Can the police search you or your property without a search warrant? What happens if the search is illegal?Posted on: June 10, 2007 at 9:08 p.m.
This question addresses Search and Seizure Law which provides protections to all people from unreasonable police infringement on their rights, as provided in the Fouth Ammendment in the U.S. Constitution. The bottom line in court is whether the search is legal or not. In cases where there is a search warrant, a judge has reviewed the officers' reasons for the search in advance. In other words, the judge has signed off on the search, meaning that if what the police told him under oath him is true, there is sufficient cause to search a certain location. In cases where there is no warrant, the police upon observing suspicious activity justify a search of your person, your car, or your home based on their own opinion. Because this type of search is not judicially preapproved, it receives more scrutiny from courts after someone is arrested and charged. A defense attorney files a Motion to Suppress Evidence to prevent illegally obtained evidence from being used in court against a client pursuant to the provisions of Penal Code Section 1538.5. If the judge finds the police violated a person's constitutional rights, the officers did not have sufficient cause to search you or your property. Thus the recovered incriminating evidence, ie. drugs, firearms, or any other illegal items, is excluded from court which often leads to the case being dismissed. Or, if the police stopped your car for improper reasons to later conduct a DUI investigation, the entire DUI case is dismissed.
Tagged as: faq, juvenile law, motion to dismiss unlawful police search
What defense options are available to a client facing charges in juvenile court? Can juvenile records be sealed?Posted on: June 5, 2007 at 12:49 a.m.
California law provides that juvenile court is about rehabilitation not punishment, except in cases of serious violence such as murder and rape. Unlike adult court, all proceedings are confidential and not open to the public. The law attempts to straighten out youthful offenders through monitoring school achievement, home life, curfew, and general attitude. Essentially a juvenile court judge is a surrogate parent. Minors are given multiple chances through the Welfare & Institutions Code to have case dismissed, and charges sealed, if they follow the court's orders. A juvenile has the same constitutional rights (except a jury trial) to challenge the evidence against him in a court through cross examination, and calling own witnesses. Most minors are eligible to have their records sealed after they turn 18 years old. The exception to these flexible laws are cases of murder, rape, and the sort, wherein a minor who is at least 14 years old may be prosecuted in adult court, if the DA chooses to send him to state prison. The law feels that the seriousnes of these crimes outweighs the need for rehabilitation.
Tagged as: faq, juvenile law
There are websites where detailed information about sex offenders is posted-where they live, what they were charged for, age, etc. I was looking at sex offenders in my hometown, and I noticed there was a rather old sex offender (80ish years old) just a few blocks away from me. Is a sex offender's information posted for a probationary period (a few years, perhaps) or indefinitely?
Sex Registration under California law requires a lifetime of registration, as the Legislature believes that these convicted felons must be tracked for life due to a high rate of recidivism. This information is published online and thus this is a "Scarlett Letter" for the person for life that tracks him.
Tagged as: sex crime accusations
Proposition 215 was passed by the voters in California in 1996, commonly referred to as the Compassionate Use Act. That was followed 8 years later by Senate Bill 420, enacted in 2004. These two propositions have been codified in the California Penal Code section 11362.775 et seq. The federal government does not recognize this law, and thus sales of marijuana under the federal system are criminalized.
Unfortunately, the Los Angeles Police Department has decided not to enforce the laws of California, but to act as "de facto" DEA agents. It is this conflict between state and federal laws that leads to abuses of power by the local police.
In a recent case handled by the firm, a client had substantial monies and several ounces of marijuana ordered returned to him by the Court, after the D.A. dismissed the case in the middle of a preliminary hearing. The case had substantial problems of proof, as we had the recommending medical doctor ready to testify and the LAPD "expert on drug sales" was not familiar with the provisions of Medical Marijuana laws, packaging, or business operations. In sum, cross-examination of the police officers on the case demonstrated they knew very little about the law.
Tagged as: drug addiction and treatment, drug crimes defense, faq
Bail is financial assurance that a Defendant will return to court after being released from custody. There are two ways to post bail. First, "cash" bail may be posted with the custodial agency to cover the entire amount of the bail. At the end of the case, if bail is exonerated, the defendant will receive a check for the entire amount posted (takes about 8-10 weeks). Second, a "bond" through a bail company may be posted. A defendant pays about 10% of the entire amount to a bail company, which puts up the entire bail amount through a bond. If bail is exonerated, the 10% is not returned to the defendant because this is the fee he paid to the bail company to post bail on his behalf (like an insurance premium).
