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Like my previous article which dealt wich took a break from the DUI series, this blog will be looking at some recent cases and case studies dealing with reductions of Felony cases to Misdemeanors. 

As a former probation officer deputy district attorney and adjunct criminology instruction  I know the ins and outs of the system.  I would like to go over a key difference as to first reductions per prop 47 and reductions per 17 b of the Penal Code and reductions per 1203.4. 

 

First a key thing which has come up in a recent case is that  a reduction per prop 47 does not give you right back to own or possess a firearm.  Now this is tricky because even though a reduction per 17 b could be construed to fully give back your rights to a firearm this could be a more difficult question and should be discussed with an experienced criminal defense attorney. 

But for certain a reduction per prop 47 does not have the affect of giving rights back to own or possess a firearm. 

 

REDUCTION PER 17B

A Felony reduction per 17b is available for people that were convicted of a Felony that is a wobbler ( could have been charged as a misdemeanor or a felony) and where you did not go to prison for the Felony.  After the completion of probation and if you have fulfilled all the terms you can file a motion to have your charge declared a misdemeanor. 

EXPUNGEMENT

You can also under Penal Code section 1203.4 move the court to expunge your record.  This means the court will move to have the case declared a misdemeanor and have the plea guilty withdrawn and a not guilty plea entered and most importantly update your arrest record to show  an expungement.  this could have many good affects including making it easier for employment military service etc.

If you have question you could call our office and we could sit down with you so that you could understand all of the ins and outs of such a program, and the different options that you could pursue.  Having recently done several of these cases and with the knowlege that every case is different, I can tell you that having these cases reduced can also help with your immigration status.  If this is something you would like to pursue give us a call at 559441-1418. 

 

I am going to interrupt my series of blogs regarding Driving Under the Influence to go over a case study regarding lookout or accomplice liability.  This is based upon a case that is already closed.  All cases are different and should be thorougly reviewed by an Attorney.  As a former probation officer, deputy district attorney and a criminal defense attorney for 14 years, I know the ins and outs of the system, and can properly discuss a complex case. 

The case I will be discussing is a Gang Case that I handled some years ago.  Many kids that  I have represented (this kid was 16) do not understand the complexities of the law. Many have been through the Juvenile Justice system where cases are handles much differently and many times more lenient. 

 

THE FACTUUAL CIRCUMSTANCES

My client was a minor with four other minors that were members of the same gang.  My client was not armed, and in fact had no history regarding violence and had only been arrested once on a minor charge that was handled informally through the Juvenile Court system. 

He and several friends were walking around one of the minors was armed.  They came across a jewelry store that was open.  One of the minor decided to rob the store.  There was not any evidence of any of the minors making any detailed plans to rob the store and there was only one witness from outside the store.

The armed minor went in and proceeded to attempt to rob the store.  The owner of the store was armed and after some struggle the owner of the store was robbed and shot.

The minors did not get away with any money or property and my client did not enter the store. The minors were later caught and admitted to there respective involvement in the robbery.

Unfortunately before the parents of my minor hired me they had recieved bad legal advice that my clients liability was limited and he should not take any deals from the District Attorney.  I will explain below.

Under the 10-20-Life statute a felon that commits a crime while armed and causing great bodily injury can be sentenced to life in prison.

The person must personally be armed and personally inflict great bodily injury. 

However, the only exception to this rule is if the person is a gang member acting with specific intent to promote further or assist in criminal conduct by gang members.

If the prosecution proves that the person was a acting with that intent even as a lookout all persons involved are subject to the statute and could be sentenced to life for the great bodily injury.

back to our situation my client admitted that he was probably acting as a lookout during police questioning.  that means he was acting with specific intent to promote further or assist in criminal conduct by gang members, this makes him subject to the sentencing guidelines.  Therefore, he was given bad legal advice by an Attorney that did not understand the complexities of gang statutes that they were dealing with. An inexperienced Attorney that did not have the know how to properly advise the cilent.  The offer from the prosecution was generous considering his exposure.  These are the types of problems that can arise in gang cases and accomplice liability cases.  Many times they are more complex than they look on there face. 

Many times a gang detective will be called at both preliminary hearing and trial.  Unfortunately, these gang detectives are given much leeway as to there testimony and often are used by the prosecution to fill in the blanks so to speak in an otherwise weak case.

Next blog post I will discuss reducing felony cases to misdemeanors per 17b and the difference between that and reducing per prop 47. If you have any questions please call 5594411418.  

This article is a contineunce of previous articles regarding Driving Under the Influence and some of the Field Sobriety test and other factor the police will take into consideration before they make an arrest.  As stated in earlier articles if you have any questions if you were pulled over by an officer or arrested for Driving Under the Influence give me a call. 559-441-1418.  I can help you through the process and have handled many hundreds of DUI cases both prosecuting and defending.  I have the knowlege to understand when an officer may have made a mistake in the paperwork or procedure in the process of your DUI. 

 

I will now look at some of the other tests that will be administered that are supposed to administered in a particular way.

WALK AND RUN TEST

The walk and run test that attempts to assess the same characteristics that a person need to safely drive a car. 

