Immigration Courts

Posted by Kyle Gaffney on April 9, 2018

Criminal convictions can drastically affect immigration status for non-American citizens or for lawful permanent residents (LPR). The forms of criminal behavior can range from the most severe aggravated felonies to basic traffic infractions. Moreover, the penalties for non-American citizens can include deportation, jail time, and fines. The long-term impact for minor crimes can result in catastrophic outcomes for those convicted.

In most cases after a conviction, the individual serves time in jail. Following the jail sentence, Immigration and Customs Enforcement (ICE ) agents take the LPR to immigration court.

While the criminal consequences for a conviction can cause extreme hardship for the defendant, LPR’s also face the possibility of deportation.

The immigration court system does not follow the same protocol as the criminal court system, and does not need to adhere to the same standards. Because immigration court is included under the executive branch of the government, those protocols and standards often shift with each president’s political leanings.

To effectively defend themselves against deportation resulting from a criminal conviction, accused individuals must educate themselves and hire skilled criminal defense attorneys to stop the problem before it starts.

Aggravated Felonies

For most criminal convictions, LPRs do not face deportation. However, aggravated felonies can result in deportation if the defendant also loses the deportation case in immigration court.

Defense Attorney Darren Kavinoky explains aggravated felonies as follows:

“On the immigration front, misdemeanors are usually not a problem… it is ‘aggravated felonies’ (a felony for which the sentence is more than a year in custody) that will get you deported. In that scenario, AFTER you serve your time, ICE comes to get you and brings you to the immigration court, where you wait in custody until a judge rubber stamps your deportation order and sends you back to your home country.”

Types of Aggravated Felonies

The Immigrant Legal Resource Center describes the types of offenses qualifying as aggravated felonies as follows:

Aggravated Felony (AF)

This conviction generally has the worst immigration consequences.

The AF definition in 8 USC § 1101(a)(43) includes twenty-one provisions that describe hundreds of offenses, including some misdemeanors. Some, but not all, of these offenses require a sentence of a year or more in order to be an AF. The government considers aggravated felons to be deportable and ineligible to apply for most forms of discretionary relief from deportation, including asylum, voluntary departure, and cancellation of removal, and to be subject to mandatory detention without bond. A conviction for illegal reentry after removal carries a higher federal prison term based on a prior AF conviction,

Crime of Violence (COV)

A COV conviction carries two potential immigration penalties. If it is committed against a person protected under the State’s domestic violence laws, a COV becomes a deportable “crime of domestic violence.” (See paragraph below on the grounds for domestic violence deportation under 8 USC § 1227(a)(2)(E). If a sentence of a year or more is imposed, a COV falls under the aggravated felony category, regardless of the victim.

Crime Involving Moral Turpitude (CIMT)

Federal immigration case law determines whether an offense involves moral turpitude, not state cases. The State notoriously defines CIMT rather vaguely, and many immigration attorneys subject it to much litigation. It includes crimes that include intent to defraud, intent to cause great bodily injury, and theft with intent to deprive permanently. In also includes some offenses involving lewdness, recklessness, or malice.

Controlled Substance Offense (CS)

A non-citizen becomes deportable and inadmissible if convicted of an offense “relating to” a federally defined controlled substance. The State grants exceptions to deportations, with a possible waiver of inadmissibility, if the conviction relates to a single incident involving simple possession, use, or possession of paraphernalia involving 30 grams or less of marijuana or hashish under H&S C § 11377.

Conviction of a Crime of Domestic Violence, Child Abuse, Neglect or Abandonment, or Stalking, with a Civil or Criminal Court Finding of Violation of a DV Stay-Away Order or Similar Order

These all trigger deportability under grounds of “domestic violence” under 8 USC § 1227(a)(2)(E). The conviction, or the conduct that violated the protective order, must have occurred after admission and after Sept. 30, 1996. The State considers a crime of domestic violence to be a “crime of violence” against a person protected from the defendant’s acts under state domestic violence laws. If a court finds an individual in violation of a portion of a domestic violence protective order whose purpose is to protect against threats or repeated harassment, that individual becomes deportable. This includes even the most minimal violation of a stay-away order.

Firearms Offenses

A non-citizen becomes deportable under 8 USC § 1227(a)(2)(C) if he or she can be, at any time after admission, convicted of an offense relating to a firearm. Also, the State considers convictions for the sale of firearms, or for certain offenses such as being a felon in possession, as aggravated felonies. However, no California offense that uses the definition of “firearm” under PC § 16520(a) carries these consequences because the California and federal definitions of “firearm” differ.

Crimes against a Minor that Block Family Visa Petitions

If the State convicts any LPR or United States citizen of certain crimes against a minor, the government can prevent him or her from attaining lawful status for an immigrant spouse or child (through filing a “family visa petition.”) The crimes include kidnapping, false imprisonment, offenses involving sexual conduct, or child pornography under the Adam Walsh Act.

Types of Consequences for Aggravated Felony Convictions

For individuals with LPR status, Aggravated felony convictions can lead to a litany of severe consequences as described by the American Immigration Council.

Deportation without a Removal Hearing

The courts provide fewer legal protections to certain non-citizens convicted of an “aggravated felony” than for other immigrants. Any non-LPR immigrant convicted of an “aggravated felony” may be administratively deported from the United States without a formal hearing before an immigration judge. Immigrants in these proceedings lose eligibility for asylum or for any other form of discretionary relief. Immigrants found deportable in this manner may not appeal to the Board of Immigration Appeals (BIA) and can be physically removed two weeks after entry of the order.

