SAN DIEGO CRIMINAL DEFENSE AND DUI MOTIONS ATTORNEY
A "motion" is a request made to the court, by a party, usually through that party's attorney.  Motions are an important tool for criminal defense attorneys in San Diego.  Motions can be made to have a case dismissed, get evidence thrown out, get property back, get a defendant out of custody and more.  Filing motions also makes the prosecution have to work harder for a conviction, which can be effective in obtaining a better plea negotiation.  Discuss your case with a San Diego Criminal defense attorney and identify which motions will be most helpful to your case.

PC 995 MOTION TO DISMISS
After a preliminary hearing, if the defendant is held to answer to the charges, but the government has not really put forward enough evidence to justify that action, the defense will file a 995 motion.  This motion seeks a dismissal from the trial court.  Essentially, it is like an appeal of the preliminary hearing judge's decision not to dismiss the case.  If the preliminary hearing transcript and exhibits do not show enough evidence for probable cause, your San Diego Criminal Defense Attorney should file a 995 motion and ask the trial judge to dismiss your case for a lack of evidence against you.

PC 1538.5 MOTION TO SUPPRESS EVIDENCE
Perhaps the most important motion in criminal defense cases, particularly in possession offenses or cases where a confession was made prior to the reading of Miranda rights.  Pursuant to Penal Code section 1538.5, criminal defense attorneys can have unlawfully obtained evidence thrown out of court.  Most frequently, these motions are used when a search was conducted in violation of a defendant's fourth amendment rights.  Motions to suppress are very common in DUI cases, drug crimes, weapon offenses and more.  More information about motions to suppress.

EC 402 MOTIONS (MOTIONS IN LIMINE)
Just before trial in a criminal case, the defense and prosecution will argue over the admissibility of some evidence, presence of witnesses and other spectators in the courtroom, and more details regarding the trial.  Some of the issues to be decided could include: whether a defendant's statements or prior criminal history will be admissible, whether to allow particular expert or lay witness testimony and more.  In liming motions are usually done on the day of or day before the jury is selected.

PC 1318 MOTION FOR OWN RECOGNIZANCE RELEASE OR FOR BAIL REDUCTION
Despite the "innocent until proven guilty" ideal we are taught from a young age, the unfortunate reality is that many people are held in custody until the disposition of their criminal case in our criminal justice system.  The court will typically set bail, whereby a criminal defendant may post a bond and then be released during the progression of the case.  It is also possible to make a motion to have the bail reduced or the defendant released on his or her own recognizance (O.R.).  The arguments in support of the motion are that the defendant is not a flight risk or a danger to the community.

PITCHESS MOTION
A Pitchess Motion is a motion (usually by the defense) to get access to a law enforcement officer's personnel and discipline files.  If the defendant believes that the officer used excessive force or lied about facts, it might be possible to access records and later impeach the officer when testifying.  If the officer has a long list of complaints, the prosecution may go as far as to dismiss the case or offer a better deal.  A Pitchess motion, therefore, can be an important tool for criminal defense attorneys both as a tool for trial and other hearings and as leverage in plea negotiations.

PC 1054 FORMAL DISCOVERY MOTION
Discovery is the process of the parties turning over evidence to the other side.  In criminal cases, most discovery is handled informally and governed by PC 1054.  The prosecution will usually turn over police reports and the defendant's criminal history at arraignment.  Next, the defense usually makes a request for specific evidence not turned over right away.  Additional discovery may consist of: video evidence, pictures, recordings of interview, 911 calls, and more.  While there is not always opposition to disclosure of discovery, the law enforcement agency and prosecuting attorney.  In these cases, the defense must make a formal motion to compel discovery.  If granted, the Judge will order the DA to turn over the requested evidence.

MOTION FOR RETURN OF PROPERTY
Usually filed after a case has concluded and property held in evidence can no longer be justifiably held as evidence, a motion for return of property is often the only way to recover some of your property taken by the police during an arrest or during a search warrant.  Returned property can include electronics, cash, passports/ID, legally possessed medical marijuana and more.

MOTION TO WITHDRAW PLEA
If a person enters a plea that is not free and voluntary, it may be possible to withdraw the plea and reinstate the proceedings.  A guilty plea may be withdrawn upon a showing a good cause and a timely motion.

MOTION TO DISCLOSE CONFIDENTIAL INFORMANT ("CI")
Sometimes the police and/or prosecution will attempt to keep a witness' identity from the defense.  While the statements of a CI will typically not be admissible as evidence, the CI's statements are often used to obtain search or arrest warrants. Knowing the identity of a CI can help with defense investigation and trial strategy.

MOTION FOR APPOINTMENT OF EXPERT WITNESS
When a defendant needs an expert witness or an investigator in order to establish their defense, the defendant is entitled not only to have such an expert appointed, but also for the government to pay the fees.  

KELLETT MOTION / DOUBLE JEOPARDY
"Double jeopardy" is a familiar concept to most people, but it is a little bit more complex than people realize.  On the one hand, there are exceptions like mistrials/hung juries.  On the other hand, double jeopardy can apply not only to the same charges, but also to new charges that were or could reasonably have been discovered prior to the filing of the earlier case.  An example of this would be if a defendant is arrested for driving on a suspended license, and it is later discovered that the vehicle was stolen.  If the suspended license case is finished before the auto theft case is filed, there may be a strong argument to dismiss the grand theft auto charge.

SERNA MOTION / DOGGETT MOTION
If the prosecution makes an unreasonable delay in bringing a defendant to trial or filing their case, it may be possible to get the case dismissed.  In misdemeanor cases, a Serna motion will likely result in a dismissal for cases 

TROMBETTA MOTION
If the government loses or destroys some potentially favorable defense evidence, a Trombetta motion may be filed to seek a dismissal of the case.  Finding out that the government lost or destroyed evidence is not easy, but in the cases where it does happen, it can be good news for defendants.

