Friday, October 25, 2013

How to Clean Up Your Criminal Record, Part II

I've previously written a post, available here, about the process for obtaining an expungement in California.  Today, I want to discuss the procedure for obtaining a Certificate of Rehabilitation & Gubernatorial Pardon.

If you read my post on expungements, you'll know that an expungement dismisses a case against you AFTER you've successfully completed probation and satisfied all terms of your sentence.  An expungement will not "seal" your record -- your criminal record will still exist and it will still be public.  Rather than showing a conviction, however, your criminal record will show a dismissal after the expungement is granted.  This allows you to honestly state that you have no criminal convictions when you apply for jobs in the future.  An expungement will not restore your right to possess firearms and will not relieve you of your duty to register as a (fill-in-the-blank) offender.

If you were sentenced to state prison in a felony case and were not given probation, then you are not eligible to apply for an expungement.  Luckily, there may be another option available to help you clean up your criminal record.

Individuals who have been committed to state prison may apply for Certificate of Rehabilitation (hereinafter, a "CR") after a specified period of time has elapsed.  Unlike an expungement, a CR will not dismiss the charges against you.  It will, however, serve as an official acknowledgement of your reformation and continued good conduct.  When prospective employers run background checks on you, they will see that you made mistakes in your youth, but also that you learned from those mistakes and that you remained law-abiding thereafter.  A CR may also improve your prospects of obtaining various state-issued licenses (e.g. to become a nurse, chiropractor, attorney, etc.).

The amount of time that you must wait before applying for a CR depends on the nature of the crime for which you were convicted.  Generally, an applicant must remain law-abiding for 7-10 years after his or her release from prison before becoming eligible to apply for a CR.  You must also show that you have resided in California for the required period, have not been incarcerated since your release from prison, and are not currently on parole or probation.

To begin the process, an applicant must file several documents with the local court.  These documents are referred to as the "Petition for Ascertainment", the "Declaration of Rehabilitation" and an "Order Declaring Petitioner to be Rehabilitated".  A judge will review the application packet to determine the petitioner's eligibility.  Aside from the factors listed above, the court is specifically looking for 4 criteria:

-Has the petitioner lead an "honest and upright" life since his or her release from prison?
-Has the petitioner conducted himself or herself with "sobriety and industry"?
-Has the petitioner exhibited "good moral character"?, and
-Has the petitioner conformed to and obeyed the laws of the land?

If the court is satisfied that you are eligible for the relief requested, the judge will sign the Order that you provided with your application packet.  Once it is signed by a judge, the Order becomes a "Certificate of Rehabilitation".  A judge has essentially declared you to be "officially rehabilitated".

The court will then send a copy of the signed Order to the governor's office, along with a recommendation that the governor grant the petitioner a full Gubernatorial Pardon.  This is done automatically, without any further requirements of the petitioner.  If granted, a GP will dismiss the charges completely, similar to what an expungement does.  Unlike an expungement, however, a GP may restore firearms rights and may even relieve some petitioners of their duty to register as sex offenders.  A GP also differs from an expungement in another key regard -- having received a pardon does not allow the pardoned person to state on a job application that he or she has no criminal convictions.  It will allow a previously-convicted felon to serve on a jury, but it will not necessarily prevent deportation.

So, that's the process in a nutshell.  There are a lot more boring details that I'd be happy to discuss with anyone who cares to ask.

If you've ever wondered about your eligibility for an expungement, a Certificate of Rehabilitation, and / or a Gubernatorial Pardon, call my office for a free consultation. 714 449 3335.

Thanks for reading.

Thursday, October 10, 2013

How to Avoid Being Pulled Over for DUI

Here's a question that I hear often:  What can I do to reduce the chances that I'll be stopped on suspicion of DUI?  The short answer is, "Don't drink or use drugs before driving".  Duh.

If only it were that easy.

Though they won't admit it, cops are often under immense pressure to make a lot of DUI arrests, even if those arrests don't result in convictions.  Awards, promotions and grants are often tied to the number of arrests that an officer or a department makes in a given year, with little or no regard for the arrestees' actual guilt or innocence.  Cities make big money on towing and impound fees and police get to tout their aggressive stance against drunk drivers.  Too often, this leads cops to err on the side of making the arrest, even when the evidence is lacking.

The DA might eventually decline to pursue the case against you, but the harm may already be done.  By the time you're exonerated, you've probably had one of the worst nights of your life -- you've been handcuffed and transported the local jail, booked and photographed, thrown into a crowded holding cell full of real criminals and released some time the next day.  Good luck explaining everything to your boss and your kids.

Here are some easy steps that you can follow to reduce the chances that you'll be stopped on suspicion of DUI --

1.  Obey all traffic laws:  Breaking some minor traffic law is the #1 reason that people are stopped and arrested for DUI.  Use your turn signals, obey the posted speed limits and don't do anything to draw unnecessary attention to yourself.  Some of the rules that follow are simply reiterations of this basic no-brainer.  Remember, police don't need "probable cause" to stop you -- they only need "reasonable suspicion".  Reasonable suspicion is what it sounds like -- some set of facts that would cause a reasonable person to suspect that you might be up to something illegal.  Don't give them that reason.

