What is a Public Defender? Here is what you need to know.

Later, the Supreme Court further explained that this right also required the government to provide a Defense Attorney, at the public’s expense, for defendants who could not afford an Attorney.  Eventually - and this is an interesting reflection on American Society - the court ruled that the Attorney had to be “competent” and stay awake during a trial.

The theory behind this right is that an everyday person accused of a crime has no chance against a skilled and highly trained prosecutor without a defense Attorney to ensure the process is fair, and the evidence reliable.

Yes, somewhere in history, our ancestors learned that prosecutors are not always right, honest and fair. The right to an Attorney at public expense for the poor is a uniquely American counter balance to that problem.

Now, the right to an Attorney for the poor has detailed rules.  Today in California, a Defendant has a right to a court appointed defense Attorney if:

1) charged with a misdemeanor or felony (includes DUI charges, but not traffic infractions); and

2) qualify as “indigent” under the current guidelines set by the county or local where the case is being heard.

When a Defendant meets these qualifications, the court must appoint a Defense Attorney at little or no cost to help the Defendant.

Are Public Defenders Real Defense Attorneys?

You bet. In most counties, there is a separate county division called the Office of the Public Defender, which is the collection of Attorneys hired by the county to act as the court appointed defense counsel for the poor or “indigent”. These attorneys are known as “Public Defenders”.

All Public Defenders are licensed by the State Bar of California to practice criminal defense law.  In fact, often, they are the best criminal defense trial attorneys around. This is due to the fact that they work every courtroom every day, they how their judges are likely to rule, and they know what to expect from the local juries. It is true that many young lawyers start their trial careers with a Public Defenders Office, but the reason for this is more often due to the excellent training available to new Public Defenders, than to the new commers’ inability to get a higher paying job.

Are Public Defenders Available To Everyone Who Asks for One?

No. You must first apply for a Public Defender in court and then qualify as “indigent” under the county’s rules. Generally, if an accused, or the family of the accused, can come up with the money for a private attorney, the accused will not qualify for a public defender. An unwillingness to borrow money for an Attorney, or to sell an asset such as a car does not make one “indigent”.  Generally the courts require that a defendant must have no access to resources for a private Attorney before the qualify for a Public Defender.

Are Public Defenders Free?

No. Almost all California Counties now charge a minimum fee for use of a Public Defender. And many counties now will charge the accused for the services of the public defender on a sliding scale based upon a person’s income, and the court will enforce payment of the bill.

Serious penalties apply to those who try to mislead the court about their ability to pay for a public defender.

How Do You Apply For a Public Defender?

You must appear in court on your assigned court day, and inform the judge that you want to request the help of a public defender. This problem is one giant disadvantage for people accused of Driving under the influence (Vehicle Code section 23152) because it means they do not get help prior to their court date.  And in DUI cases, there is a lot to do prior to a court date.  For example, a person arrested for a DUI offense in CA only has 10 days to schedule a DUI hearing to protect their drivers license, and a Public Defender’s help comes too late for that deadline.  And worse yet for the DUI defendant, the Public Defender will not help with DMV hearings at all.

Practice Tips:

In most traffic citation cases, a Public Defender is not available, because the Defendant is not charged with a misdemeanor or more serious crime.

Public Defenders have limitations.

Public Defenders are generally a great value for those who qualify.  However, they do have limitations that private Attorneys do not have.

One of the downsides of requesting a Public Defender is that you have to go to court to request one, and you may not get one you like.  In most misdemeanor cases, a private defense attorney can go to court for you, and you can always hire the one that works best with you.

Public Defenders are also generally assigned to deal with one case for a Defendant.  If the Defendant has several cases in different courts, a different Attorney may be appointed on each, making coordinating the defenses difficult.

Public Defenders will not assist with issues outside of the courtroom, such as DMV hearings (important in DUI cases), and generally will not talk to defendants or provide consultations prior to being appointed in court.  For defendants with outstanding warrants, this means it is unlikely that a Public Defender can help before getting arrested on the warrant.

A person who wishes to discuss a case with a Public Defender prior to appearing in court should call the Public Defenders Office in their county to see if a pre court consultations is possible.

My advice is you are not sure if you qualify for a public defender?  Shop around for a private attorney first, and find out how they can help more, and faster than a public defender.

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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How to Get a Public Defender Appointed on a Criminal Case.

Broke and in big trouble? You may be entitled to have the Judge appoint a Public Defender to help you if you are charged with a misdemeanor or felony.

What Is a Public Defender?

In a land far far away, a long, long time ago, a great Supreme Court ruled that all criminal defendants have a right to a “competent defense” which means attorneys help.  Now, anyone charged with a misdemeanor or felony crime has the right to an attorney and if the person cannot afford to hire a private Attorney, the law requires that the court appoint one to help the defendant at the public’s expense. When the Court appoints an attorney to help a broke defendant, they are called “Public Defenders”.