BLOOD SPLIT MOTION
In DUI cases involving blood testing, the government must follow very specific guidelines for drawing, testing, preserving and storing the blood sample.  The lab must not only preserve the sample prior to testing, but also retain sufficient sample to be re-tested by the defense upon request.  Re-testing for BAC can help to demonstrate the variation and the inaccuracy of the test, especially LA County's single-column chromatography technology.  Additionally, the re-testing can show that the sample was not properly preserved or stored, calling into question the reliability and competence of the lab.  Improper storage (temperature too high or low), stress on the blood and bacterial contamination can cause hemolysis, which indicates an unreliable sample.


If you or a loved one has been arrested or charged with a crime, know that there are many facets to a complete, thorough defense.  Motions are an important part of criminal defense, and are an important consideration when crafting your defense strategy.  Contact us now for a Free Consultation with a San Diego Criminal Defense Lawyer.
619-550-4422

When the US Constitution was proposed, delegates refused to sign until it was amended to include what we call the Bill of Rights.  The first ten amendments to the Constitution are the conditions upon which sovereign people relinquished power to the government.  Among these very important rights, is the right to remain silent, or the right against self-incrimination.  The Fifth Amendment to the US Constitution reads as follows:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

There are many, many rights bundled together in this short paragraph.  The right to a grand jury indictment, double jeopardy, due process for rights and interests, and of course, the right not to be compelled to be a witness against oneself.  This one line has come to dominate the general understanding of the Fifth Amendment.  When someone says "I plead the 'Fifth,'" it will virtually always be in reference to this particular line.  Our right to remain silent extends to ANY interaction with law enforcement.  If a police officer asks a citizen a question, the citizen is not under any obligation to answer.  Your right to remain silent exists at all times, and whether you are engaged in a mere encounter with a police officer, an investigatory detention, an arrest or interrogation after arrest.  Police are trained to make subjects feel as though they must comply with what the officer asks.  Know your rights and assert them as needed.

Remaining silent during a traffic stop, DUI checkpoint, domestic disturbance, phone call from a detective, letter from a DMV investigator, etc., could prove to be the difference between criminal charges getting filed or not filed or at least avoiding making a government case stronger.  Confessions and other admissions are strong evidence for the government; do not give it to them.  Even seemingly exculpatory statements might be disproven (showing consciousness of guilt) or lock you in to a particular defense strategy.  It is almost always best not to make any statements to law enforcement, especially without consulting an attorney first.

In the landmark case Miranda v. Arizona, the US Supreme Court held that people subject to custodial interrogation must be advised of their right to remain silent, and their right to have an attorney present.  We have all heard the "you have the right to remain silent..." spiel, whether in person or on TV.  Unfortunately, many people do not ever really consider what that means.  Many people, even after hearing the Miranda warning will make incriminating statements to police.  Police are well-trained in the art of eliciting confessions.  They use lies, scare tactics, intimidation and other psychological tools to get what they want.

If a police officer fails to read you your rights, any statements you make during custodial interrogation would be suppressed.  This means statements made after arrest, not simply during the investigative stage.  Additionally, spontaneous statements made after an arrest are not said to be the result of interrogation.  This means that the Miranda protections apply to a small range of statements.  Typically, officers do read arrestees their rights, and ultimately the best way to keep statements out of evidence is not to make them in the first place.  The defense has no burden of proof, and less evidence will likely make for a better defense.

Zip it.

Felony cases in California can be filed two separate ways: by grand jury indictment or by criminal complaint.  Very few cases are filed in San Diego by indictment, meaning that the overwhelming majority of cases is filed by criminal complaint.  The District Attorney files a complaint, charging the defendant with certain criminal acts.  Though these charges must eventually be proven at trial, an earlier stage exists, where the government must demonstrate cause to hold the defendant to answer to the charges.  The preliminary hearing is a very important stage in a criminal case, and gives the defense a preview of the strength of the government's case at trial.

WHAT IS A PRELIMINARY HEARING?
A preliminary hearing is a hearing in California felony cases that are filed by criminal complaint.  At the hearing, the government must present enough evidence to meet its low preliminary hearing burden.  This will typically involve testimony by one or more witnesses, including police, alleged victims and other percipient witnesses to facts needed to prove the government's case.  The defense may also subpoena witnesses to testify on its behalf.  This is an opportunity for the defense to explore the evidence, lock witnesses into testimony, argue motions, and try to get the case dismissed for lack of evidence.  If a defendant is "held to answer" at a preliminary hearing, then the case will proceed towards trial (though there will be additional opportunities to settle the case or get it dismissed).  Otherwise the case will be dismissed.

WHEN WILL MY PRELIMINARY HEARING TAKE PLACE?
The preliminary hearing is not the first court date.  Typically, the first court date in a felony or misdemeanor case is an arraignment.  Most felony cases will proceed to a preliminary hearing setting date (an opportunity to exchange additional discovery and discuss settlement) and then a preliminary hearing.  There may be several continuances prior to a preliminary hearing, especially if the defendant is out of custody, or a continuance is necessary to conduct investigation

WHO HAS THE BURDEN OF PROOF AT A PRELIMINARY HEARING?
The government has the burden of proof at a preliminary hearing.  Unfortunately, the government's bruden at preliminary hearing is quite low.  Nevertheless, the government must make enough of a showing to the judge that there is enough evidence to justify taking the case to a jury.  If a fact-finder (usually a jury) could find the defendant guilty based on evidence introduced at the hearing, then the judge will usually "hold the defendant to answer" meaning that they will be arraigned for trial.  Weight of credibility is a question left for the jury.

WHAT ARE MY DEFENSES AT THE PRELIMINARY HEARING?
Due to the government having the burden of proof, the most common defense asserted at a preliminary hearing is that there is insufficient evidence to prove that .  If your attorney does decide to put on a case at the preliminary hearing, it is possible to assert a wide array of defenses including: self-defense, mistaken identity, false accusations, lack of intent, lack of present ability, and much more.  Cases can be dismissed at the preliminary hearing for a number of reasons.  Motions to dismiss the case and motions to suppress evidence can be heard along with a preliminary hearing.  The preliminary hearing is also a very important step in trial preparation.  It is an opportunity to set up defenses at trial by locking witnesses into sworn testimony.

