Clear Your Record and Move Forward: Everything You Need to Know About the California Fresh Start Act
Having a criminal record can often be a barrier to moving forward from past mistakes. Fortunately, the California Fresh Start Act makes it easier to expunge criminal records. This new law went into effect on January 1, 2021, and has already helped countless individuals.
In this post, we will discuss everything you need to know about the California Fresh Start Act, including how it works and who is eligible.
Example of the California Fresh Start Act in Action
One individual who has benefited from the California Fresh Start Act is Jane. Jane was arrested for a low-level drug offense several years ago, and despite completing her sentence, her criminal record continued to hold her back. She struggled to find employment, housing, and even faced discrimination in her personal life.
With the help of the California Fresh Start Act, Jane was able to automatically expunge her criminal record without having to go through the lengthy and confusing petition process. After her record was cleared, she was able to find stable employment, housing, and move forward with her life.
What is the California Fresh Start Act?
The California Fresh Start Act is a law that was signed into effect in September 2020. The act makes it easier for individuals with low-level criminal records to expunge their records, which can help them find better job opportunities, housing, and education.
The new law builds upon existing laws that allow individuals to petition for the expungement of their criminal records. The California Fresh Start Act expands on the existing law by making it easier to petition and automatically expunge eligible criminal records.
What Criminal Convictions are Eligible for Expungement Under the California Fresh Start Act?
The California Fresh Start Act applies to individuals with low-level criminal convictions. The following criminal offenses are eligible for expungement under the act:
- Crimes that are no longer considered crimes, such as marijuana offenses that are no longer illegal.
- Misdemeanors.
- Infractions.
It’s important to note that the California Fresh Start Act does not apply to felony convictions.
How Does the California Fresh Start Act Work?
The California Fresh Start Act streamlines the process of expunging criminal records. Eligible individuals can now automatically have their criminal records cleared without having to file a petition with the court.
To qualify for automatic expungement, an individual must meet the following conditions:
- The individual has completed their sentence or probation.
- The individual has no pending criminal charges or cases.
- The individual has not been convicted of any new crimes since their criminal conviction.
Under the California Fresh Start Act, eligible individuals will receive a notice from the court that their criminal record has been cleared.
The Process of Expunging a Criminal Record under the California Fresh Start Act
If you’re interested in having your criminal record expunged under the California Fresh Start Act, the following steps can guide you through the process:
- Gather all the necessary documentation: You will need to provide documents that show that you have completed your sentence or probation, as well as any other documentation required by the court.
- Determine your eligibility: Check to see if you meet the eligibility criteria for automatic expungement. If you’re unsure, consider consulting with an experienced criminal defense attorney.
- File your petition: If you’re not eligible for automatic expungement, you’ll need to file a petition with the court. Your attorney can assist you with this process.
- Attend your court hearing: If a hearing is required, be sure to attend and present your case to the judge.
How Can a Lawyer Help with Expungement?
While the California Fresh Start Act makes it easier to clear criminal records, the process can still be confusing and time-consuming. To ensure that you take advantage of the new law and complete the process correctly, it’s crucial to work with an experienced criminal defense attorney.
At Inland Empire Criminal Defense, we have helped numerous clients clear their criminal records and start afresh. Our team of experienced attorneys can assist you with your expungement request and ensure that you meet all the requirements.
An expert attorney from our team can help you understand your eligibility under the California Fresh Start Act, guide you through the documentation process, and prepare you for the court hearing. With us by your side, you can feel confident that you have the best legal representation and guidance.
Conclusion
The California Fresh Start Act is an essential law that makes it easier for individuals with low-level criminal convictions to clear their criminal records. This can have a substantial impact on the individual’s ability to find employment, housing, and education.
If you’re looking to have your criminal record expunged under the California Fresh Start Act, we encourage you to contact an experienced criminal defense attorney at Inland Empire Criminal Defense. Our attorneys can guide you through the process and help ensure that your request is granted by the court.
Don’t let your criminal record control your life. Take the necessary steps to clear your record and move forward with confidence. Call your local Ontario Criminal Defense Attorney today at the Inland Empire Defense 909-281-0465. Located in Ontario, California.
(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following:
(1) A separate violation of Section 23152 that was punished as a felony under Section 23550 or this section, or both, or under former Section 23175 or former Section 23175.5, or both.
(2) A separate violation of Section 23153 that was punished as a felony.
(3) A separate violation of paragraph (1) of subdivision (c) of Section 192 of the Penal Code that was punished as a felony.
(b) Each person who, having previously been convicted of a violation of subdivision (a) of Section 191.5 of the Penal Code, a felony violation of subdivision (b) of Section 191.5, or a violation of subdivision (a) of Section 192.5 of the Penal Code, is subsequently convicted of a violation of Section 23152 or 23153 is guilty of a public offense punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000).
(c) The privilege to operate a motor vehicle of a person convicted of a violation that is punishable under subdivision (a) or (b) shall be revoked by the department pursuant to paragraph (7) of subdivision (a) of Section 13352, unless paragraph (6) of subdivision (a) of Section 13352 is also applicable, in which case the privilege shall be revoked under that provision. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.
