WE HAVE THE ANSWERS

Common Questions

Can police officers ask to search my parked car without probable cause?

Police officers can ask to search your car. However, you have every right to say NO! One of the problems these days is that cops will make something up to give them justification to search your vehicle. If they are going to arrest you for a crime they have observed, or otherwise have probable cause to search, they do not need your permission. That they asked for your permission means that they know they do not have probable cause and are taking a shot in the dark that they can intimidate you into giving consent (a way around the 4th Amendment) and will find something in your vehicle for which they can arrest you. Politely and calmly say no, you may not search my vehicle, and try to diffuse the situation. When you say no, that may upset them, but it is your only protection.

What can I do if someone has falsely accused me of sex with a minor?

Go speak to a criminal defense attorney. Do not post any information about your situation on any social media sites. If the cops call you, or want you to come down to the station so they can ask you a few questions, neither talk to them on the phone nor go to the station without an attorney present. If you say anything to them, even something that to you may seem innocent or by way of explaining that you did nothing wrong, you will most probably incriminate yourself. You have a right to remain silent and a right to have an attorney present before any questioning – assert those rights! Which means again, that you should talk to an attorney as soon as you can.

Can I be charged with drug possession if I was just a passenger in the car where the drug paraphernalia was found?

Depending on the case specifics, I wouldn’t be surprised if the District Attorney decided not to file charges. In any event, assuming charges have been filed, speak to a criminal defense attorney to review your case. And don’t be surprised if the police reports do not give the same version of the situation as you recall. Officers know how to write reports and testify so as to support an otherwise invalid search and/or arrest. Make sure you do not make any statements to the cops (from now on) without an attorney present.

Can the victim convince the District Attorney not to dismiss a case during pretrial hearings?

The alleged victim can assert rights under Marsy’s Law. One of the alleged victim’s rights is to state his or her objection in court to the plea offer or dismissal. A judge can, but rarely does, refuse to dismiss a case that the DA moves to dismiss.

Are you required to disclose felony convictions to your employer? What if it’s expunged?

If the application states that you must disclose expunged convictions, you must do so. Once the conviction is expunged most employers will not be able to find out about the prior conviction and you are legally permitted to state that you’ve never been convicted of the crime.

Will accepting a strike on my record lead to a reduced sentence?

No. A strike is defined as serious or violent under the Three Strikes laws. For a violent felony, the person must do 85% of the time imposed. A first offense for a serious felony, although also a strike, will still make the person eligible for 50% time on the first offense. A second qualifying offense means the person must do 80% of the time (unless it is a violent felony). A skilled lawyer familiar with the case facts and situation can advise best how to proceed.

My 15 year old daughter was charged with battery of an officer. What are the possible outcomes?

It depends on the extent of the injuries and if weapons were used. Juvenile courts tend to emphasize rehabilitation over punishment when possible. If your daughter didn’t use a weapon and there were only minor injuries or no injuries to the officer, the court will likely set the focus on having your daughter not reoffend. She may be ordered to attend anger management. An attorney with knowledge of the juvenile system will likely be able to help you and your daughter achieve the best outcome possible.

My underage son was questioned without a parent or attorney present. Are his statements admissible in court?

Law enforcement can question a minor during an investigation without a parent being present. The minor can refuse to answer questions from law enforcement or can ask for a parent to be present. The law regarding admissibility of a defendant’s statements is complex. Hiring an attorney experienced in handling juvenile matters is the best option.

My 15 year old son is being charged with assault with a deadly weapon, including gang enhancements. Should I hire a lawyer?

Yes, you should get a lawyer – the sooner the better. The seriousness of the injuries, and the gang enhancement make this a violent felony with significant consequences and a potentially lengthy “prison” term.

I’m trying to get a felony welfare fraud conviction off my record but they say I need to pay restitution. What does this mean for getting it expunged?

The issue is whether you have successfully completed the terms of your probation. One of the terms appears to be that you pay restitution of the government benefits you improperly received. If you haven’t paid the restitution, you have not successfully completed the terms of your probation and you will not be entitled to an expungement. If you were to complete payment of all restitution and have otherwise complied with all other terms of probation, you would likely be entitled to an expungement.

