FAQs

Your attorney will be advising you throughout the case and encouraging you to gather documentation and evidence that will help mitigate (reduce) your sentence. This documentation could include character letters or letters of recommendations from friends and family, awards from your job, proof that you are enrolled in school and getting good grades, pay stubs showing that you are working full time, a letter from your immigration attorney regarding possible consequences of a conviction, and so on. Our office will ask you to provide us with anything that will help to mitigate your sentence or that may help in negotiating a better resolution.

One thing that is helpful is if the client DOES NOT pick up any new arrests while they have the current case pending. Picking up a new case while there is one active will aggravate the situation rather than mitigate it.

Alternative punishments for going to jail would be conditions such as getting an ankle monitor for a client or enrolling in an inpatient treatment program that is similar to being in custody. The client would typically need to be in a situation where they are being monitored, required to be in a specific location, and abide by a curfew.

Another alternative is weekend jail, where the clients actually turn themselves into jail but they don’t serve straight time. Instead, they serve their time in chunks – they may report to the jail on a Friday and be released on a Monday, and then go to work and stay at home throughout the week. Weekend jail is a good alternative for those who need to serve the time but are the sole breadwinners or have young children.

The Sherriff’s Work Alternative Program is another jail alternative. Rather than going into custody at a jail the client will report for duty at the Sheriff’s office and clean up on the side of the road for a full day of work. This roadside cleanup counts towards the jail time. There are plenty of alternatives to actually going into custody and serving straight time and we strive to keep our clients out of jail so they can go on with their lives and start putting this chapter behind them.

Finding someone that is willing to provide you with information, communicate with you, and be involved—not just in the case, but in your life are qualities to look for. One of the big things that our office focuses on is a holistic approach. We get to know our clients, and we don’t want to see them return under the same or similar circumstances. We not only address the case, but we address the person in hopes that they will not end up in the criminal justice system again. This could mean helping them find the right type of treatment, walking them and their family through the process, or even just giving them a hug when they need one. Oftentimes, long after the case is over, we receive photos, visits, cards, and surprises from our past clients because they become part of our team family and we genuinely enjoy hearing and celebrating the successes in their lives after the bump in the road.

Some of the red flags to look for with an attorney:

1. They are guaranteeing an outcome. This is a red flag because attorneys are ethically prohibited from guaranteeing any outcome in a case. Nobody knows what’s going to happen, and we cannot promise or guarantee that something will happen for certain when there are so many unknowns and possibilities.
2. Attorneys who fail to communicate. The attorney is nonresponsive and difficult to reach by email or phone and you cannot get an appointment.
3. Attorneys who don’t get to know the potential client during the consultation – they aren’t taking the time to find out about you, about the reasons why you are in search of an attorney, and how this is going to affect your life and your family. It’s indicative of how the process is going to be throughout the life of a case.
4. An attorney that doesn’t show up to court on time and doesn’t keep appointments.

I think the approach that we take sets our firm apart. We leverage technology to provide a streamlined and efficient process for our clients. Our electronic process is designed to make our client’s life easier and make things more convenient for them. We take on the heavy load, so that a client can get back to doing what they are supposed to be doing, whether that means taking care of their family, getting into treatment, or going to work – that is what their time should be focused. We focus on the case, communicate with them, provide them with documentation, and respond to their questions with as little disruption to their daily lives as possible. We make ourselves accessible through our electronic system, and we genuinely care about them and the outcome of their case.

Another thing that sets us apart is we are honestly not going to take on every single client that walks through the door. That’s primarily because we want our clients to set and maintain goals for their future and we want to be a part in helping them achieve those goals. Potential clients that are not interested in making a life or a lifestyle change, are not willing to follow the office policies and procedures, or those who are not polite or cooperative with staff are not best suited for our office. Clients who really want an attorney who is going to fight for them, care for them, empower them and create a relationship based on trust are specific types of clients that we are interested in helping.

Typically when you are released from custody, you will leave with papers telling you what to do. For example, if you are getting released pursuant to a DUI, then you will usually walk out of jail with a pink form regarding your driver’s license, a yellow citation regarding any traffic violations that occurred and a promise to appear telling you when you have to be in court, and at what location. You will be able to pick up your property, as long as it isn’t being held as evidence.

For more serious cases, where you are held in custody, you’d actually have to go to court before getting released. At that time, you’ll leave with a copy of your complaint, if charges were filed against you. The complaint is a document that says what the charges are, how many counts, where it occurred, who the alleged victim is, and what the DA is accusing you of doing. You will also receive information about your next court date and if it is a case that involves a victim (i.e. abuse, assault, etc.) then you will likely receive a criminal protective order which is a form that orders you to stay away from the victim. If you or your family did not contact an attorney while you were in custody then you should immediately contact a skilled attorney, like those at our office, upon release.

In cases that involve a victim or a witness, you cannot make contact with them. You can’t encourage them in any way to change their testimony or to lie, or to ignore a subpoena, or contact them to apologize. This is probably one of the more common things that people don’t realize, or that people don’t comply with.

The other thing to consider is whether or not a criminal protective order was issued at your arraignment. Sometimes that criminal protective order says that you are not allowed to have contact with the victim even if that victim is your wife or child. If you live together, you’ll have to find someplace else to stay and you won’t be able to communicate directly or through a third party. That is where an attorney would come in – we can let the court know that the victim wants to reconcile and wants to have communication and contact with you. If the victim appears in court to state the same then we will be able to ask for a modified order that allows for peaceful contact and does not prohibit communication or interaction or request that no orders be issued at all.

Whether you have a criminal court appearance in the first month after arrest depends on your county. If you are in custody, then you will definitely have an appearance within the first month – usually within the first 48-72 hours. At your first appearance on a felony matter you’ll likely have your preliminary hearing set within 10 days unless you waive your right to a speedy trial. If it’s a felony, and you are in custody, then you will likely have court multiple times within the first 30 days. If your case is a misdemeanor or a misdemeanor DUI, where you were cited and released or taken into custody and released 10 to 12 hours later – you would have received a notice to appear. The notice to appear is usually for a date 30 to 45 days in the future.

Many times people will show up to court on their Notice To Appear date, and no charges have been filed at that time. What that means is that the DA has not filed charges yet. They have until the statute of limitations expires to file charges – this is usually a year for misdemeanors and three years for most felonies (sometimes longer depending on the charges). You will be released from custody and then you can expect to receive a notice in the mail that charges have been filed and to appear in court or an arrest warrant will be issued. The notice that charges are involved can come at any time in between the discovery of that crime and the date the statute of limitations expires. We know that it can be anxiety inducing to sit around and wonder what’s happening with your case and whether you are still being investigated so our office offers a service where we will track and monitor the case for you on a weekly basis. We give our clients immediate notice if charges do get filed and make arrangements to appear at their first court date. We also inform the clients if the DA has decided to reject the case and forego charging due to insufficient evidence or in the interest of justice. It is far better to have an attorney checking in on this than waiting for something to arrive in the mail or police to arrive at your doorstep – we offer our clients a peace of mind during the process.

How often you should expect to meet with your attorney in the first 30 days really depends on your attorney’s office, and the type of case that you are charged with. We are lucky enough to have a system that makes it convenient for clients to communicate and engage with us electronically, to message us, to check their documents, and to look up their next court dates. Many times it’s not necessary for the client to come into the office in the first 30 days because there is so much communication that can be done online. In addition to that, with misdemeanor cases, until the charges have been filed and the arraignment actually takes place, there is not much that is going on within the first 30 days besides information gathering.

During the initial stages, we are working on getting our hands on the discovery. We are pre-trying the case, negotiating with the District Attorney, and seeing if there are any motions that need to be filed. It’s not until roughly midway through the case when you can anticipate meeting with your attorney on a more frequent basis, whether that’s to prepare for a hearing, preparing for a trial, or to prepare for a negotiated disposition. During the first 30 days, we do need to conduct an extensive intake about your background, your priors, what happened the day of the accusations, your family, your education, your community involvement, and your immigration status. This intake is far more in depth than you initial intake and consultation. This way, you and your attorney can get familiar with one another, and your attorney can discover any mitigating circumstances that could be helpful in dealing with your case.

For more information on Aftermath Of Release From Jail, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (510) 779-2082 today.

If your petition is denied, then you can apply again at a later time. If you filed a request for early termination and dismissal, then you could wait until you’re off of probation, which may just be another year or two depending on the length of the probationary period. You can go above and beyond by staying out of trouble, not violating your probation and meeting the terms of your probation.

It’s really helpful to make a showing of the extra things that you’re doing, whether that’s community service, volunteering in the community, mentoring people or becoming increasingly involved with your religious institution. Those types of things can have a persuasive effect on the court as long as they are sincere and not done for purposes of getting off of probation.

Most cases end up not charged by the District Attorney in the first place, dismissed, or negotiated with a plea rather than going to trial. There is a lot of time and expense that goes into the trial, and sometimes there is a lot of risk in going to trial, if the client is presented with an appealing offer many times they decide that going to trial is not the avenue they want to take after weighing their options. Many would rather resolve it and explore their post-conviction relief opportunities at a later time, such as applying for early termination of their probation, reduction of the offense, and a dismissal after a year has passed. If a client is convicted but they stay out of trouble and meet the terms and conditions of their probation, after a year has passed they can petition to have the matter terminated early and dismissed. Often, this is a more appealing route for the client rather than going to trial.

Many times when the matter is dismissed, clients just celebrate the fact that it didn’t result in a conviction, and they don’t have to report it as a conviction on most employment applications. Some clients want to take it one step further, and try to seal and destroy the arrest record. They can do that by filing a motion for factual innocence, pursuant to penal code 851.8. What they will do is hire our office to seal and destroy a record, by way of a motion that includes declarations, character letters, points and authorities and other supporting documentation. Ultimately a judge will make the decision of whether to grant or deny the petition. If the judge finds that you were factually innocent then the record will be sealed for 3 years then destroyed.

Here is an example of factual innocence: Let’s say your sister was arrested, and used your name and your identification during the arrest. It came out later that you weren’t actually the person arrested because the fingerprints didn’t match but now that arrest is appearing on your record. We can petition the court to declare you factually innocent of the crime so that the record of arrest can be sealed and destroyed from your record.

