New Law Allows Individuals with Drug Convictions to Earn Teaching Credentials

Until last year, the California State Education Code prohibited the Commission on Teacher Credentialing to issue a credential to any person who had previously been convicted of a crime involving controlled substances.  

Gov. Newsom signed SB-731 into law in 2022.  That law amended the Education Code to provide a path for some individuals with prior drug convictions to earn teaching credentials.  The conviction must be more than 5 years old and the applicant must have already received an expungement.  If the applicant meets both of those criteria, the Commission may not use the old conviction as a basis to deny the issuance of a credential.  

Our office has extensive experience with expungements in California.  Even if other attorneys have told you that you are not eligible, call us for a second opinion.  Many lawyers are not familiar with recent changes in the law that now make relief available to people who were previously disqualified.  

If you or a loved one has ever thought about becoming a teacher but were deterred by an old drug conviction, we can help.  Call for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County Expungement Lawyer

Court Rules that Drug Users are Allowed to Possess Guns

In an opinion published Wednesday (USA v. Daniels), the Second Circuit Court of Appeals invalidated a federal law that prohibited "unlawful users of controlled substances" from possessing firearms.  Applying the Bruen "historical analogy" test, a 3-judge panel found that "at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at some point from possessing guns at another."

The defendant had been stopped in Mississippi for driving without a license plate.  A DEA agent noticed some roaches in his ashtray and a search of the vehicle uncovered two loaded firearms.  Mr. Daniels admitted to smoking marijuana approximately 14 times per month, but officers never asked if he was under the influence at the moment and no drug tests were performed.  He was arrested on suspicion of violating 18 USC 922(g)(3), a federal law that prohibits "unlawful users of controlled substances" from possessing firearms.  Mr. Daniels was convicted by a lower court and sentenced to serve 4 years in prison.  

Anyone who has ever purchased a firearm from a licensed dealer knows about Form 4473.  The standard questionnaire is used to screen out buyers who are federally prohibited from possessing firearms.  It asks about felony convictions, dishonorable discharges from the military, involuntary commitments to mental hospitals, whether the buyer has ever renounced his / her US citizenship, and whether the buyer is a "unlawful user of controlled substances", among other things.  In 2016, the ATF updated the form to warn that marijuana is still illegal under federal law, regardless of whether or not it has been legalized in the buyer's home state.  Making a false statement on the Form 4473 is punishable by a maximum of 10 years in prison. 

The court in Daniels spent a significant portion of the opinion struggling with how to define a "historical analogy".  How "analogous" does a historical law have to be to the modern law at issue?  The judges determined that the answer depends on whether a modern gun restriction attempts to address general societal issues which existed at the time of the founding, or "unprecedented societal concerns that the Founding generation did not experience".  If the issue is one that the Founders would have understood, then modern analysts should look for distinctly similar historical examples of regulation.  On the other hand, if today's law attempts to regulate some issue that the Framers could not have foreseen, then modern judges should look for historical examples of regulations that are merely "relevant", even if not "distinctly similar".  

The Framers of the US Constitution only knew cannabis as a source of rope, not as an intoxicant.  They had no thoughts about marijuana or the modern drug trade, but they were very familiar with alcohol, alcohol abuse and the dangers of handling firearms while under the influence.  Since alcohol is our closest historical analogy to cannabis, the judges in Daniels pored over early American laws and regulations for any examples of how (or if) the Founders approved of disarming intoxicated individuals.  They note that very few such laws exist.  A 1656 Virginia law, for instance, prohibited the discharge of firearms while intoxicated, but not for the reasons that might seem intuitive for a modern observer.  At the time, lawmakers were primarily concerned with conserving scarce gunpowder and with the risk that "ill-timed gunshots might be mistaken for a signal that local Indians were attacking".  The Virginia law did not prohibit intoxicated individuals from owning or possessing firearms.  

The court cited a New York law, enacted in 1771, which prohibited intoxicated individuals from discharging firearms between December 31 and January 2 because of the "great damages" done over the New Year holiday.  It also mentioned a handful of local statutes that prohibited militiamen from carrying weapons while intoxicated.  Aside from these few examples, no other notable restrictions appeared on law books until the Reconstruction period, following the Civil War.  At that time, only 3 states prohibited the carrying of firearms while intoxicated, and no state disarmed individuals merely for being "users" of alcohol.  

The court ultimately concluded that no such historical analogy exists to justify disarming individuals merely for their status of being "unlawful users" of controlled substances.  It noted that the case might have turned out differently if the state could present some evidence that Mr. Daniels was intoxicated at the time he carried the weapons, or that he was dangerous to public safety due to his drug use.  

Cases like this are coming down every week, and they are continuing to completely reshape the way we think about gun laws in California.  I will do my best to stay on top of the latest developments, so check back often for updates as they become available.  

If you or a loved one has questions about California gun laws, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Fullerton Gun Lawyer

Did the 9th Circuit Just Legalize Butterfly Knives?!?

A 3-judge panel of the 9th Circuit Court of Appeals just invalidated Hawaii's ban on butterfly knives.  Ruling in the case of Teter v. Lopez, judges found that a Hawaii law which prohibited the manufacture, sale, transportation and possession of butterfly knives violated the Second Amendment of the US Constitution.  

The Old Rule

Readers of this blog know that the US Supreme Court recently adopted a new test to determine whether or not a specific law violates the Second Amendment's right to bear arms.  

Previously, the court weighed the importance of a state's interests and considered the degree to which the law was related to serving that interest vs. the degree to which it infringed upon some "core" Second Amendment right.  If the law was closely related to achieving some important government interest (i.e. reducing gun violence, etc.), then it was generally allowed to stand.  

The New Rule -- Bruen

In Bruen, though (decided last year), the Supreme Court announced a new test to apply in cases involving Second Amendment challenges.  

Rather than considering the importance of a state's interests and the degree to which those interests relate to a given law, lower courts must now apply a "historical analogy" test to Second Amendment issues.  If the law in question is similar, or "historically analogous" to some law that existed at the time the Constitution was adopted, then we can assume that the Framers approved of the restriction and that the law is constitutional.  If some modern restriction is without historical precedent, though, then we should conclude that the Framers would not have accepted it and that the modern law is unconstitutional.  

Teter

Hawaii laws prohibit the manufacture, sale, transportation and possession of butterfly knives.  Plaintiffs in Teter were law-abiding residents of Hawaii who wanted to -- and were legally prevented from -- purchasing butterfly knives for self-defense.  They brought a suit against the Attorney General of Hawaii to invalidate the state's ban.  A lower court had ruled for the state and plaintiffs appealed to the 9th Circuit. 

The appellate court started by establishing that butterfly knives are "arms" and that they, therefore, fall within the protections of the Second Amendment. 

Once the court overcame this initial hurdle, it spent most of the published opinion analyzing various historical knife laws that Hawaii cited as precedent for its restrictions.  Judges examined several 200 year-old statutes that prohibited certain types of people from carrying specific weapons at particular places and times.  Some historical laws banned the "concealed carrying" of Bowie-type knives, along with cane swords and other objects that were not immediately identifiable as deadly weapons.  Many of these archaic laws included exceptions for law-abiding people to carry otherwise-prohibited weapons for self-defense, while traveling or "carrying on lawful business", etc.  

