Caretaker And Parental Diversion Motion in California

Caretaker Diversion is codified in Penal Code 1001.83. The law is a welcome sight for many who saw the instability and chaos created when a parent of a minor child went to prison. The law allows for rehabilitation and accountability without punishing the innocent children for acts of their parents. California is indeed progressive in implementing the law, San Francisco is the first to adopt and create a program, it is hoped Los Angeles will soon follow.

In 2020 Governor Newsom signed into law SB 394 which created a diversion program for primary caretakers of minor children in CA who have committed a crime and are facing incarceration. The law is designed to alleviate the financial stress on families when the breadwinner goes away to jail. The law also contemplates eliminating the “cycle of incarceration” and alleviating the trauma and lifelong scars endured by children when a parent is behind bars.

The law creates a program wherein a defendant can petition the Court to allow for alternatives to jail for both non violent felonies and misdemeanor charges. A motion is brought by the attorney with a declaration attesting that the accused provides substantial financial or familial support and that the minor children in household would be detrimentally harmed if the defendant goes to jail.

A motion for primary caretaker diversion pursuant to SB394 is not limited to a mother or female caregiver, if the father or male head of the household is the source of income for the family he qualifies. The defendant does not need to be the biological parent of the minor child. The pleadings must include proof the defendant qualifies by establishing the following:

1) The defendant is a custodial parent or legal guardian of a minor child under 18 years of age, presently resides in the same household as that child, presently provides care or financial support for that minor child either alone or with the assistance of other household members, and the defendant’s absence in the child’s life would be detrimental to the child.

(2) The defendant has been advised of and waived the right to a speedy trial and a speedy preliminary hearing.

(3) The defendant has been informed of and agrees to comply with the requirements of the program.

(4) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, or to the minor child in their custody, if allowed to remain in the community. The court may consider the positions of the prosecuting entity and defense counsel, the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense, child welfare history involving the defendant, and any other factors that the court deems appropriate.

(5) The defendant is not being placed into a diversion program, pursuant to this section, for any serious felony as described in Section 1192.7 or 1192.8 or violent felony as described in subdivision (c) of Section 667.5.

(6) The defendant is not being placed into a diversion program pursuant to this section for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.

In Los Angeles the District Attorney has directed its office to comply with all statutory diversionary schemes and not oppose those cases where the interests of justice and the spirit of the law supports the imposition of diversion. This special directive specifically mentioned PC 1001.83.

The defendant cannot get Parental Diversion for crimes involving their own children, such as child abuse or child endangerment or neglect. However, the statute appears to allow for diversion in domestic violence cases where the victim is the other parent.

The law goes by many different names such as “primary caretaker diversion”, “parental diversion”, “caretaker diversion”, among others.

Under CA law if the caregiver fails to comply with the terms of the diversionary grant the District Attorney can request that the criminal charges be reinstated.

Recently Attorney Ruff was successful in obtaining Parental Diversion in Los Angeles in a felony case of hit and run resulting in death where the DA was insisting on Felony Probation with a year in the County Jail. If you or a loved one is facing jail on a felony or misdemeanor charge in Southern California call Matt to discuss your options and strategies to avoid jail and a conviction on your record.

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New California Judicial Diversion Motion For 2021

A few years ago California allowed Judges to grant Diversion over the objections of the prosecution on most misdemeanor offenses, this was commonly referred to as Judicial Diversion.  Unfortunately the statute that allowed for this expired.  In 2021 the law has brought back Judicial Diversion.  AB 3234 is a broader version of the older pilot program which ran in Los Angeles County. The new program will allow for a defense motion for diversion in virtually all misdemeanor cases with the exception of specific enumerated crimes such as domestic violence and 290 registered offenses. The intent of Legislature with PC 1001.95 is to promote a global increase in diverted cases in order to be proactive and mitigate both an individual’s entry and reentry into the criminal justice system, as well as to reduce taxpayer costs.  Previously excluded offenses such as DUI appear to be eligible under the 2021 statute.

Although driving under the influence charges such as VC23152 are not specifically excluded in the new CA diversion statute, VC23640 states that DWI cannot be dismissed if the person participates in an education program. Many Judges in Los Angeles are using VC23640 as a reason to deny defense requests for diversion of DUI charges. District Attorneys across the state have spoken publicly about the shortcomings of the new law, specifically how it gives drunk drivers a “free pass”. The DA in Orange County has been particularly outspoken on this issue. Ultimately an Appellate Court will need to decide this issue. A similar argument was used to deny diversion for drunk driving in Military cases. This issue was decided in favor of the servicemen and women. It will be interesting to see if the Courts go the same way given that it would now apply to anyone in the state. Stay tuned!

