Fresno Criminal Defense Attorney | Fresno DUI Attorney Serving all of California

        Avvo
Call for a free case evaluation.
559.441.1418

Contact Us

Send us a quick email

Please type your full name.
Invalid email address.
Invalid Input
Invalid Input
Enter Code
Invalid Input

If you have been arrested for a DUI and you are under the age of 21 different laws and rules will apply, along with different punishments.  Although I went through this in a previous article I would like to address these issues again.  Having been in Criminal Defense and DUI defense for more than 13 years and having personally handles many hundreds of DUI cases as both a Deputy District Attorney and a Defense Attorney I have the knowlege to help you with your case.  If you have any questions do not hesitate to give us a call.

 

HOW DOEST THE DRIVERS LICENSE RESTRICTION DIFFERENT FOR SOMEONE UNDER 21?

 

The main differenes are two-fold the length of the revocation is longer 1 year as apposed to 30 days with a suspension period for someoen older than 21. 

For Exampl:  If you are over the age of 21 and you are arrested for driving under the influence you have a period of 10 days to make an appointment with the DMV to schedule a hearing with the DMV this is completely different than your criminal Court hearing. 

If you lose this hearing your license will be revoked for a period of 30 days.  Some Attornys call this a hard suspension meaning no driving is allowed.  After, that revocation period is over you can get your license back on a restricted basis if you 1, sign up for a 3 6 or nine month DUI ecucation class.  (you don't have to complete just sign up), 2 Pay $125.00, 3, obtain an SR 22 from your insurance company. Than you will be able to get your license back albeit on a suspended status meaning you have to drive back and forth to work and your DUI class.  for a period of up to 4 months then your restriction ends and you can drive again.

The difference is you are under 21 is that your license is revoked for a period of 1 year absent a critical need.  That means you cannot drive for a period of 1 year with no exceptions again unless there is a critical need. 

 

WHAT IS A CRITICAL NEED?

 

If you can convince the Judge, not DMV, that you have a critical need to drive you can get your license back.  That means you are a student and must drive to school because it is to far, and there is no alternative method of getting to schoool.  In other words there is no bus or other public transport systems that are available in your area. 

Or it could be you need to transport a relative to a Doctors appointment and you cannot get them to the appointment any other way. 

The Judge will then order your license to be given back to you and you can drive for that purpose.

 

WHAT IS THE LEGAL BAC LIMIT FOR SOMEOEN UNDER 21?

The so called legal limit or the per se limit can be as low as .05 this is called the "zero tolerance policy" for driving under the age of 21 with a bac over .05.  You can also be charged under either 23152 a or b counts.  or you can be charged with an infraction.  This infraction offense still counts as a 2 point violation on someones driving record.

 

The best case scenerio would be to get the infracation and a critical need exception found by the court that way you could keep your license and drive a vehicle with a critical need and only face a court punishment for an infraction rather than a misdameanor. 

If the minor is a Juvenile, usually under the age of 18 the case must be handled by the Juvenile Cour which is usually a much better place for Juvenile offenders and reaches results that could lead to sealing of records.

 

Again if you have any questions about an underage DUI in Fresno or anywhere in California don't hesitate to call 559-441-1418.

 

The penalties for Domestic Violence depend on whether you were charged with a Felony or a Misdameanor.  I wrote an earlier article on Domestic Violence this article will deal almost exclusively on the penalties for Domestic vioence and wil concentrate on Fresno CA but are applicable to other places as well. 

If you have been arrested for Domestic Violence don't hesitate to call our office as An Attorney that has handles over 100 Domestic Violence cases, I have the experience to handle your case as a former probaiton officer and deputy district attorney I know the ins and outs of the system. 

 

First lets look at the penalties for Misdameanor Domestic Violence

if you are a first time offender and the case is settled for a misdameanor you will probably be looking at two-to five years of probation.  Also, you will have to complet AOWP program hours.  AOWP stands for alternative work program time.  This means picking up trash along the highway and other such tasks.  Usually you will be told by the court to either sign up for aowp by a certain date or check yourself into the jail to serve the time in custody.

It is important that you abide by this order of the court.  The court as any Judge will tell you does not make request of you only orders.  Therefore, if you do not abide by these ordders you can have a warrant out for your arrest.  Further, you will not be able to put yourself on calendar to get an extension after this date has passed.  It is never a good idea to disobey court orders, so sign up for your aowp on time. 

Once you have signed up for AOWP they can and usually will work with you on the hours.  However, I have seen people show up for AOWP thinking if they some medical issue they can simply not do the aowp.  This is not correct you will be referred back to the Judge usually to be placed in custody to do your time if  you have a medical limitation.

