SoCal Criminal Defense Lawyer's Blog

How to Challenge Your Traffic Ticket Without Going to Court

2011-07-29T11:08:00.000-07:00

If you receive a ticket which you felt was totally unjustified, you have every right to challenge it. The problem is, to do so you need to take time off from work to go to court, right? And c’mon, you’ve seen traffic court, it is a total PAIN, as you may spend hours simply waiting for your case to be called.

There is another solution. California allows a person to file what’s called a Trial By Declaration (TBD), which is basically fighting your ticket through the mail. It works like this:

In order to file a TBD, you must post bail, which will be the amount you owe on the ticket. (Don’t worry, if you win, you will get that money back.) The court will not allow you to file a TBD without first posting bail. Call the court clerk in your county with your case number and ask for the bail amount.

Also ask the clerk if there are any local rules you must follow to file a TBD, as there may be procedural differences between counties. However, the forms you fill out are state wide, and the official forms will be accepted throughout California.

The forms you will initially need are the TR-200 “Instructions to Defendant” and TR-205 “Request for Trial by Declaration.” These forms can be downloaded here.

Completely fill out the Request for TBD form and sign it. You may include evidence such as photographs, diagrams, and a statement of what happened (just attach whatever you need). Your written statement must always include the following language: “I declare under penalty of perjury that this statement is true and correct.”

It is helpful to review the law and understand what you have been cited for. You should look up the vehicle (or other) code section to see if you can disprove an element of the offense. A copy of the vehicle code can be found online here.

Once you have filled out your form with your argument, send the completed form along with the proper bail amount to the court clerk. Once the request is received, the court will notify the officer to prepare a declaration regarding the infraction as well. A judge will review the declarations and make a decision.

In your declaration, you may request traffic school in the event you are found guilty. If you do not intend to challenge that decision, and you are eligible for traffic school, this is a good idea. However, a judge does NOT have to grant traffic school, as it is discretionary at that point. Prior to any type of trial, if you are eligible, you may always attend traffic school.

If you are found guilty, you really haven’t lost everything yet, because you can still request a “Trial de Novo”, which is a new trial in court with the officer present. When you receive notice that you have been found guilty based on the TBD, you have 20 days to request a new trial. To do so, you will need to fill out the form TR-220 “Request for a New Trial”, also found at the website provided above.

When you request a new trial, a date will be set by the court for you to appear. The officer will be subpoenaed to appear as well. At that point, you first want to cross your fingers and hope you win the “traffic cop lottery”. If the officer does not show, your ticket will be dismissed. If s/he does show, you can then either request traffic school prior to trial or proceed to argue your ticket. If you are found guilty, you can still request traffic school but it will be discretionary for the judge to allow it, and many will not do so after trial.

Trials by declaration are a handy way to avoid having to spend a morning or afternoon in court. They are not as successful as a court trial, but they can beat your ticket, especially those that are decidedly undeserved.

If you have questions regarding how to prepare a TBD or fight any traffic or criminal matter, feel free to email at attorneyscottball@gmail.com or call me at 714-973-2024. Thanks and good luck!

Common Traffic Tickets in CA Explained: Failure to Yield

2011-04-21T10:00:00.000-07:00

Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)

If you’ve been cited for one of the many violations dealing with failing to yield, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common failure to yield violations:

• VC 21451 & VC 21453 – Right of way in intersections. If another vehicle is in the intersection before you, you must give them the right of way, even if your light is green, you have already come to a complete stop at a stop sign, or before making a right turn on a red light. You do not have to wait until the intersection is completely cleared before entering, but you must not deliberately crowd other vehicles. Whether you are a crowding another vehicle is a subjective interpretation by the citing officer. This kind of subjectivity can be brought into question in court, and an experienced attorney can often create the reasonable doubt necessary for a finding of not guilty. NOTE: VC 21453, dealing with failure to yield at a red light, is a particularly harsh offense, with a base fine of $100, which, with penalty assessments and various court fees, will cost you over $450 for a conviction.

• VC 21800 – Uncontrolled four way stops. Remember driver’s ed? If you and one or more vehicles get to a four way stop at the same time, the vehicle to your right has the right of way. However, if any vehicle came to a complete stop first, then that vehicle has the right of way. This violation is often cited when an officer comes to the scene of an accident which they did not see. If this is the case, it is important to remember to never admit to the officer that the other vehicle was there first or that you were at fault. Your admissions can and will be used against you in court.

• VC 21801(a) – Left or U-turn. When you are making a left or U-turn and there is no controlled green arrow signal, you must yield to oncoming traffic. Again, this is another very subjective interpretation by the officer, and it is also another infraction that can be successfully challenged by a skilled attorney.

• VC 21802 & VC 21803 – Stop and yield signs. Even if you have come to a complete stop, you must still yield to oncoming traffic if, upon entering the intersection, you constitute an “immediate hazard” to any other vehicle. However, this traffic ticket can be challenged by numerous methods, such as obstructions that made you unable to see oncoming traffic, or if the other driver was driving at an unsafe speed.

• VC 21950(a) – Pedestrian in a crosswalk. You must yield to pedestrians at both marked and unmarked crosswalks, even after coming to a complete stop. An unmarked crosswalk is the prolongation of sidewalk boundaries where any two streets meet at right angles. You do not have to wait until the pedestrian has exited the crosswalk, it is only required that any pedestrians are out of the way. This is a different rule than in some states, and police officers can sometimes mistakenly cite you incorrectly. If that is the case, it is important to have an attorney with you to challenge this sort of ticket.

• VC 21951 – Passing vehicle stopped at a crosswalk. If a vehicle in front of you has yielded to a pedestrian, you may not pass that vehicle. This is fairly straight forward, but can be subject to several challenges by a skilled attorney that can create reasonable doubt about your guilt. This section is also a particularly harsh offense, with a base fine of $100, which, with penalty assessments and various court fees that will cost you over $400 for a conviction.

• VC 21952 – Pedestrian on sidewalk near driveway. You must yield the right of way to a pedestrian on a sidewalk when entering or exiting a driveway. Just because a driveway isn’t a regular roadway, doesn’t mean that you have the right of way!

If you have been cited for any of these common traffic infractions, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. If you would like a free and completely confidential evaluation of your case, contact the Law Office of Scott R. Ball today.

Underage Drinking and Driving - VC 23136 & VC 23140

2011-03-11T14:52:00.000-08:00

You probably know that if you are over the age of 21, it is illegal to drive with a blood alcohol level over .08%. You may even be aware of your right to refuse to take the road side breathalyzer test (referred to as a preliminary alcohol screening, or PAS test) if you have not been placed under arrest. (Remember, if you are placed under arrest, you MUST submit to a chemical test, either of your blood or breath.)

But it’s a whole different ball game if you are under 21.

For starters, those who may not legally drink in California also do not have the right to refuse the PAS test. The Vehicle Code specifically provides that any person under the age of 21 who has been legally stopped has given consent to any chemical or screening test to determine BAC. If a person refuses to take the test, his or her license will automatically be suspended for a minimum of year – even if the person is stone cold sober. If the driver does not yet have a license, then it will result in a one year delay in receiving driving privileges.

California exercises a zero tolerance law for underage drivers behind the wheel. Registering a .01% BAC will result in a violation of V.C. 23136, which is considered a civil offense. The fact this is not a criminal offense has two sides; on one hand, it is not criminal, so penalties are generally only enforced by the DMV and cannot include jail time. On the other, because it is merely a civil offense, the evidence does not need to be proved beyond a reasonable doubt like a criminal charge. The evidence must only show it is more likely than not that you committed the offense. Further, this determination is made not by a judge in a court, but by a DMV hearing officer. Upon a finding an underage driver has violated the zero tolerance standard, the DMV will automatically impose a one year license suspension.

In addition to the zero tolerance law, an underage driver with a BAC higher than .05% may also be charged with a criminal offense under V.C. 23140. This charge is only used with an underage driver with a BAC between .05% and .07%, because if the driver has a BAC of .08% or higher, he or she would generally be charged with a regular DUI, just like an adult. This is a criminal charge, but it is only an infraction. This means you cannot receive any jail sentence. Any conviction for VC 23140 will result in a one year license suspension, various fines, and will require you to attend a three month alcohol program before your license can be reinstated.

Finally, any person under the age of 21 can still be charged with a DUI under V.C. 23152 just like an adult. Further, the zero tolerance violation will be added to the DUI charge, resulting in the same penalties an adult would face (several thousand dollars in fines, probation, potential jail time, mandatory alcohol education program) in addition to the one year license suspension.

Bottom line, it is extremely risky to drink and drive period, and penalties are much steeper for those under 21. If you have been arrested for underage and have been arrested for DUI, you should contact an attorney immediately. You have exactly ten days from your arrest to contact the DMV to challenge your license suspension. Contact criminal defense attorney Scott R. Ball today for a free and confidential evaluation of your case.

Common Traffic Tickets in CA Explained: Impeding Traffic

2011-03-09T16:28:00.000-08:00

Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)

If you’ve been cited for one of the many violations dealing with impeding traffic, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common impeding traffic violations:

• VC 21654 – Driving too slowly in the left lane. This section of the Vehicle Code makes it illegal to drive in any lane except for the far right lane if you are traveling at “less than the normal speed of traffic.” If you are driving in the left lane you must drive with the speed of traffic – sometimes even if the speed of traffic is above the posted limit. However, there are several defenses to violations of this infraction which are particularly effective, such as showing that you were about to make a left turn or you were in the process of passing another vehicle. With a skilled attorney on your side, tickets for this sort of infraction can often be dismissed.

• VC 22400(a) – Impeding traffic. You must drive at a reasonable speed so as not to block the normal flow of traffic, regardless of which lane you are in. This is a subjective call by the officer giving you the ticket. It is possible to argue, however, that your speed was reasonable given the road conditions or the safe operation of your particular vehicle. There are many conditions, such as visibility and weather, which an experienced attorney can use to argue that you were in fact driving at a speed necessary for the safe operation of your vehicle.

• VC 21656 – Failure to use turnouts. This section requires that you were driving at a slower rate than the normal flow of traffic on a two lane highway (one in each direction), there were at least five vehicles behind you, and you failed to pull over in a marked turnout area. Unlike the previous section, it is no defense to this violation that you were traveling at speed necessary for the safe operation of your vehicle; if you failed to pull over at a turnout when you could have, you are guilty. However, it is possible to fight and win against this sort of violation with an experienced attorney at your side.

• VC 21703 – Tailgating. You may not follow too closely to another vehicle given your speed, the flow of traffic, and road conditions. This is a subjective call by the citing officer. A general rule of thumb is one car length (about 15 feet) for every 10 mph of speed. However, the determination will be what is “reasonable and prudent” – which may depend on the mood of the officer. This subjective interpretation by the officer can be often successfully be challenged in court.

If you have been cited for any of these common traffic infractions, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. If you would like a free and completely confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.

Common Traffic Tickets in CA Explained: Non-DUI Drinking Offenses

2011-03-07T14:56:00.000-08:00

Stages of a Felony Case in CA Prior to Trial

2011-03-02T13:06:00.000-08:00

If you are arrested for a felony in California and are taken into custody, you have a right to be brought before a judge within 48 hours, excluding weekends and holidays. This initial appearance is the arraignment. If you make bail or otherwise are not in custody, your arraignment will generally be set within a reasonable time, usually within a few weeks.

At the arraignment, you will be informed of the charges and any sentencing enhancements filed against you. If you are in custody, bail will also be set at that time. You will have the option to enter a plea of guilty or not guilty, or you may request a continuance of your arraignment to seek counsel or as part of a potential plea which may only be offered by the prosecution prior to arraignment.

Following a not guilty plea at the arraignment, the vast majority of cases in California proceed by way of a preliminary hearing, which you are entitled to have held within 10 court days. Preliminary hearings are a kind of “mini trial” put on before a judge with no jury. Unlike a jury trial in which your guilt must be proved beyond a reasonable doubt, in a prelim the prosecution must put on enough evidence only to show that there is “probable cause” to convince the judge that you committed the crimes of which you are accused – a much lower standard. The purpose of a prelim is to weed out charges that are completely unsupported by the evidence without the expense of a full-blown trial. Generally, only a few witnesses will testify for the prosecution at a prelim, and what the defense can present is severely limited. Therefore, prelims rarely last more than a few hours or so.

The prelim is the first chance for the judge to see the evidence in the case. After getting this “preview” of the evidence, the judge will decide if there is in fact the necessary probable cause to believe you have committed the crimes charged. The judge may dismiss or reduce charges at this point.

Following the prelim, the prosecution will be able to review the evidence as well. If a particular witness did poorly on the stand, or if other evidence is shown to be weak, it is possible the prosecution may reduce or dismiss charges. However, they may also decide the evidence presented at prelim justifies additional or even higher charges. A defense attorney may challenge any of the charges based on the evidence presented at prelim thought a 995 motion. A 995 motion is a challenge to the sufficiency of the evidence and is brought before a different judge than the one who conducted the prelim.