The point of time at which sentencing occurs depends on whether or not time guidelines have been waived. You have the right to be sentenced at a later time then when you actually take your plea. It can be from up to 6 hours to 5 days later in misdemeanors. Usually what happens is that time is waived, so that your sentence can be taken right away, and you can start your probation at the time of sentencing. You can start meeting the terms and the conditions, and the time starts ticking on the one year that needs to pass before you can turn around and apply for early termination of probation and an expungement (dismissal).

In felony cases, what typically happens is that sentencing gets put over so that your matter can be referred to probation, your attorney and the District Attorney can submit a sentencing letter, and a probation report can be prepared. If you are out of custody then you will typically remain out of custody on a Cruz waiver – what that means is that you must (1) appear at your sentencing date (2) meet with probation before your sentencing and (3) not get in any trouble between your plea and your sentencing date. If you violate any of the terms of the Cruz waiver then you can jeopardize the deal that was previously negotiated. When you return to court, the judge, your attorney, and the District Attorney get to review the report that was created by probation and their recommendations, along with any letters that were submitted and then your sentence will be imposed.

What probation means is that in lieu of going into custody, the potential maximum sentence is being suspended so that you can stay out of custody. Let’s say you are sentenced for a DUI, and it included two days at the county jail, to be served through the Sherriff’s Work Alternative Program. A first DUI offense has a maximum of 180 days in custody, and you were sentenced to two. You served one day, on the day that you were arrested, and the other one you just cleaned up on the side of the road. So now, there are 178 days hanging above your head that you could potentially have served in custody. (180 Possible – 2 Served =178 Remaining).

However, pursuant to your negotiated disposition, you were granted probation. You were given certain conditions to meet, and so long as you comply with those conditions, you will never have to serve those 178 days in custody – but if for some reason you violate your probation, meaning you are caught drinking or driving again, or you get arrested for some other offense, or you refused a chemical test, or you don’t do your DUI school, or you don’t serve the second day that was ordered for you to serve, etc. your probation will be violated and you can be sentenced up to the remaining 178 days in custody. Typically, you’ll be sentenced in increments, 10 days here, 30 days there, 45 the next time. The punishment for violations will incrementally increase so that they can continue having a balance of time hanging over your head through the duration of your probation just in case you get caught slipping.

Depending on the individual case, I would recommend counseling or treatment before the first court date. If this is a DUI case, and let’s say it’s a second or third DUI, it would probably be very beneficial for you to go on your own accord to an AA meeting or an outpatient program. The judge may ultimately order it as part of sentencing if you are convicted or may even require it as a condition of your OR release (staying out of custody while your case is being litigated). It can also help for purposes of mitigation, by showing that you are taking this crime seriously or that you are making efforts to address the issue – like alcohol or substance abuse in a DUI. In some other cases, let’s say it’s a battery case or domestic violence case, sometimes it is advisable to get into an anger management program or to talk to a therapist about what happened if you concede that this is a pattern of behavior that you may need help addressing.

Sometimes a client may feel remorseful or may want to take accountability for their role in the offense but in many situations, it doesn’t necessarily mean that a person is guilty of a crime, or that their participation in counseling is indicative of guilt. However, if this is a matter where the client is adamant that they are innocent of the crime or that they want to fight their case until a jury decides the outcome then there may be no incentive for them to attend counseling classes – evaluating the client’s goals and desired outcome is imperative in advising on whether or not to enroll in counseling or treatment.

Having a good job and a clean prior record would be considered mitigating circumstances. The whole purpose of punishing people for crimes should be to prevent recidivism, to introduce them back into society as productive members of society, and seek rehabilitation. It is often the case that this is a client’s first offense and their case has stemmed from an isolated incident. They have a job, they have a family they are caring for, and they are already a productive member of society. With that in mind, having a job or a clean record can play into the offer negotiated with the DA and the ultimate sentence in a case if convicted—whether or not time is spent in custody, on an ankle monitor, or on Sheriff’s Work Alternative Program. These factors can be considered as mitigating factors to penalties and often they can be used to secure Deferred Prosecution or Deferred Entry of Judgment resolutions – these are alternatives to convictions which lead to a dismissal after the client has made some effort to “work” for the dismissal (for example: staying out of trouble for 90 days, attending Narcotics Anonymous and then dismissing or staying out of trouble for 12 months doing community service and staying away from where the incident occurred). These are just two examples of a wide variety of resolutions that could be achieved with a skilled defense attorney, like the lawyers at The Nieves Law Firm, negotiating on your behalf.

I would never advise anybody to just throw him or herself at the mercy of the court without consulting with and hiring an attorney like the attorneys at The Nieves Law Firm. The purpose of hiring a skilled criminal defense attorney is to have someone who will advocate on your behalf, empower you with information so you can make educated decisions, and mitigate the negative outcomes. Even if you think that you’re guilty and you are willing to take whatever you can get, there is probably something your defense attorney can do to make your disposition (outcome) better. There are ways that we can try to negotiate for lower custody time, potentially negotiate for a lower DUI school, less anger management classes, or to have you charged with an infraction rather than a misdemeanor or to get a misdemeanor rather than a felony.

Even if you don’t want to go to trial and fight it, you still want to have an attorney on your side, who can get you the best resolution possible. Your attorney is going to be more familiar with the inner workings of the courthouse, the courtroom, the DA, and the judge than you are. Another thing to consider with throwing yourself at the mercy of the court is, the judge is very limited on what he or she can do on a criminal complaint. If you are charged with 3 or 4 counts in a complaint, the judge isn’t able to dismiss the remaining counts and allow you to just plead to one. You have to plead to how it’s charged on the complaint, every single one, so you could turn around and end up with multiple convictions that could seriously hurt your future if you don’t know what you are doing.

When we negotiate with the District Attorney, we are sometimes able to get multiple charges dismissed or reduced. It’s highly recommended to hire an attorney who knows what he or she is doing, before taking a deal. The attorneys at The Nieves Law Firm are skilled in negotiating and fighting cases. We have over 30 years of combined experience and are focused on goal setting with our clients, educating our clients, and fighting for the best outcome we can achieve.

Prior arrests and convictions will definitely be taken into consideration by the DA when it comes to extending an offer to resolve the case with a plea and when it comes time for sentencing. It’s also important to know that some prior charges will actually enhance the penalties of a new offense. For instance, DUI offenses are priorable, meaning that if you have a DUI within 10 years and you pick up another DUI, this is no longer a first offense. It’s now a second offense. This means that the penalties automatically start at a harsher position because the prior conduct exists. This can result in more jail time, longer DUI school, and additional consequences, which could include having to attend AA or even an outpatient program. The same is true for felony conduct, especially if the prior is a strike where your exposure automatically gets doubled if you pick up another offense.

There are serious collateral consequences to take into consideration when there are prior offenses, especially if the client is not a citizen of the United States. Even with a first offense, we are now in the territory where the client could potentially be deported, excluded from the United States or be denied naturalization based on the charged offense. When we are talking about second offense crimes, even with misdemeanors it could put them in a category where that will potentially start removal proceedings. Because of this, priors can definitely affect the outcome of a case, and it’s important that the client is very honest with their attorney about what that prior conduct was, even if they think it wasn’t important. You will want to hire an attorney who can successfully navigate a case involving prior arrests or convictions and effectively inform you of your options and help you attain desirable results.

Miranda Rights come into play when you are in custody and being interrogated. If you are pulled over for a DUI, and the officer is doing pre-field sobriety test questions, meaning they are asking you questions on the side of the road but you haven’t been placed under arrest, they are conducting an investigation and they don’t have to read you your Miranda Rights. Miranda applies when you are actually in custody and being interrogated—handcuffs have been placed on you, you’re in the backseat of a police car, you’re sitting in an interrogation room, and so on. If the officer starts questioning you about the incident, he needs to give you the Miranda warnings first. You would have to give an explicit waiver of those rights before you answer any questions, and before they can interrogate you.

If you have not been placed under arrest and you are not in custody Miranda is not required. If you have been arrested and you have been transported but no interrogation takes place then there’s no reason to give you Miranda warnings because you aren’t being questioned. If an officer wants to question while in custody then Miranda is required.

You will have to be arraigned, or see a judge before you are released from jail. Typically, you’d be brought into court within 48 hours, and the District Attorney would have to file charges against you. You would be transported to the jail, and you would appear in front of the judge from behind a glass window or barred area. Your attorney would speak with you beforehand, either in the client interview room in the back or through a jail visit – depending on how early you retained their services. Your attorney would appear in court with you, and make an argument to the judge regarding your custody status, whether you should be released on your own recognizance, or if bail should be reduced, and for what reason. Then typically you would enter a plea of “not guilty” so you and your attorney have an opportunity to investigate the case further, inform the court whether you want to waive your right to a speedy trial, and pick a future date to return to court.

One of the most common mistakes we see people make is saying too much to the police. You have the right against self-incrimination. You are not going to talk yourself out of an arrest, nor are you going to talk yourself out of the investigation. It’s really important to remain silent, as you have the right to do so.

Another common mistake that we see is that people are not informed about what they have the right to refuse during a DUI investigation. For instance, you have the right to refuse to do the preliminary alcohol-screening test (the roadside breath test) if you are not on probation for a prior DUI. You also have the right to refuse the field sobriety tests.

Finally, another mistake we see is the response our clients have with the investigating officers. A lot of times, people will get angry or belligerent with the police officers and start arguing or resisting during the process. Yes, you are entitled to an opinion and yes, you have the freedom of speech but let your attorney advocate for you when you hire one. Depending on your actions, your uncooperative behavior could be construed by a police officer as resisting – which is loosely defined as obstructing or delaying a police officer while he is trying to carry out his lawful duties. For example, if an officer asks for your ID and you do not provide it then this can quickly and unnecessarily escalate an encounter.