Mandatory Unreviewable Detention Following Release from Criminal Custody

The government mandates that ICE authorities detain any immigrant convicted of an “aggravated felony” upon his or her release from criminal custody. In order for ICE to release the detained immigrants, the detained immigrant must demonstrate with substantial likelihood that the crime in question does not qualify as an “aggravated felony.”

Ineligibility for Asylum

Any immigrant convicted of an “aggravated felony” loses eligibility for asylum. The government considers asylum a form of immigration relief available to immigrants who suffer or possess a well-founded fear of persecution in their native country. Immigrants convicted of an “aggravated felony” may also lose eligibility for “withholding of removal,” which the government defines as a similar form of relief for non-citizens whose country of deportation threatens their life or freedom.

Ineligibility for Cancellation of Removal

Any immigrant convicted of an “aggravated felony” loses eligibility for “cancellation of removal” (“cancellation”). Cancellation occurs when immigration judges permit otherwise deportable immigrants to remain in the United States. Immigrants convicted of an “aggravated felony” lose eligibility for cancellation of removal, even if their removal would cause “exceptional and extremely unusual hardship” to an immediate family member who legally resides in the United States.

Ineligibility for Certain Waivers of Inadmissibility

Certain LPRs may not obtain a “waiver of inadmissibility” under Section 212(h) of the Immigration and Nationality Act (INA) if the State convicts them of an “aggravated felony”. A waiver of inadmissibility excuses immigrants for past misconduct that would normally make them ineligible for admission to the United States. Only prospective LPRs whose deportation would cause “extreme hardship” to a U.S. citizen or LPR qualify for waivers of inadmissibility.

Ineligibility for Voluntary Departure

An immigrant convicted of an “aggravated felony” loses eligibility for “voluntary departure.” Voluntary departure allows otherwise deportable immigrants to leave the country of their own accord. These immigrants may leave at their own expense in place of formal deportation under an order of removal.

Permanent Inadmissibility Following Departure from the United States

An immigrant removed from the United States after being convicted of an “aggravated felony” (or who leaves while an order of removal is outstanding) may never reenter the country. To lawfully reenter the United States, such an immigrant must receive a special waiver from the Department of Homeland Security and must meet all other requirements of admissibility.

Enhanced Penalties for Illegally Reentering the United States

If ICE removes an immigrant from the United States following a conviction for an “aggravated felony,” and that same immigrant subsequently reenters the country illegally, he or she may be imprisoned for up to 20 years rather than two years.

Understanding Immigration Court

If the State convicts individuals with LPR status of a crime, the defendant may also face deportation in immigration court. The sole purpose of immigration court is to determine whether the State will deport a non-American citizen, or whether the individual may stay in the United States.

Immigration court functions under the United States Department of Justice, which falls under the executive branch of the federal government. However, it is the Attorney General of the United States who ultimately determines the tone and practice of immigration courts.

The United States Department of Justice grants to immigration courts the responsibility for adjudicating immigration cases in the United States. The primary function of immigration courts revolves around removal proceedings.

While immigration courts do handle criminal matters, the government considers them to be civil courts. This is because the only thing that immigration courts decide is whether or not the defendant can stay in the United States. In these courts, the federal government does not need to provide legal representation to defendants who cannot afford a lawyer. The University of Pennsylvania Law Review conducted a study in 2015, and found that only 37% of immigrants attain legal representation. It also found that children from two to 17 years of age routinely represent themselves in immigration court.

Current State of Immigration Courts

In 2016, the New York Times wrote an article describing the current state of immigration courts. The wait times for trials in immigration courts can range from two to five years. Consequently, evidence pertaining to the case becomes stale, and helpful witnesses may leave, forget vital pieces of information, or even die from old age.

The United States only has 58 immigration courts across the lower 48 states. During the last two decades, a surge in immigration from Central America has caused an increase in immigration enforcement. However, due to bureaucratic red tape, the courts cannot hire enough judges fast enough.

Although immigrant courts are dealing with relatively simple issues, the consequences of those issues have had effects greater than anyone could have expected. Basically, the United States deports people who lose immigration court hearings. Period.

Regardless of how the defendant’s life will be impacted, the court abides by the rules.

According to the United Nations, since 2008 there has been a five-fold increase in asylum seekers from Central America’s Northern Triangle, which includes Honduras, Guatemala, and El Salvador. Organized gangs dominate this landscape. According to the U.N., Honduras had the world’s highest murder rate in 2014, with El Salvador and Guatemala close behind.

Laura S.

The New Yorker ran an article entitled “When Deportation is A Death Sentence” in its January 2018 issue. The article told of an incident that occurred in June 2009 involving a young woman in Pharr, Texas named Laura S. Pharr, Texas lies directly across border from the Mexican town of Reynosa. The U.S. State Department forbids its employees from venturing out after midnight in this area due to the extreme violence in Reynosa.

Laura fled an abusive husband in Reynosa and began to build a life in Pharr with her daughter from the relationship. A police officer pulled Laura over one night while she was on her way home from her waitress job. When the officer asked to see her license and proof of insurance, she could not provide them. The 22-year-old Laura was living in the U.S. as an undocumented immigrant.

