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If you or a loved one has been arrrested for a DUI you will have a lot of questions.  The process can be long and take a lot of time, and be difficult to understand.  If you have any questions after reading this article give us a call at 559 441-1418, and we can help you get through this process.  

WHAT ARE THE MOST COMMON PENALTIES FOR FIRST TIME DUIS?

The first thing you should know is that if you are currenlty on probation or parole taking a plea or being convicted of a DUI will result in the violation of your probation, or parole and could lead to a sentence on that underlying case.  So for example if you are on probation for a Misdemeanor Battery and you take a plea to a Misdemeanor DUI then you will be automatically admitting to a violation of your probation for that offense if you are currently on probation for that offense.  You will be sentenced for both the DUI and the violation of probation.  

WHAT ARE THE CONSEQUENCES TO A PLEA OR FINDING OF GUILTY OF DUI?

For a first offense DUI the minimum sentence you can recieve for a DUI 96 hours to six months in jail, $390.00 to a $1,000.00 fine and 6 months drivers suspension.  If granted probation it could be up to 6 years, however, with new changes in the law it could be considerably less than that amount of time. 

Usually in Fresno County Superior Court you will be ordered to do AOWP time instead of in custody time the court will order a certain amount of that time depending on many different factors including blood alcoohol content and if you have any priors and the specific facts as to the case.  

DMV CONSEQUENCES

There will be DMV consequences as a result of the plea when this occurs you will be given written notice and within 10 days of your arrest you should request a DMV hearing and  the suspension or revocation of your license will be stayed. 

The best way to think of this is as two different court processes.  The DMV process and the actual court process.  In the past if you lost your dmv hearing you would go through what was commonly called a hard revocation where you could not drive for a specific amount of time at all.  This has changed in many counties including in Fresno County where you could get the ignition interlock device placed into your vehicle and then be able to drive.  This could save you some time as you will not have the hard revocation.  You would have to show the dmv tha tyou have placed this into your vehicld and and have an sr 22 which is a proof of insurance after the dui and pay a fine and you will be able to drive.  This is important to note that you will still have a suspended or restricted licens for a certain amount of time and then after the period of six months you will be able to drive without any restrictions.  

As you can see this is  long and difficicult process and you wlll have a lot of questions throughout the process we have helped many people with this process and can help you to get through this process.  We have helped hundreds of others in the same situation.  So if you have questions after reading this article give us a call at 559441-1418.  and we can set up a  case evaluation with you 

Nothing in this article is meant as legal advice and is for informational purposes only cases are always dependent on the facts. 

If you or a a loved one has been arrested for a Domestic Violence case give our office a call. Domestic violence cases can be complicated and involve everything from batterer treatment classes to limitations on gun rights.  Below I will go over what the diffefence is between the most common domestic violence charges the 273.5 and the 243E charge.  If after reading this article you have any questions give our office a call at 559-441-1418.  

 

First I will go over what a 273.5 is as both a Felony and Misdemeanor and then go over the 243  E charge and then explain the difference.  

WHAT IS A 273.5? 

1. Defendant willfully inflicted corporeal injury on victim.  

2. Victim was either; 

Defendant's spouse or former spouse 

person with whom her or she is or was in cohabitating with 

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

the mother or father of his or her child 

3. Corporeal injury resulted in a traumatic condition. 

WHAT IS A 243 e ?

Defendant committed battery upon a victim. 

2. At the time of the battery victim was either the defndants spouse or fiance, or an individual with whom the defendant currently has or previously had a dating relatiionship. 

PC 243e1.

WHAT ARE THE DIFFERENCES?

The difference between the two charges is that for a conviction of 273.5  you must have inflicted some type of injury on the spouse in  order to be convicted under the 273.5 statute.  if you used physical force on a person and that person suffered and injury no matter how slight you will be charged with the crime under the penal code 273.5  whereas under 243 e there is no need for the injury to have occurred.  

WHAT ARE THE PENALTIES?

both offenses are wobbler offenses which means they can be charged either as a Felony or as a Misdemeanor.  If you are convicte of the misdemeanor, you face up to 364 days in jail, and fines of up to $6,000.00

For a Felony violation you can get probation or up to two, three, or four years in state prison and fines of up to $6,000.

