Orange County Criminal Defense Lawyer Rudolph E. Loewenstein HomeGeneral FAQs 1
- What is an expungement and how do I get it?
- You've just been arrested - What should you do?
- You are under investigation or think you may be arrested - What should you do?
- Bail
- What Is The 3 Strikes Law?
- What Is A Hung Jury and How Can That Result in a Mistrial?
- What Laws Limit the Ability of Police to Search Cars?
- What Is Aiding and Abetting? - What is an Accomplice?
- What Are Alternatives to Jail?
- What Happens When You Get A Camera Ticket?
1. What is an expungement and how do I get it?
An expungement allows you to withdraw your plea, enter a not guilty and get the case dismissed.
To be eligible you must successfully complete probation or have probation terminated early and not have picked up any new offenses. If no probation was ordered you are eligible 1 year after the judgment was pronounced. You must petition the court to get an expungement.
You are NOT eligible for an expungement if:
1. you were convicted of a felony and sentenced to state prison
2. you were convicted of certain sex offenses
3. you were convicted of certain misdemeanor traffic violations
A dismissal (due to an expungement) does not eliminate all record of a conviction. It still allows:
1. conviction records to be made available to the public
2. licensing agencies to use the conviction in their licensing decisions
3. the conviction to disqualify an individual from getting a foster care license
2. You've just been arrested - What should you do?
It is crucial that you maintain your 5th amendment right to remain silent until you have a chance to speak to a lawyer. Despite what you may think, is not likely you will be able to explain your way out of the situation and your attempts to do so may lead to irreparable damage. Contact a lawyer immediately to protect your rights and fight for you. It cannot be stressed enough that the quality of your representation has a direct effect on the outcome of your case.
3. You are under investigation or think you may be arrested - What should you do?
Once again, it cannot be emphasized enough how important it is to have an experienced lawyer act as a buffer between you and the police. Mr. Loewenstein has frequently initiated contacts with the DA and the police that have prevented the case from being filed at all. If the case is going to be filed, Mr. Loewenstein can arrange for you to surrender yourself, saving you the embarrassment of being arrested in front of your friends, family, neighbors or at your place of employment in front of your co-workers. Early intervention can also be instrumental in lowering your bail, saving hundreds or thousands of dollars.
The bail amount is set at the jail when you are arrested and is determined according to a bail schedule which depends on the type of crime you are accused of. It is presumed by the court to be correct. If you pay the entire amount of the bail and you DO show up in court as ordered the bail is fully refundable.
However, most people use a bail bondsman who will generally charge 10% of the amount of the bail as his fee. The money paid to a bail bondsman is like an insurance policy that you will show up in court. This amount is NOT refundable. An experienced lawyer may be able to arrange for a lower percentage from the bail bondsman. Mr. Loewenstein has numerous contacts in the bail bond industry and can help you secure bail at a lower percentage. In addition, Mr. Loewenstein has argued successfully to lower the scheduled bail amount on numerous occasions. If he is contacted early enough, Mr. Loewenstein has done this by discussing the amount with officials at the jail or, if necessary, later at the arraignment with the judge.
You can also be released without paying any bail. This is called an O.R., meaning you are released on your Own Recognizance. Said more simply, you are released on your written promise to appear in court.
How is bail posted?
If you are paying the entire amount of bail, someone must come to the jail where you are being held and pay the bail amount. If you are using a bondsman, you must contact that person, who will present the bail bond to the jail. It can take several hours before you are then released.
The basic 3 strikes law says that if you are convicted of 2 prior "strike offenses" which are violent or serious felonies, then ANY subsequent felony conviction qualifies the defendant for a sentence of 25 years to life in prison. The kicker here is that the 3rd felony doesn't have to be violent or serious. Stealing a loaf of bread because the defendant is hungry may qualify as a felony and make the defendant a candidate for a third strike.
