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Title 17 of the California Code of Regulations establishes the protocal for how California will administer, collect, store, and analyize

California DUI chemical blood tests

DUI breath tests

DUI urine test


A failure to comply with Title 17 of the Code could result in inaccurately high BAC levels.  causing innocent people to be falsely accused of Drunk Driving.


These violations of protocal are where successful challenges to DUI are often fought and acquitals attained. 


When I handle DUI Cases i go through the paperwork and procedure that was used to ascertain if  a DUI case should be taken to trial. 

I ask for certain things in the discovery process with the Deputy District Attorney such as


MVARS this is the video of the stop.  I want to see if the stop was legally justified and if the officer told the truth in his report.

Callibration logs for the machines used to test the blood alcohol level of the person accused.

and many other things I am looking to see if

There was an unauthorized person performing the blood draw.

using an alcohol based agent to sterilize the draw site. 

having an insufficient amount of anticoagulent or preservative and or

not properly storing the blood sample.


'Blood tests are probably the most accurate type of test to get an accurate reading of blood alcohol in the blood. 

however blood test can still be challenged and often are challenged. 


breath test must come from deep lung air, or "aveclar air"

the person that administers the test observe the person for 15 minutes prior to breath sample

that during this time the person does not eat drink or throw up

that the breath testing instrument is calibrated every ten days of 150 uses whichever occurs first.

Title 17 imposes these safeguards to ensure that DUI breath tests are as accurate as possible.  One of the most significant problems arises when these precautions arent followed

I have seen officers on the stand that do not understand how calibration works or even how the machine would show if it was not properly calibrated.  How are they to know if the machine is not properly calibrated if they do not even know the signal for if the machine was not properly calibrated?


Those with the medical condition of GERD (acid reflex) often give off falsely higher breath test results.  That is because the body constitutely produces mouth alcohol this can and often does affect the amount of BAC that could be making your BAC seem higher than it actually does.

This of course does not matter if you took a blood test rather than a breath test.  This is a critical fact that we will use to adequately fight your DUI case.  another factor that could lead to a violation of Title 17 and blood alcohol content results, is as stated above the maintenence of the machine used to measure blood alcohol content.  if the operater of the machine was not properly trained to use the machine or is the machine was not properly calibrated both of those factors can result in a falsely high blood alcohol reading. 

Some officers are better trained at DUI stops than others.  For example, if an officer that usually does not do DUI stops is conducting the stop then he may not be familiar with the paperwork and procedure needed to properly conduct a DUI investigation.  Some officers do not conduct a lot of traffic stops and sometimes will call for other officers to assist them with the stop.   Sometimes a better trained officer is not available and the untrained officer will have to conduct the investigation himself.

These are some of the issues that we look at to assess your DUI

Please call if you have any questions.  559 441-1418.    


Proposition 57 made several changes to the law for Juvenile Hearings in Fresno Ca and the rest of the State of California.  One of the biggest changes is what were called "fitness hearings" these are the hearings that were done to determine if a minor will be charged as a Juvenile or an Adult.  This obviously is a very big decision for the Court to make and now this important decision will be left in the hands of a Juvenile Court Judge rather than a Deputy District Attorney.

If your child has been charged with a crime you should contact an experienced Attorney right away.  This Attorney must be experienced in Juvenil Defense.  As a Former  Juvenile Probation Officer and Deputy District Attorney, and Adjunct Criminology Instructor I know the ins and outs of the Juvenil Justice system.  Call me and we can set an appointment for a case evaluation.

I wil outline below some of the new areas of law that deal with "fitness hearings" first these hearings are no longer called fitness hearings.  the way it used to work if a minor was charged with certain crimes a hearing would be held to determine if the minor would be tried in Juvenile or Adult Court.  The way the law worked before is that the minor was presumed unfit and must overcome that presumption by a preponderance of evidence on each and every element in order to stay in Juvenile Court.  Also if a minor was charged with certain listed offenses such as Murder and several others a Prosecutor could make the decision to directly file the case in Juvenile Court. 




1. The hearing is no longer a "fitness" hearing the are transfer hearings.

2. There is no presumption that a minor should be transferrred to adult court.  This was not the case under previous law.