If you are held to answer on any of the charges (meaning the judge found probable cause you committed the crime), you will be arraigned a second time within 15 calendar days. Again, you would be presented with the charges against you and given an opportunity to enter a plea. You have a right to a trial to begin within 60 calendar days of this arraignment.

Once your case is assigned to a trial court, your attorney can file additional motions, such as to suppress evidence or demand discovery. This is also an opportunity for your attorney to negotiate with the prosecution and attempt to settle the case.

If you have been accused of committing a felony, it is important that you understand your rights and are protected every step of the way. Contact criminal defense attorney Scott R. Ball today for a free and confidential consultation.

Bad Law! Password Protect Your Cell Phone!

2011-02-24T17:31:00.000-08:00

The Fourth Amendment of the U.S. Constitution protects every person from being free from unreasonable searches and seizures by law enforcement. This means the police must have either a warrant, or some other legitimate reason to be able to search anything in which a person has a “reasonable expectation of privacy”.

One of the reasons often used by police to search a person is when the search is “incident to an arrest” – meaning, if you are lawfully arrested, police may search your clothes and any purse, backpack, etc. with you at the time of your arrest. The point of the search is to determine if you have a weapon or other contraband with you before they take you into custody. Obviously, this sort of search is necessary, and makes sense as an exception from the requirements of the Fourth Amendment. It is not unreasonable for your pockets or backpack to be searched for weapons if you have been legally arrested.

However, in the recent decision in People v. Diaz, the California Supreme Court took this exception to the warrant requirement a step further. In Diaz, the defendant was arrested for his involvement in a drug deal. After being arrested and questioned for approximately 90 minutes, a detective looked through Diaz’s cell phone and found text messages regarding a drug transaction. Diaz challenged this search of his cell phone as a violation of his Fourth Amendment right – obviously he would not be allowed to possess the cell phone in jail, and so it could not contain a weapon or other contraband. Further, if the police wished to search the phone, they could easily have obtained a warrant without any threat of evidence on the phone being deleted, as the phone was no longer in Diaz’s possession.

But the California Supreme Court instead took a dangerous step towards eroding our Constitutional rights by declaring the search legal as “incident to the arrest”. This case appears to open up a host of other privacy issues – can the police now search a person’s iPad in a backpack? What about a laptop in a suitcase? What if the device is password protected? What if the arrest is for something (like a DUI) completely unrelated to potential evidence that could be found on a phone? What if an officer justifies looking through texts or email on the basis of a sham excuse of looking for evidence of the crime, like texts about which bar to meet up with friends?

Very likely, this case will be appealed to the U.S. Supreme Court. Hopefully, the legitimacy of this sort of invasion of privacy will be struck down. Until then, however, it’s a good idea to password protect your phone, iPad, or laptop. If police ask for your password, remember your Fifth Amendment right to remain silent. Always protect yourself!

If you have any questions regarding this or any other criminal law issue, contact criminal defense attorney Scott R. Ball today. Consultations are completely confidential and always free.

Penal Code 594 Vandalism Explained

2010-12-15T14:15:00.000-08:00

Elements of the Crime

In order to be convicted of California Penal Code Section 594, vandalism, the prosecution must prove beyond a reasonable doubt that the accused person:

1) maliciously
2) defaced, destroyed, or damaged
3) the property of another.

To act “maliciously” means that the person acted with the intent to cause the damage or defacement. Doing an act which accidentally causes damage, like bumping into a precariously perched vase at a department store and knocking it over, is not vandalism. However, acts will not be considered accidents if, as your mom would say, “you should have known better.” Claiming that you were aiming for a bird when you throw a rock through an office window will not be considered an accident, even if you really were… because you should have known better.

To “deface” property, a person merely needs to make any sort of unauthorized writing, marking, figure, or scratch. It does not need to be permanent. This includes graffiti, scratching initials on a wooden table, writing in a bathroom stall, and technically could even include having a pickle race by throwing them on a glass window (although prosecution in that case is unlikely). Further, property does not have to be destroyed, or even permanently damaged. Even using marker on a glass window, which can be easily washed, can be considered vandalism.

The property of another includes public property or property of which you are the joint owner. This means if you share a home, come home drunk one night, and rip the door off the hinges, you can be found guilty of vandalism. Further, property includes not just personal property but things such as land, buildings, and landscaping like flowers, bushes, and trees.

Punishment

Vandalism can be charged in several different ways, mainly based on the amount of the damage.

Infraction

If you have defaced (but not damaged or destroyed) property of another, the damage is less than $250, and you have not previously been convicted for a vandalism crime, you may be charged with an infraction. You may be fined up to a maximum of $1,000 and will probably be required to do some community service. The court may also order the defendant (and/or his or her parents) to keep specified property in the community free of graffiti for up to 180 days.

Misdemeanor

If you are convicted of maliciously defacing, damaging, or destroying less than $400 of property of another, you can be convicted of misdemeanor vandalism. A sentence for misdemeanor vandalism generally consists of up to three years informal probation, up to one year of county jail, up to $1,000 fine, a one year suspension of your driver’s license (or a delay of one year if you have not received it), counseling and/or community service, and personally cleaning, repairing, replacing, or cleaning the damaged property or keeping specified property in the community free of graffiti for up to a year.

Felony

When the damages to the vandalized property are $400 or more, the prosecutor has the option of charging the crime as either a felony or misdemeanor. Consideration will be given to the circumstances of the crime and your personal criminal history to make this determination.

In addition, even if the damage to the property is less than $400, you may be charged with a felony under certain circumstances, such as if you vandalize a church or use caustic chemicals. If the vandalism can be categorized as a hate crime, it will automatically be charged as a felony.

A felony conviction will subject a person to the terms described above, as well as a state prison sentence of 16 months, two, or three years, a fine of up to $10,000, and formal probation.

If you have been charged with vandalism, contact the Law Office of Scott R. Ball today for a free and confidential evaluation of your case.

Easy Ways to Avoid Being Pulled Over

2010-11-18T14:47:00.000-08:00

The US Constitution protects a person from being stopped by the police without a legitimate reason. Law enforcement may not pull over a vehicle without reasonable suspicion that some sort of crime has been committed. However, that reasonable suspicion can be for ANY crime, including very minor vehicle code infractions. Further, even if the true reason for the stop is because, for example, the driver is black and driving an expensive car in a nice neighborhood, or the occupants are four young men leaving a bar, as long there is a legitimate reason for the stop, these police actions are legal.

There are a number of minor violations police regularly use as an excuse to pull someone over based simply on prejudice. What can you do to avoid these? Don’t commit the following common vehicle code violations.

-Failure to have a front license plate. If your state issues two license plates (as does California), you are required to have both affixed to your vehicle.

-Illegal window tinting. Front side windows must allow at least 70% of light to pass through, and only the top four inches of the windshield may be tinted.

-Burnt-out lights. It is a vehicle code violation for any lights to be inoperable on your vehicle – not just tail and brake lights, but the small light that illuminates your license plate as well.

-Expired registration. This is an easy one to avoid, and probably the one most likely to get you pulled over. Pay your renewal fees, get your smog check, and make it legal!

-Obstructed windshield. It is illegal to have anything attached to the windshield or side windows that may obstruct the view of the driver. This section is commonly violated by affixing a GPS device with a suction cup to the front windshield, or hanging things from the rear view mirror. There is an allowance for stickers or other material in a five inch square on the bottom corner of the windshield on the driver’s side and a seven inch square in the bottom corner of the passenger side.

-Talking on your cell phone. Get a hands free device. They cost significantly less than the $140-something ticket. And given that this is a relatively new law, police WILL pull you over if they see you doing it.

-Don’t be an idiot in general. Excessive speeding, reckless driving, frequent lane changes, failing to signal, rolling through stop signs, and hundreds of other common violations of which you are already aware exist. Use common sense, and don’t give law enforcement the excuse they need to interrupt your commute.

For more information or advice on how to avoid being pulled over, contact The Law Office of Scott R. Ball today. All consultation are free and totally confidential.

Miranda Rights Explained

2010-11-15T15:58:00.000-08:00

Everyone has heard the familiar lines in your favorite police drama: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney…” Most are probably familiar that these warnings are known as a person’s Miranda rights. But what exactly do Miranda rights do?

Miranda rights are meant to inform a person who has been arrested of their basic constitutional rights to remain silent and to speak with an attorney before answering any questions. Miranda warnings are required to be given to a person who has been placed under arrest and is being questioned. If a person who has been placed under arrest is not warned of their constitutional rights, any statements made by that person in response to police questioning may not be used against them in court.

However, if a person is merely detained, and not under arrest, Miranda warnings are not required. This means any statement made before being arrested, for example while performing field sobriety tests after being pulled over on suspicion of DUI, are not subject to the protections of Miranda. If you are placed under arrest and are never given Miranda warnings, this does not offer any protection if no statements are used against you. Further, statements are in violation of Miranda only if they are a result of police questioning. If a person volunteers information without prompting by law enforcement, failure to give Miranda warnings will not protect the admissibility of the statement in court.

Miranda warnings are given for a good reason – so listen to them and understand them! You have an absolute right to remain silent. Chances are, if you have already been arrested, you will not be able to talk your way out of it. You also have the right to speak with an attorney. These are the magic words – once you request an attorney, all questioning MUST stop. This is always a smart thing to do.

If you are being questioned by law enforcement about something you don’t want to discuss, your first question should be, “Am I free to go?” If they say yes, then leave. If they say no, then politely but firmly ask for an attorney.

If you have been arrested for a crime in which you believe statements may have been taken from you in violation of your Miranda rights, contact The Law Office of Scott R. Ball today for a free and confidential consultation.

Proposition 19 - The Regulate, Control, and Tax Cannabis Act of 2010

2010-09-20T16:58:00.000-07:00

On November 2nd, California voters will have the opportunity to pass a law which largely decriminalizes simple use and possession of marijuana in California. The legislation would have the effect of allowing a person over the age of 21 to legally possess and use up to one ounce of marijuana, and to grow in an area up to 25 square feet.

The proposed legislation also has important financial effects for California. A modest $50 tax per ounce of marijuana sold could raise an estimated $1.4 billion in revenue for the state. State and local governments will save tens of millions more annually due to the reduction of individuals incarcerated, on probation, or on parole. Further, because an estimated 60,000 arrests are made in the state every year for crimes which would no longer be considered criminal activity with the passage of Prop 19, law enforcement would be freed up to focus on fighting actual crimes.

It is important to note the legislation will not change many important marijuana related laws. Selling marijuana, unless by a licensed provider, will still be a serious crime punishable by a state prison sentence. In addition, laws regarding driving under the influence of marijuana remain unchanged, and employers may still test and question employees about marijuana use that affects job performance. Prop 19 will also create several new crimes dealing with providing marijuana to minors.

The net effect of Prop 19 is to allow the controlled use of marijuana in an effort to tax its use, free up law enforcement resources, and cut off the illegal trade from drug cartels. Prop 19 will require a simple majority to pass and currently, most polls show a slight majority in favor of the initiative. However, the proposition faces strong opposition and the passage of Prop 19 is by no means a sure thing.

If you support this important piece of legislation, be sure to register to vote. The deadline to register for the November 2010 election is October 18. You may do so here.

If you have any additional questions regarding Prop 19, the use of marijuana, or any other legal issue, contact the Law Office of Scott R. Ball today.

Consequences of a DUI Conviction in Los Angeles County

2010-09-15T11:34:00.000-07:00

If you are convicted of driving under the influence in Los Angeles County, a typical first offense without extenuating circumstances will generally have the following consequences:

-Minimum fine of about $1,750. This can be higher based on your prior record and if the arresting agency requires booking fees, which can push it up several hundred dollars.

-Three years of informal probation. Terms of probation include that you violate no law, do not drive with a measurable amount of alcohol in your blood, submit to a chemical test on demand, do not drive without a license or insurance, and disclose your probation status when asked by any law enforcement officer. A violation of your probation can result in additional fines and/or jail time.

-Attend and complete a three month first offender alcohol program, called the AB-541. This class generally consists of weekly meetings of two to three hours in length and costs between $500 - $700.

-Completion of the Mothers Against Drunk Driving Victim Impact Panel class. This is a single two hour class which costs $30 to attend.

-Suspension of your license for six months. However, if your license has already been suspended by the DMV prior to your conviction in the criminal court, the suspension will be retroactive to the date of that suspension. In addition, following the mandatory 30 day hard suspension of your driving privileges by the DMV, you may receive a restricted license once you present proof of financial responsibility and enrollment in the AB-541 program to the DMV.