Bail and bond are interchangeable terms. Bail is set at your arraignment. There is a guideline schedule bail chart in your county, which will indicate to the judge what bail should be set at. What that means is how much money should be hanging over your head, to ensure that you are going to show up in court when you are ordered to appear. The court wants to ensure that you are not going to pose a flight risk or run away, and that you are not going to be a danger to society while you are out. The bail is what is going to hold you accountable for that. A bail will be set and you can either post bail in full or hire a bail bondsman. Let’s say your bail is set at $25,000, you can pay $25,000 to get out of custody and stay out of custody, so long as you comply with the conditions of your bail. Alternatively, you can get a bail bondsman to bond you out, meaning that they will post on your behalf. You will pay them a percentage fee, usually about 10% and then the bail bondsman will post the entire amount with the courts to get you out. The percentage you have to put down depends on the individual bail company’s payment plans, whether you qualify for any discounts like a military discount, or if you hire an attorney and receive a reduced rate.

The importance of hiring a criminal defense attorney as early as possible is evident from the practical and emotional side. Practically speaking, hiring an attorney early in the case means being able to access the documentation and discovery with ease, being able to have your questions answered, having a skilled advocate with experience negotiating your matter with the District Attorney, and having someone there who can advise you on the appropriate pace for litigating the case. For example, if you were charged with a felony case and you were out of custody, there would be little reason to speed the case along if it is going to result in the client going in to custody – keeping the client out of custody is a common goal and sometimes aging the case may be appropriate. Having an attorney who can help you determine how fast or slow a case should go is valuable.

The emotional or mental perspective mentioned above is also a significant reason to hire an attorney early in the process. When you have an attorney like those on The Nieves Law Firm team you will partner with people who care about you, your goals and the outcome of your case. We take the time to answer your questions, empower you with information, and work towards a holistic result that not only takes care of your case but sets you up with an action plan for the future. The peace of mind you receive from hiring an attorney early on is invaluable.

Many times, whether or not we take a case to trial hinges on the client. Can the client be patient with the amount of time and preparation that it takes to get to trial? Is the client’s expectations managed about the number of court appearances that are involved? Is the client prepared for the expense that is involved, not just with the trial but potentially hiring experts and hiring an investigator? Is the client determined to defend their innocence? Managing the client’s expectations is crucial – for many of our clients it is the first time they’ve ever been involved in the court process and they just need someone who will take the time to explain “what happens next” and to educate them on the pros and cons. If a client is willing and ready to go forward with the trial then we are eager, resilient, and tenacious about defending them in front of a jury.

As far as taking a plea offer is concerned, even if the client wants to get this over with as quickly as possible, we would still conduct an analysis of the case and provide the client with options and potential outcomes if they were to continue fighting. We would advise them of their rights to go through a jury trial, ensure that the decision to plea is something that the clients truly wants to do after being fully informed and educated, and then strategize with them about steps for the future to prevent repeat convictions and clean their record if applicable.

If taking a deal is what the client chooses, then of course, we will aim to secure the best in line with the client’s goals. Whether that be keeping them out of custody, reducing the exposure, reducing the probation term, securing a dismissal at a future date, avoiding a crime of moral turpitude, and so on.

If its a first time DUI, typically a plea offer in Alameda County would be two days of cleaning up on the side of the road less credit for the time that you already served on the day that you were originally arrested, restitution for any damage that may have been caused if there was a collision, a 3-month DUI school, if it’s not a high blood alcohol content, fines upward of $2000, as well as the requirement that an ignition interlock be placed in the vehicle installed at the expense of the client. In addition to that, there are typical alcohol terms where the client is not allowed to drive with any measurable amount of alcohol in their system, they are not allowed to drive unless properly licensed and insured, and not allowed to refuse a chemical test by a peace officer, including a preliminary alcohol screening test. This is important, because typically if you are not on probation, you are allowed to refuse the preliminary alcohol screening test. The Breathalyzer that they try to give you in the field, on the side of the road, can be refused unless you are on probation. Additionally, a first DUI offense typically comes with about 3 years of probation.

For other misdemeanor offenses, a typical resolution for a first offense would include a deferred entry of judgment, where the client will enter a plea, but judgment on that plea is put over for a period of time, typically about 12 months but it could be less or more depending on the circumstances. They may be required to do some sort of community service, or attend a class, such as anger management, parenting, or AA. After they’ve completed that and successfully stayed out of trouble, if there are no new citations or arrests for that time period, say a year, then the matter gets put back on the calendar, and we go to court and it gets dismissed. (It is important to note that if you fail your DEOJ term you will automatically be convicted of the underlying offense that was deferred so you will want to make sure you’re able to stay out of trouble and complete the conditions of your DEOJ to successfully secure your dismissal).

In addition to DEOJ, there are pre-plea deferred prosecution options, civil compromises, and PES programs that allow the client to earn a dismissal in a shorter period of time without risking an automatic conviction if there is some failure to complete the terms of the agreement. Rather than entering a plea that gets deferred, there is no plea entered and the matter is continued for about 60 to 90 days. During that time the client has an opportunity to meet certain conditions, like a attend Narcotics Anonymous class or AA or complete community service. As long as they complete their classes when they come back to the court, the matter gets dismissed. If they fail or they mess up, they just start back right at square one. They will not be automatically convicted like in a deferred entry of judgment. These are the more appealing options.

There are countless ways that a criminal case can be resolved for first time offenders and the outcome will depend on several factors including the client’s goals, the evidence, and the analysis of the issues.

I typically handle domestic violence cases, DUIs, drug cases, assault cases, restraining order matters—which are not necessarily criminal defense cases, but they can have a quasi-criminal effect to it because there can be law enforcement consequences for violating them—contempt actions for the same reason, because a quasi-criminal charge could result in incarceration, fraud and theft. We also take on serious felony cases such as sexual assaults, robberies, gun charges, and cases involving gross bodily injury enhancements or strike offenses. The attorneys in our office have experience handling matters from low-level misdemeanors to homicides.

We offer a service called pre-charging representation so that you can have representation if you suspect that you will be arrested. Sometimes people know that they are going to be accused of a crime, perhaps they are being investigated, and it is really important to get an attorney on your side right away. This way, we can monitor the case for you and determine whether or not charges have actually been filed against you or if it’s just a pending investigation. An attorney should be the one tracking the status of the case for you because you can put yourself in a precarious situation if you personally call the police department or the DAs office to see whether or not you’ve been charged with a crime. Your attorney will be able to update you on the status of the investigation and also make public records request for you to gain access to police reports. This will give you and your attorney the opportunity to see what it is that you are being investigated for.

Additionally, part of the service our office provides in pre-charging representation is that we serve as a buffer between investigators, detectives, law enforcement and yourself. If someone came knocking at your door trying to get a statement from you, you are actually able to say that you have an attorney and direct them to talk to my attorney instead of answering any questions. It doesn’t matter whether or not they perceive that as you being guilty or having something to hide, what matters is that you are preserving your right to be free from self-incrimination and not making any statements that could be used against you at a later time. It is really important to be overly cautious because there is no way that you are going to talk yourself out of an investigation. The best thing to do is to keep quiet and to hire an attorney to handle everything for you.

If you’ve been arrested, you will be taken down to the jail. You are probably going to sit in a holding cell for some time. You will be booked and fingerprinted, and you’ll be put into the system. Then you’ll have the opportunity to contact a bail bondsman once your bail has been set, or if you don’t get bailed out then you’ll be brought to court for your first appearance. At that first appearance, you’ll find out what the charges are that have been filed against you, whether or not the bail amount is increasing or decreasing, or if you are going to be released on your own recognizance. Another thing to consider sometimes is that if you are brought to court, and charges have not been filed against you within that timeframe, you’ll be released from custody. This is because, as an Oakland criminal lawyer can explain, there is a specific time frame that the District Attorney has to bring charges against you if you are in custody.

If you are arrested during the week, the DA has 48 hours (and up to the next continuing morning if you are arrested after hours) to file charges. If you are arrested on the weekend, they have 72 hours, not including Sunday, to charge you with the crime. If they don’t do it within the time limits, then you will be released from custody. This doesn’t mean that charges won’t ever get filed – this just means that they weren’t prepared to file them right at that moment and they have until the statute of limitations expires to send you notice in the mail or issue an arrest warrant at a later time if they do decide to proceed. The statute of limitations for most misdemeanors is 1 year and 3 years for most lower-level felonies. There is no statute of limitations on murder. A dedicated attorney could further explain what to expect under these circumstances. Call today to learn more.

I’ve had my own practice for the last 4 years doing criminal defense. I chose this area of law because I started working in the Sacramento County District Attorney’s office several years ago after law school and interned with a State Attorney’s office in Florida during law school. While I was working with these agencies, I had the opportunity to see how the other side operates and learned that I was passionate about criminal law as a whole. After working at the District Attorney’s office I went on to practice civil litigation at a law firm in Los Angeles. After spending two and a half years at that firm, I realized that I missed practicing criminal law and I wanted to run my own practice so I opened The Nieves Law Firm and have been running my own firm ever since.

Self-defense is always a very good defense, and you would be surprised how often it is used in these types of cases. It is not uncommon for the alleged victim to fail to mention that they slapped the other party first or that they were throwing things at the other party. If that information is revealed, then we see that the accused was simply trying to avoid being hit when the accuser was struck by a defensive type of movement. Self-defense is a very realistic and arguable defense in these types of cases. We actually won our last domestic violence trial on a self-defense theory and the client was acquitted of all charges.

One of the long-term collateral effects of having a domestic violence conviction is the immigration consequence. Having a domestic violence conviction can lead to deportation or removal proceedings. Seeking the advice of an immigration attorney is advisable in those types of situations. The other collateral consequences are in a family court actions. Specifically, there is a rebuttable presumption in family court that custody of children should lie with the non-offending parent, which means that the person who did not commit the active domestic violence is the person who presumably should have custody of the children and that a person who committed domestic violence should not be awarded spousal support. A domestic violence conviction can also have a negative impact on a person’s ability to obtain professional licenses for employment.

Both a protective order issued in criminal court and a domestic violence restraining order issue in civil court can result from a domestic violence conviction. The latter addresses things such as custody, support, control over the property, whether or not there should be a property restraint made on any money in shared bank accounts, and whether or not the guilty party should be responsible for the payment of any debts if they have to move out of the home. There are several collateral consequences that can ensue from a domestic violence charge and it’s crucial that you have an attorney in your corner that will listen to you, ask the right questions, and educate you on the applicable areas you may be exposed to.

