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The truth is most outcomes in California traffic court cases and misdemeanor criminal problems are negotiable. Defendants can ask for what they want before pleading guilty, and judges, commissioners, and even prosecutors have discretion on what penalties to impose.

The process of working out a negotiated sentence by agreement is called “plea bargaining”. The agreement for a sentence is called a plea agreement.

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What is a plea bargain or plea agreement? Basically, it is an early settlement of a criminal case before a trial. Here is how it works.

A defendant begins a case by pleading not guilty to all charges. Then, the defendant or the defense attorney begins to talk with the judge or prosecutor to determine what is really involved in a case.

Typically, a skilled defense attorney will point out facts to the judge or prosecutor that work in favor of the client, and discuss the strength of the evidence with the prosecutor or judge.

If there are weaknesses in a case that may get a jury to rule in favor of a defendant, the Defense Attorney has leverage to negotiate a settlement because he or she can demand a trial that may result in a win for the defense (called an acquittal).

Prosecutors don’t like to lose trials, and will be flexible on weak cases to avoid acquittals.

But even with bad facts, much can be negotiated. Judges and prosecutors want to end cases early and efficiently to prevent a waste of court resources - even when a conviction is certain.

For example, if the prosecutor can talk the defendant into pleading guilty, they avoid the following work on the case:

They do not have to prepare the case for trial, do not have to interview witnesses, do not have to bring the witnesses to court, not have to bring the evidence brought to court, etc.

Therefore, the “bargain” for a prosecutor or court in a plea bargain is that it saves the prosecutor work, and it saves the courts time and money.

To get this done, they will often work with a defendant or a Defense Attorney to get a guilty plea at an early stage by offering a reduced sentence or dismissal of a charge.

Typically, a prosecutor or judge will make a “plea offer” to the Defendant in court and the defendant can then accept the offer, or reject it and demand a trial.

When a defendant accepts a judges or prosecutors offer, then they must change their plea from “not guilty” to “guilty” to end the case. The agreement to do this is called a “Plea Bargain”.

Plea Bargains are common in all courts. They are an effective mechanism for the court to avoid the wasted resources required to have a trial for a guilty person. Most often it is the defense Attorney who negotiates a plea agreement for a defendant with the judge or prosecutor.

However, a defendant without an attorney is free to do the negotiating him or herself. The trick to getting a beneficial plea agreement is to have a plan, and to know what to ask for. This can only be done by researching the charges in a case.

A defendant should not be afraid to ask for what they want before pleading guilty. After all, if the request is denied, the defendant may demand a trail on the charges. The judge cannot force a person to plead guilty without a trial. The defendant must consent to a guilty plea or they get a trial.

Common requests that are granted in traffic court plea agreements are extra time to pay fines, conversion of a jail sentence to community service, or a dismissal of minor charges in exchange for a guilty plea to the more serious charge.

Whether or not the offer is a bargain for the defendant is something a defendant must decide for themselves.

Does it make sense to accept the offer, or does having a trial make more sense?

An Attorneys help in evaluating an plea offer can be very helpful at this stage, because an Attorney will often know what the best offers are, and whether or not a better result at trial is possible.

If a defendant accepts a plea offer from the court or the prosecutor, then a number of things happen that lead to an ending of the case.

First, the defendant reviews (hopefully with an Attorney) the contents of a form called a “change of plea form”, or “waiver form”. This form is required in misdemeanor and felony cases because it confirms in writing that the defendant is willing to give up their right to a jury trial and change their “not guilty” plea to “guilty”.

Once signed, the waiver form goes to the judge. The judge reviews the form and then asks questions to be sure the defendant understands what is happening. The questions are usually: “Are these your initials?; Is that your signature?; This form says you want to plead guilty to______, is that what you want to do?;

and, other questions to make sure you know and understand what you are doing and that changing a plea to guilty is what the defendant wants to do.

A defendant may change their plea from “not guilty” to guilty” at any time if they wish to accept the plea offer.

If a defendant does not accept (or get) a plea offer from District Attorney or the judge’s offer, and refuses to change their plea, then a case will move forward to preliminary hearing and / or a final trial.

For more detailed information on how plea agreements work, see the Marin County Public Defenders Office.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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How traffic courts deal with failure to appear cases differs greatly from courthouse to courthouse. In this article, Attorney Christopher Dort reviews the most common ways California courts handle a failure to appear on a traffic citation, and shows how to understand what is happing to a case after a missed court date.

When I was in law school, I once had to tell my trial advocacy professor that I had to miss a class because I scheduled a traffic court trial on one of my own tickets. Upon hearing this, my professor replied:

You want to go to Kangaroo Court instead of learning how to do a real trial?

10 years later, I think I finally figured out what that professor meant. You never know which way the traffic court kangaroo is going to jump, and you will probably get your butt kicked in a boxing match with a kangaroo.

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Today, the kangaroo is alive and well when it comes to failure to appear cases on traffic citations, but I’ve figured out the most common ways it jumps. Here is what you need to know to figure out what is happening if you missed a court date on a traffic ticket.

All traffic citations have a court date listed on the bottom of the ticket form, along with the courts address. When a person signs a ticket, they are making a legal promise to appear in that court on that day.

Once this ticket is signed, the court is not required to send any other notice to the defendant of a court date.

Many people make the mistake of thinking that they do not have to go if the court does not mail them a court date. The truth is the court is not required to send you anything once you sign a ticket.

If a defendant fails to appear on the date listed on the ticket, the court has a number of options on what to do, and what happens differs in a very confusing way from court to court. Here are the main procedures used in California traffic courts.

A Court May Elect to Treat A Failure to Appear As A Request for A Trial By Declaration.

A trial by declaration is a procedure by which a defendant can request that a judge review the paperwork related to a citation, and make a decision as to guilt based only on the paperwork.

When done correctly, the defendant and the police officer each send in sworn statements about what happened, and the judge reviews those statements and the citation, then makes a ruling.

If a defendant does not like the ruling on the trial by declaration, they have 30 days to request an in person trial. To get this second chance at a trial, the defendant must file a “Request for Trial De Novo” on the approved form, on time. If the defendant does not request a trial de novo on time, the case is over. The defendant must pay the penalty as imposed by the judge.