3. The standard: "Preponderance of the Evidence" remains unchanged. 

4. Because there is no presumption for or against the Juvenile, the prosecutor bears the burden to show why your client should be transferred to adult court.

5. The Court determines whether to transfer  the minor or have the minor remain in Juvenile Court by a totality of the circumstantes analysis.  Although prop 57 did not change the criteria the criteria were changed so that with additional language effective January, 2016, with much greater focus on indicia of youthfulness.

These changes mean there is much more oppurtunity to argue for cases to stay in the Juvenile Court that would have, in the past been transferred to adult court.   

Many times when people come into contact with the criminal justice system they are confused and unsure how and what is going on.   That is one reason to call and retain the law office of Gerald Schwab.  As a former Probation Officer and Deputy District Attorney with nearly 14 years of experience I know the ins and outs of the sytem.  Check out my 10.0 rating from AVVO or my National Trial Lawyers Top 100. or my reviews from Google.

I represent people not cases and can help you through your case as a person not a case.


Here I will explain in a brief way what you can expect from the various stages of the legal system.



First you will have to Bailed out of Jail the amount you will have to pay the bail bondsman depends on the nature of the charges.  Usually you must pay 10 percent down. 

You can ask for a bail reduction if your bail is high.  However it must be in writing with two days of notice and you only get one shot at a Bail Reduction absent a substantial change in circumstances. 


I have had many clients that believe the first court date is when everything will happen including a trial. That is not the case.  The first court date you will have is called and Arraignment.  You will be appraised of the charges. enter into a time waiver and given discovery if the District Attorney has already given the discovery over.  Depending on the type of time waiver you enter a new court date will be calendared.  A time waiver can be complicated but basically it means that you have right to a preliminary hearing within 10 days of Arraignment.  If the court cannot hear the case within that time period then it must hear no later than 60 days. 

If you waive the 10 day but not the 60 days that means you must have a preliminary hearing within 60 days of your arraignment, if your preliminary hearing is not heard within that time period then you must be released. Many times the District Attorney will dismiss the case and refile the case if they can't for some reason have the preliminary hearing completed by the time out date. 

Also, the District Attorney if they are not ready within the time period has the option of going to a Grand Jury to hear the case and that Grand Jury takes the place of the Prelimiinary Hearing.



This is a date usually set aside for attempts to do two things.

1. Attempt to settle the case during negotiations with the Prosecution

2. Make sure all discover is turned over to the defense.  Many times the District Attorney will bring the discovery to court.  Discovery is the police reports, mvers, call logs, and dispatch logs and other evidentiary items that must be turned over to the defense. 



A preliminary hearing is where there will be what some call a mini trial although it is usually very much different from a trial in almost all aspects.  A preliminary hearing is a hearing to determine if the is probable cause to hold the defendant over for trial.

the burden of Proof is different Reasonable Grounds to believe a Crime has been committed and Reasoanble Probability that this defendant was the person that committed the crime.  This burden is much less than the proof beyond a reasonable doubt standard that is applied for a criminal trial.  And the prosecution does not have to bring any witnesses they can rely on the police reports to get them past the burden of proof.

That is a basic overview of the criminal justice process, I will go over in another post the process after a preliminary hearing.  If you have any questions call us at 559-441-1418.   

In an earlier article i discussed the law of Petty theft in Fresno Ca.  I would like to expand on that article a bit because I think there could be some complexities to the law.

If you ar arrested for Petty Theft in Fresno Ca, or in a surrounding area, it is essential that you get legal help as quickly as possible to understand your legal rights. 

As a Former Probation Officer Deputy District Attorney, and Adjunct Criminology Instructor and an Attorney with nearly 14 years of experience I know the ins and outs of the system. 


First, as stated above Petty Theft can be complex more complex than it might seem at first.  Also, the stakes are high for your future employment rights.  Many employers are wary of hiring anyone with theft related offenses.  Also, Petty theft is considered a crime of moral turpitude wich could affect licensing with state agencies, or employement in Peace Officer positions.



