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- Shooter In San Bernardino Terrorist Attack Arrested on Federal Conspiracy, Marriage Fraud and False Statementa>
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- Considering A Plea
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Penal Code 1203.4
Penal Code 1203.4 and 1203.4a gives the court authority to dismiss a prior conviction, although not an infraction under the Vehicle Code. If the petition is granted and the conviction is expunged, it allows an individual to withdraw his/her guilty plea in court, and replace it with a record that indicates charges have been dismissed.
Typically, a party charged with a crime that can be expunged must have already completed probation to be eligible. However, a qualified criminal defense attorney can move the court to terminate probation sooner where warranted, and at the same time, file a 1203.4 petition to have the charge dismissed. Also, all restitution fees must have been paid prior to seeking this relief. If you served a county jail prison term (for a felony or misdemeanor) or simply a penalty for a probation violation, you may be eligible to have your case dismissed. Call Walk Tree Law today to determine whether or not you qualify.
An experienced criminal defense attorney may seek the following relief options simultaneously: to have probation terminated early, to reduce the felony charge to a misdemeanor (if the offense is a ‘wobbler’) and the dismissal of the charge under 1203.4. Even if someone has been convicted of a felony or pled guilty to a felony, if the offense is a "wobbler", an attorney can petition the court to reduce the charge to a misdemeanor and have it dismissed.
Certificate Of Rehabilitation
Penal Code Sections 4852.01-4852.21 issues Certificates of Rehabilitation that attests to your rehabilitation for a felony conviction for which you served state prison time or for a particular sex misdemeanor.
If you are issued such a Certificate, your civil rights (excepting the Second Amendment to the U.S. Constitution) are restored; you may not be denied public licensing or employment based on your conviction; you no longer are obliged to register as a sex offender, if applicable; and you are automatically qualified to apply for a Governor’s Pardon.
Driving Under The Influence
There are two DUI charges in California law typically used in an arrest for driving under the influence: a drunk driving offense: California Vehicle Code 23152(a) -- driving while under the influence of alcohol or drugs, and California Vehicle Code 23152(b) -- driving with a blood alcohol concentration (BAC) of .08% or higher.
Most DUI arrests begin with a traffic stop or at a checkpoint. The officer asks the suspect to undergo a field sobriety test and administers a breathalyzer test. If the suspect fails the test, the officer may arrest the suspect for a blood or breath test at the police station, jail, or hospital. Refusal to submit to a test may result in harsh penalties and the suspension of the suspect’s driver’s license for one year.
For the majority of misdemeanor DUI arrests, the police will release the defendant within a few hours of arrest. For felony DUIs or accidents, the defendant may have to post bail. Upon release, the defendant is given a citation to appear in court and a pink temporary license because the original is confiscated.
The defendant must contact the Department of Motor Vehicles within 10 days of the arrest to schedule a hearing. If the defendant fails to do so, he/she forfeits his/her right to a hearing and the defendant’s license is automatically suspended after 30 days.
In most cases, the attorney conducts the hearing on the defendant’s behalf. The defendant may or may not be asked to attend. The lawyer's primary objective is to convince the DMV not to suspend the defendant’s driver's license. But the lawyer may also use the DMV hearing as an opportunity to gather evidence that may prove useful to the suspect’s defense.
It is highly advisable to consult a lawyer to demand the hearing and have your case argued before the DMV. A lawyer can subpoena the breathalyzer's maintenance and calibration logs that may show a history of malfunctions and inaccurate readings, discrediting the results. A lawyer can also subpoena the arresting officer to testify, which can reveal inadequate training in DUI and errors during the DUI investigation.
If the DMV finds in favor of the defendant, there is no license suspension imposed. If the DMV finds against the defendant, his or her license is suspended. However, a DUI conviction in court might entail a separate suspension. In DUI court proceedings, defendants with BACs above .08 are charged with one of two misdemeanor crimes: DUI under Vehicle Code 23152(a) and Driving with Excessive BAC under Vehicle Code 23152(b). In most cases, the attorney can attend all the DUI court proceedings without the defendant but there may be instances where the defendant is also required to attend to testify or if the case goes to trial.
If the lawyer successfully secures a settlement whereby the defendant pleads to a lesser charge, he/she may plead in person before the judge. Or in many cases, he can sign a Tahl waver, which is a guilty plea form that advises a defendant of his rights and indicates waiver of those rights in order to enter a plea. The name derives from a 1969 California Supreme Court decision in the case of In re Tahl, which held that the court must insure that defendants understand their crucial rights and knowingly and voluntarily waive them. The court, in part, said, "... each of the three rights mentioned -- self-incrimination, confrontation, and jury trial -- must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea".
If no settlement can be reached, the case will be set for jury trial. This is often a more congenial environment for plea-bargaining and a further opportunity to scrutinize evidence.
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