Although the standard bail fee is 10%, there are certain circumstances where clients can qualify for an 8% premium. The bond company requires that the attorney has already been retained before qualifying the individual for a reduction. NOTE: There is no bail in Juvenile Court. The juvenile is either deemed "detained" or "non-detained" during arraignment. He remains in the same status until a contested detention hearing, or the end of the case.
Tagged as: bail and release, faq
How can I clear a warrant for my arrest? Can I be arrested in another state for a California warrant?Posted on: May 28, 2007 at 1:57 a.m.
Clearing up an arrest or bench warrant can be done one way: appearing in front of the court that issued the warrant. As long as the warrant is in the system, the person can be arrested for it in any state, in any contact with the police or government agency, and even coming into the United States at the airport. Immediate action to clear up the warrant is the best way to approach this problem. Voluntarily coming into the court may often prevent later jail or prison time if the person is actually arrested on the warrant.
Tagged as: bench warrants, faq
Arraignment is the initial court proceeding where a defendant is advised of his charges, and usually enters a Not Guilty plea. If a defendant is out on bail, he stays out of custody unless the prosecutor demonstrates to the court that the defendant is a flight risk, or a danger to the community, above and beyond what the posted bail would prevent against. In other words, the prosecutor has to explain to the judge why the defendant needs to be rearrested when he has already voluntarily shown up to court, after posting bail. The prosecutor clearly has the burden here, and bail gets increased in cases where Defendant is on probation, there are new charges filed, or the source of bail (the monies used) are connected to illegal conduct.
Tagged as: bail and release, faq
Not necessarily. There are many reasons why the alleged victim or reporting party has a change of heart. It may be that the report of crime (violence, theft, or other violation) may have been false or inaccurate. It may also be that the person is scared to proceed with a prosecution. The police and the prosecutor's office are aware of all the reasons, and do not just "drop charges" especially in domestic violence cases. They attempt reinterview the reporting party to understand the reason behind the change of heart. The only exception is alleged sex crimes cases. The reporting party's desire to not testify and prosecute are respected, thereby causing the criminal charges of unlawful sex to be dismissed.
Tagged as: domestic violence pc 273_5, faq
What happens if I am arrested for DUI? Do I have to defend myself in court? What about the DMV process?Posted on: May 26, 2007 at 1:58 p.m.
Recent changes instituted by the California legislature have dramatically increased the consequences for first or subsequent DUI arrests. A DUI arrest where someone's blood alcohol is .08% or greater begins two separate legal proceedigns - one in court, and one with the DMV. In court, it is a criminal proceeding, where a suspect on a 1st time DUI faces up to 6 months in jail (not mandatory jail - optional), a fine of up to $1000 plus penalties, and other consequences such as community services, working at the morgue, and/or the hospital. The DMV institutes separate administrative proceedings to take away the suspect's license for up to 4 months. You have 10 days from the time of your arrest to request a hearing to fight this suspension, or you lose your license without even a hearing. If you have prior DUI convictions, the consequences in court and the DMV are substantially worse including mandatory jail, a year or more license suspension, and extensive alcohol schooling. A person who has a professional license (lawyers, doctors, police officers, others), or a class A commercial driver's license, have collateral consequences at their place of employment as for many a criminal conviction may cause them to lose their job or face suspension from working.
Tagged as: dui drunk driving defense vc 23152, faq
A defense attorney seeks to exclude evidence obtained as a result of police misconduct. At times, police misconduct occurs in searches that occur during ordinary traffic stops, or in a suspect's home. Additionally, if law enforcement is too aggressive trying to obtain an incriminating statement from a suspect, it may violate the suspect's Miranda right. Litigation in the criminal courts allows a defense lawyer to protect his client's rights by submitting motions to the judge seeking to exclude the recovered evidence, or received statements, from trial. Often a successful motion to suppress cripples the prosecutor's case, causing the case to either be dismissed, or substantially reduced in plea negotiations.
Tagged as: faq, motion to dismiss unlawful police search
Eisner Gorin LLP has been recognized as one of the best U.S. law firms, based on the experience, professionalism, and ethics of its criminal defense lawyers and attorneys. We aggressively defend clients in all Southern California courtrooms on state and federal charges, including DUI, DMV, misdemeanor, felony, juvenile cases, in the following communities and courthouses.