Criminal Codes (Partial List)
Friday, February 16, 2018
Common California Criminal Codes
Monday, January 22, 2018
Domestic Violence Restraining Orders Information
A domestic violence restraining order (DVRO) is a court order that is designed to legally restrain a person's abusive conduct and/or communication with a protected person and/or give legal permission to the protected person to do something that the protected would not ordinarily be legally allowed to do.
Examples: 1) A domestic violence restraining order may be used to restrain a person from contacting or communicating, directly or indirectly, with a protected person, or the protected person's family, 2) A domestic violence restraining order may give legal permission to a protected person to secretly audio record the another person, or 3) A domestic violence restraining order may allow the protected person to have temporary control of the family home, and more. Other common DVROs are listed below.
Domestic violence is defined as physical or emotional abuse directed at a close family member, a current or former spouse, or at persons who are dating or have dated romantically. A domestic violence restraining order is intended to legally abate the abuse and establish protection for the protected person and his or her family. Abuse includes, but is not limited to: annoying, harassing, threatening, assaulting, stalking, molesting, or intimidating the protected person, or his or her property, directly or indirectly.
Note: There are different types of restraining orders, including domestic violence restraining orders, civil harassment restraining orders, criminal protective orders (CPOs), elder abuse restraining orders, workplace employee restraining orders, and more. This article is dedicated to a discussion of domestic violence restraining orders that are filed in family law court. For information on other types of restraining orders, please contact our divorce and family law attorneys for a free consultation.
Common domestic violence restraining orders include:
- Order to stay away from the protected person/s
- Order to not contact, directly or indirectly, with the protected person
- Order to contact peacefully only (Also called no-negative contact orders)
- Order to not harass, annoy, molest, stalk, or threaten the protected person
- Order to relinquish, sell, or store firearm/s
- Order to transfer a phone number
- Order to move out of a home (temporary or permanent)
- Order allowing secret audio recording of restrained person
- Order for restitution on damage to victim (lost wages, medical bills, etc.)
- Order for restitution on property damage
- Order for alimony (also called spousal support)
- Order for child support, child custody, and child visitation
- Order for attorney fees
- Order to enroll in domestic violence batterers classes
- Order for supervised visits
- Order for mediation to determine child custody or visitation
- Order to abate travel with children
- Order to establish parentage, and more.
Collateral consequences upon a loss to a DVRO request: In addition to any that might be made against the defendant, other consequences from a loss to a DVRO request can include: possible loss of visitation or custody of children, loss of the right to own or possess firearms, loss of employment, loss of reputation, loss of immigration status, and more. It is highly advised that a litigant to a DVRO request seek the assistant of a divorce or family law attorney without delay.
Cautionary Note: Procedures, rules, and necessary forms that are required for obtaining a domestic violence restraining order are discussed herein, but please remember, there is no good substitute to the retention of an experienced and successful family law attorney and/or criminal defense attorney to make sure you have the best chances of success on your request for, or defense of, a DVRO.
Remember the facts supporting a DVRO are often the same facts that support a criminal action and/or a civil lawsuit against the defendant, i.e. stalking (PC 646.9), battery (PC 242 & 243(d)), assault (PC 240, 245(a)), domestic violence (PC 243(e)(1), 273.5), criminal threats (PC 422), annoying phone calls (PC 653m), distributing nude images for revenge (PC 647(f)(4), vandalism (PC 594), trespass (PC 602), contempt of court (PC 166), violation of a protective order (PC 273.6), unauthorized audio recording (PC 632), residential burglary (PC 459), and more. All statements and conduct made by either side in a DVRO request may be used against either side in a subsequent criminal prosecution by the district attorney or a civil lawsuit for damages and restitution. Note: Your own evidence can be used against you if you are not careful in pursuing or defending a domestic violence restraining order.