In Los Angeles I am seeing anecdotal evidence of Judges denying motions for Judicial Diversion on DUI charges on the grounds of “public safety”. This argument will likely be the primary reason raised by prosecutors in driving under the influence cases.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

The following is a synopsis of CA law pertaining to this form of Diversion:

Penal Code 1001.95

(a) A … judge may, at the judge’s discretion, and over [The Prosecution’s] objection…, offer diversion to a [misdemeanor] [Defendant]….

(b) [Diversion can last up to] 24 months and [can include] terms, conditions, or programs … based on [D’s] specific situation.

(c) If [Defendant] has complied…, at the end …, the judge shall dismiss the [case].

(d) If … [D] is not complying …, the court may [hold a hearing,] end the diversion and [resume] the criminal proceedings.

(e) [Not eligible:] (1) Any [PC 290] offense…., (2) … [PC] 273.5, (3)…[PC 243, subd. (e)], (4)…[PC] 646.9.

Penal Code 1001.96

A [diverted Defendant] … [must] complete all of the following … to have their action dismissed:

(a) Complete all conditions ordered by the court.

(b) Make full restitution. However, a [Defendant’s] inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that [D] has failed to comply with the terms of diversion.

(c) Comply with a court-ordered protective order, stay-away order, or or- der prohibiting firearm possession, if applicable.

Penal Code 1001.97

(a) Upon successful completion of [diversion] …, the arrest … shall be deemed to have never occurred. [D] may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of [diversion] shall not, without [D’s] consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(b) [Defendant] shall be advised that, regardless of their successful completion of diversion, the arrest … may be disclosed by the Department of Justice in response to a peace officer application request and that … this section does not relieve them of the obligation to disclose the arrest in response to a direct question … in a questionnaire or application for a position as a peace officer, as defined in Section 830.

As Criminal Defense Attorneys we applaud the legislature for bringing back Judicial Diversion because it allows for cases to be resolved when dealing with an unreasonable prosecutor. This law will allow many Defendants to maintain a clean record even though they had a misstep in their life. Many legal scholars agree that Diversion helps to reduce recidivism in the criminal justice system. According to the Author of AB 3234 in the comments of the Assembly Third Reading, “Diversion programs that are successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment.”  The Author goes on to state “This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual.”  

It is anticipated that Courts in Los Angeles will be flooded with motions for diversion in all eligible cases. These requests will surely tax an already overwhelmed Court system.

Despite the many concerns, Diversion can be a fantastic way to resolve a tough case for a non citizen because it may not involve a plea of guilty or no contest and results in the dismissal of the case once all conditions have been satisfied.

Judicial Diversion will not be available for all crimes as the statute specifically excludes Domestic Violence and Sex Crimes for example. However, the vast majority of misdemeanor offenses will be eligible for dismissal under this new law. This new statute will be welcomed in Los Angeles cases in particular where the City Attorney has taken a hard stance on many crimes leaving Defense Counsel with few alternatives other than taking the case to trial.

Restitution shall be required in all cases, however the indigence of a criminal defendant shall not be a reason to deny a grant of Diversion under the statute. Also, the Defendant will be ordered to comply with any protective orders imposed by the Court.

Many Judges, as well as the California Judicial Commission, have raised concerns about the burden this new law will place on already taxed Courts. Once a motion for diversion is made, a formal hearing will need to be held to determine whether individual cases warrant a grant of diversion which will take time and resources. In fact, the Commission wrote a letter to Governor Newsom asking him to veto the AB3234 legislation because it does not give sufficient funding to the Courts to account for the additional work load. Also, the Judicial Commission was concerned the new law failed to address issues such as how a Defendant would be notified should the Court decide he or she was not complying with the agreed upon terms and conditions of the grant of Diversion.

