CRIMINAL LAW NEWS

Lindsay Lohan DUI – Understanding The Criminal Process

Lindsay Lohan was recently sentenced to 90 days of county jail and 90 days of rehab for violating the terms of her probation related to her plea bargained conviction on two counts of DUI in 2007 (at that time, she also plead "no contest" to one count of reckless driving and two misdemeanor counts of being under the influence of cocaine). One of the terms of Ms. Lohan's probation – standard for a California DUI conviction – required that she attend weekly alcohol education classes. Because Ms. Lohan missed several of her required classes without a valid excuse (after already having asked for a one-year extension from the court to complete the classes), the judge found at a hearing that she had violated the terms of her probation and, as a result, she imposed the 90 day jail/90 day rehab sentence. Typically, when a person is convicted of DUI as Ms. Lohan was, the judge does not impose the full jail sentence permitted for the offense and instead imposes certain terms of probation and reduced or no jail time. For example, the maximum sentence permitted for a first DUI is 180 days in county jail; the maximum sentence permitted for a second DUI that occurred within 10 years of the first is 1 year in county jail. During the probationary period (standard is three years), the person may be required to do certain things and/or may be required to refrain from doing other things. Common DUI probation terms include attending Alcoholic Anonymous classes; attending an alcohol or drug awareness program; spending a day at the morgue; payment of a fine; and agreeing not to drive with any measurable amount of alcohol in your system. As of July 1, 2010, anyone convicted of a DUI for the first time in Los Angeles County (and a few others) must also install an Ignition Interlock Device – a small breathalyzer attached to the car ignition that prevents the car from starting if any alcohol is detected in the driver's blood. If a person on DUI probation fails to comply exactly with the terms of probation set by the court, the judge will hold a hearing and may impose some or all of the jail sentence that he chose not to impose originally. So, in Ms. Lohan's case, because the judge found that she failed to comply with the probation requirement that she attend weekly alcohol classes, the judge sentenced her to 90 days in jail and 90 days of rehab for violating her probation.


Criminal Defense Article on Being Arrested – Things to Know

Throughout our lives there are some things that will be traumatic and quite possibly done on accident, which we have no control over. In particular, being arrested can be a big headache and, aside from avoiding the issue in the first place (if at all possible), there are a few things you should know about being arrested and what to do if you are. For one, keep in mind that you do have rights under the Fifth Amendment to the United States Constitution, which is also referred to as your Miranda Rights. Under such rights, you are not required to answer any questions asked by police other than your name and address or to furnish an official identification card. This can be a state ID card, a driver's license or a passport. Secondly, you have the right to an attorney and can have him/her present during all questioning. This is not required, but if questions are answered, such should be done in the presence of your attorney. This ensures you, the client, are protected and represented in the best possible light. After all, you have the right to a fair trial, and having an attorney by your side allows for this to occur. Thirdly, though you are not required to answer questions presented by law enforcement officials, they do have the ability to hold you until your attorney has negotiated your release or your bail amount has been paid. Nobody wants to sit in a jail cell, so be sure you hire an experienced attorney to negotiate on your behalf. Lastly, if there is one thing I can suggest it's to relax and take it easy. There is no use stressing yourself out, and being argumentative with law enforcement officials can lead to additional charges and additional problems for you. Simply said, it's not worth it. I hope this article has been helpful and good luck with your legal case.


California's Three Strikes Law: What the Law Really States

In 1994, California enacted its "Three Strikes" law. This law significantly changed the sentencing structure in convictions for defendants who had previously been convicted of certain felonies. What is a strike? A "strike" is essentially a conviction for a felony that is considered "serious" or "violent" under California statutes. Examples of serious felonies include murder, voluntary manslaughter, kidnapping, burglary, robbery, certain assaults, and arson. Examples of violent felonies include lewd acts on a child, attempted murder, rape, kidnapping and any felony causing great bodily injury. What are the consequences of having a strike? A strike for a prior conviction (a "strike prior") affects the sentencing in a future felony, whether the new crime is a strike or not. (1) Defendants with a strike prior cannot receive probation for a new felony and must serve a prison sentence if convicted. (2) Defendants with a strike prior must be sentenced to double the prison sentence if convicted of a new felony. For example, if the defendant receives the recommended low term of 16 months for the new crime, the actual sentence will be 32 months. (3) Defendants with a strike prior must serve 80% of the sentence if convicted of a new felony (or 85% if the current felony is serious or violent). Normally, defendants without a strike prior serve about 50% of their sentence. What are the consequences of having two or more strikes on your record? After two felony strikes, an individual faces 25 years to life in prison for any subsequent felony, even if the new felony is not itself a strike offense. It does not matter if the first two strikes occurred years or decades earlier. Is it possible to avoid the consequences of a strike prior? Despite the mandatory sentence structure of the three strikes law, it is possible to have a strike prior "stricken" or dismissed and not considered for purposes of sentencing in a new felony. The district attorney has discretion to strike a strike prior if they feel that applying the three strikes law is too severe. Strike priors can also be stricken by the judge in response to a motion filed by the defendant's attorney if the court finds that the present crime is not the type of crime that the three strikes law is meant to encompass.