Laura told the officer as she began to cry, “I have a protection order against my ex—please, just let me call my mom and she’ll bring you the paperwork.”

In Mexico, her former husband had reportedly joined a local drug cartel and frequently texted death threats to Laura.

The border patrol agents pressured her into signing “voluntary return” paperwork. After sunrise, she began her walk across the McAllen-Hidalgo International Bridge to Reynosa.

In the final moments before Laura crossed the bridge, she turned to the border patrol agent and said, “When I am found dead, it will be on your conscience.”

Criminal Charges in Immigration Courts

Laura S. represents how broken the immigration courts have become over the last 20 years. Because the courts take too long to actually hold a hearing, they pass this responsibility on to border patrol agents. While border patrol agents perform a vital function in protecting the U.S. from violent people attempting to enter the country, they are NOT trained and vetted court judges. The outcome of many deportation cases often leads to more extreme consequences than mere removal from the U.S.

All immigrants charged with criminal activity must act quickly and aggressively during the criminal proceedings to ensure the best outcome. Experienced defense attorneys know how to fight criminal charges and obtain the best solution for the defendant.

California Theft by False Pretenses

Posted by Kyle Gaffney on April 7, 2018

California Penal Code 532 defines theft by false pretenses. The state prohibits people from making false promises, thereby convincing someone else to give up their property.

People often think of theft as forcibly taking property belonging to others. In other words, someone takes property against the will of another person or entity. On the other hand, theft by false pretenses involves someone willfully giving up his or her property. However, he or she does this only because of false information deliberately provided by another person or entity. Some may describe this crime as theft through deception.

The penalties for theft by false pretenses are determined by the value of the stolen property. The state may classify the crime as petty theft if the value of the property stolen is assessed at less than $950, or as grand theft if the property is assessed at more than $950. Grand theft also includes firearms and automobiles. Grand theft convictions carry penalties of up to three years in state prison plus fines, while petty theft penalties include up to six months in jail plus fines.

The 2002 Movie Catch Me if You Can is based on Frank Abignale Jr.’s semi-autobiographical book of the same name, and depicts a young man stealing $2.5 million before his 21^st birthday. He used confidence tricks and false pretenses to steal every cent.

Defining Theft By False Pretenses in California

Theft by false pretenses in the State of California is outlined in Penal code 532, which defines a few key elements.

The defendant intentionally deceived the victim through false pretenses or misrepresentation.
The defendant did so in order to receive money or property from the victim.
The victim relied on the false pretenses or false representation of the defendant.

AND

The defendant actually misrepresented himself or herself, or made promises under false pretenses.

The prosecution can illustrate false pretenses through any of the following:

1. A false token
2. A written note regarding the false pretenses signed by the defendant
3. The testimony of two witnesses regarding the defendant’s false pretenses
4. The testimony of one witness plus corroborating evidence

Example

A very real-world example of theft by false pretenses is illustrated by the Bre-X mining scandal , which occurred during the early to mid-1990’s. A Canadian gold mining company purchased a mine in Indonesia which initially produced a very limited amount of gold. Consequently, the company began to fail. However, one of the workers at the company began to “salt” the daily core samples. As a result, Bre-X began to accumulate more investors, and more money, but ultimately collapsed after the crime surfaced.

A core sample is “salted” by adding other, more valuable, minerals to the sample – in this case, gold. Salting the core samples of this particular mine indicated a much higher quantity of gold than there actually was.

Bre-X lied about the mine’s success to attract new investors. Moreover, the company convinced investors to continue supporting their failing mine through deceit. Bre-X leveraged their fraudulent core samples to acquire more investors for the struggling company.

Elements of The Crime

Convicting someone of theft by false pretenses requires the prosecution to prove the elements of the crime.

Element One

The first element concerns deliberate deceit. The defendant must have known that what he or she said was false, and have had the intent to convince the other person that it was true.

“False pretenses” can include:

Making a reckless statement without checking its validity or the validity of any supportive facts of the statement
Withholding critical information under the circumstances
Making promises without any intent to keep them

Hypothetical Example

Tammy begins to produce what she describes as a panacea, In reality, however, there is no scientific evidence to support her claims. She convinces a person suffering from cancer to purchase her chemical compound with the promise that it will cure cancer. Tammy is guilty of theft by false pretenses even if she didn’t positively know her claims were not true. She recklessly claimed that her chemical compound could cure diseases without any scientific evidence.

Element Two

The second element involves fraudulent end goals. The defendant must intend to persuade the victim to give up his or her property to the defendant.

Deception for another purpose does not qualify as an adequate element of this crime

Example

Ryan is curious about human behavior. He decides to pretend to be Jesus Christ and to go about announcing the Second Coming – simply to observe people’s reactions. Eventually, this gains traction on the internet and he becomes a well-known public figure within a certain demographic. As a result, people begin to send him money with no solicitation on his part. Ryan is not guilty of theft by false pretenses because he never intended to persuade anyone that he was Christ, nor did he request that property be given to him.

Element Three

The third element involves trust. The defendant’s lies must be believed by the victim. The victim must have given up his or her property because of false information deliberately given by the defendant. If the victim knew the individual was lying, and then chose to give up his or her property, it is more difficult to prove a case of theft by false pretenses.