None of the laws that the State of Hawaii cited as historical precedents specifically banned butterfly knives.  The judges reasoned that a butterfly knife is more analogous to a typical pocket knife than it is to a Bowie knife, and that none of the historical laws prohibited pocket knives.  The court also noted that most of the laws cited by Hawaii prohibited the carrying of certain weapons in public, but not the manufacture, sale or private ownership of those same weapons.  

The judges concluded that no historical precedent supported the state's position and remanded the case to the lower court for "further proceedings consistent with this opinion".  

What Does This Mean for California?

Butterfly knives are included within the definition of "switchblades" under section 17235 of the California Penal Code.  

Section 21510 of the California Penal Code makes it a misdemeanor to carry a switchblade in the passenger area of a car or "upon the person".  It also prohibits the sale or transfer of any switchblade.  That includes giving, loaning, or offering to sell a switchblade.  

Interestingly, California law does not prohibit the manufacture, transportation or possession of a switchblade.  Switchblades may be legally produced in California for sale outside of the state (and imported into the state if purchased elsewhere), kept at home, or carried in the trunk of a car.  

Since Hawaii's law was more restrictive than California's, it is not clear how the court would rule on a challenge to PC 21510.  The California law seems to be more in line with the historical cases that prohibited certain types of weapons in specific places.  At the same time, the courts could reason that a switchblade or butterfly knife is more analogous to a pocket knife than it is to a Bowie knife, and that there is no historical precedent for any restrictions.  

We will be following this closely, so check back for updates as they become available.  

If you or a loved one has questions about knife laws in California, call for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County Knife Lawyer

CA Expungements Just Got Even Cheaper and Easier

Effective July 10, 2023, the California State Legislature has repealed the filing fee that courts could impose for expungement petitions.  

Section 1203.4 et seq. of the California Penal Code previously allowed local courts to set expungement filing fees up to $150 per case.  Actual fees varied, depending on the courthouse and on whether or not the judge's decision required a formal report from the probation department.  

Starting this month, though, there is no fee to file an expungement petition anywhere in the State of California.  Take advantage of this while it lasts.  

Our office has been processing expungements in Southern California for over a decade.  We have the experience that it takes to to file applications quickly, efficiently and correctly the first time.  This new amendment to the law is going to make the process even smoother and cheaper for our clients, so I am happy to announce it.  

Currently, the court grants expungements anywhere from 3-8 weeks after they receive the petitions.  I am curious to see if that timeframe changes now that the court may experience a higher volume of petitions and fewer funds will available to pay for the additional manhours required.  

If you or a loved one have questions about applying for an expungement in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Expungement Lawyer

Expunge Your Record with OC's Best

There are plenty of lawyers in Southern California who are perfectly capable of preparing and filing your expungement petition, but there can only be one "best".   When it's time to clean up your criminal record, don't settle for "good enough".  Instead, call the firm that has the experience to get the job done quickly, affordably, and correctly the first time.

What Does an Expungement Do?

California law provides several different options to clean up old criminal records, to reduce felony convictions to misdemeanors (and misdemeanors to infractions, in some cases), and to seal arrest records from public view.  We offer free consultations to help decide which option is best for each prospective client. 

A traditional expungement results in a case being dismissed after the defendant has completed serving all penalties.  If the defendant has done so and does not have any other open or pending cases, then he or she is automatically entitled to have the case dismissed.  The old charge may still show up on some official records, but employers may not use expunged cases to discriminate against job applicants.  

In the past couple of years, the legislature has expanded the law to allow expungements in cases that were not previously eligible.  If you've been denied in the past, call us to see whether or not you might be eligible to reapply.  

Our Advantages

Our firm's small staff and low overhead help keep costs down for our clients.  In most cases, we can successfully process expungement petitions for a fraction of what bigger firms charge.  We even offer easy payment plans to fit any budget.  

When you hire us to perform legal services, you're not paying for our bloated advertising budget or lavish amenities; you're paying for the results that we consistently deliver.  

Each of our clients receives one-on-one, personal attention from the attorney who will be responsible for handling their case to completion.  We never hand off important work to junior associates or outsource our cases.  If you have a question, call or email any time for a prompt response.  

We work quickly and we work efficiently.  Our office has the experience necessary to prepare expungement petitions, file them with the court, and serve them on the DA within 24-48 hours after we're hired.  Depending on the court's backlog, expungement orders may be granted as soon as 3 weeks after they're filed.  

Personally, expungements are some of my favorite cases to handle.  I've heard other attorneys complain about the tedious paperwork, but I find expungement petitions to be rewarding.  As a criminal defense attorney, it's always great to call a client when I have some good news to share.  

If you or a loved one has questions about expungements in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County's Best Expungement Lawyer

The Latest Developments in California Gun Laws

I've previously written on this blog about California's complicated relationship with firearms and the Second Amendment.  The Golden State has a well-deserved reputation for its progressive policies, and its strict approach to gun control is no exception.  Over the past decade, the state has enacted a slew of legislation, aimed at restricting access to entire classes of popular weapons.  This blog post will provide an overview of the most noteworthy recent changes to California's gun laws, and what those changes mean for gunowners. 

Ban on "Assault Weapons"

AB 1135, passed in 2016, expanded the definition of an "assault weapon" to include some of the most popular firearms in use today.  Virtually any semi-automatic, centerfire rifle with a removable magazine now falls within the class of these highly-restricted weapons.  The same is true for pistols with magazines located outside of the grip.  

In 2017, the Dept of Justice adopted an online system and required registration of all "assault weapons" in the state.  Firearms that were lawfully registered before the deadline are grandfathered in, but they can never be transferred to any other owner, even upon death. 

Enhanced Background Checks

All firearm transactions in California must be conducted through a licensed dealer, even private party transfers. 

In 2016, California voters approved Prop 63, making it the first state in the country that required individuals to pass a background check before purchasing ammunition. 

High-Capacity Magazines

Prop 63 also banned the possession and sale of "high capacity" magazines (magazines that hold more than 10 rounds -- considered by some to be "standard capacity" magazines).  This particular law has bounced back and forth through the appeals process, where it was briefly suspended, then upheld, then finally overturned by the US Supreme Court.  

Some of us remember "Freedom Week" in 2017, when Judge Benitez placed the law on hold and temporarily allowed the importation of high-cap mags.  The 9th Circuit Court of Appeals reenacted the ban before the Bruen decision turned everything on its head.  More on that below.  

The status of California's high-cap magazine ban is up in the air today.  We can expect a lot more litigation before this one is finally worked out.  Check back for developments as they become available. 

"Red Flag" Laws

California's "red flag" laws allow family members and law enforcement to request the temporary removal of firearms from individuals who pose an immediate threat to themselves or others. 

Gun Violence Restraining Orders (GVROs) reflect an attempt to strike a constitutional balance between public safety and respect for the individual's due process rights.  To help maintain this balance of interests, the legislature chose to limit both the duration of these orders and the standing to initiate a petition.  

