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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.  

 

 

If you or a loved one has been arrested or prosecuted for Domestic Violence you will have many quesitons regarding the case.  You need to seek legal advice from an experienced Attorney.  With more than 17 years of experience more than 50 Felony Jury trials, and as a former Probation Officer, Deputy District Attorney I have the experience to help you.  If you have questions regarding your case after reading this article please do not hesitate to give us a call at 559-441-1418. 

WHAT DOES A PROSECUTOR HAVE TO PROVE TO CONVICT ME OF MISDEMEANOR DOMESTIC VIOLENCE 273.5?

The following are the elements that a prosecutor would have to prove to convict you of Misdemeanor Domestic Violence.  

     1. Defendant Willfully inflicted coporeal injury on victim.  

     2. Victim was either: 

Defendants spouse or former spouse

Person with whom he or she was cohabitating with

Fiance or Fiancee or someoene 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. 

DEFENSES 

The following are just a few of the possible defenses to this charge. 

FALSE ALLEGATION

The allegation against you was false there are sometimes people that will call the police simply because they are mad or upset at the other person.  And sometimes those people will actually make up  a story to get somoene else in trouble. 

DOES NOT MEET THE ELEMENTS OF THE CRIME

This means that one of the elements listed above is not met.  In other words there has not been a crime committed. 

SELF DEFENSE

The defense of Self Defense is always available to someoene that has been accused of a crime.  Sometimes people are attacked by others and protect themselved and in doing so create a traumatic condition in someone else. This would be a classisc case of self defense.  

The prosecution has the burden of proof on all the above elements.  The posecution will look for pictures the body cam statements by the officers and see if there is any evidence to back up the claim of domestic violence.  

WHAT ARE THE PENALTIES FOR MISDEMEEANOR DOMESTIC VIOLENCE?

In a Misdemeanor domestic violence case the penalties can be severe.  If you are convicted then you could recieve 364 days in jail and fines as well as a 52 week domestic violence treatment program.  Also your gun rights could be affected for life.  For any violence Misdemeanor the length of time for loss of gun rights is up to 10 years.  However, for Domestic Violence cases when you go to purchase a handgun you can be denied that right for life.  Even if you  plead to a non domestic violence charge, for example you originally were arrested for Misdemenaor Domestic Violence but pled to a different charge under the Penal Code.  In that case your gun rights could still be taken away for life. The reason is when you go to purchase a firearm there will a criminal background check done.  If you come back with an arrest or conviction for Domestic Violence or plea bargain to get away from the Domestic Violence charge your gun rights will still be affected.  

Many people do not understand that even if they are not ordered to complete a 52 batterer treatment class they could still be kept from owning firearms under federal law.  Even worse if you are caught with a fierearm after the 10 year statute under state law you could still be prosecuted under the federal law. This could be lead to a prosectuon in Federal Court.  as you can see this area of the law is complex and you may have questions give us a call 559-441-1418. 

 

 

If you or a loved one has been convicted of a DUI and you want to get your life back on track you can get an expungement, for a DUI.  Many times people call my office and think that somehow they are ineligible for an expungement because the underlying offense is a DUI.  

This is not the case.  DUI offenses can be expunged from your record.  Below I will go over the law for expungement and exactly what effect the expungement will have on your record.  

WHAT IS THE FIRST STEP TO GETTING AN EXPUNGEMENT?

The first step to getting an expungement is to find out exactly what your record is.  What your "rap sheet" is.  Your exact criminal history so that when you see an Attorney there are no unexpected surprises.  

SOME WAYS TO GET YOUR CRIMINAL HISTORY

Fresno County Superior Court Odyessy portal

Fresno County Archives

Visit the Fresno Police Department or The Fresn Sheriffs Office and ask for a copy of your criminal history

California DOJ fingerprint check with the Department of Justice.  Ask for a livescan

SUCCESSFUL EXPUNGEMENT

A successful Expungement will withdraw a "guilty" plea or "no contest" plea and dismiss the case.  Defendant's convicted of a misdemeanor or felons sentenced to probation, local county time or AB 109 may be eligible to file for the petition once they have paid all fees and fines associated with the case and are no longer on probation or faces charges for any other offense.  Some relief is mandatory and some relief is descretionary.  

BENEFITS OF DISMISSAL

The offense is no longer considered a conviction

if all of your convictions are expunged you can mark " no convictions" on the application

All employers cannot legally use no convictions expungement to deny employment

May help with licensing agencies such as nursing teaching credentials etc.  

May help with housing or voucher programs 

May help with eligibility for financial aid

LIMITATION OF DISMISSAL

Many people believe that somehow the expungement process shreds the record and gets the case permenantly erased or a clean slate thaf is not exactly true there are limitations to the the expungement and your record will show an update that the case has been expunged.  Some of the limitations are listed below.  

The expunged case can still be used for future prosecutions

May still limite professional and occupational licensing

It will always appear on your "rap sheet" or "background check"

The petition dismissal does not permit you to own a gun.  

