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If you or loved on has been suspected or arrested for any homicide related offense you will have many quesitons.  If after reading this you have any questions give us a a call at 559-441-1418.  Below I will give an overview of Homicide law and give some defenses to the offense.  

WHAT IS A HOMICIDE?

A Homiicide is the unlawful killing of a human being by another with malice. and wihtout justification.  

WHAT ARE SOME OF THE DEFENSES TO HOMICIDE?

There are two types of defenses to Homicide.  One is a complete defense, such as Self Defense, Defense of Others, or the police have arrested the wrong person, meaning a false accusation.  There are other defenses however, this is meant to be a brief overall view of the law of Homicide. 

SELF DEFENSE

People are allowed to protect themselves from the use of deadly force if they reasonably  believe that they or someone else is at the risk of death or serious bodiy injury.  

Example: If someone pulls a gun on you and is robbing you, under most circumstances you could shoot the person to protect yourself from death or serious bodily Injury.  

DEFENSE OF OTHERS

A person is said to step into the shoes of another person when that person is facing death or serious bodily you can step into that persons shoes and use force necessary to protect a  person from death or serious bodily injury.  

FALSE ACCUSATION

Sometimes people that are accused of a Homicide may have been falsely accused of the crime.  This may happen through false innacurate in person false identifications or other problems.  

There are many other defenses and situations that occur in Homicide cases.  This area of the law is a vast and has undergone many changes in the past few years if you have questions in the future let us know and we can help you.  Call 559-441-1418.

 

If you have a child that has been arrested or detained it is vital you get experienced representation as soon as posssible.  Below I willl go through some of the considerations and law as to Juvenile Hearings and specifically Juvenile Detention Hearings.  If you have questions after reading this article do not hesitate to give us a call at 559 441-1418.  

WHAT HAPPENS IF MY CHILD IS ARRESTED?

If your child is arrested or comes into contact with an police officer the officer will make a determination as to wether to cite and release the minor or to go a more formal route and have the minor transported to the Juvenile Detention Center.  

HOW LONG WILL IT TAKE TO HAVE A HEARING?

A minor that is sleeping at Juvenile Hall must be given a detention hearing within 48 hours.  If the minor is not brought before the court within 48 hours of arrest then the minor must be released.  The charges may still go forward which is a different issue with different timelines, (usually within 15 days or 30 if the minor is out of custody)

WHAT WILL HAPPEN AT THAT FIRST HEARING?

The first hearing in a Juvenile Court is referrred to as a detention hearing.  At the detention hearing there are several things which will be determined including time waivers I.E. will the minor be waiving his right to a Disposition or trial within the 15 days, and wether the minor will be housed at Juvenile Hall or be allowed to go home to a parent or guardian pending the outcome of a case. 

Below I will go into the factors the court will consider when deciding if the minor will be going home or if the minor will be housed at the Juvenile facility pending the outcome of the case.  

1. The court will determine if the case was brought withing 48 hours.

2. Is there a pima facia case, or probable cause to believe a crime has been committed by the minor.

3. Can the minor be returned to the home of a parent or guardian. 

The Defense will look at the complaint and in Fresno County there will be a detention memo provided.  That is where the detention information will be gathered.  

If when looking at the detention memo and petition, I.E. a complaint in adult court the Attorney feels there is not a sufficient probable cause to hold the minor for the crime. If the Attorney does not feel there is probable cause they can at detention hearing ask for a Dennis H. Hearing where the officers will be required to come into court and be subjected to cross examination regarding there police reports and the probable  cause element.  If there is insufficient probable cause then the minor will be released.  Probable cause is a lower standard than proof beyond all reasonable doubt, Therefore often this will not work. 

However, that is not the end of the analysis. The court must determine even if there if probable cause whether to house the minor at JJC or to have the minor returned to the home.  

WHAT DOES THE COURT LOOK AT IN MAKING THAT DETERMINATION?