But there is a law that allows the judge to use this procedure if the defendant fails to appear for their court date, and even if the defendant does not request it. The law is California vehicle code section 40903, and it states a failure to appear can be considered a request for trial by declaration.

If the court elects to treat the failure to appear this way, the court reviews the ticket, and nothing from the defendant at all. Because there is no evidence from the defendant, the defendant has no say in what happens.

The court finds the defendant guilty, generally imposes a harsh penalty and the case is closed. No further court appearances are allowed. The defendant is sent notice of the decision and penalty to the address on the citation, and if the penalty is not paid on time, more serious consequences follow.

If this happens, there is a solution. The defendant may request a trial de novo within 30 days and get a new court date to try to do something different with the case. But the defendant must take action within 30 days.

This procedure is used in Calaveras County, in Wastonville Courthouse, Solano County, and others on traffic infraction only cases (not in misdemeanor cases). But other counties take a completely different approach.

Some Courts Suspend a Defendants Drivers License When There is a Failure to Appear.

Other courts take a different approach, and try to prevent giving the defendant a second chance with the “Trial De Novo Procedure”.

They do this by using California Vehicle Code section 40509.5 instead. That statute (or law) allows the court to suspend a persons drivers license with a “VC 40509.5 hold” until the defendant appears in court to take care of the case, which is kept open.

Most courts that use this procedure also impose a new fine called a “civil assessment” to the case as part of the VC40509.5 action.

In courts where they impose a VC 40509.5 hold for a failure to appear, the defendant still has the right to demand a trial and contest the citation. However, the timing of when the court releases the hold is up to the judge.

In some courts, such as Los Angeles County Superior, the courts will release the drivers license hold once a court appearance is made. Other courts, such as Sacramento County, may require the defendant to fully close the case and pay any outstanding penalty before the Vehicle Code 40509.5 hold is released and the drivers license cleared.

However, often when there is a VC 40509.5 hold (and no warrant or extra charges), the defendant can end the case without a court date by paying the court or a private collection agency in full for everything. Such payment is an admission of guilt to all of the violations, but will end the case. But the defendant does have the option of setting a court date and demanding a trial.

Once a 40509.5 hold is released by the court, the drivers license does not automatically become valid. The defendant must first visit DMV to get a valid drivers license re-issued. Many people skip this step (because the kangaroo doesn’t give them clear instructions), and later get into deeper trouble by driving on a suspended license - even though the original case is cleared.

If you had a VC 40509.5 hold, call DMV to ensure your license is valid. You may have to go to DMV to get a new license.

Some Courts Will Add A New Misdemeanor Failure to Appear Charge to the Case.

California Vehicle Code section 40508a makes it a misdemeanor crime to fail to appear after signing a promise to appear. This statute provides for a penalty of upto 6 months in the county jail. And if convicted of the VC 40508a misdemeanor, the defendant will have a new conviction on their criminal record that will be visible to potential employers, and anyone else doing a background check.

Some courts, such as Riverside County, will add this new, more serious violation to a simple infraction case when the defendant misses a court date.

Generally, when the new 40508a misdemeanor is added, this prevents the Defendant from contesting the original violation, because even if they somehow beat the original violation, they will get convicted of the more serious misdemeanor.

Because of this fact, some courts use the VC 40508a violation as a way to prevent defendants from fighting a violation after missing the orignal court date listed oon the citation.

(Remember - the fact that the court did not mail you anything is not a defense to a failure to appear charge. The court is not required to send you anything after you sign a promise to appear. It is usually a mistake to fight a traffic violation with a misdemeanor VC 40508a charge if you do not have a defense to the failure to appear charge. You might end up beating the infraction, and getting convicted of a misdemeanor instead)

To clear up a case with a VC 40508a misdemeanor charge, a defendant must appear in court.

Some Courts Will Add A Failure to Appear Misdemeanor and Issue a Bench Warrant.

Some counties take a harsher approach. They will add the misdemeanor failure to appear charge under vehicle code 40508a, and at the same time, issue a warrant for the arrest of the defendant who missed a court date.

When this happens, the defendant must appear in court to get the warrant recalled. Some judges will take defendants with a warrant into custody right away. Judge Hastings in Santa Clara County is an example of a judge who routinely takes defendants into custody right away when they have a warrant. Some judges will recall a warrant without much trouble once a defendant appears in court.

There is no consistency on how to solve this problem in the different county courts. In some courts, such as Sacramento, once a warrant is issued, the court will not give you any information on it, except to tell you to turn yourself in at the Sheriffs Office.

Other courts do it completely differently. For example, in San Diego County, an Attorney can get a warrant recalled on a traffic court or misdemeanor case by sending a simple fax requesting a court date. (why don’t other courts use this procedure????)

Courts such as Riverside County, and San Bernardino County issue bench warrants on nearly every failure to appear case. Some courts, such as Los Angeles, will only issue a bench warrant if the judge is pissed off at the defendant.

Typically, a defendant with a warrant for a failure to appear still has the right to demand a trial. If there is a misdemeanor failure to appear charge, the defendant has a right to a jury trial.

Some Courts Will Do Everything, Suspend a Drivers License, Issue a Warrant and Add a Failure to Appear Misdemeanor.

Some courts will do everything listed above in some failure to appear cases. An example of such a court is Riverside County.

So the bottom line is this:

Defendants with a failure to appear charge need to figure out which procedure their court has used on their case to find a way to solve the problem. Every court is different, and there may be differences even from judge to judge.

To figure out what is going on in your Failure to Appear case, you may have to do a little boxing with the kangaroo. Here is my coaching advice:

I recommend calling the court clerk where the case is located and asking these detailed questions:

1) Is there a drivers license suspension?

2) Is there a VC40508a charge?

3) Is there a bench warrant?

4) Do I still have the right to a trial?

5) How do I Schedule a Court Date?

By asking these questions, and demanding real answers from a knowledgeable clerk, you can find the path to solving the problem.

If you are doing it on your own - beware of the kangaroo’s punching combinations:

1) most courts have separate traffic and criminal divisions. You may have to check with both divisions separately to find your case;

2) most court clerks in the traffic division are poorly trained, if at all, and are prone to saying things they do not understand. If you have to, ask to speak with a court clerk over 20 years old, preferably with a college degree;

3) If you do go to court to get something done, get written proof you were there. If you pay for something at the court, get proof you paid and keep it in a safe place.

