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I will be running a series of articles regarding DUI or what is commonly referred to as "drunk driving"  which is not an accurate term because you may not have felt drunk, or have been drunk at the time of driving in order to be convicted for DUI. 

As a former Deputy District Attorney that prosecuted DUI cases and as a defense attorney that has handled DUI cases for more than 13 years I know the in's and outs of the system.  And I am the right Attorney to help you evaluate or fight your case. 

Driving under the influence is the most common crime committed in America, and mostly by people that have never been in the system before.  Contrary to popular belief Driving Under the Influence cases can be difficult and complex to litigate. 

You should understand three things about a DUI case

1. Though very common dui cases can be complex

2. The stakes are high and involve your freedom and driving privilege.

3. There is a complex system in place for DUI cases meant to insure convictions

 

DUI CASES ARE COMPLEX

Whether someone was drunk is not the measure.  Many times I have clients come into my officer and say there were  perfectly fine to drive and were not feeling the affects.  Since every person is different and will feel the effects of alcohol in different ways, the law has said you are per se impaired at certain levels .08 for people over 21 and even lower for people below 21.  Now I know that setting this level at .08 is in itself abitrary.  How do you say that someoene is impaired at .08? Under a per se or .08 or above offense the question of whether the driver was impaired or not is considered irrelevant.  The law is satisfied if by proof of blood-alcohol level alone.  Now this does not mean that what is referred to as the A count or the under the influence count which requires impairment has gone away, they exist side by side and are often charged together, you can be charged with both but yuou cannot be punished for both offenses under penal code section 654.   

THE QUESTION IS ALWAYS HOW DO I KNOW IF MY BAC IS ABOVE .07?

The answer to that question is you wont know.  You would have to do constant blood test analysis to confirm what your bac is, and that is impossible to do.  When you are going out for a glass of wine after work it is very difficult to know excactly what your bac would be at any point. 

THE STAKES ARE HIGH THE PENALTIES FOR DRUNK DRVING ARE HIGH

 

The penalties for Drunk Driving depending on the circumstances and the jurisdiction, the first offender will be fines around $1,500.00 but that is just the fine.

you will also be ordered to pay for a dui school of three six or nine months and in fresno county attend at least 8 days of aowp, which will come out of  your pocket. 

 

WHAT IS THE CORPUS OF A DUI

Corpus Delecti means the body of a crime.  For Example a Murder the prosecution must prove beyond a reasonable doubt that the victim is dead and met his demise by criminal not natural means.

For DUI offenses.  The driver must be observed or otherwise shown to be driving.  For example a drive is found unconscious in a car wraped around a pole.  The conclusion would be that he was driving the prosecution must show a prima facia case that a crime has occurred before it can introduce statement of the accused.   In other words the prosecution must prove that someone was driving a vehicle and that driver was under the influence at the time. 

 

THE CORPUS FOR A DUI IS THREEFOLD

1. DRIVING

2.  A VEHILCE

3. UNDER THE INFLUENCE OF ALCOHOL,

DRUGS,

OR UNDER THE INFLUENCE OF COMBINED ALCOHOL AND DRUGS,

HAVING A .08 OR ABOVE BAC. 

 

I will several articles following discussing DUI law.

 

 

 

 

 

Domestic violence is a serious charge.  It can be charged as either a Felony or a Misdameanor, meaning it is what is commonly referred to as a wobbler. 

If you have been arrested you need an experienced Attorney to help you fight your case.  As a former probation officer, deputy district attrorney and a probation officer with more than 13 years of experience I can help you.

 

WHAT YOU SHOULD DO

1. Have  no contact with the alleged victim there will often be emergency restraining orders in affect and if you violate those restraining orders there could be serious consequences.

2. Be careful what you say on the phone.  Often because the alleged victim is not subject to the restraining order.  Police and or the District Attorney will have the alleged victim do what is called a  pretext phone call.  This means the alleged victim will call  you and attempt to illicit inciminating responses from you which will be recorded and used against you in court.  These pretext must be done before initiation of criminal proceedings, and are usually done befor arrest.

3. Raealize if you have children with alleged victim you could have two different courts that you are attending at the same time.  Familiy court and Criminal Court.

 

 

WHAT IS THE LAW ON FALSE IMPRISONMENT? WHY AM I BEING CHARGED WITH THAT? WHAT ARE THE DEFENSES?

In other articles I go over the law of DOMESTIC VIOLENCE SO I WILL DISCUSS THE LAW OF FALSE IMPRISONMENT AND SOME OF THE DEFENSES BELOW.

 

1. THE LEGAL DEFINITION OF "FALSE IMPRISONMENT"

Penal Code 236 is again a wobbler which means that it can be charged as either a Felony or a Misdameanor. 

in order to convict for a Misdameanor False Imprisonment the prosecutor must prove the following facts or (elements of a crime) 

 

That you intentionally restrained, confined, or detained another person, compelling him or her to stay or go somewhere, and

2. The other person did not consent

 

In order to be convict you of a Felony false imprisonment, the prosecutor must additionally prove that you accomplished the restraint, confinement or detainment, by means of

violence

menace

fraud

deceit

 

Force is an element of of both misdameanor and felony false imprisonment.  The offense becomes a felony only when the force used is greater than reasonably necessary to effect the restraint. 