(d) A person convicted of a violation of Section 23152 or 23153 that is punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation under subdivision (b) of Section 13350.
If you have a prior felony conviction and are facing a driving under the influence (DUI) charge in California, the consequences can be severe. Under California Vehicle Code 23550.5, DUI with a prior felony DUI conviction, the penalties for a DUI offense can be significantly enhanced. If you or a loved one is facing a DUI charge with a prior felony conviction, it’s crucial to understand the potential consequences and your legal options.
Enhanced Penalties for DUI With Prior Felony Conviction
If you have been convicted of a felony in the past, any Driving Under the Influence (DUI) charge is considered an aggravated offense and will carry more severe penalties than a first-time DUI. This is because individuals with prior felony convictions are viewed as having shown disregard for the law and are assumed to pose a greater risk to public safety
If you have a prior felony DUI conviction and are convicted of a DUI, the penalties can be significantly enhanced. California Vehicle Code 23550.5 provides that a person convicted of DUI with a prior felony DUI conviction within the past 10 years will face increased penalties, including:
- A mandatory minimum of 120 days in jail (compared to 48 hours for a first-time DUI offense)
- A mandatory minimum of 18 months in a DUI education program (compared to three months for a first-time DUI offense)
- License suspension or revocation for up to four years
- Mandatory installation of an ignition interlock device (IID) for up to three years
- Potential vehicle impoundment
- Fines and fees that can exceed up to $1,000
In addition to these enhanced penalties, a DUI conviction with a prior felony conviction can also have long-term consequences, such as difficulty finding employment, obtaining housing, or even getting approved for a loan.
Legal Options for Defending a DUI Charge With Prior Felony DUI Conviction
If you are facing a DUI charge with a prior felony DUI conviction, you still have legal options for defending yourself. An experienced criminal defense attorney can help you explore the best possible defenses, such as:
- Challenging the legality of the traffic stop or arrest
- Questioning the accuracy of field sobriety tests, breath tests, or blood tests
- Arguing that the prosecution lacks sufficient evidence to prove guilt beyond a reasonable doubt
- Negotiating a plea bargain for reduced charges or penalties
Working with a skilled DUI defense attorney can make all the difference in the outcome of your case. A qualified attorney can examine the specific details of your arrest and charges and develop a strategic defense tailored to your unique circumstances.
Call the Inland Empire Criminal Defense Team
If you or a loved one is facing a DUI charge with a prior felony conviction, don’t wait to seek legal representation. Contact our experienced criminal defense team today to schedule a free consultation and discuss your legal options. Our attorneys have years of experience defending clients in California against DUI charges, and we are committed to fighting for your rights and freedoms. Call us now at 909.939.7126 to get started.
I. LEGAL DEFINITION
PC 27515: Straw-purchase of a firearm is the sale, loan, or transfer of firearm by an individual or a corporation to anyone whom the individual or the corporation knows or has reason to believe is not the actual purchaser, borrower, or transferee of the firearm, if the individual or corporation has knowledge that the firearm is to be subsequently sold, loaned, or otherwise transferred to avoid the criminal-law requirements applicable to firearm sales (PC 27540 and PC 27545).
In order to obtain a conviction for a violation of PC 27515, the prosecutor must prove beyond a reasonable doubt each of the following:
- You sold, loaned, or otherwise transferred a firearm to somebody.
- At the time you sold, loaned, or transferred the firearm, you knew or had to reason to believe that the person to whom you transferred the firearm was not the actual purchaser, borrower, or transferee of the firearm.
- At the time you sold, loaned, or transferred the firearm, you knew that the firearm is to later be sold, loaned, or transferred to avoid the requirements applicable to firearm sales.
PC 27540 lists the requirements a firearm dealer must comply with before delivering a firearm to a customer. PC 26545 set forth the requirements for the sale or transfer of firearms between two parties when neither is a licensed firearm dealer.
II. WHAT DOES IT MEAN
Simply put, you commit the crime of straw-purchase of firearm when you sell, loan, or transfer a firearm to somebody, knowing or having reason to believe that the person to whom you give the firearm is not the person who will actually use it, and knowing that the firearm is to be transferred again to avoid the requirements applicable to firearm transfers.
Example 1
John and his 16-year-old son Johnny go to the local sporting goods store to purchase a hunting rifle for Johnny’s birthday. Inside the store, John and Johnny speak with Tom, the store manager, whom they know because they all go hunting together. Johnny asks Tom most of the questions about the rifles on display, and after Johnny and John examine some of the rifles, Tom hears Johnny say “OK. I want this one.” while holding one of the rifles in his hands. Although John pays for the rifle with his credit-card, provides his ID to Tom, and fills the relevant paperwork, it’s clear from the interaction between John and Johnny that Johnny will be the person who will use the hunting rifle. Tom checks John’s ID and paperwork, and since everything is in order, Tom sells the rifle to John.
Did Tom commit PC 27515 – Straw Purchase of a Firearm?
