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Being offered probation is usually seen as a good thing and it is.  Howver, probation and the violation consequences can be serious.  If you have been arrested give me a call as A Criminal Defense Attorney with more than 13 years of experience I have handled many hundreds of cases that have resulted in probation 

First, there are two kinds of probation with very different consquences and requirements Felony Probation and Misdameanor Probation or as sometimes called bench probation. 

If you are conivcted of a Felony and have no prior history usually you will be offered probation. 

There are certain people that are inelgible for probation.  If you are convicted of a Violent Felony under 667.5 then you are not eligibe for probation.  You might recieve a stayed sentence which I will review later. 

Also, if you have serious felony, in other words a strike offense, under 1192.7 and a current felony conviction.  You are considered ineligibe for probation. 

In this case you could either get a stayed sentence, or go to a 90 diagnostic in State Prision

A stayed sentence means you will be given a prision term say for expample 5 years, but that sentence is stayed pending you successfully completing probation.  And if you violate you will automatically get that sentence of 5 years. 

A 90 diagnostic means you go to reception in the state prison system.  You will be evaluated to determine if you are a suitable candidate for probation.  Usually three different counselors will give there recommendation as to whether you are a suitable candidate for probation. 

The Judge does not have to go with there recommendation and may committ you to prison.

PEOPLE WHO ARE ONLY ELIGIBLE FOR PROBATION UNDER UNUSUAL CIRCUMSTANCES.

Under certain circumstances you could be offered probation under unusual circumstances. 

The law makes an assumption that certain people convicted of certain crimes are not eligible for probation.  except in unusaul circumstances or where the interest of justice will best be served if the person is granted probation.

1. If you inflicted gbi or great bodily injury you are presumpitively inelgible for probation. 

2. an offernse where you used a deadly weapon

an offense where you hurt or killed someoen in a drive by shooting

a grand theft of over $100,000 dollars.

There are several more crimes and this is not an exhuastive list.

HOW DO I GET PROBATION IF I AM PRESUMPTIVELY INELIGIBLE?

The sentencing Judge may look at certain factors to determine if you will be granted probation even though you are statutorily ineligible. Those are listed in rule of court 4.413.

 

These factors include the seriousness of the defendant's crime in comparison to others

wether youthful or aged

indicators of reduced culpability

The factors in 4.413 are considered to determine if the statutory limitation is overcome then the court looks at the factors in 4.414 to determine if probation should be granted.

Another factor which the court could look at is if there is presence of some mental health problem undiagnosed.  For example the person had an undiagnosed bipolar disorder and if he had been properly cared for then he probably would not have committed the crime. 

Of course there must be a psychiatrist or psyhcologist to make this diagnosis.  We often have psychologist examine our clients.

If the court finds unusual circumstances they must still go through the analysis under 4.414 to determine if probation will be granted these include:

1. the seriousness of the crime

2. wether the defendant was armed

3. the vulnerability of the victim

4. whehter the defedant inflicted physical or emotional injury

5. the degree of monetary loss to the victim

6. whether the defendant was an active or passive participant

7. whether the crime was committed under unusual circumstances such as great provocation, which is unlikely to occur

8. whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on part of the defendant,

9. whether the defedant took advantage of a position of trust.

the court also looks at factors as to the defendant such as

what is the prior record

prior performance on probation or parole

whether the defendant was remourseful

and there are several other factors

After looking at all these factors the judge can make the determination that you should get probation.

 

WHAT HAPPENS IF  I VIOLATE PROBATION

If you are on Felony probation and violate a  number of things could happen.

1.  You could be sent to state prison. and the term if up to the court.  If you are placed on probation for a felony, and you violate your probation you could be sent to state prision just for that violation. 

for example if you are on probation for vehicle theft you have a possible term haning over  your head of 1-2, or 3 years in prison if you violate your probation.  The court does not tell you which until you are sentenced they are not required to give you the minimum term. 

or if you were given a stayed term  of 1 year, meaning the judge sentenced you to 1 year in prison but stayed the term then, if  you violate that becomes your sentence. You get credit for any time you have already served against your sentence. 

or, you could have your probation revoked and reinstated under the same terms and conditions, with the same date of probation ending.  Say for example you have a minor violation of probation, or it is your first violation the court will often use this sentence and wil add some type of punishment, say time in the county jail. 

HOW IS MISDAMEANOR PROBATION DIFFERENT.

I belive the distinctions between Felony probation and Misdameanor probation are being blurred.   As a former probation officer, I have seen the misd probation become more restrictive and less like the court probation  of the past where you simply were on bench probation without many terms and conditions. 

If you violate your misd terms and conditions you could face jail time or other forms of probation depending on the severity of the violation.