The original research for this test shows that it is only 68% accurate in determining if a person bac is .10 or higher.

 

The walk and run test should be conducted on a reasonably dry, hard, level, nonslippery surface.  There should be sufficient room for subjects to complete nine heel to toe steps.

Officers are trained that the original research indicated that individuals over 65 years of age or people with back, leg, inner ear problems had difficulty performing this test. 

NHTSA has identifiied the following conditions that may interfere with a persons performance on the Walk and Turn test. 

1. Weather conditions

2. Subjects age

3. Subjects footwear

people wearing heels more than 2 inches high should be given the oppurtunity to remove their shoes.

Subjects with any form of unusual footwear should be afforded the oppurtunity to remove the footwear prior to the test.

For standardization in the performance of this test.  Have the subject assume the heel to toe stance by giving the following verbal instructions, accompanied by demonstrations.

Place your left foot on the line (real or imaginary)

Place your right foot on the line ahead of the left foot, with the heel of your right foot against the toe of the left foot.

Place your arms down at your sides.

Maintain this position until I have completed the instructions do not start to walk until told to do so.

Do you understand the instructions so far? make sure the subject undertands the instructions)

Explain the test requirements by giving instructions, accompanied by demonstrations.

When I tell you to start, take nine heel to toe steps on the line, turn, and take nine heel to toe steps down the line.

 

In our next Post we will continue with this test and explain how it goes into an overall assesment the officer is supposed to make in determining whehter to make an arrest. 

This article is a continuation of the earlier articles regarding Driving Under the Influence and the tests and requrements that police need before making an arrest.  I left off the previous article on the Nystagmus tests and the things an officer will be looking for when conducting these tests.

 

I left off wiht step Six

here is step 7.

Check the right and left eye for the "Distinct and Sustained Nystagmus at Maximum Deviation clue"

If the jerkiness is distinct and sustained that is one clue.

Once again the position the stimulas approximately 12-15 inches in front of the subjects nose and slightly above eye level. 

Move the sitmulas off to the right side (checking the subjects left eye) untle the eyes have gone as far as possible

Hold the stimulas steady at that position for a minumum of fourt (4) seconds, and carefully watch eye. 

Then move the stimulas back across the subjects face all the way out to the left side.  (subjects right eye)

Hold the stimulas steady steady and carefully watch they eye. 

If the person is impaired, they eye is likely to exhibit definite, distinct and sustained jerking when hield at maximum deviation for a minumum of four seconds.  In order to "count" this clue as evidence of impairment, the nystagmus must be distinct and sustained for a minimum of four seconds. 

each eyes should be checked twice for this clue. 

ENDPOINT NYSTAGMUS

The jerking of the eyes that occurs when they are brought out as far to the side as possible.  Most unimpared people people exhibit Endpoint Nystagmus.

FATIGUE NYSTAGMUS

This type of Nystagmus may occur if a persons eyes are held at maximum deviation for more than 30 seconds. 

Step 8 Onset of Nystagmus prior to 45 degrees. 

The stimulus is a positioned approximately 12-15 inches from the subjects nose and slightly above eye level.  It is necessary to move the stimulas slowly to identify the point at which the eye begins to jerk. 

Start moving the stimulus towards the right side (left eye) at a speed that would take approximtely 4 seconds for the stimulus to reach the edge of the subjects shoulder. 

As you slowly move the stimulus, watch the eye carefully for any sign of jerking.  When you see the jerking begin, immediately stop moving the stimulus and hold it steady at that posiiton. 

With the stimulus held steady look at the eye and verify that the jerking is continuing.  If the jerking is not evident with the stimulus held steady you have not located the point of onset.  Therefore, resume moving the stimulus slowly toward the side until you notice the jerking begin.

When you locate the point of onset Nystagmus you must determine whether it is prior to 45 degrees. 

Veriy that some white is still moving in the corner of the eye.

Examine the aglignment between the stimulus and the edge of the subjects shoulder.

Repeat the process of the subjects right eye. 

Each eye should be checked twice for this clue.

Step 9 total the clues

Maximum number of clues possible for each eye: 3

Total Maximum number of clues possible for both eyes 6. 

Step 10.  Check for vertical Nystagmus

Postion the stimulus horizontally about 12-15 inches in front of the subjects nose. 

Instruct the subject to hold the head still, and follow the eobject with the eyes only. 

Raise the object until the subjects eyes are elevated as far as possible

Hold for a minimum of four seconds. 

Watch closely  for evidence of they eyes jerking upward. 

For VGN to be recorded.  It must be distinct and sustained for a minimum of four seconds at maximum elevation. 

VGN may be present in subjects under the influence of high doses of alcohol for that individual or some other drugs. 

This article will be continued  

This article is a continuation of earlier articles that have went through DUI arrest from the time of the pullover until the time of the arrest and further.

earlier we went through the pullover some ot the signs of a person being under the influence and some of the objective symptoms. 

Also, we touched on the preliminary test and the non standardized versus standardized testing.  we continue that below.

ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES (CLUE NUMBER THREE) This clue is present if a person eyes start to jerk before they reach 45 degrees.  Officers are trained to estimate 45 degrees two different ways. 