-Required installation of an ignition interlock device (IID) on your car for five months. An IID is a device into which a driver must provide an alcohol-free breath sample to start his or her vehicle. The device will cost about $150 to install and the maintenance and service for the IID will run about $70/month.

-Increase in insurance premiums by 200% - 500%. Most people don’t realize this hidden cost of a DUI, which can actually be the most expensive penalty of all. However, there are a few tricks that can be utilized to keep this cost to a minimum.

There are many other factors that can increase your total exposure for a DUI conviction. For example:

-If you have any prior convictions for DUI, your penalties will be greatly enhanced, and will most likely result in jail time.

-If you were involved in an accident which resulted in an injury to another, you may be charged with a felony. Even if there is no injury and you are not charged with a felony, you will be required to make restitution to the victim of the accident.

-If it is proved that you refused to submit to a chemical test, your license will be suspended by the DMV for one year and you will likely face jail time.

-If it is proved that you had a blood alcohol level of greater than .20, you will be required to attend a nine month alcohol offender program. This program is similar to the AB-541, but is three times as long and costs around $1,000.

-If you were speeding and driving in a reckless manner, or had a minor in the car at the time of your driving, this can also result in mandatory jail time.

Please keep in mind that these are the consequences for many DUI convictions in Los Angeles County – but there are many circumstances which can increase or decrease your total exposure, and penalties can vary greatly county to county. Further, the law is constantly changing, and fines have increased dramatically in the past few years. For the most current information, contact the Law Office of Scott R. Ball today. Consultations are free and completely confidential.

Consequences of a DUI Conviction in Orange County

2010-09-14T13:09:00.000-07:00

If you are convicted of driving under the influence in Orange County, a typical first offense without extenuating circumstances will generally have the following consequences:

-Minimum fine of about $1,900. This can be higher based on your prior record and if the arresting agency requires booking fees, which can push it up several hundred dollars.

-Three years of informal probation. Terms of probation include that you violate no law, do not drive with a measurable amount of alcohol in your blood, submit to a chemical test on demand, do not drive without a license or insurance, and disclose your probation status when asked by any law enforcement officer. A violation of your probation can result in additional fines and/or jail time.

-Attend and complete a three month first offender alcohol program, called the AB-541. This class generally consists of weekly meetings of two to three hours in length and costs between $500 - $700.

-Completion of the Mothers Against Drunk Driving Victim Impact Panel class. This is a single two hour class which costs $30 to attend.

-Suspension of your license for six months. However, if your license has already been suspended by the DMV prior to your conviction in the criminal court, the suspension will be retroactive to the date of that suspension. In addition, following the mandatory 30 day hard suspension of your driving privileges by the DMV, you may receive a restricted license once you present proof of financial responsibility and enrollment in the AB-541 program to the DMV.

-Increase in insurance premiums by 200% - 500%. Most people don’t realize this hidden cost of a DUI, which can actually be the most expensive penalty of all. However, there are a few tricks that can be utilized to keep this cost to a minimum.

There are many other factors that can increase your total exposure for a DUI conviction. For example:

-If you have any prior convictions for DUI, your penalties will be greatly enhanced, and will most likely result in jail time.

-If you were involved in an accident which resulted in an injury to another, you may be charged with a felony. Even if there is no injury and you are not charged with a felony, you will be required to make restitution to the victim of the accident.

-If it is proved that you refused to submit to a chemical test, your license will be suspended by the DMV for one year and you will likely face jail time. A typical offer would be five days.

-If it is proved that you had a blood alcohol level of greater than .20, you will be required to attend a nine month alcohol offender program. This program is similar to the AB-541, but is three times as long and costs around $1,000.

-If you were speeding and driving in a reckless manner, or had a minor in the car at the time of your driving, this can also result in mandatory jail time.

Please keep in mind that these are the consequences for many DUI convictions in Orange County – but there are many circumstances which can increase or decrease your total exposure, and penalties can vary greatly county to county. Further, the law is constantly changing, and fines have increased dramatically in the past few years. For the most current information, contact the Law Office of Scott R. Ball today. Consultations are free and completely confidential.

Ruling Revolutionizes Red Light Camera Tickets

2010-07-02T14:47:00.000-07:00

While it might not be on the level of Roe v. Wade or Brown v. Board of Education, a recent ruling by an Orange County appellate court may be just as groundbreaking… in the world of red light camera traffic tickets.

In People v. Khaled, a panel of judges in Santa Ana reviewed a conviction of the defendant on a red light violation. The evidence presented consisted of a video of Khaled driving through an intersection after the light had turned red and the testimony of a Santa Ana police officer. While the officer regularly testified on these types of cases (in fact, is common for these officers to do so dozens of times in a single day), the camera itself was installed and maintained by a private company which had contracted with the city to issue red light tickets. This formula of private company installation and maintenance of the camera plus a police officer testifying to the placement and accuracy of the device has resulted in literally tens of thousands of convictions since red light cameras were invented.

However, the rules of evidence, which are often somewhat ignored in traffic courts, require that for video or photographic evidence to be admissible, a proper foundation must be laid. This means there must be testimony from someone with personal knowledge to say under oath that the camera was in proper working order at the time the picture was taken and that the picture was taken at the place and time alleged.

And this is where the court found the problem on appeal. The officer called to testify against Khaled had no personal knowledge of how the system was maintained or how the date and times were verified, and could only offer general information on how the system worked. Without any evidence to lay the proper foundation, the evidence of the video was inadmissible. And without the video, there was no evidence against Khaled, and his was conviction was overturned.

For now, the ruling will only be binding on courts in Orange County. However, the legal reasoning is sound and may be soon followed in other counties as well. County officials are planning to appeal the decision to the California Supreme Court.

The effect of the ruling is still largely unknown. Some cities in Orange County have begun simply dismissing tickets. Others are pressing forward with prosecutions; most likely hoping defendants haven’t become aware of the decision in Khaled. If the ruling holds up, several solutions are possible, all of which will raise the cost of red light enforcement by municipalities. Potential reactions could include requiring the testifying officer to receive much more in depth training, or having a representative from the company that installed the camera testify as well.

For now, everyone cited for a red light camera violation, for which a conviction results in a fine around $450 plus a point on a person’s driving record, should fight the charge. For those in Orange County, a dismissal should be just about guaranteed. For those outside the county in California, while dismissal will not be automatic, the influential value of Khaled should be extremely important.

For more information regarding how you can fight your red light ticket, contact the Law Office of Scott R. Ball today at 714-973-2024 or attorneyscottball@gmail.com.

Sobriety Checkpoints Explained

2010-06-11T15:34:00.000-07:00

You’ve probably seen them before – a few signs, probably some cones, and a whole bunch of police officers with flashlights, usually slowing down a busy road to a crawl on a Friday or Saturday night. A sobriety checkpoint. These stops can either create a small annoyance or a huge concern, depending on your activities that night.

One familiar with the protections entitled by the Fourth Amendment of the U.S. Constitution, which prevents unlawful searches by police, would probably wonder… how is this legal?

In 1987, the California Supreme Court established basic policies law enforcement must follow to ensure the sobriety checkpoints comply with the Constitution. A failure to follow these policies means the checkpoint is illegal – and any arrest resulting from the checkpoint is illegal as well.

First, decisions as to the location of the checkpoint and the procedures to be followed must be made by supervisory law enforcement personnel, rather than an officer in the field. This is intended to prevent important decisions being made by officers with little or no knowledge of the Constitutional requirements. In addition, the length and nature of stops must be as minimal as possible.

Vehicles must be stopped by a predetermined, neutral system – this means they must check, for example, every third car, as opposed to officers in the field making determinations as to who to stop based on appearance. Failure to do so is a clear Constitutional violation and the resulting stop is illegal and should be thrown out in court.

The location must include proper safety precautions, including proper lighting, official markings of law enforcement, and warning signs of the approaching checkpoint, so as not to surprise or frighten the motorist. Depending on the circumstances, it may also be necessary to provide an opportunity for a motorist to turn down a side street to avoid the checkpoint. Further, a person cannot be arrested for merely avoiding a checkpoint without further indication of illegal activities. Simply making a legal turn, even for the specific purpose of avoiding a checkpoint, is not probable cause, and any stop based on solely on this activity is illegal.

Finally, there should be advance publicity made as to the existence of the checkpoint.

If the above policies are not followed, then the checkpoint does not conform to the requirements of the Fourth Amendment and is an infringement of the right to be free from unreasonable search and seizure. If you have been cited for driving under the influence, or in fact, ANY criminal charge based on a stop at a sobriety checkpoint, it is important to understand these policies. If the stop was illegal, then any resulting evidence or statements made are inadmissible in a criminal proceeding, and your case should be dismissed.

For further information contact the Law Office of Scott R. Ball. Consultations are free and completely confidential.

Tips for Avoiding a DUI

2010-03-01T11:19:00.000-08:00

Of course, the best way to avoid being arrested for driving under the influence is to simply not get behind the wheel if you’ve been drinking. However, we all know that sometimes your night doesn’t go as planned, so if you do choose to drive, it’s important for you to know how to be safe and avoid getting pulled over and arrested.

A law enforcement officer cannot simply pull you over at random. He or she must have a reasonable suspicion that you have broken a law. This is often accomplished when they observe a driver speeding, run a red light, swerve between lanes, tailgate, or any number of other common traffic violations. It's a simple fact that drivers under the influence of alcohol drive more recklessly. This is a very bad idea not only because it is obviously extremely unsafe for an inebriated driver to be taking such chances but also because it makes them much more likely to be pulled over. If you know that you may be near or over the legal limit it is crucial that you are highly observant of traffic rules – watch your speedometer, signal for every lane change, and check your review mirror frequently! It sounds simple but most drivers convicted of DUI are pulled over because they are careless at the exact time they should be taking extra caution.

However, even if you take every possible precaution and drive like your grandmother it is still possible to fall victim to some basic dumb luck and be pulled over. There are any number of technical violations for which you can be stopped by a police officer, such as an expired registration, broken tail light, or too-tinted windows. The Fourth Amendment protects you from unreasonable harassment from police – to a point. An officer cannot pull you over simply because you look like you are leaving a party with four obviously drunk friends on your way to pick up some late night Del Taco. However, he can pull you over if he notices that the light illuminating your license plate doesn’t work – even if his real motivation in stopping you is to check to see if you’ve been drinking.

The solution to this scenario is to be prepared. Make sure your vehicle is always in compliance with all vehicle codes. Pay your registration on time, promptly fix all broken lights, and make sure everything is in proper order on any other car you might drive.

Please remember that the only way to completely be safe and avoid a DUI is to not get behind the wheel if you are under the influence. Drinking and driving is never a good idea and in no way is this message meant to encourage it. However, it is in your own best interest to always be extremely aware of your actions and surroundings.

How to Fight a Speeding Ticket (when they get you on radar)

2010-02-05T10:34:00.000-08:00

If you receive a speeding ticket in California, the effects can be downright ugly. Fines can reach upwards of $500, your insurance rates can increase, and if you accumulate enough “points” on your record, the DMV will suspend your license. The good news, however, is that there are literally hundreds of ways to fight a speeding ticket when radar is used. Remember, the burden is on the prosecution to prove you guilty, so all you need to do is create a reasonable doubt! If you demand your right to a trial, here are some of the basic defenses:

Demand production of an Engineering and Traffic Survey. This is a rather technical defense, but it’s also one of the best. The California vehicle code requires that when radar is used, it must be done on a road that has had an Engineering and Traffic Survey performed on it within the last five to seven years. If no survey has been performed or the survey has expired, the use of radar makes it an illegal speed trap. Further, you can question the officer as to the stretch of the road that has been surveyed. If it is possible his radar got you outside of that area, then you have just created a reasonable doubt. Case dismissed!

Demonstrate your speed was safe for the prevailing conditions. Most people don’t realize this, but when you are ticketed for speeding at less than 55 mph, the law is actually not that you were traveling faster than the posted speed limit, but that you were going faster than was safe for prevailing conditions. That means you have the chance to prove that, actually, 45 mph in a 35 mph zone was not speeding! You can do this by proving factors that show your speed was reasonable. Was visibility excellent, on a clear, dry day? Was it a straight road with a median and no dips, intersections, or pedestrians? How heavy was traffic, what was the average speed, and how much distance was there in between cars? All these factors and more can be used to show that, in fact, your speed was actually safe despite being over the posted limit.

Question the accuracy of the radar and/or training of the officer. Has the radar been calibrated recently? Has the officer been properly trained on how to use a sophisticated piece of equipment? The farther away the officer is from the vehicle he gets on radar, the more likely he is to miss his target. The officer may mistakenly get a reading from another vehicle, a nearby train, or even windblown tree limbs or driving rain. The key is determining the width of the radar beam and the distance between the officer and the target. When these details are elicited in court, it often becomes obvious that the radar is far from perfect – and also creates a reasonable doubt as to whether you were in fact speeding.

