Prop 47… What Does It Mean?

Prop 47 is a newly passed law in California.  It reclassifies simple drug possession, and other property crimes under $950, such as theft, forgery, writing bad checks, receiving stolen property and shoplifting, as misdemeanors punishable by a fine and up to a year in jail.  The proposition purports to spend less money on incarceration and more money on treatment (for those convicted of drug possession).  Perhaps most importantly, the measure allows those currently serving time on one of the afore mentioned crimes to ask for resentencing.  However, there are some who will not be allowed to request the benefit of resentencing.  Those who have more serious criminal backgrounds such as murder, violent sex offenses, and weapons of mass destruction, are ineligible for resentencing.  It will be interesting to see the impact this law will have on the criminal defendant.  And while it is surely a relief to have these crimes reduced to misdemeanor status, the seriousness of the crimes should not be overlooked.  The court will certainly still take these crimes seriously and someone in the position of being charged with such a crime should seek the advice of legal counsel right away.

If you’ve been arrested or charged with a crime of drug possession, theft, forgery, writing bad checks, receiving stolen property, and/or shoplifting, please call me right away for your free consultation: 760-487-8828.

Do I Have To Talk to the Police Once Arrested?

NO!!!  It is of the upmost importance to know your rights once you are arrested/detained by the police.  Talking to the police, clearing up a few things with the police, or telling your side of the story, rarely if ever helps.  Most often, the police spin whatever is said to serve their purposes.  You have an absolute right to remain silent, and the right to have an attorney.  USE IT!  Tell the police you do not want to answer any questions, and that you want an attorney.  Be polite and courteous, do not run,  call them names, act aggressive, refuse to follow their directions, or fight with the police in any way.  Do not threaten the police with any type of retaliation.  You will be picking a battle you can’t win, and they can, and often will, request added charges for this type of behavior (and will usually grossly exaggerate the behavior to suit their needs).   You can also exercise your Fourth Amendment Rights if they ask to search your car/home/person/etc…, by politely saying no.  There are certain circumstances when the police can search even without your consent, so let them do so.  If they make mistakes, those mistakes can be handled in court.  Fighting or resisting the search, will only lead to more trouble for you, so don’t do it.

When police approach you, or if you get arrested, stay calm and take mental notes of everything that is happening, including any possible witnesses.  Remember what the officer said to you, and what your responses were.  Politely ask for the officer’s name and badge number.  Remember where you were, and who else was there.  As soon as you have the chance. write everything down.  Hire an attorney right away, and tell your attorney the truth about everything.  Remember if you lie, your attorney can’t help you.

If you are arrested and booked into custody, do NOT panic.  Do not talk to anyone about what happened, or the specifics of your case.  The person in jail with you, may later testify against you in court.  So, no matter how friendly or helpful they seem, do not talk about your case!  Also, if you make any calls from jail, the calls are recorded and can be used against you.  This happens a lot, especially in domestic violence type cases.

If you decide to bail out of jail, remember to hire an attorney first because this will often get you a fairly significant discount on bail (anywhere from 2% to 3%).

If you have been arrested, or know somebody who has, please call me for a free consultation.  760-487-8828

Do You Have a Warrant Out For Your Arrest?

Warrants are basically a notice sent out by the courts to alert law enforcement that someone needs to be arrested.  Warrants can be a very scary thing, but the good news is that some can be taken care of quickly and easily.  Traffic and misdemeanor warrants, for example, can most often be handled by an attorney without your presence in court.  If you currently have a warrant out for your arrest, or are not sure if you have a warrant out for your arrest, you need to contact an experienced criminal defense attorney right away.  An experienced criminal defense attorney may be able to help you maintain your freedom and avoid incarceration.  Maintaining your freedom is often times easier than trying to get it back once incarcerated.  The longer you wait to deal with the warrant, the more you risk being arrested, and having your freedom taken from you.  Judges and the court like to see individuals with warrants be pro-active in handling the warrant issue, and it will look better in the courts eyes if you take care of it before law enforcement takes care of it for you.

If you need help addressing a warrant issue, please call me right away 760-487-8828.

What is an expungement and how does it work?