A cursory knowledge of the law and the required legal forms do not win DVRO cases and a litigant should certainly never defend against a DVRO request without the legal representation of family law attorney and maybe even a criminal defense attorney as the facts that often times support the allegations in a DVRO request have underlying criminal application. If you are able to do so you should hire a family law attorney familiar with criminal defense issues to assist you with your DVRO case, especially if you are defending against a request for DVRO. Our attorneys are trained in collecting, investigating, preserving, and producing evidence in court. Our attorneys are also familiar on which arguments are successful in front of particular judges, and just as importantly, which arguments to avoid in front of particular judges. Our family law and criminal defense attorneys are experienced with the strict rules of evidence production (especially the rules of evidence concerning direct and cross-examination of witnesses), the many rules of court, and the practiced art of persuasion. Some of the biggest mistakes that litigants without attorneys make in prosecuting or defending DVROs is assuming that the evidence they have to support their case will be allowed to be presented, not knowing how to legally prevent the opposing side from presenting damaging evidence, and not following the strict legal rules of timing, service, notice, and post-hearing legal procedures. Remember, judges are not lenient on the rules of court, rules of law, or the rules of legal procedure just because a litigant is not aware of them.
Requirements for requesting DVROs: Domestic violence restraining orders are requested when the protected person and the person sought to be restrained are closely related, living together in a relationship (married or unmarried), or have dated romantically. This includes: all romantic relationships, domestic partnerships, spouses, siblings, parents, children, grandparents, grandchildren, aunts, uncles, and cousins. The legal forms required for obtaining or defending a domestic violence restraining order are found at the bottom right of this page or by clicking DVRO Forms:
For DVROs, the protected person will need to prove that he or she, or a member or his or her family, has directly or indirectly, been harassed, annoyed, molested, threatened, stalked, intimidated, or abused, by a close family member, or a current or former romantic partner, whether married or unmarried.
Emergency protective orders (EPOs & Ex parte hearings): If a person feels that he or she needs emergency protection from imminent harm to his or her family then that person should call 911. Thereafter, a police officer should investigate the matter and determine if the person needs immediate protection. If the police officer believes that emergency protection is needed the officer may issue an emergency protective order (EPO) on the defendant (assuming the defendant can be found). The EPO is a court order that serves to restrain the defendant from contact or communication. The EPO only lasts a few days and will expire on its own if the protected person does not follow up with seeking a DVRO within a few days.
Temporary restraining orders (TROs & Ex parte hearings): A domestic violence restraining order is often filed in court as an ex parte emergency hearing. Ex parte (pronounced like "party") means that only one side is heard; however, in practice, often times the opposing side will defend at an ex parte hearing if the defendant has time to appear in court on an emergency basis (usually the day after the restraining order papers are filed). Notice to the defendant on an ex parte hearing is usually accomplished by phone through a third person or the protected person's attorney. A temporary restraining order only lasts until a full hearing is had in court several weeks later. Not all requests for emergency hearing are granted. However, even if a temporary restraining order is not granted the court will still conduct the follow-up hearing for permanent restraining order at the subsequent court meeting.
Permanent restraining orders: A permanent restraining order may be granted after a full hearing on the merits. Note: a "permanent" domestic violence restraining order is not actually permanent. A "permanent" domestic violence restraining order only last for up to five years; however, in some cases, a domestic violence restraining order may be renewed for longer periods if the protected person timely files a request to renew the domestic violence restraining order and produces sufficient evidence to warrant such a renewal.
Note: Information and orders on domestic violence restraining orders is updated to law enforcement via the California Law Enforcement Telecommunications Systems (CLETS) and therefore available to all law enforcement. However, copies of a DVRO should be filed with a child's school, day care, physician, dentist, etc., to provide the best protection for any children involved in the case.
Prepare for the domestic violence restraining order hearings:Arrive early as parking and courthouse entry lines may cause tardiness that judge's frown upon and also causes extra stress. Dress like you are about to interview for a new job. Bring a copy of your proof of service, all paperwork filed, and a copy of any evidence you intend to present. If you are afraid of the opposing party inform the the clerk or the deputy of the court. If you do not have a family law attorney with you for your ex parte emergency hearing, or your request for permanent domestic violence restraining order, practice your strongest arguments while understanding that the judge will not entertain more than about fifteen mins at an ex parte hearing or more than two hours at a full hearing for permanent domestic violence restraining order.