"Standing" (the right to file a request for a GVRO) is limited to close family members and police officers.  You cannot, for instance, file a GVRO against a neighbor or a coworker.  Allowing strangers to initiate GVRO requests would open the floodgates to abuse and would jam the courts with frivolous filings.  

When a request for a GVRO is filed, the judge may immediately grant a temporary order if he believes that some extreme risk of harm exists.  If a temporary order is granted, the prohibited individual has the right to appear before the court within 21 days, where he will have an opportunity to oppose the request.  

Ban on "Ghost Guns" 

The California legislature passed AB 879 in 2019, banning the possession and manufacture of homemade "ghost guns".  

This law requires individuals to obtain a unique serial number and undergo a background check before manufacturing a firearm, and also to register any unserialized firearms in their possession. 

Safe Storage Requirements

California enforces strict safe storage requirements through Assembly Bill 1968, implemented in 2020.  This law mandates that firearms be stored securely when not in use.  Individuals who fail to adequately secure their weapons may be held civilly and criminally liable if the weapons is accessed by an unauthorized person and used to commit a crime. 

Bruen -- The Wild Card

Since the Supreme Court's ruling in Bruen last year, California's vast gun control laws may rest on shaky legal ground.  That ruling completely upended the way that courts analyze Second Amendment challenges.  Since the court announced this groundbreaking shift, gun control laws have been falling like dominoes all around the country.  

Bruen created a new test for the courts to apply when lawsuits challenge the constitutionality of some gun control law.  Previously, the state was only required to prove that the proposed law served to protect an "important" government interest (i.e., preventing gun violence) to pass constitutional muster.  If a limit on magazine capacity might reduce the lethality of mass shootings, then that was enough and the law was allowed to stand.  

In Bruen, though, the court struck down this old test.  Instead, it ruled that lower courts should look to historical precedent to decide whether or not some modern gun control law is analogous to a rule that existed at the time of the Founding (or if the Founders would have likely approved of the proposed restriction).  If the law in question has no historical analogue, then it is unconstitutional.  

The new Bruen test has been interesting to watch in practice.  What did the Framers think about AR-15 rifles?  Would they have allowed local states to prohibit or restrict their ownership?  The AR-15 obviously did not exist at the time of the Constitution's adoption, but individuals back then generally possessed the same weapons that were available to the army.  What about owning canons?  Or carrying weapons within city limits?  These are all questions that will probably come before the courts in the near future.  

Conclusion

Gun laws in California are complicated and constantly changing, but there are many defenses available to individuals who are accused of violating them.  Our office has extensive experience defending against all kinds of weapons-related charges.  

If you or a loved one has questions about gun laws in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Orange County Gun Lawyer

What is the Statute of Limitations for Arrest Warrants in California?

The "statute of limitations" refers to the period of time after the commission of a crime in which prosecutors must file criminal charges, or else be barred from doing so.  The clock starts ticking as soon as the crime occurs.  If time expires before DA files their case, then the defendant is untouchable.  He has an "affirmative defense".  If criminal charges are filed some time after the statute of limitations has lapsed, the defendant's attorney will simply demonstrate that the complaint is defective and must be dismissed.  

Keep in mind, though, that the statute of limitations has nothing to do with the period of time in which the defendant must be brought to court after the commission of a crime.  It only refers to the period in which the DA must file charges.  That causes a lot of confusion.  

Here's a common situation:  A person is cited or arrested for some minor crime.  He shows up for court, but the DA has not filed any charges yet, so he is told to go home.  After a few months-- but still within the statute of limitations-- the DA eventually gets around to filing the case.  They mail a "Notice to Appear" letter to the defendant's last known address.  The defendant never receives the letter, so he never appears for his court date.  A warrant is issued for his arrest.  Several years later, he is surprised to learn that he has an active warrant.  

The SoL would not be the appropriate defense here because prosecutors DID file charges within the proscribed time limits.  A warrant was issued when the defendant failed to appear in court, and the warrant has remained outstanding ever since.  The warrant will never simply go away on its own.  There is no statute of limitations for arrest warrants in California.  

Even if the SoL doesn't apply, though, a defendant in this situation has another option.  When there has been some long delay between the filing of charges and the defendant's first court appearance, the issue is not with the statute of limitations.  Instead, the question is whether or not the defendant's constitutional right to a speedy trial has been violated.  

Both the US Constitution and the California State Constitution guarantee the right to a "speedy and public trial".  If the government filed criminal charges against some person and then allowed those charges to hang open for a prolonged period time without making an adequate effort to bring that person to court, then the defendant might have a viable defense based on this unconstitutional delay.  

Speedy trial violations are challenged with Serna motions.  The judge will weigh a lot of factors to decide a Serna motion.  The first consideration is the length of the delay.  Short delays might be excusable.  The longer the delay has been, though, the harder it will be for the DA to overcome.  6 months is usually the threshold where a delay starts to drift toward "unconstitutional".  

The next big consideration in any Serna motion is always the blame for the delay.  If the defendant knew about his court appearance and chose to flee, he will have a hard time convincing a judge that his rights have been violated.  If the DA mailed their "notice to appear" letter to the wrong address (or failed to send a letter at all), the blame might lie with prosecutors.  Several years ago, I had a case in which the DA mailed their notice to my client's home in New Orleans, LA.  For some reason, the envelope was addressed to "New Orleans, CA", so my client never received it.  That Serna motion was granted and all charges were dismissed.  

The final consideration in a Serna motion is any prejudice caused by the delay.  "Prejudice" can be actual or presumed.  If witnesses have died or evidence has been lost, the defendant might be able to prove actual prejudice.  He cannot properly defend himself due to the amount of time that has elapsed.  When the delay has been over a year, the court will also presume some prejudice, just based on the fact that memories fade and that the defendant has been saddled with criminal charges for an undue length of time.  Even if the defendant cannot point to any specific lost piece of evidence, the prosecutor will bear the burden of proving that no such presumed prejudice exists.  

Sometimes, arrests warrants are issued after the defendant has already make a court appearance in his case.  Maybe he showed up for the first hearing or two, then stopped attending.  In those cases, neither the SoL nor speedy trial rights apply.  Any warrant will remain active until the defendant shows up to address it.  The same is true for warrants issued after conviction (probation violations, etc.).  The defendant may have other viable defenses based on missing witnesses, lost evidence, fading memories, etc., but he has no statutory or constitutional right to have the case tossed.  

If you or a loved one has an arrest warrant in Orange County, Los Angeles, Riverside or San Bernardino, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Orange County Warrant Lawyer

Fight Your Domestic Violence Case with the Right Lawyer

Domestic violence charges in California can carry significant penalties.  If you or a loved one has been arrested on suspicion of domestic violence, hiring the right attorney can make all the difference.  Our office has been successfully defending against all types of domestic violence charges since 2009.  

What is Domestic Violence?

Domestic violence is defined by section 6211 of the California Family Code as abuse committed by / against people who are having or who formerly had a romantic relationship (married or dating), people who live or lived together as partners (not just roommates), and people who have a child together.  It also includes abuse between siblings, parents and grandparents.  