Many times the probation department will put our a warrant for someoen that has violated misd probation, but never follow up and never revoke probation.  That means that if probation catches up with you 5 years later and brings you before the court the court no longer had jurisdiction of you.  This is because your 3 year term of probation has run out and altough you had a warrant out your probation was never revoked; therefore, your probation time ran out.  This is a fine distinction that most attorneys and many judges look past. 

So if you have questions feel free to call.

 

 

If you have been subpoenad for a court case usually it is becuase you are a witness that either the proseucution or the defense believes is necessary to there case.   You should contact an Attorney regarding your legal rights if you have been subpoenad for a case. 

I am an Attorney that has represented more than 100 witnesses in court cases throughout the state of California.  As  a Former Probation, Officer Deputy District Attorney and Attorney with more than 13 years of experience I can help you get through what could be a very confusing time.

 

DO I HAVE TO SHOW UP IF I HAVE BEEN SUBPOENAD

Yes you must show up for court.  If you do not show up for court after a lawful subpoena then you could be subject an arrest or body attachment wich is the order to bring you into court.    You should even if you are just a witness to a crime consult an Attorney.  The court system is complex and for many lay people incomprehensible, do not go in alone.

 

DO I HAVE TO TESTIFY

This is where things can get difficult.  If you are asked to testify again, you should seek legal counsel because as explained below your testimony could result in your arrest or being charged with a crime.

WHAT IS A FIFTH AMENDMENT RIGHT

All citzens have a constitutional right not to incriminate themselves this is whether you are an accused or a witness whether a court trial or even testifying before a Grand Jury.

If you are asked to testify before a Grand Jury you should immediately phone an Attorney.  This Attorney can find out if you have a Fifth Amendment right that should be asserted.   Not contacting an Attorney before tesfying especially in front of a Grand Jury is a very bad idea that could result in you being prosecuted. 

 

WHAT WILL MY ATTORNEY DO IF I MY TESTIMONY MAY INCRIMINATE ME

If your Attorney feels your testimony might implicate you in a criminal act then he will most likely tell you to exercise your rights under the Fifth Amendment.  This is usually done out of the Juries presence.  The Judge will hold a hearing to determine if you have a Fifth Amendment right.  If the Judge feels your testimony could cause you to incriminate yourself.  He will rule that you have a right to claim the Fifth Amendment privilege.

 

WHAT HAPPENS IF I EXERCISE MY RIGHTS UNDER THE FIFTH AMENDMENT

If you exercise your fifth amendment right then you will not be prosecuted for exercising this constitutional right.  However, the story does not end there. 

 

WHAT IS IMMUNITY

If the prosecution wants you to testify after you have claimed your constitutional rights then he must give you what is called immunity.

There are two basic types of immunity.

Use Immunity which is the more broad type of immunity and Transactional Immunity.  Depending on the circumstances you should try to get the most expansive immunity possible.  Just relying on the word of the prosecutor that he will not prosecute you is not enough.  If you are given immunity then you can testify without risk of your testimony being used against you. 

However, where things could become very confusing and even more difficult is the probleme where you get on the stand under a grant of immunity and then begin to admit under oath to crimes which could be prosecuted under a Federal Statute. 

If you were to do this the immunity grant that you signed with the local prosecutor is worthless as the US Attorney in your district is not obligated to follow that immunity agreement and you could be subject to proseuction under a Federal Statute. 

Therefore, if your case involves possible Federal charges you should involve the US Attorney in the immunity negotiations. 

 

HOW IS THIS APPLICABLE TO GRAND JURY TESTIMONY

Many people are under the mistaken impression that because Attorneys are not allowed in a Grand Jury Proceeding they cannot take the Fifth or seek counsel of an Attorney.  This is completely wrong.  You always have a Fifth Amendment right.  And before you into any Grand Jury proceeding speak with an experienced Criminal Defense Attorney not a civil Attorney that has no experience in these types of matters. 

 

 

 

 

You've been arrested for DUI and you swear you hardly had a drop to drink. Or, you don't believe the amount you drank should have gotten you to the blood alcohol level you were at the time of driving. Many people don't realize just how little alcohol it takes to make someone legally intoxicated. Here, we'll explain a bit about alcohol consumption and how women and men differ when it comes to measuring the blood alcohol content.

Below I will give a general outline of what happens after you arrested for a DUI.  If you were given a ticket to appear at a later date that is considered an arrest and citation, just because you were not handcuffed and put in a patrol car does not mean you were not arrested. 

You should seek legal advice right away.  I have been practicing criminal defense for more than 13 years and I have tied DUI cases as both  a deputy district attorneya and defense counsel.  And have more than 50 trials under my belt and more than 5 first degree murder trials. 

And have handled many hundreds of DUI cases.

First, when looking at a DUI case if you hire an attorney if in Fresno County you will not have to go to court.  Your Attorney can appear for you on a 977 basis.

At the Arraignment and sometimes before I will get your discovery, meaning police reports etc.

