Thursday, August 20, 2015

How to Clear an Old Warrant in California, part 2

In my previous post, I described the process of adding a case onto the court's calendar to clear up an old warrant if you've previously failed to appear.  In this post, I want to discuss a little more about what happens when there has been a long delay between the commission of the crime and a defendant's appearance in court.

My last post briefly mentioned the "Statute of Limitiations" (or "SoL" for short).  I mentioned that the SoL will not usually help you if you have an outstanding warrant.  The SoL refers to the time between the commission of the crime and the filing of charges.  The SoL for most misdemeanors in California is one year.  This means that the DA must file a criminal complaint within one year of the crime or else they will be barred from doing so.

Often, the DA will file criminal charges against a defendant within the SoL, but the defendant fails to appear in court.  When the defendant misses his court date, a warrant will be issued and it will remain in effect until it is recalled by a judge.  If the defendant is captured and brought to court several years from now, he may not claim the protections of the SoL because the charges were filed within the statutory period (within one year of the date on which the crime was committed), even if the defendant's first court appearance did not happen within that time.

Even if the SoL isn't a winning argument in your case, you might have other defenses that arise when there has been a long delay.  The US Constitution assures the right to a speedy trial.  If you have had an arrest warrant outstanding for a long period of time, you might have an argument to dismiss the case based on a violation of this constitutional right.  This is called a Serna motion.

In a Serna hearing, the judge is weighing several different considerations:  How long has the delay been?  Why did the delay occur?  Has evidence been lost or destroyed?  Have witnesses become unavailable to testify?  Is it still possible to conduct a fair trial?

The big difference between an SoL argument and a speedy trial argument is the time period that we're focused on.  Remember, when we're talking about the SoL, we're talking about the date of the crime until the date on which charges are filed.  When we're talking about speedy trial rights, we're talking about the period of time between the filing of charges and the defendant's first court appearance.

Generally, if more than one year has elapsed between the filing of charges and the defendant's first court appearance, then the burden falls on the DA to justify the delay.  The DA might explain why the delay is the defendant's fault and not the state's fault -- maybe the defendant signed a "promise to appear" and then failed to appear.

If the DA can prove that the defendant had actual notice of his original court date but never showed up, then the judge will want to hear a very compelling argument as to why the defendant should benefit from his own broken promise.  Maybe the defendant can prove that his original court date was rescheduled or relocated without proper notice.  Maybe it was filed under the wrong name.

Even if the delay is entirely the defendant's fault, a judge might agree to grant a Serna motion and dismiss a case when it can be proven that evidence is no longer available and that the defendant would be prejudiced by standing trial today on such an old case.

If you or a loved one has an old warrant in California, call our office for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Monday, August 17, 2015

What Can I Do About an Old Arrest Warrant in California?

An outstanding arrest warrant will basically ruin your life until it is addressed.  Your old warrant will never simply go away on its own.  Luckily, you've already taken the first step toward fixing the problem -- you Googled it and you found this blog post.  Now, let's take the next steps to clear up this old headache for good.

Arrest warrants can be issued for a number of different reasons.  The most common situation we see arises when a defendant has failed to appear at a scheduled court date.  Maybe it was your fault -- you knew about it, but you were afraid appear.  Maybe you couldn't miss work, you couldn't get a ride to court, or you had trouble arranging childcare for your kids.  Maybe it wasn't your fault at all -- someone else used your ID when he was arrested, or the DA mailed a "Notice to Appear" to a bad address.  Either way, the judge issued a bench warrant when you failed to appear.  Now you're a fugitive.  You can be arrested at your home, your workplace, or wherever the police happen to find you.

That's what we want to avoid.

To clear this warrant, your case must be added onto the court's calendar as soon as possible.  Different courts have different procedures for requesting calendar add-ons.  It's helpful to have a local attorney who understands the quickest, easiest way to get your case scheduled without unnecessary delays.

Once your case has been added onto the court's calendar, you or your attorney must appear before a judge to request that the warrant be "recalled".  In most misdemeanor cases, your attorney can do all this without you being personally present.  I can save you the expense of traveling all the way back to California for a no-fun day in court.  Boarding an airplane with a revoked driver's license and an active warrant is another adventure you don't need.  Let me take care of your old California warrant and save yourself the trip.

Often, the judge will be unhappy that you've previously failed to appear for a scheduled hearing.  It costs the county time and money to issue warrants when defendants fail to appear.  The judge may require you to reimburse the county for those expenses.  He or she might also impose bail if you were previously free on your "own recognizance" ("O.R.").

When you (or your attorney) is standing before the judge and asking to recall your warrant, the judge must determine whether or not you should be considered a "flight risk".  If a judge decides that you are likely to disappear again, then your bail could be set very high.  To avoid this, it's important to have your warrant addressed as quickly as possible after it's issued.  If you have an outstanding warrant for 10 years before you make any effort to address it, the judge will not sympathize with you.  If, on the other hand, you show up in court very soon after learning about your warrant, the judge might be willing to show some lenience.

Retaining a private attorney to address your old warrant will also show the judge that you take the matter seriously and that you are not a flight risk.  People don't hire lawyers when they're planning to disappear.

As mentioned above, your warrant will not simply go away by ignoring it.  The statute of limitations does not apply if you have an outstanding warrant.  The "statute of limitations" ("SoL" for short), refers to the time between the commission of the crime and the filing of charges.  It does NOT refer to the time between the commission of the crime and your arrest / appearance in court.  If the DA has filed charges against you in a timely manner but you are not captured for several years, you will not be able to claim the protections of the SoL.  You might have other defenses, but the SoL is irrelevant in this situation.

If you or a loved one has an outstanding arrest warrant in California, call us for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Lawyer

Thursday, August 13, 2015

Gov. Brown Signs Bill Affirming the Right to Film Police in California

As I've previously written here, Californians have the legal right to film police while officers perform their official duties in public as long as the citizen does not obstruct or interfere with the performance of those duties.

On Tuesday, Gov. Brown signed SB-411 into law, which will amend the Penal Code to specifically affirm the right of citizens to film police.  Sections 69 and 148(a)(1) of the code will be amended to include the following language: "The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of [this code], nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person."

The law was drafted by the California Public Defenders' Association and supported by the ACLU and other civil rights groups.  There was no organized opposition.  Practically, the change will have no legal effect.  The act of filming police in public has always been legal in California (in the sense that it has never been illegal).  This bill merely clarifies and restates existing law.

If you have questions about your rights during encounters with police, please call our office for a free consultation.  (714) 505-2468.  Ask for John.  

Thanks for reading.