Criminal Law Blog on Lawyers.com

Q: What will happen on my first court date and do I have to be there if I have a lawyer?

A: The first court date is called an arraignment. On this day a plea will be entered to the charges (guilty, not guilty or no contest). Usually, the police reports and a list of charges (Complaint) are obtained. The defendant in misdemeanor cases will usually not have to be present if represented by an attorney. In felony cases the defendant must appear.

Q. I was arrested for Spousal Battery but my wife was upset and says she made a mistake when she called the police. Can she have the domestic violence charges against me dropped?

A. No, only the District Attorney can drop the charges against you and this is unlikely to occur. A victim of domestic violence or what is commonly called spousal or co-habitant battery often attempts to recant the statement they made to police in order to have the charges dropped against an abusive spouse. In the past this has led to a cycle of continuous abuse. The District Attorney's Office prefers to file charges and let the courts decide issues of domestic violence.

Q. The police did not read me my rights, will my case be dismissed?

A. Law enforcement personnel are required to read you your "Miranda rights" only if two criteria are met. You must be in custody (usually "arrested"), and you must be interrogated (questioned about the details of the crime). A Miranda warning violation does not automatically result in the dismissal of a case. The statements that you made after the violation could be suppressed and not admissible as evidence.

Q. I only took a small item from the store. Why have I been charged with burglary and not shoplifting?

A. The key distinction between being charged with burglary (entering a structure with the intent to steal) and shoplifting (petty theft) is when was the intent to steal formed in their mind, inside the store or before coiming in to the store. Essentially, if a person enters the store with the prior intent to steal something then they are committing burglary. If they enter for other reasons and decide in the store to simply take an item of small value then it is petty theft. Intent is the key element that must be established for a burglary charge. Intent is often established by being in possession of false receipts and already having empty bags to place stolen items, etc.

Q. The police said I blew a.07%. Why was I still arrested and charged with a DUI?

A. An arrest for DUI can be made at any blood alcohol level. Some counties in California routinely prosecute people with blood alcohol levels below a .08% Blood Alcohol Concentration (BAC). Often the decision to arrest is dependent upon the performance on the field sobriety tests (balance & coordination) and the driving pattern (weaving, speeding or an accident, etc.). An officer can arrest for simply being under the influence of alcohol or drugs with no reference to your blood alcohol level at all! The District Attorney would then file a 23152(a) CVC charge, which is simply driving under the influence of alcohol. Again, this would likely be based on the police observations of your driving pattern and performance on the field sobriety tests.

Q: If I have a good case, should I wait to contact the DMV about a hearing?

A: No, the criminal case and DMV suspension of your license in DUI cases are completely separate actions. You must request a hearing within ten days of arrest to avoid the automatic suspension of your driver's license by the DMV. Our firm can handle this for you.

Q: Why am I being charged with DUI if I did not drink, I only smoked a little marijuana?

A: In California DUI includes drugs as well as alcohol. Suspicion of driving while under the influence of drugs, including marijuana, may be proper grounds for a charge of DUI.

Q: How can they charge me with DUI if they pulled me over for speeding?

A: The speeding offense provided the probable cause (valid reason) for the stop. If the law enforcement officer suspects you of driving under the influence after you are stopped (based on admissions, smell of alcohol or drugs etc.) you can be arrested for DUI. There is no requirement that police suspect you of driving under the influence prior to the stop in order to arrest you for DUI.

Q: Why is there no speeding charge on my ticket, only DUI?

A: The lesser speeding charge (infraction) is usually not charged because of the more serious DUI charge (misdemeanor). The speeding will be reflected in the police report.

Q: The police spelled my name wrong on the citation, will my charges be dismissed?

A: That would be great but, no, a harmless error of this type on a traffic citation will not result in a dismissal of the charges.

Q: I did not give police permission to search my vehicle. Is this a violation of my rights and an illegal search?

A: In most cases not. Police need probable cause to suspect that the vehicle contains contraband or instrumentalities of a crime. There is a lesser expectation of privacy in vehicles and searches incident to an arrest are also allowed. Officers can search the entire passenger cabin, and in some cases may even open any containers and packages if there is probable cause that it may contain contraband. Proper probable cause is always a key issue for an attorney to explore.

Q: If the officer does not show up at my initial court date will my DUI be dismissed?

A: No, a DUI is a misdemeanor not a traffic infraction. The initial court date is an arraignment and the police officer will not be present. In fact the police officer may never be present during the court proceedings until the date of trial if any.

Q: Is it true that you should refuse the chemical test?

A: No, absolutely not. You should never refuse to take a chemical test in California. A refusal to take a blood or breath test will result in the automatic 1-year suspension of your driver's license even if the DUI charge is dismissed. And if convicted a refusal can result in increased penalties including jail time. Also, the refusal can be introduced into evidence as "consciousness of guilt" of having too much alcohol in your system. A "Refusal" must be vigorously fought by your defense attorney.

Q: Will the court count prior DUI convictions in other states against me?

