California DMV Negligent Operator Hearing

In California you can be suspended if you incur too many points during a certain time period. Here is the maximum amount of points you can incur:

Point Count Time Period
4 Within 12 months
6 Within 24 months
8 Within 36 months

The good news is that if you receive a notice of suspension and within 14 days contact an attorney to request a hearing, most suspensions can be avoided.

The following are the issues at a hearing:

Severity and Pattern of Violations and Collisions

Review of the driving record should determine and consider the severity of the violations (i.e. DUI, hit & run, etc.).

The driver record should also be reviewed to determine if it shows a pattern of repeated violations or collisions. Examples include:

Multiple speed violations.
Right of way violations.
Signal and stop sign violations.
Patterns of violations and collisions should be compared to the driver’s proposed corrective measures and weighed in evaluating whether the driver’s plans for improvement are reasonable and credible.

Insight and Acceptance of Responsibility

The driving record will be reviewed to determine if the driver has a history of driving negligence, or if this is the first case of negligent operation. Stated remorse for past negligent driving may not by itself constitute evidence of the driver’s understanding or acceptance of traffic safety responsibilities. The driver should offer some explanation that demonstrates that he or she understands and accepts his or her behavior and that insight will result or has resulted in corrective measures.

Prior history of suspensions for negligence should be weighed in evaluating the credibility of the driver’s current expressions of concern for traffic safety and the reasonableness of the driver’s plans for improvement.

Mitigating Circumstances

Mitigation means extenuating, contributory factors, offered by the driver to lessen the degree of negligence. Mitigating circumstances will be weighed against the amount and seriousness of negligence shown by the evidence of the driving record and the driver’s testimony.

Example: She drives taxi in downtown San Francisco traffic, avoids many collisions, but unable to avoid them all. (High mileage and extreme driving conditions.)

It is not possible to list all the circumstances which may be considered “mitigating.” A circumstance may be mitigating in one case and not in another. The hearing officer determines if the mitigating circumstances reduce the negligence shown by the record.

Plans for Improvement/Corrective Measures

The driver may offer testimony that he/she believes lessens the degree of negligence shown by the record. The best evidence of correction of driving habits is a description of specific and reasonable steps that are currently being taken and of the control measures used to discourage “backsliding.”

Example: A driver with a speeding problem who shows evidence that a cruise control has been installed in the vehicle and plans to activate the cruise control on freeways, may have a greater chance of following through on a promise to slow down.

Any plans presented will be examined in light of the driver’s credibility and past actions in these circumstances.

Vehicle Use and Mileage

“Use” is interpreted to include the driver’s total vehicle use as well as use for work, school, medical treatments, or other routine activities the driver regards as significant. “Mileage traveled” includes both employment and nonemployment mileage.

Example: She previously drove a taxi in downtown San Francisco, she recently quit the job and is now working as a waitress.

The Vehicle Code does not limit consideration to employment related driving, nor does it specify how the driver’s amount of use and mileage should be weighed.

Hardship

In some cases, the driver may present mitigation relating to hardship. Hardship may include situations where:

The driver is a major contributor or sole provider of his or her family income.
Alternative transportation is not available for significant, routine activities, such as school, medical treatments, or employment.

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How Do I Get A Copy Of My Criminal Record?

Many people find a need to get a copy of their own criminal records, for example, when you are searching for a new job it is helpful to know what is on your public record. The best way to get a copy of your criminal background is through the California Department of Justice. They maintain all records relative to convictions in California.

Private companies that offer a copy of your background may not provide complete information so it is best to go directly to the government entity that maintains those records.

Here is the link to get started:
Get a copy of my criminal records in California

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Taking A Cellphone From Your Spouse Could Be Robbery

In a very interesting case a California Appeals Court has ruled taking a cellphone from your wife with force during an argument could constitute robbery, even if the phone is community property. The case is People v. Aguilera (2016) 244 Cal.App.4th 489, here are the facts:

The defendant and his wife were involved in a heated argument and physical fight, Defendant took her cellphone and wallet from the purse, throwing the purse back into the car. Responding police found defendant a block away talking on his cellphone with his wife’s cellphone and wallet in his pocket. Both he and his wife suffered minor cuts and bruises in the altercation. Defendant was charged among other things with a second degree robbery for taking the cellphone from her by force and violence. However, there was testimony at defendant’s subsequent trial to the effect that the cellphone, having been purchased by defendant for his wife and to which he had ready access, was community property. Despite this evidence, the trial court declined to instruct the jury on the difference between community and separate property and he was Convicted of second degree robbery and other charges including domestic violence.

