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

Call for a free case evaluation.
Push Here

Contact Us

Send us a quick email

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

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.  


The Crime of Homicide is a very complex area of the Law.   If you or a loved one are charged with a Homicide offense; you should definitely have the servcices of a experienced Homicide Defene Attorney.   I have handled more than twenty Homicide cases and have personally tried more than Five First Degree Murder Trials.  I have also tried eight complex trials concerning Wilfull Deliberate Premiditated Attempted Murder.  I have won aquitalls on Attempted Murder cases, as well as partial acquitals on several First Degree Murder cases.  Lets look at the law of Murder. 

For the prosecution to prove a Murder charge  there must be an Intentional unlawful killing of a human being by another without justification, and Malice.  Lets look at those factors one at a time. 

The killing must be Unlawful  in other words the killing cant be done in self defense or in the defense of another person. 

Self Defense is present when a person reasonably believes he or someone else is in danger of death or serious bodily injury. 

Example: John walks up to Jim with a Gun and points the gun at Jim.  Jim fearing for his life pulls a knife out and kills John this is an example of self defense. 

There must be Malice for a killing to be Murder.

Malice is present when a person intends to kill a person. Or two factors are present the physical factor:  A person did an act IE the physical act that was inherently dangerous to human life.  And   willfully disregarded that danger IE the Mental Element.    

Even if the prosecution has proven Malice beyond a reasonable doubt they still have another Element to prove before a person can be held liable for First Degree Murder, and that is the killing was done with additional elements.

The Murder must have been done with with Deliberation and Premiditation.  Premiditated Muder is what the prosecution must prove.  They do not have to prove any specific period of time.  Premiditation can happen quickly.  However several factors can be taken into consideration as to wether a crime was premiditated or simply a rash impulsive decision.  If a person acted rashly or impulsively it is less likely that they acted with deliberation and premiditation.  


Provocation can reduce a First Degree Murder to Second Degree Murder and Second Degree Murder to Manslaughter lets first look at the effect provocation has on First Degree Murder.  Provocation can reduce a First Degree Murder to Second Degree Murder.  This is because if a person was acting out of provocation than they are less likely to be acting out of deliberation and premiditation.  There is a Jury Instruction that deals with this given to Jurors when deliberating First Degree Murder cases. 


So to recap if a person is acting out of provocation or rashly and impulsively and wihtout deliberation or premiditation the killing is not First Degree Murder. 


Second Degree Murder

Second Degree Murder is the unlawful intentional killing of a human being by another with Malice.  Malice is the same as explained above. 

the main difference from Murder in the First Degree, is that Second Degree Murder does not require deliberation and premiditation, only that the killing was done intentionally not accidentally and that killing was done with Malice.

Defenses to Second Degree Murder

Provocation can reduce a Second Degree Murder to Manslaughter. 

Example any provocation that would make a person act without due cuation.  For example a man suspects his wife is cheating and comes home to find her in bed with another man.


if a person accidentally kills another person he is not acting with malice and cannot be guilty of first or second degree murder. 

Self Defense or Defense of others like first degree murder if you reasonably believe in the need to use deadly force to protect your life or somoene elses life you are not guilty of First or Second Degree Murder. 

There are several other defenses to Murder in the first and Second Degrees this is not meant to be an exhaustive list, rather a basic outlne. 

lets looks that the offense of Manslaghter

Manslaughter is an intentional killing without Malice.

Many Attorneys believe that Manslaughter somehow negates Malice this is not true if somoen is acting out of Provocation uppon Sudden Quarrel or in the Heat of Passion

or in Imperfect Self Defense than they were simply acting out of provocation sudden quarrel or in the heat of passion or in imperfect self defense not out of Malice there is no negation Malice is simply not present. 


Lets start with Provocation

lets continue with the example of the man coming home and finding his wife in bed with another man that is provocation if he kills the man he was acting out of provocation rahter than Malice of course depending on other factors.

Heat of Passion

an intentional Killing that occurs upon provocation that would provoke a reasonable person to act with passion, and that killing occurs before the killers passions have cooled has occured under the heat of passion and is Manslaughter.

Again the example of the man that comes home to find his wife in bed with another man.   If he was to kill the other man before his passions had cooled he has the defense of Manslughter.  However, if he left cooled of talked to his friends for a while the defense may not work because his passions may have cooled.

Imperfect Self Defense

If a person acted out of Imperfect Self Defense rather than out of Malice the crime is Manslaughter.

Imperfect Self Defense is when a person honestly believes that he must use self defense but that belief is unreasonable.

if a persona honestly believes he has the need to use self defense to protect his life or someones elses life from death or serious bodily injury even if he was unreasonable in that belief the crime is Manslaughter

Example:  John sees Mike who he knows does not like him Mike has made previous threats against John, and John knows Mike is capable of carrying out those threats.  they see each other and John kills Mike who he believed was reaching for a gun.  Even though this belief was unreasonable becuase John honestly believed he needed to used deadly force the crime is Manslaughter.       

If you've been arrested and charged with “battery domestic violence” (BDV) you could be facing severe penalties in addition to dramatic upheaval in your family and professional life.

California's law against carrying a concealed weapon, Penal Code 25400 PC, makes it a crime for most members of the general public to carry a concealed firearm on their person or in a vehicle.

Schwab photo

Gerald Schwab, Jr.


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