The most commonly charged domestic violence offense in California is probably PC 243(e)(1), commonly known as "domestic violence battery".  To be guilty of violating PC 243(e)(1), the prosecutor needs to prove that the defendant made some harmful or offensive bodily contact with the victim, and that the parties meet the criteria described above.  "Harmful or offensive bodily contact" can include things like pushing, slapping, etc.  

If the victim is injured, prosecutors can raise the charges from 243(e)(1) to 273.5, "inflicting injury on a spouse or cohabitant".  More on that below.  

Contrary to its name, "domestic violence" encompasses some crimes that are not necessarily "violent".  Vandalism, for instance, can be treated as domestic violence.  It also includes things like child neglect, violating a domestic violence restraining order, and making harassing phone calls, if the DA can prove that the crime involved "abuse" by / against a family member.  

Penalties for Domestic Violence in California

Domestic violence battery (PC 243(e)(1)) is a misdemeanor, punishable by up to 1 year in jail and a fine of $2,000.00.  Once the court's mandatory "costs and fees" are tabulated, that $2,000.00 fine is a lot closer to $6,000.00

Inflicting injury on a spouse / cohabitant (PC 273.5) is a wobbler, meaning that it can be treated as a misdemeanor or a felony, depending on the circumstances.  If the charge is filed as a misdemeanor, the maximum penalty is 1 year in jail and a fine up to $6,000.00 (more like $30,000.00, with costs and fees).  If prosecutors elect to treat the charge as a felony, the maximum punishment is 4 years in prison for a first offense.  Penalties go up for repeated violations. 

Anyone who is convicted of violating PC 243(e)(1) or PC 273.5 must attend and complete a 52-week, court-approved anger management counseling program.  They must also complete at least 8 hours of community service.  Other domestic violence-related offenses might only require a 10-12 hour course of anger management counseling.  

For many people, the most significant consequence of a domestic violence conviction pertains to gun rights.  Any person who is found guilty of violating PC 243(e)(1) or 273.5 will be banned from possessing firearms and ammunition for life.  

Can the Victim Drop the Charges?

In most domestic violence cases, the alleged victim wants to drop the charges.  Once things cool down, she decides that the situation was blown out of proportion and she does not want to see her husband prosecuted over a little argument.  Unfortunately, it's not up to her.  The decision to prosecute rests with the DA.  They alone file charges, and they alone decide when / if to drop them.  

If prosecutors believe that they can win a conviction without the victim's cooperation, they will charge ahead.  Often, they don't need the victim's testimony to build a solid case.  They might have a 911 recording in which the victim describes what is happening as it happens.  The defendant might be clearly audible in the background of the recording.  Other witnesses might have seen what happened and given statements to police.  If the victim spoke to officers at the scene, then her words were probably recorded by body-worn-cameras.  Police probably took photos of any injuries and damaged property.  Even if the victim refuses to testify against her husband, the DA can simply use the evidence to tell their story. 

If an alleged victim really wants to help the defendant, the best thing that she can do is to cooperate with his lawyer.  A qualified criminal defense attorney (like myself) understands the rules of evidence and what it takes to make or break a case.  Always consult with counsel before speaking to police or prosecutors.  

Often, witnesses statements contained in police reports are wildly inaccurate, incomplete, or out of context.  As written, the reports might give a completely false picture of what actually happened.  We can help cooperative victims and witnesses prepare written statements to clarify important details in the police reports, correct any mistakes, and add context so the court better understands the truth.  

EPOs, CPOs and DVROs

Domestic violence cases may also involve Emergency Protective Orders (EPOs), Criminal Protective Orders (CPOs), and Domestic Violence Restraining Orders (DVROs).  Each of these orders can potentially do the same things, but they are issued under different circumstances.  Typically, the restrained party is ordered to stay some distance away from the protected person, as well as that person's home, school, workplace, vehicle, etc.  

An EPO is usually issued at or near the time of the arrest.  These are issued by judges at the request of the police.  They can remain in effect for up to one week.  

If the defendant remains in custody after his arrest, he will be brought to court for his arraignment within about 3 days.  When he makes his first court appearance, the judge will issue a CPO that will remain in effect while the case is pending.  A CPO may allow for "peaceful contact" between the parties if they both want it, and if the judge agrees to allow it.  While a peaceful contact order is in effect, the parties may be near each other.  They can even live in the same house.  If the restrained party becomes aggressive at any time, though, the protected person can call the police and have him removed from the house and / or arrested.  

If the defendant is convicted of some crime involving domestic violence, a CPO may remain in effect for up to 10 years.  

A victim of domestic violence may separately request a DVRO in Family Court.  I have previously written extensively on this blog about the process of seeking / fighting a DVRO.  

Domestic violence cases are complicated and the stakes are high.  If you or a loved one has been arrested or charged for any offense involving domestic violence, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton domestic violence lawyer

Should I Apply for a Restraining Order in California?

I've previously written extensively on this blog about the nuts and bolts of California restraining order laws -- how to get one, how to fight one, how to modify / terminate one, the rules of evidence that apply at restraining order hearings, and just about every other angle that I can think of.  

Today, though, I want to specifically address the question of WHETHER you should seek the protection of a restraining order.  If you're thinking about seeking a restraining order against someone else, read this before taking the plunge.  I'll discuss the various types of restraining orders that courts in California can grant, who they protect, the types of behaviors that can be enjoined (prohibited) and a few other issues that the petitioner should consider in advance. 

Getting Started

The person seeking the restraining order is called the "petitioner" (he or she files the petition to request a restraining order).  The restrained person is called the "respondent" (he or she responds to the petition).  

Once the petitioner files the initial request for restraining order, the court may issue temporary orders on the spot.  Those orders will remain in effect until the time of a hearing, usually about 21 days later.  At the hearing, each side will have an opportunity to tell their own version of the story, and also to present evidence and witnesses.  

Serving the Papers on the Respondent

Between the time of filing and the time of the scheduled hearing (inside that 21-day window), the petitioner must arrange to have someone personally serve all of the appropriate documents on the respondent.  The documents will notify the respondent of the date & time of the hearing, any temporary orders, and will also include the petitioner's description of why he / she feels that a restraining order is necessary.  

The petitioner cannot serve the documents him / herself -- someone who is not a party to the case must perform the service.  The person who serves the documents must also prepare and sign a document called a "proof of service", swearing under penalty of perjury that the papers were, in fact, personally served on the respondent.  The sheriff's department will usually serve court documents for free or a small fee.  The "proof of service" form must be returned to the court and filed before the time of the hearing.  The court will not go forward with the hearing unless the judge is satisfied that the respondent has been properly served and notified.  

Service is one of the first issues that the petitioner should consider -- do I actually know how to find the respondent?  If the respondent is homeless or has moved out of the state, personal service might be impossible.  If you don't realistically believe that you can find the respondent within 21 days and have him personally served, then a restraining order might be a waste of your time.  

Where to File

There are a few different types of restraining orders that courts can issue.  The type of order depends on the relationship of the parties.  If the parties are closely related, were formerly in a relationship or share a child together, then the case would be filed as a "Request for Domestic Violence Restraining Order", and the matter would be heard in the family court.  If the parties are coworkers, or if the petitioner alleges that he / she was harassed on the job, then the case would be considered "Workplace Violence" and would be heard in the civil court.  Other disputes (not involving family members or co-workers) usually fall under the umbrella of "Civil Harassment" restraining orders, which are also heard in the civil court.  