An expungement is a legal tool used to remove criminal convictions from ones record.  It can be used in almost all misdemeanors, and some felonies, and probably doesn’t cost as much as you would think.  An expungement “cleans” up your record and allows you to move forward from what was most likely a very traumatizing event in an otherwise productive life.  Your case shouldn’t be over once you complete all your probation terms and your probation is completed.  There is one very important, albeit optional, final step!  Have the conviction expunged!  This prevents most private employers from seeing the conviction and allows you to move forward with your job search.  Most importantly, it allows you to move forward with your life!  Some people ask if this is something you can do for yourself, and the answer is yes.  However, since the expungement process can be both complex and confusing, hiring a criminal defense attorney is probably your best bet, and as stated above, is generally very affordable.  If you would like to have a conviction expunged, please call me right away at 760-487-8828.  Let me help put this behind you!

What’s an example of misdemeanor P.C. 148 resisting arrest?

P.C. 148 is generally known as willful resisting, obstructing, or delaying a peace officer in the performance of his/her duties.  This arrest usually occurs when the officer feels disrespected (whether the disrespect is warranted or not), or when the officer is just plain fed up with the person he is dealing with.  The challenge with this charge is that the DA has three choices to present to the jury to prove guilt.  See below for a hypothetical example:

Mary Sunshine is pulled over for DUI.  Mary is intoxicated but not out of control.  Mary gets out of her car, per the officers instructions, but refuses to answer any of the officers questions, and refuses to take any of the officers tests.  This annoys the officer and he begins to get upset — telling Mary that if she cooperates, things will be easier for her.  Mary refuses.  Officers do not appreciate being challenged, and this officer is no exception.  The officer gets so frustrated he attempts to arrest Mary for DUI.  Mary tries to pull her hands away, and struggles with the officer in attempt not to be handcuffed.  The officer then pushes Mary unto the ground, places her in handcuffs, and throws her into the back of his police car.  Once at the station, Mary is thrown in jail for the night, and given a citation which shows an arrest for V.C. 23152(a)(b) (as a refusal), and P.C. 148.

The DUI portion of this example raises a whole host of questions, which will not be dealt with here, because I would like to focus on the P.C. 148 charge only.

For the P.C. 148 charge, the DA can argue that Mary resisted (Mary pulled her hands away and struggled with the police officer), obstructed (Mary intended to interfere and make the officers job more difficult by not cooperating during the arrest), and/or delayed (say, for example, the officer was called to the scene of a robbery, after he stopped Mary, and her struggle prolonged or prevented the officer from getting to the scene of the robbery when he normally would have).  The DA can make these arguments individually to prove guilt, or collectively to prove guilt.  Remember, the jury only has to believe Mary is guilty of ONE act (resisting OR obstructing OR delaying) to be guilty.  Mary likely would not have been charged with P.C. 148 if she didn’t pull her hands away and struggle with the police officer.  So, the question becomes, now what should she do?  A criminal defense lawyer can help Mary with her situation by helping the DA understand Mary’s position, showing the DA the officer was overly aggressive, and by showing the DA Mary was really acting in self defense.  If the DA still refuses to dismiss the P.C. 148 charge, hopefully, the defense attorney can get the charge reduced.

If you or a loved one is charged with P.C. 148, don’t hesitate to contact a criminal defense attorney immediately.

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Should I hire a Private Attorney or just use the Public Defender?

For this question I will defer to a friend and colleague who explained it this way:

“If there is any possible way for you to retain a Private Attorney, you should!  Most attorneys accept low down payments and offer payment plans.  Don’t ignore the tremendous advantages of retaining Private Counsel just because you aren’t wealthy.  Your freedom and reputation are worth preserving at any cost!  Earnings, employment, relationships, education, immigration status — all can be affected by a negative outcome in Court.

Public Defenders are public servants who represent people who do not have the means to hire their own Private Attorney.  Public Defenders tend to be overworked and are often struggling to dispose of cases as quickly as possible with “standard deals.”  Private Attorneys limit the number of cases which they handle so they can give every case their full attention and therefore get you the results you deserve.

Here’s what a recent city official advised: With San Diego City Council members facing subpoenas relating to the destruction of financial documents, the City Attorney advised them to hire their own Private Lawyers at the city’s expense.  (Wouldn’t that be nice if you could also charge legal expenses to the city like that?)

A Private Attorney will do everything possible to protect you and minimize the impact of the case on your life.  You should always consult with a criminal defense lawyer, one that has experience representing people accused of the charges you are facing.  Every case is unique and you deserve an advocate fighting in your corner.  Consultations are FREE!  What possible reason do you have for not taking advantage of getting one?

Are there more advantages in using Private Attorneys vs. Public Defenders?

YES – Attention to your case! A Private Attorney has your case to appear on while a Public Defender typically has the majority of cases on the calendar that day and every day; so it’s practically impossible to give the personal attention that only Private Counsel can — the personal attention that you and your case deserve!