However, as a criminal defense practitioner for over 25 years my perspective is that the law will decrease Court congestion by eliminating the need for frivolous trials in misdemeanor cases where an obstreperous prosecutor refuses to make a reasonable offer or cases where policies from higher up leave the Courtroom prosecutor’s hands tied. A prime example are cases involving concealed weapons at LAX. In these cases the City Attorney stopped giving diversion a couple years back and it has clogged the Court with trials on cases involving first offenders and otherwise diversion worthy clients. Now a reasonable Judge can step in and resolve the case thereby freeing up the Courtroom for more serious cases.

Lastly, one additional benefit of the California Judicial Diversion law is that is extends protection of the use of the arrest in any future proceedings nor can the arrest be used to deny a person any license.

The applicable statute provides: (a) Upon successful completion of [diversion] …, the arrest … shall be deemed to have never occurred. A Defendant who successfully completed the diversion program may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of [diversion] shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. This provision makes a resolution of judge diversion very attractive to anyone facing a criminal charge.

Many attorneys have lingering questions about the procedural requirements for bringing a motion to grant diversion under PC 1001.95. For example, can an oral request be made or is a written formal motion required? These questions remain unanswered. I’m hearing from other lawyers that some Judges are are granting oral requests under the new law. Whether a lawyer chooses to request this type of relief in writing or orally will likely depend upon the personality, demeanor and relationship with a particular Judge and Courtroom Prosecutor.

Recently I was successful in getting Judicial Diversion for a client on a public intoxication charge in Torrance by simply asking , orally, for a “Court Indicated”. In another case in Los Angeles LAX Court I attempted the same thing which was met with the Judge telling me to file a written motion and serve it on the prosecution with 10 days notice. This disparity among Courts is typical and expected. So far in 2021 I have had motions granted for charges of embezzlement, theft, drunk in public, possession of a loaded firearm in a motor vehicle, possession of assault weapon, carrying a concealed weapon and possession of a firearm at LAX Airport.

Assuming the Court agrees to the request for conditional dismissal pursuant to PC 1001.95-1001.97 the defendant will need to agree to waive his or her right to a speedy trial and they must consent to the terms of the program. Thereafter the proceedings will be suspended anywhere from 90 days to one year. Any bail posted will be exonerated and the accused will be released on their own recognizance. The disposition shall not be considered a conviction or an admission of guilt for any purpose.

Suitability Factors: Factors to consider in the grant or denial of diversion include the criminal history of the defendant, the circumstances of the offense, the willingness of the defendant to comply with terms imposed by the Court, and prospects of rehabilitation. In Wade vs Superior Court 33 Cal App 5th 694, the Court gave guidance on determining whether a person is a “suitable candidate” for diversion in general. Among the 29 factors considered were: whether the defendant engaged in violent conduct, whether he has a criminal record, whether he or she has previously performed well while on probation, whether a weapon was used, whether harm was done to another person, and whether the defendant acknowledged wrongdoing at an early stage of the proceedings. Also, California Rule of Court 4.414 can offer guidance by establishing criteria used to determine suitability of probation. Both authority has been used when crafting a particular motion for Judicial Diversion.

There are unanswered questions that many attorneys have when they file a Judicial Diversion Motion in California. One is can a Judge require a plea of guilty or no contest in order to grant a motion? Second, can a Court order that a Diverted Defendant be supervised by the Probation Department during the term of Diversion?

The latest chatter among criminal defense attorneys in Los Angeles is that most judges are denying judicial diversion motions for DUI based on a number of different theories. One is that driving under the influence is specifically excluded under Vehicle Code 23640 which precludes diversion for drunk driving. The Appellate Division of the Los Angeles Superior Court has issued an unpublished opinion expressing their belief that Vc23640 does in fact preclude Judicial Diversion for DUI. It will be a matter of time before the Court of Appeals takes up the issue, stay tuned! Some Judges take the position that the charge precludes imposition of the statute due to public safety. Soon the Appellate Courts will sort it all out. If you need help filing a motion or you are a lawyer that would like a copy of Matt’s motion for Diversion Pursuant to Penal Code 1001.95, contact Matt via his website Torrance Criminal Defense Attorney

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How To Get A Copy of Your California Criminal Record

Anyone who wants one can get a copy of their official criminal history from the State of California. This criminal record is the same record that law enforcement uses and many private and governmental employers.

To get a copy of your own record you will need to visit the official website of the California Department of Justice. Here is a link to the website: California Criminal Record

The State will require you to get fingerprinted and send in the Livescan along with a check for $25. The process take some time, usually several weeks so get started early if you will be needing it soon.