The venue where the case is filed can have a huge impact on the overall trial strategy.  The rules vary, depending on the type of order involved and the court where the case is being heard.  In cases involving domestic violence, for example, the petitioner's burden of proof is lower, but the rules of evidence are more restrictive.  Speak with a qualified, local attorney (like myself) to determine the most advantageous venue for your restraining order petition.  

"Harassment"

Another initial consideration should be whether or not the petitioner's allegations actually rise to a level that meets the legal definition of "harassment".  Like many other words in the English language, the court's definition of "harassment" is not exactly the same as the word's definition in common usage.  

In order to meet the court's standard of "harassment", the behavior in question must meet several criteria.  Harassment requires a "course of conduct".  A course of conduct is something that demonstrates a continuity of purpose, not merely a single, anomalous act.  That course of conduct must be directed AT the petitioner.  Conduct that merely affects the petitioner, but is not directed towards the petitioner, is not sufficient to warrant a restraining order, no matter how serious the effects of the conduct might be on the petitioner.  

Example:  Fred smokes big cigars in his backyard all day long.  His neighbor, Karen, is very sensitive to cigar smoke because of some medical conditions.  Fred's cigar smoke causes Karen to suffer panic attacks.  She can't sleep at night and her medical conditions get much worse.  If she files a restraining order against Fred to make him stop smoking, the judge would be correct to deny her request.  Fred's cigar smoke might annoy Karen and it might even cause serious health consequences for her, but there is no evidence that Fred is acting with the intent to annoy or harass her.  His conduct is not "directed at" her.  The mere fact that his behavior affects her is not sufficient to warrant a restraining order.

Additionally, the petitioner must prove that the conduct in question serves no legal purpose, that it would cause a reasonable person to suffer emotional distress, and that it did, in fact, cause the petitioner to suffer distress.  This excludes conduct that might cause the respondent to suffer serious emotional trauma, but which also serves a valid, lawful purpose (attempting to collect a debt or to serve legal papers, etc.).  It also excludes conduct that seriously affects the petitioner, but would not cause a reasonable person to suffer the same emotional distress.  Finally, it excludes conduct where the petitioner appears to be the aggressor, or where the petitioner has not behaved in a way that suggests he / she is seriously afraid of the respondent.  

Proving the Case

The petitioner has the burden of proving the case.  In domestic violence cases, the threshold is "a preponderance of the evidence".  That means the petitioner must tip the scales by 51%.  This is a low burden, but it's not always as easy to overcome as it sounds.  If the evidence is perfectly even (i.e., the petitioner claims that something happened and the respondent simply denies it), then the petitioner has not carried the burden.  In that situation, the respondent wins and order is denied.  

In other types of restraining orders (civil harassment, workplace violence, etc.), the petitioner must prove the case by "clear and convincing evidence".  This is a higher burden that the "preponderance of evidence" standard that applies in DVROs, but lower than the "beyond a reasonable doubt" standard that applies in criminal trials.  

To prove the case, the petitioner should come to court prepared with reliable, admissible exhibits.  The rules of evidence are complicated, though.  Again, a qualified, local attorney (like myself) can help ensure that any exhibits are supported by the proper foundations and that they meet the court's standards for admissibility.  

Both sides can also present witnesses to testify at the hearing, if those witnesses personally observed something that is relevant and material to the judge's decision.  In some types of hearings, witnesses can even testify to hearsay (things that someone else told them).  

The Scope of the Orders

If the petitioner can overcome those initial hurdles (finding / serving the respondent, making a compelling case to establish that harassment has actually occurred, and proving that the respondent is the person who committed the harassment), the next question for the petitioner should be -- What am I asking for?  Is this something that the court actually has the authority to order?  

Restraining orders typically prohibit one party from coming within some distance of certain people and places.  They can also bar the respondent from contacting the petitioner and other members of the petitioner's household.  Occasionally, they also include orders for the return of property / pets, transfer of cell phones, etc.  If those kinds of orders would solve your problems, then a restraining order might be appropriate.

Keep in mind, though, that there are limits to the court's power and there are many things that the judge simply cannot order or enforce.  The judge will not, for example, order someone to stop talking ABOUT you.  The respondent will always be free to tell other people what he thinks about you, as long as he does not say it to you personally.  This includes posting about you on social media, as long as the posts do not "tag" you or messages are not sent directly to you.  

The court also cannot order the respondent to stop calling law enforcement to complain about you.  The respondent will always be free to call the police, code enforcement, animal control, Child Protective Services, parking authorities, etc., no mater how much you feel that the complaints are unfounded.  If this person is making reports that he or she knows to be false, the police will handle that on their own.  

Sensitive Issues

At the time of the hearing, the petitioner will be required to tell his or her story in open court.  The courtroom may be packed with strangers.  The opposing party or his / her lawyer will have an opportunity to cross-examine you and to pepper you with questions about your allegations.  They will try to demonstrate that you are lying or that you have some incentive to misstate the facts.  The judge may also ask questions to gauge your credibility and to drill down on important details.  

Petitioner should seriously think about whether or not he / she wants to answer questions about the allegations in open court and subject him/herself to cross-examination.  For many petitioners, the court hearings are more stressful than the underlying harassment.  

Anything said in court during a restraining order hearing becomes a public record.  If you admit to some wrongdoing, your statement may be used against you later in criminal court.  It might also complicate any pending criminal cases related to the underlying allegations. 

Conclusion

Before investing a lot of time, effort, money and emotional bandwidth to pursue a restraining order, the petitioner should seriously consider the hurdles that must be overcome at each stage of the proceedings.  

There are complicated legal issues involved with any restraining order.  I can help with that part.  There are also complicated emotional questions, though, that no lawyer can answer for you.  The purpose of this post is to help restraining order petitioners understand, anticipate and avoid some of the common hang-ups that lead to cases being dismissed or abandoned.  

If you or a loved one has questions about a restraining order in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Restraining Order Lawyer

Can I Get Out of an Existing Restraining Order?

As I've previously written on this blog, there are a million reasons that people seek restraining orders against each other.  Coworkers, neighbors, exes and even siblings sometimes have conflicts that end up in court.  After hearing all of the evidence presented, judges can issue restraining orders that remain in effect for up to 5 years -- and longer if renewed.  Criminal Protective Orders can even remain in effect for up to 10 years.

A lot can change in 5-10 years, though.  Parties might mutually decide to reestablish contact, or circumstances might be so different that the restraining order no longer serves any purpose.  These situations can leave one party as the subject of an order that nobody actually wants, including all of the disabilities and loss of rights that go along with being the subject of a restraining order.  

Luckily, California law allows courts to modify or terminate existing restraining orders and Criminal Protective Orders.  The protected party (AKA, "the petitioner") may simply request to terminate the order at any time by filing a few simple forms.  The judge will probably have a couple of questions, like, "Did anyone threaten you or force you to do this?", "Is this what you want?", etc. but these hearings are usually quick and easy when the request comes from the protected party.  

