The U.S. Supreme Court has ruled that criminal suspects’ statements can be used against them if they fail to invoke their rights.

The court ruled 5-4 that criminal suspects have a duty to invoke the rights outlined in the historic Miranda vs. Arizona decision, including the right to remain silent and to have an attorney present during questioning. In the past, the court held that the government had the burden of demonstrating that a suspect had knowingly and intelligently waived his rights.

Tuesday’s ruling addressed a Michigan case where a man was convicted of murder based largely on his one-word response to a question after nearly three hours of interrogation.  His conviction was overturned by an appeals court that ruled that using his answer to convict him violated his right against self-incrimination. The Supreme Court’s ruling overturned that decision.
Our constitutional rights have eroded considerably in recent years, so it’s more important than ever to have a skilled defense lawyer on your side if you’re under investigation for a criminal charge.  The top California defense attorneys of The Kavinoky Law Firm are well-known for standing up for the rights of their clients, and will do everything possible to protect you during a criminal investigation. Contact a skilled California defense lawyer today at 1-800-NO-CUFFS for a free consultation.

A new year brings new laws in California, and 2010 is no exception.  There are a number of new laws on the books that impact convicted DUI drivers and certain individuals charged with California theft or other property crimes. Another new law increases the amount of time credit earned by certain inmates in California county jails and prisons.  Yet another new law prevents authorities from sending low-level, non-violent offenders back to prison for parole violations. As in every year, the list of new California laws is lengthy, so we’ve summarized the most noteworthy ones here. If you have any questions about any of these new laws and how they will affect your case, you can always contact The Kavinoky Law Firm at 1-800-NO-CUFFS.

Two new laws will impact many individuals convicted of DUI. AB 91 creates a pilot program that requires every driver convicted of DUI in Los Angeles, Alameda, Sacramento and Tulare counties – even first offenders – to install and use an ignition interlock device.  The law will remain in effect until 2016, when the pilot program may be extended and expanded to include other counties.

SB 598 is a bill that will allow DUI offenders to obtain restricted driver’s licenses sooner than they would otherwise if they install and use an ignition interlock device.  Convicted DUI drivers will still have a certain period of “hard” suspension when they are not allowed to drive at all, but that hard suspension will be shortened by installing an ignition interlock device.

A new law that takes effect January 25, 2010 increases the dollar amount that determines whether more than 30 theft and property crime offenses can be charged as felonies rather than misdemeanors.  For example, the threshold for a felony charge of writing a check with non-sufficient funds increased from $200 to $400. The limits for some offenses, such as theft of currency or jewelry, remain unchanged.

Certain individuals serving time in California county jails will earn more time credits than before under another new law that takes effect on January 25, 2010. In the past, inmates in county jails earned two days of credit for every four days spent in custody. Under the new law, they will earn two days of credit for every two days served.  Some defendants are excluded from earning the additional credit for time served. They include individuals convicted of violent felonies who are limited to a 15-percent reduction credit under California Penal Code section 2933.1; those required to register as sex offenders; and individuals convicted of serious felonies or with prior convictions for serious felonies. Up to six weeks of additional credit can also be earned by many state prison inmates who complete certain prison programs.

Another new law that takes effect January 25, 2010 prevents certain individuals from being returned to prison for parole violations. The individual cannot be returned to prison for a parole violation if all of the following are true: he or she is not required to register as a sex offender, wasn’t convicted of a serious felony, doesn’t have a prior conviction for a serious felony, wasn’t convicted of a sex crime, wasn’t found guilty of a serious disciplinary offense, isn’t a validated gang member or associate, didn’t refuse to sign a notification of parole conditions, and wasn’t determined in an evaluation to have a high risk of reoffending.

Understanding California’s complex criminal statutes and the many new laws that are passed each year is difficult. Fortunately, the knowledgeable California defense attorneys of The Kavinoky Law Firm ensure that they’re up on the latest developments in the law, so that you don’t have to.  If you have any questions about any aspect of your California criminal case, please don’t hesitate to call us today at 1-800-NO-CUFFS.

New California Driving Laws for 2009

As of January 1, 2009, a host of new driving laws went on the books in California, and being aware of these statutes will help you avoid trouble with the law in the New Year. As always, if you have any questions about any California Vehicle Code, feel free to contact an attorney from The Kavinoky Law Firm at 1.877.466.2833 for more information.