COLLATERAL CONSEQUENCES TO A CONVICTION

There are many collateral consquences to this conviction are many.  

first as to gun rights even as a misdemeanor, a conviction under either one of the statutes above could have profound affects on your ability to legally own or posses a firearm.  If you are convicted of a Felony your gun rights will automatically be stopped meaning you cannnot own or possess a firearm under both state and federal law. 

If later under penal code 17b you get a reduction under state law you could then be able to possess a firearm.  However, under federal law which is the supreme law of the land and where there is a conflict with state law it is just as if the state law does not exist you will still not be able to own or possses a firearm and in fact when you go to but a firearm you will not be allowed to purchase the firearm.  This is becuse the federal governmemt passed a law which made it illegal for a person that has been convicted of a domestic violence offense from purchasing a firearm again for the remainder of there lives.  This is true even if the offense was a misdemeanor for all purposes.  That means you could be charged wiht a federal offense even if under state law you are able to own a firearm under the existing statutes.  

Nohthing in this article is meant to be legal advice as to your specific circumstances.  if you have additional questions call us 559441-1418.

 

 

 

 

 

If you or a loved one has been convicted of a Domestic Violence case and need or want an expungement give our office a call.  Many peopple wonder if a domestic violence case is somehow exempt fromt he expungement statutes they are not. 

In this article I will go over the Misdemeanor Domestic Violence elements and then what an expungement is and how you can get one and what are the effects of an expungement but first I will go over the firearms rights and how the expungement will not get your firearm rights back.  

DOES AN EXPUNGEMENT FOR A DOMESTIC VIOLENCE OFFENSE RESTORE MY FIREARM RIGHTS?

The answer to this question is no and I will explain.  Federal Law has changed recently to exclude those who committed domestic violence cases from owning or possessing firearms.  

THE DIFFERENCE BETWEEN FEDERAL AND STATE LAW

In state law someone that has committed a violent Misdemeanor or  domestic violence offense has a 10 year  ban on owning or purchasing or posssessing a firearm.   After that period has run out then the person can again lawfully own possess a firearm.

 

HOWEVER UNDER FEDERAL LAW 

for Domestic Violence cases only the right to own or buy a firearm is not restored after that 10 year period has elapsed.  That means under Federal Law when you go to buy a firearm you will not be able to and the application will be denied.  This does not change even if you get an expungement on a domestic violence case.   Many people falsely believe and even some Attorneys advertise that a expungement somehow erases your record this is not true. 

 

WHAT IS A DOMESTIC VIOLENCE MISDEMEANOR 

In another blog post I will go over a Felony Domestic Violence offense and how to reduce that offense to a Misdemenaor.  

1. Defendant willfully inflicted corporeal injury on a spouse

2. victim was either:

defendant's spouse or former spouse

person with whom he or she was cohabitating 

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

the mother of his or her child 

corporeal injury to that person

 

HOW DO I GET AN EXPUNGEMENT OF THIS OFFENSE?

Under the statute for expungement which is found in Penal Code section 1203.4 you can get an expungement for this offense if you are not currently on probation, have completed your probation period, which will always be formal probation for a domestic violence offense and are not currently facing or subject to any other charges.  

the court will always look to see if you had violations of your probation do you complete the 52 week batterer treatment program, and did you do as you were directed by probation.  

We always gather all information regarding he above requirements get letters of recommendation and do investigation before setting a court date to have the matter set for a possible expungement.  

WHAT IS THE EFFECT OF THE EXPUNGEMENT?

The effect of the expungement is that you can for most places of employment and housing truthfully answer that you have not been convicted for any offensse and that is a truthful answer.  again what it will not do is completely erase the conviction and for government of background information for peace officer positions give you the right to not answer the question that you have never been convicted of a crime.  You shoul always consult with an Attorney when filling out applications and nothing in this article is meant as specific legal advice.  If you have questions after reading this article give us a call and we can sit down and help you get an accurate appraisal of your case give us a call 559 441-1418.

 

 

If you or a loved one is in need of an expungement and has served a prison sentence give us a call.  If you have questions after reading this article give us a call and we can help you out.  Our phone number is 559-441-`1418.  

 

Many times people hav come into my office and asked me if they can get an expungement after having served a prison sentence.  The answer to that question used to be a simple NO. However, there has been changes in the law including the law of expungement.  