No. From the interaction between John and Johnny, it’s clear that John purchased the hunting rifle for Johnny. However, Tom does not know whether John will retain control of the rifle and will hand it to Johnny only when they go hunting. Further, Tom has not reason to believe that the rifle is to be transferred to Johnny to avoid the requirements for firearm sales listed in PC 27540 and 27545.
Example 2
Tom is the store manager of a local sporting goods store. One day, as he walks back to the store after having lunch at a restaurant located across the street, Tom notices a young White female getting out of a small beat-up sedan with an Idaho license plate and walking up to the driver’s passenger window of new pick-up truck with a Mexico license plates. Tom sees the White girl speaking briefly to the two Hispanic males inside the pick-up truck, then the driver of the pick-up truck hands the White female what appeared to be a folded white envelope. A few minutes after Tom is back in the store, the White female parks her car in front of the store, walks in, and requests to purchase five pump-action shotguns. She reads tentatively the make and model of the shotgun from a small sheet of paper, and when Tom asks her a follow-up question about ammunitions, the White female responds with a blank stare, looks around, and mumbles “I don’t know”. The White female provides her ID, pays in cash, and when her paperwork comes back OK, she clumsily places the shotguns inside a shopping cart and leaves the store. Tom sees through his store’s windows that as soon as the White female gets to her car, the two Hispanic males arrive, park their pick-up truck ahead of the beat-up sedan, and load the shotguns from the shopping cart directly into the cabin of the pick-up truck. Then, the driver hands an envelope to the White female and the pick-up leaves, while the beat-up sedan leaves in the opposite direction.
Did Tom commit PC 27515 – Straw Purchase of a Firearm?
Most likely, no. Although it’s clear from the circumstances –1) the White female’s clear lack of familiarity with the make or model of the shotgun, with the ammunitions, and with the handling of the shotguns, 2) the number of shotguns she purchased, and 3) the payment in cash – that the White female is not familiar with the firearms she purchased and that, most likely, she is not buying the firearms for herself, Tom can reasonably argue that he only suspected that the White female was a straw-buyer. However, under California law, to convict a person of PC 27515, the prosecution must prove that the person transferring the firearms had knowledge of the intent to avoid the requirements listed in PC 27540 and 27545. Tom’s suspicions are confirmed when he sees the White female giving the shotguns to the two Hispanic males rights outside the store. However, at that point Tom had already sold the shotguns to the White female.
III. PENALTIES
Straw-purchase of a firearm is a “wobbler”, which means that it can be charged as a misdemeanor or as a felony. When PC 27515 is charged as a felony, a conviction may result in a sentence to county jail for period between 16 months and three years; a conviction for PC 27515 as a misdemeanor, can result in a sentence to County Jail for up to one year. Either way, you would have to serve at least 50% of your sentence. Whether you receive a jail sentence, or a probation sentence, depends on many factors such as the specific facts of the case and your prior criminal record, if you have any. PC 27515 is not a strike offense under California’s Three Strikes Law. It is also not a Sex Offense requiring Sex Registration under PC 290. Finally, this is not a crime of moral turpitude, so it would not directly impact you in Immigration Court. However, if you are licensed firearm dealer, a conviction for PC 27515 may have negative consequences on your license to sell firearms.
IV. DEFENSES
- Insufficient Evidence. The most common defense used in criminal defense is that there simply isn’t enough evidence to convict you of the charge. For example, there may be insufficient evidence to prove that you had knowledge that the firearm you sold was to be later transferred in order to avoid the requirements listed in PC 27540 and 27545.
- Mistake of Fact. In connection with a PC 27515 charge, a mistake of fact would be a mistake by the police officer in writing down the serial numbers of firearms they recovered after they arrested a straw-purchaser, leading them to mistakenly think that the firearms were purchased at your store.
- Violation of Your Rights. This could happen in many ways, such as when the police recover the firearms during an unlawful search of a car or house.
V. CONCLUSION
Being arrested and possibly charged with PC 27515 – Straw-purchase of a Firearm can have devastating consequences on your reputation, both personal and professional, may cost you a lot of money in fines and restitution, and might cause you to spend some time in county jail. This is why it is crucial that you immediately contact our PC 27515 attorneys if you have concerns that you may be investigated for Grand Theft. If charges have not yet been filed, we will immediately contact the assigned investigators and prosecutors to assess if law enforcement has sufficient evidence to even file charges, so that we may minimize the risks to your reputation, finances, and freedom. You, or your loved ones, cannot take a chance on such a serious charge. Our Ontario PC 27515 attorneys has successfully defended thousands of people charged with crimes throughout the entire Inland Empire. Call your local Ontario Criminal Defense Attorneys today at the Inland Empire Defense 909-939-7126. Located in Ontario.
After a DUI: What to Do Next to Minimize the Impact
If you’ve been charged with driving under the influence (DUI) in the Inland Empire, it’s important to take immediate action to protect your rights and interests. What you do in the days following your arrest can significantly impact the outcome of your case. It’s important to keep in mind that every DUI arrest triggers two separate proceedings: a criminal court case and a DMV administrative hearing. The DUI Defense team at Inland Empire Criminal Defense has a list of action steps you can take to help navigate the legal process and minimize the potential consequences of a DUI conviction.