Perhaps the most talked-about new law is California’s ban on texting. As of January 1, it’s against the law to type, send, and read electronic messages while behind the wheel. Like California’s law requiring the use of hands-free cell phones while driving, the new text-messaging ban carries a $20 fine for a first offense and a $50 fine for a second offense, but the state’s “penalty assessment” means the fine will be significantly higher.

Even more importantly, violating either of these laws gives police probable cause to pull you over, which can lead to more serious charges. These types of relatively minor violations can result in an arrest for DUI or another serious offense.

Another new law impacts drivers who are on probation for a California DUI conviction. Under the new zero-tolerance law, drivers on probation for a prior DUI conviction who have any measurable amount of alcohol in their systems will have their driver’s licenses suspended.

California has also lowered the threshold for ignition interlock devices, or IIDs, in DUI cases. In the past, California law required that judges give “heightened consideration” to ordering DUI drivers with a blood alcohol content (BAC) of .20 percent or greater to use an ignition interlock device. The new law lowers the threshold for an IID, which prevents a car from starting if the driver cannot provide an alcohol-free breath sample, to .15 percent.

Beginning in July 2009, drivers who are caught driving after having their licenses suspended for a prior DUI conviction will also be required to use an ignition interlock device. This new law also transfers authority over the use of ignition interlock devices from the courts to the California Department of Motor Vehicles.

New California legislation also requires drivers convicted of DUI or alcohol-related reckless driving – also known as “wet-reckless” – to attend a nine-month alcohol-education program if they’ve been convicted of another DUI or wet-reckless offense within the past decade.

Other changes to the law include new criminal penalties for forging Clean Air stickers, harsher penalties for those who make frivolous 911 calls, and changes to the law that governs where GPS units can be mounted. In the past, mounting the unit on the windshield was against the law. Now drivers can mount the devices in a 7-inch square on the lower passenger side of the windshield or a 5-inch square on the lower corner of the driver’s side.

By keeping yourself informed about California’s ever-evolving vehicle and criminal codes, you can better prepare yourself to stay out of trouble in 2009. And should you ever need us, the experienced California defense lawyers of The Kavinoky Law Firm are here to help. You can contact us at 1.877.466.2833 for answers to all of your questions about California vehicle and criminal codes.

 

Friday, June 30, 2006

DRIVING UNDER THE INFLUENCE CHARGES FOR ATV DRIVERS

WOODLAND HILLS, Calif. — Fans of sun and sand are gearing up for fun summer weekends full of riding ATVs and drinking with friends.  However, those who enjoy a few beers before driving an all-terrain vehicle may be in for an unfortunate surprise:  DUI charges can be brought against them, and those charges can be devastating.

In recent years the dangers and illegality of boating under the influence have been emphasized, and many people now know that they can be arrested for drinking and boating. However, many people do not realize that driving an all-terrain vehicle while impaired is just as dangerous and just as illegal.

“The punishments for driving an ATV while intoxicated are identical to those for driving a car under the influence of alcohol,” said California criminal defense attorney Wendy Wittenberg.  “I’ve dealt with many defendants who were arrested and charged with DUI while driving ATVs.  They were all shocked.  They had no idea that it was illegal, or that they could lose their driving privileges and serve jail time.”

According to California law, a person driving any vehicle on a public highway can be arrested for driving under the influence if his or her blood alcohol content measures .08 percent or more.  If convicted, this person may have to serve jail time, participate in a DUI school and pay fines.  The Department of Motor Vehicles can suspend the defendant’s Class C driver license even without a conviction.

“Of course, when people are arrested for DUI while driving an ATV, many times they argue that they weren’t on a public roadway.  Unfortunately for these defendants, sand dunes are considered public roadways for the purpose of California driving under the influence laws,” said Wittenberg.  “This means that anyone driving in a sand dune while intoxicated can be arrested for DUI.”

Wittenberg has handled many ATV DUI arrests, and she is beginning to see a trend.  “More and more clients are calling me to help defend DUI charges while driving ATVs.  It probably is not due to more people drinking and driving, but more intense surveillance.”