4) If the court tells you to call a collection agency, keep detailed notes about the conversation, and ask them very clearly if you still have the right to a court date. If they tell you “no”, chances are they are giving you false information. Double check with the court.

5) Always make sure your address is current with the court and DMV. And always, always check with DMV to ensure your license is valid if before driving if you have a failure to appear case.

At Traffic Court Pros.com, we offer free and confidential problem reviews from licensed traffic court experts to help out. Let us show you why it makes sense to have professional help.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Broke and in big trouble? You may be entitled to have the Judge appoint a Public Defender to help you. And when a Public Defender is appointed for a defendant, it is usually a great value. The Public Defenders help is free or nearly free, and most Public Defenders are excellent Attorneys who know the court well. But there are some limitations to having a Public Defender.

In California, anyone charged with a misdemeanor or felony crime has a right to an Attorney. If the person cannot afford to hire a private Attorney, the law requires that the court appoint one to help the defendant at the publics expense. Such court appointed defense Attorneys called “Public Defenders”.

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Public Defenders are real Attorneys, and are generally very good at what they do, because they are in court everyday helping defendants in trouble.

Every county has its own Public Defers Office. Sometimes it is a division of hte county, as in Santa Clara County. In other counties, such as Santa Cruz, the county has a contract with a law firm to provide Public Defender Services. In Riverside, the court just appoints private attorneys from an approved panel. Most of the time, the offices of the Public Defender are at or near the courthouse.

But a potential client cannot just walk in and apply for a Public Defenders help. A defendant must first get the Judge to appoint the public defender after a showing that the defendant cannot hire his or her own private Attorney.

To get a Public Defender, a defendant must appear in court first, and request a court appointed Attorney once the judge calls their case. Once the request is made, the judge is required to find out if the defendant is truly broke, and whether or not they can afford a private attorney. In short, the court will check to see if the defendant qualifies for a public defender.

Every county handles these qualifications differently, and there is no single rule on how much you can earn or have before you do not qualify for the Public Defender. In soome counties, if you are unemployed, you qualify. In others, the requirements are stricter, and you must have no property to sell.
In some counties, such as Santa Cruz, the qualification procedure is relatively simple. The defendant, once in court, makes a request, and the judge will ask several questions with the defendant under an oath to tell the truth.

The questions will include whether or not the defendant is employed, owns their own house and car, etc. Thereafter, the judge just makes a decision whether or not the defendant can come up with the money for a private Attorney.

If the judge decides to appoint the Public Defender, he or she just tells the public defender in the courtroom to take the case and talk to the new client.

In other courts, such as Riverside, or on felony cases, the process is more complicated. In some courts, the defendant must fill out an application form and prove what their income is, and a decision to appoint a Public Defender is made at another time. Then a meeting between new client and court appointed attorney is done at a later date.

But no matter what court a defendant is in, the process is basically this: the defendant must go to court, make a request for a Public Defender, and then provide evidence that they qualify for a Public Defender because they cannot afford to hire a private Attorney.

Some Public Defenders Offices will answer simple questions from a potential client in advance of a court date, but generally they do not give detailed advice before being appointed.

Most county Public Defenders do have web sites with good information, with one of the best being the Los Angeles County Public Defenders Office.

While Public Defenders are a great value and help to an indigent defendant, they do have limitations.

Some courts will charge a defendant for the Public Defenders worth according to what they can afford (as determined by the court). In some cases, this charge can range from $100, to $10,000.

Further, they are restricted to helping only on the case the court appoints them for, so if a defendant have multiple cases in different courts, several Public Defenders may be needed, instead of one private attorney. And generally, Public Defenders will not help with DMV problems or hearings.

For Defendants without standing warrants, Public Defenders present a problem because they cannot be appointed until the defendant appears in court. This means the defendantmust first be arrested, or get their own court date before getting help.

Usually, if a court denies the appointment of a Public Defender because the judge rules the defendant can afford to hire an Attorney, the court will give the defendant time to shop for a private Attorney.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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If you or a loved one are facing a criminal charge, putting a skilled Attorney on your side can make a valuable difference in the outcome. Don’t believe it? Just ask OJ, or Michael Jackson what they think. If not for the quality work of their defense Attorneys at trial, both would be sitting in a cold prison cell today, instead of enjoying sunshine.

But what does an Attorney actually do? That is a tough question. In my 10 years as a defense Attorney, I am often asked by potential clients: “What are you going to do for me?” I always wish I had a simple answer to that question, but there is no simple answer.

So I usually try to answer it by reframing the question a bit. A better question is:

What is it about a defense Attorney that makes their help valuable?

That is a question I can answer well.

In short, it is the Attorney’s training and experience that makes the criminal case process easier for the client, and promotes the clients best interests toward the goal of getting the best possible result under the circumstances.

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But what does an Attorney actually do to help a client? The truth is that a defense Attorney’s work involves a great deal more than simply cutting a deal with the judge or tying to get a guilty person off on a “technicality”.

An Attorney prepares a case for trial, makes court appearances, analyzes evidence, negotiates with the prosecutor, makes recommendations to the client, and if necessary, tries to win a trial for the client.

All criminal cases start with a routine court date called an Arraignment, and then progress toward a trial. The trial is where the prosecutor must prove the defendant has broken a law. But most cases never make it to trial, because they are resolved along the way by agreement of the defendant, prosecutor and judge. Such agreements to end a criminal case are called “Plea Agreements”.

The priority of a defense Attorney is to prepare a case and a client for the trial, while at the same time, trying to avoid a trial and resolve the case with a Plea Agreement favorable to the client.

However, it is the unseen details of this process that makes an Attorneys help truly valuable to the client.

ATTORNEYS APPLY SPECIAL LEGAL TRAINING TO SOLVE CLIENT PROBLEMS.

Attorneys are not just noisy nerds with good legal jobs. They have completed a long legal education that non-attorneys do not have.

When hired by a client to handle a criminal case, an Attorney applies this legal training to protect and promote their clients best interests. But this legal training and experience does not come easy.