Request a DMV Hearing in Time
As soon as you are arrested for a DUI, you have only 10 days to request a special DMV hearing. Failing to do so will automatically result in the suspension of your driving privileges. This process can be confusing, and neither the police nor the DMV make it any easier. However, a skilled California DUI defense attorney can help you navigate the process and ensure that your driving privileges are not suspended.
Document Everything
It’s important to document everything that happened during the arrest, from the moment you were pulled over to the transportation to the police station, and any field sobriety tests and chemical breath tests that were conducted. All of this information may be useful for exploring the defenses available to you in your administrative license hearing and in your criminal case. Even if police officers conduct DUI stops all the time, they may make mistakes or violate your rights, and an experienced DUI defense attorney can help you build a solid defense.
Act Quickly to Keep Your License
After a DUI arrest, the police will take away your driver’s license and give you a temporary license to drive for 30 days. However, you only have 10 days to request a formal administrative license suspension hearing from the DMV to keep your license from being automatically suspended. Your California DUI lawyer can make sure you file your DMV hearing request on time and represent you before both your DMV hearing and your criminal court hearing.
Get Help from an Experienced DUI Defense Attorney
It’s important to act quickly and contact your DUI lawyer within 10 days of your arrest to have the best chance of keeping your license to drive and having your charges reduced or dismissed. An experienced California DUI defense attorney can investigate your case, develop a defense strategy, and represent you in court to ensure the best possible outcome for your case. An experienced DUI defense attorney from the Inland Empire Criminal Defense can be by your side and ensure that you don’t have to face the judge and prosecutor alone.
Remember, just because you were arrested for a DUI does not mean you have to be convicted. With the help of an experienced DUI defense attorney, you can build a strong defense and fight to protect your rights and your future. Call us today at 909-939-7126.
Take Action Now, Don’t LOSE your license. Free Consultation.
I. PC 33410: Possession of a Silencer
Legal Definition: “Any person, firm, or corporation who within this state possesses a silencer is guilty of a felony and upon conviction thereof shall be punished…”
To find you have committed the enhancement under PC 33410, the prosecution must show that:
- You possessed a firearm; And
- That firearm had an attached silencer.
II. What does this mean?
As assumed by the name, a silencer is a device affixed to a gun that reduced or significantly eliminates the sound of a gun when it fires. Silencers are often used in movies, as a means of killing another person without others hearing the gun go off. They are often made and used specifically to fire a weapon without the fear of witnesses hearing the blast and knowing a criminal act has occurred. Keep in mind, this charge is not for using the silencer on a firearm, it’s for simply possessing it. That means, you could be pulled over for speeding, and possibly arrested for maybe driving on a suspended license under VC 14601.1(a), and police find on your possession a silencer, which can now land you in much deeper trouble simply for possessing it.
This violation does not apply to the following sections under PC 33415:
(a) The sale to, purchase by, or possession of silencers by agencies listed in Section 830.1, or the military or naval forces of this state or of the United States, for use in the discharge of their official duties.
(b) The possession of silencers by regular, salaried, full-time peace officers who are employed by an agency listed in Section 830.1, or by the military or naval forces of this state or of the United States, when on duty and when the use of silencers is authorized by the agency and is within the course and scope of their duties.
(c) The manufacture, possession, transportation, or sale or other transfer of silencers to an entity described in subdivision (a) by dealers or manufacturers registered under Chapter 53 (commencing with Section 5801) of Title 26 of the United States Code and the regulations issued pursuant thereto.
III. Penalties
A violation under PC 33410 is a felony only offense. This means the charge can never be reduced to a misdemeanor, which subjects to additional restrictions such as the right to vote, the ability to ever own or possess a firearm, as well as new violations for possession a firearm which would then be in violation under PC 29800 (Possession of a Firearm of A felon). If you are convicted of this section, you could be sentenced to upwards of 16 months, 2 or 3 years in a State Prison. You would be required to serve at least 50% of that time in custody. You could also potentially be sentenced to something less than State Prison, with something such as Formal Probation, depending on the facts of your case, and if your attorney has the ability to successfully negotiate for that in your situation. You are also subject to a fine of up to $10,000, and loss of the silencer/weapon you had.
This is not a strike offense under California’s Three Strike Law or a Sex offense under PC 290. This may affect your Immigration status since it involves a firearm. Also, given that this is a felony only offense, you would likely lose your Professional License upon a conviction for this charge.
IV. Common Defenses
A person can falsely accuse you of a violation of possessing a silencer. This can happen based on a person’s anger, jealousy or revenge that they may feel for you. Because of this, they decide to contact the police, and either plant or say they saw you with a silencer that you may never have had. It makes it more difficult if you have a large gun collection and like to assemble and disassemble guns for your own enjoyment. A person could falsely claim that you have a silencer or plant one in your possession, and you could ultimately lose not only your freedom but your entire gun collection upon arrest.
Another defense is the defense of insufficient evidence to prove you guilty of a crime. For example, the police may assume that you have some addition made to your firearm that looks to be a silencer, but it is not in fact a silencer. If it is determined that the item you are using is not a silencer nor used as a silencer, then you cannot be found guilty of this charge, as there would be insufficient evidence.