One of the first factors we look at is what is the total amount of the theft.    If the allgeged theft is for less than $50.00 than your case could possibly be handled as an infraction under penal code section 490.1A which would be a very good outcome.  An infraction is not a criminal offense and is akin to a speeding ticket.  This means that even if you were arrested for a Misdameanor you could say that you were not concvicted of a Misdameanor Theft charge.  You could be subject to fines but not jail time.



For a first time Petty theft offender you are eligible for Diversion; however, there is two types of diversion programs pre-plea and post plea. 



in a pre ple diversion program you would be eligible to have your case dismissed without having to enter a plea and your case would be dismissed.  You would have to attend a Petty theft diversion program.  On a application you could say that you were not convicted of a Theft offense.  


The post plea diversion program means you would have to enter a  plea and then if you complete certain conditiions such as obey all laws etc you would have your case dismissed.  This means you would have to admit to having been convicted of a Theft related offense.  You could say the case was later dismissed. 

Some courts and Deputy District Attorneys have been reluctant to give pre-plea diversions out in new cases.  This if unortunate because if you have led a law abiding life up until the time of the theft arrest you would still have a theft conviction on your record.  Contrary to information that some Attorneys have told there clients there is no law stating that the DA must give you a diversion program.  The only time the DA must give you a Diversion program is for state mandated programs such as PC 1000 the drug diversion program that was created and mandated by the state.  Research has indicated local programs created by local authorities and not mandated by the legislature are not the same and are not mandatory by the District Attorney or the Courts.  Many Attorneys most of them new do not understand this distinction and often give out erreneous advice based upon the belief that local theft diversion programs for pre-plea diversion are mandatory.

Many Misdameanor Deputy District Attorneys do not understand this distinction and sometimes give out pre plea diversion and others do not



There is also a civil fine for theft.  This means that you may get a letter stating you must pay a civil fine.  I tell my clients to pay such fines. usually someoen that is paid is less likely to show up to court and will not cooperate with the District Attorney's office if the case goes to trial.


If you have any more questions don't hesitate to call us 5594411418.



If you have been charged with Felony Stalking in Fresno Ca or in another county I can help you as an experienced trial attorney that has helped over a thousand clients in Fresno County alone and as a former probation officer and Deputy District Attorney I know the ins and outs of the system to help you. 

The statute for Stalking is Penal Code Section is 646.9, which states

1) A person willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person; and

2) That person makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.  

For purposes of Penal Code 646.9 "harasses" means engaging in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.  Penal Code section 646.9 



Credible threat is defined as a verbal or written threat including one used by an electronic communications device.  Such as cell phones computers, vidoe recorders, 


In determining whether a threat has been made the court may look at the entire context of communications it is not necessary that the person making the threat had the ability to carry out the threat. 



Stalking is a wobbler meaning it can be charged as either a Felony or a Misdameanor.  

if you are found guilty of the Misdameanor stalking you can recieve up to a year in county jail, fines, and


If convicted you will be subject to a 10 year firearm ban.


Also, if convicted you might have to attend a 52 week batterer treatment program in addition to any other punishments


You will also be the subject of a restraining order, meaning you may not go near the person, call the person, or otherwise have any contact with the person.



If you are convicted of Felony Stalking depending on the exact type you could face a prision term of 2,3, or 4 years.  


As a convicted Felon you would be prohibited from owning or possessing a firearm


You could also be ordered to attend and complete a batterer treatment  program


You would be eligible for probation, as a term of probation the court could order you to spend up to 364 in local jail, in addition to any other terms and conditions of probation.  


A conviction for stalking makes you ineligble for a so called "local prison commitment" which means you would go to state prison.  

If you have prior conviction for stalking you will have a different possible punishment triad.

the difference would be a 2,3, or 5 year possible sentence.  

there are also some circumstances under which the court could order sex registration. There would have to be facts to indicate the registration is necessary and the court would have to make that finding.  However, if the court deems it necessary the court could decide to have the person convicted register as a sex offender.  


There is also the offense of stalking while a temporary restraining order is in effect.  If there was a restraining order, injunction, or other order restricting a person from contacting another person and contact occured this would constitute both a violation of the restraining order and a new and different crime for the stalking.  

As you can see the stalking area of the law is complex and you need experienced counsel call 559 441 1418 if you have any questions.   



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.




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. 




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.



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.


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Gerald Schwab, Jr.


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