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Public Defenders are real Attorneys, and are generally very good at what they do.  I spent three years with the Santa Cruz County Public Defenders office my self, and can say they do consistently provide great legal work and fight to protect rights.  Those defense daemons are in court everyday helping defendants in trouble, getting evidence suppressed, and they usually know the ins and outs of each courtroom, each judge, and every prosecutor.

Every county has its own Public Defers Office, or a contract with a private law firm to do the assigned work. Sometimes it is a division of the 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.

California Government Code Sections 27700-27709 require a county’s public defender to provide legal representation for indigent persons in certain circumstances.  These California statutes are really just a restatement of the requirements the US Supreme Court set for 5th Amendment Rights in the famous 1963 case of Giddeon vs. Wainright.  And in most counties, the public defender heads the county law office which fulfills this obligation in the most cost effective manner.

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 some 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.

In most counties, employment is enough to disqualify a defendant.  The court expects the cost of an attorney hurt.

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.

Public Defenders are also 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 outstanding warrants, Public Defenders present a problem because they cannot be appointed until the defendant appears in court. This means the defendant must 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.

If you need to ask for a Public Defender, I recommend explaining to the court why it is impossible for you to hire a private attorney.

Public defenders are not available on infraction only cases, such as speeding tickets.  Most of the time, they are not available for appeals.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Help! Im Trying to Pay a Traffic Ticket Fine Online at the Last Minute!

This question just rolled through and it is a common one that we are going to answer every one all at once:

What Do I Do If My Traffic Ticket Fine is Due Today and I Cant Pay On Line or Over the Phone?

Here is the actual text of the question from [Bob]:

My issue is that I am trying to pay for my traffic violation over the internet and phone, but neither will allow me to do so.  The automated phone messages are not allowing me to pay my fine.  The internet has technical difficulties.  Today is my response due date.  I am worried that I will have to fill out a PC 1214.1 civil assessment and petition and order form.  What should I do??

Here is my best free self help advice:1. Avoid the problem if possible. Jump into a time machine and jump back 5 days. Send the payment in early (ideally as a money order or cashier’s check) from the US Postal Office sent with Delivery Confirmation Requested.

2. If your time machine is one of those imported ones and it takes to long to warm up:

A. Go to the court clerks office in person and pay in person and get a receipt; or if that is not possible:

B. Send it out overnight mail, and call the next day to confirm they received it and check to see if they gave you a break and accepted it.

If you follow option B, and they tell you that it was late, immediately go in to the court clerks office in person and ask for a walk in court appearance. Once in court, ask the judge to accept your payment because you made a good faith effort to comply.

These are really the only realistic answers to the problem. You have to get your payment there on time, even if you cannot pay on line. “You web site did not work!!!” is not a defense to anything.

Do not delay.  If you cannot get your payment there on the date it is due, go to court. That is the best option.

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Can’t Pay Your Fine? Try a Penal Code 1385 Motion to Dismiss.

If you are going to court without any defense, and you need an argument to get your misdemeanor or traffic court case dismissed, use California Penal Code section 1385. No mater what the facts are, a defendant can ask a judge to dismiss a case or suspend a fine in the “Interests of Justice” using PC 1385.

Penal Code section 1385 is the law that allows a judge to use discretionary power to make a fair ruling.  It is a way to ask the judge for what is technically called “Equitable Relief”.  Lawyers use a PC 1385 request or “Motion”, to get rid of traffic citations, misdemeanor cases, and even felony strike charges.  It is a common motion - or request to the judge.

And get this:  We made an EZ Form for the Motion! Here is how it works:

California Penal Code section 1385 states:

(a) The judge or magistrate may, either of his or her own
motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.  The reasons
for the dismissal must be set forth in an order entered upon the
minutes. 

This statute allows a Judge to dismiss a case “in the interests of justice”, but the statute does not describe what factors qualify as “the interests of justice”.  It’s a very subjective standard, and this means if you can talk the judge into a PC 1385 dismissal, it will work.

Just talk the judge into it.  That’s all you have to do.

A Penal Code section 1385 dismissal is most often used to get rid of overlapping charges, charges that just don’t make sense, or as in one example we recently observed - when a defendant is on active military duty and shipping to a combat zone.

A defendant can make a section 1385 request for a dismissal, or even to delete or suspend a fine, verbally or in writing.

Technically, the statute does not allow a Defendant to make the motion.  It states the judge or the prosecuting attorney can make the motion.  But nearly all judges in real courtrooms will listen to a request.

[Practice Tip: If you run into a judge that gives you a hard time, you can make a motion for the judge to make a PC1385 Motion.]

You can make a 1385 motion orally at a court date by telling the judge:

Your honor, I’d like to ask for a Motion for dismissal in the interests of justice under Penal Code 1385 for the following reasons: [insert reasons].

But you should do it in writing and verbally.  I strongly recommend that you use the Penal Code section 1385 Motion form I created for Self Help Use. But you can write your own motion if you wish.