A skilled defense attorney will be able to accurately assess the victim’s motives in this situation. After examining the relationship between the defendant and the victim, a good defense lawyer will devote adequate resources to investigating both parties. The defense attorney will accurately analyze the facts, and will be able to show that the victim did not give the property based on the defendant’s statements, but for some other reason, thus removing the fault from the defendant.

Element Four

The fourth element involves a deliberate lie. The individual must cause the victim to believe in his or her lie through some means.

The law recognizes four ways to illegally acquire trust in a theft by false pretenses case.

A “false token” could be counterfeit money or some related item supporting the false pretenses.
Any note or documentation of the false pretenses signed or handwritten by the defendant.
Testimony from two witnesses that supports the false pretenses.
Testimony from one witness, together with supporting evidence that indicates the false pretenses.

Fighting Theft by False Pretenses in California

Building a defense against theft by false pretenses charges can be challenging. However the prosecution has the burden of proving the defendant’s intent to deceive. The defendant may genuinely believe in what he or she said, and therefore never intended to deceive the victim. Moreover, the defendant may have misunderstood the situation and the facts surrounding it. A skilled defense attorney can introduce enough reasonable doubt to prevent the prosecution from attaining a conviction.

Another key factor of theft by false pretenses involves the victim relying on the defendant’s word and acting accordingly. If the victim fully understood the situation, the risks involved, and the defendant’s intent, then the victim did not rely on the defendant’s lie. If the victim did not rely on the defendants actions, then the defendant cannot be convicted of theft by false pretenses.

The penalties for theft by false pretenses are the same as for other forms of theft, and vary according to whether the charge is a misdemeanor or a felony. Theft of property valued at $950 or less is considered petty theft.

Penalties for Theft by False Pretenses in California

Theft of property valued at more than $950, or of a car, a firearm, or livestock, is considered grand theft under California State Penal Code 532. Grand theft is considered a wobbler crime, meaning that the charge will be determined by the specific circumstances of the case, as well as by the defendant’s criminal history. However, the State of California will always charge any theft of a firearm or automobile as a felony.

The penalties for misdemeanor petty theft include

Up to 6 months in county jail
Fines of up to $1,000

The penalties for misdemeanor grand theft are:

Up to 1 year in county jail
Fines of up to $1,000

The penalties for felony grand theft are:

16 months to 3 years in state prison
Fines of up to $10,000

Understanding California Theft By False Pretenses

Those facing a charge of theft by false pretenses owe it to themselves to seek the most skilled defense attorney possible in order to fight the charges, and to find a successful outcome.

The State of California prohibits theft by false pretenses as outlined in California Penal Code 532. Theft by false pretenses can also be described as a con, or confidence trick.

The state must prove that the defendant carried out a few specific elements of the crime:

First, the defendant intentionally deceived the victim through a lie.

Second, the defendant lied in order to gain the victim’s trust and to receive property from the victim.

Third, the victim relied on the lie.

Finally, the defendant actually misrepresented himself or herself or made promises under false pretenses.

Working with an experienced legal team can make all the difference, both in a catastrophe and in a minor inconvenience. The defendant may have had genuinely good intent. Determining what other people are thinking, or thought, is not possible due to the current limitations of science and technology. The prosecution must prove intent to deceive. Since everyone makes mistakes, and since circumstances may change dynamically, proving intent to deceive is more challenging than it may appear at first glance.

Vandalism in California

Posted by Kyle Gaffney on April 7, 2018

California State uses Penal Code 594 to describe Vandalism as maliciously damaging, defacing, or destroying property belonging to someone else. The law only applies to property not owned by the vandal.

If a person took a baseball bat to his or her own car, then vandalism would not occur. However, if the car was leased, then the individual would have vandalized the credit company’s property. Typical examples include breaking windows, keying cars, or graffiti. The key components of vandalism revolve around malicious intent. Accidents do not qualify as a crime, even though the individual may still be financially liable for the damage in civil court.

Vandalism’s wobbler status refers to the circumstances surrounding the individual case, and the prior offenses committed by the defendant. These two factors determine whether the prosecution pursues either misdemeanor or felony charges.

While the most extreme penalties for vandalism can include prison time, vandalism convictions may also drastically impede professional development. Employers often view a vandalism conviction on a prospective employee’s criminal record as a legitimate risk, and often move on to other candidates.

Defining Vandalism in California

California Penal Code 594 defines vandalism as follows:

Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) defacing with graffiti or other inscribed material. (2) damaging (3) destroying

This essentially means that the State of California does not allow anyone to harm the property belonging to someone else in any way.

In order to convict an individual of vandalism, the prosecution must prove three elements of the crime beyond a reasonable doubt.

California Criminal Jurors Instructions 2900, Vandalism, explains the elements as follows:

The defendant maliciously defaced with graffiti or with other inscribed material, or damaged, or destroyed real, or personal property

AND

The defendant either did not own the property, or owned the property with someone else

AND

The amount of damage caused by the vandalism was $400 or more.

The elements of vandalism are explained in greater detail below:

Malicious intent

The first element concerns malicious intent behind the defendant’s actions.

Someone acts maliciously when he or she intentionally commits a wrongful act, or acts with the unlawful intent to annoy or injure someone else.

The prosecution must prove the accused individual acted with malice against the property he or she vandalized. If the act was accidental, then the accused is not guilty of vandalism. Furthermore, malice does not necessitate a desire to break the law.

California Penal Code 594 not only prohibits malicious harm to another’s property, but also criminalizes graffiti.