These arrests can happen in a number of ways.  Many times, ATV drivers are turned in by rangers at the dunes.  These rangers will investigate the situation, and then contact the California Highway Patrol or local police department to report a suspicious driver.  In other instances, citizens can call the arresting officers with information about a suspected drunken driver.  The officers will then drive to the scene to investigate the situation and to possibly arrest the offender.

In addition to being illegal, driving an ATV while intoxicated is dangerous.  In the last 20 years, there have been more than 300 ATV-related deaths in California.  It is assumed that at least some of these accidents were due to intoxication of the driver.

“It’s important to use common sense about safety while driving in the dunes,” said Wittenberg.  “Drinking and driving is never a good idea, no matter what vehicle is driven.”

Wendy Wittenberg is an attorney at California-based criminal defense firm The Kavinoky Law Firm.  The attorneys of The Kavinoky Law Firm focus on customer service, and they take pride in their one-on-one approach with clients. They work tirelessly to have the best reputation of all criminal defense firms in the state.  www.NoCuffs.com

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For more information, contact Angie Rupert at (818) 346-4646 or [email protected].
Prepared by Angie Rupert.

Bicycle DUI | Motorcycle DUI | Boating BUI | BUI Investigation | BUI Punishment
Flying FUI | FUI Punishment | FUI Special Considerations
Under the Influence | California DUI California Criminal Law – Boating Under the Influence (BUI)

Boating is an activity that many people engage in for fun and recreation. It’s the kind of activity people associate with summer days at the beach or lake. People also associate alcohol with summer days by the waterfront. The problem is that when alcohol and boating mix, people can get injured. Boating under the influence of alcohol or drugs is a criminal offense that carries serious punishment for guilty offenders. The penalties include jail time, alcohol education classes, fines, and other penalties. A qualified California DUI / DWI attorney is capable of handling cases involving boating under the influence.

The California Harbors and Navigation Code provides the laws regarding boating under the influence. The code defines being under the influence as having a blood alcohol content (BAC) of .08 percent for a recreational vessel and .04 percent for a commercial craft. The statute sets a zero-tolerance for craft such as aquaplanes and water skis. The zero-tolerance policy means that any trace of alcohol is illegal when operating these craft.

Boating under the influence can be many times more dangerous than driving under the influence of drugs or alcohol. People drive every day and are well practiced at it. When it comes to boating however, many people might drive a boat a couple times a year. Such a person is far from an expert boat driver. For that same person to be drunk and boating is extremely dangerous.

Another important distinction between driving and boating is that driving takes place most commonly on roads that are fairly wide and stable. Boating takes place out in the ocean where the tides and winds can change in an instant. If a person is drunk, they will not be fast enough to respond properly to the changing circumstances. In fact, statistics from the United States Coast Guard show that in boating deaths involving alcohol use, over half the victims capsized their own boats and/or fell overboard.

Furthermore, boats, by their very nature, are inferior to cars in their ability to steer and to brake. Given that the typical boat operator spends only a few days a year on the water, they are typically not expert at handling the different problems that boaters encounter from time to time. When the hot sun and alcohol have had their say, an impaired person at the helm of a boat may be in bad shape and will be putting everyone aboard and nearby in danger.

As in cases of driving a car under the influence, the potential penalties for boating under the influence are very harsh. It is important to seek the help of a qualified criminal defense attorney. A California attorney experienced in defending BUI / BWI cases can launch an aggressive defense to the charges, and keep any negative consequences to a minimum.

California Vehicle Code VC 13353 – Refusal of Chemical Test

13353. (a) If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following:

1. Suspend the person’s privilege to operate a motor vehicle for a period of one year.
2. Revoke the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either (A) a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, that resulted in a conviction, or (B) a suspension or revocation of the person’s privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for an offense that occurred on a separate occasion.
3. Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following:
   1. Two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, or any combination thereof, that resulted in convictions.
   2. Two or more suspensions or revocations of the person’s privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for offenses that occurred on separate occasions.
   3. Any combination of two or more of those convictions or administrative suspensions or revocations.
      The officer’s sworn statement shall be submitted pursuant to Section 13380 on a form furnished or approved by the department. The suspension or revocation shall not become effective until 30 days after the giving of written notice thereof, or until the end of any stay of the suspension or revocation, as provided for in Section 13558.
   4. For the purposes of this section, a conviction of any offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, is a conviction of that particular section of the Vehicle Code or Penal Code.