I will make an informal request for

Body cam

Dash cam or mvers

review reports for possible motions to suppress or ingersoll motions, an Ingersoll motion is the motion to to suppress evidence after an illegal DUI checkpoint

ask for callibration logs

and dispatch logs

I will do a thourough review of your legal rights and give you my opinion as to the merits of your case and we can make a decision as to whether or not you should go to trial.

 

WHAT IS A MOTION TO SUPPRESS

a motion to suppress is a motion to suppress evidence illegally obtained such as evidence gathered after an illegal traffic stop.  Every case is different; however, I have won motions to suppress in both DUI cases and other cases. One case saved my client from spending many decades behind bars. 

WHAT ARE CALIBRATION LOGS

Calibration logs are the logs police must keep on file to make sure the machines that measure blood alcohol are properly calibrated.  This ensures the machine is properly read your breath alcohol. Calibration logs sometimes show the operator which can be important if an officer is constantly pulling people over and claiming the objecitive symptoms of intoxication, yet the calibration logs show he is consistantly  having low bac readings when he logs in, this could cast doubt on his judgement and help your case.

WHAT ARE DISPATCH LOGS

Dispatch logs are the communications between the officer and the dispatcher these communications show what time the call was called in and what time the officer arrived at the scene and what time the arrest was made and other things which are important to show the timeline, of events and make sure that things happened the way the officer claimed that they happened. 

Only after reviewing all the evidence will a good competent Attorney give you his opinion on what your next steps should be.

1. File appropriate motions

2. set the case for trial.

In DUI cases I think even more than other cases the case is about the proper paperwork and procedure by the officer.  In other words did the officer make a bunch of mistakes in his paperwork and procedure such that the entire case should be thrown out?

 Only after looking at all the evidence can this be ascertained.  And, trial in DUI cases can be technical and more complicated than they may first appear. 

You must also take into consideration how much risk and expense there is to trial.  If you are truly innocent of all charges than you cannot plead guilty.  And regardless of the risk you should definitely consider your trial options again after we examine all of the evidence.

 

If you have any questions do not hesitate to call today.

 

 

This question is somewhat difficult and you should consult an Attorney immediately if faced with this situation.  As a Criminal Defense Attorney with more than 13 years of experience I know how difficult this situation is. 

The question posed above is again difficult and sometimes complex.  I often get phone calls regarding this question.

First, again if faced with this question you should contact an Attorney immediately.

An Attorney can help you navigate the questions and situations and sceneriors you will face.

If you do not want the case prosecuted you can have an Attorney draft a letter stating as such.   This does not guarantee that the case will be dropped. Often people believe they are in charge of the District Attorneys decision to press charges.  Many times I have had clients exclaim, I don't want to press charges.  However, the District Attorney and the District Attorney alone makes final decisions about these decisions not citzens. 

However, if you make it plain to the District attorney that you do not want to testify, or will not testify the prosecution will have to make the choice of whether they have evidence outside of the victims statement sufficient to obtain a  guilty verdict.

If the victim was always needed then nobody would ever be found guilty of Murder, because obviously the deceased cannot testify. 

The 911 call

independant witnesses

Your prior taped statements in some cases,

The photographs of the injury and any emegency statements can all be brought in to prove the charge of domestic violence. 

Oftentimes in domestic violence cases either Felony or Misdameanor this type of evidence is not available.  Therefore, the testimony of the victim is critical.

VICTIM IS ONLY WITNESS TO THE DOMESTIC VIOLENCE INCIDENT.

Sometimes the there is none of the above referenced evidence.  In these type of cases the victims statement is vital to the prosecution.  It should be noted that if you as the victm testified at the preliminary hearing and then decide to stop cooperating the preliminary hearing testimony may under certain circumstances be used in court.

WHAT IF I AM SUBPOENAD TO COURT

If your are subpoenad to court you must comply with the subpoena to court.  You again, you should show up to court with an Attorney if you are concerned about your legal rights or do not want to testify. 

WHAT HAPPENS IF I REFUSE TO TESTIFY

If you refuse to testify after being properly subpoenad to testify you could be held in contempt of court.  However, in the state of california domestic violence and certain other victms cannot be jailed for contempt of court for refusing to tesity against there abuser.   However again as stated above you can and possibly will be jailed for failing to comply with a subpoena.  These two issues are many times confused even by inexperienced counsel.  You should not follow the advice of an Attorney that is telling you to merely not show up to court if you are subpoenad this is not correct legally and could land you in jail.

SO WHAT IS THE RESULT IF I AM HELD IN CONTEMPT FOR NOT TESTIFYING IN COURT

Again, in the state of california you will not be jailed; however, there could be consequences to being held in contempt of court.  First, there could be a record of the contempt order and hearing in court are open to the public this means that your employer, and prospective employers may find out about this contempt order.   