Before becoming a licensed Attorney, a person must complete a 4 year university degree, and then attend and graduate from an accredited law school. After graduating from law school, a person is awarded a graduate degree in the discipline of law called a “Juris Doctorate”. Generally, this takes at least 7 years of post high school academic training.

Graduating from law school is only the first step to becoming an Attorney. Law school graduates must also pass a grueling state bar exam to prove they have the required knowledge about the laws of their state. In California, the bar exam is a 3 day marathon test.

After passing a bar exam, a candidate to be an Attorney must pass a detailed FBI background check and pass a national Ethics and Professional Responsibility exam. Once all of these steps are completed, the candidate then becomes a sworn officer of the court, and then is finally designated an Attorney at Law and is licensed to give legal advice and make court appearances for clients.

It is this training that teaches an Attorney where to look up the law, how to read it, how to use it to promote a clients interests, and what all those useless Latin words mean. But perhaps more importantly, it is this training that teaches an Attorney how to be persuasive and get judges, and juries to rule in their favor.

ATTORNEYS MAKE COURT APPEARANCES FOR CLIENTS; REDUCE STRESS and HELP AVOID MISTAKES

One of the most important aspects of a defense Attorney’s work is making pre-trial court appearances. After all, it is in court where the most visible work of an Attorney takes place. And it is in court where defendants without an attorney can make mistakes that can affect the rest of their lives.

In pre-trial court appearances, Attorneys inform the court (judge) as to what they want to do with a case, such as schedule a trial or other hearings to challenge evidence that may not be admissible, or select jury instructions, etc.

In many misdemeanor cases, an Attorney can appear in court for a defendant, and the defendant does not have to go to most routine pre-trial court appearances. Avoiding court is of great benefit to the misdemeanor client with a defense Attorney, because the client can go on with their life without the stress and embarrassment of going to court.

This benefit alone can make an Attorneys help worth the cost, especially if a defendant has a job they cannot leave.

In felony cases, the client must appear with the Attorney, but it is the Attorney who speaks to the court and prosecutor for the client. To the client, this provides the benefit of reduced stress, and the benefit of having the attorneys courtroom experience work to protect their interests.

In essence, a defendant with an attorney handling the court appearances need not wonder if they are doing the right thing, and can be assured that they will have help in understanding what is happening.

Like many criminal defense Attorneys, my first job was with a county public defenders office. I was assigned to a courtroom where I spent most of the day making court appearances on dozens of cases everyday. Reading police report after police report, and seeing hundreds of cases pan out, I learned how to analyze a case, predict likely outcomes on common fact patterns and how to challenge inadmissible evidence. It is this kind of repetitive case work inside the courtroom that trains an Attorney to review cases effectively and make decisions on what needs to be done with a clients case in the courtroom.

A defendant handling a case on their own does not have this experience, and would be at a great disadvantage in a criminal prosecution.

Often, important decisions such as whether to plead guilty or not guilty are made during the first court appearance, after the Attorney makes an assessment of the case. And it is during pre trial court appearances where negotiations with the prosecutor and the judge take place.

Attorneys Can Help Avoid Costly Mistakes in Court.

A common mistake I see defendants who make their court appearances alone is pleading guilty too early, without any plea agreement negotiations. A classic example is a defendant who pleads guilty to a DUI case on the first court appearance, and ends up convicted of 2 crimes instead of one.

This can happen because DUI cases generally start out as 2 criminal charges that overlap somewhat: Driving with a blood alcohol content of .08% or above, and then separately, driving under the influence of alcohol. (Vehicle Code section 23152a and 23152b).

Prosecutors use these 2 charges as a safety net to ensure a conviction if the defendant is able to show some doubt as to the accuracy of the testing machine or procedure. Basically, if a defendant has a low blood alcohol content, a prosecutor can still get a conviction by showing “impairment” instead.

Typically, a defense Attorney can get one of these 2 overlapping misdemeanor crimes dismissed by the prosecutor in exchange for a guilty plea to the other. This is an example of a classic plea agreement that happens every day in just about every criminal court. But a defendant without an attorney who pleads guilty without trying to make this arrangement, can be convicted of both crimes, and thereby gets screwed.

When this mistake happens, a defendants background will show 2 criminal DUI convictions instead of one. It is a classic mistake with long term consequences that can be avoided with the help of an attorney who knows what to ask for- even if the client is clearly guilty.

Because experienced Attorneys have seen hundreds of cases and fact patterns, they are better equipped to make decisions in court than a person who is going to court alone for the first time. A defendant alone going to court for the first time would have no clue about common mistakes such as this expample.

ATTORNEYS ANALYZE THE GOVERNMENTS EVIDENCE TO DETERMINE WHAT IS ADMISSIBLE, AND WHAT IS NOT.

All criminal cases hinge on evidence. If there is enough evidence to prove guilt beyond a reasonable doubt, the defendant gets convicted.

Frequently, prosecutors will seek to use evidence that may not be admissible in trial, or may not be reliable. Defense Attorneys use their training and experience to analyze the evidence against their client to see if it is truly admissible.

If there are rules of evidence or a law that prevents a piece of evidence from being used, a defense Attorney can make a formal written request to the judge, also known as a “Motion” to “exclude”, or throw out, that evidence.

Typical evidence used in criminal cases includes police reports, witness statements, and sometimes surveillance video. Prosecutors may also seek to introduce and use records from a prior criminal conviction, also known as “Priors”.

Reasons why evidence or priors may not be admissible include: the evidence was the product of an illegal search; the evidence is inadmissible character evidence, and in some cases, the evidence is unreliable for some reason. Prior convictions may not be admissible if they are unrelated, juvenile records, or some rule or law bars their use.

In order to determine what evidence is admissible against a client, an attorney must know, and at times research, the rules of the evidence code as it applies to the evidence the prosecutor wants to use. When a defense attorney does this work, the goal is to figure out if there is a rule of evidence that will prevent a bad piece of evidence from being used against the client.

A defendant going to court alone cannot do this task as effectively as an experienced attorney - and the prosecutor for sure is not going to help. The job of a prosecutors is to put defendants in jail, not to help them. Unchecked, an ambitious prosecutor can run over a solo defendant like an out of control tractor falling off a cliff. It happens every weekday in criminal courts.