Is selling knock-off name brand items illegal?

Yes, it is illegal under 18 United States Code Section 2320. The penalty is based upon the value of the infringed item (which is the genuine item, such as Gucci or Chanel) instead of the value of the infringing item (the fake). It is punished similarly to a theft. Advising a potential customer that it is a knockoff is not a defense to the charge, but may be taken under advisement when sentencing.

I was charged with assault and battery. Will I be arrested?

Possibly, but that depends on several factors. Are the charges for a felony or misdemeanor? Have you ever been in trouble before? Was the “victim” seriously hurt? Is there a warrant outstanding? If there is a warrant, you will want to get that recalled by placing your case on calendar. An attorney can help you figure out all of this and assist you as the case proceeds (or doesn’t) through the system.

How many years is someone facing with multiple counts of armed robbery, even though the gun was unloaded?

In California, in excess of 50 years. Under the “10-20-Life” laws for gun use, a 10 year enhancement can be assessed for each victim on whom the gun was used, plus 9 years for the robberies. Of course, these cases depend on the facts, especially regarding the gun use. You need an experienced criminal defense attorney in this case and make sure they are licensed in California.

My son was charged with Grand Theft Auto. What are the possible outcomes?

If your son pleads to auto theft, Vehicle Code Section 10851(a), there are five possible sentences for that crime: (1) felony probation with up to one year in jail; (2) the mitigated term in prison, which is 16 months; (3) the middle term in prison, which is 2 years; the aggravated term in prison, which is three years; (4) the aggravated term in prison, which is 3 years, or (5) a misdemeanor, which carries up to one year in prison. Most first offenders get felony probation. The outcome is dependent on the history or the individual and the facts of the case.

Can a felony weapons charge (PC 12020) be reduced to a misdemeanor?

The charge of Penal Code Section 12020 is a charge that can be reduced to a misdemeanor. Prosecutors and judges will typically look at the defendant’s history of violence, or lack thereof, and the facts of the case to determine whether to reduce a felony weapons charge to a misdemeanor.

What is commercial burglary?

Commercial burglary is a charge that can be either a misdemeanor, punishable by up to one year in jail, or a felony, punishable by up to three years in prison. Commercial burglary is entering a business with the intent to commit a crime, such as theft or fraud. You may be charged with this crime, or with petty theft.

I’m under 21 and was arrested for a DUI in California. Even though my case is “pending”, is my license still suspended?

If the blood results come back at under .01 you may be able to petition DMV for the return of your license. You may also be able to petition for a restricted license if you qualify. But your troubles are not over. “Pending” means that the prosecutor has not filed any charges yet with the court. This is common when they do not have the blood results back from the lab by the time you were to appear in court. You should consult with a criminal defense attorney to assist you with these matters.

Does the DMV typically suspend a driver’s license for a DUI – Drugs charge?

The California DMV has two methods for suspending your license. One is through a DMV hearing. The DMV only suspends through this process for a driver who requests a hearing if the driver is 0.08 BAC or higher, not for legal or illegal drugs in the blood. The second method by which the DMV issues a suspension is if there is a conviction in court. For a DUI alcohol and for a DUI drugs the court submits an abstract of judgment once the plea is entered and the DMV then uses the conviction to suspend the driver’s license.

My girlfriend has been charged with a felony DUI when a person in the other car was injured. Is it possible to have it reduced to a misdemeanor?

DUI’s are charged as a felony if someone other than the driver was injured. It is also the type of crime that can be reduced to a misdemeanor, even if initially charged as a felony. If your girlfriend doesn’t have prior DUI convictions and the person who she hit was not badly injured, his/her attorney should make every effort to have the matter reduced to a misdemeanor. If she pleads to a felony and the matter is reduced to a misdemeanor after you complete probation, she’ll still have been convicted of a felony.

There are a number of things that can be done to help try and move it to a misdemeanor and a criminal defense attorney with a skilled team will be able to help you with the next steps.

How long will a DUI conviction be reportable on a DMV driving record?

