Criminal defense law is a branch of law involving individuals who have been accused of committing a crime. A criminal defendant charged with a crime is innocent until proven guilty. A prosecutor, who acts on behalf of the State of California, must prove the elements of the criminal offense beyond a reasonable doubt.
There are three types of criminal cases. First, there are infractions, which are essentially traffic tickets. Second, there are misdemeanor cases. Finally, there are felony cases, which are the most serious of the three categories. There are some crimes that can either be charged as an infraction or misdemeanor, or as a misdemeanor or a felony. These crimes are called “wobblers”.
DUI, or Driving Under the Influence, is a common criminal charge. A DUI can either be charged as a misdemeanor or a felony. Felony DUIs usually involve traffic collisions that cause serious injury. A 4th time DUI in a 10-year period can also be charged as a felony in California.
Prosecutors can prove that someone was driving under the influence of alcohol by the chemical test results (blood or breath test). Under California law, it is unlawful for someone to drive with a blood alcohol content of .08% or higher. In addition to the chemical test results, law enforcement also conduct field sobriety tests to gauge whether an individual has the ability to safely operate a motor vehicle. There are those defendants who choose to refuse all chemical tests, whether at the scene or at the police station. Although this makes proving the case more difficult for the prosecution, refusing the chemical test at the police station will normally lead to a minimum one-year driver’s license suspension by the DMV.
If convicted of a DUI in California, a defendant will be placed on probation by the court. Furthermore, the court may order the defendant to pay a fine and to successfully complete an alcohol program. A DUI conviction will also trigger a driver’s license suspension by the DMV. Depending on the county in which a defendant was convicted of the DUI, the DMV may also require a defendant to install an ignition interlock device (IID) in any vehicle they operate. This is a device that monitors a driver’s blood alcohol level by periodically forcing the driver to blow into the machine to make sure the driver does not have alcohol in his or her system.
Note that a person can also receive a DUI conviction for driving under the influence of a drug or the combined influence of alcohol and drugs. If law enforcement has reasonable cause to believe that an individual is driving while under the influence of a drug, they will have the individual submit to a blood test in order to ascertain whether the individual had any drugs in their system while driving.
Drug crimes in California range from simple possession of a controlled substance to actually selling drugs. Simple possession of a controlled substance, like cocaine, is a misdemeanor under California law. Simple possession used to be a felony, however, it is now considered a misdemeanor pursuant to Proposition 47, which was passed by California voters in November 2014. If you are charged with the crime of simple possession, you may be eligible for a drug diversion program in which your case gets dismissed if you complete a drug treatment program and stay out of trouble for a certain period.
Selling drugs or possessing drugs with the intent to sell are far more serious crimes in California. If you are charged with selling drugs or possessing drugs with the intent to sell, you are not eligible for a diversion program and can face significant jail time, especially if you have prior convictions for sales.
In 2016, pursuant to the passing of Proposition 64, adults 21 years or older may legally possess, transport, or obtain up to 28.5 grams (1 ounce) of marijuana or 8 grams of concentrated cannabis. It is important to note that under Proposition 64, it is still illegal to consume marijuana in any public place or to consume marijuana or possess an open container of marijuana while driving or riding as a passenger in any vehicle. Furthermore, minors under 21 are not allowed to possess, use, transport, or cultivate marijuana. The latter is an infraction and carries a fine (for those minors over the age of 18).
There are various theft crimes in California, including petty theft (stealing property valued under $950), grand theft (stealing property valued above $950), grand theft auto, burglary, robbery, embezzlement, and receiving stolen property, among others.
In order to obtain a conviction for a theft offense, a prosecutor must generally prove that the defendant intended to permanently keep the property. Thus, one of the defenses to a theft crime is to argue lack of intent. Other defenses include arguing that the defendant had the right to possess the property or that the defendant had consent to take the property in question.
Pursuant to Proposition 47, which was passed by voters in California in November 2014, several felony theft crimes were reduced to misdemeanors. These crimes include receiving stolen property, check fraud, forgery, and writing a bad check, among others. If you have previously been convicted of a felony theft crime, you may be eligible to have it reduced to a misdemeanor pursuant to Proposition 47.
Traffic tickets are considered infractions, which means the offense is punishable by a fine and not jail time. Common traffic tickets include speeding, unsafe lane change, not wearing a seatbelt, running a red light, or not stopping at a stop sign. A person can receive a traffic ticket for a moving violation or a non-moving violation. A moving violation occurs when the vehicle is in motion and includes speeding and running a red light. A non-moving violation, on the other hand, includes not having a front license plate or having illegal tints on the car windows. Moving violations carry one or two points on your driving record whereas non-moving violations carry zero points. Four points on your driving record in any twelve-month period may result in a license suspension by the DMV.
Some clients prefer to hire attorneys to handle their traffic tickets because they don’t want to spend several hours in court fighting the ticket. In order to contest a traffic citation in person, you must first schedule an arraignment date and appear at your arraignment date in front of a judge. An arraignment is your first court appearance where you either enter a plea or guilty (or no contest) or not guilty. If you wish to contest the citation, you will enter a plea of not guilty and ask the Judge to set a trial date. The Judge may order you to post “bail” (cost of the ticket) before setting the matter for trial. The citing officer will be subpoenaed to appear for your traffic trial. If the officer does not show up to court on the trial date, your citation will be dismissed.
Be careful not to miss the due date on your traffic ticket or to forget to appear at your arraignment date (after you set the actual arraignment date). Failure to respond to the traffic ticket or to appear in court once you set a court date will result in the court adding a “Failure to Appear” charge. This translates to increased fines and a potential hold being placed on your driver’s license by the DMV.
Note that if you do not wish to contest your traffic citation in person, you have the option of submitting a “Trial by Declaration” by mail. If the officer fails to respond to your “Trial by Declaration”, your citation will be dismissed. If you lose your “Trial by Declaration”, you will have one more bite at the apple by being able to schedule what’s called a “Trial De Novo”, where the citing officer is subpoenaed to court for a trial in front of the Judge.