So, is this a hard and fast rule? The simple answer is NO. Both the DA and the judge have discretion to modify things. The DA can choose to charge the 3rd offense as a strike or she can ask the judge to "strike the strike" for purposes of sentencing. In this case, the defendant could still be convicted of a felony but it wouldn't be considered a strike triggering the 25 to life punishment. Whether this happens depends more on the county than anything else. The DA policy varies from county to county.
In addition, the judge can "strike the strike" in the interests of justice if he finds that the 3rd felony falls outside the spirit of the 3 strikes law. This could be used in the case of our defendant stealing a loaf of bread because he is hungry. The judge can do this even over the DA's objections.
The 3 strikes law has been simplified here but the consequences are anything but simple. Like much of the law, it is another example of how crucial it is to have an experienced, educated and savvy lawyer handle your case.
6. What Is A Hung Jury and How Can That Result in a Mistrial?
In a criminal case the verdict must be unanimous. A hung jury occurs when all 12 jurors can't come to a unanimous decision either 12 - 0 for guilty or 12 - 0 for acquittal. When the judge determines that further deliberations won't result in a unanimous verdict he announces that the jury is deadlocked and declares a mistrial. A mistrial can result in a whole new trial. It is up to the prosecutor to pursue a new trial or dismiss the case. The prosecutor can retry the case as many times as it takes to get a verdict or until he decides not to pursue it. Eventually the judge can decide to dismiss the case if he decides that there is no likelihood of a conviction being attained by the DA.
You may have heard of double jeopardy. The US constitution says that a defendant cannot be tried twice for the same crime. So how come the defendant can be tried two or more times just because the jury can't reach a unanimous verdict? Isn't he being tried twice for the same crime? The answer to that is simple. Double jeopardy simply does not attach to a mistrial.
A mistrial can also be called for reasons other than a hung jury. As long as the mistrial occurs before the jury begins deliberations (except in the case of a hung jury), double jeopardy does not attach and the defendant can face another trial for the same case. This can be the result of jury misconduct, or evidence that is introduced even though the judge ordered that it not be allowed into court, an unexpected emergency, or any number of legitimate reasons. There are various reasons that a mistrial can be called all of which result in the case being retried.
There is, however, an unusual circumstance where double jeopardy would prevent the retrial of a case in a mistrial. This occurs if the prosecutor intentionally does something to cause a mistrial before the jury deliberates. For example if the prosecutor thinks he is losing the case and does something to deliberately cause a mistrial, the judge could decide that double jeopardy does attach and not allow the case to be retried. This is extremely rare.
7. What Laws Limit the Ability of Police to Search Cars?
The Supreme Court has just limited the ability of police to look into someone's car. Before, if you were driving and were pulled over for ANY reason by the police, the officer could search your car. Now, the Supreme Court has said they may they search the car only if officers fear there are weapons in the car or if the officers think there is evidence in the car that pertains to the arrest.
In other words, if the driver was pulled over on suspicion of driving under the influence it might be reasonable for the officer to search the car looking for drugs or alcohol. If the driver was pulled over for running a red light, the officer cannot search the car. Of course there are exceptions to this, such as if the officer who pulled our red light runner over sees an open container of alcohol in the front seat. This is called the plain sight rule that says if evidence of a crime (the open container of alcohol in a moving vehicle is against the law) is in plain sight, the officer can take further steps (such as searching the car) to investigate the wrongdoing.
As far as weapons in the car are concerned, the Supreme Court has said officers may only search if they reasonably think a weapon will be within reach such that it could be used against them. If the suspect is out of the car and handcuffed, then the officer is no longer in danger and can no longer search the car. This was a 5-4 decision by the Supreme Court, with Justice Stevens, Scalia, Souter, Thomas and Ginsburg voting with the majority.
8. What Is Aiding and Abetting? - What is an Accomplice?
What if Melissa and Tracy go to Nordstrom and, unbeknown to Melissa, Tracy steals a belt. Is Melissa an accomplice just because she is there with Tracy? What if Tracy hands Melissa a bag containing the stolen belt as they are leaving the store? What if Melissa knows Tracy is going to steal a belt but at the time Tracy does it, Melissa is in a different department? What if...what if...
