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If you have a current or past problem with a violation of probation.  Give us a call we can help you.  As a former probation officer, deputy district attorney, and a criminal defense attorney with more than a decade of experience handling these type of matters I can help you get throught this. The reason I do this job is to help people throught the worst times of there lives.  When there freedom can be in jeopardy because they are accused of a crime.

PROBATION VIOLATIONS

Probation violation cases vary widely depending on whether you were placed on Misdemeanor or Felony  Probation. 

Misdemeanor Probation

If you were placed on misdemeanor probation usually that means you were placed on informal probation. That distinction nowadays means less and less because the terms of probation have become so much more difficult.

WHAT HAPPENS IF A VIOLATE MY MISDEMEANOR PROBATION?

If you violate your misdemeanor probation it usually happense in two ways a so called technical violation, although I don't like this language and a new law violation. 

say for example your probation officer asks you to take a drug test.  And the drug test come back with the presence of cocaine.  This is a violation of probation.  Your probation officer will either take you into custody right away or place a warrant out for your arrest.  Once you are arrested you cannot bail out because you have a violation of probation hold on you when you are booked into the jail.  Sometimes you can plead to the violation of probation case and agree to a certain amount of time while you await charges on another case, so that the violation of probation case can be lifted and you can get bail. 

you can either admit to the violation of probation or you can ask for a contested hearing on the violation of probation.  At a violation of probation hearing the burden of proof is a preponderance of evidence, much like a civil case,  not the proof beyond a reasonable doubt standard, that is applicable to a criminal trial, and in an added twist hearsay is allowable in a violation of probation case.  therefore, these cases can be very difficult to win based on the lower burden of proof and the hearsay which is allowed. 

TIME CREDITS

Time credits always play a part in a violatio of probation case.  In other words for a misdemeanor case you can do up to one year in a county jail.  If you have already done a year on the case and you are on probation then you cant keep doing time for the violations of probation.  In a Felony case you would just be sent to state prision as discussed below. 

FELONY VIOLATIONS OF PROBATION 

in a Felony case the law above all applies except the consequences for violating your probation are much more severe. 

In a Felony case when you are placed on probation you are getting a suspended sentence.  For example if you are placed on probation for a home burglary,

you could be sentenced to 2,4 or 6 years in prison or you could be placed on probation. 

If you are placed on probation you could be violated.  If you are violated you could be sent to prison for any of the amounts of time specified above.  This means that your sentence is suspended not stayed but suspended, even on the first violation you could be sent to prison. Or you could be placed on probation again with the date that you are off probation extended, and you can try again. Or to stay out of prison if you are convicted of a violation you could be required to waive all your time credits.  This often happens because a person has waited so long in jail that they have used up all the time they could spend in local prison.

If you have any questions pleae give us a call 559-441-1418. 

Many times people will call the police regarding the actions of there son or daughter.  Many  times they just need help with a bad situation.  However, the police  getting involved in your life can be very problematic.  And could cause you to have to testify against your son or daughter, even when you dont want to.

If you are in a situation the best thing to do is to consult an Attorney as soon as possible.  As a crimnal defense attorney with more than 14 years of criminal defense experience I know the ins and outs of the system. 

The short answer to your question is yes you could depending on the circumstances be ordered to give testimony.  You can offer to the court that you have a 5th amendment right against incrimination and if the court finds that you have legitimate 5th amendment right then everything stops there.  For example the facts in the police report were false or you made a false police report. 

Now if the court decides that you do not have a legitimate 5th amendment right, the Judge will order you to testify. 

THE QUESTION BECOMES CAN I GO TO JAIL IF  I REFUSE TO TESTIFY AND I AM HELD IN CONTEMPT

The question can be a little  tricky but the answer most of the time is that you can be held in contempt, for failure to testify, but no you cant be put in jail.  The reason is that the Code of Civil Procedure under section 1219, is you have been the victim of sexual assualt, domestic violence, or severl other crimes committed by family members than you cannot be jailed for failure to testify against the perpertrator. of the domestic violence.  So in other words the domestic violence victim cannot be jailed for failure to testify agains the perpetrator.  This included domestic violence situations.

WHAT DOES THE COURT MEAN BY "DOMESTIC VIOLENCE"

"Domestic Violence" means domestic violence as defined in section 6211 of the Family Code. 

Family Code section 6211 provides:

"Domestic Violence is abuse perpetrated against any of the following persons:

A. a spouse or former spouse

b.  a cohabitant or former co-habitant

c. A person whom the respondent has had a child, where the presumption applies that the male parentage is the father of the child under uniform parentage act.

or under section E any other person related by consanguinity or affinity within the second degree. 