There also could be an issue later when you are arrested by police, if the police violated your rights guaranteed under the 4th Amendment. If, for example, police were to stop you on a street, simply because of your race, but lacking probable cause to detain or arrest you, then, if later a silencer is recovered on your person, your Criminal Defense Attorney could possibly argue that this was an illegal stop, and they can file a motion under PC 1538.5 to have the silencer found thrown out of your case. Given that the silencer possession is the crime, your charge here would likely be dismissed. This would not preclude further prosecution or other charges you may be facing in your case.
V. Call Today
A conviction under this second can surrender your freedom, and your second Amendment Rights to owning a firearm for your life. It is something that a good attorney can negotiate to either drop the charge, or alter the charge to a non-felony to save your future. Our Ontario PC 33410 attorney has successfully defended hundreds of people charged with firearm crimes under PC 33410. Call your local Ontario Criminal Defense Attorney today at the Inland Empire Defense 909-939-7126. Located in Ontario.
I. PC 222: Drugging a Victim to Commit a Felony
Legal Definition: “Every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony punishable by imprisonment…”
To be found guilty under PC 222, the prosecution must prove that:
- You administering some kind of controlled substance or other kinds of intoxicating substance to another;
- You did so with the intent to enable or assist yourself to commit a crime against that now unconscious victim;
AND
- You did this with the intent to commit a felony crime with the now unconscious victim.
II. What does this mean?
Under this section, it criminalizes people who attempt to drug another person in order to commit a crime against them. This can also be things such as roofies, that person may put into another’s drink may be at a party or a bar. If, for example, a person does this, and they are caught, they can be arrested for violating this section, despite the fact that the person may not have even taken the drink with the roofie in it. So long as it is your intent to make that person become unconscious to commit a felony against them, then you could be charged with PC 222.
There is a requirement as well that the person is using that substance in order to become successful in committing a felony against their victim. This section would not preclude additional charges if that felony is successfully completed. For example, if a person was drugged, or chloroformed by you, and you were to commit a Rape, then you would be charged for Rape, as well as a violation for this section since you had drugged them in order to commit the felony offense, which is Rape.
Obviously, it must be shown that you were intending to do this drugging to commit a felony. If the intent was simply to knock a person unconscious or commit a misdemeanor offense, such as Sexual Battery, that would only be a misdemeanor charge, and would not be sufficient for a felony. However, you would still be charged with the misdemeanor offense, even if the prosecution cannot prove a felony was to be attached to this. Keep in mind, that given the severity of what these accusations are, it is almost a guarantee that the prosecution will find a way to show you were intending to commit a felony against another person by drugging them.
III. Penalties
A conviction for Spousal Rape under PC 222 is a felony in California. If you are convicted of Drugging a Victim with the Intent to Commit a Felony, you could be sentenced to upwards of 16 months, 2 or 3 years in a State Prison. You would be required to serve at least 50% of that time in custody. Also, as stated above, this is a charge in addition to any other felony charge you accomplished after drugging the victim. You could possibly be required to register as a Sex Offender if a Judge were to determine that the crime was sexually motivated by you when you committed it.
This is not a strike offense under the California Three Strikes law. You would also likely face a loss of your Professional License, and mandatory Deportation in Immigration Court, given the lengthy prison term, and these involve crimes of deception.
IV. Common Defenses
- Statute of Limitations
- Violation of Rights
- Insufficient Evidence
- Coerced Confessions
- False Accusations
In many circumstances, these charges can be defended when based, as many examples before have stated, at a party. In any kind of party setting, there are ways in which a person can heavily intoxicate themselves to such an extent that they don’t really know what happened. Two people could meet at a college party, hit it off, and end up in a bedroom together. The other party could then later claim that they must have been drugged because they blacked out. There, you would be dealing with false accusations. It may be relatively innocent that the person believes that they were drugged, but some people can confuse intoxication with something much worse.
If in that scenario, they accuse you, and you get arrested a good defense would be to show if the alleged victim actually was drugged. Did they go to the police and have their blood tested to see if anything unnatural was in their system? If not, then it simply because of a “he said vs. she said” statement. Those types of cases, although easy to defend, still can be filed against you, and you could still be dealing with a criminal case and possible jail time. The lack of a proper drug test could help, but it could also be explained that any delay in reporting by the complaining witness, and thus no drugs in her system, could have been done for other reasons, such as fear, shame, among others. So, in essence, despite it not being a complete defense, it does go to at least assist you in fighting the fact that you drugged another person when in reality they were just self-intoxicated by alcohol based on their own decision making that they later regretted. This is a common occurrence, that can ruin people’s lives.
A person who, for example, attempts to chloroform another person, would not be able to essentially say it, in that case, is a false accusation. However, it still required to prove that you intended to commit a felony charge against the victim who is now unconscious. Failing to show that, in this circumstance, can lead to there being insufficient evidence to prove you guilty of the felony, and therefore insufficient evidence to prove you guilty of a violation under PC 222. Though this is less common, the existence of this, and the other controlled substances you can be accused of using, there are still possible defenses available to you in your case.