Knowing what is actually on your record is important do that you can correct any incorrect information or errors.

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Community Service In Your Case

Top Torrance Criminal Lawyer

Matthew Ruff, Torrance Criminal Defense Attorney

In some cases community service may be an option to help resolve a criminal case.  The idea behind this type of disposition is that you perform volunteer work for a charity or non-profit and you are given credit for this work as a form of punishment in your case.  The great thing about this type of outcome is that it helps the community by getting free labor and it also helps the person by having a feeling of “giving back”, which is what everyone should do in their daily lives.

Matthew has been able to negotiate cases using community service hours as a form of “currency “ with the Court and Prosecutors.  If Matt asks you to perform community service it means he believes it will result in a favorable outcome in your case, either in the form of a reduction of charges or a tool that can be used to the dismissal of charges in a criminal case.

Understand that there are two types of community service.  The first is Court Ordered Community Service which is ordered by a Judge as a condition to probation or other Court imposed sentence.  This type of service is very formal and often supervised and monitored by either a probation officer or “Volunteer Center” which is overseen by the Court or Judicial System.

The second type of community service is informal and not ordered by the Court but used as a way to convince the prosecutor or District Attorney that you deserve a favorable disposition because you are doing it on your own without compulsion.  This type of service is not overseen by anyone and requires extra effort on your part to document your volunteer work.  For this type of Community Service follow the following guidelines to get the proper documentation of your hours so that it can be presented in your Case:

  1. Find a suitable charitable organization that will qualify as acceptable community service such as a nationally recognized non-profit (SPCA, Habitat for Humanity, United Way, etc.).
  2. Make sure ahead of time that whoever you choose to work for can document your hours in the form of a letter, on official letterhead using the following format: The day of the week you worked; The number of hours you worked on that given day; The total number of hours you worked (1 day equals 8 hours); Lastly, the letter needs to be signed by someone in apparent authority with a contact number in case the hours need to be verified.

Once you have the letter you can send it to the attorney via email or fax.

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Catalina Island Criminal Defense Attorney, Matthew Ruff

Catalina Criminal Defense Attorney

Catalina Island Criminal Defense Lawyer

Catalina Island is part of the Channel Island Chain off the coast of California.  The Island is the most populated of all the islands and boasts a heavy tourist season in the summer months.  Most folks arrive on the island via boat from Long Beach, San Pedro or Dana Point.  The main boat service is the “Catalina Express “ that operates back and forth shuttling passengers and their gear all year round.  While on the island many folks will relax and consume alcohol and other recreational substances.  What most people don’t realize is the Los Angeles Sheriffs Department has a large presence on the island and enforce the criminal laws with a heavy hand.

Call Matt Direct for a Consult at 310-686-1533

Avalon is the city most people travel to, although Twin Harbors is also a frequent destination that caters to hikers and campers.  The local Court that services the island is located in Avalon  at 215 Sumner Avenue, Avalon CA 90704.

Catalina Court

Catalina Court in Avalon

If you were arrested on the island of Catalina you would be required to appear in the Court on Sumner Avenue at a future date for an arraignment. (Unless you hire counsel to appear on your behalf). An arraignment is a time to enter a plea of guilty or not guilty, it is not a time to present evidence or witness testimony so the arresting officer will not be required to attend.  In most cases, a local lawyer can appear on your behalf to enter a plea and obtain relevant police reports and evidence called “discovery”.

Over 25 Years Experience Matters!

Matthew Ruff is a local Top Rated Catalina Island Criminal Defense Attorney with 25 years experience defending clients charged with crimes on the island.  Some of the most frequent offenses are public intoxication, drug possession, domestic violence, fishing violations, DUI, including Driving under the Influence while in a golf cart.  Surprisingly, California law defines a golf cart as a motor vehicle and therefore treats the offense the same as being in a car.  Top Tier DUI Lawyer, Matthew Ruff can immediately stop the license suspension that stems from a Catalina DUI arrest and fight the case using innovative approaches he has developed over his 25 year career span.

Among the other common cases Matt sees on the island are domestic violence charges arising out of a night of heavy partying or overuse of alcohol and/or drugs.  As a local criminal defense attorney he can get involved early and try to avoid the case from being prosecuted by reaching out to the DA in advance and presenting exculpatory evidence or mitigation factors that are not contained in the police reports.