Using 15 square template that is cut diagnally.

Approximately equel to the edge of a person's shoulders

DRE qeustions using formula to prove BAC between .00 and .05%

Officers are trained that the three Standardized Field Sobriety elements are as followed:

1. Standardized Administrative Procedures

2. Standardized Clues

3. Standardized Criteria

 

Stanndardized Field Sobriety Tests Setup Questions.

 

SPECIFIC PROCEDURES FOR THE HGN TEST

Step 1 Check for eyeglasses Instruct subject to remove eyeglasses

Step 2 Vertical Instructions

put feet together hands at the side

keep the head still

look for stimulas

follow movement of the stimulas with eyes only

keep looking for the stimulas until the test is over

Step 3 Position the stimulas Position the stimulas approximately 12-15 inches in front of the subjects nose and slightly above eye level to commence the test

 

Resting Nystagmus may be observed at the time.  Officers should note whether the subject displays Resting Nystagmus.

Step 4 Equel Pupil Size and Resting Nystagmus.

Step 5 Check for equel tracking.  The speed of the stimulas should be approximately same speed used as checking for the lack of smooth pursuit.  Make at least two complete passes in front of the eyes. There should be at least two complete passes in front of the eyes.  There should be a clear distinguishable break between the check for equel tracking and lack of smooth pursuit.

If a person has unequel pupil size resting nystagmus or unequel tracking it suggests the person is likely to have medical conditions or injuries that would cause nystagmus to be present.  Some seizure medications also cause nystgmus. 

If  a person has an obvious eye condition such as an artificial eye. the HGN test should not be administered. 

STEP 6 LACK OF SMOOTH PURSUIT

It is necessary to move the object smoothly in order to check the eyes ability to pusue smoothly. the stimulas should be moved from center postiion.  all the way back across the subjects face all the way out to the left side where the eye can go no further (checking the subjects right eye) and then go back to the center. 

The object must be moved steadily at a speed that takes approximately 2 seconds to bring eye from center to side. 

In checking this clue make at least two complete passes in front of they eyes. 

STEP 7

Check the right and left eye for the "Distinct and Sustained Nystagmus at Maximum Deviation" clue.  If the jerkiness is distinct and sustained  that is one clue.

 

Next blog post we will continue on the factors that the officer must take into consideration before making an arrest for Driving Under the influence after that blog post we will take a break from the factors in determining whether to arrest for DUI and will look at other issues in the law including Not Guilty by reason of Insanity Law.

I will continue on today with some of the factors to consider in a dui case, and some of the test the police use.  I  will continue with some of the test the police will use to determine if there is probable cause to arrest somoene for DUI. 

POST ROTATIONIAL NYSTAGMUS

NYSTAGMUS is closely related to rotational nystagmus when the person stops spinning, the fluid in the inner ear remains disturbed for a period of time, and the eyes continue to jerk.  This could be observed in a person after a rollover accident.  or spin out.

 

POSITIONAL ALCOHOL NYSTAGMUS

occurs when a foreign fluid such as alchol that alters the specific gravity of the blood in unequel concentrations in the blood and the vesitbular system.  This  causes the vestibular system to respond to gravity in certain positions, resulting in nystagmus.

 

PAN I occurs when the inner ear alcohol concentration in the blood is greater than the inner fluid.  PAN occurs while the BAC is increasing. 

PAN II occurs when the alcohol concentration in the inner ear.  This occurs while the BAC is decreasing. 

 

NEURAL NYSTAGMUS

Optokinetic Nystagmus occurs when the eyes fixate on an object that suddenly moves out of sight, or when the eyes watch sharply contrasting moving images.

 

Examples include watching strobe strobe lights, rotating lights, or rapidly moving traffic.

Physiosocial Nystagmus is a natural nystagmus that keeps the sensory cells of the eye from tiring.  This is the most common type of Nystagmus this produces extremely minor jerks of the eyes. 

Natural Nystagmus

Gaze Nystagmus is a form of nystagmus that occurs when the eyes attempt to maintain visual fixation on a stimulas. Horizontal, vertical, and resting nystagmus are three forms.

Pathological Disorders

Nystagmus can also be caused by patholigical disorders.  They include brain tumors and other brain damage and some diseases of the inner ear. 

 

Certain medical conditions may also cause nystagmus to be present. 

Officers are trained to look for a total of six clues on the HGN test.  The officer looks for the same three clues in each eye.  If four or more clues are observed the test meet the criterion and or is a failure of the test.

 

A look of smooth pursuit clue number one.  this clue is present if the eyes jerk or bounce as they follow smoothly moving stimulas.

Distinct and sustained nystagmus at maximum deveation clue number 2 this clue is evident if the eye is held at maximum deviation of four seconds and continues to jerk toward the side some people exhibit jerking of the eye at maximum deviation even they are not imparied. 

Difference between Distinct Nystagmus and Distinct and Sustained Nystagmus at Maximum Deviation Questions. 

In the next article I will continue wiht a discussion of the tests to determine if someone is unde the influence while driving.

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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