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If you have been arrested or are being investigated for Domestic Violence you should call our office right away.  As a defense Attorney with more than 14 yeaars of experience, I have handled hundreds of Domestic Violence cases.  Including many cases that have been dismissed, reduced, or won at trial.  i do this job to get people through experiences like being arrested.  I can get you through this call us a at 559 441 1418.

If you were arrrested for domestic violence you will be served with a restraining order, you will have to give up your guns and if found guilty or if you plead guilty to any domestic violence related offense you will have to complete a 52 week batterer treatment program.  And you will have a 10 year period of not owning any guns.  There is an exception if you are in a job that requires that you possess a gun, such as law enforcement.  However,  a Judge will usually want a full hearing before making any decisions on your ability to own or possess a firearm if you are a law enforcement personell.

Restraining orders will almost always be given in cases of domestic violence sometimes there will be two different restraining ordes one for the criminal case and one for any civil or family law cases that may be ongoing.

Felony or misdameanor, the dfference between being charged with a Felony or a Misdameanor is very important in a domestic violence case. 

If you have been charged with a Felony and you recieved a ticket it will say on the ticket whether the crime is a Felony or a Misdameanor and a court date. 

If you were taken to jail and bailed out it will say on both the ticket and the paperwork the charges and the court date that you have after  being bailed out.  It is important  that in the time in between being arrested and having a court date if not before you contact an Attorney. 

There are several reasons for this but one big one is, as mentioned above, there could be a restraining order in affect, you need someone to help you through the maze that the court process could sometimes be and pretext phone calls

WHAT IS A PRETEX PHONE CALL?

A pre text phone call is a tool often used by law enforcement in both sex cases and domestic violence cases.  It usually occurs like this you will have a restraining order against you but she will not have a restraining order against her.  This means that she can and will call you to tape a phone call between you.  This calll will then be used agasinst you if you make a ny admissions. 

Usually it will happen where she will ask you certain questions such as how could you do this to me:

Your response can and will be used against you. for two reasons

First because she does not have a restraining order against her she can call you whenever she wants. Secondly  usually taped phone calls in California cannot be used against a person unless they both consent.  However, the exception to this rule is when the call is made at the behest of law enforcement or when domestic violence is involved. So often these admissions will be used against you.  This is why you need legal representation right away.  Often I hear Attorneys tell prospective clents come back once charges are filed.  No this is not the right answer for exactly the reason just stated.

Also law enforcement may attempt to interview you.  You should not be making statements to law enforcement until you have spoken to an Attorney. 

Domestic Violence cases are very complex and you need to call us right away.

If you have been convicted of a misdameanor many people think that there is nothing to do to try and clean up there record. Well there is, as an Attorney with more than 14 years of experience in criminal law I have helped many people clean up there records.  Now all cases are different, but in most cases there is things we can do to help you get on your path to making things look better for you.

But, at the outset one thing I want to make clear and where I think there is some misconcpeptions out on the internet and even some advice I have overheard from other Attorneys is that this process of early termination of probation and expungement means there records will be destroyed and nobody will ever be able to find them.  Anyone telling you this is wrong.  What will happen is that there will be an update to your records showing a termination of probation and an expungement if that happens at the same time. This can be a confusing process and despite the self help law out there you should always consult with a licensed Attorney regerding your legal issues. 

I will discuss below the motion to terminate probation early and briefly discuss how this goes with the expungement process under penal code section 1203.4

EARLY TERMINATION OF PROBATION

California Penal Code section 1203.3 (a) provides in pertient part:  "The court may at any time when the ends of Justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, discharge the person so held."

Ordinarily, a defendant who has either satisfactorily  completed the probation period or has been discharged before termination is entitled to have his or her guilty plea expunged and accusations dismissed.  1203.4

Before any term of probation can be modified, a hearing msut be held in open court before a Judge.  The prosecuting Attorney msut be given two days written notice and an oppurtunity to be heard on the matter.  If there is a modification, the Judge must state the reasons for that modification on the record.  Before issuing an order terminating probation, the court or its clerk must notify the probation officer in writing of the court's intention to terminate probation. 