WHO WILL TESTIFY AT THE PRELIMINARY HEARING?
The prosecution and the defense both have the power to subpoena witnesses and call witnesses who can testify to relevant facts for a preliminary hearing or motion.  Typically the government will call one or more civilian or police witnesses, as necessary to make their case.  Cases with multiple charges or courts may require more witnesses.  The defense often does not call any witnesses at the preliminary hearing.  Still, objection to the prosecutors questions on direct, and a strong cross examination of government witnesses is an important step at a preliminary hearing.

CAN THE JUDGE INCREASE MY BAIL AT THE PRELIMINARY HEARING?
Yes.  Although the US Constitution only allows bail to be set for one reason (to secure the defendant's availability at court), California lawmakers have also given the court authority to impose bail to "protect public safety."  Further, bail is often used to pressure a defendant to plead guilty to a charge.  Unfortunately, it is not uncommon for the District Attorney and judges to use this tool to coerce a guilty plea.  If the government asks to increase or impose bail at your preliminary hearing, it is important for your attorney to be able to persuasively argue that (1) you are not a flight risk, and (2) not a danger to the community.  Additionally, you need an attorney who will stand up to government bullying and convince the judge to do the right thing.

If you or a loved one has been arrested and charged with a felony in San Diego, the prosecution will aggressively pursue a conviction and harsh punishments against you.  You deserve a thorough, hardworking, devoted defense.  Contact us now for a Free Consultation with a San Diego Criminal Defense Lawyer.  619-550-4422

A criminal courtroom can be a scary place, but understanding the legal terminology and the meaning of the various proceedings and procedures can make the experience much less daunting.  A good attorney can help you to fully understand what is taking place in court and how each step factors into working for the best outcome in your case.  This article will discuss some of the legal terminology you may hear in court, but is in no way a substitute for a consultation and certainly not for representation in your San Diego criminal case.

COMMONLY USED TERMINOLOGY:
ARREST:  Simply put, a person is arrested when handcuffed and brought to a police station for booking on suspicion of having committed a crime.  Some people will be released after arrest without being booked into county jail.  It is also possible to post bail after arrest and get a future court date.  A person who has been arrested has the right to remain silent and the right to have an attorney present during any questioning.

PROBABLE CAUSE:  Probable cause is a standard of proof that is required to justify arrests, warrants, searches, and more.  This makes probable cause a very important, and often disputed standard.  Probable means more likely than not, but this standard is not truly an objective one, treated differently by police, judges, prosecutors and defense attorneys.  If a judge determines that there was not probable cause for an arrest or for a search, it may lead to suppression of evidence or a dismissal of the case altogether.

SEARCH:  A search is an intrusion on a person's privacy, usually in the course of investigation for a criminal offense.  A traffic stop, a "pat down," and observation of items in plain sight do not rise to the level of search.  In order to justify a search, an officer needs (a) consent, (b) a warrant, (c) probable cause, or (d) exigent circumstances.  Search and seizure law is complex and very fact-specific.  A search leading to discovery of evidence of a crime can be challenged on Fourth Amendment grounds and can lead to suppression of evidence.

MIRANDA RIGHTS:  An arrested person (a person in custody) has a right to be free from unreasonable interrogation.  The rule that the courts use to protect an arrested person's rights is to require the police to read the arrested person their rights upon arrest and prior to any questioning.  These rights include a right to remain silent and a right to an attorney.  A person who is advised and continues to make statements without requesting an attorney will be deemed to have made the statements voluntarily.  If the police fail to read someone their rights, the remedy is only exclusion of statements made during custodial interrogation prior to the warnings being read.  This is a common misconception in criminal law.  Many people believe that the police's failure to read Miranda rights would lead to a dismissal or suppression of all statements.  In reality, statements made pre-arrest or spontaneously are not suppressed because of a failure to read Miranda rights.  If you were arrested and not read your rights, discuss the implications this could have on your defense with your attorney.

PRELIMINARY HEARING ("PRELIM"):  In felony cases filed by criminal complaint, the case will have a preliminary hearing before proceeding to trial.  If the government can show that there is good cause to hold the defendant to answer to the charges, the defendant will be arraigned for trial.  If the government does not meet its low burden, the case will be dismissed.  Cases can be dismissed at preliminary hearing if the witnesses are unavailable, witnesses are unable to identify defendant, testimony is inconsistent with the charges, police obtained evidence in violation of defendant's Fourth Amendment rights, and more.  Additionally, some charges might be dismissed and others not.  The preliminary hearing is a very important stage, giving the defense a preview of the government's case and witnesses, an opportunity to lock witnesses into sworn testimony, and opportunities to get charges dismissed and/or evidence suppress.

JURY TRIAL:  Defendants charged with misdemeanor and felony offenses are entitled to a trial by jury.  Trial will begin with jury selection and pretrial motions (usually concerning admissibility/relevance of evidence) and jury selection.  After a jury is selected and sworn in, the prosecutor and the defense attorney will have an opportunity to address the jury with an opening statement.  Next, the government will present its evidence by calling witnesses.  The defense will cross examine government witnesses and object to presentation of certain evidence or certain questions.  After the government concludes with its case, the defense may call witnesses to rebut the governments witnesses or

BENCH TRIAL:  A bench trial is a trial where the judge will serve the jury's role as the trier of fact.  This means that there will not be any jury selection.  The judge will make determinations of fact as well as law.  Bench trials are uncommon as both sides must waive their right to a jury, and usually one or both sides would prefer to have a jury decide the case.

FELONY:  Felony charges are the most serious category of charges and are punishable by more than a year in custody.  Most felonies are punishable by up to three years or more, with crimes involving violence and other aggravating factors can be punishable by more time in prison.  Some felony charges include grand theft, drug sales, aggravated assault, extortion, murder, felony dui, rape, child molestation and more.