Graffiti and Vandalism

Juror Instructions 2900 further explains graffiti as follows:

Graffiti or other inscribed material includes an unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property.

Penal Code 594 classifies any unauthorized writing or drawing on any type of property, using any form of marking, as “graffiti” as defined under the term “vandalism.”

“Real” property refers to anything connected to the land, as well as to the land itself and anything attached to it, such as a building, a home, or a yard.

“Personal” property refers to anything else, such as a television inside a home, or a car.

Moreover, the penal code also states that, “defacement with graffiti or other inscribed material does not need to be permanent.”

Ownership of Property

The second element concerns the ownership of the vandalized property. An individual cannot vandalize his or her exclusively-owned property. However, vandalism can be charged with respect to jointly-owned property.

If the alleged vandalism appears on “public” property (such as a park bench), the jury may presume that the defendant did not own the property, and that he or she lacked permission to deface, damage, or destroy this public property. (https://www.nocuffs.com/wp-admin/admin.php?page=wpcf7ic property)

California’s vandalism law also applies to jointly-owned property. A husband or a wife can be convicted of vandalizing his or her own property if the vandalized property belongs to both spouses.

Value of Damaged Property

The final element describes the damage caused as compared to a monetary value.

The cost to repair or replace vandalized property determines if the prosecution will pursue misdemeanor or felony charges. For vandalism resulting in damage under $400, the prosecution may only pursue misdemeanor charges.

However, if the damage costs $400 or more to repair, the crime becomes a “wobbler,” meaning that the prosecution may pursue either misdemeanor or felony charges against the defendant. The prosecutor’s decision in this regard is generally based on the specific circumstances of the case and on the defendant’s criminal history.

Also, if the prosecution can prove that the defendant committed one or more acts of vandalism with the “same intention, impulse and plan,” then the damage from all the acts will be added together. If the total amount of the damage is $400 or more, then the prosecutor may charge the individual with felony vandalism.

Penalties for Vandalism in California

California has created a surprisingly complex punishment system for vandalism under Penal Code 594.

Misdemeanor Vandalism

Misdemeanor vandalism under Penal Code 594 carries the following penalties if the cost to repair the damage is under $400:

Up to 1 year in a county jail
Fines of up to $1,000—OR of up to $5,000 for defendants with a prior vandalism conviction
Informal Probation

If the amount of the damage is $400 or more, the penalties for misdemeanor vandalism under Penal Code 594 include:

Up to 1 year in a county jail
Fines of up to $10,000—OR of up to $50,000 if the amount of the damage was $10,000 or more
Informal probation

Felony Vandalism

If the amount of the damage is $400 or more, the penalties for felony vandalism under Penal Code 594 include:

Either probation, with up to one year of county jail time, or county jail time of from 16 months to 3 years
Fines of up to $10,000—OR of up $50,000 if the amount of the damage was $10,000 or more
Informal Probation

Subsequent Convictions

Under Penal Code 594.7, if the defendant was previously convicted of vandalism on at least two occasions, and was either incarcerated or granted probation in at least one of the cases, then the defendant must serve a jail or prison sentence in the current case.

Potential conditions of informal probation for a vandalism conviction include the following:

A driver’s license suspension of up to two years, or if the defendant has not yet attained one, a one to three year delay in the defendant’s eligibility to obtain a driver’s license
Required counseling
Community service, which may include personally cleaning, repairing, or replacing the damaged property
Becoming the caretaker of the damaged property, or of another property in the community, and ensuring it stays “graffiti free” for up to one year

Defining Graffiti

Other forms of vandalism bring different consequences under California Penal Codes 640.5 and 640.6, such as graffiti with damage less than $250.

If the State-charged vandalism can be defined as defacing property with “graffiti or other inscribed material” (as opposed to the other forms of vandalism described above), and the damage costs less than $250 to repair, then the prosecutor may either pursue a regular misdemeanor vandalism charge, as described in Penal Code 594, or opt to pursue a different charge with less severe penalties, as described in Penal Codes 640.5 and 640.6.

If an individual is charged under Penal Code 640.5 or 640.6, then the potential penalties depend on how many previous California graffiti or vandalism convictions the individual has had.

First convictions become infractions, and the potential infraction penalties include:

A maximum fine of $1,000
Community service

Second convictions become misdemeanors if they were charged under Penal Code 594, or any other California vandalism law, and the graffiti damage cost is less than $250 to repair.

The misdemeanor penalties under Penal Codes 640.5 and 640.6 are less than those specified under Penal Code 594. They include:

Up to 6 months county jail time
Fines of up to $2,000
Community service

Third and subsequent convictions become misdemeanors. If the defendant has two or more convictions under California vandalism law, and was given a jail sentence or probation for at least one of those convictions, and the graffiti damage in the defendant’s current charge is less than $250, the penalties under Penal Code 640.5 or 640.6 include:

Up to 1 year in county jail
Up to $3,000 in fines
Community service

Other Types of Vandalism and Penalties

California has more vandalism laws than just Penal Code 594. The State has written several other penal code sections to prescribe different penalties for vandalism. These vandalism penalties determine the punishment based on the type of vandalism, or on the type of property vandalized. These other penal code penalties differ from standard vandalism, in that standard vandalism uses the cost of the damage to determine the penalties.