What Are Miranda Rights? – An Important Thing to Know

What are Miranda Rights? This article discusses some important aspects of a person's Miranda Rights, — what Miranda Rights are, when Miranda Rights apply, when Miranda Rights do not apply, and the limits on how police and prosecutors can use a person's statement made in violation of their Miranda Rights. When a person is arrested, a police officer generally reads him his "Miranda Rights" from a form. These rights include the right to remain silent; the right to speak with an attorney before being questioned; the right to have an attorney present when you are questioned; and the right to have an appointed attorney (a public defender for example) if you cannot afford an attorney. While Miranda Rights may sound very protective, in many cases they are not. The reason for this is clear – a police officer only needs to read someone their Miranda Rights when they are (1) "in custody" and (2) under "interrogation." If a person is not "in custody" and/or is not being "interrogated" a police officer can ask them questions without reading them their Miranda Rights. What qualifies as police "custody." "Custody" means that a person is formally arrested or, even if they are not formally arrested, their freedom of movement is restrained in a way very similar to being under formal arrest. If a police officer orders a person to stand against a wall and not move they are probably "in custody" even if they are not yet arrested. However, if a police officer approaches a person on the street and asks them a question they are probably not "in custody" since they have a greater sense of freedom. Assuming a person is "in custody", Miranda Rights still apply only when a person is being "interrogated." "Interrogation" means questioning by a police officer that is likely to cause someone to make an incriminating statement. A question such as "did you shoot him" would clearly be an interrogation, however, casual conversation between a police officer and an arrested person might not be considered an "interrogation" if the police officer does not ask the person questions that would typically be used against him in a criminal case. If a person is "in custody" and under "interrogation" they must be read their Miranda Rights. In most cases, if a person says something to a police officer when they should have been given their Miranda Rights, this statement cannot be used against the person in court. However, a huge exception to this rule is using a statement obtained in violation of a person's Miranda Rights to "impeach" them in court – to show that they are lying. For example, if a defendant testifies in court that a car was blue, but he previously told the police the car was red, his prior statement that the car was red can still be used to show the defendant is lying even if the statement was made in violation of his Miranda Rights.


The Right to a "Speedy Trial" – Criminal Law Information

A defendant's right to a speedy trial is guaranteed by the United States and California Constitutions. A "speedy" trial means that a person has the right to go to trial within a reasonable time after being arrested and charged with a crime. What is a "reasonable time"? In California, "reasonable time" means the following: (1) 30 days for misdemeanor offenses when the defendant is in custody at the time of his arraignment (arraignment is the first court hearing where the defendant is read his rights and can enter a plea of guilty, not guilty or no contest); (2) 45 days for misdemeanor offenses when the defendant is not in custody at the time of his arraignment; (3) for any felony offense a defendant has a right to have his trial within 60 days of his arraignment in the superior court. The right to a speedy trial can be waived. A defendant is entitled to waive his speedy trial rights, which means that they agree in open court to continue their case for a date past the speedy trial period. In order for this to be done, the defendant must expressly agree on the record in court to "waive time". Why would a defendant agree to waive his speedy trial rights and have his case essentially delayed? Often times it is beneficial for defendants to waive their speedy trial rights in order to provide their attorney (or themselves if they do not have an attorney) with more time to strategize or to negotiate a better plea bargain with the district attorney. On the other hand, there are certain situations where a defendant may not want to waive his speedy trial rights. For example, if they are confident in their defense and want to make the district attorney prepare for trial with less time – to put pressure on the district attorney – they may want to have their trial heard within the speedy trial periods discussed above.