WHAT CONSANGUITY MEANS

The blacks law dictionary states it is a blood or kinship relationship; the connection or relation, this would include parents, and possibly other lineal descendants.  Thefefore, if you were a parent and you were the victim and you refused to testify then you would not be subject to jail time. 

You still could be held in contempt and have other liabilities.  As you can see this is a complex area of the law and you need very case specific information so give us a call if you have questions 559-441-1418.

 

 

 

 

 

 

If you have been convicted of a Felony or certain misdemeanors such as assualt with a firearm result in a lifetime ban on your owning a firearm.  If you are in this position there is several things that can be done.  But you must be very careful there is bad information that is out on the internet.  Such as get an expungement it gets your right to firearm back. That is not true and could result in your imprisonment.

Many people are baned from owning or possessing a firearm.

Felons

Certain people convicted of firearm related misdemeanors or domestic violence

people with terms of probation that require they not posses a firearm.

Also certain misdemeanors cause a 10 year ban on firearm owning, buying, possessing.

assualt battery

domestic violence

brandishing a weapon and several others.

and there are others such as narcotic addicts so forth this list  in not meant to be exhaustive.  If you are in doubt you should seek immediate legal advice before you even attempt to buy a firearm.  There is a such a thing as the Personal Firearms Eligibility Check Application that could enable you to check with the California Department of Justice to see if you are eligible to own a firearm. 

FEDERAL LAW

The federal law is enforced in the states.  What can be very confusing is that the Federal Government has there own set of laws as to firearms. When there is a conflict the Federal Law prevails.

RESTORATION OF RIGHTS

However there are some ways to get back your gun rights under Penal Code section 17 if you are a convicted Felon you could ask the court for a reduction to a misdemeanor.  This could restore your legal rights.

You must be careful here many times felons will have there cases reduced per 17b of the penal code, and they think they automatically have there rights back. However, the misdemeanor the Felony was reduced to has a 10 year ban. YOU MUST WAIT OUT THE 10 YEAR BAN.

MISDEMEANOR

If you have a 10 year ban on your gun rights you must wait out the 10 years. In California the expungement process will not restore your gun rights I know there has been some bad information put out there by people on the internet but it is not accurate when people tell you that your gun rights will be restored after an expungment.

OFF PRBATION

Sometimes there will not be a statutory gun ban  but a ban put on by the court that during the time of your probation you will not own a firearm.  You must wait until you are off probation If you are taken off probation early then  you rights can be restored do not confuse this with an expungement.

FULL AND UNCONDITIONAL PARDON

Also if you get a full and unconditional pardon you can have your gun rights restored it must be a full and unconditional pardon.  Nothing else will do.

 

Usually this is a two step proces of getting a certificate of rehabilitation and then you ask as part of that process for a full and uncoditional pardon.  Or a governors pardon there is such a thing as directly asking for a pardon from the governor. 

If you need help with this process we suggest you call us and set up an appointment.  Unfortunately there is a lot of confusion regarding this area of the law and it can cause you big problems for your future if you were  to get it wrong so call us up for a case evaluation and we can help you figure out how to get started on getting your second amendment rights restored.

 

 

 

 

 

 

 

 

If you or a loved one have been charged or arrested with Involuntary Manslaugther, give us a call and we can help you get through this in your life.  The reason I do this job is to help people get through the most difficult time in there lives.

If Convicted of Involuntary Manslaughter to, you could spend 2-4 years in prison and pay up to $10,000.00 in fines.  According to California Law Involuntary Manslaughter is a Felony. 

HOW LONG CAN I GET FOR VOLUNTARY MANSLAUGHTER IN CALIFORNIA

The sentencing range for Voluntary Manslaughter is three, six or eleven  years in state prison.  This range could be enhanced by certain enhancements such as using a gun and other enhancement such as prison priors, prior strikes etc.

If you or a loved on or friend has been charged with Homicide commonly referred to as Murder you need to seek legal assistance right away.  the area of Homicide is a very complex area.  You need EXPERIENCED representation.  This is not an area where the local DUI guy should be called to handle this matter.  I have handled more than 30 homicide cases in 5 different counties.  I have taken more than 8 to trial, including 5 first degree murder trials. 

I have recieved at least partial aquitalls in half of those cases, not counting the cases where our own investigation led the prosecution offering lesser charges saving my clients many  decades in prison. Of course all cases are different and stand on there merits alone, however, before you hire someone that has zero experience trying homicide cases give us a call. 559-441-1418.

