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TESTIMONIALS

I have known Gerald Schwab for nearly eight years and have consulted with him on several matters. He knows what he is doing about the law, tactical issues and practical strategies for getting problems solved. Most importantly for me, he is direct, candid and has integrity I really respect.

~ Gerald Schwab

FRESNO VETERANS COURT

If you or a loved one is a veteran and have been arrested or are in court for some reason you have certain rights.  There have been changes in the law to help veterans that have become involved in the legal stystem to in some cases clear there record and in other cases to have cases reduced to Misdemeanors.  

The article below is not meant to be legal advice for your individual case. 

 

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

 

PURPOSE OF VETERANS COURT

Veterans treatment court is meant to help veterans target the root cause of the criminal behavior.  And to resolve the cases through different treatment options.  

The Veterans meet with treatment providers and others involved in the court system to make sure the root causes of the there behavior whether it bee substance of mental health problems are being addressed.   

 

WHAT ARE THE REQUIREMENTS FOR VETERANS COURT?

Have served in the military

Pled guilty in a criminal case

Be experiencing post traumatic stress disorder

Brain Injury 

substance abuse or other disorders

So the sequence would be that you have served in the military.  You have a current criminal case, and you are experiencing post traumatic stress traumatic brain injury or several other problems and are willing to enter into a plea of guilty and to proceed with the military court program. 

 

WHAT HAPPENS AFTER I ENTER THE PROGRAM?

The answer depends on several factors but in general if you offense is a misdemeanor you can enter the program and after you have completed all of the requirements then your case can be dismissed and the records expunged. 

If your case is a felony and you complete the program the case can be reduced to a Misdemeanor and in some cases even expunged.  

 

HOW LONG IS THE PROGRAM?

The program is 18 months long and has several steps to the program including showing up in court and abiding by court orders to seek treatment meet with mental health professionals and cooperate with the court.  The court process has several stages.  And you can only go on once you have completed the earlier stages.  

 

As you can see this can be a long involved process that can be very difficult to navigate without the help of an experienced Attorney.  As a Veteran myself I love helping other Veterans especially onces that are struggling in the community after service to there country and have helped hundreds of veterans in the courts around California.  

It is important that after you have been arrested to gather  your documentation of military service and any issues you have been having since exiting active duty or National Guard service.   To be placed in the program you must provide documentation of both your service and any difficulties that you have been having since leaving the service.  Then you msut contact an Attorney and get that documentation to them as soon as possible. 

Then the underlying case must be dealt with including entering any pleas that are needed to enter the program and your case handled through the veterans court.  

 

If youre case is otherwise handled through a different diversion program than you may not need to enter into the Veterans court program.  This is why you need an experienced Attorney to go through any and all your different options before you enter a plea or enter into a prgram.  If you have any questions give us a call at 559 441-1418.  We can help you get through this and go through some of your different options that are avaialibel to you.  give us a call if you have quetions. 

 

 

 

FRESNO P.C. 191.5 GROSS VEHICULAR MANSLAUGHTER WHILE INTOXICATED

If you or a loved one has been charged with gross vehicular manslaugther give us a call.  This is a very serous offense and you will need experienced counsel to help you through this.  As an Attorney that has handled several of these cases and been a Defense Attorney for more than 18 years I have the knowlege and experience to help you through this.  

 

Below I will go through the elements of the offense and what are some of the defenses and factors taken into consideration as to whether the offense is gross vehicular manslaughter or another kind of manslaugther. 

 

 

WHAT ARE THE ELEMENTS THE PROSECUTOR MUST PROVE TO FIND ME GUILTY?

 

1. The driver of the vehicle violated Vehicle Code section 21310, 21352, or 23153 

2. The killing was either the proximate result of the commission of an unlawful act wich might produce death in an unlawful manner, and with gross negligence.  

3. The unlawful or negligent act was the cause of death of a human being. 

 

In breakin this down it means that a person has to be 

legally intoxicated (under the influence of alocohol or drugs) 

They drove with gross negligence

and caused and accident in which another person was killed. 