2.  Ensure that your vehicle is "up to code" and in proper working order:  Are ALL exterior lights functioning?  This includes the little light above your license plate and the third brake light in your rear window.  ANY non-functioning exterior light can be cause for a traffic stop, even if the light itself is superfluous or not required by law.  It sounds ticky-tacky (and it is), but cops can and will stop you for a single non-functioning LED bulb anywhere on the exterior of your vehicle.

-Are your tags current?

-Are your windows illegally tinted?

-Is your exhaust illegally modified?

-Do you have a front license plate?

-Are you wearing your seat belt?

-If you drive a lifted truck or jeep, are your fenders up to code?

-Is your music too loud?

-Do you have objects on your dashboard or in your rear window that might be obstructing the driver's view?

-If you're smoking, don't litter with your cigarette butt (this goes for everybody at all times, not just drivers.  Seriously, some of us live here.)

These are the kinds of non-moving violations that can lead to unwanted contact with law enforcement.

3.  Don't talk on the phone or text:  This goes back to rule #1 -- don't break the law.  Even if the police don't see you using the phone, taking your eyes off of the road may cause you to "drift" or "weave".  That drifting / weaving can be misinterpreted as "impaired driving" and could be the basis for a traffic stop.

4.  Don't draw unnecessary attention to yourself:  Remember what I said above -- Cops don't need probable cause to pull you over; they just need a reason to suspect that something might be wrong.  You can be stopped even if you're not breaking any laws.  Accelerating or braking too quickly or too slowly might attract police attention, even if those acts are not necessarily crimes in themselves.  The same goes for taking turns too fast or hitting dips too hard.

5.  If you've already stopped before the police make contact with you, don't talk yourself into trouble:  Here's a situation that I see very often --

Abe and Ben are leaving the bar after having a couple drinks each.  Abe is driving Ben's car.  He's not wasted, but he's close to the legal limit.  They run out of gas on the freeway, so Abe pulls to the side of the road, makes a phone call, and waits for a friend to bring them a gas can.  After a few minutes, a CHP cruiser pulls up and the officer asks Abe if he's OK.  While speaking to Abe and Ben, the officer notices that they both smell like alcohol and appear to be displaying several objective symptoms of intoxication.  Here's where Abe makes his big mistake -- Abe tells the officer that he and Ben just left the bar and that he was driving Ben's car on the freeway when they ran out of gas.  He states that he was driving Ben's car because Ben had drank too much.  Abe denies consuming any alcohol since driving.  He further states that he smoked a small amount marijuana earlier in the day, but he's a qualified medical patient and he denies feeling any residual effects from the drug.

Abe has just convinced the officer to arrest him.  If he had simply exercised his right to remain silent, he might sleep in his own bed tonight.

If you're ever in this situation, remember that it is a crime to lie to the police.  You do not need an elaborate alibi.  Making false statements to the police can get you into more trouble than you're already in.  That being said, you don't have any obligation to incriminate yourself or to provide police with crucial pieces of evidence that will form the basis of the case against you.  You should politely refuse to answer any questions regarding where you were coming from, where you were going, whether or not you were the driver, what time you were driving, whether or not you have consumed any alcohol or drugs, whether or not you feel the effects of any alcohol or drugs, etc.  You must provide your name, driver's license, and proof of registration / insurance.  Always be polite, but never volunteer more information than necessary.

As always, be safe, be smart, but if you're neither, you know what to do.

Wednesday, October 2, 2013

Posting "Revenge Porn" is Now a Misdemeanor in California

PC 647(l) makes it a misdemeanor to post online, distribute or otherwise disseminate nude photos of your ex. Anyone convicted under this section could face up to 6 months in jail and a $1,000 fine for the first offense, with the penalty doubled for a second offense.

The bill, proposed by Anthony Cannella (R-Ceres), was signed by Gov. Brown and took effect in 2013. It provides, in relevant part, the following:

"...that any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, is guilty of disorderly conduct."

Put simply, you can be arrested and prosecuted if you share (or post, or publish, or upload...) nude pictures of someone without that person's permission. Even if you had permission to take the photos when they were created, or even if the photos were sent to you, you may not distribute those photos without the subject's permission. 

Disseminating revenge porn may also be the basis for a Domestic Violence Restraining Order. Even though we don't typically think of revenge porn as being an act of "domestic violence", a judge will grant a domestic violence restraining order if the the victim requests one because the act of posting revenge porn can constitute "harassment". Aside from being arrested and possibly jailed, you will be barred from possessing firearms if a restraining order is granted against you. 

Finally, you are likely to be sued if the victim can prove that you breached his or her privacy by publishing intimate photos.

There are many possible defenses to the crime of distributing revenge porn. Our office has experience fighting these types of charges and we can help if you have been arrested or if you believe that you are under investigation. Call us for a free attorney consultation. 714 449 3335

Thanks for reading.