Plea Agreements, Plea Bargains & Open Pleas – California Criminal Law

Criminal charges are often resolved without going to trial by negotiating a deal with the prosecutor or the judge. If the deal is negotiated with the prosecutor, it is called a Plea Agreement or Plea Bargaining. If a case is resolved with the judge, it is called an Open Plea. What is a plea agreement? A plea agreement (or plea bargain) is a deal that is negotiated between the prosecutor and the defendant or the defendant's attorney to resolve a case without going to trial. During the negotiations, the defendant and his attorney may discuss with the prosecutor details about the case, the defendant and/or the victim that should be considered in arriving at a deal. Ultimately, the defendant pleads "guilty" or "no contest" and in return, the prosecutor may reduce the charges to a lesser offense, drop certain charges, and/or recommend a lighter sentence for the alleged crime. While all plea agreements are ultimately subject to the court's approval, it is unusual for a judge to reject an agreement reached between a prosecutor and a defendant. What is an open plea? Sometimes it is to a defendant's advantage to go directly to the judge and simply plead "guilty" or "no contest" to the charges against him — without agreeing to any deal with the prosecutor. This is called an open plea. While judges do not have the same freedom as prosecutors to just dismiss certain charges or let a defendant plead to lesser charges, they do have the ability to set the sentence for the crimes charged. Judges may sometimes be more lenient or consider different factors in sentencing than prosecutors do and, as a result, direct negotiations with the judge and an open plea can be a potentially good option for resolving criminal charges. What is the result of a plea bargain or open plea? When a defendant enters into a plea bargain or enters an open plea, he gives up his right to go to trial, the right to confront witnesses, and the right to present a defense, among other things. For the defendant, the result is a conviction, but a conviction without the risk of going to trial and – presumably — with less severe and more appropriate penalties than might result from a trial conviction.


Pleading "No Contest" In a Criminal Case – The Legal Process

When someone is charged with a crime they can enter a plea of guilty, not guilty or no contest. Often, a guilty or no contest plea is entered as a result of a plea agreement – a deal reached with the prosecutor where the defendant gives up their right to go to trial in exchange for a specific, agreed upon punishment. It is important when entering a plea to understand your options and how a no contest plea is both similar to and different from a guilty plea. What is a no contest plea? Pleading "no contest" to a criminal charge is not an admission of guilt like when entering a guilty plea. Instead, a defendant entering a "no contest" plea agrees not to challenge the criminal charge – he accepts the deal reached in the plea agreement without expressly admitting that he committed the crime. How is a plea of no contest similar to a plea of guilty? A plea of no contest and guilty are treated identically for sentencing purposes in a criminal case. For example, if a defendant charged with DUI pleads no contest, the court will treat the no contest plea the same as if the defendant had plead guilty. The defendant's sentence and punishment will not change by pleading no contest instead of guilty. Why plead no contest? A plea of no contest is treated differently than a guilty plea if the defendant is sued by the victim in a civil lawsuit. For example, imagine a defendant that beats someone up and is charged criminally with battery and is also sued by the victim in a civil case (a civil battery claim). If the defendant pleads guilty in the criminal case, his guilty plea can be used against him in the civil case as evidence of his liability. On the other hand, if the defendant pleads no contest in the criminal case, his no contest plea cannot be used as evidence of his liability in the civil case. For defendants charged with crimes where the victim could also sue in a civil lawsuit, it is important to understand the difference between pleading guilty and pleading no contest. While pleading no contest instead of guilty will have no real effect in the criminal case, it could be important in the civil case.


Battery on a Police Officer in California: Not a Good Idea

On Wednesday, August 11, 2010, police officers were searching for suspects involved in an officer shooting in South Los Angeles. Officers were responding to a call when someone fired at them. While none of the officers was seriously injured, if criminal charges are filed, the criminal complaint will almost certainly include charges of Battery On A Police Officer. What is the difference between simple battery (on a civilian) and battery on a police officer? The biggest difference is the severity of potential punishment. Due to the special role of law enforcement as civilian protectors, the law often provides for stiffer punishments when a peace officer is a victim of crime. If identical batteries are committed against a civilian and a police officer, the defendant who committed the battery against the officer is likely to receive a harsher criminal punishment. Under California law, a simple battery – not against a police officer – occurs when a person suffers either no injury or a slight injury. The penalty for a simple misdemeanor battery is up to six months in jail and/or a fine of up to $2000. By contrast, if there is an allegation of battery on a police officer (or another specially protected class of persons such as firefighters or emergency medical personnel), an individual can face up to one year in jail and/or a fine of up to $2000 OR a state prison term for of months, 2 or 3 years. In order to convict a person of a battery against a police officer, the prosecution must prove that (1) the individual committed the battery, (2) it was against a police officer, (3) the officer was engaged in the performance of his/her duties, (4) the individual knew or should have known that the officer was a police officer, and (5) the officer sustained an injury. In the shooting discussed above, if an officer sustained any type of injury, this could be sufficient for the prosecution to prove battery against a police officer, assuming the other elements of the crime are met. In cases involving altercations between civilians and police officers, another common charge is what is informally referred to as "resisting arrest." Such was the case for several men arrested for battling with police during the violence that erupted after the Los Angeles Lakers won the 2010 NBA Championship. On June 22, 2010, three of the men pled no contest or guilty to charges of resisting arrest, and one also pled guilty to battery on a police officer – that individual received a 90 day jail sentence and 36 months of probation.