 

WHAT ARE THE STEPS OF THE PROCESS

STEP 1 EVALUATE IF YOU ARE ELIGIBLE

What we would do is evaluate whether you are eligible for this type of relief.  We look at have you completed the court- ordered sentence, paid all fines and restitution, and finished all counseling requirements.  This includes any additional terms imposed at the time of the conviction.  

PAPERWORK REQUIREMENTS

We will file all the necessary paperwork for you if we are your Attorney of record.

These include:

Notice of Motion and Motion to Terminate Probation

Points and Authorites in Support of Motion to Terminate Probation

Declaration in Support of Motion to Terminate Probation

Order Terminating Probation

 

We will then make copies of all your documents and supporting documents

We then file the documents with the court clerk and

then

SERVICE REQUIREMENTS

After the documents are filed with the court clerk, we give the stamped copies to the District Attorneys office, probation department, and this service must be done at least two days before the court date usually we will serve the District Attorneys office and probation department way earlier than two days before the court date. 

we will complete the proof of service form which shows that you have complied with the service requirements then all that is needed is for you to personally be present at the court appearance if the District Attorneys office has no objection they will serve a brief no objection, if the da does object they will file a formal response.

 

Again this is meant for informational purposes only and your case may be different. 

 

If you have been arrested for Domestic Violence you should call the law office of gerald schwab. 559-441-1418.  With more than 14 years of experience in criminal law, I have the experience to help you in what can be a very complex are of self defense in domestic violence cases. 

If you have been arrested for Domestic Violence in Fresno Ca or anywhere else in the State of California you should know that you do have defenses if you have been charged with domestic violence charge.

Because of the domestic violence protocals law enforcement must arrest and take to jail suspects in certain circumstances.  These include if there is visible injuries and there are several other circumstances where the officers must make an arrest.  The effect of this law is that sometimes the wrong people actually end up in jail.  we have defended several people where the initial aggressor ends up either slightly injured or severely injured after attacking our client.  We have even had cases where the initial aggressor has made admissions to our investigator that they were the original aggressor and the arrested party was only defending themselves.

 

SELF DEFENSE IN DOMESTIC VIOLENCE CASES

Just like in any other battery type of case self defense is a defense to the crime of domestic violence.  People in this country still have a right to defend themselves although it seems some legislators in California and other places seem to be upset about this.

You have the absolute right to defend yourself using reasonable force against an aggressor.

EXAMPLE

Debbie and Mark and involved in a verbal argument after a night of drinking.  They come home and Debbie launches an attack against Mark accusing him of flirting with another women present at the bar they were having drinks at earlier in the evening. Mark shoves her away before she can cause any damage, eventually he grabs Debbies arms and leaves bruises on her arms.  Debbie runs into the bedroom and call police. Police arrive see the bruising no damage to Mark and take Mark to jail. 

This scenerio plays out all the time. We have had clients beaten and threatened and verbally assualted defend themselves only to be jailed there gun rights taken away, and put through the legal system based upon nothing more than the above mentioned scenerio. 

This is why you  need an experienced criminal defense attorney to help you through this type of situation or you can end up with severe penalties.

Even for a misdameanor conviction you will be ordered to complete a 52 week batterer intervention program, lose your gun rights for a period of ten years.   and even if the charges are changed to different charges if they are considered domestic violence related you will still have to complete the 52 week batterer intervention program and lose your gun rights.

Also you could have a restraining order placed against you and have your parental rights affected.

Now one thing to note is that the avbove scenerio relates to reasonable force in other words you cannot use more force than is necessary to protect yourself. 

EXAMPLE

Your wife or husband pushed you and you knock them out with one punch.  A Judge or a Jury will have a hard time believing that you used reasonable force under these circumstances of course depending on the size of your signiificant other and other factors. 

