It's always especially rewarding for me when I'm able to get my clients' cases dismissed. I don't bother to blog about it every time, but today I used a strategy that isn't mentioned anywhere else on my website, so that motivated me to post a blog entry. That strategy is commonly referred to as a "Civil Compromise" and it's outlined in California Penal Code section 1377 et seq. It's a legal strategy that I've been using for many years and I've had great success with it. In a Civil Compromise, if the victim in a case is willing to state that he's been fully compensated for any damages, and the victim wishes that the case be dropped, that request is often going to be granted. (There are certain circumstances where a Civil Compromise can't be employed. Ask an experienced California Criminal Defense attorney for more details, about whether a Civil Compromise might help you in your situation.)
My client was charged with violating Vehicle Code section 20002(a)(1), Leaving the Scene of an Accident, commonly called "Hit and Run." It seemed like a strong case, where my client was likely to be convicted. The prosecutor wanted to put my client on probation, make him pay a hefty fine, spend five days in jail, and do 100 hours of Community Work Service. My client was not optimistic about the case, and was merely hoping that I could help save his driver's license. (A conviction for VC 20002(a)(1) would have given him two more points on his license, and he'd have lost his license, if convicted.)
Eventually the victim in the case decided that he did want to request a Civil Compromise, and my client's case was dismissed. There's no penalty for my client -- no fine, no points on his license, no probation, no jail, and no court-ordered Community Work Service. It's an especially rewarding outcome.
Public Intoxication, California Penal Code section 647(f), is, in my opinion, a very difficult charge for a prosecutor to get a conviction on. Prosecutors will usually bargain with the defense attorney, and are often even willing to give an outcome that results in a complete dismissal of the charge, in my experience. If the defendant is under 21 and this is their first offense, the client can often obtain a dismissal if they complete an alcohol education program specifically designed for young adults. Defendants over 21 can often have their case dismissed for attending 20 AA meetings, in San Luis Obispo County.
In my experience, prosecutors are only willing to go to trial on "the worst of the worst" Public Intoxication cases. (I've tried several of those "worst of the worst" Public Intoxication cases, and I've won more than I've lost. For a lot of reasons, it's a hard charge for a prosecutor to get a conviction on.)
Today, I was able to have my client's Public Intoxication case dismissed at the initial arraignment. That's a nice outcome!
Over the last two weeks I've had some very satisfying settlements:
- Vehicle Code 23152(a)/(b), DUI with Prior, multi-car accident, the prosecutor initially sought 4 years probation and 120 days jail - charges reduced to "Dry" Reckless Driving, 2 years of summary/informal probation and 5 days jail.
- Penal Code 243(e)(1) Domestic Violence Battery, Probation Department recommended 3 years probation and 30 days jail - my client received 3 years probation with no jail time.
- Penal Code 530.5, Identity Theft/Misuse of Personal Information, 3 counts, Felonies - reduced to 1 count of misdemeanor Identity Theft, sentenced to 3 years summary/informal probation, no jail time.
And even more rewarding than any settlement:
- Penal Code 242 Battery - case dismissed without going to trial.
I Don't Consent to Searches
The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. If the police have a warrant to search, they can search where and for what the warrant authorizes them to search. There are specific circumstances that give the police exceptions to the warrant requirement. But a whole lot of searches happen even when there is no warrant and none of the exceptions to the warrant requirement apply.
Have you ever watched an episode of "COPS" where an officer asks (or states, authoritatively) "You don't mind if I take a look in your car, do you", and the driver answers "Sure, go ahead" -- only for the driver to be promptly arrested because of something the officer discovered during that search? It happens. I don't watch "COPS" regularly, but in the few episodes I've stumbled across while changing channels, I've seen that scenario played out more than once. And I've seen it in cases I've handled in court, as well.
If a uniformed, armed, assertive law enforcement officer, standing above you, shining a flashlight into your face, says with an authoritative tone of voice, "You don't mind if I take a look in your car" you may not even realize that they have a choice. But you do have a choice. The Bill of Rights protects you against unreasonable unwarranted searches, but that right is lost if you don't assert it. In my opinion, it's a very valuable right -- it is one of the things that makes our country free. The founders of the United States thought it was important enough to include it in the Bill of Rights, so I imagine they would agree.
You *don't* have to consent to searches. I don't consent to searches. I've never been asked, but if the day comes when I am asked, I'm prepared to state, politely and confidently, "No, I don't consent to searches."
FlexYourRights.org has posted an entertaining video on YouTube that shows some Do's and Don't's for anyone in that situation. Take two minutes to watch the video -- or just say it once or twice now so you'll be prepared, if you even find yourself wanting to assert one of your constitutional rights: "I don't consent to searches."
Felony Sentencing Realignment
The Criminal Justice Realignment Act of 2011 made significant changes in the way the State of California will sentence and supervise people who are convicted of felonies. This is a link to a website (that will probably only be of interest to other criminal defense lawyers) with the definitive answers about sentencing realignment, including a helpful FAQs section. www.courts.ca.gov/partners/realignment.htm
DMV Suspension Overturned
Great way to start the weekend - learning that the suspension of my client's drivers license has been overturned! Making my clients happy makes me happy, too.
Speeding Ticket Trial Results in "Not Guilty"
Not Guilty -- that was the verdict of the Court Trial held in San Luis Obispo Superior Court on February 22, 2011, case number T001833292. Attorney Katherine Schwinghammer represented the defendant who was charged with speeding, violating California Vehicle Code section 22349(a).
At trial, the California Highway Patrol officer testified that he saw the defendant's motorcycle leaning sharply while driving through a curve in the 101 Highway, and the angle that the motorcycle was leaning indicated to the officer that the motorcycle was traveling very fast. The CHP officer said he made a visual speed estimate that the motorcycle was traveling 85 miles per hour. The CHP officer testified that he then got a reading of 87 mph, and then "locked it in" (locking in a reading on the radar display) that the motorcycle was going 85 mph.
Attorney Katherine Schwinghammer was able to raise Reasonable Doubt that the defendant had actually exceeded the 65 mph speed limit, and the Judge entered a verdict of Not Guilty.
Have you ever felt that you received a speeding ticket you didn't deserve? Attorney Katherine Schwinghammer represents select defendants charged with offenses in San Luis Obispo County and Santa Barbara County, on California's Central Coast.
Looks like the blog at www.Uppityshirts.com likes "Schwinghammer" for a new word. Read their March 18, 2010 post and see what "Schwinghammer" means.
San Luis Obispo County DUI trial result - Hung Jury
After deliberating for two days, on February 24, 2010, the Jury in San Luis Obispo Superior Court case M435989 told the Judge they were irrevocably deadlocked and they believed they would never reach a unanimous decision. The defendant had been charged with violating California Vehicle Code sections 23152(a), Driving Under the Influence, and 23152(b), Driving at 0.08% BAC or above. The Jury was deadlocked as to both counts.
Attorney Katherine Schwinghammer represented the defendant at trial, and obtained the Hung Jury result for her client.
Although every criminal defendant would prefer to hear the words "Not Guilty," a Hung Jury result is still considered by most to be a result that is favorable to the defendant. "Hung Jury" means that the prosecution tried to get the Jury to convict the defendant and was unable convince them to do so. What follows after a Hung Jury depends on many different factors, depending on the circumstances of each individual case.
But at the conclusion of a trial that ends with a Hung Jury on all counts, like in this case, the defendant still has not been convicted of any violation of the law.
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