V. Call Today
Being accused of a felony crime is extremely serious, and life changing to most people. Given the general examples of how this can happen, a young persons’ life can be destroyed entirely based on false accusations. Although there are other ways this crime can be accomplished, such as seen in movies with things such as chloroforming a victim, most commonly this is charged based on allegations that person roofied another. Our Ontario PC 222 attorney has successfully defended thousands of criminal offenses in California including charges under PC 222. Call your local Ontario Criminal Defense Attorney today at the Inland Empire Defense 909-939-7126. Located in Ontario.
I. VC 23152(g): Driving Under the Influence of a Combination of Alcohol and Drugs
Legal Definition: “(g) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”
To be found guilty of driving under the influence of a drug under VC 23152(g), the prosecution must show that you:
- Drove a Motor Vehicle;
- You drove under the influence;
AND
- You were under the influence of a combination of alcohol and drugs.
II. What does this mean?
A person is under the influence if, as a result of taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.
It doesn’t matter if the drug is proscribed to you either, so long as it impairs your ability to drive, while you are driving. Impairment is important, for example, someone taking headache medicine for a headache, would not put you under the influence, despite the fact that it would be considered a “drug”. If the drug does not cause impairment, then it is not a Drug DUI offense. Also, unlike a DUI found under VC 23152(b), there is not a “per se” limit of drugs that could be in your system to cause impairment. In other words, there is not a specific amount of drug, whether it be legally proscribed, or something such as cocaine or marijuana, that must be in your system to prove impairment, though this is something that is being studied and worked on to determine if that limit can be found.
This charge also does not have a “per se” limit for alcohol, so long as there is some actual in your system, mixed with a drug, and the officer feels you are impaired, you can be charged under this section. Imagine a scenario where you take sleeping pills and have a glass of wine, even if separately they may not cause you to be under the influence, if their combination causes you to be unable to safely operate a vehicle, then you can be arrested and charged under this section.
And again, like drinking and driving, the crime comes from an impairment, not simply taking a legal or illicit drug and drinking. If you smoke marijuana and drink a beer and drive, but your driving is not affected, then you would not be guilty of a Combination DUI. Another difference here instead of regular alcohol DUIs is that when it is suggested that a person may be under the influence of a drug, a blood test must be done since a breath test will not be able to determine the drugs in your system. A breath test can be used to determine the amount of alcohol in your system, however.
III. Penalties
A conviction under VC 23152(g) is the same as a misdemeanor DUI. The maximum exposure can be up to 6 months in a County Jail. You must serve at least 50% of that time in custody. If this is not your first DUI offense, the penalties go up, those can be found here. Finally, if you have sufficient prior DUIs or a prior felony DUI, you can be charged under this section as a felony as well, which can be found here.
This is not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. You could also face a loss of your Professional License if convicted, and if you are not a legal resident, you would face Deportation in Immigration Court since DUIs are generally held to be very serious crimes in immigration and licensing cases.
IV. Common Defenses
The most common defense to a Combination Drug/DUI case, since there is no “per se” limit to the combination of drug and alcohol use while driving, is to claim that you were not actually unable to safely operate a motor vehicle. A person can seem under the influence for a myriad of reasons. A person could be just getting off work, they could be tired, lacking sleep, stressed, or nervous simply being around police. It is not enough to show that there is some combination in your system of alcohol or drugs, it’s also that you are so impaired by that combination, that you cannot safely drive, and are therefore under the influence. Failing to show that your combination has made you under the influence, would act as a defense, showing there is insufficient evidence to prove you guilty of this crime.
Another common defense would be that the officer who stopped your car had violated your rights under the Fourth Amendment. In California, if there is an incident where police made an illegal or unlawful stop of you, then under PC 1538.5, you can move to suppress any evidence that came after your illegal stop. This means any admissions you made that you consumed any drugs or blood test you took, which would, in turn, win you your case. You need an experienced attorney to review your case for this reason, as unlawful stops are an all too common aspect of DUI Law.
V. Call Today
A DUI can have a devastating impact on your life and your future. DUI crimes are heavily prosecuted in California, and the fines, classes, and jail associated with them are always on the higher end than a typical criminal offense. Not every attorney knows how to defend DUI cases, and that is what is needed to either fight the charges or work out a good plea bargain for your case. These are charges that must be heavily defended against. Our Ontario VC 23152(g) Driving Under the Influence of a Combination of Alcohol and Drugs attorney has successfully defended hundreds of DUI crimes throughout the entire Inland Empire. Call your local Ontario Criminal Defense Attorney today at the Inland Empire Defense 909-939-7126. Located in Ontario.
I. PC 262: Spousal Rape
Legal Definition:
“(a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
(1). Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (2). Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (3). Where a person is at the time unconscious of the nature of the act, and this is known to the accused….”To be found guilty under PC 262, the prosecution must prove that:
- You committed sexual intercourse against another person without their consent;
AND
- You were married to that person at the time of sexual intercourse.