MISDEMEANOR:  Misdemeanor charges are the less serious criminal charges, punishable usually by either up to six months or 364 days in jail.  Misdemeanor cases are very similar to felony charges in most ways, except for the possible punishment and that misdemeanors do not have a preliminary hearing.  Some common misdemeanor charges include: DUI, domestic violence, drug possession, driving on a suspended license and more.

INFRACTION:  Infractions are non-criminal and a great outcome in misdemeanor cases.  Many traffic violations, possession of small amounts of marijuana and pedestrian offenses like jaywalking are infractions and are punishable only by a fine.  No jail, no probation.  Infractions do not get jury trials.

MOTION:  When a party "moves" to have the court do something (e.g. suppress evidence, dismiss the case, continue the case, etc.), a motion is made by that party's attorney.  Most motions are made in writing, but motions may be made orally as well.

EVIDENCE:  Evidence is a broad term that can apply to anything that tends to prove or disprove something central to a case.  This can include documents, photographs, video, physical evidence, eyewitness testimony, character evidence, and more.  Evidence must be more probative than prejudicial or it may be excluded.  The rules of evidence are complex, but designed to protect the integrity of court proceedings.

HEARSAY:  Hearsay is a term commonly misunderstood by the general public.  Hearsay is an out of court statement, offered in court, to prove the truth of the matter asserted.  For example, the prosecutor cannot call one witness at trial and have that person testify to what another witness said.  Statements made by a party (usually the defendant) are called admissions and may be admitted.  There are many exceptions to the hearsay rule.  Additionally, statements that are being admitted to impeach a witness or show motive or effect on the listener are not being offered "for the truth of the matter asserted" and may therefore be admitted.  This is a complex area of law and specific statements need to be considered for whether they are hearsay or fall within an exception.

PLEA BARGAINING:  Most criminal (and civil) cases do not proceed to trial.  Instead, most cases end in a plea bargain, where the parties will agree on a disposition, including the charges the defendant will plead to and the punishment to be imposed.  Since a person who loses at trial may be sentenced more harshly, a plea bargain is usually the less risky alternative.  If a plea can be crafted to allow the defendant to keep their job, not be deported, not do jail time, avoid a felony, etc., it may be in the defendant's best interest to enter into a plea bargain.  If the government is not willing to be accommodating during plea negotiations, then the case may proceed to motion hearings, a preliminary hearing and/or trial.  Discuss your main goals and concerns with your attorney and see if you can work out a favorable plea deal.

NO CONTEST:  A "No Contest" (or Nolo Contendere) plea is treated the same as a guilty plea for the purpose of criminal proceedings.  The benefit to a No Contest plea is that the no contest plea cannot be used against the defendant in civil proceedings.  In San Diego, the DA typically will want a "guilty" plea, but if a no contest plea can be beneficial, it might be something worth considering and discussing with your attorney.

PRETRIAL CONFERENCE:  In San Diego, often called a "Status Conference" it is an opportunity for both parties (the defense and the prosecution) to exchange discovery, discuss settlement and if needed to set the case for preliminary hearing, motions and trial.

PRELIM. SETTING DATE:  Like a pretrial conference, this is an opportunity, early on in the process to settle the case and exchange discovery.

INVESTIGATING OFFICER ("I/O"):  In felony cases, there is usually a designated detective who investigates the case and helps the prosecutor with the case.  This person will usually look for additional evidence and question witnesses.

PROBATION SENTENCE:  In both misdemeanor and felony cases, a person may be sentenced to probation.  In felony cases, a probation sentence means that the defendant will not be sentenced to prison unless they violate probation.

"JOINT" SUSPENSION:  California felony offenses have a triad of possible punishments (16 months, 2 years or 3 years is the most common).  If the court grants probation, it can elect a term (usually the high term) to suspend (hold over the defendant's head) to motivate the defendant to comply with probation and stay out of trouble.  A person charged with a new offenses or probation violation with a "joint suspension" will have a harder time staying out of prison.

"FOURTH WAIVER":  A common probation term in San Diego probation cases, both felony and misdemeanor.  While most citizens have a right, under the Fourth Amendment, to be free from unreasonable search and seizure, the judge may impose as a condition of probation that the defendant waive this right.  This means that the person will have to submit to a search of their home, vehicle or person whenever requested by probation or any law enforcement officer.

ARRAIGNMENT: The arraignment is almost always the first court date in a criminal case.  The prosecution presents and files the charging document (known as a criminal "complaint").  The defendant is made aware of the charges and enters a plea.  At this stage, the plea will usually be "Not Guilty" and the case will then be set for its next court date.  Additionally, defense counsel will receive the police reports and other evidence that the government has received from the law enforcement agency that investigated the alleged crime.

OWN RECOGNIZANCE RELEASE ("O.R."): While bail is frequently required for a defendant to remain out of custody during the course of a criminal case, the court may also grant a defendant what is known as an "Own Recognizance" or "O.R." release.  This permits the defendant to remain out of custody without having to pay money to the court or a bail bondsman.  Bail is supposed to be to secure a defendant's availability in court.  If the defense can show that the defendant is not a "flight risk" or a danger to the community, then bail may be lowered or an O.R. may be granted.

DISCOVERY:  Discovery is the process by which parties to litigation exchange information and evidence before trial.  In a criminal case, the government must disclose all of its evidence to the defense, and the defense must disclose most of its evidence to the prosecution.  At arraignment, the government will typically give the defense attorney all police reports, lab results and other paperwork relating to the case.  If the defense believes the prosecution or law enforcement agency has in its possession additional evidence, then a "Discovery request" is made.  If the government fails to comply with the discovery request, defense counsel can file a formal motion to compel discovery, and even seek a dismissal of the case or exclusion of evidence on the grounds that the government has failed to comply with the discovery process..