ATTORNEYS CHALLENGE INADMISSIBLE EVIDENCE

If an attorney has reason to believe that certain evidence is not admissible, the attorney has several ways to challenge it. For example, the attorney may draft and file a motion to suppress illegally obtained evidence, or a motion to exclude character evidence that is not relevant to the issues of a case.

A skilled attorney will also negotiate with the prosecution to try to arrange agreement on what evidence can be used at trial. And often, an attorney can use a challenge to a piece of evidence as leverage for negotiating a plea agreement.

DETERMINE IF THERE IS A LEGITIMATE DEFENSE

Not all people charged with crimes are guilty. Sometimes there is a defense to the charges that the prosecutor ignores, or does not believe. A defense attorney’s job is to review the evidence, research the required elements of a crime or violation, and determine if there defendants has a defense.

Often, a client will think or believe they have a defense, and that a case should be dismissed. But the client may not truly understand what the law requires and may get it wrong. Clients tend to confuse “excuses” with a true defense, and an excuse is basically useless in court.

The Attorney must sort through the excuses, focus on the evidence and the law, then determine if the prosecution can prove all of the required elements of a charge. If it appears the prosecution cannot establish all of the required elements, the Attorney will advise the client that there may be a defense, and that a trial might be a good idea.

If there is a defense, that does not mean that the case automatically ends. Generally, the attorney must convince the prosecutor they are wrong about the guilt of the client. If the prosecutor refuses to agree that there is a defense, and refuses to dismiss a case with a defense, a trial is required to present the defense to a court or jury hearing the case.

Defendants handling their cases without an attorney have the disadvantage of not knowing what defenses will work, and what excuses are useless. Without this knowledge, a solo defendant cannot make well informed decisions.

NEGOTIATE A PLEA AGREEMENT WITH PROSECUTOR AND / OR JUDGE

One of the most valuable skills of a defense attorney is the ability to effectively negotiate with a judge or prosecutor to get a case resolved without a trial.

This is something that a lay person cannot do. In fact, most prosecutors will completely refuse to discuss a case with a defendant without an Attorney. They are not required to talk to the defendant. However, court rules require the prosecutor to discuss the case with a defense attorney before trial, in a process called “Meet & Confer”.

A defense attorney has leverage for these negotiations in the fact that the attorney can demand a trial on a case, which requires a great deal of work from the prosecutor, and the use of court resources. Generally, the court and prosecutor will seek to avoid the waste of these resources if there is a way to resolve a case prior to trial.

If the defense attorney has some evidence that may lead to a possible defense at trial if the jury believes it, the attorney has the additional leverage of being able to tell the prosecutor that they may lose unless there is a concession prior to trial. Prosecutors do not like to lose a trial, and in a weak case, may seek a compromise to resolve a case with a trial.

ATTORNEYS GUIDE THROUGH THE CRIMINAL CASE PROCESS

Reducing a clients stress and confusion is also a main goal of any good defense Attorney. An Attorney can prepare the client for what is going to happen in advance. For example, an attorney can tell the client exactly what will happen through each court date, and prepare the client for any questions from the court, and estimate what a sentence may be.

AN ATTORNEY DRAFTS AND PREPARES LEGAL PAPERWORK AND MOTIONS

Just about all criminal cases require some paperwork. There are waiver forms, motions, requested jury instructions, and “discovery”, or requests for the production of evidence that must be drafted. An attorney knows which forms need to be used, and how to write the papers to get the sought after effect.

A classic example would be a motion to exclude a piece of evidence, also called a Motion to Suppress, or “Exclude”. These motions must be prepared in a certain way, with citations to specific laws supporting the exclusion of the evidence. A defendant trying to do this on their own for the first time would not have a good chance of success, mainly because they would not know how to do it in a correct and persuasive way.

ATTORNEYS KEEP THEIR CLIENT FOCUSED AND REALISTIC

Many people charged with a crime are in denial about what is happening. An attorney must be able to communicate the reality of the situation to the client. Sometimes a client will have trouble focusing on what is important in dealing with a case. In these situations, the attorney needs to get the client to focus his or her attention in the right place.

ATTORNEYS ADVISE CLIENT ON LIKELY OUTCOME IF THE CASE WERE TO GO TO TRIAL

The Attorney should tell the client, after analyzing the evidence, whether or not the client is likely to win a trial. Of course, the attorney cannot perfectly predict how a jury of 12 people will view the evidence and make a decision, but an experienced attorney should have a sense as to whether there is enough admissible evidence for a conviction.

Sometimes, the plea agreement offer from the prosecutor will be a better outcome than if the defendant were to lose a trial with a weak defense. Judges tend to punish defendants who lose a trial harsher, probably because they feel the defendant wasted the courts time and resources. It shouldn’t happen, but it does.

In such a situation, it is the attorneys job to tell the client that a loss at trial may be worse than the “plea offer”, and help the client decide if the risk of losing at trial is worth it.

AN ATTORNEY MAKES RECOMMENDATIONS TO CLIENT BASED ON THE LIKELY OUTCOME OF A TRIAL

Once an attorney has been able to analyze the evidence, research the law, and negotiate the best possible offer from the prosecutor, the Attorney is in a good position to make recommendations to a client. Generally, in a criminal case, this means the attorney will recommend a guilty plea, acceptance of a plea agreement, or if there is a legitimate defense, a trial.

Although the Attorney makes his or her recommendations based upon training and experience, ultimately, it is the clients sole decision on what to do. If the client decides to do something different than what an attorney recommends, it is the attorneys job to follow through on what the client wants. Ultimately, it is the client who must accept the consequences of what happens, so the attorney just makes recommendations, then asks the client what they want to do.

At times, an attorney will recommend a guilty plea, but the client does not trust or believe the Attorneys assessment of the case, and will want a trial despite the recommendation. In such a s case, the attorney is obligated to go through the trial, and do the best he or she can to get a not guilty verdict.

ATTORNEYS PREPARE FOR AND CONDUCT THE TRIAL, IF NECESSARY

In its basic form, a trial means a procedure where the prosecution and the defense present their evidence, and witnesses. The judge instructs the jury on the law, and the prosecutor and defense Attorney then make final arguments to try to persuade the jury to vote one way or another.