You can download the fillable “.pdf” Motion Form with Instructions now for $19.99 at my www.DortLaw.com Legal Forms Store:

http://store.payloadz.com/go?id=826938

A Penal Code section 1385 motion will not always work, but it will give you an argument when there is nothing else to hang your coat on.  It works great when there is a special circumstance or unique hardship you can point out. Death, loss of job, successful drug recovery, etc.

It can be done - should be done - in just about every traffic or criminal case and on top of what ever other arguments you have.

-Christopher Dort, Esq.

Questions? Email info@dortlaw.com

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Lindsay Lohan Gets Hammered on DUI Probation Violations

Trial of the Century, so far.  The Accused: a child movie star, on probation for 3 criminal cases, 2 of them DUIs within a month of each other, both involving cocaine.

The Defense: “I was thinking that it was OK that I missed those classes. . . “

All of the main players were women.  The judge was a woman, the prosecutor was a woman, so was the bailiff, so was the defense attorney, so was the  . . . . wait, were there any men there at all?

Lohan herself drew pictures on a note pad while documents were presented. She didn’t even notice when the judge gave her a giant break by dismissing the allegations that she tampered with her alcohol detecting ankle bracelet.The prosecutor claimed she had proof Lohan violated probation by drinking alcohol, and by tampering with the bracelet.  The judge called it a “bail violation” and ignored it.

Lohan wore pink and blue fingernail polish.  One of her finger nails had writing: “fuck u”. No wait - UPDATE - she had it on both hands.

Yes, the judge gave her a huge break to start the game.  I guess she didn’t notice the nail polish.  Remaining Charges = failure to complete substance abuse classes as ordered by the court after her first, second and third arrest (Vehicle Code section 23152, Health and Safety Code sec 11550, etc.).  Generalized probation violations (plural).

The judge previously ordered Lohan to attend one session of treatment a week, no excuses. And she missed a few.  Then she missed a court date.  Then she was late for another court date. Then . . .

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First line of Defense:

Defense Attorney: “You cannot have the treatment records because they are protected by the Doctor/Patient Privilege.”

Judge: “What? these people are not doctors!”, said the judge. You have to tell the court what happened or she goes to jail now.

Second line of Defense:

DUI / DRUG Program personnel cannot testify because they do not want to incriminate themselves.  They are evoking their 5th Amendment Rights to not testify against themselves.

“WHAT?” asked the judge.  That does not make any sense at all - “unless you lied” on the documents.

Suddenly, the witnesses are gone, nowhere to be found.  Will anyone testify against Lindsay????? She did have a “Letter of Compliance” from the center.  It was a family owned treatment center.  Was that enough? Why are we here?

Well, this ain’t the Jimmy Hoffa trial. This ain’t the Ray Lewis trial. This aint the OJ Trial. That’s not Johnny Cochran   (quoth the audience). But it is the trial of the century.  Does she get it, or what?

Does who get it? Does the judge get it? Does Lindsay Get It? Does the judge get it and give it to Lindsay even though Lindsay doesn’t get it, in a kinda ‘Gotta get it, put it in you’ sort of way?

Everyone watching the live TV Feed from the courtroom could tell this judge is pissed off and knows that she is on live TV.

So, no, the “letter” is not going to work. This is not Judge Ito. And the witnesses are not really dead.

Judge has a solution =

Maybe there is no evidence of compliance at all?  What about that idea? Lohan was ordered to complete one class a week.  Did she do it or not?  Do you have the proof or not?  This letter looks like unreliable hearsay.  Do you have a witness right now or not, Ms. Lohan?????

Oh wait - Surprise! Here they are judge.  There are witnesses to prove she did the classes.  Yeap.  Here they are.  Well, there is one.  And we need time to copy hundreds of pages of crap to prove that there is nothing to prove.  We are in substantial compliance with the court’s order. We just need to make copies.  There is nothing bad to hide.  Did the judge read the letter?  Come on! She did most of the classes.  She did one yesterday. . . Why are we here?

In a real probation violation case in Los Angeles County, the burden of proof is much lower than at the beginning of a criminal case.  It is easy to get convicted of a probation violation, especially if there are attendance records.

The reason is that once you have been convicted, you have lost most of your rights, including the right to freedom. If the court gives you the gift of probation, and it does not work out, the court does not really need to convict you again.  The case is already over, you just need to complete a sentence.  A judge can just re-sentence a person who blows probation starting from scratch.

Probation is a privilege that prevents jail time.  But probation is not a right.  Probation comes and goes with the order of the sentencing judge.

1:30 pm, lunch is over at the Beverly Hills Courthouse.  The judge has had a whole hour to think about what to do.  Maybe she mulled over the options over her Trader Joe’s Greek Salad.  She can see the Beverly Towers from her office, and wonders if she can see Lohan’s apartment.

(I made that up). Bring on the witnesses.