The violation of anothers personal liberty can consist of any type of confinement in the broadest sense of that term.   Examples inlude detaining a person in

a room

on the street

a moving vehicle or

even forcing a person to move from one place to another

 

As you can see there could be some crossover with domestic violence laws and allegations

 

the violence element above relates to the violence to keep someone agains there will

example

After fighting with Adam, Laurie turns to go. Adam grabs Lauries Arm and demands she stay

 

This could be domestic violence, but is probably not false imprisonment

Some defenses to False Imprisonment

 

1. Self Defense

Californias self defense laws allow a  person to use reasoanble force to defend yourself or another if you or another person is about to suffer imminent bodily harm. 

 

2. Duress

If you only falsely imprison a person because someoene else has threatened you in a violent or menacing manner.  the california legal defense of duress may excuse your conduct.

this might be the case if, for example, Chris threatens to shoot you if you don't restrain Julie while he robs her apartment.  Under this type of scenerio, the legal defense of duress could absolve you of the crime.

 

3.  Consent

It bears reapeating that if the alleged victim consents to the detention, the restraint or confinement, you are not guilty of violating penal code section 236 California's false imprisonment law.

 

There are several other defenses to the crime of false imprisonment.   You can call us for an evaluation of your case.

 

 

 

 

 

 

 

 

 

 

 

 

 

If you have been arrested for a strike offense it is a very serious matter that may have consequences for your entire life.  You need an Attorney that is both an experienced trial attorney and experienced in handling strike offenses.

A strike offense is an offense listed as either a serious or violent Felony under 667.5 C or 1192. of the California Penal Code.   

 

I have experience in both.  In  trials I have personally tried more than 25 serious violent felony strike cases.  And in settling cases when serious strikes are alleged.

 

1.  If you are convicted of a strike offense for example Battery with Great Bodily Injury. 

 

Battery with Great Bodily Injury Means not only did you commit a Battery  on the person of another, and that Battery Caused Great Bodily Injury.  Believe it or not there is not a lot of Case law on Great Bodily Injury, However it is something serious and not just inconsequential injury. 

 

2.  If you are convicted of this crime any other Felony conviction will result in double the sentence, and inelegibility for probation, and you will have to serve %80 of your sentence before you are eligible for release of Parole.

 

Obviously, these are serious consequences but it could get worse.  If you are convicted of a Violent Felony rather than a Serious Felony, you will have to complete %85 percent of your sentence before you are eligible for release or Parole.  This in addition to your strike consequences.  

3.  3rd Strike consequences.  To do a so called "strike out" you must have two prior qualifying priors and have a current serious or violent 3rd strked qualifying Felony. 

Many people falsely believe that this somehow makes it very much more difficult to recieve a sentence of 25-to life.  This is not correct.

For example if you were convicted of two prior residential burglaries, a third residential burglary could result in a sentence of 25-to Life. 

There are exceptions that I will address in another blog.  The court could Strike the prior strikes at any time up to and including sentencing.  Sometimes the court will do this even over the objection of the prosecutor depending on the seriousness of the offense and many other factors. 

If you have been accused of  strike crime call us and we we help you get through this.

 

 

 

If you are convicted of a Violent

If you have been arrested for a sex crime you may have a lot of questions.  I have been helping people with sex offense charges for more than 13 years and succesfully handled many cases that have been handled through trial.

 

If you have been arrested for a sex crime the chances are if convicted you will have to register as a sex offender.  This is becuase so many crimes now have mandatory sex offender registration as part of the plea deal.  There are some exceptions that I will go through below.

 

1.  Plead to a crime that is not a sex crime.  Many times when a case goes to District Attorney the District Attorney has the option to charge the crime as a Felony or a Misdameanor, or completely change the charges so that you will not be required to register as a sex offender.

Example.  You are arrested for touching the breat of a girl 14 or 15 years of age.  This would originally be charged with 288 c1 which would require mandatory registration.  However the District Attorney must prove you did this touching of the breast for sexual gratification.  Therefore, we may be able to convince the Prosecutor the allow a plea to a lesser charge of Misdameanor Battery not 288 C 1 which would save you from lifetime registration. 

 

2. Win the case at trial. If you win at trial you will not have a sex crimes conviction.  Therefore, you will not have a registration requirement.

 

3. If you are a minor don't go to Division of Juvenile Justice.  The division of Juvenile Justice is the state prison system for youthful offenders.  As the law currently stands if you are a Juvenile under the age of 18 and you are convicted of a sex crime you will not have a registration requirement unless you are sentenced to a term at DJJ. 

 

4. Plead to a sex crime that does not require registration.  If you are convicted of certain crime that is not mandatory registration you will not have to register as a sex offender.  These crimes are very uncommon but an example would be 647. A  Lewd act in Public.  If you plea to this crime as a form of negotiation you will not have to register as a sex offender.