Create reasonable doubt as to the identification of your vehicle. Here is a common scenario: An officer is pulled over on the side of the freeway. A white SUV blows by, and the radar shows a speed of 85 mph. The officer starts his engine, waits until it’s safe, and then takes off in pursuit. Five miles down the road, he catches a white SUV and gives the driver a ticket. What’s the problem here? Well, unless the officer has super-human vision, how does he know this is the same white SUV? Clearly he lost sight of the speeding vehicle when it blew by and he was completely stopped. Further, what if this happens at night, further hampering visibility? And what if the traffic is heavy? Maybe there are a half dozen white SUVs on this particular freeway. The point is, mistaken identification is very common and this is an excellent argument to make in court.

These are only some of the many defenses that can be used for fighting a speeding ticket. Depending on the circumstances of your ticket, there can be a multitude of other ways to get out of that pesky fine and hit on your record. If you want to learn more about how you can fight your ticket, contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Medicinal Marijuana Approved for Use with Prop 36

2010-02-01T14:27:00.000-08:00

The California Court of Appeal ruled recently that the use of medicinal marijuana is not an automatic violation of probation for non-violent drug offenders participating in “Prop 36” programs. California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was an initiative passed by voters into law that allows qualifying defendants convicted of non-violent drug offenses to complete drug treatment programs in lieu of incarceration. If a participant violates any terms of the probation, which include regular drug tests, he or she will be found in violation of probation and be required to serve a prison or jail sentence.

In the case of People v. Beaty, decided by the Court of Appeal on January 28, 2010, the defendant had been convicted of possession of methamphetamine. The trial court suspended the imposition of a prison sentence and allowed Beaty to participate in the Prop 36 program. The terms of the probation included the usual restrictions on the use of any unauthorized drugs.

As a result of a motorcycle accident in 1998, Beaty was disabled and had been legally prescribed medicinal marijuana to combat his chronic pain. Throughout his intake process and participation in the Prop 36 program, he disclosed his daily use of marijuana to his counselors at the drug treatment center. Unsurprisingly, his drug tests came back positive for marijuana, a purported violation of the terms of his probation. Based on expert testimony that the use of marijuana was “mind altering, habit-forming, and used daily,” the trial court determined that the use of the drug, despite the fact it was legally prescribed, was a violation of Beaty’s probation.

Beaty appealed the decision of the trial court that his use of medicinal marijuana was a violation of his probation. Fortunately, the appellate court agreed with him. Comparing the use of marijuana to Adderall, another mind altering, habit forming drug used daily (to treat attention deficit disorder), the court determined that the use of legally prescribed medicinal marijuana should not be an automatic violation of the terms of probation for the Prop 36 program.

As a result of this decision, thousands of people eligible for Prop 36 will not have to suffer unnecessarily by being either being denied their rights to access safe, approved prescription medication, or by flouting the law and being locked up as a result of attempting to ease their suffering. Undoubtedly, this is a step further in the right direction in allowing for the controlled use of marijuana for medicinal purposes.

For the full text of the opinion, click here.

Effects of a Criminal Conviction on a Real Estate License

2010-01-26T10:26:00.000-08:00

A criminal conviction can have the result of suspension, revocation, or denial of a real estate license in California. However, not all convictions will result in such disciplinary actions. A number of factors will be used by the California Real Estate Commissioner to determine if a suspension, revocation or denial is appropriate.

First, it must be determined if the circumstances of the crime are substantially related to the functions, qualifications, or duties of a real estate broker or salesperson. For example, a licensee convicted of vandalism for vandalizing a home he or she is attempting to sell is more likely to be disciplined than that same licensee breaking a window during a bar fight. The Commissioner will also consider the seriousness of the offense. Generally, convictions for the following crimes are considered substantially related and can result in discipline:
· any felony;
· theft, embezzlement, or fraud;
· intent or threat to commit significant harm to the person or property of another;
· any sex crime requiring registration pursuant to Penal Code Section 290;
· repeated conduct which shows a willful disregard for the law;
· contempt of court or willful disregard for a court order; and
· two or more convictions involving alcohol or drugs where at least one conviction involves driving and the consumption of alcohol or drugs.

The Commissioner will also consider the past criminal history of a licensee to determine if discipline is necessary. In addition, those holding a real estate broker license will be held to a higher standard than those holding a real estate salesperson license due to the higher level of self-regulation.

Usually the determination of whether discipline is necessary is made by an administrative hearing on a case by case basis, after the conclusion of the criminal case. At the hearing, a licensee may appear with an attorney and present evidence that the conduct was not substantially related to the licensee’s professional duties or mitigating the seriousness of the offense. However, if the licensee was convicted in the criminal court, they may not present evidence to attempt to prove he or she was not guilty.

The administrative hearing may also include an inquiry into the facts of a conviction beyond simply the plea or verdict. For example, a defendant may plead guilty to a lesser included offense that is not substantially related to his or her profession. However, if the circumstances surrounding the original charge are substantially related to his or her profession, the board may inquire regarding those facts in making a determination on whether to deny, revoke, or suspend a license.

It is also important to understand that an acquittal or dismissal of the criminal case will not bar subsequent administrative proceedings to suspend, revoke or deny a license. Even if you are found “not guilty” your license can still be taken away! This is because the “beyond a reasonable doubt” standard in criminal cases is higher than the “clear and convincing proof to a reasonable certainty” standard applicable to the administrative hearing. In the event of an acquittal or dismissal in criminal court, it is often wise for a licensee to petition the court for a finding of factual innocence under Penal Code 851.8 to prevent action against his or her professional license. In addition, a past conviction that has been expunged from a potential licensee’s criminal record can be used as a basis for denying an application for a license.

Because of the many ways in which a professional license can be suspended, revoked, or denied, any time a licensee is facing a potential criminal conviction it is wise to have the assistance of an attorney. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Effects of Traffic School in California

2010-01-19T12:06:00.000-08:00

If you are convicted of a traffic offense, usually you are given the opportunity to attend traffic school. If you cannot fight the ticket and get it dismissed entirely, it is often a good idea to choose the traffic school option, although it will add about $100-$150 more to the total cost you will pay, in the form of court fees and the actual cost of the school. Successfully completing the eight hour traffic school will completely mask the ticket from your record. This means you do not receive a “point” from the DMV and your insurance company will never know you received a moving violation, meaning there will be no effect on your insurance.

Points are added to your record by the DMV to determine negligent drivers. One point is generally accumulated for most moving violations, such as speeding or running a stop light, or for at-fault accidents. Two points are assigned for more serious violations, such as DUI or hit and run. A driver may have his or her license suspended if they receive four points in one year, six points in two years, or eight points in three years.

You may only attend the eight hour traffic school once every 18 months. If you receive a second traffic ticket in that 18 month period, some courts may allow you to take the second offender traffic school, commonly referred to as the 12 hour class. The effects of taking this class are different from the initial traffic school class. Instead of completely masking your public record, the 12 hour class merely changes your record to reflect that the ticket was dismissed via traffic school. This will keep the point off your record for DMV purposes, but will still be visible to your insurance company. Legally, your current insurance company may not raise your rates because of that ticket. However, in actual practice, it is not difficult for a company to do just that by justifying a raise in any number of other ways. Further, any future policy you purchase with that same company or any other insurance company may justifiably have a higher premium due to the conviction.

While it is not uncommon for judges to offer the 12 hour class, it is completely within their discretion. Some judges regularly offer the option while others do not. Some will offer the option only if you do not request a trial. Traffic court is very informal and varies a great deal from one court to the next. Whether to request traffic school, or even whether to plead guilty, will vary greatly depending on each individual’s situation, including his or her previous record, the nature of the offense, and the tendencies of the presiding judge.

If you have been cited for a traffic ticket, it is often a good idea to contact an attorney to discuss your options. Contact the Law Offices of Scott R. Ball for a free and confidential evaluation of your case.

The Difference Between Criminal and Civil Trials

2010-01-15T09:08:00.000-08:00

When a person commits an act that is both illegal and causes financial harm to another, that person potentially exposes his or herself to both criminal and civil liability. This can result in two separate and distinct trials, which can have surprisingly different results.

The most famous case of dual criminal and civil trials happened in the mid ‘90s when O.J. Simpson was accused of murder. After O.J. was found not guilty at his criminal trial, the families of the victims brought suit in civil court alleging O.J. was liable for the wrongful death of Nicole Simpson and Ron Goldman. Despite the fact the jury in the criminal case returned a not guilty verdict, the jury in the civil case found O.J. liable for the deaths of the victims and ordered a payment of millions of dollars to the families.

Why the different result? Well, although both cases dealt with the same issue (did O.J. kill Simpson and Goldman?) there is a different standard of proof in criminal and civil trials. To be guilty of a criminal charge, the prosecution must show “beyond a reasonable doubt” that the defendant committed the act. This is the highest standard of proof in our legal system. However to be found liable in a civil suit, the plaintiff need only show a “preponderance of the evidence.” This means it is more likely than not that the defendant committed the alleged act. This is a much lower standard of proof. Therefore, although O.J.’s legal team was able to create a reasonable doubt in the minds of the criminal jury over whether he committed the murder, they were unable to convince the civil jury that it was more likely than not that he was not involved in the victim’s deaths.

As a result of the civil trial, O.J. was found liable financially for the deaths of Simpson and Goldman. Although he did not lose his freedom, he was ordered to make the families whole for the loss in the form of a payment, determined by the jury, of $33.5 million.

For almost any crime that involves a victim, there exists the possibility of an additional civil suit being brought as well. However, the vast majority of the time no civil suit is ever filed. There are several reasons for this. For one, punishment for many crimes include automatic restitution where a defendant found guilty must pay the victim for his or her loss. The main reason civil suits are uncommon, however, is the fact that most defendants simply don’t have the enough wealth to make a costly civil suit worthwhile.

If you have been charged with a crime, it is important to realize the possibility of a civil suit being brought against you, even if the criminal charges are dismissed or you are found not guilty at trial. Contact the Law Offices of Scott R. Ball for a confidential and free evaluation of your case.

Landmark Case For Stoners

2009-09-04T14:33:00.000-07:00

A fairly recent California Appellate Court decision should be hailed as a landmark case for pot smokers. In People v. Hua, (158 Cal. App. 4th 1027) a court ruled that law enforcement must have a warrant to enter a private residence when the only evidence of a crime being committed is for simple possession of marijuana.

In Hua, two police officers walked up to an apartment in response to a complaint of a noise violation and saw, through a window, four college kids sitting around a table passing around a couple of blunts. The police officers knocked on the door and asked to come in. The kids said no but the officers entered anyway. In the apartment, the police found 46 marijuana plants. The young man who lived at the apartment, Hua, was arrested and charged with cultivation of marijuana.

A little legal background info at this point: As you may know, the Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, meaning police must have a warrant to enter any private area. Any evidence obtained from an illegal police search is suppressed, and may not be used against a defendant in court. However, there are several exceptions to the warrant requirement. For example, if the police reasonably believe that evidence will be destroyed if they don’t enter immediately, they may legally do so.

And that was the excuse the officer in Hua used; if he had not entered immediately (and without a warrant), the evidence of pot would have been destroyed. However, possession of less than 28.5 grams of marijuana is at most a misdemeanor (and often charged as merely an infraction), and a non-jailable offense. The Appellate Court cited the 1984 Supreme Court Case Wisconsin v. Welsh (466 U.S. 740), which stated that “entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor.” The court in Hua reasoned that possession of marijuana was exactly the sort of minor crime described in Welsh.

The officers in Hua, when looking through the window, saw evidence of only the crime of possession of less than 28.5 grams of weed (they did not notice the dozens of marijuana plants when they first peeked in). The court determined that the minor seriousness of the crime was outweighed by the protection given to citizens by the Fourth Amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The entry by the officers was illegal, and thus all evidence seized from the illegal search was thrown out. Despite being found with 46 pot plants, Hua got off scot-free.

What does this mean? Well, it basically means you can smoke weed on your balcony while smiling down at a cop and he can’t do a thing, short of leaving to find a judge to sign a warrant. This case is truly a landmark victory for pot smokers everywhere.

However, that doesn’t mean that smoking pot in plain view of an officer is a good idea; always use common sense! Just because a warrantless entry by law enforcement is illegal doesn’t mean it won’t be done. And while you may have law as determined by the Hua court on your side, it’s definitely not worth going through the legal process to be proclaimed innocent. So if you choose to smoke marijuana, be sure to do so carefully. And if you are ever arrested for any sort of drug related crime, you should contact the Law Offices of Scott R. Ball today.

