of vandalism. 

HABITUAL TRUANT PERSONS 13-18

The court will suspend, restrict, delay, or revoke, your driving privilege for one year if you are convicted of being a habitual truant from school.  

POSSESING A FIREARM

The court will 

suspend or revoke the driving privileg of any minor convicted of possesing a concealable weapon or live ammunition or 

impose driver license sanctions for minors convicted of misdemeanors involving firearms. 

HOW LONG DOES A POINT STAY ON MY DRIVING RECORD?

The length of time depends upon the severity of the offense.  Most points (illegal turn etc. not making a complete stop, driving over the limit etc) and/or accidents will stay on your record for 39 months (3 years 3 months) Points for more serious offenses, such as hit-and-run or a DUI  will stay on your record for 13 years.  

having points on your driving record affects how much you will pay for insurance and other things.  

If you have any questions give us a call 559441-1418.

 

Many times I have people calling my office with a lot of misinformation about a DUI and what is commonly referred to as a "wet reckless" although there is no such term in the Calfornia Penal Code.  If you have been arrested or cited for a alcohol related offense give us a call. I have been helping people for more than 14 years in these type of situations and can get you through this time.

When you have been involved in an alcohol related driving offense there are many legal terms that will be thrown around.  The most common terms are DUI, DWI, and "wet reckless".  The term DUI stands for driving under the influence, and is interchangeable with the term DWI, which stands for driving while intoxicated.  The state of California only uses the term DUI when either drug or alcohol induced driving is at issue. 

There is a difference between a DUI conviction and a "wet reckless conviction.  

The "wet reckess" charge was devised to provide an incentive for DUI defendant to enter into a plea bargain, in fact wet reckless is not something you can be arrested for.  There is technically no actual law on the books that defines "wet reckless" instead 23103.5 allows a defendant to make an admission to a lesser charge of CVC 23103 driving with a notation that alcohol was involved.  

WHAT BENEFITS ARE THERE TO PLEADING TO A "WET RECKLESS" OVER A DUI?

1. Mandatory fines may be reduced. 

2. Mandatory alcohol related classes may be reduced. 

3. Jail time will likely be eliminated. This is helpful if you have a prior alcohol related driving offense. A "wet reckless" does not require mandatory jail time. 

4. Some California counties mandate the installation of an ignition interlock device on your vehicle after a dui conviction and a "wet" reckless can eliminate that requirement.

5. It could be helpful in in obtaining or keeping employment. 

WHAT A "WET RECKESS REDUCTION WILL NOT DO FOR YOU:

1. Your "wet reckless" will still be reported to the DMV and the DMV will treat it the same as a DUI in terms of suspension of your drivers license. 

2. The "wet reckless" will stay on your record for a period of 10 years.

3. You "wet" reckless will still be used as a prior offense for up to 10 years, the same as a DUI, if you are convicted of another alcohol related driving offense in the future. 

As you can see a "wet reckless will not eliminate many of the punitive requirements that accompany a DUI , but there are several reasons wha a "wet" reckless is preferrable to a DUI. 

The requirements or the reasons for a plea of "wet" reckless are many.  There could be a weak case, or the prosecutor cannot prove what your BAC was at the time of driving. There could be other reasons.  Usually we will sit down with a client and go over the facts of the case from there perspective, and then go through the case. 

we will look at mvers which are the cameras on top of the patrol vehicles

the body cams worn by the officers

read the calibration logs for the device used to measure the amount of alcohol in the blood. 

the police reports and any witness reports that we have that may contradict the officers statement.  We will then go to the DMV hearing to get further informaiton regarding the case and fight the DMV portion even if we are not successful at this poin the DMV hearing will further educate us on the possible defenses for your case. 

Also, if you have no priors and you have a BAC that is very close the legal limit of .08 or above then you may obtain a "wet" reckless, although I have had clients come in saying different Attorneys promised they could have a case reduced, promises should  not be made in criminal or for that matter any legal case all cases are different.  Stay away from Attorneys that tell you promises.  

If you have any questions give us a call at 559-441-1418.

 

If you have been convicted of a so called "wet reckless" or a dui you may be eligible to have that matter expunged from your record.  In practicing criminal law for more 15 years I know because we have done this for clients many times in the past. 