Our attorneys know what type of evidence is going to exculpate you or mitigate your situation. That means we know what type of evidence will likely support your innocence or make your position better. If the victim wants to eliminate a criminal protective order (restraining order), we can work with the victim’s attorney (if they have one) in getting a letter sent to the DA about whether or not that person still wants to testify or is cooperative in the proceedings and we can make arrangements for the victim to come to court to express whether they want the order in place or not.

We can also analyze what a good resolution of your case would be and strategize about the benefits of pushing the case all the way to trial. If there is insufficient evidence, you have a viable defense, or you maintain your innocence, then we may suggest taking it to trial. Alternatively, if it’s a case that’s best resolved by way of a plea and negotiating a disposition, we will work on reaching a resolution that’s beneficial to you in both the short run and long run.

In California, domestic violence is an offense that occurs between two people who have some type of intimate relationship with one another. An intimate relationship is defined as one shared between a parent and child, a boyfriend and girlfriend, husband and wife, or ex-partners. Domestic violence occurs when the victim has experienced abuse or sustained an injury at the hands of the alleged defendant in the case.

A domestic violence charge can be a misdemeanor or a felony. If it’s a misdemeanor, it’s usually because no actual physical violence took place against the other person; instead, maybe you snatched the cell phone out of your partner’s hand and smashed it to the ground and intimidated them. Something like that might be charged under Penal Code section 243(e)(1). Perhaps you disciplined your child but there is a question about how over-the-line that discipline went that may be charged under Penal Code section 273a. If a serious injury was involved, then it could be charged under Penal Code section 273.5, which is a misdemeanor but depending on the gravity of the injuries it could be charged as a felony. For example, if you strangled someone and put them in the hospital or suffocated someone with a pillow, then you are likely looking at a felony charge.

Oftentimes, a suspect will be arrested by an officer and their arrest charges will be felonies. Then, after the DA has had an opportunity to review the police report and weigh the gravity of the conduct or injury, they decide if it’s going to proceed as a felony or a misdemeanor. You won’t necessarily be held in jail without a bond; that typically happens if you were on probation at the time of the new offense so a no-bail hold is put on you or if you’ve actually ended up killing the other person. But then it would be charged as a murder. What happens is you will appear in court for your first appearance and a determination will be made about what your bail should be set at. It’s going to depend on whether or not it’s a felony or a misdemeanor, how many charges there are, and what the guideline bail schedule suggests in the county where the case is filed.

After bail is set a criminal protective order will be issued, preventing you from seeing or contacting the victim of the crime. Even if it’s your spouse who you are married to and live with, you will not be allowed to go home unless your spouse indicates to the court that they want to reconcile a relationship with you and have peaceful contact with you. The court may then modify the order. As far as your children are concerned, if they are named as protected parties then you will not be able to see them unless an order is issued allowing visitation.

No, an alleged victim does not have to be injured for domestic charges to be brought. There are two different types of domestic violence charges that typically occur. One is a PC 273.5, which is corporal injury to a spouse or significant other. For a PC273.5 to be charged, a serious or traumatic injury has to occur. However, for a PC 243(e)(1) to be charged, a physical traumatic injury does not have to occur. Instead, it can be charged if somebody puts another person in an emotional or mental state that would constitute abuse or traumatize them in some way.

Most domestic violence cases are “he-said she-said” matters that occur in the privacy of somebody’s home and are not witnessed by other people. Because of this, there can be some doubt as to who is telling the truth, whether the alleged victim was actually the primary aggressor rather than the accused, and whether the defendant was acting in self-defense. Having witnesses or evidence in the form of videos or photographs can either help or hurt the defendant in a case. If the evidence or witnesses will make it more difficult for the District Attorney to prove their case beyond a reasonable doubt then we regularly encourage clients to exercise their right to a jury trial if the facts and evidence weigh in their favor. We are passionate about domestic violence cases and our attorneys have had a great deal of success in securing dismissals in domestic violence cases before trial and have successfully defended our clients at trial resulting in acquittals (NOT GUILTY).

The penalties for a domestic violence conviction always include exposure to being put in custody and having to pay a fine. If a person receives a misdemeanor charge and has already spent some time in jail, then they may get credit for that time. They may also receive additional jail time. Alternatively, they may be ordered to wear electronic monitoring equipment or enter a sheriff’s work alternative program. Whether or not a defendant is eligible for those types of alternatives really depends on the situation. If a defendant is the sole income provider for their family, and their family would be put in a more detrimental situation if they went to jail, then they may allow that person to participate in an alternative program instead.

There may be some sort of custodial time, and whether or not it actually has to be served in jail depends on negotiations. There will usually be an anger management class in the form of a 52-week batterer’s treatment program or domestic violence counseling that is required. In addition, if the victim does not want to have contact with the defendant, then the court will order that the defendant have no contact with the victim in any way (electronic, phone, mail, etc.) and stay 100 yards away from them. If the victim does want to have contact, then it will usually be a peaceful contact order, which allows the defendant to speak to and be in the presence of the victim so long as all of that contact remains peaceful; the defendant cannot harass, annoy, or molest the victim. Beyond counseling and custodial time, there may be some fines.

If it’s a felony, then there is a possibility of a state prison sentence; however, it can sometimes be negotiated down to the county jail or some other alternative but that depends on the defendant’s background and whether or not there are any prior convictions. Prior violent offenses or domestic violence offenses can enhance the penalties for this particular type of charge.

Yes, and they typically do. Even if the prior conduct was unreported (they never called 911) and didn’t result in a conviction or an arrest, the prosecution can still use it against the defendant. This type of information often comes directly from the victim of the crime, who might say something like “This is not the first time that this has happened to me. My spouse has hit me in the past. I just didn’t call the police because I was scared and I was being threatened.” The underlying assumption is that the typical response of victims in these types of domestic violence situations is to not report the conduct out of fear, love, or perceived necessity. However, unreported conduct from the past can still be used.

First and foremost, you want to make sure that you are following the court order to not have contact with the alleged victim. Even simply calling to apologize or to tell them that you love them is not allowed. Now, if the victim takes it upon themselves to voluntarily contact you then that’s a different story and your attorney will work on making arrangements for the victim to come to court to speak ask the judge to modify the order once you’ve hired. You do not want to appear as if you are trying to tamper with the witness or intimidate them in any way. You want to remain compliant with the orders of the court to stay away from the victim as long as the orders are in effect. That’s the first step.

The second step is to hire an attorney. Domestic violence cases are definitely not the types of cases you want to handle on your own. There are communications that can take place about the legal process through an attorney’s investigator that cannot take place without an attorney. Other than that, you are going to want to start gathering any sort of evidence that may be helpful to your attorney. For instance, if your defense is that it was self-defense and your spouse punched you in the eye and you had bruising, then you want to get photographs of that for your defense attorney. That way, it can be used to negotiate or work towards a dismissal of your case. Complying with the orders, hiring an attorney and compiling evidence for your defense are the first three steps.

Only a small percentage of cases actually go all the way to trial. Most drug cases are resolved through pretrial diversion programs that only require someone to go to drug classes or treatment, which would make a trial unwise. If you can attend a program and ultimately get your case dismissed, then risking a conviction at trial may not be the smartest move unless the facts and evidence are on your side. Other cases are negotiated for settlements that may consist of no actual jail time and reduced penalties after negotiations as opposed to the higher exposure that you may have if you were to go to trial and lose.

At trial, there are usually some doubts about what actually happened and who actually did it. For example, if drugs were found in a car full of people, there may be some doubt as to who actually possessed the drugs. Other factors could also create doubt, such as how the drug was packaged and whether or not there was any other indicia of sales around that would support a sales offense. Going to trial depends on an analysis of the facts and surrounding circumstances, the evidence, and most importantly – the client’s goals because going to trial is a right that the client is entitled to exercise.

The maximum penalty-whether it’s a misdemeanor or felony-always includes some county jail or state prison time, and typically includes some fine exposure but the exact amount of exposure varies on the type of crime charged. Most possession misdemeanors have a 1 year county jail exposure while felony exposure can include several years of state prison time.

If someone does not receive a diversion program for a misdemeanor they may get a probation offer with little to no jail time and add-on terms like participating in a treatment program, completing community service, and a search clause. Oftentimes, there will also be conditions that they can’t own, use, possess or be in the presence of illegal narcotics, known drug users or people who are known for dealing drugs. For the most part, there are always alternatives to jail that a skilled defense attorney is going to be focused on getting for their client. For felonies, the penalties are either state prison, county jail, or a jail alternative like an in-patient program of electronic monitoring and probation.

Unless the person had a large amount of drugs on them, a past conviction or there was a weapon involved, state prison time and even county jail time can typically be negotiated away for first time offenders and replaced with straight probation or a jail alternative. If a person receives probation, it usually lasts for five years. After a probation term is successfully completed to the end and the required amount of time has passed, it’s possible to apply for a motion to dismiss.

First time misdemeanor offenders may also have the option for a post-plea deferred entry of judgment resolution, which means that a judgment would not be entered against a person if they attend programs and stay out of trouble for a certain period of time (usually 12 months). If they fail during that time period, then they’ll be automatically convicted of the drug offense. Collaborative Drug Court is also an option – where the case will be dismissed, sealed, and destroyed upon successful completion of the program which includes drug testing, drug counseling, and frequent reporting to court for progress reports.

Our firm is set apart from the rest by the level of personal attention that we pay our clients, our attention to detail and the fact that after 30 years of combined experience we know what a good outcome looks like and we can educate our clients on their options and give them confidence when making decisions that could affect the rest of their life. We always fight for the best resolution in every case. We’ve developed a strong professional relationship within the legal community that helps us to put our client’s best foot forward. We are strong litigators and we love to win. We can’t guarantee any outcome, but we’ve litigated hundreds of motions on issues revolving around search and seizure, police misconduct and the reduction of charges. Although most cases typically resolve before a jury trial, we’ve taken several cases to jury trial, and our attorneys have won the last three sales-related drug charges that we took to trial. Our superior courtroom skills are definitely an asset to our clients. We’re always focused on achieving the goals that we set out for them and strategizing the best course of action to take.

California has a law against possessing items for the use of legal drugs, which is what drug paraphernalia is. The most common types of drug paraphernalia are glass pipes and meth pipes. There is a law that prevents having that paraphernalia on your person or in your home because it’s indicative of actual use of a controlled substance.