Witness #1 in summary:

Yes, Judge ordered once a week treatment.  No excuses. Judge called treatment center Manager via telephone in person to give order.  Manager:  “I did receive the order on the telephone . . . but not on paper. . . I thought I would get a paper order”.

How many court ordered classes did Lohan miss? Answer: “9″. Did the treatment center notify the court? “No.”

OMG.  WTF. FUBAR. FRED. Can we get some popcorn here? Whacha gotta say bout dat?

9 is an unlucky number. Note to self:  “Sometimes it is better to just admit a probation violation.” Thought to self:  Lohan could have gotten 30 days by admitting violations early.  Could have gotten zero days if she realized probation should have been the #1 priority in her life.  OUCH.

Prosecutor adds:   How many missed court dates? Answer = 2. OUCH.

Finally, at about 3 pm, the judge found that there was sufficient evidence that Lohan missed at least one required class. That is all it took, one missed class.  Violation.com.   It did not matter how many she missed.  She blew the gift of probation into the wind like Colombian fairy dust.  Lohan missed 9 court ordered DUI classes - now the government is going to get that time back with interest.

In the end, it was a classic Los Angeles DUI probation violation case.  Lohan got what any defendant in the same situation would get. But most defendants do not fight a probation violation through a hearing like this, because it is a waste of time and money.

Who has the money to pay a lawyer to sit there and try to deal with a treatment center’s attendance records and the judge’s anger?  Answer: Celebrity in complete denial.

Lohan was on probation for 3 cases.  Reckless Driving, 2007 DUI, then 59 days later, another DUI.  Oh yea.  There was cocaine, and some chasing of people, and car crashes. General coke induced craziness on the streets of LA.

The judge took the facts of all three pending cases under consideration to determine sentencing. The Judge noted:  “These facts are very very, .. very aggravating”.

What did Lohan really say to the judge when she had a chance?

“I was thinking that it was OK. . . . ”

It is a good thing she had a defense attorney, and did not talk until the end. She claimed the program allowed her to miss classes - and she thought that was OK.  She has to work. Work is important.

When Lohan did get a chance to speak to the judge, it was a moving performance.  There were tears, dripping eye make up, straggled hair. “I was just trying to balance court and work”. “I have to provide for myself.” She didn’t seem to realize that just about everyone on probation has to work and provide for themselves.  The judge had heard that one before, usually from people with far less resources.

Ultimately, the Judge gave Lohan a probation violation sentence for each of the three cases - 30 days county jail for each case consecutive, 90 days total. And after she is released, she must enroll in and attend 90 days inhouse drug treatment immediately jail. 9 is an unlucky number.

The county jail in Beverly Hills is in the Los Angeles County Jail. OUCH.

Moral of the story:

Lohan did not take probation seriously and got hammered.  She thought her work was more important than following the court’s orders regarding her DUI classes.  And she made the common mistake of believing that she did nothing wrong after she had in fact violated probation.  Then she fought it though a hearing without admitting guilt, and gave the judge a chance on live TV to make an example of her.

For most people, it never goes this far, because if it goes bad, this is what happens.  Take DUI probation seriously.  If you miss classes, fail to pay a fine, or miss your jail surrender date, get on the problem immediately. Hire an attorney to help clear warrants, and get probation back on track.  Every day matters. Getting on top of DUI warrant and probation violations before the court drags you in can greatly increase the likelihood of a good result.

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Miss 9 class and get 90 days in LA County Jail? It happens even if you have money. . .

Some attorney estimates say that she will actually serve 30% of the actual sentence, but that is a long time in the LA County Jail - at least for a movie star.

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For More Info on Dealing with DUI Warrants and Probation Violations, see www.trafficcourtblog.com

What is the Sentence for a First Offense DUI in California?

Most persons convicted of a first offense driving under the influence misdemeanor (DUI) in California court get the same or similar sentences.  I have handled literally hundreds of DUI cases in dozens of California criminal justice courthouses, and this is my detailed update on real first offense DUI sentences as of July 2010.

But if the defendant is willing to plead guilty to one of the Vehicle 23152 charges (known as the “a” or the “b” counts), the prosecutor will generally dismiss one, and the defendant gets sentenced for a single misdemeanor count (rather than 2). It’s a common plea agreement at the first court date - dismiss one charge, Defendant pleads guilty to the other.

In some courts, the defendant without an attorney who pleads guilty will get screwed and convicted of both misdemeanors, but it rarely makes any difference in the sentence.

Technically, the law states that a violation of either VC 23152(a) or VC23152(b) can result in a maximum jail sentence of 1 year in the county jail and a fine of $1500++++.  But that is rare.

The most common sentence is as follows (yes, I have it memorized):

30 day jail sentence that is suspended and not carried out so long as the defendant completes 3 years of Summary Probation with the following terms and conditions:

1) Serve 4-10 days jail time with a recommendation from the judge that this time be converted to a Sheriff’s Community Work Program service if the defendant qualifies (no violent history, etc); every court has a different name for this aspect of probation.