A DUI conviction can be used a a “prior” DUI for 10 years from the date of the offense for determining minimum punishment in any future DUI case. This means that if you picked up a second DUI within 10 years of the first, it would be considered a second conviction. If it was more than 10 years, it would be treated as a first offense.

I was arrested for a DUI with a .11% BAC. What should I expect?

Different counties punish cases differently and some judges punish more harshly than others. Your best course of action is to have your attorney get an indicated sentence prior to entering the plea. Your attorney has more leverage prior to entering the plea, since judges have pressure to move their calendars.

Most counties allow you to serve your time on a first-time DUI in some form other than jail time. This could include a work program, in which you’d pick up trash on the streets. It’s important to speak with an attorney to better understand the specifics of your case.

I am 19 and was charged with “minor in possession of alcohol.” What is the possible punishment I face? Will I lose my license?

If you plead guilty to a minor in possession of alcohol, you will lose your driver’s license for one year. Some prosecutor’s offices are more lenient than others. If you can get a conditional plea you may be able to avoid the loss of your license. Usually, a conditional plea will involve you pleading guilty and having the sentencing hearing set out for six months to a year. During that time you’d need to have a clean record and typically complete some community service and likely also a alcohol education class. On the day of sentencing your case would be dismissed if you complied with all of the conditions.

Can I be convicted of conspiracy and possession for sales without any actual drugs or drug-related paraphernalia being found?

Without some actual drugs in your possession – constructive or actual – you cannot be convicted of a possession charge. However, you can at least be charged with conspiracy, which is simply an agreement with an act in furtherance of the object of the agreement. These cases depend on the facts and that is why it is important to speak with skilled criminal defense attorney.

Should I enter a drug treatment program before my next scheduled court date without the judge’s consent?

The judge will want you to get help with your drug use issues, but working within the requirements of the drug laws and procedures is the key to your court case. Depending on your circumstances, you may qualify for drug diversion or “Prop 36” treatment, which will require court and probation participation. Your program may or may not qualify. Unless the court orders you into a program you may not get full “credit” for it. There are ways an experienced criminal defense attorney can coordinate all of this, so it is best to work with him/her to receive the full benefit.

I was wrongfully arrested on a felony drug charge now my entire life is screwed up! What can I do?

The best advice we can give you right now is to see a criminal defense attorney as soon as you can. There are many questions to ask to decide where you are in the process and what is the correct course of action to take. If there is a warrant outstanding that will be the first thing to tackle; you don’t want to get arrested before you have a chance to speak to an attorney.

What can I do about a Drugs DUI if I was never given a blood test but failed the field sobriety test?

Without a test, it will be nearly impossible for the case to be prosecuted. We say ‘nearly’ because if the officer observed some poor driving, smelled marijuana, and you performed poorly on the the field sobriety tests, a case for “under the influence” could still be charged. However, it will be very difficult to prove without some evidence of alcohol or drugs in your system. It is important to note that a medical marijuana card does not give you the right to drive with marijuana in your system.

Can I leave California while enrolled in a Prop 36 treatment program?

You should look at the court order from your Prop 36 sentencing. It should state whether you have travel limitations. A common term of probation, including Prop 36 probation, is that you are not to leave the state without first getting the permission of your probation officer.

How soon can I have a felony removed from my record?

Many states have expungement statutes, including California, that allow a person to have a crime erased from their records for most purposes. You may apply to have a conviction expunged if you were granted probation and you successfully completed probation. If you were sentenced to prison, you are not eligible for an expungement.

What factors does a judge use in determining when to strike a strike?

There is not a single factor, but length of time between a previous strike and the current offense is one. This only comes into play when there is a current offense. A judge does not simply strike an offense from the record after the passage of time. People vs Romero is a case that allows a judge to strike any past convictions and sentence the defendant to less time in jail than a normal Three Strikes conviction might call for. This does not mean that the felony conviction will disappear from your record. Consult an attorney for more specific guidance.

What can happen if I provide false information to the police?

If you provide false information to a police officer, you could also be charged with making a false police report (a misdemeanor).

If you are charged with conspiracy to commit a crime, will you be charged with doing the crime?