"Bail" Explained

2009-09-04T13:41:00.000-07:00

After a person is arrested and taken into custody, at the first appearance before a judge they have a right to a “bail hearing” where the amount of bail is set. When a defendant makes “bail” this means they are giving a specified amount of money to the court in exchange for being let out of jail with a promise that they will return to court at their next scheduled appearance. If the defendant returns to court as scheduled, the bail is exonerated and the full amount of money is returned. However, if the defendant does not return as promise, the bail is forfeited and the money is kept by the court.

Most people don’t have large amounts of cash lying around, so the most common way for a person to make bail is through a bail bondsman. Generally, a bondsman will charge 10% and require some sort of collateral to post bail on behalf of the defendant. For example, if the bail is $10,000 (the common amount for a second DUI charge), the defendant must give the bondsman $1,000 plus some form of collateral, such as the pink slip to their vehicle. If the defendant does not skip out on bail and returns to court as scheduled, the defendant will receive the collateral back and the bondsman will receive the $10,000 back from the court and keep the 10% fee.

A defendant has a right to a “reasonable” bail. Usually, the judge initially sets bail according to a pre-determined county-wide bail schedule. For example, in Orange County, the charge of rape carries a $100,000 bail, grand theft is $20,000 or the amount stolen, and a first time DUI is $2,500.

However, a judge may deviate from the bail schedule based on many factors relating to the facts surrounding the crime charged and the particular defendant. For example, a defendant charged with a first time DUI who has no criminal history and extensive ties to the community such as a family, job, and property ownership, will likely be able to have his bailed reduced to zero. When bail is reduced to zero, the judge is letting the person off “on his own recognizance” or “O.R.”

A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that a defendant has a long criminal history, is a flight risk, or may be likely to harm another person while out of custody. When a person is facing life in prison or the death penalty, bail will always be denied.

When a person is arrested and taken into custody, the most pressing concern for most is getting out jail. However, it is often a wise decision to make your first call to an attorney and not the bail bondsman. This is because a skilled attorney will be able to negotiate on your behalf the possibility of lowering your bail, and may be able to get you release O.R. In addition, your attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.

For more information or a free and confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.

Sentencing Alternatives to Jail Time

2009-09-01T14:33:00.000-07:00

If you are facing the possibility of jail time, there are actually many sentencing alternatives that may be available to avoid any actual time behind bars. While the availability of such programs vary greatly from county to county, the following options are often possible:

1. Home Electronic Confinement – This type of sentencing requires a person to remain at home but allows you to leave to perform your normal activities such as attending work or school, court or DMV appointments, caring for dependants, or shopping for necessities. Electronic confinement can be arranged by either the probation department or a private company. There is generally a nominal cost associated with using this program.

2. CalTrans Work – This is a sentence often given in lieu of jail time. CalTrans are the crews wearing orange vests you see as you drive down the freeways in California. A court may allow a defendant to work on a CalTrans crew instead of going to jail. This can be hard work, but is often a welcome alternative to jail time.

3. Community Service Work – Similar to the CalTrans program, each court has a separate office responsible for assigning community service in lieu of jail time. An individual must be approved by the prosecutor and judge to perform community service work. Generally, 8 hours of community service for an approved community organization converts to 1 hour of jail time. Community service may also be available to pay off fines ordered by the court.

4. Work Furlough – This privileges means that during the day you are allowed to go out and work at your regular job and after work, you are required to spend the remainder of the evening back in jail. While you do remain incarcerated, this option will allow you to keep your job.

5. Private Jail - In some instances, where the judge requires that you serve actual jail time, many people choose to serve their sentence in a private jail facility. This alternative can be somewhat costly, however, in a private jail, the facilities are much nicer and work furloughs are also more likely to be available.

If you are facing a jail sentence, it is important to have an attorney on your side to explore the possibilities of alternatives to time spent in the clink. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Defending a Charge of Driving Under the Influence: Challenging a Breath Test

2009-08-26T12:25:00.000-07:00

If you have been arrested for driving under the influence and a breath test was used to determine your blood alcohol content (BAC), it is important to be aware of possible defenses to the use of such a test to prove you guilty of a DUI. Possible defenses include, but are not limited to, the following:

1) Inadequate or broken observation period. In order to properly read your BAC by a breath test, the testing officer must observe you continuously for at least 15 minutes before taking a sample. If you belch, vomit, or regurgitate gas in your mouth before the test, your BAC may read inaccurately high. If the officer has not observed you continuously for 15 minutes prior to measuring your BAC, it will be impossible for him to say that you did contaminate your own breath test.

2) Something in your mouth causes an inaccurate reading. Common items such as cough drops, breath mints, or chewing tobacco may remain in your mouth when a breath test is administered and can contaminate the results.

3) Your own personal medical history. If diagnosed prior to your arrest for DUI, many conditions, such as gastric reflux disease, intestinal problems, diabetes, and respiratory problems, can be used to show the likelihood of an inaccurate BAC reading from a breath test.

4) Your own personal dental history. Gum disease, gingivitis, and pockets around the roots of your teeth, as well as dentures or bridgework may trap alcohol in your mouth and contaminate a breath sample.

5) Your behavior or actions do not match test results. If there are witnesses, video tape, or observations by officers that suggests you were not intoxicated, it may be possible to challenge the readings from a breath test.

6) Rising blood alcohol level. If your first breath sample registers slightly over the legal limit, and a second sample taken later is higher, it is clear your BAC is rising. If this is the case it may be possible to argue that, at the time you were driving, your BAC was not over the legal limit.

7) Inexperience or incompetence of the arresting or testing officer. If the officer who arrested you or took your breath sample is not trained in the proper procedure or fails to follow protocol it may be possible to have the results of the improperly administered breath test thrown out.

8) Accuracy of the breath test machine. An artificially high reading can result from interference with the circuitry of a machine due to radio interference, shared power sources, or smoking in or near the machine.

9) Irregular samples. Consecutive BAC readings that vary a great deal can be used to challenge the accuracy of breath samples.

10) Statutory time limit. The prosecution must prove that the breath sample was obtained within three hours of the time you were driving in order to invoke the presumption that you were intoxicated at the time you were driving.

These are just a few of the many defenses that may be available to you if you have been charged with a DUI on the basis of a breath test. Of course, countless more defenses are available depending on the circumstances of your case. Contact the Law Offices of Scott R. Ball today to discuss your case and determine what defenses may be available for you. As always, a consultation regarding your case is completely free and totally confidential.

VC 23103 Reckless Driving: The What, How, and Why

2009-08-24T13:56:00.000-07:00

Reckless driving, defined at Section 23103, is one of the most vaguely worded statutes in the California Vehicle Code. It states that “[a]ny person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” A person found guilty for a first offense of reckless driving can face fines of several thousand dollars, a jail sentence of up to 90 days, their car impounded for up to 30 days, and have their license suspended for a month. A second or third violation of reckless driving, or if someone was injured as a result of a person’s reckless driving, can result in a mandatory license suspension for a year and up to 6 months in jail. A reckless driving is also considered a “discretionary arrest” misdemeanor, meaning the citing officer can merely give you a ticket or arrest you and take you to jail.

A charge of reckless driving is a misdemeanor offense, which, if convicted, will result in a criminal record and two points on your driving record. Generally, two points in any eighteen month period will result in a rise in your car insurance rates. If you have previous points on your record, it could also result in an even longer suspension of your license.

However, if you have been charged with reckless driving, with a skilled attorney, it is very possible to fight and win your case. The vague nature of the phrase “willful and wanton disregard for safety” leaves a great deal of room for a skilled attorney to argue your case either does not merit a misdemeanor charge or should be dismissed entirely. California courts have held that negligence, and even gross negligence, is not enough alone to establish reckless driving. This means that the prosecution must prove beyond a reasonable doubt that the driver intentionally did something he knew, or should have known, could result in killing or injuring someone.

Generally, a rule of thumb by police officers is that three moving violations, committed in rapid succession by a driver, constitute reckless driving. However, the courts have not adopted this rule, and follow the statutory definition of “willful and wanton disregard for safety.” This means that it is possible to be cited for reckless driving for committing a single “unsafe” maneuver, as defined by the officer, such as cutting sharply across traffic to make an abrupt turn.

If you have been charged with reckless driving, you should contact a criminal defense attorney today. A skilled attorney may be able to have unfair reckless driving charges completely dismissed, keeping you out of jail and saving your license. Further, it is often possible to have the misdemeanor charge reduced to a mere traffic infraction, which will result in greatly reduced fines and, when combined with traffic school, no points on your record. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

The Many Ways the DMV Can Suspend Your License

2009-08-14T15:33:00.000-07:00

Everyone knows that being arrested for driving under the influence of alcohol can result in the loss of your license, but did you know that there are literally dozens of other ways your license can be suspended? Be aware, here are some ways you can have your license taken away that you may not have realized:

Driving under the influence of ANY drug. The law does not distinguish between illegal and over the counter drugs. This means that if your driving is impaired, you may be arrested for a DUI just as readily from being drowsy from too much NyQuil as being high on cocaine.

Lack of insurance. If you drive in California, you must have a minimum amount of insurance coverage. If you are visiting or just moved to the state, be sure to check with your out-of-state insurance company to confirm they are authorized to do business here.

Refusing to consent to a BAC test. Under California’s implied consent law, by driving a motor vehicle you are agreeing to consent to a chemical test of your breath or blood to determine blood alcohol content.

Failure to appear or pay a traffic ticket. When you sign at the X on a traffic ticket, you are agreeing to pay the fine or appear in court. Failure to do so, even if you never receive anything in the mail, can result in your license being suspended.

Too many points on your record. Four points in one year, six in two years, or eight in three years can result in your license being suspended by the DMV.

Failure to pay child support. If you have failed to pay child support, your license can be suspended, and you may not know why even after you have been arrested.

Vandalism/Graffiti. California law allows the courts to suspend a person’s license for up to two years upon a conviction of vandalism. If the person does not yet have a license, the court may delay the issuance of a license for up to three years.

Possession of firearms or live ammunition. If a minor is convicted of possessing a concealable weapon or live ammunition, the court may revoke or suspend driving privileges.

Other ways your license may be suspended include:

Engaging in prostitution in a vehicle within 1000 feet of a residence.
Engaging in a “speed contest” i.e. drag racing against another person or a clock.
Assaulting a driver, passenger, bicyclist, or pedestrian on a highway. (“Road Rage”)
Failure to stop at a railway grade crossing.
Recklessly fleeing a law enforcement officer.
Leaving the scene of an accident or injury without filing a report.

It is important to be aware of the ways in which your license can be suspended so that you can avoid them. Driving on a suspended license is a criminal offense and can be punished by a $1,000 fine and up to six months in jail. However, if you are charged with or are facing one of the above situations, it is important to have an experienced attorney on your side. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.

HELP! I Was Arrested for a DUI! What Do I Do Now?

2009-08-11T14:32:00.000-07:00

If you have recently been arrested and charged with driving under the influence in California, it is important to realize that time is of the essence. Your first action should probably be to contact a good criminal defense attorney. However, regardless of if and when you decide to contact an attorney, there are several important things of which you should be aware.

When you are arrested for a DUI, there are two separate and independent proceedings that are set in motion, both with the ultimate goal of punishing you. Obviously, there will be criminal charges, which will take place in the Superior Court in the jurisdiction in which you were arrested. However, there will also be a separate proceeding with the Department of Motor Vehicles where a determination will be made if your license is to be suspended.

Immediately after you are arrested the most important thing for you to do, short of obtaining a skilled attorney, is to contact the DMV’s Office of Driver Safety and request a hearing to challenge the suspension of your license. This MUST be done within 10 calendar days, or your license will automatically be suspended. The U.S. Constitution requires “due process” before your driver’s license is taken away. This means the DMV must notify you of a proposed suspension and allow you a chance to challenge the suspension.

At the hearing, you will have the opportunity to show that a suspension (or revocation) is not justified. Even if you are later acquitted by the criminal court, this hearing is the ONLY time you will be able to prevent your license from being automatically suspended.

It is important to note that since the DMV proceeding is independent from the criminal charges, if you are assigned a public defender, he or she will NOT represent you in a hearing to challenge your suspended license. Unless you retain a private attorney, you will be completely on your own trying to save your driving privileges. While it is possible to win a DMV hearing on your own, an attorney familiar with the proceeding will give you the absolute best chance to save your license.

Further, even if you lose your DMV hearing, an experienced attorney can take advantage of the proceeding by using it to obtain a favorable ruling in the later criminal charges, including possibly a dismissal. For example, by tape recording the DMV hearing, a skilled attorney may be able to later impeach a testifying officer and call into question his or her credibility. If you want to learn more about your case, contact the Law Offices of Scott R. Ball today. Any consultation is totally free and always completely confidential.