(b) If a person on more than one occasion in separate incidents refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612 while driving a motor vehicle, upon the receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, the department shall disqualify the person from operating a commercial motor vehicle for the rest of his or her lifetime.

(c) The notice of the order of suspension or revocation under this section shall be served on the person by a peace officer pursuant to Section 23612. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 23612, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100.

(d) Upon the receipt of the officer’s sworn statement, the department shall review the record. For purposes of this section, the scope of the administrative review shall cover all of the following issues:

1. Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153.
2. Whether the person was placed under arrest.
3. Whether the person refused to submit to, or did not complete, the test or tests after being requested by a peace officer.
4. Whether, except for a person described in subdivision (a) of Section 23612 who is incapable of refusing, the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test or tests.

(e) The person may request an administrative hearing pursuant to Section 13558. Except as provided in subdivision (e) of Section 13558, the request for an administrative hearing does not stay the order of suspension or revocation.

(f) The suspension or revocation imposed under this section shall run concurrently with any restriction, suspension, or revocation imposed under Section 13352, 13352.4, or 13352.5 that resulted from the same arrest.

(g) This section shall become operative on September 20, 2005.

Amended Sec. 7.5, Ch. 952, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.
The 2005 amendment added the italicized material.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 13362 – Surrender of License Erroneously Issued

13362. The department may require the surrender to it of any driver’s license which has been issued erroneously or which contains any erroneous or false statement, or which does not contain any notation required by law or by the department. In the event a licensee does not surrender the license upon proper demand, the department may suspend the licensee’s privilege to operate a motor vehicle. The suspension shall continue until the correction of the license by the department or until issuance of another license or temporary license in lieu thereof.

» Return to California Vehicle Codes

Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 13375 – Definition of Conviction

13375. For the purpose of this article, any plea or verdict of guilty, plea of nolo contendere, or court finding of guilt in a trial without a jury, or forfeiture of bail, is deemed a conviction, notwithstanding subsequent action under Section 1203.4 or 1203.4a of the Penal Code allowing withdrawal of the plea of guilty and entering a plea of not guilty, setting aside the verdict of guilty, or dismissing the accusation or information.

Added Ch. 1360, Stats. 1990. Effective January 1, 1991.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 23594 – Impoundment of Vehicles

223594. (a) Except as provided in subdivision (b), the interest of any registered owner of a motor vehicle that has been used in the commission of a violation of Section 23152 or 23153 for which the owner was convicted, is subject to impoundment as provided in this section. Upon conviction, the court may order the vehicle impounded at the registered owner’s expense for not less than one nor more than 30 days.

If the offense occurred within five years of a prior offense which resulted in conviction of a violation of Section 23152 or 23153, the prior conviction shall also be charged in the accusatory pleading and if admitted or found to be true by the jury upon a jury trial or by the court upon a court trial, the court shall, except in an unusual case where the interests of justice would best be served by not ordering impoundment, order the vehicle impounded at the registered owner’s expense for not less than one nor more than 30 days.

If the offense occurred within five years of two or more prior offenses which resulted in convictions of violations of Section 23152 or 23153, the prior convictions shall also be charged in the accusatory pleading and if admitted or found to be true by the jury upon a jury trial or by the court upon a court trial, the court shall, except in an unusual case where the interests of justice would best be served by not ordering impoundment, order the vehicle impounded at the registered owner’s expense for not less than one nor more than 90 days.

For the purposes of this section, the court may consider in the interests of justice factors such as whether impoundment of the vehicle would result in a loss of employment of the offender or the offender’s family, impair the ability of the offender or the offender’s family to attend school or obtain medical care, result in the loss of the vehicle because of inability to pay impoundment fees, or unfairly infringe upon community property rights or any other facts the court finds relevant. When no impoundment is ordered in an unusual case pursuant to this section, the court shall specify on the record and shall enter in the minutes the circumstances indicating that the interests of justice would best be served by that disposition.