Defense against a request for DVRO: The defendant in a DVRO case is entitled to the presumption of innocence. He or she has strong First Amendment Rights of Free Speech and Association and Fourth Amendment Rights to Privacy and the Right to Rear and Protect his or her children. At the same time, people have the right to be free from harassment by others. These rights are balanced in family law court and the defendant has a right to respond to any allegation that might affect his or her rights.
With that said, the most common defenses to DVRO include: silence, impeaching the plaintiff's evidence and properly objecting to the introduction of any damaging evidence. Impeachment of evidence includes demonstrating bias, prejudice, self-defense, alibi, legal justification for conduct (First Amendment Rights to Free Speech & Association, protection of others, etc.), lack of reliability (memory, trustworthiness of testimonial or physical evidence, foundation for photos, audio evidence, scientific evidence, etc.), lack of relevance, and more.
Note: when criminal protective orders (CPOs) are made in criminal court against a defendant and there are conflicting orders in a domestic violence restraining order the criminal protective orders generally prevail if there is a true conflict. For example, no-negative contact orders in CPOs and no-contact orders in a DVROs are not truly conflicting and therefore the defendant must have zero contact with the restained person. For more information on conflicting restraining order qustions please contact our criminal defense and family law attorneys for a free consultation.
DRVOs and child custody or visitations: If the protected person and the restrained person have children in common but the parties were never married then a paternity case (parentage action) may be filed simultaneously with the DVRO request or response. When child custody, visitation, or support is made part of a DVRO request the parties are usually sent to mediation. Advice on mediation is beyond the scope of this article but a party should always seek the advice of a family law attorney before attending child custody and visitation mediation.
Cautionary Note: If physical domestic violence is occurring in the home and in the presence of a child a parent may may face criminal prosecution if he or she does not file a domestic violence restraining order or file a police report against any person that places a child in danger for failure to protect the child (PC 273a(a)).
There are no fees associated with domestic violence prevention restraining orders by themselves. All forms must be filled out in blue or black ink. Make at least four copies of your paperwork (for filing, service on opposing side, a personal copy and one for your lawyer). Make at least five copies of all court orders (for schools, doctors, police, personal copy, opposing side, etc.).
Note II: All required paperwork must be served on the opposing party by someone that is not a party to the case, a process server, or the Sheriff. Blank copies of Response to Request for Domestic Violence Restraining Order (Form DV-120) must also be served on the restrained party. After the opposing party has been served do not forget to file the proof of service with the court (DV-200) or the judge will not hear your request for a domestic violence restraining order. Most importantly, have your Restraining Order After Hearing documents (Form DV-130) written up and filed with the court the day of the court hearing so that you have proof of the court's protective order as soon as possible.
If the restrained party did not show up to court on the hearing for permanent restraining order and the orders requested by the protected person at the hearing are the same as the judge's orders then the protected person may serve the judge's orders by mail (Form DV-250); however, if the orders at the hearing on permanent domestic violence restraining order are different then the protected person's request then the the defendant must be personally served the new orders (Form (DV-200). Never personally serve the orders yourself!
For more information about California domestic violence restraining orders, or divorce and family law issues, please contact the Divorce & Family Law Attorneys at Dorado & Dorado, APLC for a free consultation today.
909.725.8199
Wednesday, September 13, 2017
DUI Boating Defense HN 655(b), 655(c), & 655(f) Boating Under The Influence of Drugs or Alcohol
DUI Boating Under the Influence (BUI)
HN 655(b), 655(c), & 655(f)
The laws on the crime of boating under the influence of drugs or alcohol are found at California harbors and navigation code sections 655(b), 655(c), and 655(f).
The most common criminal charge of boating under the influence of drugs or alcohol is charged as HN 655(b). To prove that the defendant is guilty of HN 655(b), the district attorney must prove:
The defendant drove or operated a boat or boating vessel, and
While driving the boat or boating vessel the defendant was under the influence of drugs or alcohol, or a combination of both drugs and alcohol. If injury in alleged while BUI the district attorney will also need to prove that the defendant actually caused the accident (HN 655(f)).