"Probation" Explained

2009-08-06T12:57:00.000-07:00

You’ve probably met or heard of a person who is “on probation” but have you ever wondered what that actually means? Well, depending on whether the person is on formal or informal probation and the particulars of the crime, it could mean any number of different terms to each individual.

Formal, or “supervised” probation, is the more serious form. Formal probation requires the individual sentenced to make regular reports to a probation officer. Informal probation, also known as a “summary” or “court” probation, or “conditional sentence,” does not require the individual to make regular reports to a probation officer. Both kinds of probation, however, can subject an individual to the loss of many freedoms.

Often, probation is given in lieu of a jail or prison sentence. At the time of conviction, if a defendant is eligible for probation, the judge may either impose a sentence and then suspend the execution of that sentence, or may suspend imposing the sentence at all, in favor of granting probation. Probation consists of a fixed term during which the probationer must abide by the terms set by the court or probation officer. If the probationer breaks his or her probation, for example by committing another crime or failing a drug test, he or she will be subject to the sentence that was suspended by the court at the time probation was granted. This means if you screw up your probation, you are almost assuredly going to jail.

The court or probation officer have broad discretion to impose any “reasonable conditions” necessary to secure justice and assist the “reformation and rehabilitation” of the probationer, as long as the conditions are reasonably related to the offense and aimed at deterring such misconduct in the future. These terms include things like mandatory alcohol or drug testing, community service, counseling, curfews for minors, stay-away orders, electronic monitoring, home detention, travel restrictions, or suspension of a driver’s license.

Probation might not sound like very much fun, but it is often a welcome alternative to jail time. If you are facing a potential conviction on criminal charges, it is important you have an experienced attorney to negotiate on your behalf. A skilled attorney familiar with the judge and district attorney in your case can arrange for probation instead of jail, and will be able to get the best possible terms. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Understanding Sentencing for Multiple Convictions

2009-07-19T14:38:00.000-07:00

Often, a defendant is charged with multiple crimes stemming out of the same incident. For example, a person involved in a bar fight may be charged with both assault and disturbing the peace. While both charges are based on the same course of conduct, it is still possible to be found guilty of violating both laws.

In California, the crime of simple assault carries a maximum of six months of jail time while the crime of disturbing the peace carries a maximum of 90 days jail time. However, it is important to realize that while multiple convictions based on a single act or course of conduct are allowed, multiple punishments are barred. This means that a defendant found guilty of both assault and disturbing the peace will only be exposed to the higher of the maximum punishments, in this case, six months in jail for the assault conviction. Other sentences for convictions from the same act must be stayed.

The key to understanding the limit on multiple punishments is whether the course of conduct was in fact an indivisible single transaction. This will depend on the actor’s intent and objective. In the case of the bar patron starting a fight, if the court determines that his intent was to fight an individual, while he can be convicted of the two crimes, he cannot be punished for both.

There are several exceptions to this general rule. Acts of violence with separate victims, multiple sex acts, and certain vehicle code violations are statutorily exempt from this law. Further, if the court can point to a separate objective or similar but consecutive objectives for one of the crimes, it will not be subject to the bar on multiple punishments. If you are facing multiple criminal charges stemming out a single incident, you should speak with an attorney today. These sort of factual distinctions can often be decided both ways, and a skilled attorney is invaluable to have on your side if you face the possibility of multiple sentences. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Clearing Your Criminal Record: Are You Eligible?

2009-07-14T14:12:00.000-07:00

California law has several ways in which a person may clean up their criminal record. Depending on the time since your conviction and the circumstances surrounding the charge, it may be possible to have the conviction expunged from your record. When a criminal record is expunged you may legally answer “no” when asked by private employers if you have ever been convicted of a crime.

If you have been convicted of a misdemeanor and were not sentenced to probation or have successfully completed probation: If this is your situation, it is highly likely you will be able to have your record expunged. Contact an attorney today to get started immediately to clear your record. The process can take several months, so it is important to take care of this now, before it becomes absolutely necessary.

If you have been convicted of a misdemeanor and are still on probation: Even though you have not yet completed your probation, it is still possible to have you record expunged. If this is the case, it will be necessary to file a motion to terminate probation. The court will grant such a motion when it serves the “ends of justice.” This means you must have a good reason, i.e. you are unable to find a job or obtain licensure. An experienced attorney can work with you to be able to make a compelling argument to the court. If a motion to terminate probation is not granted, it will still be possible to have your record expunged upon completion of the terms of your probation.

If you have been convicted of a felony and have successfully completed probation, but did not serve time in state prison: If this is the case, you may file a motion to have the felony reduced to a misdemeanor, and then a motion to have the misdemeanor expunged.

If you have been convicted of a felony and have not yet completed probation, but did not serve time in state prison: Even if you haven’t yet finished your probation, it is STILL possible to have your record expunged! However, it will be necessary to have a very good attorney on your side, as several important steps will need to be taken.

If you have been convicted of a felony and sentenced to state prison: Believe it or not, even if you have spent time in state prison, the law still allows a person to improve what is on their record. To have a felony cleared from a person’s record, it is necessary to obtain a certificate of rehabilitation and pardon from the governor.

Remember, in these uncertain economic times, it is more important than ever to have a clean criminal record. Contact the Law Offices of Scott R. Ball today for your free and completely confidential evaluation.

Driving Under the Influence of Drugs

2009-07-13T11:43:00.000-07:00

Most people don’t realize that driving under the influence of drugs, even completely legal, over the counter drugs, can result in arrest and conviction of driving under the influence. The key element that must be proved to be convicted of a DUI is that the driver suffers a physical or mental impairment such that he or she cannot drive with the same caution that would be exhibited by a sober person. This means it is possible to be convicted for driving under the influence of cocaine, marijuana, cold medicine, or even coffee!

A common mistake many people believe is that they cannot be convicted of a DUI for being under the influence of a drug prescribed by a doctor. A prescription is no defense, and the cost of that mistake can have severe consequences.

Unlike driving under the influence of alcohol cases, there is no numerical limit like “.08%” when determining impairment for drugs. This can lead to trouble: a police officer’s judgment and field sobriety tests may be the key evidence against a person in a DUI drugs case. If a person is only slightly stoned but has, shall we say, a unique personality, it may lead the officer to believe he or she is far more impaired then they actually are.

Another difference between drugs and alcohol DUIs is the manner in which you may be chemically tested. If you are arrested for a DUI alcohol, you MUST submit to either a breath or blood test. If you are arrested for a DUI drugs, you MUST submit to either a blood or urine test. Remember, however, that you NEVER have to submit to any test before you are arrested.

If you are pulled over for suspicion of driving under the influence of drugs, it is important to remain calm and act as normal as possible. Do not admit that you have taken any legal or illegal drug, even if you have a prescription. Anything you say can and will be used against you! If you have not had any alcohol, consent to a breath test.

But perhaps the best advice you can get? Don’t drive if you are unable to do safely! However, if you have been arrested and charged with driving under the influence of drugs, you should contact criminal defense attorney Scott R. Ball today. A consultation is always free and completely confidential.

Know Your Rights: Breathalyzers and DUIs

2009-07-08T14:22:00.000-07:00

When a person is pulled over for suspicion of drunken driving in California, the officer will often just say “blow in this” and thrust a breathalyzer into his or her mouth. However, it is of the utmost importance for you to be aware: you do not have to submit to such pre-arrest tests!

The California Vehicle Code actually requires that an officer advise a motorist suspected of drunk driving that such a pre-arrest test can be refused. In reality, however, this is extremely rare. Breathalyzers and field sobriety tests like walking a line or touching your finger to your nose are designed to be used as investigative tools for an officer to determine if a person is under the influence of alcohol. However, if you have not been placed under arrest, they are COMPLETELY OPTIONAL.

Once you have been placed under arrest, you MUST submit to a chemical test, but you have the choice of either a breath or blood test. A refusal to submit to a test after being placed under arrest will result in an automatic one year suspension of your license in addition to the DUI charges.

If you have been drinking and are pulled over, there are several ways to use this knowledge to your advantage:

-If you believe you may be close to the legal limit but think you can handle yourself fine, you should agree to perform the field sobriety tests and refuse the breathalyzer. Politely tell the officer that you are concerned about the accuracy of hand held breathalyzers and agree to walk the line, etc. to demonstrate your sobriety. If you can show that you are in control of your motor functions, they might let you simply drive away.

-If you believe you may be close to the legal limit but are nervous or concerned about performing the field sobriety tests, simply refuse all pre-arrest tests. Politely tell the officer that you do not wish to take any pre-arrest sobriety tests because your attorney has advised you that they are extremely inaccurate. You will probably be placed under arrest at this point. You should now insist on a blood test. It will take some time to get to a station where a blood test can be performed. If you are close to the legal limit, by the time you get to the station your BAC may have declined to under .08%.

-If you know for a fact that your BAC is well over the legal limit, politely decline any and all pre-arrest tests. Speak as little as possible, and do not admit any alcohol consumption. Any thing you say or do indicating that you are intoxicated WILL be used against you in court. If you are arrested, insist on a blood test. Again, the time it will take to get you to a station can be an opportunity for your BAC to decline. A BAC over certain limits will result in harsher penalties, and a BAC close to the legal limit may be more easily challenged.

Remember, you pre-arrest tests are optional and post-arrest tests are not. If an officer tries to force you to take a test, simply ask him if you have been placed under arrest. Always be polite and respectful. If the officer asks you why you are refusing a test or requesting a different test, simply tell him you are doing what your lawyer advised you.

For more information on how to fight and prevent DUI arrests and convictions, contact Scott R. Ball today. A confidential evaluation of your case is always free.

Civil Compromises Lead to Dismissal of Criminal Charges

2009-07-07T14:27:00.000-07:00

If you have been arrested on criminal charges dealing with damage to another person’s property, it is possible that you may be able to have those criminal charges dismissed through a civil compromise. A civil compromise is available when an offense charged involves damage for which the victim may seek a civil remedy (i.e. a civil suit for damages) and the victim agrees to drop the charges in exchange for payment for the damages. For example, if you are charged with a hit and run for backing into another vehicle, you may be able to pay for the repairs to the victim’s vehicle in exchange for the criminal charges against you being dismissed.

For a court to order a civil compromise, it is NOT necessary for the prosecution to agree to this disposition. As long as the case at hand falls within the statutory guidelines, a civil compromise is appropriate. This outcome is often favorable to both the defendant charged with committing the crime and the victim. The former receives no conviction and resulting criminal record while the latter is fully compensated for his or her loss.

There are several limitations to when a court may order a civil compromise. If the crime committed by the defendant was against a peace officer, or committed riotously or with felonious intent, a civil compromise will not be available. Further, it will not be available when the crime was committed against any family or household member, or against a child or an elder. Many of these definitions, however, are subject to interpretation. A skilled attorney with experience in negotiating civil compromises can successfully argue that a case is eligible for this sort of favorable disposition.

If you have been arrested for a crime and believe you may fit the above criteria to be eligible for a civil compromise, you should contact the Law Offices of Scott R. Ball today. Making a victim whole by compensating them for their damages can lead to the complete dismissal of any criminal charges, leaving all parties satisfied with the outcome.

The Difference Between "Guilty" and "No Contest" Explained

2009-07-05T16:44:00.000-07:00

When a person no longer wishes to fight a criminal charge against him or her, he or she has the option of pleading “guilty” or “no contest.” While these may sound quite different, they are actually very similar, albeit with one major difference.

To accept a guilty plea, the court must find a factual basis for guilt. This generally means the judge must be convinced that the defendant admitting guilt, is in fact guilty. A guilty plea is telling the court, “I have committed the criminal acts with which I am charged.”

A no contest plea, also known as a “nolo contendere” plea, has one important difference from a guilty plea. Entering a plea of no contest is effectively telling the court, “I am not admitting I did the criminal act with which I am charged, but I do not wish to challenge these charges.” This is an important difference because a no contest plea allows the defendant to dispose of the criminal proceedings without admitting guilt which may be used against him or her in a later civil trial.

A good example of where a no contest plea would be useful arises when a defendant is accused of running a red light and getting into an accident. The defendant may be facing the criminal charge of a ticket for running the light as well as a civil suit by the owner of the vehicle he hit. Wishing to simply pay the fine for traffic ticket and take traffic school, the defendant here should enter a plea of no contest. That way, he can dispose of the criminal charges without admitting that he did indeed run the red light and open himself up to liability in the much more expensive civil suit.

If you are facing dual criminal and civil charges, it may be wise of you to enter a plea of no contest. Contact criminal defense attorney Scott R. Ball today to discuss your case and find out your options. As always, any consultation is free and completely confidential.

Stopped by Police? Know Your 4th Amendment Rights!

2009-07-02T14:36:00.000-07:00

One of the most important protections guaranteed by the United States Constitution is the Fourth Amendment right to be free from unreasonable searches and seizures. However, if one is not aware of such rights, the protections it offers will often not be realized. This is often the case when a motorist is pulled over by a police officer and questioned.