Vandalizing Places of Worship – Penal Code 594.3

Under Penal Code 594.3, vandalizing a church, temple, or other place of worship always becomes a wobbler. The cost to repair the damage does not impact the charge.

A charge of misdemeanor vandalism of a place of worship subjects the defendant to the following penalties:

Up to 1 year in a county jail
A maximum fine of $1,000
Informal probation conditions, just as with standard vandalism

A charge of felony vandalism of a place of worship includes the following penalties:

16 months to 3 years in state prison
Fines of up to $10,000
Informal probation conditions, just as with standard vandalism

Vandalism Involving Caustic Chemicals under Penal Code 594.4

California considers the specific act of committing vandalism using “butyric acid, or any other similar noxious or caustic chemical or substance” as a wobbler, regardless of the amount of damage done.

The penalty for misdemeanor vandalism involving chemicals includes jail time of up to six months.

However, the penalties for felony vandalism involving chemicals can include a jail sentence of sixteen months to three years.

A conviction of either of these vandalism charges subjects the individual to fines ranging from $1,000 to $50,000, depending on the amount of damage to the vandalized property.

Vandalism On or Near a Highway or Freeway under Penal Codes 640.7 and 640.8

Penal Code sections 640.7 and 640.8 describe the following penalties for acts of vandalism occurring on or near a highway or freeway:

County jail sentence of up to 6 months for a first conviction, or for conviction of vandalism near a highway, and up to 1 year for a second conviction, or for a first conviction of vandalism near a freeway
Fines of up to $1,000 for conviction of vandalism on or near a highway, and up to $5,000 for conviction of vandalism on or near a freeway
Counseling or Community service

Understanding Vandalism in California

Citizens have the right to defend themselves against criminal allegations. People can educate themselves and work with experienced defense attorneys to ensure the best possible outcome when dealing with criminal charges.

Conor McGregor’s recent acts of criminal mischief in New York City illustrate what California defines as vandalism. He maliciously destroyed property belonging to another entity. He did not own the property, and the damage amounted to well over $400.

The penalties for vandalism in the State of California vary because vandalism can be charged in many different forms. Misdemeanor vandalism involves penalties of one year in county jail and fines of up to $1,000. Felony convictions can result in jail sentences of up to one year and fines of up to $10,000.

Individuals facing vandalism charges greatly benefit from working with skilled and experienced defense attorneys. Navigating the legal landscape successfully requires diligent investigation and deliberate action.

Will my insurance know I got a DUI?

Posted by webds on November 28, 2017

- Will my insurance know I got a DUI

The penalties for being convicted of a DUI in California are serious and should not be taken lightly. While most DUI is treated as misdemeanors, there is still the loss of one’s drivers license, fines, and varying jail sentences to contend with. In addition, a very significant consequence of receiving a DUI conviction is that your automobile insurance premiums will increase a great deal.

Having to spend a few hundred dollars more for car insurance can cut into anyone’s fixed budget and mean participating in far fewer of life’s pleasures. Over a ten-year period, you could pay a total of ten to twenty thousand of dollars more in car insurance premiums if you are convicted of a DUI.

At the DMV

The good news is that neither the court nor the California DMV will be automatically informed of your conviction if this is your first offense. When you go to renew your auto insurance policy or when you file a form SR-22 to have your driver’s license reinstated, your insurance company will be notified. You can expect that there will be an increase of about 50% over and above the current premiums you pay and more if you were involved in an accident causing personal injury or property damage.

Your Insurance

If this is not your first DUI then you may have your automobile insurance canceled completely or you could be placed in a “high risk” category and charged an amount that could make driving prohibitively expensive. If your automobile insurance is canceled you face the difficulty of having both a DUI and an insurance cancellation on your record when trying to convince another insurance carrier to issue you a policy. Your premiums, in this case, will be two to three times as high as your original premium.

After the ten year period has elapsed starting from your most recent DUI conviction, your DUI will be cleared from your driving record and you should be able to once again get less expensive car insurance. That is assuming you have no other motor vehicle infractions.

In addition to DUI, other factors that an automobile insurance company will take into consideration when determining your premium are how old you are, your gender, your driving history and the model of car you drive. Each auto insurance company is different so it will pay to shop around and get multiple quotes.

10 things that happen when you get a dui

Posted by webds on November 19, 2017

What Happens Now After I got a DUI

The first thing that happens when you are arrested and charged with a California DUI is that you are put in handcuffs, tossed into the back of a police cruiser and taken to the local police station. Once arrested and in police custody, you will have to undergo a mandatory breath, blood or urine test to determine the amount of alcohol in your blood. You will be fingerprinted and booked. If you are arrested late at night you will probably spend the rest of the night in jail. After you are released you will receive a summons to appear in court.

You will have to hire a DUI defense attorney. Even if you plead guilty you will need an attorney to work out any plea to a lesser charge and to file the appropriate paperwork. If you are a repeat DUI offender there could be mandatory jail time and you will have to arrange for bail to be released pending your trial.

Your driver’s license will be taken from you and you will have to make an appointment and go to a California Department of Motor Vehicles to get it back or receive a conditional license.

You will be required to pay any fines that are levied against you. Even a first-time California DUI conviction can cost over $1000 in fines and administrative penalties.

Your auto insurance will be notified of your DUI when you renew your policy or when you file form SR-22 to reinstate your suspended driver’s license and at that time your auto insurance premiums will go up a lot. The amount you pay could double or triple and this can add hundreds of dollars to your cost of driving every month. If you have multiple prior DUI’s your automobile insurance may be canceled entirely when the policy comes up for renewal and you could be classified as a “high risk” driver.

