California law allows a defendants in a criminal case to expunge as record if they have successfully fulfilled their conditions of probation and stay out of trouble. Many people would like to go a step further and remove or seal the case thereby erasing any record. This is difficult to do.
There is a process to seal and destroy an arrest record if the person is found to be factually innocent by a Court of law. In order to accomplish this result the person cannot be found to have pleaded guilty or no contest and cannot have been convicted in court.
Recently California changed its laws to allow for a prior felony drug possession to be reduced to a misdemeanor. Any criminal defense attorney can do it for you, but it can be done without a lawyer, here’s how to do it:
How to apply Prop 47 (PC 1170.18) If Convicted, serving a sentence:
Defendant submits a petition to Court for recall of sentence. Upon receipt, Court determines if defendant satisfies criteria (i.e. convicted of specified offense and has no disqualifying prior convictions).
If criteria is satisfied, then offense is reduced, and defendant is released with credit for time served, but is subject to parole under PC 3000.08 for one year unless the Court, in its discretion, waives the parole period.
Court may deny reduction if its finds defendant would pose an “unreasonable risk of danger to public safety”. In reviewing, Court must consider:
o Defendant’s criminal history, including types of crimes, injuries to victims, length of prior prison commitments and remoteness of crimes.
o Defendant’s disciplinary record (or lack of) while incarcerated.
o Any other evidence the Court deems relevant in deciding if a reduction would result in an
unreasonable risk of danger to public safety.
“Unreasonable risk of danger to public safety” is defined as an unreasonable risk that defendant will commit a new “super” strike.
If you have been Convicted, sentenced and time already served:
Defendant files a petition for reduction. Unless requested by defendant, no hearing is necessary. Upon receipt of the petition and verification that defendant satisfies the criteria the Court shall grant the reduction.
For pending cases it is expected the Court or DA will be reducing those immediately. For cases in which Formal Probation was granted the statute does not specifically address how to handle, but it seems logical that the intent would be the same as those who’ve been convicted and have served time, perhaps with the remaining period of probation converted to Conditional/Informal Probation.
California allows for the collection and retention of DNA samples for felonies and some misdemeanor crimes but in recent years some felony charges have been made misdemeanors and a person can request an expungement of their DNA records in some cases. For example, in Torrance a lawyer can seek to have a DNA sample removed from the California database by filing a petition.
Penal Code sections 296 and 296.1 authorize the collection of a DNA sample under a variety of circumstances, including when a person incurs a felony juvenile adjudication. However, these statutes do not authorize the collection of a DNA sample based solely on the commission of a misdemeanor. After reviewing the plain language of section 1170.18 and applying rules of statutory construction, the Court of Appeal has concluded that “the voters did not intend that a reclassified misdemeanor offense be deemed a felony for purposes of retention of DNA samples.” The fact that reclassification of a felony to a misdemeanor is not among the grounds listed in Penal Code section 299 for DNA expungement does not change this conclusion.
In some cases the superior court can be directed to reconsider a DNA expungement request by a criminal defendant.
The Governor signed a new bill into law in June that allows for amnesty of all past due traffic tickets in California. The law will allow for a reduction all past due fines as much as 80 percent, depending on income. Click here to learn more about the amnesty program
California Traffic Court Amnesty
Being involved in a hit and run can be very nerve wracking, it is easy to make bad decisions after the incident but getting the right advice can be very important.
A commonly asked question is whether the involved party should report the car stolen following the hit and run accident. the short answer to this question is it is not advisable in that the report could result in additional felony charges if the crime is detected. This reaction seems to be the way to go to many people in that they think they can cover up the hit and run. The better option is to retain the services of a local criminal defense attorney who can advise the individual of proper courses of action. Routinely, a detective or police investigator will call the suspected party in an attempt to extract inculpatory or incriminating admissions. Here, again the person would be well advised to have a lawyer on retainer to act as an intermediary, counselor and insulator from law enforcement and the danger of bad knee jerk decisions. A lawyer can insulate you from pointed questions that are sure to be difficult to answer such as whether you were drinking prior to the incident.
Having the right and accurate legal advice during this very turbulent time is crucial to a favorable and just outcome of the case. The biggest mistake you can make is to listen to and follow the advise of a non-lawyer such as a friend, co-worker or relative.
A hit and run lawyer familiar with the specific issues and important concerns a person has facing life changing choices, can make all the difference in hit and run cases. Call and speak to a legal professional who can point you in the right direction, toll free at 1-877-213-4453.
Here the Appeals Court ruled that the criminal courts cannot punish a DUI as a felony simply because the accused had a prior punishment of felony drunk driving as a juvenile.
The facts are as follows, In 2006, when Lopes was 17 years old, she pled no contest to felony DUI with injury. She was detained as a ward of the juvenile court and confined to a DUI Youth Program for 38 months. In 2014, Lopes was charged with DUI and driving with a BAC of 0.08 percent or more. Both charges were alleged as felonies pursuant to section 23550.5 due to the prior juvenile adjudication. The trial court ruled that her juvenile adjudication could not be used to elevate the DUI to a felony. The People appealed. Held: Affirmed. Section 23550.5 allows a current DUI that would otherwise be a misdemeanor to be elevated to a felony if the defendant had a prior “violation” of section 23153 that was punished as a felony. Welfare and Institutions Code section 203 provides that “an order adjudging a minor to be a ward . . . shall not be deemed a conviction . . . for any purpose.” The People argued that because section 23550.5 uses the term “violation” rather than “conviction” it avoids this bar. The Court of Appeal disagreed and concluded that nothing in the statutory language, legislative history, or case law indicates that the Legislature intended the phrase “violation . . . that was punished as a felony” to encompass juvenile adjudications. The Legislature knows how to include juvenile adjudications in provisions that may elevate the penalty for new offenses. (See, e.g., Veh. Code, § 13105; Pen. Code, §§ 667, subd. (d)(3), 1170.12, subd. (b)(3).) The rule of lenity counsels against the People’s construction. Moreover, the juvenile adjudication does not qualify because it was not punished as a felony. (CCAP)
In the criminal case of California vs. Forrest the Appeals a Court found that a condition that the defendant stay away from weapons was unreasonable. Here are the case details:
Forrest was convicted of multiple offenses arising from an attack on her sister-in-law. On appeal, Forrest challenged three probation conditionstwo prohibited the possession of weapons or any instrument used as a weapon, the third prohibited Forrest from being in the presence of weaponsas being unconstitutionally vague and/or overbroad.
Held: Affirmed as to two conditions; third condition modified. One condition prohibited Forrest from possessing weapons, including replicas. She argued that the word “replica” and inclusion of “any instrument used as a weapon” rendered the condition vague. The appellate court disagreed, concluding that the condition gives fair notice of what is prohibited and that reasonable persons would understand the condition when read in context. Further, the condition prohibiting possession of a weapon is not overbroad because it fails to contain an exception for transitory possession of a weapon for self-defense. When a probationer has been convicted of a violent crime, imposition of a strict probation condition prohibiting possession of weapons is essential to public safety and it is reasonable to exclude a reference to self-defense to ensure that Forrest does not believe she is permitted to own or possess a weapon in anticipation of the possible need for self-defense. The third condition, prohibiting Forrest from being in the presence of weapons, should be modified to restrict her presence at locations where weapons are illegally present, given the widespread presence of arm security guards in buildings and other locals. As currently worded, the term impinges on her freedom of association, and her access to courts. Further, it is not narrowly tailored to safeguard these fundamental rights while restricting her conduct in a way that is designed to protect public safety. Thanks CCAP.