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Many people belive that if they failed there field sobriety test, they are certain to be convicted. 

That question is much more complicated. 

First Field Sobriety test are only one part of the reason you were arrested.

There is the initial stage meaning when you were pulled over. 

This could be at a DUI checkpoint or

Because of bad driving.

An officer needs a valid DUI checkpoint or Reasonable Suspicion that you have violated a law or traffic infraction in order to pull you over.

You leaving a bar at two a.m. is not reasonable suspicion.  It could even be argued that puting on your blinker accidentally when no one is around to be affected by that mistake is not reasonable suspicion.


Then the offcer will usually state he smelled the odor of alcohol eminating from your breath. ( I have never seen a police report without this language) and then he has you perfrom FST's.  

The FST's as you might have guessed can be difficult for people who are completely sober. 

Currently more and more officers have dash cam vidoes called MVERs and body cam videos we either get these from the District Attorney as part of our investigation or we will serve a subpeana to get the vidoes ourselves.  What is on the vidoes is important. Such as does what the officer wrote in the report actually happen on the video?

It will certainly hurt the credibility of the officer if he stated in his report that you were doing very poorly on FST's and that is not indicated on the vidoe.

If you have further questions please give us a call to discuss your options.

A Felony Domestic Violence charge Penal Code section 273.5 is a serious charge which could affect your right to own or possess a firearm. It can even affect your parental rights and visitation orders. 

First your right to own or possess a firearm.  Unlike the Misdameanor conviction of Domestic Battery IE 243 E1 which carries a consequence of a 10 year gun ban, if you are convicted of A Felony charge of 273.5 you will lost your right to own or possess a firearm in California permanently.  You will be a convicted Felon and therefore will not have right to own or possess a Firearm, unless or until the charge is either reduced to a Misdameanor per Penal Code section 17B or pled as a misdameanor, more on that later. 


First what are the elements of the charge of 273.5 that the prosecution must prove in order for you to be convicted under 273.5. 

1. Defendant willfully inflicted corporal injury on victim.

2. Victim was either

Defendant's spouse or former spouse

A person with whom her or she was cohabitation with.

Fiance or Fiancee or someone whith whom the offender has, previously had, an engagement or dating relationship.

The mother of father of his or her child

the corporal injury resulted in a traumatic condition


what are the defenses to this charge

False Accusation

The incident did not happen in the way the complaining witness is saying it happened.

The incident was really a Misdameanor and did not involve traumatic injury

This is that many times gets overlooked by some Attorneys there clients would be more than willing to accept a Misdameanor rather than a Felony yet the Attorney never argues this to the District Attorney or the Court. 

Either the court or the District Attorney has the power to reduce under Penal Code section 17B. 


No Priors

This is an effective defense in the case of Domestic Violence because under Penal Code section 1101 B prior evidence of domestic violence can be brought in the prosecutions case in chief.  Therefore is you have no prior convictions this works in your favor because the District Attorney knows they cannot bolster a weak case with prior offenses. 

There are several other defenses available and this is not meant to be a complete list.  I have handles close to 100 hundred domestic violence cases call us to schedule an appointment.




under Calfifornia Penal Code section 1203.4 provides that once an individuals criminal record is expunged the person is released from "all penalties and disablilities arising out of that conviction"


In many circumstances a criminal conviction can be expunged from your record under 1203.4 and in some circumstances you may even get your probation terminated early the court has the authority to do so under Penal Code section 1203.3.   I have had this occur on several occassion. 

You may even be able to get your Felony Coniction reduced to a Misdameanor, and then expunged under 1203.4 at the same time.  The crime must be what is commonly referred to as a wobbler in order for you to have relief under Penal Code Section 17B.

I will look at some of the frequently asked questions regarding expungements.  

Who is eligible to get a a Calfornia Expungement.  Generally you are entitled to an expungement in the following circumstances it should be noted that these general rules are discretionary, meaning up to the judgement of the court.

1. You successfully completed probation or were terminated early from probation by order of the court.

2. Attended all required court appearances

3.  did not commit any new offenses.

4. Your are not currently on Probation or Parole for another offense.


You must file the proper paperwork with the court usually at least 15 days before the hearing. 


What an expungement will do for you

For private employment your employer cannot discriminate against you for your conviction once the conviction is expunged.

Your employer cannot inquire about the fact you suffered a Misdameanor conviction.

Once an expungement has been obtained your character cannot be impeached with the conviction, unless you are the defendant testifying on your own behalf. 


An expungement will not

End your duty to register as a sex offender.

Restore Firearm rights

Completely destroy the records.  This can only be done through a sealing of records or destruction of records, which is a completely different code section with completely different rules.


As a General Rule you can only get your records destroyed if there was an arrest with no charges filed.

or a finding of factual innocense 851. 8 which requires a  hearing.

In Juvenile Court for non 707 B offenses unde new California Laws much of Juvenile Records are reviewed after two years for possible destruction. 