The court will look at Welfare and Institutions code 635 and 636 for factors such as is there a urgent necessity, will the minor make his court appearances, so forth.

This determination must be made every fifteen days is the case has not been resolved.  Usually the court will not change there minds unless there is a a substanitial change in circumstances. 

The court will consider grades, attendance, if there are allegations of gang membership, the nature of the chage, etc. the nature of the charge will be taken at face value unless there is a Dennis H. hearing requested then the court must make a probable cause determination.  

The court may if the Attorney needs more time to gather evidence for the detention hearing do a detention hearing and not make a determination on detention until the next court date.  This sometimes happens if the family is not prepared for the first court date with grades attendance and so forth. 

If after reading this article you have further quesitons give us a call at 559441-1418. 

 

If you or a loved one has been arrested for a DUI you will have many questions as to what will happen and what defenses you may have to the dui.  With alist two Decades of experiennce and having both prosecuted and defended DUI cases,  I can help you get through this.  If after reading this blog you still have questions give us a call at 559 441-1418.  We can help you get through this.  Experience and results matter.  

Below I will go through some of the defenses to a DUI case this is not meant to be an exhaustive list and you should definitely seek legal help as soon as possible before the longer you wait before seeking legal counsel the worse things may get for you.  

1.  There could be errors in the DUI breath testing.  There could be maintenence errors or an operator that is not used to using the machine or using it in the right way can cause problems.  Sometimes even gerd or other problems can affect the accuracy of this machine. 

2.  So called mouth alcohol could affect the accuracy of the test. Such as burping or even recent dental work could affect the amount of the breath alcohol and affect accrucy of the instrument.  The key is to prove these things and be able to show to the district attorney of the jurors. 

3. Rising blood alcohol defense  This defense means that your blood alcohol was higher when you took the test than when you were actually driving. 

Alcohol takes a certian amount of time to go into the blood stream.  between 50 minutes and three hours.  to absorb into you system.   For example if you had just finished driking, and were investigated for DUI shortly thereafter your bac may not have reached peak absorption rate.   When this is the case your blood alcohol rate is still rising and may give rise to rising blood alcohol rate.  And an elevated BAC.  This is bacause your bac at the time of the test is irrelevant it is your bac at the time that you were driving which is the relevant factor.  

prosecutors will often overlook this fact when they are prosecuting a DUI.  

4. There are innocent reasons you showed the objective symptoms of DUI  There could be many reasons that you have objective symptoms of a DUI

such as being out late at night having allergies and many other reasons many times we have officers who simply recite in there reports the exact same information as to every case.  We have to make sure there is no innocent explanation for the facts of the case and go into a defense based upon those facts many times the facts stated in the report do not make any sense and should be examined thorroughly.  

 

Now all of these factors wont necessarily mean that the prosecutor will dismiss the case. It is up to the District Attorneys office what cases they will prosecute and which cases will be dismissed.  Many times with the above factors we will meet with the client and then make a determination as to whether the client wishes to go to trial if the prosecutor refuses to either dismiss the case or reduce the charges.  If you show many mistakes or irrgularites in the stop arrest and gathering of evidence by the police then either the District Attorney can either reduce the charges dismiss the case or refuse to do any of those things ask that you go to trial. This is a determination made after we gather all the evidence and through the discovery process gather all the evidence the prosecutor has. 

 

If you have quetions call us at 559 441-1418.

If you have been convicted of a crime you may be entitled to an expungement under 1203.4 and possibly some other statutes.  Many people do not know the actual statute number for an expungement.  The statute is 1203.4 and is the actual statute is California dealing with dismissals.  Now one thing I would like to touch on upfront and I think many Attorneys are not explaining this properly and some even advertise with headings such as erase your convictions.  This is misleading and not what the statute is meant to do.  Under 1203.4 there is no erasing of your conviction.  I will address what the expungement actually accomplishes and what is does not so you can be sure to get what you are actually trying to get.  

