Criminal Law Practice Overview
After twenty plus years of practice, I have come to the conclusion that my initial task in every new case is to evaluate the case objectively, and advise my client as to what I think the attainable goals are in his or her case. I do not tell clients what they want to hear, nor do I try to scare them by belaboring the theoretical but unlikely consequences of their predicament. The goal is to give the client a number of viable options, the cost of pursuing those various options, and the various likelihoods of success. Most of my clients do want to hear what I think they should do. Ultimately though, it is the client who decides how to proceed with the case based on their own circumstances. Below I have listed various types of cases that I deal with on a day- to-day basis.
I think it is common knowledge that if you are charged with or think you might be charged with a felony or felonies, you potentially have a serious problem. Felonies are punishable by imprisonment in a state prison. Beyond that, felony convictions, even with a grant of probation, can constitute strikes, can carry lifetime registration requirements, and can negatively affect a persons employment prospects for the rest of his or her life. Felony convictions also carry a host of other penalties and disabilities such as the inability to vote or to legally own or possess firearms.
As with all cases, the primary goal in a felony case is to make it go away. That can sometimes be accomplished by convincing the prosecutor not to file the case in the first place; or, once the case is filed, it can be accomplished by litigating the case to the point that a prosecutor, judge or jury determines that it cannot be proven beyond a reasonable doubt.
However, cases are filed for a reason and it is oftentimes not possible to make them go away. The next best option in many felony cases is a guilty plea to a misdemeanor. This can be accomplished through a plea agreement with the prosecution or by an order from the judge. Failing that, the next best option may be a guilty plea to a felony with an agreement that it will be reduced can be reduced to a misdemeanor at a later date. In those cases that result in a felony conviction, the main goal is a grant of probation–meaning 1) that you cannot be sent to prison unless you violate your probation, and 2) that your felony conviction can be expunged upon the successful completion of probation. It is only in the most serious and/or violent felony cases that result in a state prison sentences. Obviously, the goal in those cases is to limit the amount of prison time. The good news is that because of recent changes in California law, many prison sentences can now be served in local County Jails.
Misdemeanors are punishable by fines or incarceration in the County Jail or both. Like felonies, the prosecutor can sometimes be talked out of filing the case altogether, but failing that and absent a dismissal or a not guilty verdict at trial, the best option in misdemeanor cases is diversion. Misdemeanor diversion is similar to probation in that it lasts for a period of time (four months to two years depending on the county), entails paying a fee (approx. $400) and may include conditions such as community service, attending a theft awareness class, or an anger management class. Unlike probation, a person who is diverted cannot be ordered to serve any jail time; and, once the diversion is successfully completed, the case is dismissed without a conviction on the person’s record.
However, diversion is only available for certain misdemeanor charges. If your misdemeanor charges are not initially diversion eligible, the prosecutor may be willing to amend the criminal complaint dismissing or amending the non-diversion eligible offenses, thereby allowing you to be diverted. If you do suffer a misdemeanor conviction, the goal is to limit the length and the conditions of probation, limit the amount of jail time, if any, and make sure that any jail time can be served out-of-custody in an alternative program such as Sheriff’s Work or the ankle bracelet.
Another benefit to having an attorney in misdemeanor cases is that you may never have to go to court yourself, which is particularly helpful to out-of state clients.
Infractions are handled in traffic court. I am not a big fan of traffic court. It is basically a money making operation for most counties and conviction rates are extremely high. As with all cases, you are better off with an experienced, competent attorney, but in traffic court the cost of hiring an attorney may outweigh the benefits. That being said there are certain situations in which it is beneficial to have an attorney in traffic court. First, some types of misdemeanors are routinely filed in traffic court, and you should never suffer a misdemeanor conviction in traffic court. Your notice from the court will tell you if you are charged with a misdemeanor. Second, if you are facing multiple traffic cases in the same jurisdiction, an attorney can oftentimes package the cases together and work out a plea agreement thereby saving you money and/or a driver’s license suspension. Third, even if you have multiple traffic cases in the different counties, an attorney may still be able to lessen the amount of the overall fines and help you avoid a driver’s license suspension.
A domestic violence offense is essentially any crime, including the lowest level misdemeanors such as disturbing the peace, that involves the arrestee’s significant other or former significant other. I advise everyone who contacts me with a potential domestic violence case to obtain counsel as soon as possible for the following reason.
Most law enforcement agencies have policies in effect that require them to arrest someone on a domestic violence call irrespective of whether someone wants to “press charges.” Even 911 hang-ups routinely result in an arrest. As a result, a significant percentage of the domestic violence cases are baseless or otherwise difficult to prove. Thus, many prosecutors are open to hearing all the facts and circumstances surrounding the incident before deciding whether to file charges because most would prefer not to file a case rather than to file a case which they later have to dismiss or lose at trial.
Driving Under the Influence
First, second and third offense DUIs are misdemeanors, unless the person has a prior felony DUI conviction within the preceding ten years. Fourth offense DUIs or DUIs causing injury are usually charged as felonies. Most DUI arrests also result in a separate DMV proceeding aimed at suspending your driving privileges. In terms of guilt or innocence, the main issues in a DUI case are whether you were legally contacted by the police to begin with and whether you were driving a vehicle with a blood alcohol content at or above .08% or with a baseline drug content. Even if those issues are well established, many people find it useful to hire an attorney to minimize their punishment including the length of their license suspension.
Recent changes in California law have made it easier to cleanse your record of contacts with the criminal justice system. Specifically, if you were ever arrested for a crime that did not result in a conviction, or charged with a crime that did not result in a conviction, you now have a right in most instances to have your records sealed.
Expungments are also still available for convictions. I typically charge $500 plus the county filing fee, if any, to prepare and file sealing/expungement motions.
The two most common types of restraining orders are domestic violence and civil restraining orders. To prevail on a domestic violence restraining order the petitioner only needs to show proof by a preponderance of the evidence; civil restraining orders require the more stringent proof by clear and convincing evidence. I am usually retained to defend against restraining orders, but I also file petitions seeking them. Either way, litigating restraining orders is time consuming. I charge a minimum of $2500 plus the cost of filing fees and service, but the fee and costs oftentimes exceed that amount.