 

WHAT IS GROSS NEGLIGENCE?

The grossly negligent act must be seperate from the DUI in other words the proseuction cant say you were intioxicated, therefore you were grossly negligent.  

 

example someone after consuming alcohol drives 40 miles per hour over the speed limit and runs a red light and then hits another car causing a fatality.  

 

WHAT ARE THE PENALTIES?

This offense is a Felony punishable by 4, 6, or 10 years. 

 

DEFENSES

 

You were not intoxicate at the time of driving

you were not grossly negligent

your negligent act did not cause the death was not the proximate cause of the death.  

 

Often prosectors will attempt to prosecute somoene for gross vehicular manslaughter when there is not gross negligence only ordinary carleessness such as running as stop sign and not running a stop sign at excessive speed.  violating a traffic law while intoxticated is not enough for gross vehicular manslaughter there must be something more involved than that.  

 

such as excessive speeds weaving through traffic while being very intoxicated.   Not mere negligence.  Part of the job of the defense attorney is to determine exactly the speed that one was driving and if there were other factors that may have contributed to the accident such as a sudden emergency was the person that was killed crossing the street agains the light and not paying attention and the estimated speed was only slightly above the speed limit etc. 

Many times these determination come down to expert opinions based on several factors.  Sometimes the police will do a accident reconstruction of the scene depending upon the agancy involved and the jurisdiction.   If this is true we have had reconstruction experts come back with reports that were actually favorable to us and helped our case.  And in many other circumstances you must hire a defense expert to go over the prosecutions expert to determine if there report was accurate.  

As you can see these can be very complex cases that often require expert opinions as to exactly what happened and how the negligence if at all caused the death.  

If after reading this article you have questions regarding your case and would like an evaluation give us a call and we can help you get through this.  my phone number is 559 441-1418. and we can help you get through this and use my experience as somoene who has handled these cased before and had results.  again my number is 559 441-1418. give us a call. 

 

 

 

 

 

 

FRESNO DUI NEW LAW

If you or a loved on has been arrested or accused of a DUI  you will need to seek legal representation as soon as possible.  As an Attorney with more than 18 years of experience and having handled hundreds of DUI cases, having both prosecuted and defended DUI casses, we can get you through this. 

 

Below I will be going through the new DUI court in Fresno County.  This court is for repeat DUI offenders that meet certain criteria.  And what the requirements are for this court and how it works.  If after reading this article you have any quuestions give us a call and we will help you.  559 441-1418. 

 

HOW THE PROGRAM WORKS

The first thing you should know is that there is a screening process for applicants to the DUI court.  Once a person has been screened and deemed eligible for DUI court the person will be referred to the DUI court.  Participants will be assigned a case manager, and a Probation Officer to ensure that they recieve supervision and support needed comply with their conditions of Probation while reciving treatment services.  A supervision and tretment plan will be developed for each participant to ensure their success with program goals.  

 

HOW LONG IS THE PROGRAM?

At a minimum the duration is 12 months and there are 4 phases to the program.  

phase 1 orientation phase 60 days. 

phase 2 90 days

phase 3 90 days 

phase 4 120 days

If you are referred to DUI court you must complete all four phases of the program in order to graduate.  

 

The reason for the court is to reduce recidivism for repeat DUI offenders and to ensure the safety of the community.  It is up to both the case managers and the Probation Officer to determine if you are making satisfactory progress and the court of course will have the final say in whether you are progressing through the program.  

 

PARTICIPANT RESPONSBILITIES

You must attend all court appearances on time and dressed appropriately.  

comply with all orders of the court. 

enroll in drunk driving program 

attend all aa meeings and other meetings are required by the court.  

submit to hair and urine samples for drug testing.  and or submit t alcohol breath testing as ordered by the Judge Probation Officer or Treatment provider.  

there are several other requirements that are mandated once you are in the program. 