The impact a DUI has on your life depends on a number of factors such as your age, your prior DUI convictions, whether or not you are currently on DUI probation, and most importantly, whether or not you were involved in an accident causing personal injury, loss of life, or extreme property damage. There are however a number of life-altering consequences to receiving even a first DUI that can have a negative impact on your life.

How long does a California DUI stay on your record?

Posted by webds on November 15, 2017

How long does a California DUI stay on your record

How long a California DUI stays on your record depends on a number of factors and also which record you are talking about. A California driver builds a record at the Department of Motor Vehicles as well as a personal criminal record. Each record serves different purposed when it comes to how your California DUI affects your life.

Your Driving Record

A DUI conviction stays on a person’s driving record for 10 years. Both the Department of Motor Vehicles and law enforcement can see and use this information when you seek to have your driver’s license reinstated. The number of years a DUI remains on a driving record was increased to 10 from 7 years in 2007. Driving records cannot be removed until the term, which begins on the date of your first arrest, has expired, however, your driving record is not accessible by potential employers or other criminal investigators. If you are arrested and charged with a DUI, your DMV driving record is accessed to determine the critical date of your first, second or subsequent DUI arrests to determine the charges. The difference between a third and fourth DUI is an elevation of the charges from a misdemeanor to a felony and as such the penalties can have life-altering consequences including a long loss of driving privileges and a long period of imprisonment. Your California car insurance company also has access to your DMV record and will increase your car insurance premiums based on the number of points you have from DUI. Your driver’s license will be suspended if you have 4 points in two years, 6 points in three years or 8 points in any four-year period.

Criminal Record

A DUI conviction stays on a person’s criminal record permanently. While most DUI’s are misdemeanors, a California DUI can be charged as a felony if it is the fourth within 10 years or if you were DUI and caused personal injury. Under certain circumstances you can have a DUI expunged and cleared from your criminal history. This expungement will eliminate the charge when a third party such as a potential employer performs a criminal background check but does not affect the DMV record of your DUI’s. If you are faced with a DUI it is always a good idea to talk with a knowledgeable and experienced DUI expungement lawyer especially if you are concerned with how the conviction will affect your employment of professional status.

How Long Will Your License be Suspended

Posted by webds on November 10, 2017

There are a number of scenarios that present themselves following a California DUI and the penalties depend on several factors. If there is no personal injury or property damage involved, the length of one’s California driver’s license suspension depends on the number of prior DUI offenses on one’s record. There are additional penalties added to your DUI conviction should you refuse post-arrest chemical testing. The following are common California DUI scenarios and how each affects your driving privileges.

If you are over 21 years of age, not on DUI probation, and this is a first DUI conviction without causing personal injury or property damage, and you complied with the required chemical testing, you will face a 4-month driver’s license suspension. Second and subsequent DUI convictions will result in a one-year suspension. If you are on DUI probation and test positive for drugs or alcohol, you face a one-year license suspension with no allowances for getting to and from work. If this is your first DUI and you were involved in an accident that caused personal injury or property damage, you will lose your driver’s license for at least one year. Felony DUI convictions carry a three-year driver’s license suspension.

Refusing Chemical Testing

If you are convicted of the above DUI and do not comply with chemical testing requirements, i.e., breath, blood or urine testing, a first DUI conviction will receive a one-year suspension, second offenses within a 10-year period a two-year suspension, and if this is a third or subsequent DUI offense, a three-year driver’s license suspension.

Zero Tolerance for Under 21 Drivers

For those under 21 years old, a one-year license suspension is applicable if preliminary alcohol screening or chemical testing that show even a .01 blood alcohol content.

If your DUI accident did not cause severe injury or death to another individual and you are convicted of DUI for the fourth time you will face a four-year driver’s license suspension and forced to complete a 30-month multi-offender program to get your license back. If your DUI caused the death of another, you may be charged with DUI causing injury, vehicular manslaughter, or in certain instances second-degree murder, all resulting in a permanent loss of your California driver’s license.

If you are involved in any California DUI situation, you should immediately contact a California DUI defense lawyer to advise you of the penalties that are applicable to your unique situation. Your age, the number of prior convictions, whether or not you are on DUI probation, and if another person was injured or killed or you caused property damage all will have an effect on how long you will be unable to drive.

Is Drug Addiction a Treatable Disease?

Posted by webds on November 6, 2017

Is Drug Addiction a Treatable Disease

It is difficult to think of drug addiction as anything other than the fault of the addict. Drug addicts are portrayed in the media as living in the slums of crack houses, filthy and homeless. Drug addicts are viewed as nonredeemable losers with little or no chance of rehabilitation and they are also looked at as a danger to society. Television, movies and the media has made it very easy to dislike drug addicts.

The majority of drug addicts, however, are very different from the stereotypical version. Drug addicts occupy every conceivable profession from secretary to surgeon and it is estimated that one in five adults is addicted to one drug or another. Fathers, mothers, sisters, and brothers can be addicted to drugs and nobody would even know. There is no specific look or personality that defines a person addicted to drugs. As a matter of fact, most drug addicts go to great lengths to conceal their addiction and will deny that they even have a drug problem until they make a mistake that changes their lives. There is certainly no way to force a drug addict to get the treatment they need if neither they nor anyone else can even identify that there is a problem.