INVESTIGATION:  Investigation is the gathering of evidence.  Both sides will have an opportunity to conduct their own investigation.  Typically the police and DA's office will assign investigators.  The public defender has investigators on its payroll, while most private defense attorneys work with private investigators for this service.  It is important to gather all possible real and testimonial evidence, including identifying possible witnesses, preserving and gathering any video or surveillance footage, etc.

This article provides a brief overview of some of the terms you might encounter in a criminal case, but are in no way a substitution for a real consultation with a criminal defense attorney.  If you or a loved one has been arrested or charged with a crime in San Diego, contact us now for a FREE CONSULTATION.  619-550-4422

Penal Code Section 415, disturbing the peace, is a broad statute that has frequently come under fire for vagueness, the possibility of arbitrary or discriminatory enforcement and for infringing on the First Amendment.  In essence, PC 415 punishes the following conduct: (1) unlawfully fighting or challenging someone to a fight in a public place, (2) willfully and maliciously disturbing others with loud noise, and (3) using offensive words, likely to provoke an immediate violent reaction in a public place.  Though not many people are arrested and charged with disturbing the peace, it is one of the most important sections of the penal code because of plea negotiations.

POSSIBLE CONSEQUENCES OF DISTURBING THE PEACE
Disturbing the peace can be filed as a misdemeanor or as an infraction.  As a misdemeanor, it is punishable by up to 90 days in jail, up to five years of probation, and a fine of up to $400.  As an infraction, disturbing the peace will result in only a fine.  Whether a disturbing the peace matter is filed as a misdemeanor or infraction will depend on the conduct and the defendant's criminal history.  Though the penalties for disturbing the peace are not as severe as many other criminal offenses, it is important to avoid a criminal conviction wherever possible.  Consult with a San Diego Criminal Defense Lawyer about your case.

DEFENSES TO DISTURBING THE PEACE
Disturbing the peace has many defenses.  Mistaken identity, false accusations, self-defense, lack of intent, and other common defenses to crimes will apply to disturbing the peace as well.  A defense that specifically applies to PC 415 is a First Amendment defense that the speech was not provocation, and is protected.  Each case is different and will have different defenses depending on the facts, the defendant, the available evidence, any rights violations and more.  Consult with a San Diego Criminal Defense Attorney about your possible defenses.

RELATED OFFENSES
Because disturbing the peace is a broad offense, it can overlap with other offenses including public intoxication (PC 647(f)), battery (PC 242), criminal threats (PC 422), domestic violence (PC 243(e)(1) or 273.5), trespass (PC 602) and resisting arrest (PC 148).  Because disturbing the peace is punishable by less jail time than most misdemeanors, and does not look as bad on a criminal background check, PC 415 is a very common plea alternative to some of the above offenses.  For example, in a domestic violence case, it may be possible to get the prosecution to dismiss the domestic violence charges in exchange for a plea to disturbing the peace.  The disturbing the peace conviction will not look as bad, will not have negative immigration consequences and more.  Discuss the possibility of reducing your criminal charges to disturbing the peace or other alternatives.

If you or a loved one has been arrested or charged with a crime in San Diego, you need a passionate, aggressive, knowledgeable attorney on your side.  Contact us now for a Free Consultation with a San Diego Criminal Defense Attorney.  619-550-4422

DUI is the single biggest focal point of law enforcement in San Diego.  There is aggressive prosecution and harsh enforcement of DUI laws.  Driving under the influence of drugs or alcohol has proven unsafe, and can result in the death of another human being.  These are the DUI offenses taken most seriously.  When a DUI driver charged with the death of another human being has a prior conviction for DUI (or "wet reckless"), DUI causing death can be charged as murder.  Pursuant to the 1981 landmark California case People v. Watson, California law considers driving recklessly while intoxicated enough to meet the wanton disregard requirement for second degree murder by "implied malice."  Watson murder charges are very serious, and require knowledgeable, dedicated, thorough criminal defense representation.  Both Watson murder and DUI manslaughter are always felonies and always strike offenses. 

WHAT IS THE DIFFERENCE BETWEEN WATSON MURDER AND DUI MANSLAUGHTER?
If a person dies in an accident and the other driver has drugs or alcohol in their system, serious felony charges are likely to follow.  A person with no criminal history, specifically no history of DUI, will likely be charged with DUI Manslaughter.  Manslaughter is the unintentional killing of another human being, while murder requires intent.  California law permits an inference of intent/malice aforethought in Watson murder cases, reasoning that those convicted once of DUI are made aware of the risks associated with driving impaired.  An advisement is given as part of most DUI pleas, and those convicted of DUI are typically ordered to attend alcohol education programming.  The difference between murder and manslaughter is intent; in DUI cases, the difference, practically speaking, is a prior conviction.  Watson advisement is also being presented on driver's license applications.  This is ominous in that harsher penalties may some day be applied in DUI manslaughter cases without a prior DUI.

WHAT ARE SOME DEFENSES TO WATSON MURDER?
All of the offenses that apply to a run-of-the-mill DUI case will also apply to a Watson murder or DUI manslaughter case.  These defenses include: Rising BAC,Mouth Alcohol, Medical Conditions, Field Sobriety Tests, Proper Testing Procedure, Driving Pattern, Testing Accuracy.  In addition, the prosecution must prove that the defendant actually caused the accident that resulted in the victim's death.  Not every person who has been drinking and involved in an accident is at fault.  The accident could have been caused by the victim, another driver, or an "act of God" (dog running into the street, for example).  As such, DUI causing death defense requires a strong understanding of accident reconstruction, evidence gathering and preservation, and effective presentation of that evidence.  Every case is different, and every defense must be properly tailored to the case, the client, the judge and the jury.

WHAT ARE THE PENALTIES FOR WATSON MURDER AND DUI MANSLAUGHTER?
DUI Manslaughter is punishable by up to 10 years in prison.  Additionally, those convicted of DUI Manslaughter (or any other felony DUI offense) are subject to substantially increased penalties for any subsequent DUI.  Even if the second DUI is a .09 at a DUI checkpoint with no accident, a person previously convicted of felony DUI could be looking at doing up to six years in prison.  Watson murder is the most harshly punished.  Someone convicted of murder for killing another person while driving intoxicated (due to a prior conviction) will face 15 years to life in prison, and a "strike" under California's Three Strikes Law.