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2) enroll in and complete a First Offender DUI substance abuse counseling program as authorized by the state legislature (known an AB548 program - usually 12 weeks);

3) pay a fine usually totaling $2400 once court costs and assessments are added;

4) obey all laws and do not drive without valid license and insurance.

If any of the probation terms are violated, the suspended sentence is imposed, and there may be separate penalties for the probation violation itself.

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OTHER FACTORS THAT MAY AFFECT DUI SENTENCING:

Keep in mind the above description is a general listing of what most first offenders get.  But there are many factors that can increase the sentence, such as:

1) a high blood alcohol content; 2) prior convictions; 3) having minors in the car; and 4) a collision (regardless of whether or not a person was hurt).  There are other aggravating factors not listed here.

IGNITION INTERLOCK DEVICE REQUIRED IN SACRAMENTO, LOS ANGELES, and ALAMEDA COUNTIES

Beginning July 1, 2010, a new takes affect that requires a first time DUI defendant to install an alcohol detecting interlock device on any car they own or have access to .  This program is brand new, and is being tested in 4 counties - Sacramento, Tulare, LA and Alameda.

DRIVERS LICENSE SUSPENSION HANDLED BY DMV INDEPENDENTLY

Recently the law has changed in regards to what happens to a Drivers License after a DUI arrest. Presently, at teh time of the arrest, the arresting officer takes possession of the drivers license and issues a DMV notice of suspension in 10 days.  The driver then has 10 days to request a hearing to challenge the suspension with DMV administrative officers.  The court does not take action against the drivers license.  It all happens with DMV.

GET AN INDICATED SENTENCE IF YOU ARE NOT SURE

If you want the judge to tell you what your sentence will be before you decide whether to plead guilty or not guilty, ask for an “indicated sentence” before entering a plea.

If you are not sure if you are technically guilty and may have a defense, get an attorney to help.  There are lots of defenses to DUI charges, and there are inherent error rates in testing machines that may affect the reliability of a test result.

An attorney can give you detailed advice about your case and the evidence, and in DUI cases can go to court for you while you go about your life.

** this is only a guide for general information, and not meant to be a prediction on your case.

Questions? send me an email at dort@dortlaw.com

If you were arrested and want a free case review to find out what your options are, request one at www.trafficcourtpros.com/casereview.

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How to Find Warrants in California.

Here are some self help tips for How to Do Your Own Warrant Search:

First, you have to understand what you are looking for.  Warrants do not just suddenly appear from nothing. They are Orders from a Court that tell law enforcement officials to take a person in to custody.  Warrants are the product of a problem in a pending court case.   Most California criminal and traffic court warrants (and their cases) are processed by the Superior Court for the County where the case is pending.

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Because nearly all warrants originate from a Superior Court case, that is the primary source for information on a warrant problem and the best place to start.  But if you do not know which court you want to get information from, you can use a warrant search service such as www.ArrestWarrants.org to help you.

Warrants are public court records, and are not confidential or private in any way. Everyone in the public has a right to get information on an active arrest or bench warrant for anyone else.

When you are looking for a warrant, the important information that you want to find is:  1) the case number and courthouse location; 2) the bail set on the warrant; and 3) the charges that are pending in the case.

Usually, warrants result from a failure to appear for a court date, or a failure to comply with a court order (such as paying a fine or attending court ordered classes).  In some cases, warrants can also be issued for a failure to pay child support, but this is rare.

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If you know which court the case with a warrant is pending in, a good place to start is the web site for that county’s Sheriff or the Superior Court.  Some Superior Court and county sheriff’s offices do allow on line searches for warrant info, but not all do.  The San Diego County Sheriff’s Office is a great example of a Sheriff’s Dept that provides excellent on line warrant searches.  The Alameda County Sheriff’s Office is a great example of a Sheriffs office that does not even try.

In some Superior Court web sites, you can look up warrant info on a case on line by checking the “on line services section” of the court’s web site to find the case info, but not all courts are as good with allowing public access to case and warrant info.  The Orange County Superior Court is an excellent example of a court that provides free on line access to case and warrant details.  The Alameda County Superior Court is a Court that does not even try to give the public on line access to criminal and warrant case info.

If you know which court issued the warrant, but cannot get on line access to the info, you can call or visit the court clerk to request the information.

At TrafficCourtPros.com, we have tried to collect the links to court web sites for free warrant search / case info looks for the courts that have on line accesses.  You can check for your county by Clicking on our Free Warrant Search Link.

There are some web based companies that will do a background report on a person for a fee, such as the site we recommend, www.arrestwarrants.org.  These services can a good source of info to help you get on the trial of the information that you need.

Some courts do not (or are very ineffective at) providing warrant and case information over the phone or on the web. Therefore, the best way to get this info is to go to the courthouse and visit the clerks office personally.