The peition does not clear your DMV record

Even if you do not meet the criteria for an expungment you might be eligible for other types of relief under the law.  If you have completed your sentence and are not facing other charges you can look at all forms of relief to see if you meet the criteria for that relief such as: 

Expungement

Felony Reduction

DEJ for Immigrants

Proposition 47

Proposition 64

Certificate of Rehabilitation

If after reading this article you have further questions give us a call and we can see if we can help you with your questions.  If you have completed your probation do not owe any money and are not currently facing any new charges give us a call and we can sit down and determine what type of relief is available to you so that you can get on track with your life.  

you can call  us at 559 441-1418.  usually it is better to have all your records with you when you come into the office so that we can get going on the process with all of your history in mind if you have multiple cases. 

 

 

 

 

 

 

 

If you have been arrested for DUI  you will have a lot of questions.  If you or a loved one has been arrested for DUI set up an appointment and give us a call, at 559441-1418.

 

The penalties for a California DUI depends on wether it is a first second or third defense, and whether you had a what is considered an elevated blood alcohol level.  

CONSEQUENCES OF PLEA OF GUILTY OR NO CONTEST

FIRST OR SECOND OFFENSE VEHICLE CODE 23153 (COMMONLY REFERRED TO AS A WET RECKLESS THROUGH 23554 OR 13352

90 days up to one year in jail, $390.00 to $5,000.00 fine.  and a 1 -year or 3-year license suspension, if granted probation it could be up to 5 years.  

FIRST OFFENSE VEHICLE CODE 23152 Within 10 years (Vehicle Code 13352, 23540 23542) 

96 hours to 6 months in jail $390.00 to $1,000.00 fine. and a 6 month license suspension. If granted probation it could be up to 5  years

SECOND OFFENSE VEHICLE CODE 23152 WITHIN 10 YEARS (VEHICLE CODE 13352, 23540 23542)

The minimum and maximum sentence I could revieve 90 days to one year in jail $390.00 to $1,000.00 dollar fine and a 2-year drivers license suspension If granted probation it could be up to 5 years.  

THIRD OFFENSE VEHICLE CODE 23152 WHITHIN 10 YEARS 

The minimum sentence for this offense is 120 days in jail.  $390.00 to $1,000.00 dollar fine and a 3 years drivers revocation If granted probation it could be up to 5 years.  

RECKLESS DRIVING ( REDUCED FROM DRIVING UNDER THE INFLUENCE) (VEHICLE CODE 2310.5)

5 to 90 days in jail, or $145.00 to $1,000.00 dollar fine or both.  If alcohol or drugs are involved this conviction will act as a seperated DUI conviction If a committ a subsequent dui within 10 years this could be a prior dui for purposes of punishment.  If granted probation it could be up to 5 years. 

 

In addition to these consequences there could be seperate consequences as to both your drivers license and your ability to drive a vehicle.  

 A dmv hearing shoul always be requested within the time period meanin whithin 10 days of your arrest.  

You can also have consequenses to your insurance rates if you are convicted of a dui.  This is because they can count your dui for point purposes for up to 10 years. And it cnanot come of your record if you do traffic school like it can for other traffic tickets.  

 

 A dui and a so called wet reckless both count for the same amount of points on your driving record.  a Two point conviction will stay on your record for up to 10 years and as stated abov affect your driving license as well as your insurance rates.  you will have to get an sr 22 in order to drive with inurance and will have to prove that you have bought an sr 22 before you license to drive is restored. 

 

As you can see the consequences of a DUI are severe and can be very complicated to understand and get through wihtout an experienced Attorney.  If you have questions after reading this article then give us a call and we can help you out.  Our number is 559 4421-1418.  And we can sometimes call you back on weekends and holdidays if you have been arrested and have questions about what your next move should be and how to go about your life.  We have helped many poeple get through this part of there lives and can help you to get started getting your life back.  

 

 

If you or a loved one has been accused of a domestic violence crime as either a Felony or a Misdemeanor you need to get legal help as quickly as possible, because the ramifications of a domestic violence conviction can have large ramifications on your life.  

 

As a former Miltary Policemen Desert Storm Veteran, Juvenile Corrections Officer and Probation Officer, and Deputy District Attorney, and Adjunct Criminology Instructor I have the knowlege to help you with your case.  Below I will be going through the Penalties for Domestic Violence convictions as both a Felony or a Misdemeanor.  If after reading this article you have any questions do not hesitate to call us at 559 441-1418.

 

MISDEMEANOR DOMESTIC VIOLENCE 273.5 

First lets look at Misdemeanor domestic violence and the elements and then the penalties I will not be going through the defenses at this time and they have been outlined in earlier blog post.  

ELEMENTS OF MISDEMEANOR DOMESTIC VIOLENCE 273.5

1. Defendant willfully inflicted corporael injury on victim. 

2. Victim was either 

Defendants spouse or former spouse 

Person with whom he or she is cohabitating with 

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

the mother of or father of his or her child

corpereal injury resulted in a traumatic condition. 