II. What does this mean?
You can be charged for having sex with your spouse without their consent in the State of California. Spousal Rape is prosecuted very similarly to that of Rape laws found under PC 261. Rape occurs when you have sex with another person, who does not consent to the sexual encounter, and you accomplished that sex act by:
- Force or fear: force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.
- Future threats of bodily harm: threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that you would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.
- Threat of official action: threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has the authority to incarcerate, arrest, or deport. The woman must have reasonably believed that you were a public official even if he was not.
Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Actual ejaculation by you is not required, nor a defense to the charge of rape. To consent, a woman must act freely and voluntarily and know the nature of the act. A requirement of this charge is that you are married to someone that you are accused of rape. Otherwise, this would just be the standard Rape offense. However, by being a spouse accusing you, this charge can many times be the basis for false accusations. False accusations came from jealousy, anger from one spouse cheating on another, or even to gain an advantage in a divorce proceeding.
III. Penalties
A conviction for Spousal Rape under PC 262 is a felony in California. If you are convicted of Spousal Rape, you could be sentenced to upwards of 3, 6, or 8 years in State Prison. You would be required to serve a minimum of 80% of that time in Custody. You would also be subject to lifetime Sex Registration under PC 290, and you would be forced to pay fines up to $10,000 alone in criminal court. This does not mean you cannot be subject to civil fines and damages if your spouse were to sue you for emotional harm from the rape.
These are penalties that are in addition to any other underlying Rape charges you may face. This is a strike offense under the California Three Strikes law. You would also likely face a loss of your Professional License, and mandatory Deportation in Immigration Court, given the lengthy prison term, and that these are Serious and Violent felonies in the State of California.
IV. Common Defenses
- Statute of Limitations
- Violation of Rights
- Insufficient Evidence
- Coerced Confessions
- False Accusations
Many times the most common reason for an accusation for Spousal Rape involves a person trying to gain an advantage over their spouse based on a messy breakup between the two. The couple might enjoy sex very rough, and that can leave bruises and marks. Those bruises and marks can then be told to police that you were raped, and your life can be ruined. In cases with false accusations, you can find the motive, and when you can find a motive, the truth begins to come out, and the Prosecution’s case begins to unravel.
In addition, if you have consent from the spouse before engaging in sexual intercourse with them, that can also act as a defense to the charge. If the other person withdraws consent during the sexual intercourse, it could still be considered rape. However, it must be shown that the withdrawal was clearly communicated to you, otherwise, you cannot be convicted for rape. It cannot be rape if the person simply changes their mind, and does not articulate that change to you in any way.
V. Call Today
Spousal Rape is one of the more serious sex crimes that exist in California. There is generally not any kind of circumstance where you would avoid custody time if you are found guilty under PC 262. Rape is serious and seriously prosecuted. This is an extremely serious, and life-changing charge that you are facing. But you do not need to face that charge alone. Our Ontario PC 262 attorney has successfully defended many Sex crimes in California including charges under PC 262. Call your local Ontario Criminal Defense Attorney today at the Inland Empire Defense 909-939-7126. Located in Ontario.
I. VC 23152(c): Driving While Addicted to Drugs
Legal Definition: “(c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.”
To be found guilty of driving under the influence of a drug under VC 23152(c), the prosecution must show that you:
- Drove a motor vehicle
AND
- While you were driving, you were addicted to a drug
II. What does this mean?
A person is under the influence if, as a result of taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances. However here, do not need to actually be under the influence, to be found guilty of this charge.
The drug you are addicted to does not necessarily need to be illegal drugs such as heroin or cocaine, it can even be prescription drugs that are legally prescribed to you. To become a person who is addicted to drugs, it would mean you have become completely physically dependent on a drug, without use, would lead to physical withdrawals, that you have also developed such a strong tolerance by overuse and would need higher doses to have any effect on you, and that you have become emotionally dependent on the drug and the feeling and need to take the drug becomes a compulsive need.
III. Penalties
A conviction under VC 23152(c) is the same as a misdemeanor DUI. The maximum exposure can be up to 6 months in a County Jail. You must serve at least 50% of that time in custody. If this is not your first DUI offense, the penalties go up, those can be found here. Finally, if you have sufficient prior DUIs or a prior felony DUI, you can be charged under this section as a felony as well, which can be found here.
You are also subject to the same driver’s license penalties as you would under a standard DUI charge.
This is not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. You could also face a loss of your Professional License if convicted, and if you are not a legal resident, you would face Deportation in Immigration Court since DUIs are generally held to be very serious crimes in immigration and licensing cases.
IV. Common Defenses
There are numerous defenses available for a DUI offense. Your attorney can attack the merits of the case, such as arguing that you were not an actual addict. It’s very difficult to make a determination that you are “addicted” to a drug, as opposed to say you are under the influence of a drug or alcohol, so that leaves a lot of room for argument in your case. If it cannot be found that you were actually addicted to a drug, then there would be insufficient evidence to prove you guilty of this crime.
