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This article will be an extension of the earlier articles that I have written regarding DUI's.  At the Law office of Gerald Schwab.  I represent People not cases the reason I do this job is to help people get through what could possibly be the worse days of there lives.  After being arrested you will have many questions you need experienced counsel.  I have both prosecuted and defended DUI case in Fresno and severl other couties including Madera, Fresno, Tulare, Merced, Monterey, and many more.

With a DUI case the main thing you are looking at is wether the proper paperwork and procedure was used, for the DUI arrest. 

 

TO GAIN EVIDENCE

To gain evidence, officers are trained to use three questioning tactics while the driver is still behind the wheel.  These tactics are:

1. Asking for two things simeltaneously

2. Asking interrupting or distracting questions

3. Asking unusual questions

 

These tactics are based upon the concept of divided attention.  They require the driver to concentrate on two or more things at the same time.  When an officer asks for two things simultaneously he might ask the driver to produce both his drivers license and the vehicle registration. 

The officer is then trained to look for the following evidence of impairmen

forgets to produce both documents

produces documents other than the ones requested

fails to see the license, registration or both while securing them

fumbles or drops the wallet, purse, license, or registration

is unable to retrieve documents within fingertips.

 

When an officer asks interrupting or distracting questions he might attempt to divide the drivers attention between searching for the license or registration and answering a new question. 

While the driver is responding to the request for license registration or both you ask unrelated questions "What days is it" or "Where are you coming from"

The officer is then trained to look for the following evidence of impairment. 

ignoring the question and concentrates only on license or registration search

forgets to resume the search after answering question

supplies a grossly incorrect answer

When an officer asks unusual qeustions it is employed after you have obtained the drivers license and registration

For example while holding the drivers license the officer might ask what is  your middle  name. 

There are many such questions which the driver mormally would be able answer quickly and easily but which might prove difficult if the driver is impaired, simply because they are unusual questions. 

 

For example a driver may respond to the question about the middle name by giving a first name.

NON STANDARDIZED SOBRIETY TEST

There are three non-standardized sobriety test that an officer may ask a driver to perform prior to performing the standardized field sobriety test. 

Alphabet the driver is required to recite part of the alphabet.  The driver is instructed to begin with a letter other than A and stop at a letter other than Z.  This divides the drivers attention becuase he must concentrate to begin at an unusual starting point and remember where to stop. 

Count Down

The driver is asked to count out loud 15 or more numbers in reverse sequence.  For example, the driver might be told to "count out loud backwards.  Starting with the number 68 and ending with the number 53. 

Finger Count

The driver is asked to touch the the tip of the thumb to the tip of each finger on the same hand while simeltaneously counting up to one two three four then to reverse the direction on the fingers while simaltaneously counting down four three two one this is another divided attention task

I will continue in my next post on this subject.

As per my earlier article  I will be continuing my discussion of Drving Under the Influence law in Fresn Ca, and elsewhere in California. 

If you were arrested for Driving Under the Influence give our office a call and we can help you I have both prosecuted and defended DUI cases and have been in practice for more than 14 years.  

As stated in earlier article most DUI procedures are supposed to be the same for all states and all police so that the standards are not different.  Therefore, there are some common things to look for

PHASE One the pullover or why was I pulled over.

Officers are trained to observe the vehicle in operation and nota ny initial cues of a possible DUI violation.

Officers are trained that drivers that are impaired often exhibit certain effects or symptoms of impairment.  These include:

slowed reactions.

impaired judgements/willingness to take risks

impaired vision

poor coordination

The National Highway Traffic Administration sponsored research to identify the most common and reliable initial driving indicators of DUI

This research identifified 24 cues, each with an associated high probability that the driver exhibiting the cue is impaired. 

1. Weaving

2. Weaving across lane lines

3. Drifting

4. Straddling a lane line

5. Swerving.

6. Almost striking object or vehicle.

7. Turning with a wide radius

8. Stopping problems (to far, to short, to jerky)

9. Unnecessary acceleration or deceleration

10. Varying speed

11. 10 miles an hour or more below the speed limit.

12. Driving with headlights on at night

13. Failure to signal or signal inconsistant with action

14. Driving in opposing lanes or wrong way on one way.

15. Slow response to traffic signals.

16. Slow response to traffic signals

17. Stopping in a lane for no apparent reason

18. Following to closely

19. Improper or unsafe lane changes.

20. Illegal or improper turn.

21. Driving on other than designated roadway

22. Stopping innapropriately in response to officer

23. Innapropriate or unusual behavior (throwing objects, aruging, etc.)

24. Appearing to be impaired.

 

DIVIDED ATTENTION

Driving is a task that requires your attention to be divided into sub tasks. 

steering

controlling accelerator

signaling

controlling break pedal.

operating the clutch (if applicable)

observing other traffic

observing signal lights, stop signs, other traffic control devices,

making decisions (whether to stop, turn, speed up, slow down, etc

many other things

Divided Attention means concentrating on more than one thing at a time.

