California’s Process of Sealing and Destroying Arrest Records

Penal Code 851.8 PC

For innocent people who get wrongfully arrested, California has a process by which you can get your arrest records sealed and destroyed. When you succeed with this process, the police reports, fingerprints, booking photos and all records of the arrest get eliminated. Moreover, you may then legally answer “no” whenever you’re asked whether you’ve ever been arrested.

But the process to seal and destroy arrest records in California is arduous and tricky. It almost always involves a contested hearing before a judge. It pays to have a good attorney on your side.

I’m a former deputy Sheriff and retired U.S. Marine with decades of experience helping clients to clear their criminal records. I’d be glad to help you.

In this article we explain how to have your arrest records sealed and destroyed by addressing the following:

1. Who is Eligible?

2. The Process of Sealing and Destroying
California Criminal Records

3. The Benefits of Clearing Your
Criminal Record

If, after reading this article, you would like more information, we invite you to contact us at 619-238-1905.

1. Who is Eligible?

Let’s start off with the basics. If you

1. were arrested, but the prosecutor never filed criminal charges,
2. had your case dismissed in court, or
3. were acquitted by a jury following a California jury trial,

you may be entitled to have your California arrest records sealed and destroyed.

The critical factor is whether you suffered a conviction. If you did…and if you even later had it dismissed pursuant to Penal Code 1203.4 PC California’s expungement process…you are not eligible for this type of relief.

Similarly, this is not the appropriate motion to raise if you are trying to seek relief from your duty to register as a sex offender pursuant to Penal Code 290 PC. If you are required to register under Penal Code 290 PC, it means you have suffered a conviction. The appropriate remedy is to seek a Certificate of Rehabilitation or a Governor’s Pardon.

And it is important to note that a California motion to seal and destroy your arrest records is not a motion that applies to your entire criminal record. It is a motion that must be made and granted specific to each arrest that you wish to contest.

Timing issues

Generally speaking, you can petition to clear your arrest record up to two years after (1) the date of your arrest, or (2) the filing of the accusatory pleading, whichever is later. However, the judge has the discretion to hear cases beyond these time limits based on good cause.

2. The Process of Sealing and Destroying
California Arrest Records

The process of sealing your arrest record typically takes about 90 days. The county in which you live will determine whether you must personally appear in court for the proceedings or whether your criminal defense attorney can appear on your behalf.

Sealing and destroying California criminal records may be either a one or two-step process.

Step 1 – Petition the law enforcement agency for relief

If you were arrested…but the prosecutor never filed charges against you…your first step in seeking relief is to petition the arresting law enforcement agency. If you (or your criminal defense lawyer) can convince the police agency that you were factually innocent, the police themselves will seal the arrest record for three years. Once the three-year period has expired, they will destroy the records.⁴

If the police do not grant your request…or if they fail to respond within 60 days…you move on to the second step.

Step 2 – Petition the court

Once again, this second step is for those people who are denied relief by the police. However, this is the first and only step for those individuals who

1. had their cases dismissed in court after charges were filed, or
2. were acquitted by a jury.

And on that note, if…at the time of the dismissal…the judge believes the defendant is factually innocent, he/she may (with the prosecutor’s consent) grant the relief on his/her own motion. Similarly, if…at the time of the acquittal…the judge believes the defendant is factually innocent, he/she may simply order the records sealed and destroyed.

What does “factually innocent” mean?

In order to declare you ‘factually innocent’, the arrest record must exonerate you, not merely raise a substantial doubt as to your guilt.

And according to the California Court of Appeals, a finding of factual innocence shall not be made unless no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. “‘Reasonable cause’ is defined as that state of facts that would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime”.

The burden to prove factual innocence is on the defense

Assuming that the judge does not initiate the motion…and you must petition the court for the requested relief…the burden is on you to establish that there was no reasonable cause for your arrest. And…unlike the strict rules of evidence that govern a jury trial…California law allows the judge to consider a wide variety of evidence when ruling on this issue.

The court may evaluate police reports, affidavits, and any other evidence which is “material, relevant, and reliable”. This even includes evidence that the court previously suppressed pursuant to a Penal Code 1538.5 motion to suppress evidence, as well as any facts that were disclosed after your arrest.

If you meet your burden, it then shifts to the prosecution. If they wish to challenge your motion to seal and destroy your records, they must prove that reasonable cause did, in fact, exist.¹¹ And both sides are entitled to appeal the court’s ruling.

The importance of hiring a skilled California criminal defense lawyer

Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records…and because the judge can deny your motion with prejudice so that you may not re-file your request…it is critical to hire a skilled California criminal defense attorney.

An experienced attorney will

• thoroughly      research your case,
• make      sure all paperwork is done correctly the first time to ensure that no time      is lost due to incomplete or inadequate forms,
• conduct      the hearing and argue your case to the judge, and
• help      you contact potential employers to let them know that you are making      legitimate efforts to clear your criminal record.

When the police or judge agree to clear my criminal record, how are my records destroyed?

When your California records are declared “sealed and destroyed”, the arresting law enforcement agency, Department of Justice, and any local, state, or federal law enforcement agency to which they have released records must

1. destroy      the arrest records, and
2. destroy      the request to destroy those records.

This means that these agencies must permanently obliterate “all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred.” If the only entries on your record pertain to the arrest in question, then that document will be physically destroyed.

That said, if you or a codefendant files a civil lawsuit against the officer or law enforcement agency that made the illegal arrest alleging police misconduct or a United States Code 1983 civil rights violation, the records will not be destroyed until the case is resolved. This allows the otherwise “sealed” records to be “reopened” and admitted into evidence during the civil case.

Sealing juvenile records is a different process

Sealing and destroying your adult arrest records is a completely different process than sealing your juvenile records. You are eligible to seal your California juvenile criminal record if you are

1. currently      an adult, or the jurisdiction of the juvenile court terminated at      least five years ago, and
2. as an      adult, you have not been convicted of any crimes of moral turpitude (that      is, crimes that involve dishonesty or immoral behavior), and
3. there      is no pending civil litigation based on the juvenile incident.¹⁶

For more information about sealing your juvenile record, please review our article on sealing California juvenile records.

3. The Benefits of Clearing Your Criminal Record

Criminal records are public records. This means that anyone can access another person’s criminal history. And numerous private companies have made this information readily and easily available for a nominal fee to anyone who can provide a name and date of birth.

Prospective employers, state licensing agencies, insurance companies, etc…anyone who is interested in your criminal history…can simply run a background check and see your spotted past. Police reports, booking photos, fingerprints…these records don’t just go away. The arresting agency and Department of Justice maintain these records indefinitely unless and until you take the appropriate steps to have them destroyed.

And don’t be fooled…the fact that your arrest didn’t lead to a conviction most likely won’t win you any favor.

The fact is that any criminal history…whether it’s merely an arrest or even an acquittal…will prejudice people against you. And this is particularly hurtful in today’s tough economy and job market where it is more difficult than ever to secure employment.

Clearing your record allows you to say you’ve never been arrested for a crime

That’s right. The major benefit of sealing and destroying your criminal record is that when asked, you can legitimately and honestly state that you’ve never been arrested for a crime. This is particularly important, because many employment, school, housing, loan, and licensing applications don’t just ask if you’ve ever been convicted of a crime, but ask if you’ve ever been arrested for a crime.

When a judge orders your records to be sealed and destroyed, that is exactly what happens. All evidence of your criminal arrest is destroyed so that there is no record of it.

Once granted, California law provides that “the arrestee is thereby exonerated. Thereafter, the arrest shall be deemed never to have occurred, and the person may answer accordingly any question relating to its occurrence.”

Punishment, Penalties, and Sentences for California Misdemeanor DUI

California DUIs are “priorable” offenses. This means that the punishment increases with each successive drunk driving conviction that takes place within a ten-year period. This ten-year timeframe period also includes (1) California “wet reckless” convictions, and (2) out-of-state convictions that, if committed in California, would constitute a DUI.

California DUI penalties can be severe, depending on whether you’re facing your first, second, third, or subsequent driving under the influence conviction. Most drunk driving cases are prosecuted as misdemeanors, although certain offenses will rise to the level of California felony DUI.

Although there are a few charges that are commonly reduced from California DUIs during DUI plea bargaining (for example, a “wet” reckless, dry reckless, or exhibition of speed), this article specifically details punishments and penalties that are for actual driving under the influence convictions.

If after reading this article you have more questions or would like to discuss your case with a DUI defense attorney, we invite you to contact us.

Punishment and Sentencing for a Misdemeanor California DUI — First Offense

When convicted of driving under the influence for the first time, the potential penalties are as follows:

Informal (otherwise known as “summary”) probation for five years

Up to six months in a county jail

Between $2,000-$3,000 in fines

A three- or nine-month court-approved alcohol and/or drug education program (AB541 class),

A six- to ten-month driver’s license suspension that generally may be converted to a “restricted license”. A restricted license enables you to drive during the course of your employment, and to and from work, school, and/or California DUI school.

Please note that once you are arrested for any California DUI, you only have ten days to request a DMV hearing from the California Department of Motor Vehicles. This request postpones your license suspension until the resolution of the hearing and may even result in your license suspension being set aside.

If you hire a California DUI attorney within that ten-day period, he/she can request the hearing for you…and represent you at the hearing.

Penalties and Punishment for a Misdemeanor California DUI — Second Offense

A second driving under the influence conviction within ten years will trigger the following sentence:

Three to five years of summary probation

A minimum of 96 hours to a maximum of one year in a county jail

Between $2,000–$3,000 in fines

Completion of an 18-month or 30-month court-approved California DUI school

A two-year driver’s license suspension that, after twelve months, may be converted to a restricted license

Penalties and Sentencing for a Misdemeanor California DUI — Third Offense

If you are convicted of drunk driving for a third time within ten years, you face the following California DUI punishment:

Between three to five years of informal probation

A minimum of 120 days to a maximum of one-year in a county jail

Between $2,000-$3,000 in fines

Completion of a 30-month court-approved DUI education program

A three year California driver’s license revocation which, after 18 months, may be converted to a restricted license

Designation as an “habitual traffic offender” (HTO) by the DMV

Installation of an Ignition Interlock Device (IID). An IID is a mini breathalyzer instrument that attaches to your car that does not allow your car to start unless you provide an alcohol-free breath sample.

Additional “Conditions of Probation” for California DUI

In addition to the above stated penalties, when California courts impose a DUI sentence that includes probation, the following conditions are always included:

You shall not drive with any measurable amount of alcohol in your blood.

You shall not refuse to submit to a chemical test of your blood, breath, or, in rare cases urine, if arrested for a subsequent DUI.

You shall not commit any additional crimes.

Depending on the circumstances, the following conditions of probation may be imposed:

Attendance in Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings

Participation in the Mothers Against Drunk Driving (MADD) Victim Impact Program

Restitution (in the event that you caused an accident while driving under the influence)

Installation of an Ignition Interlock Device (IID) on any car you own or operate for a maximum four-year period. If you are convicted of your DUI in Los Angeles, Alameda, Tulare or Sacramento County, IID installation is mandatory. However, in all other counties, installation is at the judge’s discretion

Aggravating Factors that may Increase Your California DUI Sentence

There are facts and circumstances that, if present at the time you are arrested for driving under the influence, will increase your county jail or state prison sentence. These aggravating facts will increase your DUI penalties, regardless of whether you’ve been convicted of a first, second, third, or subsequent DUI.

The most common of these include:

Having a blood alcohol content (BAC) of 0.15% or higher

Refusing to submit to a chemical test

Causing an accident

Driving at excessive speeds

Having children under the age of 14 in the car (also known as Penal Code 273a child endangerment)

Being under 21 at the time of your DUI offense

What type of enhanced penalty you receive for any of these aggravating factors will depend on (1) the exact circumstances of your California DUI arrest, and (2) your criminal history (with emphasis on your prior DUI history).

Are There Alternative Sentencing Options for a California DUI?

“Alternative” sentencing options are alternatives to a county jail or California State Prison sentence. When imposed in connection with a California DUI, these sentencing alternatives may include:

Cal-Trans roadside work

Community service

Electronic monitoring or house arrest (SCRAM)

Residence in a sober-living environment

Incarceration in a private or city jail

Lawyers who don’t specialize in California DUI defense may not even know that these sentencing alternatives exist…and if they do, they may not know the most effective ways to convince the prosecutor and/or judge to agree to them. This is just one reason why it is so important to hire specifically a DUI defense lawyer to defend your California drunk driving case.

Hiring an experienced DUI attorney to represent you in court and at your DMV hearing is invaluable to helping you avoid the harsh penalties that can flow from a California DUI conviction.

A couple of changes for Criminal Laws in California for 2013.

Amendment of California penal code sec 236.1. This means that there will be more severe penalties for people who are found guilty of engaging in certain sex crimes with minors for example filming a minor’s face for commercial purposes. Even if the convicted person had mistaken about the minors age for example if the minor had presented faked identification documents to show that she is an adult, the convicted person cannot use ignorance of that part as a defense to his case. This law is likely to put many unsuspecting people behind bars in 2013.

A part Penal Code 1170.2 “three strike law” will be repealed in 2013. It is important to note that there are over 8,000 Californians who are serving life sentences after committing the third strike. This new law ensures that for one to be sentenced from the third crime, then this crime must be a serious felony and not just any small crime such as shop lifting. This law will also make it possible for people who have been wrongfully incarcerated to appeal their case which could result in the reduction of their term in jail.

It’s been well over a over a year now that Carl Crash smashed into you broadside doing several thousand dollars of Property Damage to your motor vehicle and causing you to suffer a Personal Injury. Crash was cited by the police for running a Stop Sign.

You and Insurance Adjuster I. M. Cheap, who represents Crash’s carrier, The Rock Solid Insurance Corporation, have jostled each other around long enough. You’ve now returned to work and your Ole’ Doc “Painless” has released you from any further treatment. The time has come to settle your claim plus be reimbursed for the days, weeks, or months of “Pain and Suffering” you’ve had to endure.

Now let’s consider the 7 most important Personal Injury Claim areas you must take into account – - so you’ll end up with the tallest pile of settlement dollars possible:

#1. LIABILITY:

Don’t let Cheap go on and on regarding “Contributory Negligence” Regarding: Who’s at fault? You tell him you’ve read and learned that in the majority of motor vehicle accidents statistics prove fault can easily be determined, and all the 2012 records show that in 83 percent of accidents it’s clear who was at fault. End your response with, “Look, your man was nailed for running a Stop Sign, so let’s cut out the fault stuff and get down to brass tacks”.

#2. TYPE OF INJURY:

If there are severe injuries (which are the result of only 10 to 15 percent of all motor vehicle accidents last year) you should obtain the services of an attorney. But, if you’ve had minor to moderate injuries, as, for example: whiplash, bumps, bruises, sprains and/or strains, you can and should settle the claim yourself.

THE FOLLOWING ARE FOUR SPECIAL CATEGORIES REFERRED TO (AND UTILIZED) IN PERSONAL INJURY LITIGATION

(a) TEMPORARY TOTAL DISABILITY: This is the seriously injured person who was temporarily hospitalized, (or perhaps even impaired at home for a while) but expected to eventually regain full function.

(b) TEMPORARY PARTIAL DISABILITY: This comes to pass when, following the initial period of complete impairment of the seriously injured party (that period of “Temporary Total Disability”), one must recover from and is able to resume some (but unfortunately not all) of his or her formal activities.

(c) PERMANENT TOTAL DISABILITY: This describes a condition (usually in the most severe cases) in which the injury produces a total impairment to the body as a whole – - again, placing the emphasis both on the extent of the functional impairment, and its duration.

(d) PERMANENT PARTIAL DISABILITY: This is when the injured party still retains some substantial body function or earning capacity. The emphasis here is centered on the extent of the functional impairment itself.

HERE’S A “BIGGIE” MANY PEOPLE ARE NOT AWARE OF: You (and your resident family members) may also be covered as pedestrians – - regarding the payment of medical bills – - should you or they have been struck and injured by a motor vehicle.

A WORD HERE ABOUT MEDICAL BILL COVERAGES

Be sure to review your Motor Vehicle Accident Insurance Policy to discover if you have what is usually identified as “Medical Payments” coverage. Also check all your non-automobile insurance policies. You may have some coverages which will pay for your medical bills – - regardless of who was at fault. If you have a Health Insurance policy and/or Health Plan of some sort, read the fine print. Your policy many not require you to pay back the medical payments made to you from them – - even when you later collect from Rock Solid Insurance

#3. TYPE OF PERSON YOU ARE:

Rate yourself, and be brutally honest. You’re most likely Mr. Average Joe, living a normal life. However, if you enjoy your shots and beers and that often gets your posterior in a sling (a fact well known to the local police) you’ll have to take that into consideration when forming expectations about the amount of dollars Rock Solid is willing to pony up to settle your claim.

If Cheap gets into that, you should respond with, “Look, what you’re telling me has nothing to do with what we’re talking about here. Your guy ran a stop sign. This case is never going to court and you know it. We’re not talking about liability here – - only how much money you should pay me to settle my claim. So, let’s get on with it. Just do the right thing. I got creamed and you owe me some big bucks.”

#4. TYPE OF PERSON CARL CRASH IS:

The better Carl Crash looks, or the better the “entity” of the owner of the vehicle (Crash’s business or company, etc.) appears, the better for Rock Solid. But, if Crash is the town drunk and a first rate trouble maker, Rock Solid is up to their eyeballs with settlement problems. On the other hand, if Crash is a well-loved philanthropist, that can be a plus for Rock Solid. And, if the “entity” that smashed into you was a van driven by Pastor Crash, and the named insured is The Crash Camp For Lost Souls, that can come down on the plus side of the scale for Adjuster I. M. Cheap and the people who pay his salary, The Rock Solid Insurance Corporation.

However, if the “entity” that hit you was a dilapidated junk pile on wheels operated by a stumbling, stammering, whacked-out Carl Crash and the named insured is identified as The Crash Slam-Bang Refuse Company, that’s a huge minus for Rock Solid.

When there’s a question of liability (who was at fault) these factors often come into play. However, in this (above) particular example, Crash ran a Stop Sign and was cited for it. Whatever may be negative, and happens to crash down on your side of the scale, is meaningless when it comes to placing a value on your ”Pain and Suffering”.

#5. DAMAGES:

There are 3 areas here that should be understood and must be addressed. They are: “Medical Special Damages”, Non-Medical “Special Damages”, and “Property Damages”.

(a) MEDICAL “SPECIAL DAMAGES”: These include the cost of Ambulance, Emergency Room Care, Hospital or Clinic charges, Doctor, Chiropractor, Specialist and/or Dentist, Over-the-Counter Drugs, and/or prescription Medications, Laboratory Fees and Services, Diagnostic Tests (X-Rays and CT Scan), Prosthetic Appliances or Surgical Apparatus (Canes & Crutches), Physical Therapy and/or Practical Nurse Fees, Ace Bandages, Gauze and Tape, Heating Pads, Creams, Lotions, Ointments, Balms and Salves.

When it comes to listing your Medical Special Damage “expenses”, don’t overlook one single dollar because, when it comes time to settle your claim, that single dollar will increase the value of the payment made for your “Pain and Suffering” by three to five dollars!

QUESTION: What exactly does that mean? ANSWER: It means that a $10.00 “Special Damage” bill is worth $30.00 to $50.00 more, in your pocket, from Rock Solid at settlement time. That’s a fact of life in the business of insurance claims.

(b) NON-MEDICAL “SPECIAL DAMAGES”: These typically include Lost Wages and Earnings, Lost Vacation Time and Sick Leave, Travel Expenses (car rentals, public transportation – - also any expenses incurred getting to and from the doctor and/or hospital) plus Household Help during disability and even Child Care.

LOST WAGES AND EARNINGS: This is an area where adjusters often take terrible advantage of people because most know so little about it. Although Cheap will never tell you, Commissions and/or Overtime can be of great advantage to you. Don’t let him heap a snow job on you about this particular situation. Obtain a documented letter of proof from your employer (which must include all “other” payments that would have been made to you, for any other income lost, during that same period). This can make a huge difference in the value of your claim. Don’t let Cheap twist the facts regarding this additional lost income. The time you lost from work (including all the extra dollars you may have also lost) is calculated and this element constitutes what is know as “Lost Wages”, or “Lost Wage Verification”. (Cheap may attempt to go to battle with you over this but you must stick to your guns. He’s only trying to manipulate you with one of his typical, and usually most successful, “Con-Jobs“).

Did the injury necessitate a change of job or employment at a lesser rate? Or, did the injury allow you to return to work but only on a part-time basis? If the answer to either one of those question’s is “Yes”, ask your employer to document these facts on his letterhead. If you’re salaried you should obtain a statement of lost earnings (or “Time Lost Verification”) on your employer’s letterhead. (This is absolutely “Legit“. Don’t let Cheap tell you it’s not)!

LISTEN CLOSELY TO THIS ONE: You’re still entitled to compensation for time and earnings, even if you have no actual loss of money! Such as, for example, when your salary is paid for by your own insurance or by taking sick leave, or some similar arrangement. If Cheap gives you an argument on this (and he usually will) you tell him you’ve read up on it and he’s dead wrong!

IF YOU’RE SELF-EMPLOYED: To prove your lost income you’ll probably have to assemble your routine bookkeeping for Cheap to review. If you balk at the idea of submitting personal documents to him (in the privacy of your home or office) your only alternative will be to produce them in front of a judge and/or jury in the wide-open environment of a courtroom. Under normal circumstances, if you want to prove your damages and collect the compensation that’s due you, this is your only alternative.

IT’S ABSOLUTELY CRUCIAL FOR YOU TO KNOW THE FOLLOWING

Even if you’ve been paid while out of work, you can still compute your lost time from work as “Lost Wages” to discover what your “Pain and Suffering” is worth.

#6. PROPERTY DAMAGE EXPENSES:

These include auto repair, damaged clothing, broken glasses, cost of substitute car rentals, plus towing, etc. Keep the originals of all bills. Be sure to have all documents in your possession when you and Cheap hunker down to ”Talk Turkey”. Photocopies are absolutely sufficient to give him.

#7. YOUR AGE:

Motor vehicle accident victims between the ages of 3 or 5 and into their pre-teens, generally have outstanding settlement results. Those between the ages of 20 and 55 have a fair case because they’re generally considered to be at the height of their physical stamina. Those in their late 60’s (and over) often fare extremely well! This is due to the sympathy they often invoke from a judge and/or jury when it comes to generalized attitudes regarding frail and the elderly.

YOU SHOULD NEVER FORGET

Adjusters like I. M. Cheap play a crucial role when it comes to the evaluation of your case. So it’s wise to: “Be nice”!

Never underestimate the importance of Cheap’s impressions and conclusions! What he feels and reports about you, his insured Carl Crash, and/or possible witnesses (in addition to the evidence you’ve documented for him) has a heavy influence on his superiors – - those individuals back in the Claims Department at The Rock Solid Insurance Corporation Home Office who are reading Cheap’s memos, as they come flowing in over the long months of his negotiation talks with you – - and then finally, when it comes to placing a value on your claim.

Police officers will use the squealing of tires as justification for a traffic stop for violating the California Vehicle code, usually the Unsafe speed section.
However, at one time or another as drivers we have all probably caused our tires to squeal from a stopped car. Examples of causing tires to squeal include: trying to start a vehicle from a stop on a wet inclined surface; starting the vehicle while on gravel causing the wheels to spin; causing your foot to slip (accidentally) off of the clutch while revving the engine; starting on a road marking causing the wheel to slip, etc.
Whatever the reason, San Diego police officers may consider such squealing tires to be evident of an unsafe speed.

Unfortunately San Diego judges held squealing tires to justify a brief vehicle stop. Though there does not appear to be California case law which states that squealing tires is a vehicle code violation. However, case law from courts in Florida and Indiana (which does not apply to California) have held that causing tries to squeal did not demonstrate an unsafe speed or disregard for the safety of others and did not give rise to reasonable suspicion for the stop.

That’s why if you get stopped for “squealing” your tires, and get charged with a crime more serious than a ticket for tire squealing, you need to consult with my office so we can assist you in getting these more serious charges thrown out, or reduced.

Having violations on your legal record can inhibit your ability to find employment, obtain custody of children or receive certain government benefits. To help alleviate first offenders from the problems which can arise with having a misdemeanor stain their records, my office has been successful in getting our clients into diversion programs for people who have been charged with minor offenses related to traffic violations, drug and alcohol offenses, or other misdemeanors.
Pre-trial Diversion
First offenders who have been arrested and charged for misdemeanors in California can qualify for the pretrial diversion program, which usually consists of educational courses and awareness activities that address the particular offense. A person whose offense qualifies for the diversion program can enter the program before or during the trial process to postpone the prosecution of an offense filed as a misdemeanor. If the offender successfully completes the diversion program, the charges will be dismissed and the violation will be permanantly removed from his legal record as though the arrest never ocurred.
Bail Bond
Entering a diversion program in California effectively suspends all aspects of the trial, including bail requirements. Thus, any bail bond on file pertaining to the defendant’s case must be exonerated, and the court must issue an order so directing.
Admission of Guilt
The California penal code asserts that California courts are prohibited from requiring the defendant to make an admission of guilt as a prerequisite for being placed in a diversion program. Additionally, no statements made by the divertee (the defendant granted entrance into a diversion program) during or connected to the diversion program may be used against him in any ongoing or future court proceedings.
Termination of Cause
Once a defendant enters a diversion program he is responsible for fulfilling the requirements to complete the program, and a failure to meet the requirements can result in a “termination of cause,” which expels the person from the program. If a program instructor recommends a dependent for termination of cause, the defendant is entitled to a hearing to address the issue. At the hearing, the defendant can argue his case to remain in the diversion program, however information regarding his participation in the program, including statements made during the program, are admissible for the termination proceedings. After the hearing concludes, if the court rules in favor of the termination of cause, the defendant will be removed from the program and will have to undergo a trial for the initial misdemeanor offense.

San Diego DUI and Criminal Defense attorney William Daley has been successful in getting his clients into these diversion programs. For more information, please give us a call.

Any person who has been arrested, juvenile or adult, should demand a lawyer prior to questioning by the police and thereafter remain silent. Both guilty and innocent persons must have legal counsel make any statements to the police.

After an arrest and possible interrogation, the police obtain the arrested minor’s information, and the minor is usually photographed and fingerprinted.

When the officers are done processing an arrested juvenile, juvenile, they have several options. A minor can be “counseled and released,” without requesting a criminal filing by the district attorney, or they can request that charges be filed. The police can release the juvenile to a parent or guardian and cite the minor to appear in court in the future, or the minor can be detained.

If a decision is made to detain the minor, the county probation department is contacted and the minor is turned over to the probation department for detention at the juvenile hall.

Within 48 hours of the arrest, the minor who has been detained is required by law to be brought before a Superior Court Judge for a hearing if the charge is a misdemeanor or within 72 hours if the charge is a felony. If a juvenile is accused of committing any of a number of different “violent” felonies, prosecution in the adult court is possible. A district attorney can choose to directly file certain violent crimes directly to adult court if the accused is 16 or 17 years old. In the case of murder, the district attorney can charge minors as young as 14 years old as an adult.

Juveniles charged in the juvenile court cannot post bail and have no right to receive bail. However, at a minor’s first court appearance, the judge must hold a detention proceeding. At this hearing, the Juvenile Court Judge will review a detention report prepared by the probation department. After reviewing the report, the judge should receive any information from the minor’s parents and the minor’s legal counsel in favor of either detention or release.

A minor’s parents have a right to attend the detention hearing and all other hearings in Court. If the minor’s parents aren’t properly notified and don’t attend the detention hearing, they can apply for another hearing in writing and are entitled to have the Court hold another detention hearing within 24 hours.

A Juvenile Court Judge should release a minor unless the Judge makes a finding that further detention is required to insure the safety of the minor or the safety of other persons or property. When a juvenile is detained, he is entitled to a speedy trial (called and “adjudication”) on the accusation (called a “Petition”) within 15 court days of the minor’s first appearance in juvenile Court.

If the prosecutor cannot present evidence to convince the judge that the petition is true within that time, the petition must be dismissed. A juvenile prosecuted in juvenile court IS NOT entitled to a jury trial. Only the judge determines whether the minor committed the crime charged.

A juvenile who was not detained on the petition and who was released prior to his first appearance in court is also entitled to a trial but not within 15 court days.

At the juvenile trial, if the District Attorney presents evidence to convince the trial judge that the charges are true, beyond a reasonable doubt, the petition is “sustained.” If the petition is sustained the minor is declared a ward of the court. Many cases that don’t charge a serious crime usually end without an adjudication. Many times defense counsel and the prosecution reach a plea bargain and the case is settled.

A juvenile who’s been charged with criminal offenses in a juvenile petition, can receive any one of seven possible dispositions. The most lenient result is informal probation called “654 probation.” (See Welfare and Institutions Code section 654.) “654 probation” allows the juvenile to remain in his parent’s home with conditions monitored by the probation department.

654 probation does not require an adjudication nor that a petition be sustained. The minor simply enters into a temporary probation. If the minor does well for six months, probation is terminated and the case dismissed. If the minor isn’t successful, the juvenile proceedings can be resumed and another sentence imposed. 654 probation does not require any admission of guilt on the part of the minor.

A second possible disposition is called deferred entry of judgment or DEJ. DEJ, unlike 654 probation, requires that the minor admit some or all of the allegations contained in the petition. If the minor fulfills the obligations of DEJ, the case is dismissed, usually within 6 months to a year. The minor’s obligations under DEJ, usually include school attendance with passing grades and good citizenship, good behavior at home, and no new arrests. If the minor doesn’t fulfill his obligations under DEJ, the admission of guilt stands and the minor is then placed on formal juvenile probation.

A third possible disposition on a sustained juvenile petition is called home on probation or HOP. HOP allows the minor to return home under the wardship of the probation department and court. The juvenile’s progress is supervised by the probation department. The probation department will monitor school attendance and citizenship, behavior at home, and any community service and counseling that is ordered by the Judge.

A fourth disposition is “suitable placement” in a foster or group home. Suitable placement is usually only ordered when the minor’s home environment is not good or the minor, for other reasons, has had a relationship break down with his parents.

A fifth disposition available in a juvenile case is placement in a probation department run camp. Juvenile camps are often referred to as “boot camp.” In reality these camps are locked facilities for minors who have been found to commit serious offenses or who have repeated violations of probation. At probation camp, minors must attend school in a structured and regimented environment. Juvenile camp is either short term or long term camp usually varying between six months and one year.

A final disposition, usually reserved for very serious offenses or repeated failures on probation, is a commitment to the California Youth Authority (CYA) now known as the Division of Juvenile Justice (DJJ). DJJ is usually used by the Juvenile Court as a last resort. DJJ is a branch of the adult California Department of Corrections. DJJ is, in essence, a prison for juvenile offenders. Minors sent to DJJ are held for a period of time based upon a matrix. The matrix sets a release date based upon the nature of the crime, the offender’s history and based upon the offender’s behavior in DJJ. A typical term is anywhere from 14 to 26 months.

Juvenile court can maintain jurisdiction over a juvenile until the age of 26 years. Jurisdiction and CYA parole usually ends, however, before the age of 26. Lengthy wardships into the mid-twenties are rare and only occur when a minor sent to CYA has repeated parole violations. More information about DJJ can be found at the California Department of Corrections website. [Read more]

Juvenile court jurisdiction usually ends when the minor completes probation or reaches the age of eighteen. A minor who has had a sustained juvenile law case can petition the court to seal his entire juvenile record. This can occur when the minor reaches the age of eighteen or has probation is terminated, whichever comes last. A sealed juvenile record is inaccessible to almost everyone and is eventually destroyed.

For a further information concerning juvenile law matters or for an attorney with over 30 years of experience handling juvenile and other serious criminal law matters, call San Diego Juvenile Law Attorney William Daley at (619) 238-1905.

Legal liability for injuries caused by medical malpractice can be established under a number of legal theories:

Negligence

Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:

• The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship);
• The applicable standard of care, and the health care professional’s deviation from that standard, which is deemed a breach of the duty owed the patient;
• A causal relationship between the health care professional’s deviation from the standard of care and the patient’s injury;
• Injury to the patient.

To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, a plaintiff must present the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to the applicable standard of care, but establishing that the defendant failed to meet this standard.

Negligent Prescription of Medications or Medical Devices

A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she ignored the manufacturer’s instructions, or prescribed an incorrect medication or dosage, which resulted in injury to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn of potential side effects or dangers of the drug. In most cases, the prescribing physician is considered a “learned intermediary,” which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

Informed Consent

In many situations, the failure to obtain a patient’s “informed consent” relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed.

Breach of Contract or Warranty

Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure, and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Problems of Proof: The “Res Ipsa” Doctrine

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that often form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what truly happened. In addition, some health care providers may frame their reports so as to protect someone guilty of misconduct.

Fortunately, the law recognizes that plaintiffs face certain difficulties in proving medical negligence. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as “res ipsa loquitur.” Translated, this Latin phrase means “the thing speaks for itself,” and implies that the plaintiff need only show that a particular result occurred and would not have occurred but for someone’s negligence.

Once this doctrine is successfully invoked, the burden is not on the plaintiff to show how the defendant was negligent, but on the defendant to show that he or she was not negligent. To invoke this doctrine successfully, a plaintiff has to show that:

1) Evidence of the actual cause of the injury is not obtainable;

2) The injury is not the kind that ordinarily occurs in the absence of negligence by someone;

3) The plaintiff was not responsible for his or her own injury;

4) The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and

5) The injury could not have been caused by any instrumentality other than that over which the defendant had control.

Criminals, by and large, must be risk-lovers–otherwise they’d be car-wash attendants instead of criminals. Lottery players, by and large, must be risk-lovers–otherwise they’d buy Treasury bonds instead of lottery tickets. You might be tempted to conclude that criminals and lottery players are often the same people. That’s probably the wrong conclusion. After all, risk-lovers enjoy having all their eggs in one basket, which suggests they should pursue either crime or the lottery, but not both.

Still, if you want to understand what attracts people to crime, it pays to understand what attracts people to risky activities more generally, so it pays to understand what attracts people to the lottery.

Lotteries are attractive when they offer big prizes or (relatively) good odds. If you’re running a lottery and you’re going to pay out $10 million, you can offer a single $10 million jackpot or you can offer 10 prizes of $1 million each. Which is more appealing to the players? Usually, the former. For the most part, lottery players prefer a small chance of a big payout to a bigger chance of a smaller payout. That’s because the people who prefer a bigger chance of a smaller payout are buying certificates of deposit, not lottery tickets. So if you want to make the lottery more attractive, it’s better to double the size of the jackpot than to double the number of winners.

(More precisely, doubling the number of winners makes the lottery more attractive to the sort of person who never buys lottery tickets anyway, while doubling the jackpot makes it more attractive to the sort of person who might actually be tempted to play.)

Now let’s apply the same reasoning to criminal deterrence. For the most part, criminals prefer a small chance of a big punishment to a big chance of a small punishment. That’s because the people who prefer a big chance of a small punishment go into punishing careers like construction work or coal mining instead of crime. So if you want to make crime less attractive to criminals, it’s better to double the odds of conviction than to double the severity of the punishment.

Add 10 percent to the length of the average jail sentence and crime will fall. Add 10 percent to the conviction rate instead and crime will fall even further. Like any risk-lovers, criminals are out to beat the odds, so they get particularly demoralized when the odds turn against them.

So much for the theory; now to the facts. What’s true of the lottery should be true at the racetrack. And gambling consultant Maury Wolff confirms that if you’re designing a complicated bet like a trifecta, the way to generate the most action per dollar’s worth of prize money (and hence the most profit for the track) is to offer very large prizes at very long odds. Why, then, do the tracks continue to offer bets with much smaller payoffs? According to Wolff, it’s because big prize winners take their money and go home while small prize winners plow their winnings back into the next race. That sets up an interesting trade-off for the track owner: One big prize maximizes profit on the current race, while several small prizes maximize the action on the next race. Interesting as that trade-off may be, it’s largely irrelevant to the main point, which is that players like big prizes and long odds. (On another interesting tangent, Wolff asked me whether there’s something inherently corrupt about a system where the proceeds from state lotteries are used to fund school systems that then have an incentive to produce the kind of students who will go out and play the lottery.)

With regard to crime, let’s consider the most spectacular of all crimes, murder. Here the expert is Professor Isaac Ehrlich, who, in the mid-’70s, pioneered the use of sophisticated statistical techniques to measure deterrent effects of conviction and punishment. Together with Professor Zhiqiang Liu, Ehrlich has recently revisited the subject, refuting his most vocal critics and offering new evidence in support of his original conclusion: Increase the number of convictions by 1 percent and (to a very rough approximation) the murder rate falls by about 1 percent. Increase the number of executions by 1 percent (which amounts to increasing the severity of the average punishment) and (again to a very rough approximation) the murder rate falls by about half a percent. (These numbers are based on evidence from the 1940s and 1950s. Capital punishment studies tend to focus on decades with more executions and hence more data.) As the theory predicts, convictions matter more than punishments.
That’s not to say that punishments don’t matter. Executions may be a less-effective deterrent than convictions, but they are nevertheless an extremely powerful deterrent; according to Ehrlich’s numbers, one additional execution in 1950 could well have prevented over 20 murders.

I am grateful to Ehrlich for that amazingly strong result, because I use it to illustrate three points that I’m always eager to drive home to my students. First, incentives matter, even to murderers. Second, economic theory predicts that some incentives matter more than others, and the data confirm the theory: Executions prevent murders, but convictions prevent even more murders. And finally, if you want to give policy advice, it’s not enough to know your numbers. You’ve also got to know your values. Isaac Ehrlich, the man who proved to the satisfaction of the economics profession that capital punishment works, is a passionate opponent of capital punishment.

And, of course remember, if you are charged with a crime, call San Diego’s best Criminal Defense lawyer, William Daley, at 619-238-1905, for your free consultation! www.lawofficeofwilliamdaley.com.

We specialize in DUI, drug and theft crimes, and all major felony and misdemeanor matters.