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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.

If you have been arrested for a domestic violence offense it is imperative that you get legal counsel as soon as possible.  Even as a misdemeanor domestic violence charge or conviction can have serious consequeces on your life. 

As a former military policeman, probation officer, deputy district attorney, and criminal defense attorney, and adjunct criminology instructor, I know the system and the way to get you the very best outcome for your case.  If you have me as your attorney you are in the right place.  I have handles hundreds of these type of cases including high profile cases and cases involving complex facts and situations. 

There are five areas you need to pay attention to in a misdemeanor domestic violence case.

1. The charge itself and the penalties for domestic violence as a misdemeanor.

2. The possible violations of a restraining order which will definitely be in place upon arrest for domestic violence

3. The loss of your gun rights for 10 years if you are convicted of

4. The fact that you will have to complet a 52 domestic violence class as well as complete other terms and coniditions of probation. 

5. And as stated in other blog posts the dreaded pretext phone call where law enforcement will have your wife or girlfriend call and attempt to get you to make incriminating statements via the phone.  Yes these are believe it or not legal.

Let me digress for a minute and explain what the elements of a misdemeanor domestic violence case are:

1. Defendant committed battery upon Victim

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

PC 243 e 1

If convicted you could revieve between 0-364 days in custody. 

But as stated above a conviction even for a misdemeanor has the consequence of loss of firearm rights.

the statute states: Any person who has been convicted of a misdemanor violation of Section 243 e 1 and who within 10 years of the conviction, owns or possesses under his control any firearm is guilty of a public offense.  PC 29805.

This punishment means that you cannot have a firearm in your possession or custody for a 10 year period.

There could also under some circumstances immigration consequences which must be explained to you.

usually included in your punishment will be fines and aowp time.  What aowp stands for is alternative work program.  Usually depending upon several factors for first time offenders the aowp time will not be substantial however, you will have to do some aowp time.

WHAT IF MY WIFE NO LONGER WANTS TO TESTIFY AGAINST ME?

This is a difficult and tricky situation.  Unfortunately it is not as easy as your wife saying I no longer want to go forward.  This is often the case and the district attorney makes final determinations on cases not the wife. Sometimes there will be enough evidence outside the wifes statement to where the district attorney will go forward without her.  This could be in the form of witnesses, 911 calls, medical evidence, admissions by you, pictures etc.  And the district attorney will take all of those factors into consideration before decidiing whether or not to pursue charges.   

regardless of the situation it is important that  you seek out experienced legal advice for the situation.  give us a call and we can help you through this.  The reason that I do this job is to help people that have been put in bad situations and help them through this time in there lives.

give us a call at 559 441-1418. and we will give you a case evaluation for free.

As a former probation officer deputy district attorney, and and criminal defense attorney for more than 14 years  I have the knowlege and expertise to help you through your case. 

In criminal cases what you plead to is just as important as to whether or not you take a plea deal.

For example in a recent case we had a young lady was charged with resisting arrest 148 As a Misdemanor. 

This charge consists of three elements

1. Defendant willfully resisted, delayed or obstructed a peace officer or emegency technician.

2. At the time of offense, peace officer, public officer or emt was in engaged or attempted to engage in the performance of there duties. 

3. Defendant who willfully resisted delayed or  obstructed knew or should have reasonably known that a. victim was a peace officerr, b. victim was engaged in iin the performanceo there duites as public officer.

 

As you can tell a conviction for this offense for a young lady like our client would be devasting to her future. She was a promising student with a bright future, no trouble in her past and doing well in life. She unfortunately had to much to drink and for brief time ran from the police and was easily caught.

because she did not hurt the officer we were able to work certain things out.

 ROLE OF A PROSECUTOR IN THE MISDEMEANOR COURTS

The prosecutor and the prosecutor alone decides what charges to file in a criminal case.  Not even a Judge can tell a prosecutor what to charge. That means the district attorneys office has sole discretion on how to charge a case and what the charges will be.  However, a defense attorney can negotiate as to what those charges will be.

EXAMPLE

Going back to our earlier hypothetical with our girl above,

We negotiated to get the charge changed to disturbing the peace under penal code section 415.  This was a charge that looks way better to her future than fighting with the police or resisting arrest.

second once the district attorney has decided the case is a 415 he will be more likely to offer an infraction because there is an infraction offense to a 415 there is not an infraction offense to a 148.  This is key an infraction is the equivelant of a traffic ticket, I.E. less than a misdemeanor. 

PENAL CODE SECTION 19.8 a

Under penal code section 19.8 A person charged with certain misdemeanors may request the Judge without the persmission of the district attorney to reclassify the charge to an infraction. So in our case above based upon the facts of the case the Judge could reduce all the way down to an infraction.  There are other crimes where this could occur.

1. Petty Theft less than $50.00

2. Tresspass P.C. 555 602N

3. Failure to appear 853.7

4. Driving wihtout a license 12500

5. Engaging in an exhibition of speed

6. Driving on a suspended license usually if you obtain a license the court will reduce to an infraction.

7. Underage drinking business and professions code 25658b 25658.5

There are several other crimes that are listed in the penal code section.  They are less common crimes such as gambling

The reduction can be significant on a background investigation, and for other reasons including you cannot go to jail for a violation of an infraction offense. 

If you have been charged with any misdemeanor you should contact an attorney right away to find out what your rights are and if you can reduce to an infraction under this penal code section.   

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.

 

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
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Fresno, CA 93704
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