Needless to say, those facing DUI manslaughter or DUI murder charges in San Diego need to put their case in competent hands.  You need an attorney with the knowledge, experience and tenacity to get you the best possible result in you case.  Contact us now for a Free Consultation with a San Diego DUI Lawyer.  619-550-4422

Standard Watson Advisement:
"I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle.  I understand that it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both.  I understand that if I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder."

There are two distinct functions of the juvenile courts in San Diego.  Dependency proceedings are meant to protect children from neglect and/or emotional, physical or sexual abuse.  Dependency proceedings may be initiated if a social worker, hospital employee, school teacher, etc. observe what they believe to be signals of abuse.  A child may be temporarily or permanently removed from the care of a parent who is deemed negligent or abusive.  The other form of proceedings are delinquency proceedings, essentially criminal proceedings for minor offenders (offenders under 18).  While minors can be charged as adults as early as age 14, most minors will have their criminal charges heard in juvenile ("delinquency") court. 

Perhaps the biggest difference between criminal proceedings for adults and the juvenile justice system is the greater emphasis on rehabilitation within the juvenile court system.  While adult criminal courts and prosecutors seem to have "written off" the defendants in those proceedings, the youthfulness of juvenile offenders is considered to be a major mitigating factor, and the juvenile court system has a better record of reducing recidivism because of its rehabilitative approach.  It is important to note that just like adults charged with crimes, juveniles in delinquency proceedings have a right to be represented by an attorney, and will have an attorney appointed if they cannot afford one.  A major difference in the proceedings is that there are no juries in juvenile court.

DETENTION HEARING
The juvenile delinquency court proceedings begin with a detention hearing.  This is the first court date, and it is up to the court to determine whether a juvenile will be released while proceedings take place, or remain in custody during this period.  The severity of the charges, criminal and school discipline history of the juvenile and many other factors will weight in to whether a juvenile is forced to remain in custody or may be free while proceedings take place.  This is similar to the bail process for adults, except that minors are not required to post any bail to secure their availability at court.  The detention hearing will occur within 2 days of arrest, and the issue of detention can be revisited after 3 days.  At this stage, the attorney's job is to demonstrate to the court that the juvenile is not a flight risk and not a danger to the community.

FITNESS HEARING
Serious juvenile offenses may proceed to a "fitness hearing" to determine whether the juvenile should be tried as an adult.  It is important to note that not all juvenile offenders are offered a fitness hearing.  First, many minor juvenile offenses will not go to a fitness hearing and the minor's case will be heard in the juvenile system.  Second, the District Attorney may "direct file" a case in the adult criminal courts, even if the offender is under 18.  For cases that do proceed to a fitness hearing, the operative question is how much of an effect did the offender's age play in the commission of the offense.  Prior contacts with law enforcement, the severity of the crime and many other factors will be considered.

ADJUDICATION
Juvenile cases do not have a jury trial.  Instead, a judge hears the evidence and then renders a verdict at a proceeding known as an adjudication.  The government still has the same burden of proof - proof beyond a reasonable doubt - but need not convince 12 jurors.  If the government proves its case, the judge will "sustain" the petition, the juvenile court version of a conviction.  The judge can also "set aside" the petition; this is the juvenile version of an acquittal.

SENTENCING
In juvenile delinquency matters where the judge sustains the petition, the case will proceed to sentencing/disposition.  A juvenile sentence can include probation, fines, removal to foster care, detention in a juvenile detention center or camp and community service. 

Juvenile petitions should be taken seriously and fought to avoid the imposition of harsh penalties.  If you or a loved one is a minor facing juvenile or adult criminal proceedings in San Diego, contact our office now for a free consultation.  619-550-4422

San Diego, with its location right on the Mexican-American border is home to many non-citizen immigrants.  From green card holders (lawful permanent residents, or "LPRs"), visa holders (including student visas, work visas, tourist visas, etc.), and undocumented (illegal) immigrants.  For each group of non-citizens, the immigration consequences of a criminal conviction must be carefully examined and applied to case strategy and used to ensure that no plea bargain is entered that would unknowingly subject a non-citizen to deportation, removal, denial of naturalization, denial of citizenship or other negative consequences.  Though it may not be possible to avoid negative immigration consequences in every case, it is important to have an intelligent, knowledgeable San Diego Criminal Defense Attorney who understands immigration law and can properly advise you of the consequences.  If you or a loved one is a non-citizen facing criminal charges, the consequences can be that much more severe.  Contact our office today for a Free Consultation.  619-550-4422

Aggravated Felonies
For non-citizens, "aggravated felonies" are the most serious form of criminal conviction.  Non-residents (those who are here illegally or on temporary visas) are subject to "administrative removal" upon a conviction for an aggravated felony.  This means that the person will not be entitled to a removal hearing and will not be able to assert defenses to removal.  Aggravated felonies affect even green card holders ("LPRs") and are the most serious kind of offense for immigration purposes.  Some examples of aggravated felonies include:  illegal controlled substance trafficking, firearm trafficking, violent crimes (includes crimes involving threat of force) where the sentence imposed is greater than a year, theft offenses with a sentence of a year or greater, and theft, fraud or deceit offenses where the loss to victims exceeds $10,000 are all defined as aggravated felonies.

Crimes Involving Moral Turpitude
A conviction for crimes involving moral turpitude (CIMTs) will subject a non-citizen to inadmissibility and deportability.  CIMTs are crimes that involve theft, lying, deceit, forgery, etc.  Just one conviction of a CIMT will trigger deportation if the crime is punishable by up to a year.  Note that this criterion focuses on the possible punishment and not the punishment actually imposed.  There is also a Petty Offense Exception which permits non-citizens to avoid inadmissibility as a consequence for one minor CIMT offense.  Two or more offenses and there may not be a defense.