Yes, if the crime was actually committed. If it wasn’t actually committed, then they will only charge the conspiracy, which is essentially an agreement between two or more people to commit a crime, with at least one act towards doing so. That agreement does not require the crime to actually be committed.

I am a physician and was stopped and arrested at a DUI checkpoint. What are the implications toward my medical license?

You are correct, this can have an impact on your professional license. You should have an attorney look at every aspect of the situation – including a review of the licensing issues – to reach the best possible outcome. A full review of the cast with an experienced attorney is the best option.

Do I need a lawyer for a DUI charge?

An attorney skilled in DUI defense can be of great assistance, even if the attorney is unable to get a dismissal or a “not guilty” verdict. The attorney can work for a more favorable sentence, advise you on the DMV consequences, and represent you at DMV hearings (which a public defender cannot do). A private attorney will also work with you to minimize increases in the cost of insurance. In the event you are convicted of a DUI, the attorney can advise you on how best to obtain an expungement of the conviction at the end of probation.

How does Prop 36 affect possible charges and punishment?

If you go into the Prop 36 program, you plead guilty and are sentenced, but if you complete the program you can petition to have the case dismissed.

What is Drug Diversion?

Drug diversion goes by different names, but they are all the same program. It is referred to as Deferred Entry of Judgment, PC 1000 (Penal Code 1000 is the code section that authorizes the program) or simply “drug diversion.” This program is the first option if you are going to plead guilty. Drug Diversion allows you to enter a guilty plea but no sentence is given. Instead, you attend a drug rehabilitation program (which can include meetings, in-patient or out-patient treatment, depending on whether you are addicted and depending upon the degree of addiction), and then when you successfully complete the program you case is dismissed.

Have you previously been convicted of a crime and now want to apply for a professional license?

There are numerous things you can do to increase your chances of successfully applying for a professional license. These include petitioning the court to have a felony conviction reduced to a misdemeanor. You also have the right to seek expungement of a criminal conviction for which you successfully completed probation.

Is it necessary to hire a local attorney for a professional licensing matter?

No. Unlike a criminal case, which often involves multiple court hearings, the vast majority of the work performed by your professional licensing attorney is performed in the office by letter and by telephone. A large portion of the matters in which a board files an accusation is resolved by a settlement, rather than by having a hearing before an administrative law judge. Even when a hearing does occur, it would require your attorney to travel only for this one occasion. It is much more important that you have an attorney skilled in professional licensing than it is to have an attorney who lives in your locale.

Can the same attorney handle your criminal and professional license matter?

If you have been charged with a crime, it may be beneficial for the same lawyer to represent you in the criminal matter and the matter before the licensing board. Due to geographical limitations, however, it may not be practical to do so. Criminal cases often involve numerous court appearances, and it may not be cost-effective to hire an attorney to represent you if that attorney resides a long distance from the court in which you are being prosecuted. If you hire someone else to represent you in a criminal matter, it is beneficial for your professional license attorney to coordinate with your criminal defense attorney at an early stage of the proceedings. Your lawyer can consult with your criminal defense attorney about issues involving plea bargaining and sentencing that may affect your professional license.

How to find the right attorney for my criminal case?

You can look up the profiles of the attorneys you are interested in on Avvo. Most offer free initial consultations, so you can call or consult with them to see which one you like. There are other resources such as Super Lawyers and Martindale.com that can help you find a highly qualified attorney.

My husband just learned that he has a warrant for a parole violation. How much time will he have to serve in jail?

There are a variety of factors that can affect the length of time he could receive on a violation of probation. Start by looking at the sentencing report prepared by the probation department. It will state the amount of time they’re recommending if the judge sends your husband to prison. The probation department will also prepare a one or two page document with a recommendation of sentence on the violation. The judge is permitted, however, to leave your husband on probation and not send him to jail at all. If the judge uses this option, your husband could receive local time in jail, adult offender work program or electronic monitoring. A criminal defense attorney will be able to help you fully understand the implications.

What is the statute of limitations for filing charges?

For a misdemeanor, charges must be filed within one year of the date of offense. For a felony, the minimum statute of limitations is three years, for some felonies there are longer statutes of limitations, and for murder there is no statute of limitations.