HN 655(b) does not require that the defendant's blood alcohol concentration (BAC) reach 0.08% of more. Any amount of alcohol or drugs, no matter how small the amount might be, is sufficient to charge the defendant with boating under the influence if the amount of alcohol or drugs is sufficient to impair the defendant's ability to operate a boat safely.
When the defendant's BAC is above 0.08%, the defendant may also be charged with HN 655(c). It is not uncommon for boaters to be charged with both crimes.
HN 655(c) is known as the per se count, which means if the prosecutor can prove that the defendant's BAC was at least 0.08% while operating a boat then the prosecutor will not need to prove that the defendant's ability to operate the boat safely was impaired. The impairment will be presumed. If the defendant's BAC is below 0.08% while operating a boat the prosecutor will need to prove that the defendant's ability to operate a boat was actually impaired by alcohol.
HN 655(d) For commercial drivers of boats the legal limit is 0.04% BAC and is charged under HN 655(d).
For BUIs that involve drugs (no alcohol), the district attorney will need to prove that the drugs, whether legal or illegal, impaired the defendant's ability to safely operate a boat. BAC refers to alcohol; thus, for BUIs that involve drugs there is no per se count equal to HN 655(c). For BUIs involving drugs the district attorney will usually charge the crime as HN 655(e) DUI boating while addicted to drugs.
HN 655(f) For boating under the influence charges that result in injury to third person the defendant will be charged with HN 655(f), a felony.
Sentence & Penalties for DUI Boating
Boating under the influence of drugs or alcohol is a misdemeanor in California. BUI is often referred to as DUI Boating.
HN 655(b): Boating under the influence of drugs or alcohol, is charged as a misdemeanor. If found guilty of HN 655(b), the defendant may face up to 180 days in jail for a first offense.
HN 655(c): Boating under the influence of drugs or alcohol with a BAC of 0.08% or more, is charged as a misdemeanor. If found guilty of HN 655(c), the defendant may face up to 180 days in jail for a first offense.
HN 655(f): DUI boating with injury, is charged as a felony. If found guilty of HN 655(f) the defendant may face up to 3 years in prison.
Probation Sentences: Probation is a period of supervision in lieu of jail or prison. Terms of probation must be followed or the defendant will be in violation of probation and may thereafter be sentenced to jail or prison. Probation sentences may be available to the defendant in some BUI cases depending on the facts of the case and the defendant's criminal history. Suspended prison sentences and split prison sentences may also be available if the defendant is found guilty of felony boating under the influence crimes (PC 1170(h)).
In addition to a possible jail or prison sentence, if found guilty of boating under the influence the defendant may also suffer any of the following: probation or parole terms, mandatory boating safety classes, restitution, fines, professional license consequences, immigration consequences),loss of civil rights (including the right to own firearms for felony HN 655(f) convictions), civil lawsuits, forfeiture of boat, and more.
Note: DUI boating crimes are neither crimes involving moral turpitude, nor strike offenses under California's Three Strikes Law.
In some cases of DUI Boating it may be possible to reduce the BUI charge or have the case dismissed entirely. In other cases, it may be possible to have the sentence and penalties associated with the charge reduced.
DUI Boating Defenses
Common defense to HN 655 crimes include: insufficient evidence to prove that the defendant was operating a boat or vessel, illegal search and seizure, improper collection or preservation of blood or breath samples, statute of limitations, lack of causation for injury (for felony HN 655(f) crimes), unreliable administration of field sobriety tests, and more.
For more information on common defenses to crimes, including HN 655 crimes, please visit defenses.
If you are charged with BUI (DUI Boating), or HN 655, contact our criminal defense attorneys today for a free consultation. We will patiently review the facts of your BUI case and explain your rights and defense options. Call today!
909.913.3138
Thursday, December 1, 2016
How to Bail Someone out of Jail in California 909.913.3138 Criminal Defense Attorneys
How to Bail Someone Out of Jail in California (Also visit Bailing Out of Jail)
A person who has been arrested and charged with a crime may be required to post bail before being released from jail or custody. The process of posting bail is also known as posting bond.