If the restrained party (AKA, "the respondent") wants to terminate or modify an existing restraining order, he bears the burden of proving that the order no longer serves the purpose for which it was issued.  This is not his opportunity to argue that the order never should have been granted in the first place (or that he got bad legal advice, or that someone lied during the hearing, etc.).  Those issues have already been decided.  The respondent had an opportunity to raise those arguments at the time of the hearing on the original order, or else to file an appeal if he believes that the trial judge made some mistake of law.  We are now past that stage. 

This is also not the respondent's chance to argue that the order is burdensome, it hurts his ability to find a job, or that it infringes upon his 2nd Amendment rights.  Those things were all true at the time the order was granted, and they are still true for every order that the court issues.  If those were valid arguments, then court would never grant restraining orders against anyone.  

Instead, the respondent should focus on explaining any change in circumstances since the order was originally issued.  Specifically, he needs to prove that the order is no longer necessary because the risk of harm no longer exists.  A judge hearing the request will start from the assumption that the order was originally granted for a good reason.  The person requesting the modification should acknowledge that reason and explain why it is no longer valid today.  If abusive behavior was related to alcohol, for example, maybe the respondent can prove that that he has received extensive alcohol treatment and maintained a significant period of sobriety.  Treatment + sobriety would be considered "changed circumstances" that might convince a judge to modify or terminate a restraining order.  

Our office was recently able to help a client successfully terminate an Elder Abuse restraining order.  The order no longer served any purpose, but it continued to have a severe impact on the client's life.  In this case, the protected party was an elderly woman.  The restrained party was her adult son.  The son was prohibited from coming within 100 yards of his mother, her home or her vehicle.  In the years since the order was issued, the mother had passed away.  Her home and her vehicle had both been sold by the executor of her estate.  There was nothing that still needed to be protected today, but my client continued to carry around this worthless restraining order.  The judge agreed that the order no longer served any valid purpose and so it was terminated. 

If you or a loved one have questions about modifying or terminating a restraining order, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Orange County Restraining Order Attorney

Can I Get a DUI for Sleeping in a Parked Car?

Marshawn Lynch was arrested in Las Vegas last week on suspicion of DUI.  Officers allegedly found Beast Mode asleep behind the wheel of a parked car.  The story inspired me to write a blog post about a question that I hear a lot: can I be arrested for DUI if I'm found sleeping in my car?  Does it matter if the keys are in the ignition?

The answer is different from state to state.  In some places, like Nevada, a defendant can be found guilty of DUI if he is "in control of a vehicle" while under the influence of alcohol.  Other states, like California, require prosecutors to prove that the defendant "operated a vehicle" while under the influence.  That subtle distinction - "in control of" vs. "operated" makes a huge difference in practice.  

Under the Nevada law, a defendant who is passed out in a parked car could be found to be "in control of the vehicle" if the keys are in the ignition.  I am not licensed to practice in Nevada, so I don't intend to make this post into a detailed analysis of Nevada law, other than to note this important point.

In California, a defendant is not guilty of DUI unless prosecutors can prove that he or she "operated a vehicle", and that the defendant's blood alcohol concentration (BAC) was >0.08% at the time of driving.  "Operating a vehicle" involves exercising some control over the movement of the car -- even moving one inch.  Simply sleeping in a parked car is not necessarily a DUI in California unless prosecutors can prove the defendant was drunk when he /she parked the car.  It makes no difference whether or not the keys are in the ignition when police discover the sleeping suspect.  

Of course, police in California can still arrest a suspect if the person is found drunk in a public place.  The interior of a car is considered a "public place" if the car is parked somewhere that is generally accessible to the public, regardless of who actually owns the land.  In California, we call that "drunk in public".  In Nevada, they call it "DUI".  Since the Nevada DUI statute is broader than the same law in California -- it encompasses behavior that would not be considered "DUI" in California -- DUI convictions from Nevada are not counted as "priors" in California.

If you or a loved one has questions about a DUI arrest in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton DUI Lawyer

Should I Represent Myself In Criminal Court?

People who choose to represent themselves in court are sometimes called "self-represented litigants" (SRLs), or "pro pers" (from the Latin, "In Propia Persona" -- "for himself").  

There are plenty of legal issues that don't necessarily require attorneys.  Small Claims Court, for example, is intentionally designed to be as simple and straightforward as possible, so that individuals can resolve minor civil disputes without the cost of lawyers.  In restraining order hearings, about half of the parties are usually represented by professionals.  Evictions, name changes, emancipations, uncontested divorces and simple traffic infractions can all usually be resolved DIY, if you don't mind performing your own research and spending a few mornings in court.  Criminal law, on the other hand, is not one of these areas.  

The 6th Amendment to the US Constitution guarantees the right to counsel of one's choice.  That includes the right to act as your own counsel.  Just because you have the right to do something, though, doesn't always mean that you should.  Representing yourself in criminal court is a terrible idea and there is really no good reason to attempt it.  The stakes are too high and the game is too complicated.  Abraham Lincoln even supposedly said, "Whoever represents himself has a fool for a client."  

In any criminal case, the prosecutor is a highly-trained professional.  This person graduated from law school, passed the bar exam, received extensive on-the-job training, and has experience conducting many, many jury trials before yours.  The prosecutor understands the rules of evidence, how to effectively examine a witness, how to make compelling opening / closing statements, and how to properly object if you attempt to inject some inappropriate argument.  This person is trying to convict you and possibly send you to jail.  Without a robust defense, the prosecutor will run wild on you.  

As your own attorney, you will be expected to comply with all the same rules and procedures as the professional prosecutor.  The judge will not grant you any slack or give you any extra time to prepare.  The court will also not give you any legal advice or assistance.  

Even lawyers don't represent themselves when they get into trouble; they hire other lawyers.  The dangers of self-representation are not limited to the defendant's lack of knowledge or experience.  Acting as your own lawyer is so hazardous because it's difficult to analyze your own case objectively.  Emotion will cloud your judgment.  You will see the evidence through your own prism and you may fall into the trap of assuming that the jury sees it the same way.  Tunnel vision can distort your perspective and distract from the important issues.  A disinterested set of eyes can review the facts and help craft a narrative that serves your defense more effectively.  

Cost is not a compelling reason to represent yourself in criminal court.  Among other things, part of an attorney's job is to help the client avoid or reduce expensive fines and restitution.  Sometimes, we can even pay for ourselves by saving the client more than our fee.  Our firm is very flexible with payment plans, and most other local law offices will work to accommodate almost anyone's budget.  If money is really an issue, though, the Public Defender will represent a defendant at no cost.  The Orange County Public Defender's Office has an outstanding reputation and their attorneys are all very capable.  Any defendant would have much better prospects in the hands of the OCPD than in representing himself.  

Finally, if you represent yourself and you do a terrible job, you cannot sue for malpractice or complain about "ineffective assistance of counsel" on appeal.  You have nobody to blame but yourself.  

I have never seen anyone successfully represent him or herself in criminal court.  I love to sit in and watch these cases when I have time, but it's kind of like seeing a professional boxer spar with an elderly, disabled person.  The prosecutor sticks and moves effortlessly around the ring, while the hapless defendant argues with the judge and stumbles through waves of objections.  