Avalon Criminal Defense

Criminal Attorney in Avalon California

For anyone looking for a Top Rated Criminal Lawyer that serves Catalina Island, call Matthew directly on his cell at 310-686-1533.  When you hire Matt he believes in providing personal service.  If you were arrested in Avalon you were issued a citation that orders you to appear for an arraignment at a future date, Matt can handle that for you.

“The Best Success Rate on the Island!”

 Over the last 25 years he has represented countless clients who have never had to go to Court. Our Law Firm boasts the highest dismissal rate and the best success rate in Los Angeles County and statewide.  In one recent case Matt defended a client charged with trespassing and drunk in public when he found himself on someone’s property after a night of heavy partying.  Matt fought the case and got all charges DISMISSED.

In another noteworthy case Matt was able to get all charges dropped when his client was arrested in Avalon for drug possession and public intoxication (PC647f).  The DA was adamant about getting a conviction due to public pressure from local residents to “crack down” on quality of life crimes on the small island.  Undeterred, Matt fought the allegations and obtained a complete dismissal of the case thereby keeping his client’s record clean.

In another significant victory, Matt got hired by a young person active duty in the military who was arrested in Avalon and charged with DWI. The case would have meant certain disaster for the client if convicted.  Matt put together a defense package and reached out to the District Attorney early on in the case.  The DUI charges were Dropped.

Hiring An Attorney Early Is Important!

Many folks looking for a DUI Attorney in Catalina are interested in knowing how the case will be handled.  Matt leaves no stone unturned when representing a client accused of drunk driving or DWI.  For example, he will routinely obtain the maintenance and accuracy records for the breath machine used to measure the BAC in your case.  By scrutinizing the records of the machine Matt can sometimes find improprieties in the working order of the device or uncover a lack of calibration or compliance with the statutory requirements.

In many cases the deputy arresting you will attempt to obtain a breath sample from either a handheld device (Alcosensor IV PAS device) or the table top machine (Datamaster DMT) back at the station.  What if you cannot provide a sufficient breath sample to complete the test?  The law in California states that the DMV can suspend or revoke a driving privilege for a refusal only if the officer properly admonishes the driver in accordance with CA law.  Matt knows these laws and can fight the case, both at the DMV and in Court, if you are facing a case involving driving under the influence in Avalon on the island of Catalina in California call Matt for a no obligation discussion about your rights, options and possible defenses. As a Top Tier Criminal Defense Attorney with over 25 years experience, Matt is the right choice for anyone facing serious criminal charges in Avalon or anywhere else in Southern California.

I was arrested for battery on a peace officer, what can I do?  Among the many crimes charged on the island are a lot of assault cases and cases involving battery.  Oftentimes people visiting will imbibe too much alcohol and encounter a public official who tries to detain the person and a fight may ensue.  A simple assault or battery committed against a public safety provider is a misdemeanor punishable by a fine of not more than $2,000 or imprisonment in a county jail for not more than 1 year, or both.  Battery on a peace officer applies to lifeguards, EMT personnel and firefighters.  The reality is that if you have a clean record you are not likely going to have to serve jail time, however, having the conviction on your record can be very damaging.  Matthew has fought and won many battery cases over the last 25 years and he can help if you were charged with battery on a peace officer (PC 243b) on Catalina Island.  Keeping your record clean is Matt’s goal!

What can I expect when I go to my Court date on Catalina Island? First, the travel to the Court is quite extensive, you have two choices 1. You can take the Catalina Express to the Court via either Long Beach or San Pedro, or 2. You can take the helicopter over in the morning. Once you arrive on the island you will need to find transportation over to the Court Complex and upon arrival wait outside until you are called. If you hire a private lawyer such as Matthew he can handle everything for you without you needing to be present.

Criminal Court on Catalina Island

Call Matt Direct for a Consult at 310-686-1533

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New 2020 Legislation On Pitchess Motions

Top Torrance Criminal Lawyer

Matthew Ruff, Torrance Criminal Defense Attorney

California law allows for the discovery of acts of misconduct on the part of police officers in a criminal prosecution.  In order to get information about misconduct from an officer’s personnel file the attorney must file what is called a Pitchess Motion in Court.  The procedures for the filing of a motion were recently amended starting in 2020.