 

SPECIAL CIRCUMSTANCES MURDER

Special circumstances Homicides are the most serious of Homicide cases.  These require some special circumstance and make a person eligible for the Death Penalty in the state of California.  Some of the special circumstances include Homicide with a previous homicide, or other listed special circumstances.  Some Attorneys have stated that 1st Degree Murder is the highest degree of Murder this is innacurate.

 

1st DEGREE MURDER 

1ST Degree Murder is Homicide with Malice aforethought.  And the added element of premiditation and deliberation. 

DEFENSES TO FIRST DEGREE MURDER

That the Homicide was committed under a rash impulsive act if someoen acted rashly and impullively then they did not act with premiditation and deliberation.

There are other defenses to first degree murder that apply to all other Homicide cases.  Such as Self Defense, Defense of Others and other defenses that I touched on in other blogs.

SECOND DEGREE MURDER

Second Degree Murder is a Homicide committed with Malice of forethought.  And the Homicide was not committed with premiditation and deliberation. 

many commentators wrongly blog that a defense to second degree murder is Manslaughter.  That is not correct.

MANSLAUGHTER

If there is manslaughter or if the person acted out of a sudden quarrel or in the heat of passion after adequate provocation, then the crime the person had committed is Manslaughter not Homicide.  This is because if the person acted out of heat of passion or in a sudden quarel or in the heat of passion then the person did not act with Malice a requirement for Homicide. 

Another way to get to Manslaughter is Imperfect Self Defense, which I went into in another blog post.  However, in short, imperfect self defense is an honest but unreasonable belief in the need to use deadly force. 

INVOLUNTARY MANSLAUGHTER

Causing a death without malice, without due caution and circumspection. 

So if you have any questions give us a call at 559 441-1418. 

 

If you have been arrested for vehiclular manslaughter you need to get experienced representation.  This is a serious charge that will most likely lead to prison sentence.  You can prove extenuating circumstances to avoid prison.  I will be going through a case study of a recent case that I handled where the young lady was convicted of vehicular manslaughter and was given probation.

All cases are different and I cannot guarantee results as to particular cases.  However, in the case I will be discussing below you can see how the process works and what the court looks for in order to grant probation.   I will be discussing vehicular manslaughter without gross negligence.  I will discuss the gross negligence element in a seperate blog.

 

FIRST LETS GO THROUGH THE DEFINITION OF VEHICULAR MANSLAUGHTER WITHOUT GROSS NEGLIGENCE

1. The defendant drove a vehicle in violation of Vehilce Code section 23140, 23152, or 23153,

2. Defendant drove the  vehicle in the commission of an unlawful act, not amounting to a felony, but without gross negligence

or

Defendant drove a vehicle in the commission of a lawful act which might produce death, in an unlawful manner but without gross negligence.

3. That unlawful act or negligent act was a cuase of the death of a human being. 

 

in sum, this means in order to be convicted of this crime the prosecution must prove that the underlying crime of driving under the influence was present .08 or above or they could have at least proven that they could convict you of what is commonly referred to as "wet reckless"

and the prosecution must be able to show that you committed a negligent act the proximate cause of which directly led to the death of another person, including a passenger.

PUNISHMENT IF CONVICTED

If convicted you will recieve either probation usually with 365 days in jail, or you can recieve either 1, 2, or 4 years in the state prison depending on the mitigating factors related to both the defendant and the circumstances of the case. 

90 DAY OP

Many times before a Judge will alow probation in such a case is after a person is sent to prison on a 90 day diagnostic.  Just because it says 90 days does not mean that is how long you will spend in prison that is just what the statute allows for. What happens in the 90 day diagnostic is a peron will be observed in the prison setting and a report will be done by two counselors and the warden to determine if the person is a good candidate for probation or if the person should be in prison.  The counselors and warden then send a report to the Judge.  The Judge will make a final determination as to probation or to send the person to prison for a commitment.

CASE STUDY

in looiking at all these factors I will tell you about a case we handles and how these factors came into play.

First our client was above the legal limit and an accident occurred where one passenger lost his life and another passenger was seriously injured. Usually this would result in  a prison sentence.  However, we were able to show the passenger did not want the driver going to prison.  And that the driver was not grossly negligent, she simply missed a turn caused the one car accident, and a death resulted.  She was negligent but only slightly I.E. no gross negligence.  Further she had no prior record, had people that were willing to stand up in court for her and she was willing to do a 90 diagnostic evaluation at state prison. 

The evaluation came back from state prision with both the counselors and the warden agreeing that she could be rehabilitated through local probation.  She was given probation. 

If you have question 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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