PENALITES IF THE PROSECUTION PROVES THE CASE, YOU TAKE A PLEA AGREEMENT AND ARE CONVICTED

FIREARM PRECLUSION

Any person convicted of a misdemeanor violation of Penal Code Section 273.5  and who whithin 10 years of the conviction, owns or has in his or her possession or under his or her control a any firearm is guilty of a public offense.  (PC 29805) 

In short under state law you cannot own or possess a firearm for 10 years after your conviction for Misdemeanor Domestic Violence.  

FEDERAL LAW

Federal Law is much mor complicated as to possesion of a firearm.  With passage of new laws and the domestic violence protection act under federal law, it can be difficult if not impossible to purchase or have a firearm under federal law.  And you could be prosecuted possibly under federal law even after the 10 years has expired.  You should defintely seek legal counsel before attempting to buy a firearm and there is also a way of contact the state DOJ to determine you eligibility to own or possess a fierearm. 

JAIL TIME

Under the state statute if you are convicted of a Misdeemanor you can spend up to 364 days in jail.  Although many times you can spend much lees than 364 days and you could even be allowed to do Alternative Work Program Time which is time picking up trash and such.

52 WEEK BATTERER TREATMENT PROGRAM

You will be ordered to complete the 52 week batterer treatment program regardless of wether you were convicted of a Felony or a Misdemeanor.   

FELONY DOMESTIC VIOLENCE 273.5 

ELEMENTS

The elements are basically the same as the Misdemeanor outlined above the only difference is the punishments for a Felony Conviction are much more severe as far as the length of time you could spend in jail. 

JAIL TIME

For a Felony conviction of 273.5 you could be ordered to spend time in prison.  In addition you would have to go to state prison as the local commitments under ab 109 are not available for this offense.  

PROBATION

 You could depending on all surrounding circumstances be ordered to complete probation usually with some form of local jail time. There is a presumption for eligibility for first time felons on the first two felonies and a presumption against probation on the third.  

WHAT IF THERE IS PRISON ORDERED?

The sentencing range is 2, 3 or 4 years.  That is if you are ordered to prison.

As a convicted Felon you will be probibited from owning or possessing a firearm.  In addition, the Federal Law explained aboce you will not be able to own a firearm or buy one under Federal law. 

52 WEEK BATTERER TREATMENT CLASS

 you will be ordered to complete a 52 week batterer treatment class. 

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

 

 

Many of the firearms laws in this country especially in California are very confusing and lead to many people not knowing exactly how to go about exercising there rights as stated in the constitution to have arms.  

 

If you or a loved on has been accused of a firearm offense give us a call the laws can be very confusing nothing in this article is to be taken as legal advice and you should contact an Attorney as soon as possible if accused of a crime.  Give us a call at 559 441-1418. 

 

The Second Amendment of the constitution guarantess the right to bear arms. However, there are numerous restrictions to the right to bear arms.  One such restriction is reflected in California Penal Code Section 25400 PC which makes it illegal to carry a concealed firearm on ones person or on ones person or in ones vehicle. 

WHAT DOES THE PROSECUTION HAVE TO PROVE?

1. The defendant carried on his or her person or vehicle a firearm capable of being concealed on that person.

2. The defendant knew that he or she was carrying a firearm.

3. The firearm was substantially concealed on the defendants person or in his vehicle.

A firearm is any device designed to be used as a weapon from which a projectile is expelled or discharged through a barrel by force of an explosion or other form combustion and has a barrel length of 16 inches or less. 

The gun or firearm does not have to be in working condition and many times the prosecution will, continue even after it is found the firearm was fully non-operational.  Firearms carried in belt holsters are not considered to be concealed.

There are several related crimes to the carrying a concealed firearm and they will be discuessed below.  

OTHER SIMILIAR OFFENSES

Manufacturing, Selling or Possessing Dangerous Weapons -California Pneal Code 16590 PC

Openly Carrying a Firearm Penal Code 26350

Assault with a Firearm. 245 A 2

DEFENSES TO THE CRIME OF CARRYING A CONCEALED WEAPON

One of the most commonly asked questions to an Attorney or Law Enforcement Officer is how do I legally transport a firearm? 

The answer to the question is to keep the firearm in the Trunk of the vehicle not the glove compartment, or in a locked container within the vehicle and unloaded.  With the bullets kept seperately.  

If you violate these rules you could be guilty of a misdemeanor offense, as long as there are no aggravating factors.  

WHAT ARE THE AGGRAVATING FACTORS?

Aggravating factors can be things such as have you been convicted of having a concealed weapon on previous occasions.  

Or if you were previously procluded from owining a firearm

If you are a convicted Felon. 

HOW DO I GET A CONCEALED WEAPONS PERMIT

I will be doing a more lengthy blog post on this subject in the future however, briefly if you are eligible you can apply through your local Sheriffs Department or the Police Department and follow the instructions that they have for you.  If you have a concealed weapons permit you are able to carry except in areas where there is a no gun policy or where there is a Federal Law  that prohibits the carrying of firearms on the premises.  

I have both prosecuted and defended many different gun cases if you have questions give us call I represent people not cases and  I can sit down with you and let you know exactly what your legal rights are and how you can properly assess your case we are here to help you. So if you have questions give us a call at 559 441-1418 and we can help you get through this.  

 

 

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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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