If you think you have a warrant because you failed to appear for a court date, or failed to comply with a court order, then you probably do have a warrant, and you probably already know the courthouse where the case is located.

Don’t waste your time calling the police, DMV, the sheriffs office, or the Post Office. Warrants come from the courthouse where the underlying case is located. Calling or visiting the court clerk is that court is the best way to get information on a warrant and its underlying case.

Sometimes a court that issues a warrant will also cause the defendant’s drivers license to be suspended.  In these situations, some warrant info may be found by calling DMV, but that is not the best source of info.  Warrants and drivers license suspension are completely separate problems.

So if you want to find out if you have a warrant, or why you have a warrant, the bottom line is that you need call or visit the court clerk’s office in the county where the underlying case is pending.

Some courts issue warrants from a criminal division and also a traffic division.  You may have to call, check or visit both divisions separately.  Better yet - you need to go directly to the court. If its a criminal issue - you need to talk to the criminal court clerk, if it is a traffic issue, contact the Traffic Court Clerks office.

Once a warrant is found, the problem must be solved.  This usually means taking care of the case that produced the warrant.  One or more court appearances is normally required for warrant problems, and jail time is a possibility.  People with warrants should consult with an attorney immediately.

Knowing that you have a warrant doesn’t really help much.  More info is needed.  The information you need to get quality advice from an attorney about how to solve a warrant problem is:

1) the case number;

2) the original charges in the case; and

3) the reason the warrant was issued.

The court clerk can give you all of this information.

If you use a warrant search company such as www.arrestwarrant.org, and find something, you can follow up by contacting the court for details on the case.

If you have a warrant, jail time is a possible outcome and every day that the warrant is outstanding makes a jail term more likely.  You may want the professional help of an Attorney who can do the tough work for you, and avoid unnecessary convictions or penalties.  In most misdemeanors, even if there is a warrant, California Penal Code section 977 allows an attorney to appear in court for a defendant. Because of this, Attorneys can do the work for you and help you avoid a stressful or embarrassing court appearance.

If you want advice from an Attorney on how to solve a warrant problem once you have basic information about it, get a Free Case Review from TrafficCourtPros.com or contact me directly at cdort@dortlaw.com

Questions?  Leave a Comment.

Attorney Christopher Dort

www.DortLaw.com

Dealing With DUI Warrants From Missed Court Dates and Probation Violations

One of the most common forms of arrest or bench warrants in California Courts today are warrants from driving under the influence cases (Veh. Code sec. 23152). It is a common problem that we see often at TrafficCourtPros.com.  Here is some general information on how an Attorney would deal with a typical DUI warrant problem.

There are basically two ways to end up with a warrant after an arrest for driving under the influence:  1) a failure to appear in court; or 2) a violation of probation.  Step one is figuring out which type of warrant is the problem.  We’ll deal with each separately.

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Failure to Appear Problems.

Most DUI warrants result for missed court dates.  Usually, it is the first court date that gets missed (called the Arraignment).  When this happens, generally, the court will issue a bench warrant under penal code section 853.7 or Vehicle Code section 40508(a).

If the Defendant posted bail to get released from jail prior to court, the court will also revoke the bail bond, and thereby open the jail door for the defendant.

To get the warrant recalled after a missed court date (also known as a failure to appear), either the defendant or an Attorney representing the defendant must appear in court in person. Once in court, the Attorney or Defendant must ask the judge to recall the warrant.

Usually, this is a two step process:  1) getting the court clerk to get the case back on the courts calendar; and 2) appearing in court to ask the judge to recall the warrant.

Once a request to recall a failure to appear warrant is made, a judge has a few options:  1) approve the request and reinstate bail (if any); 2) increase the bail the defendant must pay to stay out of jail; or 3) take the defendant into custody immediately.

For many failure to appear warrants, an Attorney can do this work without the defendant being present in court - if the problem is addressed quickly.  But some judges will be harsh and require the defendant to appear in court, and then take the defendant into custody.  The court technically has the power to keep a defendant in jail until trial if they miss a court date.  But it is rare.

Once the warrant is recalled, the case progresses normally, and the defendant must enter a plea of guilty or not guilty and have a trial.  There may be an added charge of misdemeanor failure to appear (Vehicle Code section 40508a) for the defendant to deal with.  If there is a separate failure to appear charge added, it has a maximum penalty of 6 months to one year in jail once the case ends and the judge imposes a sentence.

Probation Violation Problems:

Most first time DUI defendants are found guilty (or plead guilty) and are given a sentence that includes 3-5 years of court probation.

This court probation includes requirements (terms) such as: 1) pay a fine; 2) do not drive without license and insurance; 3) complete a substance abuse program (AB548 program or similar); and 4) complete jail or sheriffs work program time by a certain date.

