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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.

 

 

If after reading this article you have any questions please give me call.  As a former probation officer, deputy da, and a criminal defense attorney and adjunct criminology instruction I know the ins and outs of the system.  

I have the know how to make sure that you have the best oppurtunity to get your record cleared and your life on track. 

 

JUVENILE RECORDS.

Welfare and Institutions code section 786 has made the clearing of your Juvenile records much easier.  If you were convicted of a non 707 b offense in other words an offense the court deems as not one of the most serious, your record can be ordered cleared and the records destroyed usually within 4 years.  

It should be noted that even if the records are not destroyed becuase you committed a 707b offense the records are not publice records. 

If you are applying for a position licensed by the state of california or a law enforcement position you might still have to disclose certain offenses.  Certrainly you should seek legal advice.  

 

WHAT IF MY OFFENSE HAPPENED WHEN I WAS AN ADULT

It depends on several factors including were you convicted, were charges filed, or did you have your case dismissed in court, or were you acquitted following a jury trial.  

The first factor is wether you suffered a conviction. If you did suffer a conviction you cannot get your records destroyed this is true even if you got an expungement.  Many people believe that an expungement is an order destroying records.  

Generally speaking you have two years to ask for a distruction of your record.  The Judge can hear cases beyond that period of time based upon good cause.   This is two years after the date of arrest or filing of the accusotory pleading.  

1. You can petition the law enforcement agency to destroy a record of an arrest that did not result in conviction.  You ask the arresting agency that arrested you to destroy the record and to update the cii or arrest report.  This is if you have been arrested but not charged.

2. If this does not work you can petition the court.

 

This second step is for people that have been denied relief by the police. 

However if you were arrested and charges were filed you cannot seek relief from the arresting agency you must petition the court.  

If at the time of dismissal the judge believes you to be factually innocent he may order a finding of factual innocense and order the sealing of records.  Also, if at the time of acquittal the Judge believes the defendant to be factually innocent the Judge at that time may order sealing of defendants records.  

 

WHAT IS FACTUAL INNOCENSE

To be factually innocent the evidence must exonerate you not just raise a doubt as to your innocense.  

 

If you have any question please give us a call to discuss your issue. 

 

 

Proposition 64 passed several weeks ago.  Under the law if you are 21 years or older you can consume Marijuana in the privacy of your home. Contrary to belief of some it does not allow for public use of Marijuana. 

Also you can possess up to an ounce of Marijuana on your person in publice.  You may also grow up to 6 plants for your personal use on your own property.   

The new law did not make legal the sale or distribution of Marijuana.

However you can gift small amounts of Marijuana to other people.  This means you can give away part of the Marijuana you are growing for your personal use but cannot sell that Marijuana.

Also, the new law does not make dispensaries legal to sell Marijuana you must still have a Medical Marijuana card to recieve Marijuana from a dispensary. 

This means there is still nowhere for recreational users of Marijuana to buy pot.  You must still have a Medical Marijuana card to buy or recieve Marijuana from a dispensary. 

So the limbo is you can smoke inside your home but you cannot buy the Marijuana anywhere in the state of California.

The laws may change as to that aspect maybe the local authorities will allow some sales of Pot in a licensed established Medical Marijuana dispensary.  This is not the current state of the law.  You can grow your own so to speak, up to six plants and smoke inside your home.

The state of California has until Jan 1, 2018 before the state has to start issuing licenses allowing retail estblshments to sell non-medical  Marijuana.  This will be probably to already established places and will be strictly liensed and watched industry.   

The law was written to allow some temporary permits, however again this will be a very highly regulated area of the law and could take a while for local agencies and governments to figure out this law. 

and again it is legal to gift the Pot however it would be good to only gift to the Medical Marijuan patients.  And remember whoever is recieving the  Pot must also be 21 years of age. 

As this law has just passed it is best to get the legal opinion of an Attorney before growing possessing or smoking this article is not meant for legal advice and only for information purposes.  If you have any questions we could help you. With more than 14 years of Criminal Law experience as a Former Probation Officer, Deputy District Attorney And Adjunct Criminology Instructor, I have the know how to handle your case and have handles many Marijuana related cases.  So if you have any questions please give us a 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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