Los Angeles Marijuana Defense Attorneys – Things to Know

While Northern California is typically thought to be the "pot capital" of California, Southern California has become a leading spot for growing marijuana. In the Angeles National Forest, above the city of Glendora (about 20 minutes east of Downtown Los Angeles), the Los Angeles Sheriff's Department has noted that 1000 square miles of the Forest have become a favorite spot for marijuana growers due to its dense peaks and canyons that provide camouflaged protection. Last year, the Sheriff's Department confiscated nearly 700,000 plants from the Forest. Since May 2010, deputies have confiscated $200 million dollars worth of marijuana plants. No suspects have been detained, although deputies reportedly believe that growers and cultivators may be connected to Mexican drug cartels. Marijuana cultivation (Health and Safety Code §11358) is a felony. In order to be convicted of unlawful marijuana cultivation (i.e. not lawful medical marijuana cultivation), the prosecution must prove that the defendant had a role in growing or manufacturing marijuana which includes handling of the seeds, cultivation in soil, or drying and processing the marijuana once it has been harvested. A defendant convicted of marijuana cultivation can face up to three years in prison if probation is denied. In additional to a marijuana cultivation charge, a prosecutor could also charge a defendant found with marijuana with Possession of Marijuana with the Intent to Sell (Health and Safety Code §11359) if the alleged evidence supports this charge. To convict a defendant of possession of marijuana for sale, the prosecutor must prove that a person knowingly possessed marijuana with the intent to sell it. Police officers typically testify that a defendant possessed the "intent to sell" based on factor such as: (1) a large amount of marijuana seized, (2) the marijuana was packaged in individualized, often small, baggies, (3) the defendant is located where dealers typically conduct sales, (4) the defendant is located without paraphernalia (e.g. a bong or pipe) indicating personal use and (5) the presence of a significant amount of cash and/or weapons, If convicted of marijuana possession for the purpose of sale, a person can face up to three years in prison and up to a $10,000 fine. Without evidence of marijuana cultivation of possession for sale, a defendant found with marijuana may still be charged with possession of marijuana for personal use (Health and Safety Code §11357), a misdemeanor (unless the substance is has). In order to be convicted of simple possession, the prosecutor must show that (1) there was marijuana in an individual's possession and (2) that individual knew marijuana was in their possession. "Possession" means that the marijuana was somewhere within a person's control, such as in their pocket, car, or apartment. For example, if marijuana is found in an apartment the defendant shares with a roommate, he can still "possess" marijuana even if it does not belong to him or her, because it is located in a common areas. However, the person must still have knowledge of the marijuana's presence. A person's lack of knowledge that the marijuana was in the common area should bar a conviction. Conviction of marijuana possession for personal use under an ounce, other than concentrated cannabis (hash), typically results in a $100 fine, court surcharges, and no jail time. For persons under 21 years old, a marijuana conviction will result in suspension in driving privileges. Many defendants convicted of possession of marijuana for personal use qualify for drug programs, instead of jail time. Such programs include Deferred Entry of Judgment, Drug Court, Proposition 36, or some other court-ordered drug program. These programs generally allow for the complete dismissal of the case once the program is completed, and the defendant will have no criminal record.


Garret Weinrieb
Weinrieb Criminal Defense Attorneys

If you or someone you care about is facing criminal investigation or criminal charges of any type, please contact the criminal defense attorneys at Valerio|Weinrieb. We can be reached twenty-four hours a day, seven days a week at (818) 933-6555, through our toll-free number at (877) 7NO-CUFFS (877-766-3833), or through the confidential and secure email form on the firm’s website at www.VWattorneys.com.

 

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