The main poin is that you should not ignore your defenses or the very real consequences to  your conviction of domestic violence.  In fact if you have questions give us a call at 559 441 1418 so that we can sit down and do a case evaluation.

 

If your husband has been arrested for domestic violence you do have certain rights and responsbilities.  And you should seek legal advice to explain your legal rights and responsibilities.  This area of the law can be very complex and difficult to naviagate.  Nothing in this article is construed to be legal advice as to specific legal issues which should be discussed right away with an experienced Attorney.

If your husband has been arrested you can call us we have helped many women through this difficult and complex time in there lives when they need competent and complex help with the legal system. 

DO I HAVE THE RIGHT TO AN ATTORNEY?

Yes you do everyone who has a legal problem should consult an Attorney especially in this difficult and complex are of a the law. 

DO I HAVE TO ATTEND A COURT DATE IF I HAVE BEEN SUBPOENAD?

YES.  noboby in this country has the right to disregard orders of the court if you have been subpoenad rather than ignore the sub and end up in jail you should immediately contact an Attorney and get a case evaluation as to your rights.

DO I HAVE TO TESTIFY AGAINST MY HUSBAND

YES.  If you made a statement to law enforcement you cannot simply  say I take it all back and now wish this goes away.  Many women mistakenly think that they or other private citzens are the ones that decide to "press charges" this is a figment of television.  The District Attorneys office and the District Attorney office alone will make this decision.  However, many district attorney's offices will take into consideration wether or not you will be cooperative in making the decision of whether or not to proceed.  They will always take into consideration whether or not there is other evidence such as 911 call independent witnesses a taped confession, picutures.  It is not true that if the victim does not testify the case will be dismissed.  This is true only if there is not enough independent evidence to get a conviction, again this is 911 calls, witnesses, there could even be prior instances that may come into play at a trial. 

WHAT IF I REFUSE TO TESTIFY CAN I GO TO JAIL

NO. there is both statutes and and case law that protect you if you  absolutely refuse to testify against your husband.  You can be held in contempt of court and that will go on your record, but you will not be put in jail.  Some Judges give you an oppurtunity to get the contempt charge off your record in certain circumstances.

Also you could be fined for the contempt. charge

WHAT IF I HAVE A 5TH AMENDMENT RIGHT NOT TO TESTIFY?

You will be excused from testifyiing if you have what the Judge considered a legitimate 5th amendment right agains self incimination.

 

again give us a call if you have any questions 559-441-1418

Domestic violence cases can have a huge impact on your rights.  Your right to own a firearm, vote, and even see your children can be affected by  a domestic violence conviction.

If you have been arrested for domestic violence offense you should immediately seek experienced representation.  As a former probation officer deputy district attorney with more than 14 years of experience, I can help you with your case.  give us a call at 559-4411418, this article is meant as a general information and is not meant to be legal  advice as to specific circumstances. 

ARREST FOR DOMESTIC VIOENCE.

If an arrest occurs for a domestic violence case many things happen at once and can be very confusing to someoen especially someone that has not been throught the stystem before. There is what is called the domestic violence protocals which mandate how domestic violence cases are handled statewide.  This means that if there is visible brusing or injury it is almost certain there will be an arrest.  This is because the police departments could be sued or lose funding if certain steps are not taken usually which inlcude an arrest.

RESTRAINING ORDER

A domestic violence restraining order will be issued.  Usually for a period do 5 days.  During this time it is important that you do not break this restraining order this includes contact through a third person. We will discuss bail below but just the contact can even through a third person can be a violation of this restraining order.  Also if charges are filed a criminal protective order will be issued and the family law court cannot make an order changing this restraining order.  I have actually seen Family Court Judges attempt to do this, they should not be doing this and is very confusing to all parties and a violation of statute.   The bottom line is that, the criminal restraining order takes precedent over everything else and should be obeyed regardless of what other advice you recieve.   If no charges are filed you should make sure there is not either an extension of the original order or a new and different restaining order out somewhere.  I have seen this occur several times.  Charges will be dismissed and the Arrested person thinks that there is no longer a restraining order outstaning against him only to find there is a civil restraining order, or family law order.  Sometimes while pending criminal charges a criminal defense attorney will advise you not to fight or to put off a hearing until the criminal case is over.  This does not mean that restraining order went away it will simply be dealt with after your criminal case.

