3 Things Most People Do Wrong When Being Charged With a DUI

When you have been charged with a DUI, it is easy to focus on negative

1. What Most People Do Wrong:  Panic, Give Up, or Focus on Regret. What You Can Do Right:  Spend energy on affirmations.

    • You can’t change the past, so you need to put your energy into the future.  Here are some affirmations that will help you be confident in yourself and your future happiness.
      • Know that you may have defenses that you aren’t aware of yet.
      • Understand that everyone makes mistakes, and you can always recover.
      • Forgive yourself and focus on what you can learn from the experience to help you in the future.

2. What Most People Do Wrong:  Delay.  Procrastination is one of your most dangerous enemies if you have been charged with a DUI. Some people requesting a DMV hearing and miss the deadline, others delay seeking legal counsel immediately, others wait to begin changing harmful habits.   

What You Can Do Right:  Take immediate action!  

  • Request a DMV hearing to avoid the default, which is a suspended license.
  • Immediately start looking for an attorney who is experienced in criminal law, particularly DUI.
  • Change your habits starting now, so that you don’t end up in more hot water. Make sure you do not risk getting another DUI. If you struggle with substance abuse or alcoholism, work with your attorney to identify treatment programs or counseling that you may work into a plea deal if you decide not to go to trial.

3. What Most People Do Wrong:  Spend money as usual, and forget to set aside funds for DUI.  What You Can Do Right:  Start preparing financially.   If convicted, you will be facing costs of fines, counseling, and eventually increased insurance costs and an interlock device when you can drive again.  These costs add up, so now is the time to start preparing financially to handle those responsibilities.

      • If you qualify, a public defender can save you costs.  Some defendants prefer to hire a private attorney.
      • Start setting aside money from paychecks to allocate to DUI expenses.
      • Talk to family members about assisting you during this time, if they are able to contribute.

A DUI can be challenging, but you can hit it head on by being proactive.  Don’t give up or panic.  Find an attorney who may be able to assist you in beating the charge.  Take immediate action to defend yourself and your right to drive. Prepare financially to put yourself in the best position to succeed in making the most of a tough situation.

 

3 Things to Know About the Discovery Process for a Divorce Case

If you are going through a divorce, you may hear terms that you don’t understand.  One of the terms that is heard often is “discovery.”  This article will explain the basics of discovery – what is discovery, what types of methods, and what types of information are produced– so that you can understand the procedures and terms that will be used in your divorce.  

1. What is discovery?

  • In legal cases, both parties need information.
  • The process for obtaining this information is called “discovery.”  
  • One question clients often ask is whether you can hide information or lie about it or say that it’s too private to disclose?  
    • In general spouses are under obligation to make a full and accurate disclosure and failure to do so can result in a Motion to Compel and ultimately sanctions.  However, your attorney is in the best position to assists you in properly responding in the discovery process.

2. What are the different means of discovery?  Here is a sample of some of the most used methods of obtaining information in the discovery process for a divorce case:

  • Depositions – interviews with parties or non-parties.
  • Interrogatories – written questions to the other party.
  • Requests for Admission – similar to an interrogatory because it is in writing, but with these you are not asking for information, you are asking for it to be admitted (i.e. confirmed or ratified).
  • Inspection Demand – where a party wants an opportunity to review certain documents or things.
  • Request for an Income and Expense Declaration. If support has been ordered (child, family or spousal support), then one party can use this to obtain production of a current income and expense declaration and income tax returns.

3. What types of information are typically discoverable in a divorce case?  The range of information that can be gleaned from discovery is very large.  In general, it covers any unprivileged information that is relevant to the case. In layman’s terms, it’s relevant if it could be admitted as evidence in the case or if it could lead to relevant evidence in the case.  Here are a few examples of the types of information that could be requested in discovery:

    • Employee payroll information – since this is important to proper division of community property and to determine child support and spousal report, this information is typically part of the discovery process.
    • Business Records or tax returns — If one of the parties has a business, then the information about the value of the business and its assets will be important to determine.
    • Information about where the child is – If one parent does not know the whereabouts of one or all of the children, this information can be obtained in discovery.
    • Domestic violence convictions – This type of conviction impacts the safety of the child.  Often one parent is aware of the history of child abuse or domestic violence of the other parent, but if not, this information could be found out through discovery.

 

How to Know If You Have Chosen the Right Family Lawyer

You are getting a divorce. Or perhaps you have happy news, and you are adopting a child. It can be liberating, overwhelming, stressful, or exciting or all of the above.  No matter how your family is changing or how you feel about it, the most important action you can take to ensure that it goes as smoothly as possible is to find the right lawyer.