 

The knee jerk response from me and other Attorneys was also no, expungements were not available to people that had served a prison sentence.  

 

WHAT HAS CHANGED IN THE LAW?

1203.42 has changed the law.  Convictions reclassified as Misdemeanors under prop 64 and prop 47, provided certain specific requirements are met as described below and the Judge finds it is in the best interest of justice then then expungement is still an option. 

 

WHAT REQUIREMENTS FOR A 1203.42 EXPUNGEMENT?

Under the the new (2018) law Penal Code 1203.42 one may seek relief under Penal Code 1203.4 (Expungement) if the conviction at issue is now punishable bya  county jail sentence.  Ths means that even if somoene served time in  state prison for a  felony conviction, that person can seek expungement fi the underlying conviction is now a misdemeanor.  

There are some other requirements under 1203.42 First, at least two years must pass after the applicant finishes hir or her setence probation or post release community superivion.  

Also, the covviction cannot be for a serious or violence felony, or certain offesnes involving children.  As serious felony is one listed under penal code 1192.7 (c) including any felony accomplished by use of a firearm.  A violent Felony is any crime listed under Penal Code 667.5 (c)The sex offenses at issue include, but are not limited to Penal Code 261.5 (d) statutory rape when defendant is now over 21 and the victim is under 16) 288 lewd act with a child) 288 c oral copulation with a child and 286 sodomy with a child.  

Third, the applicant may not be currently charged with a crime, on probation or supervised release or serving a sentence for a crime.  It should be noted that if somoene has been realeased on Parole, parole is reserved for those convicted of serious or violent felonies.  

Under Penal Code 1203.4 the court must allow a qualified petitioner with a qualified offense to withdraw their plea of guilty or no contest and then dismiss the complaint, relief under 12003.42 is discretionary.  That means the Judge can still deny the expungement.  Even if the person meets all of the requirements then the Judge can still say no usually they will state a reason but they do not have to and after a certain amount of time the person can reaply under this statute.  

 

WHAT HAPPENS IF THE JUDGE DOES GRANT THE RELIEF UNDER PENAL CODE 1203.42?

If the Judge does grant the "expungement" the effect is that you can legally answer no on private applications to the question have you ever been convicted of an offense.  As long as the employer is not a government agency or government sub contractor.  One must still disclose the conviction in applying for any state licens agency, or if seeking to opeate a state lottery or ru for public office.  

It is important to note that under 1203.42 the conviction may still be considered for jobe involving the suse of a firearm ie becoming a police officer and it can still be used to deny admission as a citzen if the person is not a citzen of the united states.  If you have further questions give usa call 559441-1418. 

 

If you or a loved one needs a certiificate of rehablilitation, then after reading this aricle is you have any further questions give us a call and we will help you out and get you on track.  Many times people come into our office frustrated because they are trying to do all the work alone and are having a hard time with the paperwork and procedures needed to obtain a certficate of rehablilitation.  

WHAT IS A CERTIFICATE OF REHABILITATION?

In short a certificate of rehabilitation is a court order declaring that a person convicted of a Felony has been rehabilitated.  If a petition is granted, it is forwarded to the Governer by the Court and constitutes the application for a Pardon.  The laws pertaining to a Pardon it does not guarantee that you will be given the pardon only that it will be forwareded by the governor.  

If you have been convicted of a Felony and reside in California you may apply to the superior court in your county of residence. 

Special laws apply to sex offenses.  Persons convicted of sex offenses that are misdemeanors specified in 290 may apply if the conviction has been dismissed under Penal Code 1203.4

Persons convicted under penal code section 288 288 a or 286 c are not eligible for a cerficate of rehablilitation.  

Some offender may be relieved of there need to register.  

WHO MAY APPLY?

1. You were convicted of a Felony and served your sentence in a California prison.

or 

2. A misdemeanor sex offense specified in 290 and that offense was dismissed under 1203.4 and 

have been discharged from custody, parole, or probation; and 

have not been incarcerated in any penal institution jail, or agency since release; and

are not on probation for the commissio of any other felony and 

have resided for five years in California immediately prior to filing the petition.  