When measured in terms of crimes committed, reduced work productivity, and increased healthcare costs, substance abuse costs our nation over $750 billion per year. In addition to saving thousands of lives every year, reducing substance abuse by forcing DUI drug offenders into clinical rehabilitation could have profound economic benefits to society.

There is a movement afoot to think of drug addiction as an illness and a treatable disease and to force those that commit a drug-related driving offense as to get the treatment they need. Each year the state of California arrests prosecutes and punishes thousands of people that are caught driving under the influence of drugs or alcohol. Could receiving a DUI for a second or subsequent time automatically qualify the driver to be designated as an alcoholic, a substance abuser or a drug addict and force the person into rehabilitation? Why send someone to prison only to have them come out and re-offend when they could be put into rehabilitation instead and come out truly rehabilitated and take their place as a productive citizen?

California gives first time DUI offenders that have not caused bodily injury or the death of another, the opportunity for rehabilitation. First time DUI offenders are forced to successfully complete a three-month alcohol-treatment program that is extended to nine months if a person’s BAC is over 0.20%. For repeat offenders, “DUI school” can be extended to 30 months.

Whats Causing the Increase in Marijuana DUI Arrests

Posted by webds on November 1, 2017

Whats Causing the Increase in Marijuana DUI Arrests

Because of the legalization of marijuana for recreational as well as medical purposes, marijuana usage and overall awareness is at an all-time high. The publicity of more and more people using marijuana has prompted a response from law enforcement who are concerned that a rise in motor vehicle accidents and the corresponding fatalities may be about to follow.

While using marijuana may be legal, California marijuana DUI is a serious crime that is equal to DUI alcohol and has serious, life-altering ramifications. The penalties for first time California DUI marijuana are 3 to 5 years of informal probation, 96 hours to 6 months in jail, a $390 to $1000 fine, and a 6-month driver’s license suspension. California police have taken the firm step to counter the potential for marijuana-related motor vehicle fatalities by training police officers in every aspect of marijuana detection.

Police Drug Recognition Training

Responding to more and more Californians using marijuana and potentially driving under its influences, police have been educated to be more aggressive in investigating potential instances of DUI marijuana. Police throughout the state are being trained to become certified as drug recognition experts.

Tests for Marijuana

Shining a flashlight into the eyes of a driver that has been pulled over for suspicion of DUI and looking to see the pupil response is the primary test for DUI marijuana. Running a finger back in forth and watching for the person’s eye responsiveness in tracking is another. When you are pulled over a police officer will request you roll down your window so that he can smell alcohol or marijuana and will also look for marijuana smoking paraphernalia.

Police Training is Responsible For The Increase in DUI Marijuana Arrests
No one can put their finger on the exact cause of the increase in California DUI arrests as blood testing for marijuana alone is up over 40% this year according to California county crime lab technicians. California police chiefs tend to concede that although marijuana use is up, enhanced drug enforcement training of its officers is more responsible for the increase in DUI marijuana arrests. It is clear that people are being tested more frequently for marijuana, however, there is no way to know if increased usage due to legalization or increase testing due to enhanced police training is the root cause of the problem.

Are the police using marijuana legalization simply as a rationale to look more closely for marijuana usage? Were DUI marijuana arrests previous to legalization slipping through the cracks and being charged as simple DUI alcohol before the light of public attention was cast on marijuana? Until the statistics roll in over the coming years that will be an impossible question to answer.

California Drivers License Sanctions for Repeat DUI Offenders

Posted by webds on October 27, 2017

Drivers License Sanctions for Repeat DUI Offenders

Having a driver’s license is essential for functioning in society, i.e., going to and from work, going shopping, traveling around for pleasure etc. It is easy to forget that in California driving is a privilege and not a right and if you abuse the privilege of driving and commit an illegal act such as driving under the influence of drugs or alcohol you can lose your drivers license for a period of time, and with the penalty losing a driver’s license comes potentially life-altering consequences. A person could lose their job from not being able to get to and from work, the children could suffer from not having someone to chauffeur them to and from soccer and ballet lessons.

The more times a person is convicted of DUI, the greater the penalties that affect one’s ability to drive. California DUI’s are “priorable” offenses meaning the more times within any given 10-year period you are convicted, the greater the license sanctions. The clock starts the day of your first arrest that led to a conviction.

Restricted License for First Time DUI Offenders

The state of California recognizes that everyone makes a mistake now and then and wants to be as lenient as possible on first time DUI offenders as they will lose their driver’s license for 6 to 10 months. So as not to make this penalty unduly harsh, the driver may be able to convertible to restricted license which would allow one to go to and from work and the grocery store. After your first DUI driver’s license suspension the license sanctions start to escalate. A second time DUI conviction is still a misdemeanor in most instances unless one causes personal injury or property damage and that person will lose their licence to drive for 2 years and will have to wait one year until they can apply for a provisional license like the one previously mentioned. A third time DUI offender loses his/her license for 3 years and must wait 18 months to apply for a restricted license. Four or more DUI’s are an automatic felony and carry a four-year driver’s license suspension.

California lawmakers have made eliminating DUI a top priority. California police strictly enforce DUI laws which are tough but fair and take human error into consideration. Repeat DUI offenses, however, are not tolerated and will negatively affect many areas of one’s life.