A: Generally, yes. If the law in the other state is substantially similar to the law in California then a prior DUI or DWI can be used against you in California thereby increasing the penalties (jail time, greater fines and longer alcohol programs, etc.).

Q: What is a wet reckless?

A: A wet reckless is essentially driving with some alcohol in your system that does not rise to the level of a DUI. This is a common reduction for first time DUI offenders. The fines, penalties and probation are often less than that of a DUI, but a wet reckless will be considered as "priorable" offense for a seven-year period. Thus, if you get another DUI within seven years of a wet reckless the DUI will count as a second offense.

Q: Shouldn't I just plead guilty if my test results were over .08% BAC?

A: Absolutely not, there could have been an error during the testing process that can only be uncovered by us as your attorney during the discovery process. If you simply plead guilty based on the original test results you may be giving up your opportunity for a dismissal or reduction of the charges against you. Alcohol testing is not always accurate. Procedural errors, faulty machinery, improper testing methods are always a possibility in a DUI case. Your attorney should explore all of your options and opportunities.

Q: How can I win a DMV hearing if my test results were over .08%BAC?

A: The DMV hearing is concerned about whether all procedures by law enforcement were properly performed before suspending a person's driver's license. Testing is not always accurate, procedural errors, faulty machinery, improper testing methods are always a possibility in a DUI case. All of these could result in a set aside of your suspension. The DMV hearing is crucial in DUI cases. We are very successful in having our client's driver's license suspension set-aside and licenses returned to our clients. Please see our DUI - DMV web site http://www.FormerD istrictAttorneys.com/PracticeAreas/DUI-Drunk-Driving.asp

Q: Why should I pay for a lawyer when I can get a Public Defender for free?

A: In order to qualify for the services of a Public Defender you must establish to the court's satisfaction that you are indigent (unable to afford to hire your own attorney). A Public Defender is an attorney assigned to a specific courtroom to handle all of the cases that day for the indigents who did not retain an attorney to represent them. Public Defenders are almost always very dedicated and may be experienced in your type of case. However, your case would be just one of many. Usually, hiring your own lawyer provides you with the most experienced attorney who can provide you with the best possible investigation and defense of your case and you are the sole focus of your attorney. And if you simply plead guilty, you may wonder for years if you could have had the charges against you dismissed or reduced to a lesser offense. You must ask yourself: "How would a conviction and having a criminal record affect me in the future?"

Q: How can I be charged with carrying a concealed weapon when the gun was not even loaded?

A: A gun is considered a weapon even if it is not loaded. It is often difficult to distinguish between loaded and unloaded guns. If the ammunition was nearby you could even be charged with a loaded weapon charge.  In the interest of safety the law makes carrying a concealed weapon (that is to carry a gun that is hidden from view) a crime even if it is unloaded.

Q: Why am I being charged with battery when I did not hit him, I only grabbed his arm.

A: A criminal battery is defined as the unlawful application of force to the person of another. A hit, punch or kick is not required just an "offensive touching" of another is considered a battery.

Q: I only hit him with a bottle how can I be charged with assault with a deadly weapon.

A: A bottle or essentially any instrumentality can be viewed as a deadly weapon as long as its use or intent was to inflict harm to another.

Q: What is a civil compromise?

A: In some cases where there is only monetary loss associated with a crime. If so, an agreement can be made between the victim and defendant to pay restitution for any damages that occurred (civil compromise). Upon approval by the court of this agreement the criminal charges will be dismissed. Please see our Felonies & Misdemeanors web page for more information

Q: If the girl told me she was 18 how can I be charged with Rape if she lied?

A: Statutory Rape is a per se violation of the law. Lack of knowledge of the true age of the victim is not a defense. Also, persons under the age of 18 do not have the legal ability to consent to sexual intercourse. And consent is not a defense.

Q: If I am convicted of solicitation of prostitution will I have to register as a sex offender?

A: Generally, no. However, depending upon the circumstances of your solicitation of prostitution arrest there may be other charges (lewd conduct, indecent exposure, unlawful sexual intercourse with a minor, etc.) that could result in requiring sex offender registration and jail time.

Q. What is an expungement and will it clear up my record?

A. Adult misdemeanor convictions can be expunged under Penal Code section 1203.4. This is not "cleaning" up your record exactly, Essentially what happens is that the court in its discretion and in the interests of justice sets aside the guilty verdict or guilty or no contest plea. This has the effect of dismissing the conviction. The expungement does not apply to all misdemeanors and does not relieve the petitioner from disclosing the conviction in response to any direct questionnaire or application for public office, for licensure by any government agency. After an expungement, the previous conviction would not need to be disclosed to a prospective private employer. Please see our Appeals & Expungements web page http://www.Form erDistrictAttorneys.com/PracticeAreas/Appeals-Expungements.asp

If your case involves questions about criminal law, a criminal appeal, DMV administrative hearings, or expungement please contact one of our California Criminal Defense Attorneys immediately!

At Takakjian, Sowers & Sitkoff LLP we are Criminal Lawyers and DUI Lawyers ready to help you.

Please call us immediately at 1-866-388-7663