Evidence Code 1043-1046 provides that a Pitchess motion (Pitchess v Superior Court (1974) 11 Cal.3d 531), be filed pursuant to certain time constraints.  The service of the motion must be made on the law enforcement agency that maintains the records. The new law (AB 1600) amends Evidence Code § 1043 to require written notice in criminal cases to be served on the police agency and filed in Court at least 10 court days before the appointed hearing, all oppositions to be filed with the court at least 5 court days before the hearing, and all replies to be filed at least 2 court days before the hearing. AB 1600 also requires proof of service of the notice to be filed no later than 5 court days before the hearing.

Compliance with the procedures is crucial in order for the motion to be heard by the Court.  If the notice is insufficient you can expect the attorney representing the records custodian to object and ask that the hearing not take place.

Here is a summary of the new California laws relating to discovery of police Officer personnel files in criminal cases:

Evid. Code § 1043 (Amended; AB 1600): Time Limitations on Pitchess Motions:
The notice requirements for the filing of a motion to discover peace officer personnel files in criminal cases (i.e., a “Pitchess motion,” per Pitchess v. Superior Court (1974) 11 Cal.3d 531) have been modified as follows:
Filing of the motion; from 16 court days before the hearing to at least 10 days.
Filing of the opposition; at least 10 court days before the hearing.
Filing of a reply brief; at least 2 court days before the hearing.
Upon receipt of a motion for peace officer personnel records, the governmental
agency involved must immediately notify the officer whose records are sought.
See also Code of Civ. Proc. § 1005, making existing notice requirements for a Pitchess motion (at least 16 court days before the hearing), applicable only in civil cases.

If you or someone you know is facing criminal charges in Torrance Court or any other Court in Los Angeles County call Top Rated Torrance Criminal Defense Lawyer Matthew Ruff at 310-527-4100.

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Does a Dismissal of Domestic Violence Charges Result in Termination of Protective Order?

Domestic Violence Protective Order

Domestic Violence Protective Order Termination

In a Domestic Violence Criminal Case the Court will issue a protective order to keep the peace while the case is pending.  That order can be either a level 1 or a level 2 order.  The level 1 is a full stay away order, the latter is a modified order that allows peaceful contact with the alleged victim.  The question that is discussed today is if the criminal charges are dismissed does the underlying order of protection get automatically terminated?  The answer is no.

If charges are dropped in Criminal Court or the client is acquitted the defense attorney must ask the Court to terminate the underlying order and have the District Attorney fill out a Judicial Council form CR-165.  This document must be filed with the Court and the clerk must enter it into the record.  Thereafter, the California Database that stores the information (CLETS) must be informed that the order was terminated.  Failure to do so could result in the client being arrested or being denied the ability to purchase or possess a firearm.

Top Tier Domestic Violence Attorney Matthew Ruff has a track record of getting baseless charges dropped and terminating the underlying protective order in many cases.  If you or someone you love is facing DV charges in Los Angeles County, call Matthew for a free one on one consultation.  Matt can be reached on his cell phone at 310-686-1533.

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Does a Police Officer Shining a Spotlight Constitute a Detention?

Top Torrance Criminal Lawyer

Matthew Ruff, Torrance Criminal Defense Attorney

California law allows a criminal defendant to challenge his or her arrest and any subsequent searches on the ground they were in violation of the person’s 4th Amendment Constitutional rights.  In order to invoke fourth amendment protection the individual must have been detained at the time of the alleged illegal action.  Recently the California Appeals Court addressed a recurring question, whether shining a spotlight on a vehicle is in fact detaining the occupants of the car.

In People v. Kidd (2019) 36 Cal.App.5th 12 the Court held the Defendant was detained without reasonable suspicion where an officer pulled in behind the defendant’s car, which was stopped on the side of a residential street with its fog lights on, and pointed spotlights at the car. In the early hours of the morning, an officer saw a car parked on a residential street with its amber fog lights on. Wanting to see what the two people inside the car were doing, the officer pulled in behind them, pointed his spotlights at their car, and exited his vehicle. As he approached the car, the officer smelled marijuana. After defendant (the driver) indicated he was on probation and there was a gun in the car, the officer searched the car and found contraband. Defendant was charged with several felony offenses, but the trial court granted defendant’s motion to set aside the information and all charges were dismissed. The People appealed.