The key to this is INTENT and ACTION. If Melissa intends to help Tracy steal the belt, either by standing guard, distracting the salesperson or putting the belt in her own purse, she is guilty of being an accomplice. In addition to intent, Melissa must take some kind of action to help Tracy steal the belt in order to be guilty of being an accomplice. If Melissa is unaware of what is going on and doesn't know that Tracy is stealing a belt and therefore not intending to help her, then she is not guilty of being an accomplice. Even if Melissa intends to help Tracy but then doesn't do anything to help her, she is not guilty of being an accomplice
The problem sounds so easy and clear cut. But how does Melissa prove that she didn't have any intent to help Tracy steal the belt? She has been seen entering the store with Tracy, shopping with Tracy and leaving with Tracy. How does Melissa convince the security guard/police officer/deputy district attorney/jury/judge that she is innocent? This is a separate and distinct problem, but nonetheless serious problem. This is when Melissa needs a really good lawyer.
9. What Are Alternatives to Jail?
What happens when the circumstances and evidence simply don't allow for anything other than a conviction? Is jail the end of the road or is there still hope for an alternative?
There are definitely alternatives to going to jail. These are not available to everyone and depend on the crime committed, the personal circumstances of the defendant, and the expertise of your lawyer.
Some of the different alternatives to jail are:
- Electronic Monitoring --- This is sometimes called House Arrest. In this case the defendant must wear an electronic ankle or wrist bracelet which sends an electronic signal. There are two types of electronic monitoring devices, active and passive. Active devices send a signal over the telephone lines at regular intervals. The passive system involves a central computer calling the defendant at random or scheduled intervals to make sure he is where he is supposed to be. Newer electronic monitoring devices have a built in GPS to track the defendant and make sure he is within a specified area.
- SCRAM --- This stands for Secure Continuous Remote Alcohol Monitor and is the monitoring device that Lindsay Lohan has made famous. This monitors the amount of alcohol in a person's system. It can take the place of random testing or incarceration.
- Work Furlough --- This allows the defendant an alternative to staying in jail. Private "pay to stay" jails must first accept the defendant into their program. Some programs allow the person to go to work or school during the day and return to serve their sentence at night and on the weekend. Other programs allow the person to serve his sentence on weekends only.
- Alcohol Rehabilitation --- Inpatient or outpatient comprehensive programs for alcohol or drug addiction can sometimes be used as an alternative to going to jail.
- Community Service --- This can sometimes substitute for jail.
In order to secure an alternative sentence your lawyer must first figure out what the most appropriate placement would be. The next step is to get the defendant accepted by the program chosen and lastly, the judge must approve the selection. Although this may sound simple and straightforward it is a surprisingly complicated and delicate process. In all these cases, the defendant must pay for either the electronic device chosen or the pay to stay jail alternative. The experience, credibility and ingenuity of your lawyer may easily dictate whether the alternative placement will work.
10. What Happens When You Get A Camera Ticket
Anyone who has received a ticket in the mail, not because a police officer saw you but because a camera did, knows the frustration that comes along with the ticket. You can't really fight it because you can't even remember exactly when it happened. If a police officer pulls you over, you know what happened because the act happened literally seconds ago. With a ticket in the mail the action happened weeks or even months ago.
Interestingly enough, so many people were up in arms over this in Arizona that the Arizona Department of Public Safety has decided to discontinue the cameras. As of July 15, 2010, there will be no more tickets because of traffic cameras given in Arizona. The Department didn't give a reason for the decision but part of the reason could be the numerous challenges that have been mounted against the constitutionality of the cameras. At least one judge, John Keegan, a judge for the Arrowhead Justice Court, has dismissed 8,500 tickets saying the cameras were unconstitutional. Because of the camera tickets there has been a logjam in the court system of motorists appealing their citations.
Will California follow Arizona's lead? We will have to wait and see.