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New California Law Makes It A Felony For Prosecutors To Withhold Evidence In Criminal Cases

Although it happens in some cases, I was surprised to learn that it was not a felony crime for prosecutors to withhold evidence in criminal trials. That has changed in 2017.
California Penal Code § 141 (Amended): A Prosecutor Withholding Exculpatory Evidence: Addition of new subdivision (c) provides that “(a) prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony . . . .”
Punishment: Felony; 16 months, 2 or 3 years in prison or county jail pursuant to P.C. § 1170(h).

Courts have always found that withholding of evidence is grounds for reversal of a conviction or other court- imposed sanctions against the prosecution (See Brady v. Maryland (1963) 373 U.S. 83; generically referred to as a “Brady Violation.), a prosecutor intentionally withholding exculpatory evidence is now a felony offense. Peace officers doing the same (per subd. (b)) is already a felony offense, but with a greater punishment; 2, 3 or 5 years in prison. For anyone else, the offense is a misdemeanor (subd. (a)).

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Memorial Announced For Criminal Defense Attorney Anthony Brooklier

A memorial has been set for one of our own, Tony Brooklier, a well known criminal defense attorney in Los Angeles. Here are the details:

Dear family, friends and colleagues. Tony’s memorial service has now been set for Saturday, January 7th at 10:00 A.M. at his beloved Alma Mater, Loyola Marymount University in Los Angeles. Address: 1 Loyola Marymount University Drive. Los Angeles, 90045.

The memorial service begins at Sacred Heart Chapel. Following the short service, there will be a Celebration of Life at St. Roberts Hall, just behind the chapel. I ask that all of you share this information, as so many of you have inquired. My heartfelt thanks for the incredible love, respect and admiration you’ve all shown for my beloved husband. — at Loyola Marymount University

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What Affect Does Judicial Diversion Have On My Arrest Record?

Judicial Diversion under Penal Code 1001.94 allows a case to be dismissed upon completion of certain conditions. What happens to the arrest record?

Penal Code 1001.96 addresses that issue
It states that If the defendant, during the period of deferral imposed pursuant to subdivision (a) of Section 1001.94, complies with all terms, conditions, and programs required by the court, then, the judge shall, at the end of the period, strike the defendant s plea and dismiss the action against the defendant.

(b) Upon successful completion of the terms, conditions, or programs ordered by the court, the arrest upon which sentencing was deferred shall be deemed to have never occurred. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment for the offense, except as specified in subdivision (c). A record pertaining to an arrest resulting in successful completion of the terms, conditions, or programs ordered by the court 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.

(c) The defendant shall be advised that, regardless of his or her successful completion of the terms, conditions, or programs ordered by the court pursuant to this chapter, the arrest upon which the judgment was deferred may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding Section 1001.94, this section does not relieve him or her of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.

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Prop 57, Broken Down

Recently, California voters passed Proposition 57 which substantially changes the amount of time criminal offenders can serve in prison for felony offenses. What does Prop 57 actually do?

There are three main provisions created by Proposition 57– two relating to adults and one to juveniles:
 Adults:
1. Parole Eligibility Changes
2. Credit Awards Changes

 Juveniles:
3. Direct Filing of Criminal Complaints Against Juveniles in Adult Court is Eliminated

What are the Direct Results of Proposition 57?
1. Offenders who commit multiple crimes against multiple victims will be eligible for release at the same time as offenders who only committed a single crime against a single victim.
2. Repeat offenders will be eligible for release after the same period of incarceration as first time offenders.
3. Offenders whose sentence was enhanced for especially egregious conduct will be eligible for release at the same time as those who did not engage in the egregious conduct.
4.The California Department of Corrections will have unlimited authority to award credits to all inmates, in excess of the current 15%, 20% and 50% conduct credit limitations.
5. Juvenile offenders who commit violent crimes like murder, rape and carjacking cannot be filed on as adults. They must be filed on in juvenile court and can only be found unfit by a judge.

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