Crimes of Violence or Domestic Violence
Many crimes of violence and domestic violence are aggravated felonies.  In cases where a conviction does not qualify as an aggravated felony, it may still have negative immigration consequences.  Avoiding a domestic violence conviction is imperative.  The conviction cannot be an aggravated felony (i.e. must have a sentence of less than a year), but it is also important that the record of conviction not mention the domestic relationship.  PC 273.5, for example, is a bad conviction for immigration purposes.  PC 243(e)(1) on the other hand is a divisible statute because one can be convicted without any violent acts (offensive touching).  Crimes involving child abuse and child endangerment also carry severe immigration consequences.  If you or a loved one is a non-citizen facing charges involving violence (especially domestic violence), you need a knowledgeable, skilled attorney to fight for you.

Controlled Substances
Like crimes of violence and domestic violence, many controlled substance offenses are aggravated felonies.  Charges involving drug sales or trafficking will almost certainly be aggravated felonies.  While California law has recently adapted to make simple possession of a controlled substance a misdemeanor (Prop 47), immigration law operates differently.  Because immigration law is based on federal law, and even if a state offense is a misdemeanor, the federal analogue to the same law is likely a felony.  Therefore it is important that convictions for controlled substance possession be avoided whenever possible, and further that any conviction for a controlled substance be silent as to the specific controlled substance to avoid the application of a federal analogue statute.  Most controlled substance offenses, even those that do not qualify as aggravated felonies, may still lead to deportation or inadmissibility.  In fact, no conviction is necessary at all.  The government can deport someone for being an addict or drug user, or even if there is simply a "reason to believe" that the person is involved in drug trafficking.

Sex Offenses
Sex offenses are treated very seriously by the courts, society, and certainly by immigration law.  Crimes such as rape, child pornography, child molestation, and most other sex offenses are aggravated felonies.  Prostitution, while not an aggravated felony can also trigger removal proceedings.  Avoiding deportation or inadmissibility with sex offenses is perhaps the most difficult task a defense attorney may face in handling a criminal matter for a non-citizen.  Often, the goal with these cases is to limit time in custody prior to deportation, but also to limit the effect of a future illegal re-entry charge if the defendant may re-enter the country illegally.

Cancellation of Removal
LPRs (non-citizens with a green card), who have lived in the U.S. for at least seven years may be eligible for cancellation of removal during certain proceedings.  It may be possible to secure an immigration bond during these proceedings, but a non-resident in removal proceedings may have to remain in custody while proceedings happen.  Cancellation of removal may be more likely with the right outcome in the criminal proceedings.

Immediate Relative / Preference Visa
Non-citizens who have a close family member (spouse or child) who is a US citizen or LPR may be eligible for an "immediate relative" or "preference" visa.   Typically, the applicant must show that a citizen or LPR relies on them for support and would be prejudiced by the applicant's removal.

U Visa
Non-citizens who have been victims of certain crimes or abuse (including physical, sexual and emotional) might also be eligible for visa relief to remain in the country lawfully.  The motive for false accusations to obtain a U Visa is also a common defense in domestic violence cases where the complaining witness is a non-citizen.

Asylum and Convention Against Torture
If a non-citizen's home country is dangerous, unstable or discriminates against the applicant, there may be an opportunity to remain for asylum or for protection per the Convention Against Torture.

US Immigration laws are harsh, but are also quite complex.  Non-citizens facing criminal charges need dedicated, knowledgeable representation.  If you or a loved one is facing criminal charges, and are concerned about possible immigration consequences, contact our office for a free consultation today.  619-550-4422.

Though only 5% of criminal cases will proceed all the way to trial, fighting your case all the way may prove to be the best strategy to achieve the best possible outcome.  Even in cases with strong evidence, the right to a jury trial is the defendant's single greatest piece of leverage in negotiations.  Some criminal cases are dismissed due to defense motions to dismiss or to suppress evidence.  For those that result in a guilty or not guilty plea, .  If a matter is not dismissed or resolved for a favorable plea negotiation, the matter may proceed to a jury trial.  Winning a jury trial will mean an acquittal of the charges.  A skilled trial lawyer must have a strong grasp of the law, evidence code, modes of persuasion, as well as a strong ability to confront prosecution witnesses.  Success at trial requires meticulous preparation, thorough investigation, an understanding of jury selection, and an ability to persuade that jury of the true meaning of topics like "reasonable doubt," "circumstantial evidence," and the presumption of innocence.  If you or a loved one has been arrested or charged with a crime, contact a San Diego Criminal Defense Attorney now for a Free Consultation.  619-550-4422

PRETRIAL MOTIONS
There are many different motions in criminal cases.  Many are litigated right before trial, known as motions in limine.  Pretrial motions are an important step in trials, because here the judge will decide what evidence the jury may or may not hear during the course of the trial.  Rather than waiting to object (when it may be too late), it is better to make the arguments pretrial, out of the presence of the jury.  Some issues that may come up are admissibility of certain statements made out of court, admissibility of the defendant's prior convictions if the defendant testifies, the ability of an expert witness to give an opinion, and more.

JURY SELECTION ("VOIR DIRE")
The twelve people selected to the jury in a criminal case will have a tremendous responsibility on their shoulders, and a difficult decision to make.  Attorneys on both sides are given an opportunity to question potential jurors in order to determine who can be fair and who would be favorable to the defendant.  Jurors who cannot be fair can be stricken "for cause" and there is no limit to the number of jurors who can be removed for this reason, so long as the judge agrees that the juror in question has an inherent bias.  "Peremptory" challenges to a prospective juror are limited in number (10 per side), but can be made for any reason (except discriminatory reasons).  An attorney who can argue for challenges for cause as well as effectively use peremptory challenges to pick the jury will have a major impact on the case.  Jury selection is considered to be one of the most important stages in a jury trial.