When a driver is under the influence of alcohol and/or drugs his ability to divide attention becomes impaired.  This inability to divide attention causes drivers to exhibit the 24 driving cues that police look for. 

THE STOPPING SEQUENCE

The second task for the officer during phase one is to observe the manner in which the response to the signal to stop and to note any additional evidence of DUI violation. 

During this phase the officer is trained to look for the following

1. tries to flee

2. no response

3. slow response

4. abrupt swerve

5. sudden stop

6. strikes curb

7. new violations

PHASE TWO PERSONAL CONTACT

IN PHASE TWO

The officer attempts to gather evidence of impairment by observing and interviewing the driver.  The officer may also ask the driver to perform non standardized test prior to him asking the driver to perform standardized testing. 

Officers are trained to use sight, hearing, and sense of smell to note additional evidence during there observation and interview of the driver. 

Officers look for the following specific signs of impairment. 

bloodshot eyes

soiled clothing

fumbling fingers

alcohol containers.

drugs or drug paraphanalia

bruises bumps or scrapes

slurred speech

admission of drinking

inconsistant responses

unusual statements

To gain evidence officers are trained to use three questioning tactics while the driver is still in the vehicle.  these three are

1. asking for two things simultaneously

2. asking interrupting or distracting questions

3. asking unusual questions.

These tactics are based on the concepts of divided attention.  They require the driver to concentrate two or more things at the same time.

 

I will further go into DUI arrest in a later post please give me a call if you have questions.

 

 

 

 

If you have been arrested for DUI in Fresno ca or in other parts of California give us a call at 5594411418.  As a former probation officer, deputy da that has tried cases on the District Attorneys side and having been a Defense Attorney for more than 14 years of trying cases in court including DUI cases, I have the ability and know how to properly handle your DUI case.

 

What many people do not realize about DUI cases is that they can be beat at trial.  Many people think that if certain things are present such as a high BAC then you should just plead guilty.  Many times that is not true.  DUI cases are much more complex than they look on the surface. 

 

DUI CASE DEFENSE DEPENDS HEAVILY ON THE PAPERWORK AND PROCEDURES THE POLICE USED

 

For DUI cases the proper procudures and paperwork must be followed.  Much of DUI defense especially at trial depends on holding the police officer accountable for any deviation from the proper procedures.  Sometimes I see officers conducting DUI investigations that have no business conducting these investigations because they lack the proper training to properly conduct a DUI investigation.

 

A lot of DUI training for police officers has been nationalized meaning there are national standards manuels etc. that lay out for the officer the standards for conducting a proper DUI investigation.  Many of these standards are in the NHTSA manuels.  These are the actual manuels that officers use to train police officers.

DUI investigation procedures are supposed to be standardized across the United States.  In theory, all officers should conduct DUI investigations the same way.  This rarely happens.

The National Highway Safety Administration (NHTSA) has developed a student (participant) training manuel that is used to train all police officers in the country.  There are a total of 14 NHTSA TRAINING MANUELS  used across the country by law enforcement officers.

If an Attorney knows those manuels has those manuels and knows how to properly cross examine on those manuels then that could at trial actually eliminate the need to obtain an expensive expert.  This not only saves the client money it increases the chances of winning the case nothing makes an officer look worse  than not following his own guidelines.

 I have seen officers on taped police stops actually do just about every single thing wrong on the stop up to and including lying about the reason for the stop.

For example pulling someone over and immediately giving the person a preliminary breath screening test.  This is only supposed to be done after observing the person for a 15 minute time period.  I have seen the officer not watch the person for a period of 15 minutes like they should and instead stop and talk to another officer on his cell phone during a stop. 

I have seen officers give such contradictory and difficult FST or Field Sobriety Test that person was almost guaranteed to fail 

The manuels used to train officers even go into detail about in which orde the fst's are supposed to be given.  And I have seen officers completely disregard how to do these tests and the manner in which they are supposed to be given.

I have seen officers not zero the breath test machine that measures alcohol in your blood and do many different mistakes such as this.  These are the things we look for in evealuating your case. 

If you have questions give us a call we can go over some of the areas such as these listed above and tell you wether you have a case that should be fought and how to fight the case.