(b) No vehicle which may be lawfully driven on the highway with a class C or class M driver’s license, as specified in Section 12804.9, is subject to impoundment under this section if there is a community property interest in the vehicle owned by a person other than the defendant and the vehicle is the sole vehicle available to the defendant’s immediate family which may be operated on the highway with a class C or class M driver’s license.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

Certificate of Rehabilitation and Pardon

Felony convictions where a term in state prison is imposed require professional attention by a lawyer skilled in expungements.

There are two ways that someone sentenced to state prison can obtain relief:

1. the Certificate of Rehabilitation and Pardon, and
2. the Direct Application for Pardon.

A full pardon, whether direct or through rehabilitation proceedings, restores all of the rights and privileges of which the person was deprived by reason of the conviction, with some exceptions. In addition, a pardon relieves a sex offender of the duty to register under Penal Code Section 290. A pardon does not automatically restore any license, permit, or certificate that had been taken as the result of the conviction.

A Governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following conviction.

Pardon applications will not be considered unless an applicant has been discharged from probation or parole for at least ten years and has not engaged in further criminal activity during that period. While the receipt of a Certificate of Rehabilitation will be considered in evaluating a pardon application, it is but one factor and is not the sole determinant. The ten-year rule may be waived in truly exceptional circumstances, if the applicant can demonstrate an earlier, specific need for the pardon.

Once the threshold criteria has been met, the application will be reviewed to determine whether the applicant has met the standards set forth in California Penal Code section 4852.05, which states, "During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land."

Certificate of Rehabilitation

Certificates of Rehabilitation are first sought from the trial court. If a certificate issues, the trial court recommends that the governor grant a pardon. The governor has discretion to grant or deny a pardon. The pardon may be granted without further investigation, except that a person twice convicted of felonies must also have the recommendation of a majority of the supreme court.

In order to obtain a Certificate of Rehabilitation, the applicant must be a California resident for at least three years before the filing of the petition. There is a period of rehabilitation that is required before filing, during which the person must lead an honest life, and be free from convictions. The amount of time varies, depending upon the underlying criminal conviction.

Dismissal of the underlying charges pursuant to Penal Code Section 1203.4 is not required before seeking a Certificate of Rehabilitation, so long as the person served a prison sentence. If probation was imposed instead of a prison sentence, dismissal must first be obtained, and the defendant must be free from felony probation.

A Certificate of Rehabilitation is a court order, which declares that a person who has been convicted of a felony is rehabilitated. If a petition for a Certificate of Rehabilitation is granted, it is forwarded to the Governor by the granting court and constitutes an application for a pardon.

The laws pertaining to the Certificate of Rehabilitation can be found in California Penal Code sections 4852.01 to 4852.21.

Generally, a person who has been convicted in California of a felony, or a misdemeanor sex offense specified in California Penal Code section 290, the accusatory pleading of which has been dismissed pursuant to Penal Code section 1203.4, may apply to the superior court in his or her county of residence for a Certificate of Rehabilitation, provided that he or she meets behavioral requirements and the applicable period of rehabilitation. (California Penal Code section 4852.06.)

An exception to this rule involves individuals convicted of the following Penal Code sections: 286(c), 288, 288a(c), 288.5, and 289(j). Effective January 1, 1998, AB 729 amended Penal Code sections 1203.4 and 4852.01 to prohibit these specified sex offenders from obtaining a Certificate of Rehabilitation. Such individuals are no longer eligible to receive a Certificate of Rehabilitation.

The granting of a Certificate of Rehabilitation relieves some offenders from the sexual offender registration requirement of Penal Code section 290. (See California Penal Code section 290.5 for a list of persons not eligible for relief from registration.) To determine your 290 registration status, contact an attorney that knows the law in this specialized area.

Certificate of Rehabilitation & Pardon

Felony convictions where a term in state prison is imposed require professional attention by a lawyer skilled in expungements. There are two ways that someone sentenced to state prison can obtain relief:(1) the Certificate of Rehabilitation and Pardon, and(2) the Direct Application for Pardon.

Who may apply?