A pro per trial is scheduled to start at the Fullerton Courthouse on 6/12/23, and I plan to observe part of it.  A local woman is accused of various traffic infractions.  After being stopped, she allegedly tore up the ticket, resisted the police and slapped an officer.  I will post a summary here, so check back for updates. 

If you or a loved one has questions about a criminal case, call for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County Criminal Defense Attorney 

Updated 6/14/23:  Well, that was quick.  The pro per trial in the Fullerton Courthouse (mentioned above) went exactly as I predicted -- it was an unmitigated disaster for the defendant.  Throughout the 2-day trial, she argued with the judge and bumbled through an onslaught of objections.  She repeatedly attempted to inject improper arguments and referred to matters that had been expressly excluded.  Her "evidence" was deemed inadmissible and the judge repeatedly warned her about her decorum.  Inexplicably, and on more than one occasion, she attempted to cite the historical case of "Marbury v. Madison" (1803), which famously established the doctrine of "judicial review" (the idea that courts have the power to declare various laws unconstitutional -- a bedrock of the American justice system, but utterly irrelevant in this case).  

To recap, this case involved some traffic tickets and one woman's refusal to simply sign the citation.  According to the arresting officer, the defendant tore up the ticket, threw it onto the ground, refused his commands, and slapped him.  The jury deliberated for less than an hour before returning "guilty" verdicts on all counts.  The defendant was immediately remanded into the custody of the sheriff. 

Sentencing was scheduled for this morning.  The judge also set the case for an "Order to Show Cause re: Contempt" -- a hearing to determine whether or not the defendant should be additionally punished for her repeated failures to comply with the court's rules during the trial.  Bail was set at $15,000.  Defendant posted bond and was released overnight.  

Judge Thompson sentenced the defendant to serve 20 days in jail, but allowed her to apply for house arrest.  He also set her fines at $2,377.47, ordered her to complete 8 hours of trash pick-up and placed her on informal probation for one year.  He set sanctions at $100 for her repeated violations of court decorum. 

Expunge Your Criminal Record in California

Having an old criminal record can have a significant impact on one's life. Old convictions can prevent individuals from finding employment, housing, and educational opportunities, among other things. Luckily, California offers individuals several different options to reduce the severity of old charges, to dismiss cases, and to have various records hidden from public view.

Our office has been handling California expungement cases from start to finish for over a decade.  We can take care of the entire process with just a few pieces of information from the client, even if the client lives somewhere outside of California.  If you've been thinking about cleaning up your record but you're intimidated by the court system, send a quick email and let us take care of everything.  

One of the most significant benefits of expunging a criminal record relates to employment. Many potential employers conduct background checks on job applicants, and a criminal record can be a significant barrier to starting a new career. Employers in California, however, are legally prohibited from discriminating against applicants whose old cases have been expunged. Once your expungement has been approved by the court, then the old case "never happened" for employment purposes.

Expunging a criminal record can also help anyone seeking housing. Landlords may conduct background checks on potential tenants, and a criminal record can make it challenging to find a place to live. It's hard enough to find a good place already.

Additionally, expunging a criminal record can help students pursue educational opportunities. Many colleges, universities and graduate schools conduct background checks on applicants, and a criminal record can be an insurmountable hurdle to admission.

Expunging a criminal record can also have psychological benefits. Individuals with criminal records may feel a sense of shame or embarrassment about their past. Expunging a record can help alleviate these feelings and allow individuals to move forward with their lives without the constant reminder of their past mistakes.

Anyone with a felony conviction is prohibited from owning or possessing firearms for life. In some cases, though, old felonies can be reduced to misdemeanors. An expungement does not restore gun rights by itself, but a reduction may. Once a charge is reduced in severity from a felony to a misdemeanor, the old charge is considered to be a misdemeanor for all purposes.

Finally, expunging a criminal record can also have societal benefits. When individuals are able to find employment, housing, and educational opportunities, they are less likely to engage in criminal behavior in the future. This can lead to a reduction in crime rates and a safer community for everyone.

If you or a loved one has questions about cleaning up a criminal record in California, call us for a free attorney consultation. 714 449 3335. Ask for John. Our office is located in Orange County, but we serve the entire state of California.

Thanks for reading.

Orange County Expungement Lawyer

Is it Even Worth My Time to Fight a Restraining Order?

Courts in California have the power to issue restraining orders for a variety of reasons.  The specific type of order depends on the situation and the relationship of the parties.  

Domestic Violence Restraining Orders (DVROs), for instance, apply when the parties are closely related or have ever been involved in a romantic relationship.  In addition to the typical "stay away" / "do not contact" orders, DVRO judges can order respondents to complete a 52-week course of anger management counseling if they feel it is appropriate.  

Civil Harassment Restraining Orders (CHROs) are probably the most commonly-filed restraining order cases.  They apply when the parties have no direct familial, workplace or romantic relationship.  They usually involve situations like neighbors who butt heads, or former romantic partners who harass new partners.  If the two romantic rivals are not related and have never had a relationship with each other, then their dispute would fall under the banner of a CHRO and not a DVRO.  

Elder Abuse Restraining Orders (EAROs) can be issued in situations where a person over 65 years old (or any "dependent adult") is at risk of abuse or neglect, including financial abuse.  EAROs are usually filed by elderly people against their own adult children or caregivers.  If the elderly person is incapacitated, a conservator may seek an EARO on his / her behalf.  "Power of Attorney" is not sufficient to file an EARO on behalf of someone else.  

Workplace Violence Restraining Orders (WVROs) are used in cases where someone has been harassed or abused at the workplace or under circumstances related to his / her employment.  That can include harassment by a coworker or by someone outside of the company / organization.  WVROs generally order the restrained party to stay away from a particular location, extending protection to all of the petitioner's coworkers.  The "workplace" does not necessarily have to be a private company.  City Attorneys and County Counsel often have to seek WVROs on behalf of government employees who become targets of public ire (police officers, building inspectors, City Counsel members, etc.). 

Gun Violence Restraining Orders (GVROs) are the newest form of restraining order under California law.  They can only be initiated by police officers and by immediate family members of the restrained person.  The petitioner must prove that a respondent has access to a firearm and that he poses an immanent danger to himself or others.  

I've previously written several in-depth posts about the nuts and bolts of restraining orders, so there's no need to rehash it all.  For more information, read those articles here and here.  

This post is specifically about the consequences of having a restraining order granted against you, and why restraining orders are usually worth fighting.  

Restraining orders typically prohibit the restrained party (the "respondent") from doing something that he has no legal business doing anyway.  That might include orders to stay away from an ex-girlfriend's house or to stop threatening a neighbor, etc.  You probably have no intention of ever driving past your ex's house or speaking to your neighbor again.  In that sense, it might be tempting to blow the whole thing off and simply accept the restraining order.  That is almost always a bad idea.  

The first and most obvious risk of failing to assert a vigorous defense is that the judge will make orders that you DON'T accept.  Maybe you were perfectly willing to stay away from your ex's house and to stop calling her, but you are not willing to stay away from her workplace because your office (or your doctor, or your kid's school) is nearby.  By simply accepting the petitioner's requests, you could be waiving your opportunity to raise these issues.  Consequently, the final order might be overly broad and much more restrictive than necessary.  