If a probationer fails to satisfy any of these terms, or gets arrested for a new crime, the court will typically revoke probation completely, and issue an arrest warrant.   This can happen if the probationer gets caught driving (vehicle code section 14601.2), or if they fail to complete the DUI classes on time.  A missed fine payment can also result in a warrant and probation violation..

Once probation is revoked in a misdemeanor or DUI case, the court has the power to re-sentence the defendant on the DUI charge.  Basically, they can start over.

And a probation violation can prevent a defendant from getting the conviction expunged after probation ends.

To clear a probation violation warrant, an Attorney or defendant must: 1) get the case back on the courts calendar; 2) appear in court and ask the judge to recall the warrant; and 3) ask the judge to reinstate probation on the original terms and conditions.

To get a case on the courts calendar, an Attorney would go to the criminal division court clerks office and request a calendar setting for the case.  Sometimes, a form is required.  In some counties, such as Santa Clara, the Attorney must go into the courtroom and get the judge to sign the setting form.  Then the form must be filed with the clerk.

In the Los Angeles County Superior Court, the process is slightly different.  The court clerk can set a date without a judge’s signature.

In some, but not all courts, an Attorney can get a misdemeanor DUI probation violation warrant recalled without the client in court.  Some courts will require the defendant to appear in court.  Some judges will take all people in this situation into custody and sentence them to jail for 30 days or more.  Some judges will give defendants a second chance if they take care of it correctly.

Probationers do have a right to a hearing to determine if they actually did violate probation.  But in most cases, a probation violation hearing is a waste of time, because the violation is obvious (i.e., missed fine payment, or caught driving). And to make it worse, the burden of proof on a probation violation is very low - it is easy to get a conviction for the prosecutor.

There are very defenses to a probation violation charge - other than it did not happen.  Explaining a missed fine date by stating you could not afford it will not work, and explaining why you were driving will not work.  Once the event happens, there is a violation. Dealing with a probation violation is usually more damage control than anything.

So in general, the Attorneys goals on a DUI warrant problem are to: 1) get the warrant recalled; and 2) talk the judge into a reinstatement of probation under the same terms and conditions as existed originally.

In most DUI cases, it is very important to get into court as soon as possible to solve the problem.  People who wait end up with the worst results.  Everyday that goes by with a warrant outstanding makes it harder to get a no jail result.

Answers to Some Frequently Asked DUI Warrant Questions:

Q. What Happens If A Defendant Cannot Pay a Fine on Time?

A. Generally, the courts treat a failure to pay a DUI fine as probation violation. A warrant can be issued,  and probation can be revoked. Once probation is revoked, a defendant cannot pay the fine until the court reinstates probation, because the fine and amount of the fine are terms of probation.

If a defendant cannot pay a fine on time, they should appear at the court clerks office in person (phone calls will not work) and request a court appearance.  Once in court, a defendant can ask the judge for more time.  This must be done before the fine payment is due.

Q. If I Have A Warrant in CA, but Live Out of State, How Can I Take Care of It?

A. In just about all DUI warrant cases, a court appearance is mandatory. However, an out of state defendant in a misdemeanor case can hire an attorney to make the appearances for them. Although most courts will require the personal appearance by the defendant before recalling a warrant, in some cases an attorney can ask the court for an exception where the defendant cannot go to court without interstate travel. Most courts will grant the request (but not all).

Q. How Can An Attorney Help on a DUI Warrant?

A. In most common DUI cases 9Vehicle code sections 21152(a) & (b), an Attorney can appear in court for a Defendant and handle the case (penal code section 977). If a warrant has been issued for a probation violation, or failure to appear, and Attorney can appear in court for hte defendant and request that the warrant be recalled. In most cases, an Attorney can get a routine warrant recalled without the client having to appear in court. However, it varies from courtroom to courtroom, and in some courts, judges policy dictates the defendant must be present to get a DUI or probation violation warrant recalled. Some judges will take defendants into custody, even if they try to get the warrant recalled correctly.

Not all county superior courts deal with DUI warrant cases the same. In some courtrooms, such as Judge Hastings courtroom in Santa Clara County, a defendant with a DUI warrant is likely to be arrested as soon as they show up in court. In other counties, such as San Diego, the judges will recall a DUI warrant, even years old, if the defendant appears in court voluntarily and takes care of the outstanding issues. An attorney can at times help a defendant get his case into the right court to minimize the chances of the client being taken into custody during a warrant hearing.

Q. What Happens if a Defendant Fails to Complete DUI “Classes” On Time?

A. In most first offense DUI cases, the penalties are routine - the court will impose a jail sentence that is suspended pending the completion of probation. Usually, completing DUI classes such as an AB548 program are included as terms of probation. If a person fails to complete the terms of probation on time, the court can issue a warrant, revoke probation, reinstate the suspended jail sentence, and charge the defendant with a separate probation violation. Because of this, a defendant who has failed to complete DUI classes on time generally must return to court for a request to reinstate probation and a new referral to the classes.