You must if you are applying for a Peace Officer position or other position requirieng licenseing by the State of California admit to and disclose criminal convictions that resulted in expungement. 

You cannot expunge a conviction if you were sent to state prision.  The proper way to proceed in this circumstance would be a certificate of rehabilitation. 


What must I do to obtain an Expungement?

First we review your criminal history to make sure you are eligible.

Than we fill out the Motion and set a court date.

We attend the court date and have an order ready for the Judge to sign.


What happens after the court date?

The Judicial staff will send the Order signed by the Judge to the Department of Justice where they will do what is called an update on your criminal history commonly referred to as a RAP sheet.  it should be noted RAP sheets are not public record if  someone does a live scan it will show the conviction; however it wil also show the expungement.

If you have any questions do not hesitate to call I have helped over One hundred people obtain expungements in four different counties I can get you through this.

The answer to that question is yes.  This can occur in several different ways.

One the blood or breath test analyis that you took came back as well below the legal limit.  


Also many times DUI motions can be filed they are typically of two kinds.

1. a motion to suppress.  A motion to suppress is typically done to suppress illegally obtained evidence.  And this motion is usually done when the defense attorney believes the stop was illegal.  To pull over a car there must be reasonable suspicion some law or traffice violation has occurred.  If the officer states in his report that you were crossing the line or driving erratically and video of the incident does not show those things.  Your Attorney could move to have the evidence gathered by the police suppressed as flowing from the illegal stop.

2. An ingersoll motion.  This motion is run to challenge the legality of a DUI check point.  There is a laundry list of things which must be done to properly conduct a DUI check point.  If these things are not done and you were arrested at a DUI check point you can move to have the arrest suppressed. 


After an arrest for DUI you will be given a temporary license.  That license is good for a 30 days period.  Now you must within 10 days of your arrest schedule a DMV hearing.  If you hire our office I will schedule and conduct the DMV hearing.  And what happens at that hearing greatly affects your license.  If you lose the hearing you will get a notice of revocation of you license and they will give you the date that revocoation occurs.  Please note this is seperate and apart from your criminal court case,  I will discuss that below. 

You will have what is sometimes referred to as a hard 30 day revocation of  your license.  There are virtually no exceptions to this rule.  In fact you must do certain things to get  your license back on a restricted basis by the DMV.

First you must sign up for a first offender DUI class.  You can go to the DMV to get a referral for this.  

Second you must pay a fee to the DMV

and you must prove that you have obtained a SR 22, which can be taken care of by your insurance salesman there are also companies that sell SR 22 policies. 


Now this is seperate and apart from the Criminal Court case.  And it should be noted that if you win at the DMV hearin then any action against  your license will be halted. 


If you have your DUI reduced to what is commonly referred to as Wet Reckless Driving than you may have the action against you license stopped; however, the DMV has the final word on all actions regarding your license. 

The Criminal Court will also order a suspension of your license which may run concurrent if you pay a fee to the DMV. 

This can be confusing and you should definitely retain the services of  an Attorney to walk you through what could be a very ardous process.  The DUI process includes both DMV hearings and consequences as well as criminal and court consequences, you should think of these matters seperately and immediately call an Attorney. 

Penal Code Section 243 E is the Misdameano Domestic Violence Statute in the State of California.  The consequences can be severe for a conviction under this statute.

1. A person convicted under this statute could face a 52 week batterer treatment program.

2. A person convicted under this statute could lose there right to own or possess a firearm for up to 10 years. 

In addition there could be Jail time and fines and probation, which include being open to search and seizure, and

3. Can even affect your parental and visitation rights.

The Elements of the crime are as follows

1. Defendant committed battery upon the victim

2. At the time of the battery, Victim was the defendant's spouse or fiance, or an individual with whom defendant currently has, or has previously had, a dating reletionship.


Defenses to 243 E


There was no battery against the Victim, we had a case where a women called the poliice to report a domestic violence incident two days after it supposedly happened.  The police had already been to the house in the prior two days and did not make an arrest.  The husband broke off the relationship and she called the police to report the incident again there was no 911 call no witnesses, and no visible injuries.    Believe it or not the DA filed charges puting my clients freedom and reputation on the line. 



Usually to file charges the District Attorney will want to see certain things

911 call

Independant witnesses

pictures of visible injuries

a history of violence by the accused

Many times a client will come to my office to ask if he should wait to hire us until charges have been filed this is absolutely the wrong way to proceed. Often police have only one side of the story if we are hired early we can bring our exculpatory evidence to the District Attorney.  This may head off charges and enable the District Attorney to see both sides, unlike the story above. 


So if you are accused of Penal Code 243 E Battery call us immediately to discuss your legal options.   Many times we can start to gather evidence and protect your rights before you go through a long lenghty court process.  


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Gerald Schwab, Jr.


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Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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Phone: 559.441.1418