Most restraining orders are public records.  They will appear on background checks for things like employment and housing.  Having a restraining order may complicate international travel.  Places like Canada, Japan and Australia have very strict admission requirements, even for American citizens.  Good luck volunteering at your kid's school or coaching a baseball team while you have an active restraining order against you.  Of course, restraining orders also must be disclosed to any professional licensing board that governs your occupation.  Having a restraining order can even make it hard to date and meet new people in an age where everyone can be Googled.  

Finally, anyone who is the subject of a restraining order is prohibited from owning or possessing firearms and ammunition.  That applies everywhere in the country, even outside of California.  If a restraining order is granted against you, you are required by law to immediately surrender all weapons within your possession to law enforcement or to a licensed firearms dealer.  Possession of firearms or ammunition by a prohibited person can be a felony.  If you value the Second Amendment, you want to defend your home with a firearm, you're a hunter, or you just don't want to hand over Grandpa's war trophy, you should be prepared to zealously oppose any restraining order.  

As the respondent in a restraining order case, you only get one chance to present your defense and to convince the judge to deny the petition against you.  If you are not prepared to conduct your hearing on the date assigned, you are entitled to one free continuance.  Just tell the judge that you need more time and the court will assign a new appearance date 3-4 weeks later.  

If you fail to request a continuance and you proceed to your hearing unprepared, there are no second chances.  You cannot request a new hearing just because you weren't ready, you didn't understand what was going on, a witness lied, or you disagree with the judge's decision.  To appeal the final judgment after a restraining order hearing, you must prove that the judge made some specific legal error.  Appeals are expensive and can take over a year to resolve.  The restraining order might even expire before the appeal is settled.  It is important, therefore, to properly assert a vigorous defense the first time, and not to wait until you already have a restraining order before you seek legal advice.  

If you or a loved one has questions about a restraining order in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Restraining Order Lawyer

Expunge an Old California Case, Even if You Currently Live Out-of-State

Our office has recently processed a lot of expungement petitions on behalf of clients who no longer live in California.   These are quickly becoming some of my favorite matters to handle.  

Regardless of where our clients currently live, we try to make the whole the process as convenient and painless as possible.  Our intake paperwork is just a few easy-to-read pages.  We can send the documents by email in a simple PDF with fields for the client to fill and email back.  We can also personally appear in court, so our clients don't have to in most cases. 

We offer flat rate fees, so you know the costs up front.  We also allow flexible payment plans with easy monthly installments.  

California laws provide several different options to clean up old criminal records.  Depending on your circumstances, you may be eligible to seal an old arrest record, reduce a felony conviction to a misdemeanor, get off of probation early, or have an old case dismissed entirely.  

California also recently began accepting applications for removal from the state's sex offender registry.  

Any application for post-conviction relief must be filed in the county where the defendant was originally arrested / convicted, regardless of where he lives today.  Some petitions (like applications for relief from the duty to register as a sex offender) must ALSO be filed in the county where the defendant currently lives.  Our office will handle the legwork of properly filing / serving copies of any paperwork to the appropriate agencies.  

We have access to most court records, so we can usually find your case with a just a few pieces of information about you.  It's OK if you don't remember your case number.  Sometimes, though, a case is so old that the local courthouse no longer has any record of it.  When that happens, we can walk you through the process of obtaining an official copy of your own Criminal History Report from the Dept. of Justice.  That Criminal History Report will contain all of the information that we need to complete the application.

If you or a loved one has questions about expunging an old conviction or sealing an arrest record in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Our office is in Fullerton, but we serve all of OC, LA, Riverside and San Bernardino.  

Thanks for reading.  

Expungement Lawyer

I Was Accused of Battery. Should I Seek a Restraining Order Against My Accuser?

Here's a situation that my office sees pretty frequently:  A & B have a contentious relationship.  They might be neighbors, coworkers, romantic partners or even spouses.  Both parties blame the other for causing the conflict and accuse each other of harassment (or worse).  

At some point, the conflict boils over.  A calls the police and B is arrested (for assault, battery, domestic violence, inflicting injury on a spouse, vandalism, threats, etc.).  While B's criminal case is slowly working its way through the justice system, B files a restraining order against A in civil court.  B claims that A is the abuser and that B is the one who actually needs protection.  

Is this a smart move?  Will filing a restraining order against his accuser somehow shift the narrative, put A "on the defensive", and give B a tactical advantage in defending his criminal case?

I almost always advise clients against seeking restraining orders while they are currently fighting criminal charges.  There are several risks inherent in initiating one case while fighting another, and doing so does not necessarily confer the advantages that many clients imagine. 

The first and most obvious issue in this situation is the 5th Amendment.  As the defendant in a criminal case, B has one key advantage -- he has the right to remain silent.  He does not need to prove himself innocent, the prosecutor needs to prove him guilty.  The prosecutor bears the burden of presenting evidence and trying to convince a jury of the defendant's guilt beyond a reasonable doubt.  After the prosecutor has shown his hand and presented his evidence, the defendant in a criminal case has the choice of whether or not to share additional evidence and / or testify on his own behalf.  He cannot be forced to answer questions if the answers to those questions might be used against him.  

The opposite is true if B decides to seek a restraining order against A.  If B files a petition to seek the legal protection of a restraining order, he is the Petitioner.  In any restraining order hearing, the Petitioner bears the burden of proving his / her case.  The threshold of proof depends on the type of order that the Petitioner is seeking.  In Domestic Violence cases, for instance, the Petitioner must prove the allegations "by a preponderance of the evidence".  In restraining order cases based on Civil Harassment, the Petitioner must meet a higher burden of proving the case "by clear and convincing evidence".  It will be extremely difficult -- nearly impossible -- for any Petitioner to prove the facts necessary to win a restraining order while simultaneously remaining silent and refusing to answer questions that might be used against him / her.  

Even if B is successful in his petition, winning a restraining order against A might not be as valuable as B imagined.  Having a restraining order against his accuser will not absolve him of the charges he is facing in criminal court.  Even though the restraining order case and the criminal matter might involve the same people and many of the same facts / allegations, they are not related.  The restraining order court and the criminal court are applying different laws and different rules of evidence to address different issues.  The outcome of one case will not necessarily affect the outcome of the other.    

If B is not successful in his restraining order petition, he could be in a world of hurt.  Courts have the power to sanction litigants who abuse the system by wasting time and resources for improper purposes.  If the judge finds that B acted vindictively or that he filed a frivolous petition with the intent to harass A or waste A's time, the court can order B to reimburse A for any expenses that A incurred, including time missed from work and attorneys' fees.  

By pursuing a baseless restraining order, B doesn't just waste the court's time and resources, he wastes his own.  That's money and energy that could have been spent fighting his criminal case.  In my experience, the risks of seeking a restraining order almost always outweigh any benefit if the Petitioner is simultaneously defending himself against criminal charges related to the same allegations.  

If you have questions about restraining orders or domestic violence charges in Southern California, call for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton Domestic Violence Lawyer