 

 

Penal Code 246.3 PC is California's "negligent discharge of a firearm" statute.  The statute prohibits wilfully firing a gun or bb device in a grossly negligent manner.  Wilfully almost always means on purpose. 

In a grossly negligent manner means in a way that could result in death or serious bodily injury. 

Enacted in 1988, the laws purpose was to deter people from shooting their guns into the air. 

The offense may be charged as a Felony or a Misdameanor. 

If after reading  some more about this law below you need more information give us a a call at 559-441-1418. 

In order to convict you of this crime the following must be shown.

1. That you willfully fired a gun or a bb device

2. That you did so in a grossly negligent manner

3. That the discharge of the gun could have resulted in a person death or serious bodily injury.

 

lets take a closer look

Willfully almost alawys in the law means on purpose.

you act willfully when you committ an act willingly or on purpose it does not matter if you dont intend to break the law as long as the act is intentional.

Firearm

A "Firearm" is "any device", designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.

BB device a bb device is any instrument that expels a projectile, such as a bb or a pellet, through the force of air pressure, gas pressure or spring action. 

 

GROSSLY NEGLIGENT MANNER

When you act in a grossly negligent manner it means that you act in a reckless wauy that

1. creates a high risk of death or seious bodily injury

2. demonstrates a disregard for human life or indifference to the consequences and

3. is such that a "resonable" person would have recognized the nature of the risk.

COULD RESULT IN DEATH OR SERIOUS BODILY INJURY

It is not enough that you willfully discharge a firearm in a grossly negligent manner.  before the prosecution can convict you of this crime you of this offense they must prove that you did so in a manner which could lead to death or serious bodily injury.

LEGAL DEFENSES

SELF DEFENSE OR DEFENSE OF OTHERS

You are excused from otherwise criminal conduct when reasonably act to protect yourself or others from suffering imminent bodily harm.

This occurs when you.

1. You reasonably fear that you or someone else is about to suffer imminent bodily harm.  and

2. firing your gun is reasonably way to prevent harm. 

IF YOU ACCIDENTALLY FIRED THE WEAPON

You must be acting on purpose to be found guilty of this crime if you accidentally fired then that is not enough for a conviction and is a valid defense. 

THERE IS NO RISK OF DEATH OR SERIOUS BODILY

Referring back to an earlier point, if you discharge your firearm in an isolated area where there is no risk of injury or death, your act doesn't rise to the level of gorss negligence. 

PENALTIE

Penal Code 246.3. is a wobbler a "Wobbler" is an offense that can be charged a either a Felony or a Misdameanor, depending on your criminal history and other factors.

A conviction for this offense can result in your loss of gun rights.  if you are convicted of a Felony all Felons are prohibted from possessing a firearm.

if you are convicted of a Misdameanor than you must wait out a ten year period before owning a firearm. 

A felony conviction for this offense is also a serious felony for the purposes of the three strikes law and will count as a strike.

 

If you have any other questions about this law don't hesitate to call.

 

This article will deal with the crime of participation in a criminal street gang.  This is completely different from the sentencing enhancemnt.  If you are charged with a gang crime you need experienced representation.  Many times people hire Attorneys that do not have experience in  the criminal street gang laws.  The Lawyer has never even tried a gang case.   This is not acceptable.  The gang statutes are very tricky and require experience. 

As someoene that has tried several gang homicide and attempted homicide cases, and handled hundreds of Gang cases, I have the knowlege to properly represent you. 

If after reading this article you have any more questions don't hesitate to call 5594411418.

 

There are actually two parts to Penal Code section 186.22 A .  The first part deals with the crime of "engaging in gang activiity" this is actively and knowingly participating in a criminal street gang.

In order to convict you of this offense the prosecutor must prove the following three facts.  (otherwise known as elements)

1. That you actively participated in a gang

2. Knowing that its memebers "engage in a pattern of criminal activity"

3. that you willfully "promoted furthered or assisted in felonious conduct by gang members.

 

The offense of active and knowing participation in a criminal street gang punishes act of being involved with a gang irrespective of any other crime.  This law targets individuals who has the intent and objective to  further promote, or assist a gang in its unlawful conduct. 

Furthermore, the law not only applies not only to the person that personally and actively committs the crime but also to anyone who aids and abbets that individual.

 

Many times in Gang cases the "Active" participation element along with the intent element are where the most action or litigation occurs.

Many times a person who has either aged out of a gang or no longer "actively participates" in a gang are charged with this crime.

This is even though the person has  not had contact with Law Enforcement for several years, was not wearing gang attire when arrested, and has not been arrested for several years he will be arrested for actively partiicipating.