Getting a dui or wet reckless can be a emberrassing and life altering thing for most people.  It can and does happen to people from all walks of life.  The consequences have never bee more severe or strict than they are now. 

However, you need not face these consequences for the remainder of your life you can and should get the expungement process going to help you get your life back and not have to face some of the consequences, of this conviction forever. 

HOW DOES MY RECORD CHANGE AFTER THE EXPUNGEMENT?

All criminal databases used for employment background checks, both publice and private, will update automatically within 30 days after your DUI expungement is complete.  The process is that the Judge will send an order for an expungement to the California Department of Justice and then the Department of Justice will do an update on your ciminal history. 

WHAT ARE THE CRITERIA FOR A DUI OR "WET" RECKLESS EXPUNGEMENT IN CALIFORNIA?

1. You have successfully completed probation (inormal or formal) or if you were not gien probation one year must pass since your conviction date.  If still on probation check our our early termination of probation service early termination of probation expungement blog to be exact. 

2. You must have satisfied all requirements of your sentence (fines, restititution, mandatory programs, community service, classes, etc ). 

3. You are not currently charged with another criminal offense, on probation, for another criminal offense, or serving a sentence for another criminal offense. 

One thing  I would like to straighten out right now in this blog which I think is a misconception is that your DUI conviction does not automatically go away after a 10 year period.  This is a common misconception. After a 10 year period if you did not re-offend your dui would be treated as a first offense.   However, this does not mean the original DUI somehow went away.  The DMV will not count the DUI as points on your record after a period of 10 years.  Most employers look at your criminal record not your dui record for most cases.  This is not always the case where you must drive for your job and so forth. 

expunging the DUI from your record will not change your DMV printout, or DMV record.  The DUI  will remain on your DMV record for a period of 10 years regardless of whether the matter was expunged or not. Also, and expunged DUI  will still count on your record as a prior DUI  for a period of 10 years.  

WHAT ARE THE BENEFITS OF A "WET" RECKLESS AND DUI EXPUNGEMENT?

Other than the mental relief one can experience with an alcohol related misdemeanor expungement, there are also many tangible benefits that a "wet" reckless or DUI expungement offers:

1. Your past DUI or "wet reckless conviction will not show up on employer background checks. 

2. In almost all casses private employers cannot ask about convictions that were dismisssed under Penal Code section 1203.4 nor can a conviction that was dismissed be considered for employment purposes. 

3. You can truthfully and legally answer no on job applications when asked fi you have ever been convicted of a crime. 

4. You can greatly increase your earning capacity by becoming eligible for more employment oppurtunities. 

5. You can become eligible for many types of professional licenses and certificates. 

6. You can become eligible for better student loans.

7. You can become eligible for better housing assistance

8. You can tell friends and family that you have not been convicted of the DUI or Wet reckless. 

9. You have the satisfaction of forgetting the past for good and moving forward into a more positive future. 

If you have any further questions give us a call at 559 441-1418.

If you have any questions after reading this article you should give us a call so we can go over some of your rights with you.

ARE INFRACTIONS ELIGIBLE FOR EXPUNGEMENT?  

Traditionally infractions were not eligible for expungements in California under Penal Code 1203.4 however, there has been some changes to this law in 2011 which made some infractions eligible for expungement.  

DO INFRACTIONS SHOW UP ON CRIMINAL BACKGROUND INVESTIGATION?

Infractions are not considered criminal convictions and are akin to traffic violations.  In fact they are less serious than misdemeanor or Felony convictions.  They do however, show up on criminal background investigations.  Employers can still find infractions on your record sometimes as easily as looking into local criminal background databases. 

Call our office and we can help you get this matter expunged and updated in about 30 days.  Criminal databases are suposed to be updated every thirty days after having a signed order from a Judge updating and expunging the matter.  After the Judge signs the order it is ordered to be sent to the Calfornia Department of Justice for an update. 

THE EXPUNGEMENT PROCESS

The usual process is an investigation of your prior record with a close eye on all possible infraction cases that are on your record.  We then file a noticed motion and set  a court date.  Then the Judge will make a decision on your case sign the order and then the order is sent to the department of justice for an update of your criminal history.  

WHAT ARE SOME OF THE INFRACTIONS THAT CAN BE EXPUNGED?