Persons who are eligible to apply for a Certificate of Rehabilitation include those who:

• Were convicted of a felony and served the sentence in a California state prison; and
• Were discharged on completion of the term or released on parole prior to May 13, 1943; and
• Have not been incarcerated in a state penal institution since release; and
• Present satisfactory evidence of three years residence in California immediately prior to the filing of the petition.

or

• Were convicted of a felony, or a misdemeanor sex offense specified in Penal Code section 290, the accusatory pleading of which was dismissed pursuant to Penal Code section 1203.4; and
• Have been discharged or released from custody on probation; and
• Have not been incarcerated in any penal institution, jail or agency since the dismissal of the accusatory pleading; and
• Are not on probation for the commission of any other felony; and
• Present satisfactory evidence of five years residence in California immediately prior to the filing of the petition.

or

• Were convicted of a felony on or after May 13, 1943; and
• Were sentenced to state prison or other institution or agency; and
• Were discharged from custody or released on parole; and
• Present satisfactory evidence of five years residence in California immediately prior to the filing of the petition.

Persons who are INELIGIBLE to apply for a Certificate of Rehabilitation include:

• Those who do not meet the above requirements; or
• Those who were convicted only of misdemeanors (except those convicted of a misdemeanor sex offense specified in Penal Code section 290, which was dismissed pursuant to Penal Code section 1203.4); or
• Those who were convicted of Penal Code sections 286(c), 288, 288a(c), 288.5, or 289(j); or
• Those who are serving a mandatory life parole; or
• Those committed to prison under a death sentence; or
• Those persons in the military service.

When to apply?

Persons eligible to petition for a Certificate of Rehabilitation may file the petition once the period of rehabilitation has passed. The period of rehabilitation begins to run upon the discharge of the petitioner from incarceration due to the completion of the term, or upon release on probation or parole.

The period of rehabilitation constitutes five years residence in California, PLUS:

• Four years in the case of persons convicted of violation of California Penal Code sections 187, 209, 219, 4500, or 12310, or Military and Veterans Code section 1672(a), or of committing any other offense which carries a life sentence; or
• Five years in the case of any person convicted of any offense or attempted offense for which sex offender registration is required pursuant to P.C. 290, except for convictions for violations of subdivision (b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or 314. For those convictions, two years shall be added to the five years imposed by this section.
• Two years in the case of any persons convicted of any offense not listed above and which does not carry a life sentence; or
• The number of additional years ordered by the trial court hearing the application for the Certificate of Rehabilitation in the case of a person serving consecutive sentences.

Rescission of Certificate of Rehabilitation

A district attorney in either the county of conviction or the county of residence may petition the superior court to rescind a certificate, if it was granted for any offense specified in California Penal Code section 290.

Procedures for Applying

The petition must be filed in the superior court of the petitioner’s current county of residence. (California Penal Code section 4852.06.) The petitioner is required to provide notice of their filing to the district attorney in their county of residence, as well as to the district attorney of each county in which the petitioner was convicted of a felony, and to the Governor’s office.

All felony convictions, or misdemeanor sex offenses specified in Penal Code section 290, for which the accusatory pleading was dismissed pursuant to California Penal Code section 1203.4, should be included. This notice must indicate the date and time of the hearing and must be sent to the district attorneys at least 30 days before the hearing.

Each person who is eligible to initiate the Certificate of Rehabilitation proceedings is entitled to receive assistance in processing the petition from all rehabilitative agencies, including adult probation officers of the county, and state parole agents; and, in the case of persons under the age of 30, assistance can be obtained from the Youth Authority. During the court proceedings, the petitioner may be represented by counsel of his or her own choosing.

Once a petition is filed, the court will schedule a hearing to consider the petition. Prior to the hearing, the court may require an investigation by the district attorney of the county of residence of any and all matters pertaining to the petitioner.

At the hearing, the court may require testimony and the production of records and reports pertaining to the petitioner, including information about the conviction offense, and his or her conduct both while incarcerated and since release on probation or parole.

If, after the hearing, the court finds that the petitioner has demonstrated rehabilitation and fitness to exercise all political and civil rights, the court may make an order declaring that the petitioner is rehabilitated. A certified copy of the Certificate of Rehabilitation is then transmitted to the Governor and becomes an application for a pardon.

Upon receipt of the application, the Governor may request that the Board of Prison Terms conduct a further investigation. Following a review, the Governor may then grant the pardon. If the petitioner has been convicted of more than one felony in separate proceedings, the California Supreme Court must also approve the grant of a pardon.