 

ELIGIBILITY REQUIREMENTS

1. Must be 18 years old or older

2. Must reside in Fresno County

3. Must be assesed as High Risk

4. Offense must be for a second or third DUI

DISQUILIFIERS 

Out of county residents

If you are pending Felony Charges or violations of of Formal Supervision 

History of violence with one of the following will be a violation whithin the past 5 years 

violence 

gang history

290 registrants

protective order violations

 

As you can see this can be a long process and there could be a  lot of confusion regarding whether you are able to be admitted and treated whithin this program after you are arrested you will have a lot of questions.  Give us a call and we can sit down and evealuated your case to see if your case is eligible and wether you would be a good fit to go into this program and help you to not spend this time in jail possibly without the help of this program.  

If after reading this article  you still have questions give us a call at 559 441-1418 and we can help you to get through this.  As somoene that has done both the prosecution and the defense of these type of cases, we have the experience to help you to to get through this process and see if this program fits you and your neeeds. 

 

 

 

FRESNO MISDEMEANOR DEFENSE NEW LAW

If you or a loved one has been arreste for a Misdemeanor case, you will have a lot of questions.  As a forme probation officer, deputy district attorney, ajunct criminology instructor and an Attorney with 18 years experience more than 50 Felony Jury Trials, and having handled Misdemeanor cases as a District Attorney and private Attorney, I have the knowlege to help you.  

 

With new laws that have recently passed have changed the way Misdemeanor cases will be in a profound way.  I will go through the changes in the law below, and show how these changes can help you with your case.  of course nothing in this article is meant as legal advice and should contact an Attorney as soon as possible.  

 

I will start with the old law and how the changes to the law have affected the way in which Misdemeanors will be handled in the future.  

 

OLD LAW PRE AB 3234

 

The way Misdemeanor cases were handled in before ab 3234 was passed if someoene was arrested or brought to court for a Misdemeanor violation the prosecution had complete control over whether or not that person would recieve what is referred to a diversion. 

There are two types of diversion what are commonly referred to as pre-plea diversion and post plea diversion.  And the prosecution was in charge of and controlled wether a person would recieve one of those types of diversion.  This was a very big difference as  I will show below.

 

EXAMPLE

John is arrested for a simple Misdemeanor battery he has no prior criminal history and has worked the same job for 20 years and no longer drinks alcohol.  The prosecution could insist that he plea guilty be placed in a diversion program for a specific time period and then the charges would be dismissed with no need to get an expungement because the case would have already been dismissed.   However changes to the law in ab 3234 would profoundly affect how this case would be handled today.

 

HOW DOES AB 3234 CHANGE DIVERSION? 

After the passage of ab 3234 a person can recieve diversion on any Misdmeanor case over the objection of the prosecution.  There are exceptions to this rule such as stalking crimes requiring registration, domestic battery and several other cases.  However, most cases are not pre plea diversion eligible even over the objection of the prosecution.

 

EXAMPLE

So looking at our case with John on a Misdemeanor Battery if the prosecution refused to give a pre plea diversion or before admission diverstion the Judge over there objection could rule against them and place John into a diversion program for up to 2 years.  In addition if he were to complete the diversion program the arrest would be deemed to never have occurred and he would not have to admit the arrest on private application for employment or for rental applications.  

 

This is a very big difference in the way cases were handled in the past purely to the discretion of the prosecution and no where the Judge could be sold on the fact the person should be given an oppurtunity to give the person pre-plea diversion and a chance to have the offense deemed to never have happened.  This is a factual determination and where legal work and an experienced defense attorney come into play.  As an Attorney you must be prepared to argue the specific facts as to why this particular person is worthy of diversion.  Not just argue that there is a law out ther that says the person can get diversion.  

 

If after reading this article you have any questions give us a a call at 559-441-1418 and we can evaluate your case. 