OPENING STATEMENTS
Once a jury is selected in sworn in, each side gets an opportunity to give an opening statement.  This statement is more or less an introduction to each side's theory of the case.  The prosecution will present its opening statement first, followed by the defense.  The defense may elect to reserve its opening statement until the government has completed its case, but this is rarely done.  Typically, it is better to use the opening statement to get the jury to look at the evidence with the defense theory of the case in mind.  The opening statement is one of the limited opportunities to talk to the jury directly, and is vital to a successful criminal trial.

GOVERNMENT'S CASE IN CHIEF
After opening statements, the prosecution has the burden to prove the defendant's guilt beyond a reasonable doubt.  The government will call witnesses or submit into evidence any admissible documents or other evidence that would be relevant to proving the defendant's guilt.  At this time, the defense must object to any inadmissible statements or evidence as well cross-examine and impeach the government's witnesses. 

DEFENSE CASE
The defense gets an opportunity to present a case of its own after the prosecution puts on its case.  The defense has the same power to subpoena witnesses and can recall government witnesses, call its own witnesses, call expert witnesses and the defendant may testify on his/her own behalf.  It is important to note that the defense does not have any burden of proof, and need not put on any case of its own in order to prevail at trial.  If the government fails to make its case, through effective cross examination and defense objections, it may not be necessary at all to put on a defense case.

CLOSING ARGUMENTS
Once both sides have presented their evidence, each side gets an opportunity to argue their case to the jury.  The prosecution gets the first opportunity to close, then the defense makes its closing argument.  After the defense makes its closing argument, the prosecution gets the final word, known as a rebuttal.

JURY DELIBERATION AND VERDICT
The jury is instructed on the law and sent to deliberate.  Jury deliberations can take a very long time depending on the amount and complexity of the evidence presented.  The jury can return a verdict of guilty, not guilty or may be unable to reach a unanimous verdict.  When the jury cannot agree on a verdict (known as a "hang" or "hung jury"), the court will declare a mistrial.  The judge may dismiss a case if the jury does not reach a verdict, or the prosecution may refile the charges.  If the jury returns a not guilty verdict, the defendant is acquitted.  If the jury returns a guilty verdict, the case will then proceed to sentencing.

If you or a loved one has been arrested or charged with a crime in San Diego, it is important to consult with a knowledgeable, experienced San Diego Criminal Defense Lawyer.  Contact an attorney now for a Free Consultation.
619-550-4422

 A brief summary of Fourth Amendment law tells us that law enforcement officers need either a warrant or exigent circumstances to search a home, but only probable cause or a lawful arrest to search a vehicle.  As such, most home searches involve search warrants or threats to the safety of an occupant.  Car searches are often performed without a warrant, based only on the officer's belief that he/she has probable cause.  When the government fails to get a valid search warrant, fail to demonstrate true exigent circumstances, cannot demonstrate probable cause and cannot demonstrate consent, the appropriate remedy is suppression of the evidence. 

This exclusionary rule is the way that the courts protect the Fourth Amendment rights of all citizens.  If an innocent person is searched and the search turns up nothing, there is still an intrusion on that person's rights.  Under California Law, the way to get evidence suppressed is to file a motion pursuant to Penal Code 1538.5, also known as a Wilder motion.  In 1961, the US Supreme Court laid out its prophylactic rule for evidence exclusion in the case of Mapp v. Ohio and applied the rule to the states.  The Mapp Court recognized that letting law enforcement use unlawfully obtained evidence would lead to more rights violations for the innocent.  This is the only way that the courts can stop the police from violating a suspect's Fourth Amendment rights and ensure that law enforcement officers will not violate the rights of citizens in order to find contraband.

Motions to suppress evidence are often very important in drug possession, weapon, and DUI cases.  A 1538.5 motion can be filed to suppress a traffic stop, search of a vehicle, search of a person, search of a home, and more.  If police do not have a good reason or consent to search, an experienced, intelligent criminal defense attorney should be able to get the evidence thrown out.  Proving that probable cause for a search is the government's burden, and it may be possible to get evidence thrown out in your case.

EXAMPLE:

Adam is pulled over while driving in San Diego's East Village neighborhood for not signalling a lane change.  The area is known for narcotics trafficking, and Adam is driving away from a corner notorious for drug sales.  The officers did not see Adam buy any drugs, but are suspicious based solely on the location and see that Adam is young. 

The officers note that Adam is nervous when they come into contact with him.  They ask Adam to step out of the vehicle and handcuff him for their "safety".  The officers than pat Adam down "for weapons" and notice a small object in his pants pocket, too small to be a weapon.  Inside the pocket, the officers find a bag of cocaine.  Adam is arrested, and his car is further searched, yielding another larger bag of cocaine and a firearm.  Adam hires a skilled San Diego Criminal Defense Attorney to represent him.

At arraignment, Adam's attorney gets the discovery from the prosecutor, and requests a copy of the arresting vehicle's dash video.  Adam's lawyer files a motion to suppress the evidence, challenging the traffic stop, the pat down, the search of Adam's pocket and the search of the vehicle.  Through effective cross-examination and solid argument, Adam's lawyer is able to show that the traffic stop was unreasonable because the failure to signal was not illegal under the circumstances (no car in the destination lane), that the pat down was unreasonable (he could have been cited for a vehicle code violation if the stop was deemed valid), that the search of Adam's pocket was more than a pat down for weapons, and that the search incident to Adam's arrest was based on an unlawful stop, pat down and search.  Due to these violations of Adam's rights, the judge would grant the motion to suppress evidence and the charges would be dismissed.

If you or a loved one have been arrested, charged with a crime and were subject to search by a law enforcement agency, you may be able to defend your case with a motion to suppress evidence.  Contact The Loncar Law Firm now for a Free Consultation.

STOP & FRISK SEARCHES OF PERSONS
WHAT CONSTITUTES A SEARCH?
CONSENT SEARCHES
SEARCHES OF VEHICLES AND EFFECTS
WHEN DO POLICE NEED A WARRANT?
HOW TO REFUSE A SEARCH