WILL THE EXPUNGEMENT SEAL OR DESTROY MY RECORD?

NO.

If your petition under 1203.4 is granted than your record is not sealed or destroyed.  Instead the record is "expunged"  a proper way of looking at that is that ther record is dismissed and will have to be updated as such in all criminal record databases.  

WILL THE CONVICTION REMAIN ON MY RECORD?

Yes but the conviction can only be used for certain purposes, such as sex offender registration, immigration consquences, the statute actually states unless as otherwise stated defendant is realesed from all penalties and disabilities resulting from the offense.  There are numerous limitations on this relief.  

WHO IS ENTITLED TO RELIEF UNDER THE STATUTE?

An adult who was granted probation, completed all the terms and conditions of probation and is no longer on probation is eligible for relief under this statute.  and under new law if your case was reduced to an infraction you can still get the relief under 1203.4 also known as the expungement statute. 

WHAT WILL AN EXPUNGEMENT ACCOMPLISH?

1. Result in a new entry in the court record showing the dismissal of the case. 

2. Allow you to answer on many, but not all, job applications that you have not been convicted.  If however, you are applyin for a governmnet job or a job that requires a government issued license or you must disclose.  

3. Prosecution cannot use if you are a witness unless you are the person being tried for the crime.

WHAT THE EXPUNGEMENT UNDER 1203.4 WILL NOT DO

1. It will not remove the conviction from your rap sheet.

the rap sheet will show the convction and then the update to dismissal. 

2. It will not reisnated your right to own a firearm.  You can get a reduction from a Felony and that will in some cases restore your rights as long as not a violent felony or domestic violence.

3. Remove the requirement to to register as a sex offender.  per 290 If the expungement is granted registrants must then complete and file a certificate of rehabilitation when eligible. 

4. It will not allow you to ommit from request on licenses whith state agencies. 

5. Seal or otherwise remove the court case file from public inspection anyone who knows where to look can get access to the file.  probation reports can only be accessed for 90 days after the completion of sentencing. 

6. Prevent the conviction from prior or a strike for to increase punishment. 

7. Prevent the conviction from being used impeachment purposes on a subsequent offense.  

 

As you can see this is a sometimes complex area of the law and there is much misinformation concerning exactly what the expungement will or will not do. We have helped hundreds of clients through this process with both Felonies and Misdemenors.  If you have questions after reading this article give us a call and we can help you through this call us at 559441-1418.

 

 

 

 

If you h ave been convicted of a crime and are trying to get going in your life again you may have a lot of questions regarding expunging your criminal record. 

If after reading this article you have questions give us a call at 559 441-1418.  Below I will be going over the steps to an expungement and how it can help you to move on  with your life.

 

1. WHAT DOES AN EXPUNGEMENT ACCOMPLISH?

For private employment you can say that you have never been convicted of a crime.  This does not mean that all records of the conviction are destroyed and nobody will ever be able to find the record.  This is a common misconception, and innacurate.  If you went to prison or where convicted of certain other offenses you should seek a certificate of rehabilitation we will have a seperate blog as to the steps for a certificate of rehabilitation.  

For public employment such as with the government you will still have to admit and state you were convicted, however, you can say that the crime has been expunged and under new law that cannot be the only reason to deny employment.  

 

2. CONSIDER OTHER MEANS OF CLEANING UP YOUR RECORD

 

This could mean many different avenues such as reducing felonies to misdemeanors or getting a certificate of rehabiliation.  This of course depends upon the crime you committed and exactly what outcome  you want to have. We always sit down with our clients and go over all the different ways in which they can start to clean up there record. 

3, EVEN IF YOU ARE NOT ELIGIBLE FOR AN EXPUNGEMENT THERE COULD BE OTHER ALTERNATIVES TO EXPUNGEMENT

Aa discussed above there could be a certificate of rehad there could be a pardon there could be many different alternatives sit down with an Attorney and we can let you know which is the best alternative for you.