If you are convicted of any Domestic Violence related offenses you will be given an up to 5 year restraining order.  It can be lifted at sometime in the future if you are doing what the court orders.  Many times the court will want to hear from teh protected party before lifting any restraining orders. 

As you can tell the process and the restraining order process for the different types of restraining order can be complex and confusing contact an Attorney right away. If you violate a restraining order in Domestic Violence case you will be and you are out of bail you could be jailed wihtout bail.  Do not make this mistake.

MISDAMEANOR ARREST

If you have been arrested for  a domestic violence misd. offense you will be given a ticket with a court date.  At this point you do not have to worry about bail.  however, other than the fact you have a less serious offense the rest of the case will be handles very similiarly to a Felony. 

FELONY

If you have been arrested or a Felony you must bail out of jail or be released at your court appearnnce on either or or pre trial release.  The court will take into consideration your prior history, if any, and your danger to the community in setting bail amount.  Please read my blog on bail for more information on that. Again give us a call so we can give you a case evaluation.

 

 

 

Many times  I have clients come into my office that need help undertanding just what will happen now that they have been arrested for  a DUI.  Often people will call different law offices for advice.  Only to forget the advice the minute tney leave the office.  This article is not meant as legal advice and you need to hire an Attorney to go over the specifics of your specific case.  I have helped over a thousand clients over 14 years of work.  I do this job to help people get through what for most of them if some of the worst days of your life.  Give me a call if you have questions after reading this article.

 

First, as in some of my earlier aricles where I go over the specific things the officer is needs for an arrest this will be much more general.

First you will obvioulsy be pulled over the officer needs reasonable suspicion to pull you over.

Or you could be ensarned in one of the so called sobriety check points.

 

IF YOU ARE ARRESTED

You will be given a ticket with a court date, and you will be given a temporary license.  That license is good for a 30 day period, or until the completion of your DMV hearing.

now the thing to remember here is that you should think of the process as two prongs the court process and the DMV process. 

You must make an appointment with the DMV within 10 days if you fail to do this you waive the right to a hearing. Even if you do not have an Attorney at this point make sure to at least schedule the hearing.

 

FIRST COURT APPEARANCE

Your first court appearnce date will be written on the ticket.  On the front.   Again this is separate from the DMV process. 

Many people believe this first court appearnce is there trial.  it is actually an arraignment.  If you hire an Attorney you do not have to be personallly present for that hearing. Your Attorney can do what is called a 977 appearance.  If the District Attorneys office has filed charges then you will have those charges read and you will enter a plea, or your Attorney will enter the plea for you. 

PRE TRIAL HEARINGS

You or your Attorney will schedule a pre-trial hearing to gather the police reports, cameras, body cameras, the calibration logs, for all instruments used in the stop and or arrest.  We will also gather call logs, and dispatch logs and begin to build our defense.   We look over all the paperwork and procedures used by the police to make sure they used the proper procedure.  The more mistakes the officers make the less sound there case is.  Many times juries in DUI cases will aquit if the officer made to many mistakes.

I have tried many Murder cases where the officers have made sometimes literally a hundred different errors, and the jurors are willing to look past this and convict becuase it is a murder trial.  It is not supposed to be that way but unfortunately it is. However, when an officer makes a lot of mistakes in a DUI case the jurors are much more likely to aquit.  This is just the truth.

TRIAL

If you decide to go to trial we will set the case for trial and proceed to trial.  Unlike your other appearances you must be present for the trial.  I could write several blog post on the trial process, having tried more 5 first degree murder trials and having both prosecuted and defended DUI cases; however, those will have to wait for a different blog. If you have questions call me at 559-441-1418.

Schwab photo

Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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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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