The most important thing to remember is that you NEVER have to give permission to an officer to search anything. Police officers will often “ask” if you mind if they take a look at something in such a way that implies they will do it anyway, and receiving your permission is just a formality. If you say “yes,” then you have just surrendered one of your most important rights! Even if you don’t believe they will find anything illegal, you never know what your buddy might have left in the backseat the night before. Don’t ever let an officer search your person, vehicle or anything else by giving them permission!

For a law enforcement official to search any of your property, they must have significant justification to do so. This can be provided by a search warrant. If an officer does have a search warrant, ask to inspect it before allowing the officer to search anything. A search can also be conducted when an officer has probable cause to believe that such a search will find evidence of illegal activity. This standard is slightly relaxed, however, for a search of your vehicle. In that situation, the officer must only show a “reasonable suspicion.”

If a search of your property has turned up evidence of illegal activity, the officer must show specific evidence that gave rise to show probable cause or reasonable suspicion. An experienced attorney can challenge these findings as failing to give rise to such justification. A successful Fourth Amendment challenge will result in the evidence being thrown out, and probably the case as well!

However, if you have given permission to the officer to perform the search, no such justification is necessary. Therefore, remember to NEVER give permission to an officer to perform any search.

If you have been stopped by law enforcement and you believe you may have been searched illegally, you should contact criminal defense attorney Scott R. Ball today. An evaluation of your case is completely confidential and always free.

P.C. 647(f) “Drunk in Public” Arrests Explained

2009-06-26T14:19:00.001-07:00

Also known as a “drunk and disorderly,” California Penal Code Section 647(f) makes it a misdemeanor crime for a person to be under the influence of alcohol or drugs in a public place and to be in such a condition that either:

1) the person’s intoxication makes him or her “unable to exercise care for his or her own safety or the safety others” or

2) due to his or her level of intoxication, the person “interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.”

A conviction for a drunk in public carries with it up to six months of jail time, fines, and probation. Repeat offenders with two prior convictions may face up to a year in jail.

To be convicted of this crime, the prosecution must prove several elements beyond a reasonable doubt. First, the person must be in a public place. Courts have defined a public place as the “area outside a home in which a stranger is able to walk without challenge.” This definition has been expanded somewhat by case law to include a car parked in a public street, the hallway in an apartment building, and the area in front of a house, including the driveway and front porch.

Next, it must be shown that person was in one of the two conditions stated above. An example of person who is unable to care for his or her own safety or the safety of others would be a person who is falling down drunk, unable to walk, with the potential of wandering into traffic. Merely being intoxicated, if you are in control of your facilities, is not enough for a conviction under this standard.

The second way a person may be convicted of this crime is if he or she interferes or obstructs a street, sidewalk, or public way. This can be shown when a person is lying on a street or sidewalk, or otherwise incapacitated in some way. Again, mere intoxication is not enough for a conviction. If you were lying on the ground asleep, but wake up as soon as you are approached by the officer and remove yourself as an obstruction, you should not be found guilty!

In reality, drunk in public violations are often charged, but with the help of a skilled attorney, should rarely result in convictions. Simply put, you must be pretty darn wasted to be found guilty. Even in that case, however, due to the minor nature of the offense it is often possible to enroll in a diversion program in which you may complete an alternative sentence, such as community service or Alcoholics Anonymous classes, and then have the charges dismissed completely. For most people, the most important consideration is the desire to keep a conviction off his or her record. With a charge of P.C. 647(f), that should be possible.

If you have been charged with a drunk in public violation due to a night out of drinking that got just a bit too wild, you should contact an attorney today. Even though this is a minor charge, it is important to make sure you do not end up with an ugly black mark on your record. Contact the Law Offices of Scott R. Ball today for a completely free and always confidential evaluation of your case

What it Means to “Expunge” a Criminal Record

2009-06-23T13:45:00.000-07:00

If you have been convicted of a crime, the stigma associated with the conviction is something that can haunt you for the rest of your life. Having to check “yes” on a job application when asked if you have ever been convicted of a crime is often enough to cost you the job, especially in these tough economic times. However, if you were convicted of a misdemeanor and have stayed out of trouble since then, it is actually relatively easy to have that record “expunged.”

It is important to understand what an expungement entails. Most important, after a motion for expungement under CA Penal Code 1203.4 is granted, you may legally check “no” when asked by private employers if you have ever been convicted of a crime. When a criminal conviction is expunged, the law no longer considers you as having been convicted of the offense.

However, it is also important to realize what an expungement does not do. It does not relieve you of your duty to disclose the conviction when you are applying with government employers or government licensing applications. In that situation you may state “Yes – conviction dismissed.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards), will treat you the same as if you had never been convicted of the crime.

In addition, an expungement does not erase the conviction for several other purposes. An expunged criminal conviction can still be used to increase your punishment in future criminal cases. If your conviction prevented you from owning a gun, possessing a driver’s license, or holding a public office, an expungement will not re-instate those privileges.

If you have successfully completed all terms of your probation, paid all of your fines and fees ordered by the court, and have stayed out of trouble (traffic tickets are OK), then it is relatively easy to have a misdemeanor conviction expunged from your record. While there are no guarantees, if all of the above are true in your case, there is an excellent chance your motion for expungement will be granted.

Expunging a criminal record can have a substantial therapeutic effect on a person. For many people, a single youthful transgression can mar an otherwise outstanding record. By expunging your record, that mistake can be forgotten. It’s also great to finally be able to check “no” on that job application!

If you wish to close a forgettable chapter of your life, you should contact the Law Offices of Scott R. Ball today. A discussion and evaluation of your case is completely confidential and free.

Domestic Violence and Victim Restitution – Why You Need to Protect Yourself Even After Disposition

2009-06-14T14:20:00.000-07:00

If you are facing criminal charges of domestic violence, it is important to know that there is more to your case than simply the sentence imposed by the court. After a finding of guilty or no contest, the court may then impose additional restitution in an effort to compensate the victim for his or her damages.

A restitution hearing is a type of mini-trial designed to restore the victim’s economic losses he or she suffered due to the defendant’s crime. This can include:
· medical expenses, including mental health and counseling expenses;
· the value of stolen or damaged property;
· lost wages and profits, including wages lost due to injuries suffered from the crime, testifying in court, and attending trial.
· relocation and security expenses;
· investigative expenses incurred by the victim related to the criminal case; and
· attorney’s fees incurred by the victim.

Further, an interest of ten percent can accrue on all orders of restitution made by the court.

A defendant facing potential restitution has the right to be represented by an attorney and dispute the validity and amount of any potential restitution. The court’s power to award restitution is broad and it is possible that a victim can attempt to take advantage of the system by overstating damages, lost wages, and other expenses. It is important for a defendant to have an experienced attorney at his or her side when facing a restitution hearing.

If you are facing domestic violence charges, you must be aware of the potential economic losses you may suffer in restitution damages. Restitution can result in a far greater harm to the defendant than the underlying criminal sentence. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Stages of the Criminal Process: Arraignment

2009-06-02T14:36:00.000-07:00

When a person is charged with a crime, the first formal legal process is the arraignment. The arraignment is a hearing before a judge where several important things occur. If a person is in custody, the arraignment must occur with two to three days. Otherwise, arraignment is usually set for a date several weeks in the future.

There are several purposes of an arraignment. First, the defendant is formally read the charges he or she is facing. Next, the defendant is informed of his or her rights. For misdemeanor and felony crimes, these include a right to a jury trial, a right to present evidence, a right to confront adverse witnesses, and, if any jail time is a possibility, a right to an attorney. To be appointed a Public Defender, a defendant must meet certain income criteria. Depending on your income level and assets, the court may or may not decide that you qualify for the services of the Public Defender. If the court determines you do not qualify, generally you will be allowed to continue the arraignment in order to obtain a private attorney.

In a misdemeanor case, even if you do qualify for a Public Defender, it is often wise to obtain the services of a private attorney, because they may appear at the arraignment (and several other proceedings) without your presence. A great benefit of retaining private counsel is the simple fact that you do not have to miss work and spend all morning in a courtroom waiting to be called. This is true in some proceedings in felony cases as well, although courts vary in their requirements for the presence of the defendant.

The arraignment is also the point where the District Attorney (or City Attorney, depending on which agency is prosecuting your case) will provide you or your lawyer with a copy of the complaint (the formal document stating the charges against you) and the police report or other information on which your charges are based. Once you and your lawyer have a copy of this information, you have a much better idea what kind of case you have. The defendant is also given an opportunity at this point to enter a plea of guilty, not guilty, or no contest. At the arraignment, you should almost always plead not guilty! You have just received the evidence against you, so why would you want to admit guilt before even examining your case?

If you have been arrested and have an arraignment scheduled, it would be wise of you to contact an attorney immediately. If you do not qualify for, or do not wish to be represented by the Public Defender, it would be prudent to retain private counsel immediately or the initial arraignment will simply be a waste of a morning in court. To speak with a skilled attorney about your case and what can be done, contact the Law Offices of Scott R. Ball today.

Common Traffic Tickets in CA Explained: Stop Signs, Stoplights, and U-Turns

2009-05-24T15:05:00.000-07:00

Did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?) If you’ve been cited for one of the many violations of the complex and lengthy California code, it could end up costing you thousands of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. However, armed with knowledge about the elements required for a traffic violation and possible defenses, you can fight your traffic ticket and win. Learn more about some of these common traffic violations:

· VC 22450 – Running a stop sign. This may be a common infraction, but there are many ways to beat this kind of ticket. For instance, if the officer has parked on a cross street when he saw you fail to stop at the sign, it may be possible that his vision was blocked and he didn’t see that you actually did come to a complete stop a few feet behind the line. Other defenses may be possible if the sign is newly installed or markings on the road have been worn away.

· VC 21453 – Running a stoplight. The wording of this law is very similar to the above infraction, but the application and defenses available differ greatly. For one, it is important to understand exactly what constitutes a violation of this section. To be guilty, you must enter the intersection when the light is red. If the front of your vehicle entered the intersection when the light was yellow, you have not broken this law. However, this does not mean you should simply slam on the gas pedal to be sure you enter the intersection a millisecond before the light turns red; an officer may still cite you for reckless driving if your actions are sufficiently dangerous. It is important to remember as well that you should never tell the officer it was a short yellow light – this is very close to admitting you did indeed enter the intersection when it was red.

· Illegal U-turns. There are three types of illegal U-turns, each dealing with the sort of “district” you are in when you are cited. The definition of business, residential, or non-residential and non-business will often be the distinction between whether you were guilty of violating these provisions or not.

o VC 22102 – U-turn in a business district. A “business district” is a place where over 50% of the property fronting the street is devoted to businesses along 300 feet of highway. You can only make a U-turn at an intersection or, on a divided highway, at an opening unless a visible sign prohibits it.

o VC 22103 – U-turn in a residential district. A “residential district” is a place where there are at least 13 houses or businesses on one side of the road or 16 on both sides over a quarter mile stretch. In these areas, you may make a U-turn at any controlled intersection or at any place where no vehicle is approaching within 200 feet in either direction.

o VC 22105 – U-turn in non-residential, non-business districts. This includes any area not defined as “residential” or “business.” Here, you may make a U-turn anywhere (including over double yellow lines, unless they are more than two feet apart) as long as you have an unobstructed view 200 feet in both directions. It does not matter whether a vehicle was approaching or not, only that your view was obstructed.

If you have been cited for any of these common traffic violations, there are very likely defenses available to you that you can use to fight and beat your traffic ticket. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Common Traffic Tickets in CA Explained: Accidents and Insurance

2009-05-24T13:29:00.000-07:00

Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)

If you’ve been cited for one of the many violations dealing with accidents and insurance, it could end up costing you thousands of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. With a skilled attorney experienced in defending traffic tickets, however, you can fight your traffic ticket and win. Learn more about the most common accident and insurance traffic violations:

· VC 16028 – Proof of insurance. This section of the Vehicle Code requires that you carry proof that the vehicle you are driving is insured. Anytime you are questioned by an officer for proof of insurance, you must produce it or you may be cited. However, an officer may not pull you over simply for the purpose of asking if you are insured. If an officer pulls you over without a valid reason and cites you for this violation, you should speak with an attorney immediately, as you have a very winnable case. There are two ways to be cited for breaking this law:
o If you have insurance but no proof. If you actually do have insurance but merely weren’t carrying the card with you when you were pulled over, this is relatively easy to have dismissed by giving a copy of your current insurance policy or card to the court clerk. Don’t forget to do this, however, as failing to provide proof of insurance is punishable by a fine of over $1,700!
o If you didn’t have insurance when you were cited. If you are cited for violating this section and you simply do not have insurance, you have a big problem. Fines are extremely expensive for this infraction and if you have no proof that you do have insurance, there is not much you can do. However, if the vehicle you are driving is insured by someone else, such as your employer, it is possible to get this sort of violation dismissed. NOTE: NEVER give wrong information to an officer about your insurance. This crime is a misdemeanor and is punishable by an even larger fine and up to five days in jail.