Because cars are mobile, police are given wider latitude for searching a car based upon probable cause. If they have lawfully stopped the car and they see or smell things that they believe indicate the presence of drugs, then they can search. They are not required to have a warrant, and they’ll often use a police dog to confirm their suspicions before searching. However, the US Supreme Court has ruled that the police can’t make a person wait for a dog to arrive for longer than it would take them to write a ticket unless they have enough suspicion to do so.

A home has special considerations because there is a higher level of an expectation of privacy. A search warrant is required for home searches except when there are exigent circumstances. Exigent circumstances mean that there is some sort of emergency going on inside a home. For example, someone could be getting hurt or destroying evidence. If there are exigent circumstances, then the police may be allowed to enter. However, there is a difference between entering a home and actually searching a home. If the police enter a home based on one reason and then they find a different reason to search further, they would need to obtain a warrant. They would not be allowed to go beyond the scope of the initial entry into the home or what’s in plain view. This is in accordance with the Fourth Amendment protections, which say that no warrant should be issued without probable cause, and that all warrants must describe the place to be searched and the person or things to be seized.

Whether or not a passenger in someone’s vehicle or a visitor in someone’s house will be charged with a drug offense depends on the circumstances, like what they were doing there, where the drugs were found and what common statements they made to the police. It comes down to a dominion and control issue that was mentioned previously – What’s implied by the circumstances? Did they have access to the drugs? If they were the passenger in the vehicle, were the drugs found under the passenger seat? As a guest in a home, were the drugs found in the room that they were staying in or in a backpack that belonged to them? If someone is in a place where drugs are found, then they can receive a drug-related charge based on actual or constructive possession.

The timeline for a drug-related case in California will depend on a few factors, including whether it is a misdemeanor or a felony case and whether or not the person is in custody. As a general rule, I would say that most misdemeanor cases take anywhere from three to six months on average. A felony case may take anywhere from six to 12 months or more. If a person is out of custody, the cases usually last longer than if a person is in custody. That’s primarily because when a person is in custody, they don’t want to spend more time in there than necessary, but that also depends on whether or not they waive their right to a speedy trial. If a person is out of custody but they have a serious drug offense, they could be looking at the county jail or state prison time. Oftentimes, that client may just want to take their time and ensure that the case is fully prepared and investigated because their liberty is at stake. So, the timeline varies based on several factors but primarily depends on the seriousness of the offense.

There is a pre-trial and pre-plea drug court option, which are collaborative. This program is part of a collaborative court where the DA, judge, defense attorney and defendant are all on the same page in regard to the defendant’s plan to participate in some sort of treatment and report to court consistently in order to show their progress. After that time has passed, their charges will be dismissed and they will be eligible to have that record of arrest sealed and ultimately destroyed.

There are two main types of drug offense cases: possession offenses and sales-related offenses. Simple possession can be for personal use and then there’s possession for the purposes of sale. There are charges that are related to being under the influence of certain types of drugs, and those related to other offenses, like driving under the influence. Our firm handles all of these common drug offenses.

Whether possession is charged as a personal use offense or sales depends on the circumstances. For instance, the quantity of the drugs found, the presence of other indicia of sale (scales, baggies, etc.), how the controlled substance was packaged, whether the person had large amounts of money on them, and whether or not there were any text messages showing intent to sell. The surrounding circumstances determine whether a possession case is for personal use, a sale-related drug transaction or drug trafficking. Sometimes we also come across manufacturing cases in which a person is caught with materials or chemicals that indicate involvement with the manufacturing of certain drugs.

A drug offense is determined to be either a misdemeanor or a felony offense based on the type of drug involved and whether it was possessed for personal use or for sale. Almost all marijuana charges are misdemeanors because of a voter initiative in 2016. Unless it’s a large quantity of marijuana that is being transported out of the state, most of the time you are going to see it charged as a misdemeanor. If you are getting on a plane and taking a large quantity of marijuana out of the state of California, then you are likely going to be looking at a felony. Most other drug offenses are typically charged as misdemeanors if they are simple possession or under the influence offenses whether it’s cocaine, xanax, methamphetamines, or the like. But if drugs are possessed or transported for sale, then they’re generally felony offenses. As I mentioned before, there is a manufacturing offense involving the use of chemicals and other materials to make certain drugs like methamphetamine, and that is almost always a felony offense.

The Food & Drug Administration and state and local agencies have designated various schedules for controlled substances. Most of those controlled substances are available by prescription and can be possessed and used according to a doctor’s recommendation. There are other controlled substances that are simply illegal for all purposes. Generally, those have been shown to have no medical benefit and are subject to abuse. There are controlled substances that have been federally designated as Schedule I controlled substances, and they’ve essentially been copied at the state level almost everywhere. One exception to this is marijuana, which is a Schedule I narcotic at the federal level. Under federal law, marijuana is legally equivalent to heroin or cocaine. But many states, including California, have legalized its cultivation, sale, possession and use for medical and recreational purposes; notwithstanding, it is still illegal under federal law.

A possession charge is determined by looking at whether or not somebody had dominion and control over the drugs, which doesn’t mean that they had to have bought and paid for the drugs. It simply means that the drugs were in their presence, whether that means they were hidden in a part of their house or under their car seat.

There are two different types of possession: actual possession and constructive possession. Actual possession means possession of drugs on your person. Constructive possession means that the surrounding circumstances indicated that you had or intended to have some control over drugs.

A sale would mean exchanging a drug for something of value, which doesn’t have to be money; it could be a favor or anything of value. In California, there is no differing penalty between sale, distribution and providing a drug to somebody else. They are often bundled into the same law and are dealt with equally. The circumstances just indicate the specific difference between selling, distributing and providing.

Drug trafficking is not officially a legal term. It’s generally used to speak about people who are engaged in sales and distribution operations on a relatively large scale, and who bring drugs in from other countries and distribute them over a wide area. Ultimately, it still boils down to sales and distribution.

You are going to leave the jail with a pink form that gives you the authority to drive for thirty days. It will also tell you that you are entitled to an Administrative Per Se (APS) hearing to decide whether your license should be suspended. You must request this hearing within 10 days. You will be allowed to drive pursuant to this temporary license so long as you have timely requested your APS hearing and until a decision regarding your license suspension is made at the APS hearing. If you do not request your hearing within 10 days, then your license will automatically be suspended. The pink form expires after 30 days and you will receive notice in the mail about the length of your suspension from the DMV. It is always best to request a hearing to preserve your right to argue against the suspension on your license.

The phone call that most people make when they are in custody is to their family members, and that’s because people tend to have those numbers memorized. Family members usually contact attorneys right away. Sometimes, what happens is as soon as you are released from custody, you can immediately contact an attorney. For example, on a DUI charge, the police are probably not going to hold you in custody more than 10 to 12 hours if this is your first DUI, and you don’t have any warrants or probation holds. They will likely release you from custody with a citation and a notice to appear. IF someone is being held in custody on serious charges and aren’t being cited and released then they typically contact their family members – the family then contacts an attorney on an unrecorded line. Once hired, your attorney will either go and visit the client in jail, or appear at their very next hearing, which is usually set within the next day or two.

First of all, the accuser doesn’t have the right to decide whether the charges are filed or not filed, whether the court presses charges or not. They have the right to decide whether to make the report to law enforcement, but once the report’s made to law enforcement, the decision to prosecute is out of their hands. That’s not to say that their thoughts and desires aren’t considered, but depending on the circumstances and the types of case involved, recanting is very common. There are many reasons why people recant, and sometimes they are beneficial to the defense. Sometimes, somebody recants because they really were being dishonest. But the fact of the recantation doesn’t really change the prosecutor’s position on it. It can ultimately affect how well the case turns out in court, but whether it goes forward or not is probably not going to change a prosecutor’s mind, because it’s common.

As an aside, in domestic violence case, which we handle a lot of here and which we have a lot of experience in, the idea that the alleged victim will recant happens the majority of the time. It’s very important that you have a lawyer that knows how to deal with that. The fact that there’s a recant does not mean that the charges are just going to be dropped in any type of case. It just means it’s one fact among many that are considered in how to defend the case. It takes a good deal of experience to know how to negotiate the minefield of the recanting witness in domestic violence cases, sex crimes, or any other case. Experienced California Sexual Assault lawyers understand all the complications associated with sex crime cases in Oakland, CA.

Almost all sex crime charges can cause someone to be registered as a sex offender. There are only a few minor misdemeanor offenses that don’t require registration like engaging in lewd conduct and solicitation. Most Misdemeanor Sex Crimes in California do not require registration in the sex offenders registry. However, many other sex crimes require 290 registration.

Due to the complicated nature of these cases, the number of evidentiary minefields that you can step into, and the serious collateral consequences attached, it is critical to have an experienced attorney handling your case. Another thing is that there is a stigma associated with being charged with a sex crime so it’s important to have a non-judgmental support system available to advocate on your behalf and ease your concerns. We understand it is a stressful time and if charged with a sex crime you need somebody that will handle it without losing track of how important it is for you and what it means for your livelihood. You need an experienced Oakland attorney, calm hand to guide you through it.

We handle child molestation cases, forcible rape, lewd conduct, indecent exposures, and all other forms of sexual battery and assault.

Almost all sex crimes are felonies. There are a couple of lower level crimes, such as Sexual Battery, which is a misdemeanor. Sexual Battery is touching certain areas of the body of another person without their permission. But the battery stops at the touching and does not go further. Not to imply that “just touching” is nothing but rather that there is nothing more than touching that occurred. Child molestation (i.e. harassing a minor with some abnormal sexual interest) can also be charged as a misdemeanor. Statutory Rape is a wobbler – it can be charged as a misdemeanor or a felony – there are certain levels to it which have to do with the age difference between the older person and the younger person. Some of the most serious sex offenses are those that involve minors under the age of 14 – these are almost always charged as felonies and the majority of them cannot be expunged at a later date.

Commonly known sex crimes, such as rape, assault, and molestation, are not typically charged as federal offenses. The federal code has them in there, but that’s just not how that gets dealt with. The most common federal sex crime is child pornography, which is a big problem. Using any means to circulate child pornography is a very serious federal offense. There are also offenses involving sex trafficking – where people are moved around for various sex offenses and making pornography. When it involves multiple states and large rings of people doing this, that is where the Feds come in almost everything else is handled at the state level. It is also at this time, when feds are involved, that you need help from a qualified and experienced California sex crimes lawyer. A Sex crimes attorney in Oakland, CA understands all the local laws and will do his best to build a strong defense case.