4. WE WILL FILE THE MOTION FOR EXPUNGEMENT  

The next step is to actually do the motion for expungement under Calfiornia Penal Code 1203.4 this will mean we will gather all documents look up what we need to look up as to the law and eligibility and then gather the case for your expungement.  This includes preparing the Order of expungement for the Judge to sign this will enable the court to sign the order as soon as the court hearing is over and complete the process. This part of the process of gathering all the information is a critical step to complete the process and insure that if you are elibible that everything can be granted and the process runs smoothly once you are in front of the Court.  

5. WORKING WITH AN EXPERIENCED ATTORNEY

For many people this process can be very confusing and difficutl to understand many times we have poeple come into our office that have had 

extreme  problems getting through this process and understanding exactly what they need to do once we are on the case there can be a lot of reief from the people as to what they need to do.

As somoene that has practices law for more than 17 years all over th state of California and having done many different expungements we have the know how to get you through this process.  Give us a call and make an appointement and we can begin to get you through this process and get  you going with your life.  Our phone number is 559 441-1418, and we can get you jthough this from one of the forms of relief that has not been afforded you by the California legislature.  Again if you have questions give us a call. 

If you or a loved one has been convicted of a crime in California you may have the right to an expungement.  Many people have questions regarding how long they have to wait before they can get an expungement, and many other questions.  After reading the article below let us know if you have any questions and we can help you. 

HOW LONG DO I HAVE TO WAIT TO GET AN EXPUNGEMENT IN CALIFORNIA?

There is no set waiting period for an expungement.  You just need to have completed your probation or (or obtained an early termination of Probation in some Marijuana cases you do not need to wait for this under proposition 64).  You can actually file for an expungement the next day after your probation ends.  

WHAT EFFECT WILL THE EXPUNGEMENT HAVE ON MY ABILITY TO GET A JOB OR CHECK THAT I HAVE NEVER BEEN CONVICTED?

In most cases for private employment you can check the box that you have never been convicted of the expunged crime.  Your conviction will be marked as dismissed on your official California Criminal record, and we provide all our clients with the minute orders ordering the expungement from there criminal record. 

For most government licenses or jobs you will still be required to admit the conviction, however, under some new laws they cannot use that as the sole or only basis on which to deny you employment.  

I have always told the clients to admit the convction but to also note that the conviction has been dismissed and expunged.  This at least shows the agency that a Judge has reviewed your case and has granted an expungement.  

CAN YOU EXPUNGE OR REDUCE A FELONY?

Yes you can reduce and expunge a Felony conviction.  However, you can only reduce and expunge certain Felony convictions.  If you were sentenced to prison then the route you would go is the certificate of rehabilitation rather than the expungement.  You should always go for a reduction as well as an expungement at the same time, so that you can get the benefits of the reduction and many of your rights regained and then the expungement.  

HOW LONG DOES THE PROCESS TAKE?

This depends very much on your situation.  you can get started immediately and then you can We can sit down with you either before or after you have retained all of your records.  If you have your records with you both locally and from the DOJ then the process can get started within a few days.  We will also meet with you to explain everything and to make a court date. YOU will have to be present for that court date. At the court date the court will decide wether to grant or dismiss the motion. If the court grants the motion then the court will sign and order that the case is dismissed.  The court date is usually set out about 4 weeks.  

WHAT HAPPENS ONCE THE MOTION IS GRANTED?

Once the Judge grants the motion he or she signs the order and sends to the California Department of  Justice.  There responsibility is to make sure your criminal record or rap sheet is updated and shown as dismissed.  This process can take a few weeks and we have seen longer.  However, you will hav the paperwork from the court or minute orders that show that the case has been dismissed you can keep those; in addition there will be paperwork sent to both you and to our office with a signed copy from the court.  I have seen this done in Fresno County for many years.  

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

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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Fresno, CA 93704
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