1. Petty Theft

2. Marijuana Possession

3. Disturbing the peace

4. Tresspassing

5. Fraud

6. Illegal purchase of Alcohol

Like stated earlier although these offenses are not as serious as a felony or misdemeanor they may leave an ugly mark on your record.  Also, you may have moved on from this behavior a 1203.4 petition will set aside the guilty plea, or no contest plea, or factual finding of guilt, and set aside the conviction.  More importantly your criminal record will be permanently modified to show a dismissal rather than a infraction or a conviction.  Once the infraction is successfully expunged by the court you can truthfully tell employers, your family, and all other people that you have not been previously been convicted of a crime.  

WHAT ARE THE REQUIREMENTS TO QUALIFY FOR AN EXPUNGEMENT IN CALIFORNIA.  ALL THREE REQUIREMENTS MUST BE MET

1. You must have satisfied all the requirements of your sentence ( fines, restitution, mandatory programs etc.) 

2. You are not currently charged with another criminal offense, on probation, for another criminal offense, or serving a sentence for another criminal offense. 

3. The infraction cannot be a vehicular infraction. 

The entire process may take several weeks because you must get a court date and then have the matter heard and then the offense has to be updated on your record.  Sometimes it can take several weeks to get the matter placed on calendar depending on the county and how long those matters take to get on calendar.  

BENEFITS OF AN INFRACTION EXPUNGEMENT N CALIFORNIA

1. In almost all cases private employers cannot ask about convictions that were dismissed under Penal Code section 1203.4 nor can a conviction that was dismissed be considered for employment purposes.

2. Your expunged infraction conviction will not show up on most employer background checks. 

3. You can truthfully and legall answer no on private sector job applications when asked if you have ever been convicted of a crime.  

4. You can greatly increase your earning capacity by becoming eligible for more employment oppurtunities. 

5.  You can tell friends and family that you have not been convicted of a crime. 

6. You have the satisfaction of forgetting the past for good and moving forward into a more positive future. 

If you have any question give us a call 559 441-1418.

 

The crime of Manslaughter is usually part of a Homicide case.  If you or a loved one has been accused of Homicide give us a call.  You definitely need experienced Homicide representation.  As someone that has tried more than 10 Homicide cases to verdict and handled close to thirty other Homicides many of which ended up in the Manslaughter range we know how to represent you in this type of case.  

MANSLAUGHTER IS AN UNLAWFUL KILLING DONE WITHOUT MALICE PENAL CODE 192

If there has been a unlawful homicide without proof beyond a reasonable doubt of malice aforethought.  it can even be if a person acting with a conscious disregard for life and kwowing the conduct endangers the life of another, unintentionally, but unlawfully kills another in a sudden quarrel or in the heat of passion.  

Voluntary Manslaughter can result from an "implied intent" homicide. In other words you can be held liable for Manslaugther even if you did not intend to kill somoene as long as there was an act done with that was inherently dangerous to human life and with conscious disregard and unreasonable self defense then the crime would be manslaughter rather than involuntary manslaugter for example.

WHAT IS UNREASONABLE SELF DEFENSE?  

Any time a person acts with an honest but unreasonable belief in the need to use deadly force, then the defense then the defense can argue that the crime committed was volunary manslaugther, based upon the fact that person acted with an honest but unreasonable belief in the need to use deadly force and therefore, lacked the requisite mental state i.e. malice for murder.  

Note that this defense if different from stating that the person acted in a sudden/qurrel or heat of passion. 

HEAT OF PASSION KILLINGS

under this theory the person that committed the crime is said to be less morally culpable based on the fact he acted under passion rather than rational decision. 

Generally, if a person killed under provocation so great as to produce that response in a reaonable person, there is no malice of forethought and the crime is manslaughter.

This is again a generally speaking.  If you are charged with Murder or someone you know has been charged you should contact a homicide defense attorney that is experienced in these types of defenses.  

 TO REACAP THERE ARE TWO WAYS TO GET TO MANSLAUGHTER

the main two basis for voluntary manslaughter are heat of passion and imperfect self defense these are not elements of voluntary manslaugther rather they are ways in which malice either express or implied may be negated.  

If you hav further questions a confidential case evaluation should take place for your case.  Every case is different and there are many different scenerios which must be explored and the facts of your individual case must be evelauated.  Here, these are the general ideas for your case and not meant to be case specific. 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
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