· VC 16075 – Mandatory reporting of certain accidents. This section requires that in any accident involving personal injury or damage of at least $750, all drivers must file an accident report and provide evidence of insurance. Failing to do so can result in the suspension of your license for one year. In fact, even if you are driving someone else’s vehicle, you must comply with this section. If you are facing a violation of this section, it is important you contact a skilled attorney today to prevent the DMV from taking away your license.

· VC 16025 – Exchange of information at accidents. Even if the accident in which you were involved is very minor and less than $750 worth of damage is involved, you are still required by law to exchange information with other drivers involved. If you fail to disclose your name, address, driver’s license number, vehicle identification number, or insurance information, you can be found guilty of an infraction with another hefty fine. However, it is important to realize that this violation must be proved beyond a reasonable doubt.

If you have been cited for any of these common accident and insurance violations, it would be wise of you to contact an attorney today. Often, these sorts of tickets can be reduced to much less expensive violations or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.

Common Traffic Tickets in CA Explained: Failure to Yield Tickets

2009-05-16T14:02:00.000-07:00

Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)

If you’ve been cited for one of the many violations dealing with failing to yield, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common failure to yield violations:

· VC 21451 & VC 21453 – Right of way in intersections. If another vehicle is in the intersection before you, you must give them the right of way, even if your light is green, you have already come to a complete stop at a stop sign, or before making a right turn on a red light. You do not have to wait until the intersection is completely cleared before entering, but you must not deliberately crowd other vehicles. Whether you are a crowding another vehicle is a subjective interpretation by the citing officer, which can often be successfully challenged in court. NOTE: VC 21453, dealing with failure to yield at a red light, is a particularly harsh offense, with a base fine of $100, which, with penalty assessments and various court fees, will cost you over $400 for a conviction.

· VC 21800 – Uncontrolled four way stops. Remember driver’s ed? If you and one or more vehicles get to a four way stop at the same time, the vehicle to your right has the right of way. However, if any vehicle came to a complete stop first, then that vehicle has the right of way. This violation is often cited when an officer comes to the scene of an accident which they did not see. If this is the case, it is important to remember to never admit to the officer that the other vehicle was there first or that you were at fault. Your admissions can and will be used against you in court.

· VC 21801(a) – Left or U-turn. When you are making a left or U-turn and there is no controlled green arrow signal, you must yield to oncoming traffic. Again, this is another very subjective interpretation by the officer, and it is also another infraction that can be successfully challenged.

· VC 21802 & VC 21803 – Stop and yield signs. Even if you have come to a complete stop, you must still yield to oncoming traffic if, upon entering the intersection, you constitute an “immediate hazard” to any other vehicle. However, this traffic ticket can be challenged by numerous methods, such as obstructions that made you unable to see oncoming traffic, or if the other driver was driving at an unsafe speed.

· VC 21950(a) – Pedestrian in a crosswalk. You must yield to pedestrians at both marked and unmarked crosswalks, even after coming to a complete stop. An unmarked crosswalk is the prolongation of sidewalk boundaries where any two streets meet at right angles. You do not have to wait until the pedestrian has exited the crosswalk, it is only required that any pedestrians are out of the way. This is a different rule than in some states, and police officers can sometimes mistakenly cite you incorrectly. If that is the case, it is important to have an attorney with you to challenge this sort of ticket.

· VC 21951 – Passing vehicle stopped at a crosswalk. If a vehicle in front of you has yielded to a pedestrian, you may not pass that vehicle. This is fairly straight forward, but can be subject to several challenges by a skilled attorney that can create reasonable doubt about your guilt. This section is also a particularly harsh offense, with a base fine of $100, which, with penalty assessments and various court fees, that will cost you over $400 for a conviction.

· VC 21952 – Pedestrian on sidewalk near driveway. You must yield the right of way to a pedestrian on a sidewalk when entering or exiting a driveway. Just because a driveway isn’t a regular roadway, doesn’t mean that you have the right of way!

If you have been cited for any of these failure to yield violations, it may be a good idea for you to challenge your ticket. Often, these sorts of tickets can be reduced to non-moving infractions, which do not result in a point on your record (or an increase in your car insurance) or even completely dismissed. If you have more questions about how you can fight your ticket and win, contact the Law Offices of Scott R. Ball today.

Common Traffic Tickets in CA Explained: Passing and Lane Changing Tickets

2009-05-08T16:00:00.000-07:00

Everyone knows that speeding or running a red light or stop sign can result in being pulled over and given a traffic ticket for your momentary lapse in judgment. But did you know there are literally hundreds of California Vehicle Code sections you can violate every single time you get in your car? (And some, even, that you don’t even require you to be driving?)

If you’ve been cited for one of the many violations dealing with passing or changing lanes, it could end up costing you hundreds of dollars in fines, an increase in your car insurance premiums, and even a suspension of your license. Learn more about the most common passing and lane changing violations:

· VC 21658(a) – Unsafe lane changes. A violation of this section results when you either straddle two lanes or make a lane change without regard for “reasonable safety.” However, just because you signal your lane change does not necessarily make it “reasonably safe.” This is a subjective interpretation by the officer who gives you the ticket. An experienced attorney can challenge this subjectivity and often have this kind of citation dismissed.

· VC 21655.5 through 21655.9 – Traveling in, and crossing into a high occupancy vehicle lane. Also known as the carpool lane, these violations are extremely expensive, with a $100 base fine that comes out to a total fine and fees of over $400. However, these infractions are subject to requirements that certain surveys have been conducted within a specified time period before you received your ticket. If a proper survey has not been conducted in the requisite time period, your ticket should be dismissed.

· VC 21750 & VC 21751 – Dangerous passing. This section requires that you “interfered with the safe operation” of any vehicle or bicycle while in the act of passing. Unless you have caused a near accident, this is a violation that is relatively easy to fight due to the extremely subjective nature of the wording of the law.

· VC 21752 – Unsafe “blind” passing. Similar to the previous section, this infraction prohibits unsafe passing when there is an obstacle (such as a hill or curve) where another vehicle might approach. It does not matter if another vehicle was approaching or not.

· VC 21754 & VC 21755 – Passing on the right. You are generally prohibited from passing on the right side of a vehicle unless you are on a divided highway or the passed vehicle is making a left hand turn. There are, however, exceptions to this rule, such as where the street is wide enough to accommodate two lanes of traffic.

· VC 22526 – Entering an obstructed intersection. Also known as the “Anti-Gridlock Act,” this infraction results when you enter an intersection and there is not sufficient space to get completely through the intersection before the light turns red. Even if you entered the intersection when your light was green, if you get stuck blocking traffic, you can be cited for this offense. Further, if there are posted signs warning about the offense, your fine will be doubled.

If you have been cited for any of these passing or lane change violations, it would be wise of you to contact an attorney. Often, these sorts of tickets can be reduced to non-moving infractions, which do not result in a point on your record (or an increase in your car insurance) or even completely dismissed. Contact the Law Offices of Scott R. Ball today for a free and completely confidential evaluation of your case.

Know Your Rights! How to Fight a Traffic Ticket

2009-05-07T13:58:00.000-07:00

You see the dreaded red lights flashing in your rear view mirror. The police officer approaches your car, and before you can get a single word out he simply says “license and registration.” You sign next to the X, and a few weeks later, you get a notice in the mail saying you need to show up at a courthouse or pay a fine of several hundred dollars.

Let’s say that you feel the ticket was unfair. The cop says he caught you on radar going 85, but you know for a fact that you had the cruise control set at 75. He clearly meant to pull over that other silver Nissan Maxima and got you instead. Or maybe you’ve already done traffic school, and your insurance rates are going to take a major hike if you take another point on your record. You need to challenge this ticket. What do you do?

Pay attention to the copy of the ticket given to you at the time you are pulled over. Sometimes it will have a date to appear, sometimes it won’t. The court will send you a notice in the mail about when you need to appear in court to challenge the ticket. However, if that notice gets lost in the mail, you are out of luck if you fail to appear. The court (unfairly) assumes that if the notice is mailed, you have received it. A failure to appear will result in a civil assessment (penalty) of $300 in addition to the underlying fine for the traffic infraction.

Your initial appearance is called the arraignment. At this time, the court will explain your rights to you and ask for a plea of guilty or not guilty. It will vary by the county, but if you have not done traffic school in the past year, you will generally be allowed to plead guilty and pay the fine plus an additional assessment (usually $40-$70) to attend traffic school. This will keep a point off your record. Traffic school is generally an eight hour course and costs another $40-$80.

If you are ineligible for traffic school or just want to contest an undeserved ticket, you can plead not guilty at your arraignment and set your case for trial. However, if you represent yourself at this stage, you must post bail, which will be for the amount of your fine. If you are represented by an attorney, you will not need to post bail, and it will not even be necessary for you to ever go to court.

When you plead not guilty you will set your case for trial, usually 4 to 6 weeks in the future. The trial will usually be in the same courtroom, and will consist of you and the officer who gave you the ticket telling the judge your story, similar to the format you’ve seen on “The People’s Court.” You have the right to present evidence such as photos, and to have witnesses testify in your defense. The officer who gave you the ticket, since he writes hundreds (or thousands) of tickets, will probably testify based upon his notes. The judge will decide if, based on the evidence testimony presented, it has been proved beyond a reasonable doubt if you committed the infraction.

If you are found guilty, the bail you previously posted will be forfeited, and a point (or two, if it is a more serious infraction such as reckless driving) will go on your record. If you are found not guilty, your bail will be returned by the court, usually via check within 4 to 6 weeks.

There are many ways to win at trial! The easiest way is if the officer simply does not show up. This is fairly common. Sometimes the officer won’t recall any details of the ticket, and will admit this, and the ticket and fine will be dismissed. Even if the officer does show up and remembers giving you the ticket, it still must be proved beyond a reasonable doubt that you committed every element of the violation alleged. If radar was used to cite you for speeding, there are technical rules that must be followed to allow the use of radar. If the citation was at night or in heavy traffic, the officer must demonstrate beyond a reasonable doubt that yours was the car that committed the violation. This can often be very difficult! You have a right to cross examine the officer and challenge his powers of observation. In short, it is VERY possible to win at trial!

Of course, the best way to fight and beat your traffic ticket is to retain an experienced attorney. By having an attorney on your side, you will not need to miss at least two days of work, you will not need to post bail of several hundred dollars, and you can be sure you are not hit with any failure to appear fines. Further, an attorney who has handled many cases exactly like yours will know just how to attack any traffic infraction, and will create the reasonable doubt that will make it impossible for you to be found guilty.

If you don’t want to pay increasingly expensive fines, not miss work, keep points off your record, and avoid car insurance increases, you should retain an attorney to fight your traffic ticket today. Contact the Law Offices of Scott R. Ball today for your free and completely confidential evaluation of your case.

California Penal Code 851.8 Petition for Factual Innocence

2009-05-02T14:26:00.000-07:00

Many people do not realize that if you are arrested, even if the charges are dropped or never filed, the arrest will remain on your record. If you go to trial and receive a not guilty verdict, or have the conviction successfully expunged, the arrest will stay on your record as well. Unfortunately, even if it is clear you did not commit any crime, a background check will still reveal your arrest. In an abysmal economy, this kind of black mark on your record can make an already difficult job search even more so.

However, there is a way to have your arrest record completely destroyed. The California Penal Code provides that any person whose arrest did not result in a conviction may petition for a finding of factual innocence (PFI) under Section 851.8. This is a process by which a petitioner may prove to the court that he or she is actually innocent. A successful PFI can provide something that a jury cannot: an acquittal at trial merely means the person is not guilty beyond a reasonable doubt, but does not prove that the person is in fact innocent. A PFI does exactly that.

The result of a granted PFI is that all arrest and prosecution records are sealed, and then destroyed. In effect, this will completely wipe your record of that arrest clean. The law states that “the arrest will be deemed to have not occurred and the person may answer accordingly any question relating to its occurrence.” This can be of enormous importance when filling out job applications.

When filing for a PFI, time is of the essence. The law requires that you file your petition within two years of your arrest or the filing of charges against you, whichever is later, unless good cause is shown. Good cause can be shown in various ways, such as if the case drags unnecessarily slow through the court system.

If you have been arrested for a crime you did not commit and were never convicted and you meet the timing requirements, you are eligible to file a PFI. The broad protection afforded by a successful PFI can be invaluable to preserve your record. If you are interested having your arrest record destroyed, you should contact criminal defense attorney Scott R. Ball today.