Direct Pardon Application

Direct pardons refer to requests for pardon made directly to the Governor. The governor has total and complete discretion to grant or deny a pardon. The pardon may be granted without further investigation, except that a person twice convicted of felonies must also have the recommendation of a majority of the supreme court to obtain a pardon.

A direct pardon is usually sought by persons who are not eligible for a certificate of rehabilitation, such as nonresidents and misdemeanants.

Any person who has been convicted in California of a felony, or a misdemeanor sex offense specified in Penal Code section 290, the accusatory pleading of which has been dismissed pursuant to Penal Code section 1203.4, may apply to the Governor for a pardon. Applications for pardons may be made in one of two ways: either by way of an application for a Certificate of Rehabilitation, or through a direct traditional pardon application. The procedure utilized will depend on the circumstances of the applicant, and it is important to consult with a lawyer to determine which is appropriate in any given case.

Once an application for a pardon is filed under either procedure, the Governor reviews the case. The Governor has complete discretion in deciding whether to grant a pardon, and a pardon is not granted to every person who applies.

Pardon investigations are conducted for the Governor by the California Board of Prison Terms, Investigations Division.

The traditional pardon procedure is available to those persons who are ineligible to petition for a Certificate of Rehabilitation. This procedure is used primarily, although not exclusively, by California ex-felons who reside out-of-state and are therefore unable to satisfy the residency requirement. The traditional pardon procedure is also available to those individuals who have convictions for Penal Code sections 286(c), 288, 288a(c), 288.5, and 289(j). The traditional pardon procedure is covered by California Penal Code sections 4800-4813.

Applicants for a traditional pardon must write directly to the Governor’s Office. It is highly recommended that a pardon applicant have the services of an experienced lawyer to ensure that all of the procedural requirements are met, and to increase the chances of success. At a minimum, the letter should include the following:

• Why a pardon is desired or needed;
• Date and circumstances of all felony offenses of which the applicant was convicted;
• Dates the applicant was received in prison and released from custody or placed on probation;
• Name of the applicant, including any aliases; date of conviction; county and case number of conviction, if known; prison number; name of parole agent; current address and telephone number; and
• A brief, general statement of employment and activities since conviction or release from custody.

Upon receipt of the letter, the Governor’s Legal Affairs staff will review the information. After the review, the Legal Affairs Office may send the Application for Executive Clemency and Notice of Intention to Apply for Executive Clemency forms to the applicant.

The applicant should complete the Application for Executive Clemency form and have it notarized. In addition, the Notice of Intention to Apply for Executive Clemency should be served on the District Attorney of each county in which the applicant was convicted of a felony, at least ten days prior to the application.

The Acknowledgment of Receipt portion of the notice form must be completed and signed by the District Attorney. Both the application and the completed notice must then be submitted to the Governor’s Office, along with a full statement of any compensation paid to any person for assisting in the procurement of a pardon.

Once the formal application is returned, the Governor refers it to the Board of Prison Terms for investigation. After the investigation, the case is presented to the Executive Board for a decision as to whether to recommend to the Governor that a pardon be granted. The applicant is notified of when the Board will be considering his or her case, and he or she is given the opportunity to forward any additional information, if desired. Pardon applicants do not attend the pardon consideration meeting. Following the meeting, the application, investigation report, and the Board’s recommendation are sent to the Governor. Notification of the meeting result is also sent to the applicant.

The Governor then reviews all of the information and decides whether to grant a pardon. If the applicant has been convicted of more than one felony in separate proceedings, the California Supreme Court must also approve the grant of a pardon.

There is no requirement that the Governor issue a pardon to an applicant, and the length of time needed for the completion of the pardon process cannot be predicted.

Effect of a Pardon

When a Certificate of Rehabilitation or pardon is granted, the California Department of Justice and the Federal Bureau of Investigation are notified. These agencies’ records are then updated to show that a Certificate of Rehabilitation or a pardon has been granted in regard to the conviction.

A pardon is also filed with the Secretary of State, reported to the Legislature, and becomes a matter of public record. Although no effort is made to publicize the pardon application or issuance, there is no guarantee that the issuance of a pardon to a particular person will not become known to the public.