YES – Your time and well being!  Private Attorneys can usually appear in court for you, but a Public Defender will require that you attend each and every court appearance.  This means you will likely suffer at least some loss of income, and you will risk a “failure to appear” if you happen to miss your scheduled Court appearance.

YES – A Private Attorney will be dedicated to your case and will be intimately familiar with all of the details!  This is crucial and ensures that your case will have the optimal chance for the most favorable outcome.  Public Defenders are assigned to you.  Also, you can get a different Public Defender every time you show up to court.

YES – Reputation — Attorneys survive on it!  Private Attorneys want you to be so happy that you can’t wait to tell your friends that you had a successful experience with an excellent attorney.  Reputations grow their business!”

Although this is my friend and colleagues explanation… I couldn’t agree more!!!

What is the difference between a “regular” DUI (VC 23152(a)(b)), and a wet reckless (V.C. 23103.5)?

This is a question I get asked a lot.  Being arrested for DUI is a scary situation, and for most of my clients, it is the first (and often last) time they have been in trouble.  DUI is what is often referred to as the “every man crime.” So, first things first DON’T PANIC!  A misdemeanor DUI, while a serious and scary charge, is often nothing more than a blip in an otherwise happy, stable, well-rounded persons life.   President’s, Head’s of State, and many, many otherwise upstanding citizens have been convicted for DUI.  So take a deep breath, it will be okay.

A “regular” DUI is usually filed as V.C. 23152(a)(b).  I say “usually” because the second charge, known as the “b” count, is not always filed.  The “b” count requires the prosecution to prove that the defendant was .08 or above at the time of driving.  So, some people may be under the influence, but their blood alcohol may not be .08 or above.  Also, the “b” count is not filed for drug DUI’s (unless of course the driver also has a blood alcohol content or BAC of .08 or above).  The “a” count requires the prosecution to prove the person was a) driving, and b) doing so “under the influence.”  The sentence for a DUI in San Diego County as of this writing, may require jail time, and a probation period, an alcohol class, a MADD lecture, a visit to the substance abuse assessment unit, and fines + fees which are generally very high.  In some areas of the county, if the BAC is what the DA or City Attorney deems to be too high, you may be required to install an ignition interlock device in your car (that thing you see in the movies that people blow into to test for alcohol.  If it detects alcohol, your car won’t start, if it doesn’t, you’re good to go).  You must also be given a “Watson” advisal.  This is an advisal, generally given by your attorney or the judge, that warns you against the dangers of drunk driving and lets you know that if you kill someone while driving under the influence, you can be charged with murder.  Also, your license will be suspended, and you’ll have 2 points on your driving record.  DUI’s stay on a person’s criminal record for 10 years.  Again, this is just to give you a general idea of what you’re looking at for a run of the mill DUI conviction.  Remember, the facts of every case are different.  (Please see my results page for some of my DUI case results).

A “wet reckless” by contrast is governed by V.C. 23103.5.  Did you know that you cannot be arrested for a wet reckless?  That is because it is a “lessor included offense” of V.C. 23152, and is only used for plea bargaining purposes.  These are usually given to people who’s blood alcohol content is close to .08, the field sobriety tests are decent, and the other facts of the case are favorable to defendant.  It is important to note however, that a wet reckless counts as a prior DUI, should you be unfortunate enough to get another DUI within 10 years of the wet reckless.  The penalties are similar to a DUI, however, the DA usually does not ask for jail time on a wet reckless, your probation period may be shorter, and the fines and fees are usually considerably lower.  Also, like a DUI, you will be given a “Watson” advisal.

Last, but not least, there is a “dry reckless.”  A dry reckless in contrast to a wet reckless,  means you drove recklessly, but without alcohol in your system. Unlike a DUI and a wet reckless, this charge does not go on your record for 10 years. The punishments are generally significantly lower, and a dry reckless cannot be used against you as a prior like a wet reckless will and is therefore a better plea bargain than a wet reckless.

The Right Attorney For You.

Ms. Stephens began her career at the Riverside County District Attorney’s Office, as a

Deputy District Attorney. While at the Riverside County District Attorney’s Office, Ms.

Stephens handled well over 1,000 juvenile, misdemeanor, and felony cases combined,

as well as many felony and misdemeanor DUI’s. During her employment at the DA’s

office, Ms. Stephens received special training in the areas of driving under the influence

cases, drug cases, child abuse, domestic violence, fraud cases, white collar crime, and

juvenile cases.