Note: In some cases, the sheriff's department releases the defendant from jail without having the defendant post bond only to have bail ordered by a judge at a later court date. These are known as PC 825 release cases. See bottom right of this page for information on PC 825 release.
A bond is insurance that guarantees the defendant will appear in court. If the defendant fails to appear in court, the bond money is forfeited (more on forfeiture below).
Anyone can post bond for another person. There are two ways to post bail or bond. The most common way to post bail is to use a bail bond company; the second way is to stake the entire amount of the bail with the court.
Most people use a bail bond company because bail companies can secure a defendant's release from custody for a small fraction of the actual bail amount required.
When using a bail bond company the bondsman does all the work for the defendant but the bond company keeps a percentage of the bail amount as a fee; this percentage fee is also called the premium. The premium for bail bond companies is usually between five and ten percent (5-10%).
Note: Most bond companies offer discounts to defendants who have retained a private criminal defense attorney.
The good thing about bail bond companies is that the defendant does not have to come up with the entire bail amount. The defendant only needs to come up with the premium, with the balance of the bond being secured by promises or property.
In many cases, the bail bond agency will take payments towards the premium. Also, bail bond companies can accept credit cards or other forms of payment, whereas staking money with the court requires cash, cashier's check or money order.
The drawback to using a bail bond agency is that even if the defendant is found not guilty, or the criminal case is dismissed, the bail bond company keeps the premium.
For example: If the defendant's bail is $100,000, the defendant might find a bail bond agency willing to accept a five percent premium ($5,000). Furthermore, some bail bond companies will take as little as $1,000 down towards that five thousand dollar premium. Thus, in some cases, for $1,000 dollars the defendant can be released on a $100,000 bond. Of course, several factors will need to come together for this to occur, such as having a criminal defense attorney already retained and using the right bail bond agency.
The benefits of staking the entire amount of the bail with the court is that the defendant may be entitled to a return of the entire amount staked if he or she does everything the court orders him or her to do, namely appear in court at every hearing. The drawback to staking the entire bail amount with the court is obvious: you need a lot of money.
Most crimes are bondable offenses, except crimes for which the death penalty may be sought, I.C.E. hold immigration cases, and cases where the defendant has an active warrant or is otherwise in violation of probation.
Note: Immigration cases may require a separate federal bail bond. The Department of Immigration & Customs Enforcement (ICE) is a division of the Department of Homeland Security. ICE agents can hold a non-U.S. citizen in local jail even if the defendant has otherwise secured a bail bond. The ICE hold is lifted for inmates only after they obtain a separate immigration bail bond. Thus, sometimes, immigrants accused of crimes who intend to bail out of custody before their court date must secure bail...twice.
The amount of a bail bond that is required is first set by the arresting officer. The bail amount is predetermined by an established bail schedule.
For example, in San Bernardino County, the established bail amount for the crime of criminal threats [PC 422] is $50,000; for prostitution [PC 647(b)] is $5,000, and so on. Possible Enhancements to a criminal charge do not affect the bail schedule setting by the arresting officer. However, later, at court, the District Attorney may request an increase in bail based on an enhancement to a criminal charge. To learn how a crime might be enhanced, please contact the criminal defense attorneys at Dorado & Dorado at 909.913.3138.
The bail process takes a few hours at a minimum. Once the defendant's friend or family has hired a bail bond company the bondsman will deliver the bond to the jail. If the defendant has not yet been booked into the jail he or she will be separated from other inmates and then held separately until the bail bond process is completed. Booking the prisoner is the process of collecting statistical data about the inmate and assessing his or her risk level.
Note: If a defendant bails out of jail before his or her first court appearance (arraignment), the defendant's right to a speedy arraignment is waived and the defendant's original arraignment date is usually changed. The new court date is usually listed in the defendant's bail bond paperwork.
Modifying the Bail Amount:
As stated, the arresting officer sets the bail amount according to the county's bail schedule. Sometimes this amount changes before the defendant gets to court because the district attorney added or subtracted criminal charges or enhancements. Therefore, despite the fact that the arresting officer initially set the bail amount, the correct bail amount will be ordered by the judge at the defendant's arraignment.