If you are under investigation, the fact that you’ve hired an attorney cannot be used as evidence against you. It may raise the question in someone’s mind, “Why is this person hiring a lawyer if they didn’t do it,” but so what? You definitely have to have an attorney. There are a few tactics that law enforcement regularly use during an investigation, which unless you’ve consulted with an attorney, you are not going to know how to handle it, and those are the things that really get people in a lot of trouble. One of them is what’s called the Pretext Phone Call, where they have the alleged victim call the alleged perpetrator on the phone and get them into a conversation to the effect of, “I feel really terrible about what happened. I really want to talk to you about it. Can we get together or can you at least tell me why you did this to me? I feel so bad about it.”

The person on the other end of the line is freaking out and doesn’t know what to do, so he responds “I’m so sorry, I didn’t mean anything by it,” or, “I thought you weren’t going to tell anybody about this,” or, “I thought we’d forgotten about this.” The goal is to get that person to say something incriminating. This is all being recorded. That has gotten people prosecuted in a lot of situations where they might not otherwise have been. The truth is that many of the things that get charged in these types of cases are not something that are really subject to a lot of objective proof. They don’t necessarily involve forensic evidence, fiber, or DNA. They unfortunately do take place behind closed doors, so there are really only two people oftentimes that would ever be able to talk about what actually took place. So they use various techniques to bolster their case and one of them is the pretext phone call where they get the person to admit things over the phone.

The other one is they bring the suspect in to talk to them and they tell them, “We really don’t know whether this is true or not but we can give you a polygraph if you want. If you take the polygraph and it shows that you’re lying, then we’re going to know you did it and that’s not going to go so well for you. Whereas if you tell us now, I think we can make it go better for you,” or, “If you pass the polygraph, you get to walk out of here. But if you don’t pass it, then we are going to think you did this.” Well, that’s pretty scary, but the fact is that polygraphs are inadmissible in court. People don’t know that. They also don’t know that they have the right to say no to this, and even if they do say no to it, if this case ever ends up in court, it’s not like they are going to be able to walk in and say, “We offered him a polygraph and he refused, what does that tell you?” Because it wouldn’t necessarily have proven anything anyway, the courts have said, “You can’t even mention it.” People also don’t know that.

We had a pretty serious rape case about three years ago where law enforcement brought our guy in and gave him the polygraph story and also told him that, “If you just tell us now, we are not going to think you are a criminal, we are not going to think you are a bad guy.” He told them a story and they said okay. The question was, was this confession that he made worth anything when he was told that if he just agreed with them they wouldn’t consider him a criminal? Who wouldn’t do that, right? Truthfully, it would have been better if he hadn’t gone in there at all, and an attorney would have told them that if he had one during the investigation phase. I am confident that he did not do it – there was no forensic evidence, there was no fiber, no hair, no blood, no semen, no DNA, no nothing to match it up but we had a false confession to deal with. Notwithstanding, after being hired, we were able to bring this out at trial, and we won.

The trick law enforcement used was to threaten the polygraph and then say we won’t think you’re a criminal – in an effort to get cooperation. You would never know what to do about this technique if you don’t have a lawyer. People that are facing serious offenses, whether they did it or not, get scared – it’s normal. What tends to happen is they tend to do things that may make them look like they are guilty even if they aren’t. They can avoid these missteps by hiring a skilled and experienced criminal defense attorney like the ones at The Nieves Law Firm.

The ultimate end goal with any criminal case is to be found factually innocent, seal and destroy your records, get a pardon, get a certificate of rehabilitation or petition for a dismissal by way of the expungement process.

Technically, in California, there is no such thing as an expungement. What really happens is there is the section of the code that says that after you complete your probation or your sentence, you can apply to the court for a dismissal. The California violent crimes expungement process is tricky, and therefore, it requires the services of an experienced violent crimes expunction lawyer in Oakland, CA.

For most case types you are entitled to it as a matter of law so long as you’ve completed your probation, met all the terms and conditions of your probation (like counseling, classes, restitution, or fines, and completed any jail sentence that was ordered. You will not be eligible to apply for a petition to dismiss your conviction if you were sent to state prison and there are a few specific charges that cannot be expunged:

• Misdemeanor Vehicle Code section 42002.1: Failure to Stop Vehicle for Inspection with prior evading conviction
• Any violation of Penal Code sections:
  • 286(c): Sodomy – victim under 14 (more than 10 years older)
  • 288: Lewd or Lascivious conduct
  • 288a(c): Oral Copulation with a minor under 14 (more than 10 years older)
  • 288.5: Continuous sexual abuse of a child
  • 289(j): Forcible sexual penetration of a minor under 14 (more than 10 years older)
  • 311.1: Distribution of child porn
  • 311.2: Sale/Distribution of Child Pornography
  • 311.3: Sexual Exploitation of a Minor
  • 311.11: Possession of Child Pornography
  • Felony violation of Penal Code 261.5(d) – Unlawful Sex with a Minor

There are very few exceptions to it, but that doesn’t mean that everything goes away unless you receive a pardon or a Finding of Factual Innocence, which is a process whereby you say not only was I not guilty of this, I never should have been dragged into court in the first place. Under those two circumstances can you actually eliminate the record of what’s taken place. Then the record is sealed and destroyed under a Finding of Factual Innocence. The records are not necessarily sealed and destroyed under a pardon, but it shows that you were ultimately pardoned.

A pardon doesn’t mean you didn’t do it; a pardon essentially means you may have committed a crime but you’ve since cleaned yourself up and deserve to be forgiven. With the exception of the Finding of Factual Innocence, which is 851.8 of the Penal Code, there is no delete button in the great computerized world of the court system that somebody can ever push to make all the records go away. There is no giant massive shredding machine where they take every piece of paper that ever was associated with the case and drop it through there so nobody can ever see it. That doesn’t happen rather with an expungement, it changes the language of your conviction to say that it was dismissed rather than saying that you were convicted. This is definitely still beneficial in terms of hiring especially with the recent changes in the Fair Employment laws (i.e. ban the box).

Its critical to hire an experienced attorney because the implications are serious and the punishments that you may be facing are serious. You could be looking at jail time, prison time, and a serious effect on your record. When the consequences are serious, you need a skilled professional to address them. Experience is the best way to deal with violent cases. Having the experience dealing with serious and violent crimes we know how to not overreact to the claims being made, we know how to question in a way that gets what we need out of the witnesses, we know what a good deal looks like, and we know when to strategically advise you to go to trial.

It takes a lot of skill to know what questions to ask of witnesses and what evidence needs to be developed. There is forensic evidence, eyewitness and other kinds of evidence. Forensic evidence meaning fingerprints, blood, fiber, DNA, and other related things. You want an attorney who is going to be able to handle them appropriately in court and understand the science involved. A skilled and experienced attorney will know how to manage the witnesses involved and ask the right questions in front of the jury. There are several factors that are written into the jury instructions in California that deal with the credibility of witnesses, if they are being honest and truthful, and whether they are reliable. When you hire the right attorney they will be able to either build up or tear down the credibility of the witnesses.

The human mind is not a camera, it doesn’t take a picture of people and then just recall the photograph when it sees the person again. It actually just remembers little details, such as the nose or the color of their hair or other similar feature and there are countless factors that go into whether this eyewitness identification is accurate. Was the person under stress, was it day or night, did the person have something in their hands? A skilled attorney will understand Cross Ratio Problems in identification – for example, people of one race are generally not very good at identifying people of another race. Eyewitness identifications are not as reliable as people think and a skilled and experienced defense attorney will capitalize on those questionable areas.

One quick example is when a person says, “I am sure, I’ll never forget that face. This is one of the most important things I’ve ever been involved in and I swear, I guarantee you, I feel so strongly about this,” it turns out that studies show that if they express it that way, they’re really no more likely to be correct than if they just say, “Yes, I’m pretty sure that’s him,” or, “I think that’s the person.” The strength of your belief in your correctness has nothing to do with being correct. You would think that if somebody is that sure, they must be right but it turns out they aren’t. It is not always because they are being dishonest – but many times they are just mistaken in their belief.

Several of our trials have started with the statement that it is a “case of mistaken identity.” Someone made a mistake, they thought they had the right person, and they didn’t. Jurors can relate to a story where you’re standing in line at the grocery and you see somebody a couple of lines over and you think “that’s Sally from high school.” You recognize her, you know her really well, and you used to do all kinds of stuff together so you are going to go up to see, “Sally”, and then – it’s not Sally, it’s somebody else. It looks a lot like Sally, it seems like Sally, but it’s just not. Now, are you being dishonest or are you just making a mistake? Is there any one of us who hasn’t had an experience like that? How many times have you had to say to somebody, “I thought you were somebody else, I am sorry about that?”

These are just a couple key examples of what a skilled and experienced criminal defense attorney can do for you – from interpreting forensic evidence, consulting with expert witnesses, and attacking eyewitness identifications – you an attorney who is creative in their approach and thoughtful about the evidence.

Several years ago, the California Legislature, partially as a response to the under-funding of the system, reclassified a bunch of crimes. Anything less serious than a narcotics offense where weapons are not involved, including theft, are not considered violent offenses. Violent offenses are assault, battery, many related sex offenses, and murder.

Most violent crimes are classified as felonies. There are a couple of misdemeanors, such as simple battery, which is the unlawful use of force against another person. When it is pushing or shoving, or throwing something at someone, it could be a misdemeanor. It depends on the level of force used. From there up, there are misdemeanors and there are what are called felonies. It’s mostly what you think of violent crimes, including assault with a deadly weapon and sex crimes. California has a specific category for serious and violent charges such as robbery and carjacking.

There are some really serious crimes like mayhem, which is disfiguring another person, or torture – which would be a felony. Then there are what are called wobblers. These are “Alternative Felonies” which means they can be charged and prosecuted either as felonies or as misdemeanors. The DA can also start it off as a felony and it can later be reduced to a misdemeanor. Some common wobblers are PC 245(a)(1) (assault with a deadly weapon), PC 273.5 (corporal injury), PC 243.4 (sexual battery), VC 2800.2 (evading police).