 

5.  Some crimes are discretionary as to whether a person must register as a sex offender.  For example statutory rape, having sex with an underage person is up to the discretion of the court.  If you can take a plea agreement to this crime with an indication from the Judge that they will not impose a registration requirement than you will not have to register as a sex offender. 

 

We have helple people in all of the above ways avoid registering as a sex offender.  If you are ordered to register it will be a lifetime order.  Absent a Certificicate of Rehabilitation, or a Governors Pardon.  Therefore, it is vital that you get the services of an experienced Attorney as soon as possible to help you with the ins and outs of what is a very complex and serious area of the law. 

 

If you have been registering as a sex offender and want to stop there are several ways this could happen.   I have been helping people with these type of problems for more than 13 years.  As a former probation officer, and deputy district attorney I know the ins and outs of the system.

 

1. Hofshier motion.  Certain crimes used to be mandatory sex registration for life.  Now these crimes are discretionary.  You can stop your registration requirment by filing for Hofsheir relief. 

 

2. Seek a certificate of Rehabilitation.  After a period of successful registration usually but not automatically 10 years, you can file for a Certificate of Rehabilitation, and ask that the registration requirement be lifted.  If granted your obligation to register as a sex offender will be lifted.  And as part of the process the request will go to the governors office for request for a pardon.

3. Request for a Pardon   Seek a Pardon from the Governor.  The number of Pardons granted by a Governor of course, varies from one Governor to another.  However, Governor Brown has granted more than 450 pardons in his time in office. 

 

4.  Overturn the conviction    if you overturn on appeal the conviction which caused the regristration than your requirement to register will stop.  If your plea of guilty to the underlying charge ( or guilty verdict at trial) was in error you, we may be able to help you set aside the verdict and stop the 290 sex registration. 

 

Give me a call if you have any questions I have been helping people with these type of problems for many years and have had success in trial.  This success includes acquitalls in two different multiple count sex crime cases. 

Every case is different give me a call and we can sit down for a case evaluations to see what your options are and whether any of the above named issues will help you.

 

 

 

If you are being charged with a crime and someone has recorded a phone call or a conversation with you the law in that type of case can be very complicated.  As an Attorney with more than 13 years of experience, and someone that has dealt with this type of police action on many occassions, the short answer is yes the person can record if they are acting in conjunction with the police when they recorded.

 

AS A GENERAL RULE PEOPLE ARE NOT ALLOWED TO TAPE PHONE CALLS OR CONVERSATIONS WITH PEOPLE WITHOUT PERSONS PERMISSION. 

 

However, there are many exceptions to this general rule that I will go over below.

 

PRETEXT PHONE CALL

A pretext phone call is a tactic often used by Law Enforcement.  The person will call you with a phone or recording equipment provided by Law Enforcement.  For example in sexual assault cases.  Police will often give equipment to the alleged victim when they do not have much evidence or want to bolster there case.  

The alleged victim may call the person that allegedly sexually assualted them under the pretext of wanting to know why the incident happened.  Any and all statements made by the alleged defendant can and will be used against him.

The reason for this is that if the person is acting at the behest or direction of law enforcement than the general rule does not apply.

WHAT IF THE ALLEGED VICTIM WORE A WIRE DURING THE CONVERSATION?

The result will be the same.  In fact we had a case where a person wore a wire while meeting with our client.  Our client made admissions to the effect that he was sorry and other specifics implicating him in the offense.  We filed a motion to have the conversations not allowed as a violation of our clients Fourth Amendment rights.  The Motion was denied. 

Usually these type of conversations must be done at the investigation stage, of the process.  In other words before initialization of criminal proceedings.  If these are done later they could be suppressed during a motion to suppress hearing. 

Usually the police will do this before they make arrest, or file charges.  Once charges are filed and a person has a right to an Attorney the communications are more likely to be kept out of court. 

However, Jail call and letters and other communications initiated by the defendant are not part of this process.  In other words your words made during a Jail phone call as discussed below can and will be used against you.  

 

AS A GENERAL RULE WHEN THE PERSON IS ACTING WITH LAW ENFORCEMENT THEY CAN RECORD CONVERSATION THAT THEY WOULD GENERALLY NOT BE ABLE TO RECORD

 

WHAT ABOUT JAIL CALLS?

Courts have held almost unanimously that there is no expectation of privacy in communications from a Corrections facility.  In fact, if you use the phones usually there will be a warning that all calls are recorded.  I don't even like talking specifically about cases with clients from Jail.  The reason is I believe that all calls from Jail are recorded.  Even though calls to an Attorney are recorded.  This is not a certainty but why take a chance on confidential communication being overheard by the wrong person?

WHAT HAPPENS IF I MADE ADMISSIONS ON TAPE OR RECORDING?

Again, as a general rule those communication will be admitted to prove your guilt.  

DOES THAT MEAN I AM DOOMED TO BE CONVICTED?

NO.  Sometimes people say things just to get others off there back.  It could be a case where someoen after being called several times actually says OK I did it.   Sometimes ther Jury will not believe such statements.  As they may believe they were only said to stop the call from alleged victims. There should be something to back that statement up such as facts of excactly how you did the crime. 

 

If you have this issue in your case go ahead and call to get advice.  

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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