If the defendant has already bailed out of jail on the amount set by the arresting officer and the DA adds criminal changes or enhancements, the defendant may need to post additional bail to remain free on bond.
Note: In cases where the defendant's bail is increased after the defendant has already bailed out of jail, the judge might allow the defendant to remain free on bail bond in the amount already paid so as to avoid economic waste. This argument, along with any argument concerning the defendant's danger to the community, risk of flight, and other bail factors, should only be made through a competent criminal defense attorney through noticed motion.
If the DA subtracts criminal charges or the judge allows the defendant to be free without bail or bond (own recognizance release [O.R.]) then the defendant is not entitled to a refund from the bail company for the amount unnecessarily paid.
For example, if the arresting officer set the defendant's bail bond at $100,000, and the judge allows the defendant to be released on his or her own recognizance, which means a release on promise of good behavior and without the need for a bail bond surety, the defendant is not entitled to a return of the premium paid to the bail agency.
It may be possible to lower or reduce the defendant's bail to an amount below the bail schedule. This is accomplished through a bail hearing where the judge considers the defendant's danger to the community and risk of fleeing the court's jurisdiction, among other factors. Of course, the DA may also ask for an increase in bail based on the same factors. The DA may also request an examination of the source of funds used to post bail or bond if the DA believes the money used to secure a bail bond was gained through illegal methods. This happens mostly in drug cases or gang cases.
Exonerated, Forfeiting, & Reassuming Bail Bonds:
When a person appears in court for every court hearing after bailing out of jail the judge may exonerate the bond. To exonerate a bond means that a bond is no longer required and the defendant will remain free on his or her own recognizance. This usually happens when a DA or judge lowers a criminal charge to one that does not require a bond or when the defendant has not violated any terms of bond release and a year has expired without resolution of the defendant's criminal case (bail bonds expire after a year from the date of purchase).
When a person does not appear in court as promised, or has committed a violation of a condition of bond release, such as leave the state of California, the bond may be forfeited. To forfeit a bond means the defendant will be taken into custody, or a warrant for the defendant's arrest will issue, despite the fact that the defendant already paid the bail.
To reassume the bond means that the bail bond was forfeited for some reason but is later reinstated by a judge. This can occur when the defendant's bond is forfeited due to the defedant's failure to appear in court, but later, the defendant appears in court with a very good excuse for why he or she did not appear at the earlier court hearing.
To learn more about how to bail someone out of jail in San Bernardino or Riverside county, or information on local jails, including phone number, address, and visiting hours, please contact the dedicated criminal defense attorneys at Dorado & Dorado, APLC, or visit any of the following sites listed on the right column of this page.
There is no fee for an initial consultation with our successful attorneys and we are available 24/7 to answer all of your questions.
In misdemeanor cases, a person is usually cited by an officer. The citation indicates that the defendant is ordered to appear in front of a judge at a later date to answer for the criminal charge in the citation. In misdemeanor cases where the defendant is arrested, the defendant is usually released on his or her own recognizance after being booked (or sober in DUI cases). This means that there is no bail bond necessary to insure that the person will appear in court as indicated on a citation. In misdemeanor warrant cases the defendant is usually held without bond until the first appearance in court (arraignment).
In felony cases, the arresting officer sets the amount of bail according to the bail schedule (See left side of this page for more information on bail schedules).
Despite the fact that the defendant has a bail, he or she may be released by the jail without paying the bail indicated. This happens in a few cases where, after an analysis by jail officials that:
- the defendant's criminal charge is not severe, and
- the defendant's personal and criminal history indicate that he or she is not a flight risk or danger to the community, and
- the jail is impacted or over-crowded with more serious criminal offenders, or
- the sheriff's department has failed to bring the defendant to jail within 48 hours of arrest (excluding holidays and weekends), or the district has failed to file criminal charges within that time (PC 825).
909.913.3138
For More Information on How To Bail Someone Out of Jail in California Please Visit Criminal Defense Lawyers
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