It is possible to have violent crime charges reduced, and there are many of different ways to do this. You can do it through negotiation. Every felony has kind of a mini-trial half way through, called a Preliminary Hearing. This is similar to a bench trial where there is no jury – just a judge determining if there is probable cause. The evidence is taken and the judge decides if there is sufficient evidence to believe that a felony has been committed. If the charges are wobblers, or if there is a lesser included that could function as a wobbler, then you can make a motion at preliminary hearing for the charge to be reduced to a misdemeanor. That’s one way and we’ve achieved this goal many times throughout our careers as Oakland criminal defense attorneys.

California’s laws on serious violent felonies are a bit complicated, because there is a preclusion against plea-bargaining in some of them. What you have to do is you have to persuade the prosecutor to dismiss and re-file different charges. The theory is that prosecutors cannot overcharge for purposes of getting the defendant to plead to a lesser offense or as charged with a lower sentence – since plea bargaining is not allowed before preliminary hearing.

This was actually put into law because people were angry that serious cases were getting plea bargained down and they sought a tougher disposition on the punishment of crimes. It did also have the effect of requiring prosecutors to be more careful with how they charge cases. They don’t charge the non-bargainable charges unless they really think it’s proven by the evidence they have. Defense attorneys and prosecutors have a professional adversarial relationship, as they should, due to the nature of our system. Undoubtedly, there are irresponsible prosecutors out there, but for the most part we like to hope that they comply with the high ethical standards they are held to.

Robbery is defined in California as theft by means of force or the threat of force.

Factors that can enhance or aggravate a robbery charge include how much was taken, and the circumstances of it. In other words, was it late at night, was somebody basically scared to death? Was it during the daytime and it just wasn’t as egregious? It has to do with the overall level of force or fear that was used. If actual force is used, then there is going to be an additional charge. If you hit somebody, then they are also going to charge you with battery, or they’re going to charge you with assault with a deadly weapon if you hit them hard enough or you use some kind of weapon.

What can enhance any violent offense in California is the personal use of a deadly or dangerous weapon. That can get you a minimum of 4 additional years. If you personally used a firearm, that is a minimum of 10 extra years in jail. Those are the things that enhance charges. Robberies are strike offenses in the state of California.

A common form of robbery that tends to occur, outside of your stickups and home invasions, are called Estes Robberies which are basically shoplifting attempts gone wrong. Imagine someone at a 7-Eleven stealing six pack of beer. As they go out, the owner grabs them by the arm and says, “What do you think you’re doing,” and the guy pulls his arm away and pushes the owner’s arm off of him then runs off. That would be considered the use of force and during a theft and the Estes case held that it is considered a robbery. No matter the type of robbery case, it is advised to get in touch with a California robbery defense lawyer to defend your rights. Although there are many Armed Robbery Defense Lawyers in Oakland, CA that can be contacted, you can get help from The Nieves Law Firm, APC in Oakland, CA, for a Free Consultation Session. Call (510) 779-2082 to speak with an Oakland, CA robbery defense attorney.

There are a few defenses to any kind of robbery charge. There are the “I didn’t do it at all. I am the wrong person or I’ve been misidentified” defenses. Then the defenses related to force like “I didn’t have a weapon, there was no force involved, I didn’t make an actual threat but instead I asked for it and got it” then of course a defense that the property was actually yours to begin with or it wasn’t taken from the possession of another person. The strategy in any criminal defense case is to try to find what seems to be missing in the elements of the charge, and then kind of work your way into that. It’s not so much what’s there, it’s what isn’t there

Prison and jail time are not inevitable in California. There are certain mandatory Prison Presumptive Charges, and PC 211 Robbery is one of them but you can persuade the judge if there were extraordinary circumstances. You can make the case that it wasn’t as serious as other forms of robbery such no weapon was used or it wasn’t a home invasion. Interestingly enough, somebody who commits the kind of a robbery where they are stealing something that they are really in need of like food or clothing but they pushed somebody to get out of the store, or they run and they get into a scuffle with the security guard, those can be mitigating factors. That doesn’t make it okay, but it makes it less serious than others. It is feasible to avoid prison time and sometimes even county jail time depending on the facts and circumstances surrounding the case. The mitigating factors and weaknesses in the evidence all play a role in what happens on a case by case basis.

Nothing that happens at juvenile court is considered punishment. It’s considered rehabilitation. They seem to have absorbed the idea that punishment is a form of rehabilitation, but there are many alternatives. Any case other than a fairly serious or violent crime, they are not going to do time in any kind of facility. They’re going to get an alternative treatment, usually counseling and rehabilitation. If it’s a drug case, they are going to go to drug treatment. They may not live in a drug treatment facility, they may see a counselor two or three times a week and be drug tested, which is probably the most common thing. If it is some kind of a low level to mid-level violent crime (i.e. a fight at school or two at school or a low level relationship dispute) they will likely be referred to complete counseling.

Counseling is pretty successful for most juveniles. For many, this is the first time they’ve ever had anybody step in and kind of offer them some assistance and we’ve seen several kids treat it as an opportunity rather than a challenge. Of course as an attorney, we do everything we can to limit the requirements that our clients have to perform. Every additional thing they have to do, from a legal standpoint, is just one more banana peel that they might slip on. Our goal is to limit the banana peels, hopefully down to zero if we can, to get them out entirely and not have to worry about ongoing requirements.

Technically, you don’t actually plead guilty in juvenile court; you admit the truth of the petition if you’re going to do that and yes, they will have an attorney. If a juvenile is charged with a crime, the court will not allow him or her to appear before the court on any charge above an infraction in which his or her freedom is at stake without counsel. So for any misdemeanor or felony charge they have the right to counsel. A juvenile cannot waive their right to counsel because to waive your right to counsel you have to prove to the judge that you understand the legal system well enough that you can handle this case. Adults do it once in a while, but not juveniles.

Juvenile crime laws in Oakland, CA are different from adult laws. They too have a 6th Amendment right to counsel and they also have all the associated Miranda Rights. They have the right to discovery, the right to confront witnesses, the right to be proven guilty beyond a reasonable doubt. They have the right to ask for their parents in a Miranda situation because it is considered the equivalent to asking for an attorney. They definitely have the right to be advised of the right to remain silent and the right to counsel.

The juvenile sentencing in Oakland, CA is also different. Someone has to explain to them the consequences of their decisions. The judge can’t do it, because the judge is supposed to be neutral. If you have questions, the judge can’t answer them. Even if you’re thinking, “Well, I don’t know if I want to fight this,” at the very least, you need a lawyer to explain that. How long am I going to get probation, am I going to get punished for this, what does it mean for my record, what does it mean for my future, or what happens if they tell me to do bunch of stuff and it doesn’t work out? What if I have a problem with immigration, because I wasn’t born in the United States? These questions and more like it are the reason juveniles are afforded the right to counsel – so they can be thoroughly advised along the way about big decisions that can affect their life. These are all things that even if you’re facing a situation where you don’t think you can win the case, you still need to know everything you are involved with, and everything you are facing. That’s one of the main reasons why you have a right to counsel. It’s certainly why you would want to consult with a lawyer, even if ultimately you don’t think you’re going to have a trial and try to defeat the case. The attorney can also help you understand the Oakland, California, juvenile delinquency process in a Free Consultation session.

In California, while the dependency system is governed by Welfare and Institutions Code Section 300, the juvenile delinquency system is governed by Welfare and Institutions Code Section 600. California has greatly reformed its juvenile system, such that many cases can be resolved by a form of diversion. A teenager – called a “minor” in the system — is allowed to make an admission to the petition (the equivalent of pleading guilty to a criminal charge) but the final result is delayed for either six months or a year. The minor may go to counseling, or do community service, and as long as the minor commits no offenses in the interim period, the petition is dismissed. The minor has no record, even in the juvenile system. This process disposes of more than half the cases that are filed. Regardless of the charge, it is important to speak with a juvenile crimes lawyer to help explain the process.

It is important to understand that the entire juvenile system and all the court files are confidential. The minor is not referred to by a complete name, but rather by “James S.,” or “Crystal C.” The files are not available to the public at all, the courtrooms are closed and restricted. All of this confidentiality is part of the idea that children must be protected. It also acknowledges that you may do some things while a juvenile, be rehabilitated – the system does not refer to any of its outcomes as “punishment” – and move on with no blemishes. The strict confidentiality ensures that once you are an adult, or actually much earlier, nobody should know what you are going through.

There are exceptions to the confidentiality, though for juveniles prosecuted as adults the lack of confidentiality is the least of their problems. Prosecutors can choose to prosecute juveniles as adults, which can be a matter of great controversy both in the public discourse, and in each individual case. The case can actually be brought directly to adult court in certain circumstances. If a minor is charged with what are called “707(b) offenses,” and if they are 16 years of age or older, the District Attorney can do a “direct file,” taking the case directly to adult court. The minor can challenge that filing at one juncture, the preliminary hearing, trying to persuade the judge (there is no jury at this point) that probable cause exists for the case to be sent to juvenile court. If that challenge succeeds, the case goes to juvenile court. If not, it proceeds at an adult case.

If the minor is 14 years of age or older, the District Attorney can petition the juvenile court for a Fitness Hearing, in which they can attempt to prove factors that lead to the case being transferred to adult court. The issue is whether the minor is “fit” for the treatment and rehabilitation available in the juvenile system, whether they are “amenable” to being dealt with in that way, rather than merely warehoused and punished. Depending on the nature of the offense, the burden of proof varies from fairly easy for the prosecution to extremely hard for them. Both direct filings and fitness petitions are intended to be reserved for the most serious cases.

The levels of treatment in juvenile court go from the lowest, where no petition is filed and you are on a “contract” with a probation officer – to diversion – then all the way to the equivalent of a prison sentence in a juvenile facility. While the California system has reformed a great deal, there still is a California Division of Juvenile Justice, formerly known as the California Youth Authority – the equivalent of the state prison for juveniles. Most of these facilities have now closed (they used to be called “gladiator academies”) and the remaining ones have shifted focus to education and rehabilitation. They still, however, work in crews to fight wild fires around the state. Fire crew duty is actually quite coveted, and some of the graduates have gone on to become firefighters in adult life.