 

 

 

FRESNO HOMICIDE DEFENSE NEW LAW

If you or a loved one has been accused of homicide you should contact an Attorney as soon as possible.  As someone that had tried 7 First Degree Murder casses and handles at least a dozen more Homicide cases and attending and completed the Death Penalty conference.  I have the know how to get you through this.  Nothing in this article is meant as legal advice you need to contact an experienced criminal defense Attorney as soon as possible.  As an Attorney with more than 18 years experience and more than 50 felony Jury trials we can help.

Below I will be going through some of the Homicid law and the changes that hav occurred recently which made a lot of changes to both the Homicide law and defenses available to people. 

WHAT IS SB 1437 ?

SB 1437 is California legsilation which made major changes to Homicide law in the state of California.  The legislature in the state of California decided that some of the Murder liability was way to broad and they needed to change the law to make it more limited.  

OLD LAW BEFORE SB 1437

The way the law stood before sb 1437 as to both Felony Murder law and Natural Probable consequences were very broad.  And the way prosecutors used the laws was so expansive and confusing that jurors would not have to find very much to find a person guilty of First Degree Murder.  Making it more complicated was the fact that prosecutors dont have to prove and jurors did not have to agree on the theories as to how the person accused was guilty of Murder.  For example the prosecutore can make arguments saying a person is guilty of Murder under a Felony Murder Rule theory a  natural proble consequence theory and accomplice liabilty theory and then throw all those theories to the jury and hope for a guilty verdice.  Aslo under the old theory of Felony Murde before changes under sb 1437 there could a person sitting in a car as a lookout for a Robbery someoene inside kills somoene and under a foreseability doctrine that person sitting in the car could be held liable for First Degree Felony Murder and be put in jail for a term of 25- to life.  That was not a very high bar for the prosecution to leap over. 

Making it easier the prosecutor could also ask for a Murder conviction under the So- called NATURAL AND PROBABLE CONSEQUENCE THEORY of liability.  Under this theory the prosecutor would simply have to show a person did an act inherently dangerous to human life and the natural and probable consequence was death. He or she could argue both theories and then leave it up to the jurors, who do not have to agree as to the theory as to wether the person was guilty of Murder.   As you can see this left a lot of confustion and not a lot of proof. 

HOW DID SB 1437 CHANGE THE LAW?

The new law made a lot of changes and narrowed the liability and eliminated one of the above theories therefore, tiightening up the law and making the jurors do more factual analysis of the actual actions of the individual person.  And it should be pointed out that these changes deal with the person that did not pull the trigger the same analysis would be made before and after sb 1437 for persons that pulled the trigger.

NATURAL AND PROBABLE CONSEQUENCE THEORY IS ELIMINATED

Under sb 1437 Natural and Probable consequences theory is eliminated.  The prosecution can no longer use this theory to convicte somoene of Homicide eliminating one theory that the jurors could use to convict.  Also the so called second degree felony murder rule was eliminated although it was rarely if ever used by prosecutors. 

FELONY MURDER RULE

There were two major changes to this law.

1.  The prosecution must prove that the non principal or non killer was a major participant in the underlying crime

2.  That he acted with Reckless indifference to human life when he acted 

both of these factors must be present to hold the non shooter for example liable

FACTORS

The juros will look at the individual factors to determine if the person is liable under these theories. 

MAJOR PARTICIPANT FACTOR EXAMPLES

How close was the person to the actual crime

Did he try to stop the offense

Did he know the person was armed

Did he give him the gun

and the jurors can consider any other factors that are relevant to this factor

RECKLESS INDIFFERENCE TO HUMAN LIFE

The factors here may have some overlap with the above-factors such as gun use

proximaty to the actual crime

did he flee afterward

did he try to help the victim

did he see the offense happen

These changes make it easier for the Jurors to look at the actual participation of the person and wether they themselves should be punished with Felony Murder.  If you have any questions after reading this article give us a call at 559 441-1418. 

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 View Map
Phone: 559.441.1418
Website: https://fresnoscrimedefense.com/