Another common defense would be that the officer that stopped your car had violated your rights under the Fourth Amendment. In California, if there is an incident where police made an illegal or unlawful stop of you, then under PC 1538.5, you can move to suppress any evidence that came after your illegal stop. This means any admissions you made that regularly took or consumed drugs, or what those drugs may be, the blood test you took, which would, in turn, win you your case. You need an experienced attorney to review your case for this reason, as unlawful stops are an all too common aspect of DUI Law.
V. Call Today
A DUI can have a devastating impact on your life and your future. DUI crimes are heavily prosecuted in California, and the fines, classes, and jail associated with them are always on the higher end than a typical criminal offense. Not every attorney knows how to defend DUI cases, and that is what is needed to either fight the charges or work out a good plea bargain for your case. These are charges that must be heavily defended against. A commercial driver will lose their license, their job, and their career if convicted of a DUI. Our Ontario VC 23152(c) Driving While Addicted to Drugs DUI attorney has successfully defended hundreds of DUI crimes throughout the entire Inland Empire. Call your local Ontario Criminal Defense Attorney today at the Inland Empire Defense 909-939-7126. Located in Ontario.
I. PC 264.1: Rape in Concert
Legal Definition: “The provisions of Section 264 notwithstanding, in any case in which the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261, 262, or 289, either personally or by aiding and abetting the other person, that fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, the defendant shall suffer confinement in the state prison…”
To be found guilty under PC 264.1, the prosecution must prove that:
- You personally committed a forcible rape and voluntarily acted with someone else who aided and abetted its commission;
OR
- You voluntarily aided and abetted someone else who personally committed forcible rape.
II. What does this mean?
Rape occurs when you have sex with another person, who does not consent to the sexual encounter, and you accomplished that sex act by:
- Force or fear: force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.
- Future threats of bodily harm: threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that you would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.
- Threat of official action: threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has the authority to incarcerate, arrest, or deport. The woman must have reasonably believed that you were a public official even if he was not.
Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Actual ejaculation by you is not required, nor a defense to the charge of rape. To consent, a woman must act freely and voluntarily and know the nature of the act. It does not need to be shown that you and the other person had made an agreement or plan to commit a rape, all that matters is that it happens with one person committing the act, with the aid of another. Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. You also do not have to physically assist in the commission of the crime, all that is required is that you intend for the crime to be committed and you instigate or encourage the perpetrator to commit it.
This section is also referred to as “gang rape”. This can be done with something as simple as a person committing a rape, and you go to lock the doors, or act as a lookout, to make sure that no person hears. This would aid the commission of the rape, even if you do not ever touch the other person. You can be convicted of rape in concert if you were at the general scene of the rape and aided and abetted another person in accomplishing the act, even if you did not personally participate in the act or were not personally present at the exact scene of the act.
III. Penalties
A conviction under PC 264.1 is a felony only offense, meaning if you are convicted of this charge, you could be sentenced to State Prison. Your custody time would be at a minimum of 80% that you would serve in custody. Your maximum exposure depends on what subsection you are convicted of below:
These are penalties that are in addition to any other underlying Rape charges you may face. This is a strike offense under the California Three Strikes law, and it is also a Sex Offense under PC 290. You would also likely face a loss of your Professional License, and mandatory Deportation in Immigration Court, given the lengthy prison term, and that these are Serious and Violent felonies in the State of California.
IV. Common Defenses
You can defend against a charge if you are alleged to have aided a person in the crime of gang rape if you can show that you withdrew from the crime. The way you can withdraw is you must make it unequivocally clear that you are withdrawing from the crime to all other members, and you are also required to do everything in your power to prevent the crime from happening. If you are the person committing the rape with the aid of another, this defense is not applicable to you, it only works with the person who does not commit the act, but instead aids and abets the act. It must be made clear that you are intending to not participate in the crime, and it then becomes a factual dispute whether the work you did to prevent the crime from happening is sufficient. Calling the police, trying to fight the person off of committing the rape crime, among other options, would generally be sufficient. However this issue is highly arguable, so having an experienced criminal defense attorney working on your case, can assist in showing your withdrawal from the crime itself.
You can also show that you did not aid and abet the crime. If, for example, you commit a burglary, and a person is present that gets tied up by the other party. When you are intending to leave, the other party decides to commit a rape. If you leave the scene, then you can likely, through your attorney, make the argument that you never intended to aid and abet that rape that took place. Not only did the first party come up with the idea themselves, but you left before it took place, because you were not willing to assist them in any way. In that circumstance, there would be insufficient evidence to find you guilty of aiding and abetting a Gang Rape, since you were not participating or inducing or encouraging the behavior. Your attorney uses this as a defense, showing that with insufficient evidence against you, your charges should be dismissed.
V. Call Today
Rape in Concert is one of the more serious sex crimes that exist in California. There is generally not any kind of circumstance where you would avoid custody time if you are found guilty under PC 264.1. As noted in the Penalties section, if this involves a minor, the sentence can jump all the way to 14 years, based on your criminal history as well. This is an extremely serious, and life changing charge that you are facing. But you do not need to face that charge alone. Our Ontario PC 264.1 attorney has successfully defended many Sex crimes in California including charges under PC 264.1. Call your local Ontario Criminal Defense Attorney today at the Inland Empire Defense 909-939-7126. Located in Ontario.