This prison-like system is operated by the California Department of Corrections and Rehabilitation, that last word having been added when juvenile offenders were added to the system. It is used relatively little anymore and is to be reserved for minors that have failed at lower levels of rehabilitation. A minor can serve the equivalent of the years they would serve on an adult case in DJJ, up until they turn 21. This is done very little these days, since the kinds of cases that warrant that level of treatment, usually end up in adult court.

In conclusion, California’s juvenile system has reformed in many ways. Some say it is due to the lack of finances, which is true. But, it is also due to a belief that actual punishment should be reserved for the most serious offenders.

The most common juvenile offense cases that we handle are narcotics and auto burglary offenses. There are two classes of juvenile cases in California; cases where the individual is actually eligible for a genuine punishment and others that offer a diversionary program where if the person follows all rules, the case is then sealed and it goes away. That can be done on some fairly serious cases, even sex offense cases.

Some sex offense cases that are lower to mid-level sex cases, such as babysitters touching little boys, or the other way around, are handled discreetly with counseling, and sealed. In addition to sex, narcotic and burglary cases, we also handle domestic violence cases. Domestic violence in California, is defined broadly. This could include boyfriend/girlfriend relationships even if they don’t live together, or even if they’ve only been dating for a few months.

If the alleged offense occurred after your 18th birthday, then you cannot be treated in the juvenile court. It’s that simple. The age of 18 is the cut-off. There are some other ages that are significant, so if you’re over 16 and you commit a certain class of offenses, then the prosecution can charge you directly into adult court. There is a section of the Welfare & Institutions code, the governing law for juvenile cases, that provides for Direct Filing of serious offenses into adult court; alternatively, when you are above 16, the prosecutor has that discretion to file in adult court by way of petition and subject to a fitness hearing.

A Juvenile Court Jurisdictional Hearing is held to determine whether or not the minor will be treated in juvenile court or sent up to the adult court for prosecution there. It is advised to get help from a California Juvenile lawyer in such a case so you get professional legal counseling.

The ultimate end goal with any criminal case is to be found factually innocent, seal and destroy your records, get a pardon, get a certificate of rehabilitation or petition for a dismissal by way of the expungement process.

Technically, in California, there is no such thing as an expungement. What really happens is there is the section of the code that says that after you complete your probation or your sentence, you can apply to the court for a dismissal. The California violent crimes expungement process is tricky, and therefore, it requires the services of an experienced violent crimes expunction lawyer in Oakland, CA.

For most case types you are entitled to it as a matter of law so long as you’ve completed your probation, met all the terms and conditions of your probation (like counseling, classes, restitution, or fines, and completed any jail sentence that was ordered. You will not be eligible to apply for a petition to dismiss your conviction if you were sent to state prison and there are a few specific charges that cannot be expunged:

• Misdemeanor Vehicle Code section 42002.1: Failure to Stop Vehicle for Inspection with prior evading conviction
• Any violation of Penal Code sections:
  • 286(c): Sodomy – victim under 14 (more than 10 years older)
  • 288: Lewd or Lascivious conduct
  • 288a(c): Oral Copulation with a minor under 14 (more than 10 years older)
  • 288.5: Continuous sexual abuse of a child
  • 289(j): Forcible sexual penetration of a minor under 14 (more than 10 years older)
  • 311.1: Distribution of child porn
  • 311.2: Sale/Distribution of Child Pornography
  • 311.3: Sexual Exploitation of a Minor
  • 311.11: Possession of Child Pornography
  • Felony violation of Penal Code 261.5(d) – Unlawful Sex with a Minor

There are very few exceptions to it, but that doesn’t mean that everything goes away unless you receive a pardon or a Finding of Factual Innocence, which is a process whereby you say not only was I not guilty of this, I never should have been dragged into court in the first place. Under those two circumstances can you actually eliminate the record of what’s taken place. Then the record is sealed and destroyed under a Finding of Factual Innocence. The records are not necessarily sealed and destroyed under a pardon, but it shows that you were ultimately pardoned.

A pardon doesn’t mean you didn’t do it; a pardon essentially means you may have committed a crime but you’ve since cleaned yourself up and deserve to be forgiven. With the exception of the Finding of Factual Innocence, which is 851.8 of the Penal Code, there is no delete button in the great computerized world of the court system that somebody can ever push to make all the records go away. There is no giant massive shredding machine where they take every piece of paper that ever was associated with the case and drop it through there so nobody can ever see it. That doesn’t happen rather with an expungement, it changes the language of your conviction to say that it was dismissed rather than saying that you were convicted. This is definitely still beneficial in terms of hiring especially with the recent changes in the Fair Employment laws (i.e. ban the box).

There are not any charges that automatically get expunged; when you are convicted, it stays on your record permanently. There is no drop-off or clean-up period. There are ways to clean up your record, but you have to affirmatively take an action to do that. There are some sex offenses that will allow you to file for a certificate of rehabilitation in order to get off of the registry and be deemed completely rehabilitated from the conduct of which you were convicted. However, doing so carries an even heavier burden than the filing of a motion for factual innocence, because you’re asking the court to deem you rehabilitated and issue a certificate.

If you’re currently on probation, then you will not be able to apply for an expungement; you will first have to petition for early termination or successfully complete the term of your probation. As far as your criminal history is concerned, a judge’s discretion could come into play. If you are petitioning for a dismissal with certain crimes, there is no automatic granting of the expungement petition as a matter of the law. So, if you received a prior DUI conviction (even if it was five or 10 years ago), that would indicate repeat behavior and the judge may take that into consideration. It is very important to have a criminal defense attorney who knows what is persuasive and who knows how to complete a packet that will put your best foot forward.

In order to complete the process of having a record expunged in California, there are basic forms that need to be filled out. The CR1AD is a cover sheet that goes with the petition. Some people just submit that form and hope for the best, because there are some crimes that don’t need much of a showing. If you’ve successfully completed your probation, do not have prior convictions and don’t have any pending charges, then you won’t go to state prison. As a matter of law, those crimes will be granted. However, DUI convictions require a showing that the expungement is in the interest of justice; it’s not automatic.

We would include a declaration of support, in which would address the hardships that the person has faced and the positive impact that the person has had on his or her community. We would show how the conviction is affecting that person either personally, financially or professionally, and why that petition should be granted. After the memorandum, points of authorities and all of the paperwork is completed, we submit it to the court and a court date is set. Sometimes there is an actual hearing, and sometimes there is no objection from the DA. The decision of whether or not to object to the petition will be made by the DA on a case-by-case basis.

If your petition is denied, then you can apply again at a later time. If you filed a request for early termination and dismissal, then you could wait until you’re off of probation, which may just be another year or two depending on the length of the probationary period. You can go above and beyond by staying out of trouble, not violating your probation and meeting the terms of your probation.

It’s really helpful to make a showing of the extra things that you’re doing, whether that’s community service, volunteering in the community, mentoring people or becoming increasingly involved with your religious institution. Those types of things can have a persuasive effect on the court as long as they are sincere and not done for purposes of getting off of probation.

If you get a 1203.4 granted, then the language on your record will change from reading “convicted” to reading “dismissed.”

Many times when the matter is dismissed, clients just celebrate the fact that it didn’t result in a conviction, and they don’t have to report it as a conviction on most employment applications. Some clients want to take it one step further, and try to seal and destroy the arrest record. They can do that by filing a motion for factual innocence, pursuant to penal code 851.8. What they will do is hire our office to seal and destroy a record, by way of a motion that includes declarations, character letters, points and authorities and other supporting documentation. Ultimately a judge will make the decision of whether to grant or deny the petition. If the judge finds that you were factually innocent then the record will be sealed for 3 years then destroyed.

Here is an example of factual innocence: Let’s say your sister was arrested, and used your name and your identification during the arrest. It came out later that you weren’t actually the person arrested because the fingerprints didn’t match but now that arrest is appearing on your record. We can petition the court to declare you factually innocent of the crime so that the record of arrest can be sealed and destroyed from your record.

To have a record expunged means to have it erased. In California, however, there is no actual expungement in the regular use of the word; rather, you can petition for a dismissal. If your petition for a dismissal were to be granted, then the language on your Department of Justice report would be changed from reading “convicted” to reading “dismissed.”

In California, the only way to have a record sealed and destroyed is to petition for a motion for factual innocence under Penal Code Section 851.8. In order to do that, you would have to meet the burden of proof and show that you were factually innocent of the crime. You would also have to show that the police officer lacked prima facie for the conduct for which they arrested you.

For example, if a person were stopped for a vehicle code violation and gave the name of their sibling instead of their name, then that charge would show on that sibling’s record. In order for that sibling to prove their innocence, they would (at the very least) have to provide their fingerprints and a statement. In other circumstances, there may have just been a lack of evidence that was collected at the time of the arrest.

Some people have the misconception that receiving an expungement in California means that the charge disappears into oblivion. In California, receiving an expungement really means receiving a dismissal, which means that it could still be used against you. For example, if you had a DUI conviction expunged but then received another DUI, the new DUI would be treated as a second-time offense.

If a person served time in a state prison and was on probation at the time of filing for an expungement, then they would not be eligible to receive expungement. However, if a person was on probation and never served a state-prison sentence, then they could petition for early termination of that probation under section 1203.3 of the penal code. If a judge were to grant a request in the interest of justice, a person would be able to request dismissal under 1203.4, so long as they had dealt with and met all conditions of probation. So, if they were ordered to attend a DUI school, anger management, or a one-year domestic violence batterer’s treatment program, then they would have had to complete that requirement prior to petitioning. After 12 months on probation, a person is eligible to petition for early termination. Crimes resulting in state prison sentences and some sex crimes are ineligible for expungement.

The expungement is for the conviction. If you were charged but not convicted, then you wouldn’t need an expungement; you would need a petition or a motion for factual innocence. If your matter was dismissed or the case was never actually charged, then you could petition to be deemed factually innocent and have the arrest sealed and destroyed.

We can usually get a petition together relatively quickly in Alameda County, but we’re at the mercy of the court calendar. Court dates are currently being scheduled 30 to 60 days out. A safe estimate would be about 45 days.