The Court ruled an encounter between a law enforcement officer and a defendant is a detention if, under the totality of the circumstances, a reasonable person in the defendant’s position would not feel free to leave. The Court determined in this case that Kidd was detained when the officer pulled in behind Kidd and trained the spotlights on Kidd’s car. Although the officer did not turn on his colored emergency lights, motorists are trained to immediately yield when a police car pulls in behind them and turns its lights on. A reasonable person in this situation would expect that if he drove off, the officer would respond by pursuing him with the siren activated, and the fact that the officer immediately got out of the car and started to approach Kidd removed any ambiguity about whether it was a detention. The detention was unjustified because the officer did not have reasonable articulable suspicion Kidd committed or was about to commit a crime. It is not illegal for a parked car to use fog lamps without headlamps and, by his own admission, the officer did not observe any wrongdoing. Although there was no indication of bad faith, the officer’s detention of Kidd in the absence of reasonable suspicion was deliberate, warranting suppression of the evidence. Thanks CCAP.

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What is a Serna Motion?

Top Torrance Criminal Lawyer

Matthew Ruff, Torrance Criminal Defense Attorney


Here is the scenario:  A person is arrested, they are released either on bail or with an O.R. citation and given a future Court date to appear and answer to the charges.  However, the person fails to appear and a warrant is issued for their arrest.  A long period of time goes by, more than one year, and they want to clear up the matter by getting the warrant recalled.  One possible option the person has is to file what is called a Serna Motion in order to get the charges dismissed.

A Serna Motion is a request to to the Court to dismiss the case based on the delay of the prosecution to pursue the charges and pursue the case in a speedy manner.  The motion is sometimes referred to as a “Speedy Trial Motion” because the Prosecutor has denied the defendant of his right to a speedy and expeditious trial.  One of the factors the Court considers is whether the defendant willfully failed to appear, thereby contributing to the delay.  While a failure to appear is a significant factor, it in and of itself is not enough to deny the motion.

Another consideration is what prejudice the delay has caused the defendant.  In other words, how much has the delay or passage of time caused damage to any defenses the defendant can present.  One form of prejudice is the inability of witnesses to remember the event in question.  Lack of recollection can be a huge form of prejudice to the accused.  Also, evidence may have been lost or destroyed which can prejudice the case.

In California prejudice is presumed if the delay in getting the case to trial exceeds one year.  This means the defendant does not need to present evidence of prejudice if the age of the case is greater than 12 months.

How long does it take to have a Serna Motion heard by the Court?  It’s best to file a Serna motion at the arraignment or soonest possible time thereafter.  The Defense must serve the District Attorney or Prosecutor at least 10 Court days prior to the hearing.

What if the Judge grants the Serna Motion?  If the motion is granted the case is dismissed and cannot be refiled, the case is over and the defendant’s criminal record stays clean.

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Do I Need A Hit and Run Attorney?

Top Hit and Run Criminal Lawyer

Matthew Ruff, Top Rated Hit and Run Defense Attorney

If you were involved in a hit and run there are many things you need to know.  First, the crime of leaving the scene after an accident is defined in California Vehicle Code 20001.  The offense is committed when you or someone else leaves an accident without exchanging information with the other party, or if no other party is around, leaving a note and immediately reporting the incident to law enforcement.  Yes, it is not enough to simply leave your contact information with the other car, you must also contact the police if the incident occurred in Los Angeles City or CHP if the collision took place in a County area.

What if you flee but later want to go to the Police and report the accident?  Unfortunately, the crime occurs when you run and do not immediately report. Showing up the next morning or hours later could still result in your arrest.

What can an experienced attorney do to help? Most importantly having an attorney means you do not have to speak to the police.  In this country a person is entitled to be represented by a lawyer and not speak to the police if he or she chooses.  If you retain a lawyer he can act on your behalf and avoid incriminating statements being made that can be used against you in Court.  Matthew has successfully resolved over 98 percent of hit and run cases if he is retained at an early stage.

What if the damage is slight?  Any contact with another vehicle or property of any kind requires that information be exchanged.  In today’s digital age there are cameras everywhere and there is a good chance the incident was captured on video.  The first thing the police do when responding to a hit and run is check to see if there are any surveillance cameras.  Nowadays, Ring cameras are on almost every home.

In one recent case Matthew handled the client was tracked down with Ring footage.  If you are involved in a accident where you left the scene Matt can help.  Having an experienced attorney on your side early can mean the difference between criminal charges or the case being handled on a civil level.

Call Matthew today at 310-527-4100 or visit his website Hit and Run Attorney

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