PERSONS NOT ELIGIBLE

Those that do not meet the above requirements or 

those who are convicted of misdemeanors except those convicted of misdemeanor sex offenses sex offense as discussed above. or 

those convicted of sex offenses under penal code 286c 288 or 

those who are serving a mandatory life  parole, or

those persons in military service. 

WHEN TO APPLY?

Four years for persons convicted of penal code 187 209, 219 etc.  

2. Five years for any person convicted of any offense for which sex offender registration is requires under penal code section 290. there are some exception sto this.

3. two years for any persons convicted of an offense not listed above and that does not carry a life sentence or 

any additional years ordered by the cour if the person served consecutive sentences.  

PROCEDURES FOR APPLYING

The petition must be filed in the superior court of the applicant's current county of residence (Penal Code 4852.06) THE Petition can be obtained from the clerks office, if our office represents you the we will do this part of the process and go about getting the paperwork together and filing of the necessary paperwork.  

Once all the paperwork is filed and the proper people are notices then there will be a hearing scheduled.  The District Attorney will be present at the hearing and sometimes probation or parole will be there. 

the court could hear evidence or decide the case as the court sees fit.  I have sometimes seen cases where the court will allow testimony and have had my clients do some testimony with the district attorneys office asking some questions and then the court making a decision after that has occurred.  If you have any question after reading this article give us a call and we can help you out our number is 559 441-1418.  We can get you through this. 

 

 

Many times people come into my office confused about the difference between a Felony reduction and an expungement and how to go about the entire process and whether they are even eligible for a reduction and if not what relief they are entitled to in the law. 

If after reading this article you still have questions give us a call at 559 441-1418.  

WHAT FELONIES ARE ELIGIBLE TO BE REDUCED PER 17 B OF THE CALIFORNIA PENAL CODE?

 Certain offenses in Calfornia are punishable either as a felony or misdemeanor.  Those offenses are called "wobblers"  If you were convicted of a wobbler as a Felony, the Judge may be permitted to later reduce the offense to a misdemeanor so long as your sentence did not include a prison term.  

The easiest way to reduce a Felony wobbler to a misdemeanor is to request the reduction at the same time you are asking for an Expungement.  Alternatively you  can file a seperate motion to reduce seperately from your expungement.  You can file a motion to redcue any wobblers using the forms and instructions provided by the court.  

REDUCTION VIA PROPOSITION 47 OR PROPOSITION 64

for certain offenses you my be eligible for reduction per proposition 64 or 47 you should consult an Attorney before seeking relief under these statutes or even under a 17b this is because some of the relief offered may not entitle you to regaining your firearm rights and restoring those rights under the law.  Therefore, before you seek to do any legal work on your own get advice from an experienced Attorney to help you through the process.  

WHAT IF I WAS SENTENCED TO PRISION?  

If you were sentenced to prision the proper avenue for you to take would be a certificate of rehablitation.  The effect of this shows that you have completed your parole and a Judge has found that you are suitable have the certificate of rehabilitation.  This process can be lenghty in all of the above situation but may help you to get employment and to help yourself to move on with your life.  

A certificate of reahabiltation is an order signed by a Judge declaring the person convicted of a Felony is now rehabilitated.  If a petition for a certificated of rehabilitation  is granted, it is forwarded to the Governor by the Court and constitutes an application for a pardon.  A seperate application for a Pardon is not needed.  

The minimum level of but not a guarantee to apply is that you were convicted of a Felony or a Misdemeanor sex offense requiring registration.  and that misdemeanor was dismissed or on the Felony conviction you served a  prison sentence 

have been  discharged from parole 

have not been incarcerated since release 

have paid all fees fines and restititution 

are not serving any sentence on any other felony or on probation or parole and 

have resided in California for the immediate five years prior to asking for the certificate.  We always advice our clients to please get proof of all of the above before the scheduled date for the hearing.  You must be present for the hearing with all paperwork properly filled out and proof of everything.  The Judge will hold a hearing and you may even be asked to be sworn in and testify as to what is in the moving papers.  We always make sure our clients are prepared for this if it does come down to the District Attorney placing somoene on the stand.  

If after reading this article you have further questions give us a call at 559 441-1418 and we can help you to get thes offenses behind you.  

And to move on with your life.

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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
5588 N Palm Ave,
Fresno, CA 93704
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