A typical DUI trial will take 3-4 days, and involve many witnesses, including forensic toxicologists, police officers, and bystanders. A great deal of work is required to arrange and prepare for the witness testimony so that a clients side of story is effectively told.

Much of a defense Attorneys leverage for negotiating a favorable plea agreement comes from the implicit threat that the defense attorney can force a trial, which requires a great deal of work from everyone involved. The courts and the prosecutors will make offers to try to avoid this work and expenditure of resource.

The Attorneys training and experience allows him or her to know what to say and present to a jury to give their the best chance of success. A criminal trial is a complicated event. It should never be done by a defendant on their own, because once a defendant gets to the trial stage, makes can have gianormous consequences.

So that is it. A defense Attorneys job in a nutshell.

An effective defense Attorney makes the criminal process easier, and understandable for the client. They try to get the client off on a technicality, and they try to cut a deal with the judge.

But that’s not all. A good defense Attorney makes court appearances for the client, reduces stress, analyzes the evidence, negotiates plea agreements, determines if there is a defense, makes recommendations to the client, and if the client wants a trial, the Attorney does his or her best to convince a jury acquit the client.

And the whole time, the Attorney promotes the best interests of the client.

As for Michael Jackson and OJ, their defense Attorneys obviously were effective at all of these tasks. And if asked, I’d bet both OJ and Michael would agree that the Attorneys were well worth the millions they were paid.

When your life or future is on the line pulled tight by a criminal case, an Attorneys help is well worth the cost.

This is why the old saying goes: “a person representing himself in a criminal case, has a fool for a client.”

-Attorney Christopher Dort,

Editor

Questions? Email: info@dortlaw.com

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Several months ago, the Santa Clara County Superior Court announced that they would allow on line access to criminal division case information starting July 1, 2008. The announcement was welcomed as a sign that the Santa Clara County Courts were catching up with other California courts that already provide excellent on line access to traffic division and criminal division case information.

On July 1, 2008, the editors of TrafficCourtBlog.com checked the courts web site to see if the new access was truly working. Of course, it was not. While the Santa Clara Court did have on line access to traffic division case info, the criminal division case info was not available. And there was no update form the court. It simply did not work as announced.

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On July 17, 2008, a new announcement appeared on the San Jose Courts web site declaring that the criminal case information would not be available until August 1, 2008. So we will wait and see if it happens.

On line access to case information, if it ever comes to Santa Clara, is expected to make the court much more accessible to everyday people trying to solve traffic court and misdemeanor problems. Attorneys and everyday people looking to find information about old failure to appear cases, misdemeanor arrests, and court dates will no longer have to drive to the court or spend hours on the phone trying to get simply routine information form angry clerks.

Counties such as Orange County, Sacramento County, and Riverside County already provide excellent on line access to criminal and traffic court case information. Although there is a wide variance in the ways the courts are publishing the info, Orange County Superior Court is generally deemed the best. Ironically, the courts of Silicon Valley are way behind the technology curve.

By Santa Clara is ahead of some counties. Santa Clara does provide on line access to Traffic Division and Civil Case info, while Alameda County does not allow any on line access at the present.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Looking for a new job and worried about a pre-employment background check? You are not alone. Finding out what information is available about you to potential employers, and taking corrective action early. may prevent the loss of a valuable job offer.

Here is a review of the problems that can show up on a background check, possibilities for corrective action, and info on how to do your own background check.

At TrafficCourtPros.com we have noticed a marked increase in the number of people who have been denied a valuable job opportunity because a pre employment background check revealed a warrant, misdemeanor failure to appear conviction, or pending probation.

This corporate appetite for screening information is fueled by easy, and cheap access to criminal history reports and background checks on the Internet. However, many of these problems can be solved before they cause a loss of a job opportunity.

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Job Applicants Forced to Consent to Invasive Background Screening.

Unfortunately, applicants have little leverage to parent hiring decisions based upon information found on background checks.

California’s State Constitution does include an explicit right to privacy in its list of citizen rights (Article I, section1), and a citizen may bring a lawsuit for damages if this right is violated. But generally, this right does not prevent pre employment background screening.

This is due to the fact that many employers require applicants to consent to invasive background screening by signing a waiver on a job application. Its in all of that fine print you sign on the bottom of a job application form. In short, many companies require job applicants to give up any legal rights to privacy they have to limit pre employment screening.

If you give them permission, a potential employer may search for criminal records, do a credit check, and require drug testing.

There Is No Standard For Background Checks.

There is no standard “Background Check” that all employers use. Employers may use any number of methods and sources to do a background check. But the common denominator in all of the varied methods is that they search public criminal history records maintained by state and federal courts, and law enforcement agencies.

All adult criminal records are public information and available to anyone unless sealed by the court under special application.

Infractions Do Not Appear In Criminal History Reports.

In general, job applicants do not need to worry about violations that are classified as “Infractions”. An Infraction is technically not defined as a crime, and carries only a fine as punishment.

Because infractions are not crimes, a defendant only gets a limited right to contest an infraction. The court can convict a defendant of an infraction even if the defendant never shows up. This is not true of crimes.

In general, a job applicant does not need to disclose the fact that they were found guilty of an infraction (such as speeding) to an employer.

Misdemeanor Convictions and Felony Convictions Are Crimes.

Misdemeanors and felonies are different than Infractions. They are crimes, and generally must be disclosed to a potential employer if the applicant is asked. Such convictions will appear on background checks and can cause disqualifications.

What Shows Up on a Background Check?

Most pre employment background checks will reveal the following problems:

Felony Convictions: nearly all felony convictions will be available to anyone who knows where to look.

Misdemeanors Convictions: Misdemeanor convictions are public records, and can easily be found by anyone doing a search for a criminal history. However there are some exceptions.

Common misdemeanors that appear on criminal history reports available to the public include Driving on a Suspended License (Vehicle Code section 14601.1 -14601.5); and Driving Under the Influence (DUI), Vehicle Code section 23152.

Some violations can also be infractions if so designated by the court at the time of conviction and are designated as “minor traffic offense” by the court and generally do not cause pre-employment disqualifications.

Violations such as driving without a valid license (Vehicle code section 12500a) is an example of a violation that can be a misdemeanor or infraction.

Active Probation Will Show Up.