Restoration of Rights

The granting of a pardon entitles the applicant to exercise additional civil and political rights of citizenship. The most frequent reasons people apply for a pardon are for personal satisfaction, for licensing or bonding purposes, and to restore firearms privileges. Another frequent reason is to enhance employment opportunities, even when no legal disability exists.

A pardon does not seal or expunge the record of the conviction. (California Penal Code section 4852.17.) Prior convictions may be considered after the granting of a pardon, if the person is subsequently convicted of a new offense.

A person who has been pardoned cannot state that he or she has no record of arrests or convictions. The person can state that he or she has been convicted and has been pardoned.

An ex-felon becomes eligible to vote after being terminated from probation or discharged from parole. (California Constitution, article 11, section 4.) A pardon is not necessary to be eligible to vote.

A person who receives a pardon may serve on a trial jury.(California Code of Civil Procedure section 203(a)(5) and California Penal Code section 4852.17.)

An ex-felon who receives a full and unconditional pardon can be considered for an appointment to a peace officer position as a county probation officer or state parole agent, but cannot hold other peace officer positions. (California Government Code section 1029.)

A person convicted of a felony cannot own, possess, or have access to any type of firearm, including a rifle or shotgun. (California Penal Code section 12021.) However, if a full and unconditional pardon is granted by the Governor, the person pardoned may own and possess any type of weapon that may lawfully be possessed and owned by other citizens in California. The Governor cannot restore firearms rights to a person who has been convicted of any offense which involved the use of a dangerous weapon.

Pardons for out-of-state residents must specifically state that rights pertaining to firearms are restored. A California pardon does not necessarily permit the possession of weapons under the laws of another state or the federal government. The law pertaining to the restoration of rights to own and possess firearms can be found in California Penal Code section 4854.

If you have not obtained a pardon restoring your firearms rights, and you have access to a firearm of any type, you are in violation of the law. For example, having a firearm registered to a spouse, but readily available to you in your place of residence, is a violation.

The granting of a pardon does not prevent some licensing agencies from considering the conviction that has been pardoned in its determination of whether a license to practice certain professions should be granted or restored. The law pertaining to the effect of a full pardon on licensing boards can be found in California Penal Code section 4853.

A California pardon does not apply to convictions suffered in another jurisdiction. A person convicted in another state or in a federal court must apply for a pardon to the other state or the federal government. It is best to consult with a lawyer familiar with pardons in such a case.

For more information about expungement, please feel free to contact attorneys at the Kavinoky Law Firm.

California Vehicle Code VC 23542 – Conditions of Probation: Second Offense Within Ten Years

23542. (a) (1) If the court grants probation to a person punished under Section 23540, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in county jail and fined under either of the following:

1. (A) For at least 10 days, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000).
2. (B) For at least 96 hours, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served nonconsecutively.

(2) The person’s privilege to operate a motor vehicle shall be suspended by the department under paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(b) In addition to the conditions specified in subdivision (a), the court shall require the person to do either of the following:

1. Enroll and participate, for at least 18 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation. The program shall provide for persons who cannot afford the program fee pursuant to paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety Code in order to enable those persons to participate.
2. Enroll and participate, for at least 30 months subsequent to the date of the underlying violation and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. The person shall complete the entire program subsequent to, and shall not be given any credit for any program activities completed prior to, the date of the current violation.

(c) The court shall advise the person at the time of sentencing that the driving privilege shall not be restored until proof satisfactory to the Department of Motor Vehicles of successful completion of a driving-under-the-influence program of the length required under this code licensed pursuant to Section 11836 of the Health and Safety Code has been received in the department’s headquarters.

(d) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5.

(e) This section shall become operative on September 20, 2005.

Added Sec. 18.5, Ch. 551, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
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California Vehicle Code VC 23220 – Drinking While Driving

23220. (a) No person shall drink any alcoholic beverage while driving a motor vehicle upon any highway or on any lands described in subdivision (b).

(b) As used in subdivision (a), "lands" means those lands to which the Chappie-Z’berg Off-Highway Motor Vehicle Law of 1971 (Division 16.5 (commencing with Section 38000)) applies as to off-highway motor vehicles, as described in Section 38001.

Amended Sec. 1, Ch. 384, Stats. 1998. Effective August 24, 1998

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.