If your are a peace officer or law enforcement officer this could affect your employment. However, I have never heard of this happening.  I have had a client that was a medical doctor and had employment problems because of her contempt order it seems her employer thought her behavior was not in compliance with what they wanted the public to see and she was not offered a position in part due to her dysfunctional lifestyle that they believed would inevitably spill into her work life.  This is the only time I have heard of this happening.  And there could have been other factors at play in that employers decision. 

DO NOT COMMIT PERJURY

It is never ok to commit perjury.  Lying on the stand is not ok under any circumstances.  Even if an Attorney tells you to do this.  If you are going to testify in court because you don't want to be held in contempt tell the truth and let accept the outcome.  You should never trust the advice of an Attorney that tells you to lie or tells you what to say on the stand. 

Besides if you get on the stand and tell a different story than the one you told originally you will be impeached with your prior testimony and you will be opening yourself up to perjury charges and possibly jail, if your new story is a lie.  The jurors will see past your lie.

WHAT IS IMPEACHMENT

Impeachment in this context means your prior statement can be brought in.  The prior statement is not hearsay as it is an inconsistant statement and not hearsay.  You will be asked about that prior statement and then the police officer or person you gave the prior statement to will be called as a witness and you will be impeached. 

WHAT IF MY FIRST STATEMENT WAS NOT TRUE

If your first statement was not true or your husband or wife was defending himself when the abuse allegedly occurred, then you must get counsel immidiately you may have your own charges to worry about and have a legitimate 5th amendment right not to testify.

WHAT IS A FIFTH AMENDMENT RIGHT NOT TO TESTIFY

You cannot be held in contempt for simply exercising your 5th amendment right not to testify.  If you believe your first statement was either not true or somehow implicates yoou in a criminal act such as assualt you may refuse to testify.  You cannot be held in contempt for excercising your constitutional right under the 5th amendment. 

The Judge will hold a hearing to see if you have a legitimate right under the fifth amendment.

WHAT IS IMMUNITY AGREEMENT

The prosecution sometimes will offer immunity from prosecution in these types of situations.  If you are given immunity from prosecution you may be ordered to testify.

If you have any questions about this sometimes complicated area don't hesitate to call I have helped many hundreds of people in the same or simiiari circumstances.

 

There are two reasons the police would want to interview you.

1. you are a witness to a crime

2. you are a suspect in a crime.

 

In either instantance you should retain the services of an Attorney before making any statements.  Many people believe wrongfully that if the police want you to make a statement or be interrogaged you must speak with the police.  This just wrong.  You are under no legal obligation to make a statement to police or Federal Agents.  If you do make a statement to Federal Agents that is false you could be chaged with lying to a Federal Officer this is again another reason you should consult an Attorney before you agree to make any statements to the police. 

Police Officers are trained interrogators, many people think they can simply outsmart the police or talk there way out of things.  The police are not required to tell you the truth and many times use suberterfuge to obtain confession.  In fact I have personally watched well over 150 interrogations of all sorts and have rarely seen the police not use subterfuge, or false statements.  

 

Well wouldnt the police have to read me my rights if I am interviewed.  It depends.

The only time a police officer is required to give you Miranda Warnings is when certain factors are present.

1. Police Dominated (it must be a government agent) 

2.  Custodial (you must be in custody ie a reasonable person would not feel free to leave)

3.  Interrogation (something reasonably likely to elicite an incriminating response)

 

Notice that no where above does it say you must be read your rights after being arrested because you dont. 

often the police will arrest you and not read you your rights because the detectives want to read you your rights because if you invoke your rights all questioning must stop.

and the officer arresting you often does not want you to do that so he will not read you your rights.

Getting back to the original question of should I talk to the police.  Many times the offier will conduct the interview in a manner in which he does not have to read you your rights such as at your home, ie not in custody therefore, no Miranda warnings are needed. 

If you make statements to that officer they can and will be used against you regardless of whether you were read your Miranda rights because you are not in custody and Miranda Warnings are not needed.

The police are usually working on a set theme of how they believe things happen.  I have seen detectives simply disregard obvious exculpatory evidence that does not match with there set theme of how they believe something happened.  Thus another reason you should immediately obtain legal assistance if you are being asked to give any type of statement to law enforcement. 

That is not to say  that I you should never give a statement to law enforcement, there are certain circumstances where after speaking with an Attorney the Attorney will have you speak to police if he believes it is in your best interest to do so. 

Sometimes the Attorney will provide a written statement to police rather than have you make an in person statement.

Or if the Attorney feels there is nothing you could possibly say that is incriminating he may allow a statement, usually these type of meeting will  occur in the presence of an Attorney and the Attorney can always stop the interview, or only agree to allow the answering of certain questions. 

As you can see the decision of whether or not to make a statement to police can be complicated, call us immediately if you have any questions.   

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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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