Charges may be brought against you in three different forms. You may be charged with a felony, misdemeanor, or an infraction.
A felony is the most serious of these offenses, which may be punishable by time in prison. However, felonies can receive lower sentences involving probation. It is important to have an experienced attorney represent you in these matters in order to achieve the best outcome for your case.
Examples of a felony are murder, sale of a controlled substance, and rape. However, many other charges may be charged either as a felony or as a misdemeanor. Some examples would be burglary, domestic violence, and forgery. Facts such as your criminal history, the facts of the case, and even the jurisdiction of your case may decide whether your case is charged as a felony or misdemeanor.
As long as you were not sentenced to California state prison or convicted of certain sex offenses or violent crimes, it may be possible to get your California felony expunged.
An expungement is not a complete “erasure” of your conviction. However, it does relieve you of some of the consequences of a felony conviction, including (sometimes) the ban on gun ownership and the requirement to disclose the conviction on most job applications.
A misdemeanor is not as serious as a felony with its maximum punishment being a year or less in jail. Many misdemeanors do not receive any jail time. However, misdemeanors still have repercussions on your record and there may be jail time. It is important to have an attorney you trust represent you on these matters.
Petty theft, driving on a suspended license, and prostitution are examples of common misdemeanor charges. Some charges can be charged as a misdemeanor or a felony, as shown above. Some misdemeanor can be charged as a misdemeanor or an infraction. This determination will be based upon the facts of the case, your criminal history, and the jurisdiction of where the crime occurred.
A misdemeanor may be expunged off your record, but like with a felony expungement, this is not a complete “erasure.” For example, after a DUI is expunged from your record, it will still remain a prior for all purposes until the 10 year period of prior-ability has passed.
An infraction is also known as a ticket. This is the least serious of the charges that can be brought against you. However, this does not mean they do not come with punishment. Often an attorney is necessary to help you navigate the system.
A speeding ticket, minor in possession, and littering are all examples of infractions. However, while the speeding ticket and littering ticket will only result in a fine, it is important to note that a minor in possession ticket will result in a loss of driving privileges for one year.
An infraction may be expunged from your record after one year from the date of conviction. However, generally it is not worth the time since it is viewed as a ticket only.
Sometimes the best defense in a criminal case is a good offense. Finding a good attorney prior to charges being filed may assist in your defense.
If police suspect someone broke the law, they will investigate the matter. This is called a “pre-file investigation” because the police are looking into the case prior to any criminal charges being filed.
During a pre-trial investigation, law enforcement may interview witnesses, gather evidence, search background records, and hire independent experts. Once the investigation is over, the District Attorney (D.A.) decides based on the evidence whether to press charges.
Often suspects will simply receive a knock on their door or a phone call by detectives from a police agency. But in many cases police conduct secret probes so that suspects have no idea that they are under investigation. These covert investigations permit detectives to gather information without fear that the suspect will flee or destroy evidence.
The pre-file investigation time period varies case-to-case. It is not unusual for pre-file investigation in large-scale drug, theft or white-collar crime cases to last several months or longer.
An attorney may assist a suspect in a pre file investigation. During this time, an attorney will help the suspect navigate the system and prepare them for the next steps that will take place. An attorney will be able to be present and help a suspect assert their 5th amendment rights, which is generally always advised by counsel. Choosing to remain silent cannot be used against suspects in court, but if a suspect gives a detrimental statement to police, it is very difficult to get that statement excluded as evidence. With an attorney, the suspect may have their rights preserved and a person to speak on their behalf without the possible repercussions that otherwise may occur.
Hiring an attorney during the investigation period also gives defense counsel time to start pro-actively conducting its own investigation, hiring its own scientific experts and detectives, and gathering information. Defense counsel also serves as an intermediary between the detectives and the suspect, and defense counsel can also demand that the detectives stop contacting the suspects. Defense counsel may also speak with the D.A. while they are deciding whether they want to file charges against a suspect.