You may also be ordered to complete community service hours in lieu of aowp.  However, this will amount to a lot of community service hourse depending on the nymber of aowp hours you were ordered to complete.  ussually you have to do as many community service hours as the number of hours you would have to do aowp.

 

52 WEEK BATTERER TREATMENT PROGRAM

After a conviction for a domestic violence crime you will be ordered to complet a 52 week batterer treatment program.  This is a mandatory punishment and will not be up to the court.  To successfully complete probation you must complete this program. 

 

10 YEAR GUN BAN

After a conviction for domestic violence you will be prohibited from owning or possessing a firearm for a period of ten years.  There is an exception if you need your gun for employment.  You must have a hearing and a Judge will decide if there is sufficient evidence that you need your gun for your employment such as a police officer, etc, and the Judge can determine that you should be allowed to continue to own and possess a gun.

RESTRAINING ORDER

If a Criminal Protective order has been isssued in the case it will be renewed and you will have  a restraining order against you usually for a period of three years. 

After you have completed a certain number of days of batterer intervention program  the victim can go into court to ask the court to dismiss the restraining order. 

The court sometimes grants these request depending on how well the court believes you are completing your terms of probation, and after the victim has spoken with the victims advocate office.

in another note you must be present for your court hearings in a domestic violence case.  After the first hearing the court may allow what is called a 977 appearance , or an Attorney to be present for you, but you must show up at the first hearing.  This is even if you are accused of a crime that is not domestic violence but involves a crime against a family member. 

 

If you have been charged with Vehicular manslaugther it is a serious charge and you need representation right away.  I have personally handled many vehicular manslaughter and DUI with death cases in more than 13 years of experience.  You should call right away if you have questions.

 

When death results from driving a vehicle while under the influence of alcohol or drugs , Penal Codes homicide statutes may come into play. 

The person may be charged with manslaughter or in some cases Murder. 

 

The gross vehicular manslaughter while intoxicated statute is defined in section 191.5 and reads as follows

 A. Gross vehicular Mansluaghter while intoxicated is the unlawful killing of a human being without malice of forethougth. , the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehilce Code. , and the killing was either the proximate cause or the result of a negligent act.  The death must be the proximate result of an unlawful act and with gross not ordinary negligence. 

Vehicluar manslaughter is the same as above except without gross negligence.

 

Therefore, california has two statutes relating to vehicular mansluaghter, vehicular mansluaghter while intoxicated 192 c 3, and gross vehicular mansluaghter while intoxicated 191.5 A.

 

Therefore there are three ways to be charged with manslaugther resulting in death.

1. Penal Code section 193 C misdameanor or felony without gross negligence

2. Penal Code 191.5 A felony with gross negligence, but without malice

3. Penal Code section 187 usually you need a prior to show malice, or wanton reckless manor of death.

 

So remember there is a three step process the prosecution must prove

1. That you were in violation of 23152 a or b

2. and you did a negligent act

3. that negligent act proximately led to the death of another person. 

 

If the prosecution cannot prove those three you may be guilty of the misdameanotr 193 c. 

Example a women driving home after drinking with friends, is driving the speed  limit no near any intersections and suddenly a homeless person wanders into the street not wearing in protective clothing (similiar to a case I once had) and the driver strikes and kills him.

because there was no negligent act by the driver, and she probably would not have been able to avoid him even if sober she should only be guilt of the misdameanor crime.  She must have been doing some negligent act.  Here she was driving the speed limit, she was not acting innatentively, and he wandered into the street. 

 

The gross negligence statute is much more difficult for the prosecution to prove. 

For the gross negligence statute to apply there needs to be more than just be intoxicated for the gross negligence to apply.  However this could be shown by the overall method of driving in connection with the level of intoxication.  things to be taken into consideration will be the speed driven in relation to the maximum speed limit for the area, and ignored advice from others not to drive.  remember you must have been acting with conscious disregard for the circumstances in order to be found guilty  of this crime. 

 

A Murder charge for drunk driving offenses are rare usually for repeat offenders that are given the so called "waton advisement" that drinking and driving is ineherently dangerous to human life.

for example at trial the prosecution introduces evidence that the accused has two prior dui's and on his third dui kills two people when his car collides with there car.  Under these circumstances, the person could be  charged with Murder.  This is because when a person is convicted of a DUI they are given and advisement that driving under the influence is inherently dangerous to human life. 

if you have further questions do not hesitate to give us a call fresno criminal attorneys fresno dui attorney

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

Schwab photo

Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

Schedule a Free
Case Evaluation

Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
View Map
Phone: 559.441.1418 
Website: