chris-lucero

Mandatory Ignition Interlock Device after DUI Convictions

Wed, 11 Jun 2025 14:46:38 GMT

The California State Assembly recently passed Assembly Bill 366 which would mandate the installation of Ignition Interlock Devices for all persons convicted of driving under the influence, including first-time offenders. An Ignition Interlock Device prevents a car from starting unless and until the driver blows into the device with no detectable amount of alcohol on his or her breath.

The devices' manufacturers would be required to adopt a specified fee schedule for the costs of the device, relative to and commensurate with, the convicted driver's income. Interestingly, the Ignition Interlock Device provider is responsible for absorbing the remaining costs not paid by the convicted driver.

The mandatory installation of an Ignition Interlock Device and its concomitant costs to even first-time DUI convictions is a hefty penalty that drivers should be aware of. If passed in the Senate, which should be expected, the law could go into effect as early as January of 2026.

Contact our office at 213-668-7569 to discuss how to handle your DUI matter.

"The Safer Communities Through Opportunity Act"

Wed, 11 Jun 2025 14:44:13 GMT

The California State Assembly recently voted on and passed AB-1231, "The Safer Communities Through Opportunity Act". The bill must still pass through the Senate, but, if signed into law, would offer defendants charged with felonies the opportunity to enter into a term of diversion. Upon successful completion of the term of diversion, the defendant's case would be dismissed and the arrest for the alleged felony offense would be deemed to have never occurred.

The maximum length of felony diversion is twenty-four months from the date of admission. The Court would impose certain requirement upon the defendant, which would be expected to be satisfied. If not satisfied, the Court may reinitiate criminal proceedings. Certain enumerated offenses are excluded from eligibility into diversion, including, but not limited to, offenses that would require the defendant to register per section 290 of the Penal Code, felony DUI, and felony domestic violence. As it stands, only felonies that are punishable by up to three years' imprisonment are eligible for diversion.

The law could go into effect as early as January, 2026. If you are facing a felony charge and interested in diversion for your felony matter, contact our office to discuss.

Judicial Diversion for Misdemeanors

Thu, 24 Apr 2025 15:00:32 GMT

In California, defendants charged with misdemeanors may file a motion for what is colloquially referred to as "judicial diversion". Beginning in 2021, judicial diversion permitted bench officers to divert misdemeanor cases. In so doing, the judge will require the defendant to complete several tasks over a specified period of time. Upon completion of the terms, the judge is required to dismiss the case; the dismissal will happen even if the District Attorney or other prosecuting agency disagrees or objects.

Judicial diversion provides great benefits to defendants as they do not have to plead guilty or no contest to any crime.

Certain misdemeanors are precluded from judicial diversion, including:

1. domestic violence charges;

2. any charge requiring the defendant to register pursuant to Penal Code section 290; and

3. driving under the influence.

Judges are not required to grant a defendant's motion for judicial diversion. In the event such a motion is granted, however, the maximum term length is two years from the date of admission.

If you are facing misdemeanor charges, contact our office today to discuss a possible grant of judicial diversion.

Requests for Admissions in California

Thu, 17 Apr 2025 13:33:37 GMT

In civil matters, Requests for Admissions are a form of written discovery that require the responding party to admit or deny certain facts that are pertinent to the lawsuit. The party propounding the Requests for Admissions may serve them by way of e-mail (assuming the parties agree to this form of service) or U.S. Mail. If the responding party has an attorney, the subject discovery must be served on the party's attorney.

Within thirty (30) days of service of the Requests for Admissions, the responding party must serve written responses under oath. If the responding party fails to respond within the thirty-day timeline, the Court may deem the matters contained in the Requests for Admissions admitted. This has severe impacts on the party as it may preclude the party from offering certain defenses or evidence favorable to them, or cause them to lose the lawsuit, altogether.

As the issues involved and information sought in Requests for Admissions are particularly sensitive, you must have an attorney assist with this form of discovery.

Early Termination of Probation

Wed, 02 Apr 2025 16:14:55 GMT

After being placed on probation, a defendant may file a motion with the court to have his or her probation terminated pursuant to Penal Code section 1203.3. The reviewing magistrate is permitted to grant the motion "when the ends of justice will be subserved thereby, and when the good conduct and reform" of the probationer warrants it.

If the motion to terminate probation early is granted, the probationer is discharged from probation, ending his or her probation sentence early. When negotiating a matter with the prosecutor, it is important that the defense attorney keep this is mind. Many times, when fashioning a plea agreement, the parties can agree that the prosecutor will not oppose a defendant's motion for early termination of probation; the non-opposition is usually conditioned upon completion of all of the terms of probation and payment of fines.

The early termination of probation may then warrant the matter's expungement and dismissal per Penal Code section 1203.4. With so much riding on the outcome, it is necessary that early termination of probation be considered when litigating a criminal case. Contact our office to discuss terminating your probation early.

Domestic Violence: No Contact or No Negative Contact.

Wed, 26 Mar 2025 21:25:19 GMT

When charged with domestic violence, a judge will typically address the issue of whether a criminal protective order should be issued at the time of arraignment. A criminal protective order may be issued in two forms:

1. No contact; or

2. No negative contact.

A "No contact" criminal protective order prohibits the defendant from contacting the person identified in the order, whatsoever. A "No negative contact" criminal protective order will permit the defendant to have contact with the person identified in the order, but prohibits negative contact such as harassing, annoying, stalking, threatening, and striking that person.

Because there is usually a pre-existing relationship as between the parties identified in the criminal protective order (for example, husband and wife), the issuance of a "No contact" criminal protective order will have drastic consequences, including, but not limited to, forcing the defendant to move out of the home. After the issue is litigated by the parties' attorneys, the judge uses his or her discretion as to what type of criminal protective order to issue.

With the stakes being so high, it is necessary to have a trained attorney at arraignment to guide a defendant through these issues. Contact our office at 213-668-7569 to strategize for arraignment and issuance of a criminal protective order.

Can Police Search my Phone After it is Taken

Wed, 19 Feb 2025 14:19:42 GMT

The Fourth Amendment of the United States Constitution protects people against unreasonable search and seizure. A search or seizure is presumed unreasonable unless it is done pursuant to a warrant authorized by a magistrate.

However, in California, law enforcement officers may seize a person's cellphone if they have probable cause to believe that it contains evidence of crime. At that point, because they are merely seizing, as opposed to searching, such seizure will oftentimes be deemed Constitutional. However, should the police wish to search the phone, ie., open it up and peruse its contents, such search will require a search warrant.

Courts have indicated that because the seizure is less intrusive than a search, the seizure of the cellphone is acceptable assuming the officer does indeed have probable cause to believe it contains evidence of crime. Thus, even if the officer waits for a period of time to obtain a search warrant, the seizure will not later affect the officer's ability to search. The longer the officer waits to obtain the warrant to search, the greater the likelihood the seizure and subsequent search are tainted.

If your cellphone has been seized by the police, contact our office today to discuss your plan of attack.

Is a Private Lawyer Necessary in a DUI Case

Tue, 04 Feb 2025 15:18:37 GMT

Oftentimes we are asked whether a privately-retained lawyer is necessary in a DUI case. Predictably, our answer is "It depends." For one, budgetary restrictions may make it difficult for a person accused of DUI to retain a private lawyer.

With respect to the criminal case that arises out of a DUI arrest, the defendant is entitled to the appointment of a lawyer on their behalf if they cannot afford one. The appointed lawyer will represent the defendant throughout the case from arraignment through trial. The problem for many people in that scenario, however, is that a DUI case is broken down into two portions: the administrative portion and the criminal portion.

The Court-appointed attorney will not assist the DUI recipient with the administrative portion of the case and will be limited to the criminal case. For many, having a lawyer represent the accused for the administrative hearing with the DMV is the greatest advantage to retaining private counsel. Because these matters are complex, you need someone who speaks the language necessary to defend you. Losing the APS hearing with the DMV comes with serious consequences including suspension of the person's drivers license.

If you are unsure whether you need a private attorney for your DUI case, contact our office at 213-668-7569 to discuss whether our office is right for your situation.

Bail Bonds

Wed, 29 Jan 2025 15:06:05 GMT

When a person is arrested, the arresting officer must identify the law violation justifying the arrest. Once the officer has identified the law violation, bail is usually set according to the county's Bail Schedule. The Bail Schedule lists the provisions of the Penal Code and identifies a set bail for the offense. By cross-referencing the bail schedule, one can estimate what the arrestee's bail will be.

If the arrestee cannot make bail according to the bail schedule, in California, bail is subject to judicial review at or near the time in which the arrestee is arraigned for the offenses. Thus, even if the bail schedule provides some guidance, the judge reviewing bail is not beholden to that amount; he or she can set whatever bail they feel appropriate.

When faced with a bail decision, the judge will consider several factors, such as:

-the defendant's prior criminal history;

-the seriousness of the charges alleged; and

-whether the defendant has any prior failures to appear for prior court cases.

Arguments must be made by a skilled a skilled defense attorney highlighting the good facts for the defendant notwithstanding the criminal charges. If you or someone you know is in custody, contact our office at 213-668-7569 to schedule a bail hearing.

Assault with a Firearm

Wed, 22 Jan 2025 18:08:01 GMT

California Penal Code section 245(a)(2), commonly known as "Assault with a Firearm", is a felony that is punishable by two, three, or four years in state prison. The statute defines a firearm as a:

-pistol;

-rifle;

-shotgun;

-semiautomatic firearm;

-machine gun;

-.50 B<G rifle; or

-assault weapon.

The usual situation in which assault with a firearm is charged is when the defendant is alleged to have pointed a firearm at the victim. Assault with a firearm may also be charged as a misdemeanor, depending on the seriousness of the conduct and firearm used. As a felony, Assault with a Firearm is a strike offense, raising the stakes greatly. It is a defense if the defendant committed the assault in self-defense or defense of another.

If you are accused of assault with a firearm, an experienced attorney must review your matter swiftly. Contact our office at 213-668-7569 to prepare your defense.

Juvenile Transfer Hearings

Thu, 16 Jan 2025 21:57:04 GMT

Welfare and Institutions Code section 707 provides that if a minor is 16 years or older during the commission of an offense listed in subsection (b) of section 707, the district attorney or other prosecutor may make a motion to have the juvenile transferred to an adult court for criminal prosecution. The offenses listed in subsection (b) of section 707 are of the most serious crimes in the Penal Code. Thus, should the prosecutor succeed in having the minor transferred to adult court, the consequences are not to be taken lightly.

Upon the motion of the prosecutor to transfer the minor out of the juvenile delinquency court and into the criminal court, the probation department of the County is to prepare a report detailing the following:

1. The degree of criminal sophistication exhibited by the minor;

2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction;

3. The minor's previous delinquent history;

4. Success of previous attempts by the juvenile court to rehabilitate the minor; and

5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Irrespective of whether the probation department's report is favorable or unfavorable to the minor, it is absolutely imperative that a trained juvenile defense attorney examine the case to prepare a defense and opposition to the motion for transfer.

If you have a child facing a transfer hearing and motion, contact our office at 213-668-7569 to discuss your child's future.

Military Diversion

Tue, 07 Jan 2025 15:57:13 GMT

Beginning January 1, 2025, veterans charged with felonies will be eligible for what is known as military diversion. Previously, a servicemember would only qualify for such relief if charged with misdemeanors. The servicemember must suffer from mental health issues, post-traumatic stress disorder, sexual trauma, or substance abuse. The servicemember's condition must have also been a "significant factor" in the commission of the charged felony. However, there is a presumption that the condition that a nexus exists between the commission of the felony and the servicemember's condition. Unless the prosecutor can show by clear and convincing evidence that there is no connection, the judge must presume the nexus exists.

Certain serious felonies are excluded from military diversion, including, but not limited to:

murder;

any offense requiring sex offender registration per PC 290;

rape; and

offenses involving the use of a weapon of mass destruction.

This new expansion of military diversion will grant veterans and members of the military to have their cases dismissed and sealed at the conclusion of their term of diversion.

If you are a current or former member of the military, it is imperative you contact our office at 213-668-7569 to see if you qualify.

New York Clean Slate Act

Thu, 26 Dec 2024 16:58:56 GMT

On November 16, 2024, New York's Clean Slate Act was enacted, permitting individuals with misdemeanor and/or felony convictions to have those convictions sealed. Most misdemeanor and felony convictions are eligible for sealing after the statutorily-proscribed times lapse. Excluded from eligibility, however, are convictions for Class A felonies that are not drug-related, sex crimes, and murder.

To qualify, an individual seeking sealing must not be on probation, parole, or post-release supervision. Further, the individual may not have any pending misdemeanor or felony cases. Clean Slate misdemeanor conviction sealing must occur three years from the date of sentencing or release from incarceration, whichever is later. For felony convictions, sealing may occur eight years from the date of sentencing or release from incarceration, whichever is later.

The Clean Slate Act is a welcome form of postconviction relief for those who have previously suffered criminal convictions in New York State and now seek to move on with their lives for employment and housing purposes.

If you have previously been convicted of a crime in New York, contact our office at 646-718-3730 to discuss having your matter sealed.

"Wet Reckless" Plea

Tue, 17 Dec 2024 15:54:58 GMT

If charged with driving under the influence of alcohol in California, it is imperative that a defendant pursue and consider resolving the case prior to trial with a "wet reckless" plea. A wet reckless plea will require a Defendant changing his or her plea from Not Guilty to either Guilty or No Contest to Vehicle Code section 23103.5. This section of the Vehicle Code is an offshoot of the Reckless Driving Statute and includes the addition that the defendant consumed alcohol.

There a several benefits to a wet reckless plea, including, but not limited to:

a reduced probationary period;
a shorter DUI class;
no drivers license suspension; and
reduced fines.

Not every case is deemed appropriate for a wet reckless plea in the eyes of the prosecutor. The main factor influencing a prosecutor's decision to offer and resolve the case for a wet reckless plea is usually the defendant's blood alcohol content at the time of driving.

If you need help with your DUI case, contact our office at 213-668-7569 to get started on your wet reckless plea.

Batterers Intervention Program for Non-DV Charges

Fri, 06 Dec 2024 14:27:37 GMT

A batterers treatment/intervention program will be imposed on a defendant irrespective of whether that defendant is convicted of a "domestic violence" offense if the victim is related to defendant in the following manners:

- a spouse or former spouse;

- a cohabitant or former cohabitant (live-in girlfriend, for example);

- a person with whom the defendant has or had a dating relationship; or

- a person with whom the defendant shares a child.

Oftentimes, a defendant will seek to plead to a charge that is not classified as "domestic violence". As mentioned above, however, Penal Code section 1203.097 requires that domestic violence terms of probation be imposed even though the defendant is not necessarily convicted of a domestic violence charge. Other domestic violence terms include an extended term of probation from one or two years to a minimum of three years, and the imposition of a criminal protective order in favor of the victim.

Domestic violence convictions carry hefty penalties and require a skilled attorney to navigate. If you need assistance with your matter, contact our office at 213-668-7569 to prepare your defense.

"Implied Consent" Refusal: Proper Admonition

Mon, 25 Nov 2024 21:17:29 GMT

California's Implied Consent Law states that any person driving in California is deemed to have implicitly consented to submitting to a chemical test (usually blood or breath) after being arrested for driving under the influence. The driver can refuse, but any such refusal will be accompanied by a one-year suspension of the driver's license for first-time DUI. The one-year suspension is an administrative penalty that exists separate and apart from any criminal case that may also be initiated against the driver.

To preserve their license to drive, an administrative per se hearing must be requested within ten days of the incident. Failure to request that hearing results in the suspension of their drivers license.

One of the key issues that will need to be resolved at the APS refusal hearing is whether the arresting officer appropriately advised the driver of the requirement to submit to the chemical test. If the officer did not tell the driver each and every consequence of failing to submit to chemical testing, many times it is successfully argued that the admonition was not proper, thus resulting in a "set aside" of the driver's license suspension.

Whether or not the proper admonition was given is a complex question of law and fact and requires heavy research and analysis by a trained attorney. If you are dealing with a refusal issue for an upcoming APS hearing, contact our office today.

New Minimum Auto Policy Limits in California

Wed, 20 Nov 2024 15:30:19 GMT

Beginning on January 1, 2025, the State of California will require all motorists to maintain auto liability insurance with minimums of:

$30,000 for bodily injury or death per person;
$60,000 for bodily injury or death per accident; and
$15,000 for property damage per accident.

For victims of motor vehicle accidents, this is a welcome increase as the costs of medical care have skyrocketed. When filing a claim for personal injuries stemming from motor vehicle accidents, all too often the injured driver's recovery is decreased due to the high costs of their medical care.

Prior to the change in law, the minimum limits of auto liability insurance were $15,000 for bodily injury or death per person, $30,000 for bodily injury or death per accident, and $5,000 for property damage per accident. With the prior limits, even soft-tissue, non-life threatening injuries fast approach policy limits because the cost of medical care is so high. If you are a victim of a motor vehicle accident and seek compensation for your injuries, contact our office today at 213-668-7569 .

DWAI in New York

Thu, 14 Nov 2024 19:21:21 GMT

Varying levels of driving while impaired or intoxicated exist in the State of New York. On the lower rung of such violations, is what is referred to as "Driving While Ability Impaired". A person will have committed this offense when operating a motor vehicle with a blood alcohol content greater than .05%, but less than .07%. Even assuming, however, the driver's blood alcohol content is less than .05% percent, the driver may not be in the clear as other evidence can be used to show the driver was impaired. Other evidence includes, but is not limited to, poor performance on field sobriety tests or poor driving (swerving, stop and go, etc.).

While only an infraction, Driving While Ability Impaired convictions carry stiff penalties. Fines range from $300 to $500, a mandatory license suspension of 90 days is imposed, and the maximum jail time is 15 days.

If you have been cited or booked for DWAI - Alcohol and need our help, contact our New York office at 213-668-7569 today.

Demurrer to Criminal Complaints in California

Tue, 12 Nov 2024 19:24:50 GMT

In California, the majority of criminal cases are initiated by a prosecutorial office’s filing of a criminal Complaint. The Complaint will identify the Defendant, allege what crime(s) the Defendant committed, and state the date of the violations. If the Complaint is flawed in some respect, the Defendant may demur to the Complaint, arguing that it should be dismissed or amended. There are several grounds for the Defendant to demur to the Complaint, for example, the statute of limitations applicable to the criminal conduct lapsed, rendering the prosecution legally incapable of proceeding with the case. The bases for Demurrer are exclusively found in Penal Code § 1004. However, it is important to keep in mind that the Defendant can only demur to the Complaint prior to entering a plea to the allegations of the Complaint, ie., telling the Court that he or she is “Not Guilty”. Thus, it is extremely important that counsel for the accused thoroughly review the criminal Complaint prior to the arraignment date to see if a Demurrer may lie. Mistakenly entering a "Not Guilty" plea where a Demurrer would be sustained is a major mistake that could seriously injure the client.

If you are unsure whether you need to demur in your criminal case, contact our office at 213-668-7569 to discuss.

"Military Diversion"

Thu, 31 Oct 2024 19:52:49 GMT

Current or former members of the military may be able to obtain a complete dismissal of criminal charges through what is commonly referred to as "Military Diversion". To qualify, the current or former servicemember must be charged solely with misdemeanors. The servicemember must also suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of their military service. A motion must be filed and heard by the judge presiding over the underlying criminal case, at which time the District Attorney may oppose or concede the servicemember's admission into Military Diversion. Should the motion be granted, the Court will impose upon the applicant a number of terms, which, if followed, will ultimately result in the case's being dismissed and the records of arrest being sealed. As it is the case, this supplies huge advantages for servicemembers accused of misdemeanor crimes who intend to continue with military service or wish to one day obtain a position of employment requiring no criminal convictions.

This legislative privilege is frankly, a life-saver. If you have served or are currently serving in the US Military and are charged with a crime, contact our office today at 213-668-7569 to preserve your future.

Custody Consequences of DVRO

Mon, 21 Oct 2024 18:20:08 GMT

The consequences of a finding of domestic violence cannot be understated. Such a finding can be made through several avenues, including at a hearing on a Domestic Violence Restraining Order. Once a judge finds domestic violence has occurred, a legal presumption that it is not in the best interests of the parties' child for the offending party to have sole or joint legal and physical custody of the child pursuant to Family Code section 3044. In effect, there is a possibility that the offending party loses custody of their child. What is more, a finding of domestic violence could lead to the offending party's being ordered to pay their opponent's attorney fees. With child support now likely being ordered due to the legal presumption against custody being put into place, attorney fees are understandably an unwelcome complication for the offending party.

While the presumption is "rebuttable", meaning the offending party can demonstrate their rehabilitation, this is no easy feat, especially in light of the offending party's newfound financial obligations. To rebut the presumption, the offending party is expected to complete a domestic violence batterers treatment program, parenting classes, and drug and alcohol classes, where necessary, among other things. This only represents a fraction of the problems for the offending party as there is usually a concomitant criminal case that arises from the domestic violence incident.

If you have an ongoing Domestic Violence Restraining Order, or a domestic violence criminal case, contact our office to get started on protecting your relationship with your children.

Firearm Restrictions for Misdemeanors

Thu, 17 Oct 2024 18:13:39 GMT

Most people are aware that a felony conviction is accompanied by a firearm restriction that lasts for life. What is less well-known, however, is that many misdemeanor convictions also carry with them a firearm restriction. For example, if an individual were convicted of violating Penal Code section 242 – Battery, they would be prohibited from possessing and owning a firearm for ten years. This is due to the conviction’s being classified as a “violent misdemeanor” and the firearm restriction remains even though a battery has no factual nexus to firearms. What is more, even where there is no physical violence involved, a ten-year firearm restriction will be imposed. A person convicted of violating Penal Code section 422 – Criminal Threats will also find themselves unable to possess a firearm for ten years, even though there was no physical violence!

A lifetime firearm restriction may result if a defendant is convicted of violating Penal Code section 273.5 – Corporal Injury to a Spouse or Cohabitant, even if conviction is for a misdemeanor violation of that statute. Clearly, the Legislature has taken the approach that any crimes of violence should be taken seriously enough to restrict a person’s right to own and possess firearms, notwithstanding the Second Amendment’s guarantees. If you are concerned about preserving your right to own and possess firearms because of a criminal case, contact our office at (213) 668-7779 to begin your path to preserving your rights.

Zero Tolerance for Underage DUI

Wed, 09 Oct 2024 15:44:04 GMT

California has adopted a "Zero Tolerance" policy for dealing with persons under the age of 21 drinking and driving. For example, Vehicle Code section 23136 creates a civil penalty for any person under 21 years of age who drive a motor vehicle with a blood alcohol content of .01% or greater. Violating section 23136 will result in the suspension of the underaged person's driver's license for one year for the first offense. Multiple offenses result in lengthened suspensions.

Persons under 21 years of age can be criminally prosecuted if they drive with a blood alcohol content of .05% or more. While only an infraction, any violation of the "Underage DUI" law will result in a mandatory one-year suspension of the driver's license, concomitant fines, and participation in a DUI class if the driver is over the age of 18.

Perhaps worse, persons under the age of 21 who drink and drive can still be prosecuted for violations of the adult DUI statutes, typically subsections (a) and (b) of section 23152 of the Vehicle Code, ie, driving under the influence of alcohol and driving with a blood alcohol content of .08% or more. In short, there are numerous avenues by which a driver under the age of 21 can create problems for him or herself by drinking and driving. From civil penalties to criminal and administrative punishment, it is no laughing matter. If you are under the age of 21 and facing consequences from drinking and driving, contact our office at 213-668-7569 to get your defense started.

The Necessity Defense in DUI Cases

Mon, 23 Sep 2024 14:11:18 GMT

Even if a jury is convinced you are guilty of a DUI, the necessity defense may negate a prosecutor's ability to obtain a conviction against you. In California, the necessity defense applies if: (1) the defendant acted in an emergency to prevent harm to himself or another; (2) the defendant had no other legal alternative than to commit whatever illegal act they committed; and (3) the defendant believed that act was necessary to prevent the purported harm. The necessity defense applies to DUI cases in many circumstances, such as, driving while under the influence to prevent their child from being taken, or to prevent harm to a loved one who was in danger at the time. The evidence required to establish a necessity defense is complicated and arduous; so, it is very important you retain the services of an experienced trial attorney to properly tell the story to the jury. If the jury is convinced that a person's actions were necessary to prevent the purported harm, unless the prosecutor can dispel that belief, they must find that person not guilty. If you have a DUI or other criminal case where you believe the necessity defense applies, contact our office immediately so we can preserve your future.

Contact our office at: 213-668-7569 to schedule a consultation.

"The worst voice you can hear in court is your own"

Mon, 23 Sep 2024 14:09:35 GMT

It is often said that "The worst voice you can hear in court is your own." The evidentiary rules in California permit admissions of a party to the lawsuit if offered into evidence by the opposing party. That means that a prosecutor can use just about any statement a defendant makes at trial, assuming it is relevant to the issues of the case. Even if the defendant is not being interrogated by law enforcement at the time the statement is made, the prosecutor can use their statements as evidence of guilt. That means that any off-color remark can and will be used against the defendant at trial. A defendant's statements can also be utilized by a prosecutor when they are made to an informant, such as is done in a Perkins operation. A Perkins operation is executed when law enforcement places an informant into custody with the defendant with the intent of eliciting incriminating statements that will later be used at trial. Anything the defendant says to the Perkins informant is fair game. As one can imagine, those statements are not typically helpful for the defense. If you have concerns about things you have said for your criminal case, contact our office to get you the protection you need.

The Option to Refuse

Mon, 23 Sep 2024 14:08:24 GMT

During an investigation for Driving Under the Influence (DUI), more often than not, an officer will ask they subject they are investigating whether they will subject themselves to blowing into a device called a Preliminary Alcohol Screening Device, "PAS" for short. What most people do not know, nor do most officers communicate it, is that the "PAS" is completely, 100% voluntary, and there is absolutely no penalty, be it administrative or legal, in not submitting to the Preliminary Alcohol Screening Test. This begs the question then, why do people do it? Well, persons being investigated for DUI are usually nervous, unaware they can refuse to submit to the test, and want to "play ball" in the hopes that the officer will appreciate their cooperation. It is not all that often that an officer, without probing, volunteers to the person being investigated that the PAS test is voluntary. A PAS test cannot be compelled by the officer and the person submitting to it must consent to it. The usual interaction goes something like this:

Officer: "Would you mind blowing into this machine so I can know if you've been drinking?"

Driver: "No, I don't mind."

What the driver doesn't know here is that he or she is well within their right to refuse this test. Ultimately, if a case is filed against the driver, he may have just helped the prosecutor secure a conviction. If you need help with your DUI case, contact our office immediately to discuss your options.

DUI Checkpoints

Mon, 23 Sep 2024 14:06:06 GMT

Checkpoints are often used by law enforcement to enforce Driving Under the Influence laws. In the context of everyday life, a law enforcement officer is not permitted to just stop and detain a person without first having probable cause to believe that person has committed a crime, save for few delineated exceptions.

Because police officers cannot just stop people without probable cause, one would think checkpoints are illegal, but they're not. The Supreme Court for the State of California has previously ruled checkpoints do, in fact, pass Constitutional muster assuming the prosecution can establish that the checkpoint's procedures, placement, and advance publicity satisfy certain factors. The method of challenging a DUI checkpoint is by filing a motion to suppress which would then require the prosecutor to show by a preponderance of the evidence that the warrantless detention (ie., the checkpoint stop) was permissible and Constitutional. This is no easy feat. It often requires multiple witnesses, documents, and a morning's long hearing.

It is imperative that you understand your rights if you are cited or arrested after having been stopped during a checkpoint. Contact our office today at 213-668-7569 to ensure you are protected.

"Not Guilty" Plea to Felony: Preliminary Hearing

Mon, 23 Sep 2024 14:04:19 GMT

After entering a "Not Guilty" plea to felony charges, the first time the government's case will be tested is at the preliminary hearing, also known as the preliminary examination in some jurisdictions. At the preliminary hearing, the prosecution must convince the judge overseeing the hearing that the defendant is guilty of the charges alleged against him by the standard of probable cause.

In theory, that means the judge must be convinced that facts were presented at the hearing that would lead a person of ordinary caution or prudence to believe the guilt of the defendant. In practice, however, this standard will usually be satisfied as long as the prosecution presents a warm body to say what they need them to say. In short, probable cause is a very low standard and the government usually succeeds in having the defendant held to answer.

This is entirely different than the standard of proof required to obtain a guilty verdict at trial, which is the standard of beyond a reasonable doubt. Because it is the first time anyone will see the evidence in the case, it is very important the defense attorney present a compelling case at the preliminary hearing for the purpose of improving their client's position at the bargaining table.

If your preliminary hearing is upcoming, call our office at 213-668-7569 to get your defense started.

The Miranda Statement and Voluntariness

Mon, 23 Sep 2024 14:01:05 GMT

After an arrest law enforcement may only continue questioning a suspect if they obtain the arrestee's consent. To obtain their consent, the law enforcement officers must admonish the arrestee of his or her "Miranda" rights, which include, but are not limited to, the right to an attorney before an after questioning. Should the arrestee elect to speak with the officers after having been so admonished, it is colloquially referred to as the arrestee's "Mirandized" statement. In most instances, at least some of the "Mirandized" statement will be admissible at trial.

In other instances, however, law enforcement actions taken after the "Miranda" admonition will render the statement involuntary. If the judge presiding over the trial deems the "Mirandized" statement involuntary, the prosecution is barred from using any of its contents at trial. This includes its use for impeachment purposes - a major blow for the prosecution if the arrestee-defendant elects to testify. In order to make such a finding that a Mirandized statement was involuntary, judges usually look to whether the police engaged in coercive activity which includes "psychological coercion" and other activity that "offends the community's sense of fair play and decency". The lack of a bright line rule makes this topic hard to navigate. A skilled attorney is absolutely essential to giving you the tools you need to protect your rights.

Contact our office at 213-668-7569 to discuss your Miranda statement.

The Ham Sandwich: An Indictment

Fri, 13 Jan 2023 22:27:20 GMT

In 1985, Sol Wachtler, then the Chief Judge of the Court of Appeals for the State of New York, famously opined that a grand jury would indict a ham sandwich if asked to do so. This statement was itself an indictment on how easily prosecutors were able to obtain indictments from the grand jury. In theory, the grand jury system was put in place for the protection of individual citizens against unwarranted and unsupported prosecutions. Justice Wachtler apparently believed the protection insufficient for its stated purpose. Justice Wachtler's true gripe has to do with the standard of proof required to obtain the indictment: Probable Cause.

How is Probable Cause Achieved?

Probable Cause will be achieved so long as the prosecutor is able to convince the grand jury that facts exist such that a reasonable person would believe a crime has been committed and that the Defendant committed the crime. In practice, this standard will bet met so long as the prosecutor can present at least one witness to testify to the alleged incident and establish the perpetrator as being the Defendant. Indeed, this is not a high burden to meet. Hence, even a ham sandwich is susceptible to being indicted and prosecuted.

Contact an Experienced Pomona Criminal Defense Attorney

If you have concerns about a criminal matter, contact our office at 213-668-7779 to get ahead of the issue.

Complaint, Indictment, Information – What's the Diff?

Wed, 04 Jan 2023 22:25:25 GMT

In California, there are three types of accusatory criminal filings:

Complaint
Indictment
Information

What is a Complaint?

A Complaint is a document filed with a court indicating that on a date certain, the Defendant committed a crime. The prosecution can file a Complaint without any input from any other entity, so long as they have a good faith belief that the charges contained in the Complaint are supported by “Probable Cause”.

Probable Cause and Filing an Information

“Probable Cause” serves as a litmus test for the provability of a criminal charge lodged against a Defendant. It can be defined as supported by facts that lead a reasonable person to believe that a crime has occurred. After the Complaint is filed, the test of Probable Cause is given before a magistrate at a Preliminary Hearing. There is no jury at the Preliminary Hearing, just a judge. If the prosecution convinces a judge that there is Probable Cause to support the charges, the prosecution must then file an “Information”.

What is an Indictment?

An indictment, on the other hand, is not decided to be filed by the prosecution, but rather the grand jury. The prosecution will present evidence to the grand jury in attempts to convince them that the Defendant committed certain crimes, again by the standard of Probable Cause. If the prosecution succeeds, the grand jury will issue the Indictment.

If any criminal filing has been made against you, call our Pomona office at 213-668-7779 to get working on your defense.

Reasonable Doubt and its Intricacies

Tue, 03 Jan 2023 22:23:02 GMT

Before a criminal Defendant can be found guilty, the prosecutor must have convinced the fact-finder at trial that the Defendant is guilty “Beyond a Reasonable Doubt”. The “Beyond a Reasonable Doubt” standard is the highest standard of proof in the American legal system. In civil matters, for example, the standard of proof for the Plaintiff is “By a Preponderance of the Evidence”; in other words, more likely than not.

How is “Beyond a Reasonable Doubt” defined?

To be convicted of a criminal charge, the prosecutor must have eliminated every single reasonable doubt in the mind of the fact-finder, and must have done so with respect to every element of every count charged. This is, no doubt, no easy task. The California jury instructions on “Beyond a Reasonable Doubt” define it as proof that leaves the fact-finder with an abiding conviction that the charge is true. Typically, it is argued as being proof that leaves the fact-finder believing that they have gotten to the correct conclusion of guilt such that they will never question that decision for the rest of their lives. Again, no easy feat. It is the defense attorney’s job to bring to light whatever doubts there are in the case at trial.

Contact a Pomona Criminal Defense Attorney Today!

If you have a criminal trial coming up, you need an attorney that knows how to expose doubts in your case. Contact Lucero, PC at 213-668-7779 to get started in your case preparation. It is our honor and privilege to be your voice in Court.

What is a Readiness Conference?

Thu, 22 Dec 2022 22:20:00 GMT

A readiness conference is a court hearing prior to trial. The prosecutor and the lawyer for the Defendant appear before a judge and indicate whether or not they are ready for trial. Typically, if a defense lawyer indicates to the judge that they are “not ready” for trial, the case will continue, ie., not go to trial, so long as the Defendant waives his or her speedy trial rights.

What happens if I don't waive my right to a speedy trial?

If the Defendant does not waive speedy trial rights, the Court will have no option but to send the parties to trial.

What does an attorney do to prepare for trial?

To be ready for trial, a defense attorney should have reviewed the police reports, watched all media discovery, and done their own investigation into the alleged incident. Additionally, if the defense requires witness testimony, the attorney should subpoena the necessary witnesses. It is a long and arduous process that requires serious attention to detail.

Do you have an upcoming readiness conference in Pomona? Contact Lucero, PC

If you or someone you know has an upcoming readiness conference, you cannot risk your future having an attorney that will not be “ready”. Contact Lucero, PC at 213-668-7779 to begin the preparation on your case. It is our honor and privilege to be your voice in Court.

What is an Arraignment?

Wed, 21 Dec 2022 22:18:09 GMT

An arraignment is the first hearing after a criminal filing is made against someone. In other words, after the prosecution files paperwork with the Court saying they are liable for committing a crime, the arraignment is the first time that person is due in Court.

What Should I Expect at my Arraignment?

At the arraignment, the accused is informed of the charges being brought against him or her and asked by the Court how the plead in response to those charges. The options are:

Guilty; or
Not Guilty

Rarely, if ever, will a person plead Guilty at an arraignment, nor should they. The issue of "bail" is also typically addressed at the arraignment. It is very important that the person being accused of committing a crime appear at the arraignment date, or at least have an attorney appear on their behalf. If they don't, a warrant will issue for their arrest.

Contact a Pomona Criminal Defense Attorney to Handle Your Arraignment

If you have an upcoming arraignment, our Pomona criminal defense lawyers know what needs to be done and how to get you through it. Contact our Lucero, PC at 213-668-7779 to get the process started and get your protection plan in place. It is our honor and privilege to be your voice in Court.

Will I go to jail for a DUI?

Tue, 08 Nov 2022 22:15:53 GMT

It depends...

While I would love to be able to assure you that you will not be placed into custody for a DUI, the plain and simple truth is...it depends. Why do I say that?

Well...the facts of every case make every case different. Ultimately, a judge will be the one who decides what happens to you. Typically, a judge will defer to the plea deal placed before the Court by the prosecution and the person accused of DUI. This does not always happen, however. In making their decision as to whether or not a person convicted of DUI should go into custody, judges examine the facts of the incident, the person's criminal history, and other factors.

A first-time DUI, without any collision or victims, generally does not require jail time in California. There is no hard-and-fast rule, however. If you are arrested for driving under the influence, you need the assistance of LUCERO, PC to put yourself in the best position against the prosecution asking for custody.

If you need help with your DUI case, do not hesitate to contact us today. It is our honor and privilege to be your voice in Court.

I was arrested for Domestic Violence...now what?

Wed, 12 Oct 2022 21:14:29 GMT

Tensions were high...you and your significant other got into it. The police were called and you were arrested. What does it mean?

THE BAD: California maintains a mandatory arrest policy if the police believe that domestic violence has occurred. In other words, if the cops establish "probable cause" that you committed domestic violence, you will be arrested. Unfortunately, there is not much wiggle room around that.

THE GOOD: Without more, "probable cause" will not suffice for a criminal conviction. Your significant other/spouse/girlfriend/boyfriend will need to appear at your criminal trial to testify about the events of the evening and the prosecution will need to convince all of the jurors that you did, in fact, commit domestic violence. It goes without saying that this is no easy feat. Especially when the context of the situation has not yet been provided.

THE BETTER: That's where we come in. Domestic violence cases can have disastrous effect on a person; their professional career, their reputation, and their relationship with their children, can all be compromised. Our office knows how to get in front of these types of situations. Many times, the police simply do not have the story right. If that's the case, you need LUCERO, PC to assist you through the process. If you are arrested for domestic violence, contact us at 213-668-7779 or chris@luceropc.com to get your version of the event told. It is our honor and privilege to be your voice in court. Don't go it alone.

Racketeering in California

Wed, 05 Oct 2022 21:12:45 GMT

For a long time now I've been trying to figure out just what a racketeer is. I never went to school past the third grade, but I've graduated ten universities of hard knocks, and I've decided that a racketeer that the definition of a racketeer is anyone who tries to accumulate wealth, power, and prestige, at the expense of entrenched wealth, power, and prestige.

-Frank Costello

As used in the United States Code, "racketeering" is a catch-all term that generally applies to criminal activity that is of an "organized" nature. In its inception, the term "racketeering" was used in attempts to prohibit the criminal behavior of the Italian mafia. While most people think of violent crime when they think of the mafia, there is certainly room to wiggle for prosecutors to apply racketeering laws in non-violent prosecutions such as fraud, identity theft, et. cetera.

In California, the racketeering laws do not specifically outlaw "racketeering", per se, but are rather used to recoup profits gained by way of criminal behavior. For example, if a group of people conspire together and steal catalytic converters and sell them on the black market, any profits derived therefrom could become the subject of racketeering laws in California. In other words, racketeering itself, is not a crime in California. For the racketeering laws to be engaged, the prosecuting agency is required to show a pattern of illegal behavior that is organized in nature. Once this is shown, the government's remedy is to seize the assets derived from the aforementioned criminal activity. However, the prosecuting agency may also still criminally prosecute the individual for the underlying crimes.

If you or someone you know have concerns about assets being seized under the California racketeering laws, do not hesitate to contact our office at 213-668-7779 or chris@luceropc.com so we can address the issues properly. It is our honor and privilege to be your voice in court. Don't go it alone.