There is no computer program that keeps track of every time a gang member joins or leaves a gang.

Many members simply age out of the gang or its gang activities; however they may still have some friends with possible ties to a gang

Some gang members simply hang out with other gang members and are not active members.

They may not have committed any crimes or been arrested with other gang members. Gang Membership is a fluid concept many gang are not higly structured.  They may have only a handful or more hardcore members while most members are not as involved.

For a person to be concicted of this gang crime they must be an active member.   Therefore, they cannot be the person that simply hangs out with other gang members or parties at the same parties with them or even hang out with the other gang members.  They must actively participate.

This could be how many times they have been stopped with other gang members, do they were the exact colors of that are associated with the gang, do they admit to being actively involved.  Have other members debriefed and explained how involved they were.  These are all things to take into consideration.

Also how long has it been since all the above things happened? in other words did all the things discussed above happen ten years ago? if so then as stated aobve the person may have already aged out of the gang and not be actively involved anymore.

As you can see these are complex issues and you need an experienced Attorney that has tried these type of gang cases if you have questions give us a call 559 441 1418.

Proposition 47made many changes to the law all over California.  These changes could have profound affects on your life, if you have questions please call us at 559 441-1418. I will be addressing a few of the areas where prop 47 has made changes to the law and some areas where the law has stayed the same. 

Proposition 47 went into affect on November 5, 2014, the day after its pasage. the proposition applies to sentences imposed on or after November 5, 2014,

1. The proposition is not retroactive for people sentenced prior to Prop 47 even if their cases were not yet final.   People who have already been sentenced must use the petition process.  This does not mean you are out of luck if you were sentenced before this date it only means that you must use the petition process. 

ELIGIBILITY FOR POST-SENTENCE REDUCTION; PARTIAL RETROACTIVITY

1. The offense must have been committed prior to prop 47 passage in order for the defendant to be able to have the offense reduced by means of an application or petition.  The petitioning process is limited to those with Felony convictions "who would have been guilty of a misdameanor"if prop 47 had "been in affect at the time of the offense" 1170.18 (a). 

2. People sentenced after prop 47 passed are eligible for relief so long the offense occurred before proposition 47 passed.  That will only be necessary when the original sentencing was botched.

DEADLINE TO FILE APPLICATIO OR PETITION

1. Originally people had to file there application by November 4, 2017 unless they showed good cause for not filing earlier. 

2. The deadline has been extended to Novembere 4, 2022.

BELOW IF WILL GIVE A SUMMARY OF SOME OF THE OFFENSES ELIGIBLE THIS IS NOT AN AXHAUSTIVE LIST

1. PENAL CODE 666

simple possession health and safety code section 11350, 11357, 11377).

2. ELIGIBILITY DEFENDING ON THE FACTS

A. Legally, post-sentencing reduction requires that you file a declaration for these offenses stating the facts proving eligibility proving eligibility based upon the facts for the offense is not automatically eligible or the court may summarily deny the petition or application.

some offenses eligible

470-476 if forgery related to a specific items and value less than $950

476 a if totoal of all convictions less than $950.00

ATTEMPTS

No cases directly address whether attempts are aligible. 

JUVENLE COURT CASES

1. Juvenile offenders are eligible for prop 47 relief.

STRIKES CAN BE ELIBIBLE FOR PROP 47 RELIEF

The fact that an offense is a strike does not in and of itself make the cime inegligible for prop 47 relief. 

459. 5 crimes

elements

entry into a commercial establishment

with intent to commit larceny

while the business is open during regular business hours.

where the value of the property taken or sought to be taken is less than $950.00

EXCLUSIVE PENALTY

a. if an act is punishable as shoplifting it must be so punished rather than by some other charge.  "any act of shoplifting as defined in subdivision a shall be charged as shoplifting. 

VALUE OF THE PROPERTY OR VALUE OF THE PROPERTY SOUGHT TO BE TAKEN DOES NOT EXCEED $950.00

if the defendant is unsuccessful in obtaining the property one uses the value of the property sought to be taken.

If the defendant was succesful then one uses the value of the propety taken.

SPECIFIC EXCLUSIONS

People required to register as a sex offender are excluded and not included

it should be noted for the sex offenses however prop 47 is not meant to have any affect on sex offender it is meant for a different category of offenders.

PEOPLE WHO WOULD POSE AN UNREASONABLE RISK TO PUBLIC SAFETY ARE EXCLUDED FROM RESENTENCING.

The unreasonable risk of danger to public safety refers to people means an unreasonable riske the petitioner will commit a super strike. 

As you can tell the prop 47 law can be complex if you have any further questions don't hesitate to call

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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