Probation is generally a period of court supervision that is granted in place of a jail sentence. Probation usually includes a limited time period (months or years) and terms that are court orders the defendant must satisfy. Active probation periods will appear on a background check and can cause disqualification.

Outstanding Warrants Are a Common Cause of Job Applicant Disqualification.

The court needs the defendant (or an attorney for the defendant) in court to complete a misdemeanor conviction. Because of this, when there is a misdemeanor charge, and the defendant fails to appear for a hearing, the court will issue an arrest warrant or bench warrant to get the defendant into court.

When an employer discovers a job applicant has an outstanding bench warrant or arrest warrant, generally, it is cause for disqualification of an applicant. From the employers point of view, they do not want to hire someone and worry that they will be arrested and miss work, or worse yet, be arrested at work. Clearly, employers prefer applicants without a warrant.

How To Find Out What Information Is Available on You.

Knowing what is out there will help a job applicant prepare for the disclosure, and may allow corrective action before the employer makes a disqualification. Here is how to get the info yourself:

1. You can do your own Instant Background Check.

2. You can check with the court where you know you have a problem.

3. If you believe you may have a warrant or missed a court date, you can contact the local county sheriffs office to do your own warrant search, or call the court clerk where your case is located. Some courts and sheriffs offices allow warrant searches on-line.

4. You can find warrant and case information on anyone on line in counties such as Riverside, San Bernardino, San Diego, Orange County, and many others. Visit TrafficCourtPros.com for more free warrant search resources.

What Types of Background Problems Can Be Corrected?

Expungements Can Clear the Record of Some Convictions.

Some misdemeanor convictions and non violent felony convictions can be “expunged” – which means removed from if the courts records. To get an expungement, you must petition the court for termination of probation and dismissal of the case.

State law determines which convictions can be expunged, and generally the court requires that a defendant have proved himself or herself rehabilitated from the criminal behavior.

An application for an expungement commonly takes 60-90 days, but can take longer depending on the court.

Probation can be terminated early in some cases where the defendant has stayed out of trouble for most of the probation period. Request a free case review to get more info on this possibility for a specific case.
Warrants Can Be Cleared In Court.

Warrants can generally be corrected quickly. Because warrants are issued from the court because a defendant has not appeared in court, once an appearance is made, the court can recall the warrant.

In most misdemeanor cases, an attorney can go to court for a defendant to clear a warrant. In serious misdemeanors, or felonies, the defendant must appear with or without an attorney to clear a warrant.

On some warrants, jail time is required. But once the appearance is made and the court satisfied, the warrant can be recalled.

The amount of time it takes to clear a warrant varies from case to case. But in many cases, a court date for a warrant recall can be scheduled within a few days.

What Can An Applicant Do If A Potential Employer Finds Something?

Many companies will give an applicant time to clear a problem succh as a misdemeanor warrant or probation term. Applicants can negotiate for this time by asking for it. And any applicant in this situation would be wise to tell the employer exactly what they plan to do, and remind the employer of the potential value they can still bring to the company.

Driver History Reports Are Not Criminal Records.

However, applicants should be careful not to confuse a criminal history report from the court or law enforcement with a Drivers History Report from the Department of Motor Vehicles. A drivers history report or “DMV record” will reveal all moving violations, whether they are infractions or misdemeanors (including speeding, failure to appear, etc).

If you have a warrant you need to clear, probation you need to terminate, or a conviction you want to try to expunge, get a Free Attorney Case Review from TrafficCourtPros.com.

If you want to do your own Instant Background Check, I recommend: InstantBackgroundReport.com

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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Worried about the lines in LA Traffic Court? Trying to figure out if you can go schedule a court date on your lunch break? Don’t even try in LA.

The Los Angeles Metropolitan Courthouse at 1945 South Hill Street might just be the busiest courthouse in the world. This downtown courthouse is the central clearing house for Los Angeles traffic court problems.

The majority of its visitors are there to schedule a traffic court date or enter a plea on a traffic court or misdemeanor charge.

On a normal day, 6,000 people will walk through the front doors of the courthouse and be screened by security. Then, the majority of those people walk straight to the traffic court clerks window to wait in a snake like line defined by retractable fabric barriers. Sometimes the wait exceeds two hours for a routine transaction.

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And if you want to schedule a court date, get out your biggest calendar. Frequently, persons trying to schedule a court date to fight a ticket or citation are given court dates 6-8 months away.

In an effort to speed up the process, the court recently assigned several new judges to the task of clearing out old arraignments and lightening the case load of the traffic division. They are hoping to shave 3 weeks off of the wait before a court date can be heard by a hearing officer. But according to reports at the LA Times Blog, the hearing officers were not experienced judges, and some had as little as 2 hours of training.

In part due to the recent increase in arraignments after the new judges were added, last Monday the courts daily intake totaled a reported 9,000 people.

Often, the early morning lines at the LA Metro Courthouse will circle the building and extend down the local sidewalk. Drivers passing may may well mistake the scene for a parade, but it’s really just people waiting in line to see a court clerk.

The backlog can be blamed in part on inefficiencies that could be cured. Much of the business that is now currently done in person at the courthouse could be replaced with an online service according to one observer. “Why can’t we just set court dates on-line?”. And in some court, such as San Diego County, Attorneys can complete routine arraignments on misdemeanors by fax filing a simple form. See Misdemeanor Fax Arraignment Form San Diego County.

In LA County, they do not allow fax filing for even the simplest traffic court transaction, such as entering a not guilty plea.

Here are some tips for limiting wasted time at the LA Metropolitan Courthouse:

1. Hire an attorney to go for you. (Attorneys have priority because they are sworn, court officers and can get things done faster than a non lawyer);

2. Go in the afternoon if you can. The court clerks office is open until 4. Don’t expect to get a same day court date.

3. If you have to go in the morning, get there before 8 a.m.

4. Don’t look for free parking. There is none.

5. Make sure you ask for your paperwork, and don’t leave without it. You don’t want to have to go back in after you leave;

6. If you don’t have a legit defense, and are not committed to having a trial, you can avoid scheduling new traffic court dates by pleading no contest or guilty at any time.
-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Avoiding the police just got harder. The growing trend that allows police officers to stop and detain drivers for more and more reasons keeps on truckin. Beginning on July 1, 2008, Vehicle Code sections 23124 and 23123 take effect and add one more reason to the already long list of valid reasons for a police detention - talking on the cell phone while driving.