Q. Can Probation Be Reinstated If it Was Revoked?

A. In misdemeanor cases,  the court will frequently sentence a defendant to court probation in place of a jail sentence, which is “suspended” or paused. If the terms of probation are completed without trouble, the jail sentence is never imposed. However, if a defendant violates a term of probation, or misses a court date or deadline, the first action the court takes is to revoke probation.

Once probation is revoked, the court can re sentence the defendant to the “suspended sentence” and can charge the defendant with a separate probation violation that can lead to jail time on its own.

If probation has been revoked, a defendant can request that it be reinstated on the same terms and conditions as before. Whether or not the request is granted is up to the court, but if the court grants the request, yes, probation can be reinstated. It is common for a court to reinstate misdemeanor probation terms after they have been revoked, if the violation was minor, or recent.

Christopher Dort, Esq

If you have a DUI Warrant, request a Free Attorney Case Review and start solving the problem today!

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How to Write A Petition to Vacate Civil Assessment Under Penal Code Sec 1214.1

Trying to Beat a Civil Assessment and the court is telling you to fill out a Petition to Vacate Civil Assessment Form? Here is what you need to do.

What is a Penal Code section 1214.1 Civil Assessment?

Many California Traffic Courts are electing to change the way they deal with people who miss the court date listed on the bottom of traffic tickets.

In the old days, they would issue a bench warrant, and add a misdemeanor failure to appear charge under Vehicle Code section 40508(a).

Now some courts are trying to save money and increase revenue by shifting their Failure to Appear procedure to suspending the defendant’s drivers license under Vehicle Code section 40509.5, and then adding an automatic $300 “Civil Assessment” penalty to the case under authority of California Penal Code section 1214.1.  The Civil Assessment then gets treated as a civil judgement, not criminal penalty, which limits a defendant’s legal rights to challenge the penalty.

Some courts are now stream lining the process by skipping legal requirements and telling defendants the only way to challenge this automatic judgement is to fill out a local “Petition to Vacate Civil Assessment Form”.  The form only provides 2-3 lines of space to present your factual or legal challenge to the judgment, and is designed to totally restrict a person’s right to challenge the Civil Assessment..

It is my professional legal opinion that the courts that operate this way are violating the law.  Examples would include Fresno County Traffic Court, Solano County Traffic Court and Alameda County Traffic Court.  Specifically, they are violating the law in 2 main ways.

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First, Penal Code section 1214.1(b) requires that the court gives a person a 10 day “Warning Notice” to their last known address before imposing the “Civil Assessment”. Most courts are either ignoring, or not maintaining proper proof that they satisfied this requirement. Secondly, Penal Code section 1214.1(d) requires the defendant have the same Due Process hearing rights that attach to “Civil Judgements” generally, which to means the right to an evidential hearing (Trial) on whether or not the Civil Assessment can be legally imposed. By requiring defendants to use their limited local form, and by denying the defendant an in person hearing on the Civil Assessment, the court is violating this legal requirement.

How to Challenge a Penal Code section 1214.1 Civil Assessment

My research indicates that the strongest legal argument in favor of a Petition to Vacate Civil Assessment is the following:

1) The Court failed to mail a Penal Code sec 1214.1(b) Warning Notice to the correct address. 2) Defendant did not have actual knowledge of the Penal Code sec 1214.1(b) Warning. 3) Defendant demands a Due Process hearing to challenge legal application of the 1214.1(a) civil judgement as required by Penal Code section 1214.1(d).

By putting those specific words in your Petition to Vacate a Civil Assessment you will give yourself the best legal chance to win teh petition and then strong legal grounds for an appeal of a denial of the petition.

Make sure you file Petition to Vacate Civil Assessment in person at the Clerks Office and leave with a copy that has a “Filed” stamp on it. You can demand the court clerk give you proof you filed it.

FREE OFFER FOR APPEAL HELP

If you are a Defendant in this situation who follows these instructions, I will provide free help with an appeal on the issue(s). Just contact me by email at cdort@dortlaw.com

Related Form:  Demand a Trial After Civil Assessment ($9.95)

What to Worry About for a Pre Employment Background Check.

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 On Line 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 bench warrant, misdemeanor failure to appear suspension, or pending probation violation.

The new corporate appetite for screening information is fueled by easy, and cheap access to criminal history reports and background checks on the Internet. Employers are using these checks as a way to eliminate applicants with pending court problems.  However, many of the problems that can cause the loss of a job opportunity can be solved before 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 apply to 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. It’s 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.

But misdemeanor problems, including a failure to appear on an infraction, does cause the loss of job opportunities.

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 immediately. 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.

But some employers will give an applicant some time to clear a warrant problem once discovered.

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.

Bench Warrants Can Be Cleared In Court.

Misdemeanor Warrants can generally be fixed fast. Because warrants are issued from the court because a defendant has not appeared in court, once a court 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: www.Gov-Resources.com

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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