Driving Under the Influence “DUI”
Admin Per Se Hearing:
Once there is an arrest for driving under the influence. “DUI,” in California, there are two separate legal proceedings that are triggered. First is with the Department of Motor Vehicles, “DMV,” and the second proceeding is with criminal courts. Both of these proceedings have their own procedures, rules, and punishment.
The criminal court case, see below, may results in punishment involving jail time, fines, DUI school, and probation. While the DMV, by contrast, is an administrative proceeding that deals exclusively with your driving privileges and whether or not to enact a driver’s license suspension.
If you are arrested in this state for drunk driving, the arresting officer will confiscate your driver’s license and provide you with a pink “Notice of Suspension”. This notice acts as a temporary license for 30 days. More importantly, this document also gives you notice that you are entitled to a DMV hearing to prevent this suspension but only if you request it within ten (10) days of the arrest. If you do not contact the DMV within this ten day window, you will FOREVER lose the right to be heard.
Even if you lose your DMV hearing, your attorney may nevertheless have elicited information during the proceeding that could still encourage the prosecutor to offer you a reduced plea. Certain plea bargains or a win at trial could cause the DMV to set aside the suspension even after it went into effect.
But as far as your driving privilege is concerned, the suspension/revocation will go into effect. The length and circumstances of the restriction will depend on whether it is your first, second or subsequent offense.
DUI in Criminal Court:
Most people whose BAC exceeds .08 get charged with two misdemeanor crimes: DUI under Vehicle Code 23152(a) and Driving with Excessive BAC under Vehicle Code 23152(b). There are other statutes you may be prosecuted under depending on the facts of your case, including but not limited to Vehicle Code 23153(a)/(b) for a DUI with injury, Vehicle Code 23136 for a minor with a blood alcohol level above 0.01%, and Vehicle Code 23140 for a minor with a blood alcohol level above 0.05%. Your objective is to avoid conviction for any of these offenses.
Your attorney most likely can attend all the DUI court proceedings on your behalf, unless there’s a hearing where you have to testify, the case goes to trial, or you are ordered to be present by the judge. Most DUI cases may involve several court dates, and can span over several months. During this time, your attorney collects evidence, runs motions, and negotiates with the prosecutor seeking a dismissal or a reduction in the charges.
If a settlement is reached involving you pleading to a DUI or a lesser charge, this can be completed one of two ways. You may come to court and plead in person before the judge or your attorney can then brings the documents to court and execute the plea on your behalf.
If no settlement can be reached, the DUI case ultimately will get set for jury trial. Prosecutors and judges sometimes give better deals after a case gets set for trial, but if not, then you will proceed towards trial with your attorney arguing your case.
California Department of Motor Vehicle Hearings
Negligent Operator Hearings:
If the California Department of Motor Vehicles determines that you are a “negligent operator,” your driver’s license will be suspended or revoked.
The DMV will bring a Negligent Operator proceeding against you once you have accumulated more traffic violation points on your record then allowed or for an accident resulting in a death. You accumulate points for at-fault accidents violations of traffic laws, no matter if they are minor or major violations. If you accumulate enough points within a 1-, 2- or 3-year period, or if you are involved in an accident where a person is killed, the DMV can declare you a negligent operator and suspend or even revoke your right to drive.
For many people, a negligent operator designation and a driver’s license suspension as a result might as well be a criminal sentence. Many of us need to drive in order to work and support our families, maintain a functioning social life and even buy groceries.
If you receive a letter from the DMV declaring you a negligent operator, your best bet is to request a negligent operator hearing to challenge this.
This hearing is your best shot at getting the designation reversed. An experienced California DMV hearing attorney who understands the negligent operator treatment system can help you fight to save your driving privileges.
The California DMV will restrict, suspend, or even revoke your driver’s license if it believes you suffer from a medical condition – such as epilepsy or Alzheimer’s disease – that affects your ability to drive safely. This is a common cause of driver’s license suspensions for elderly drivers.
A driver’s license suspension due to a physical or medical condition can be a devastating situation for someone who is already facing great personal difficulty. But in that situation-as with a negligent operator designation-you have the right to challenge your suspension at a DMV hearing, with the help of an attorney.