The new law allows the police to stop and detain motorists who are talking on the phone while driving if they are not using a hands free headset.

Previously, the police could not detain you for talking on the phone. Now they can.

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The Fourth Amendment to the US Constitution requires a police officer to have a reasonable suspicion, based on facts, that a driver is committing an offense before there is a legal reason to stop and detain the driver. In general, this means the police must see a vehicle code violation before they stop a driver.

Talking on the phone without a headset is now a qualifying violation - a legal reason to be stopped.

Talking on the phone can also lead to a more intrusive investigation. Once the police stop a motorist, they are free to investigate whether or not the driver has a valid drivers license, whether or not the person has valid insurance, and whether or not the vehicle has current registration.

If the police notice signs of another offense during these routine inquiries, they may expand their investigation. For example, if they stop a person for talking on the cell phone, and then notice the distinct smell of an alcoholic beverage, they can start a DUI investigation.

So be careful with your cell phone use while driving. Vehicle Code sections 23124 and 23123 go into effect on July 1, 2008.

View the Department of Motor Vehicle Video on the subject.

The new law treats minors (persons under 18) differently than adults. In general, a minor may not talk on the phone while driving with or without a headset.

It is expected that this new law will make it easier for police to investigate DUI, driving on a suspended license, drug possession charges, mainly because stopping a suspicious motorist is now easier.

Insurance industry studies have concluded that driving while talking on a cell phone makes it more likely that a driver will cause a collision.

A violation of the new law does not cause a “negligent operator point” to be added to a drivers history report, but may be reported to insurance companies.

It may also be a basis for a negligence claim in civil court. For example, another expected side effect of the law is that personal injury attorneys representing auto accident victims will begin to use cell phone use as a basis for a negligence claim in civil court. According to an attorney source:

“If the new law prohibits talking on the cell while driving, and a driver injures a person while breaking that law, there will be a presumption that the driver was negligent, and therefore liable for damages. ”

The base fine for a first offense is $20, but this is a completely fake number. The real fine is generally 300% more than the base fine because the courthouse handling the citation will add penalty assessments, and court costs to the base fine. However, the fine is generally considered inconsequential compared to stress of being pulled over, and the hassle and trouble of dealing with the traffic court swamp.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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DUI Conviction Clean Up:
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Everyone who gets pulled over by a police officer hopes the encounter will be short and friendly. But sometimes a police contact ends with the driver being packaged and shipped to jail, and then charged with a crime. It is no secret that things can go bad fast anytime someone with a loaded gun, and lots of armed friends, forces you to pull your car over on the side of the road.

Some unlucky drivers seem to have a special knack for making a police encounter worse than it has to be. Instead of using their right to remain silent, they dive deep into trouble by mindlessly saying something that either ruins any chance for a warning, or kills any defense to a criminal charge they might have.

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But this is good news for you! You can learn from someone elses past mistakes. To help out, we have compiled a list of actual statements real people have made to the police that you should never repeat. Here they are, with the reasons why they should not be uttered:

1. “I bought the weed from a stranger.” (it is not a crime to give away very small amounts of marijuana in CA. Buying or selling it is a crime)

2. “I’ll see you in court.” (causes the officer to write down detailed notes of the incident that he or she can use to refresh a memory and screw you in court)

3. “Everything in the car is mine.” (establishes possession of everything in the car, whether you knew it was there or not).

4. “I don’t know who owns the car. ” (creates probable cause for further investigation)

5. “I had a couple of drinks with dinner, but I’m sober.” (gives probable cause for a DUI investigation)

6. “My drivers license is suspended.” (lack of knowledge of the suspension is a defense)

7. “Yes, you have my permission to search.” (eliminates the need for probable cause to search, kills an illegal search defense)

8. “I was only driving home.” (never works)

9. “I hope you meet your quota.” (cops don’t have quotas, and this will just give them reason to add violations to your ticket)

10. “I’m sorry, but I just ran out of donuts.” (pisses cops off, motivates them to screw you)

Avoiding these common statements when pulled over can save you lots of money, and might just help you avoid an unnecessary conviction. Drive safely! Don’t drink and drive.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Is any LA Highway Safe from drunk celebrities? The celebrity DUI phenomenon has just spread south from Malibu to Fullerton.

Ms. Snoop Doggy Dog, also known by the human name Shante Broadus, took one step closer to becoming a convicted criminal this weekend. She was arrested at about 12:15 Saturday for suspicion of driving under the influence of alcohol. Early information indicated she spent several hours in jail and was released on bail.

Photo: Released by Fullerton Police Dept.

Details about the arrest and stop are not yet known. However, it appears the investigating officer noticed objective signs of alcohol intoxication including a distinct smell of an alcoholic beverage, slurred speech, and impairment during field sobriety tests.

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Ms. Broadus is now expected to face criminal charges in the Orange County Superior Court and will have an arraignment within 30 days. Attorney sources report that she is likely to face 2 main misdemeanor charges: violations of Vehicle Code section 23152(a) and 23152(b). Either one can result in one year in the county jail.

Her booking photo indicates she was not happy with the arrest.

Shante’s BAC at the time of driving is not known at the time of this article. However, even if she had a low blood alcohol content, it may not be a defense.

According to one defense attorney: “There are usually 2 charges involved in a DUI case. One charge is for having a blood alcohol content of 0.08% or above, and the second charge if for driving while under the influence of alcohol - regardless of the BAC. Because of these two charges, the prosecutor can convict with evidence of a high BAC alone, or with a low BAC and signs of impairment. Either charge can result in a DUI conviction. It’s like taking two two shots at one duck.”

A conviction on either charge can bring upto one year in the county jail. However, in Orange County, most first offender DUI defendants spend only a few days in jail, and are put on probation with conditions including 10-15 days community service, substance abuse treatment, and a fine of $2000+ after fees.

The Doggy Dogg family has a history of facing, and beating criminal charges. Mr. Snoop Dog was previously arrested and tried for murder, but was acquitted by a jury. In other cases, he was convicted of reduced drug and weapons charges after long legal battles.

It is expected that Shante will put up a tough fight on this case as well.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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