1. Experience. Experience. Experience.  If you don’t have someone with experience, you have the wrong attorney.

  • Education is not the same as experience, so it almost goes without saying that your attorney is not fresh out of law school and working on his or her first family law case.
  • Ask your attorney how many family law cases he or she has handled.  A
  • Ask about the outcomes of your attorney’s previous cases.
  • Ask how comfortable your attorney is with hearings, in the court room, and in your jurisdiction.
  • Don’t just be satisfied with surface answers but really dig to make sure that your lawyer is knowledgeable, confident, and accomplished.

2. Find the Lawyer that Fits Your Style.

  • You know your situation and your personal preferences better than anyone else, so find the lawyer that is a good fit for you.  Here are some types to look for:
    • The Bulldog” – some attorneys are extremely brash and aggressive. This might be the type of person you need if you have a bully for a spouse in a divorce or if there are issues that will be hotly contested.
    • The Negotiator”– some attorneys are excellent at finding the win-win for all parties and for the family, and they can be effective in selling solutions even to an adversarial spouse.
    • The Researcher” – some family law cases involve assets that are complex.  Perhaps a you own a business together, perhaps some of your assets are also owned with other family members or in-laws. If you know that your assets are complicated, you want an attorney with the patience and finesse to handle that type of case.
    • The Problem-Solver” – some families face unique problems – care for a special needs family member for example or perhaps a parent’s job that places unusual hurdles that make the case atypical.  If you see that your divorce falls in this category, you want to find an attorney who can think outside the box and who isn’t just trying to fit you into one of a few typical scenarios.

3. Make sure Your Attorney Is Within Your Budget.

  • You can expect a family law case – whether divorce or adoption — to put a strain on your finances, even if you have a fairly large family budget because it is an out of the ordinary expense.
  • Ask your attorney how he or she anticipates your case will go.
  • Don’t be afraid to push for an estimate on costs.
  • Find out how you will be billed and who will work on your case.
  • Inquire about the most cost-effective means of communication with your attorney and his or her staff – i.e. emails, calls, texts, etc.

 

 

5 Secrets to a Successful DUI Defense

If you are facing a DUI charge, the most important step is not to give up.  The government has the burden to prove its case against you, and there is hope for a good resolution.  This article will give you the 5 most important secrets to preparing your DUI defense.

1. Request an administrative hearing with the DMV regarding your Driver’s License within 10 days.

  • What is this hearing? – You only have 10 days from the date of arrest to request a hearing at the DMV office.  The formal name is Driver Safety Administrative Per Se “APS” Hearing.   
  • What happens if I do request it? – A DMV hearing officer (not a judge) presides over this hearing.  This officer cannot fine you or send you jail.  The sole issue is whether or not your driver’s license should be suspended.  
  • What happens if I don’t request it? – If you don’t request a hearing, the default is that your license will be suspended 30 days from your arrest.

2. Get an attorney that has experience in DUI cases.

  • Attorneys are not “one size fits all.”  There are many different areas in which attorneys specialize.  They also greatly range in experience and competence.
  • Look for an attorney who focuses on criminal law and who has experience.
  • Find an attorney who regularly practices in the court where you will appear so that your lawyer will know the judge and the prosecutor well or at least have been in front of them before.

3. Use the DMV Hearing to Learn More about the Case Against You.

  • Bring an attorney and gather information.  You have the right to be represented by an attorney at the DMV hearing, and it provides a good opportunity for you and your attorney to find out information because you can do the following:
    • Hear the evidence against you
    • Subpoena witnesses (such as the arresting officer)
    • Present testimony of witnesses (such as a passenger who was with you)
    • Cross-examine witnesses
    • Testify yourself.

4. Consider a Motion to Suppress Evidence

  • A Motion to Suppress is basically a document that requests that the Judge disallow certain evidence against you on the basis that it was illegally obtained.  
  • This Motion could be challenging the reason for the traffic stop, the questioning conducted by a police officer, etc.
  • A Motion to Suppress is very fact-specific based on your particular case, so be sure to consult with your attorney on whether this Motion would be effective in your case.

5. Consider a Plea Bargain.

  • Although some Defendants relish their “day in court,” there are instances where a plea bargain may be a safer bet given the evidence against you.
  • Like the Motion to Suppress, the decision on whether a plea bargain is right for you is very individual to your specific case.  You will need to consult with your attorney, but keep your mind open to a plea bargain because sometimes the best defense is when your attorney negotiates an advantageous bargain for you.

 

 

Criminal Court 101:  Basic Fundamentals of Criminal Court

If you have been charged with a crime in California for the first time, you probably have a lot of questions.  This article will help you understand the basic rules for the criminal court system.

What is the difference between criminal court and civil court?  

  • Criminal court – criminal charges are brought by either the federal government, state government, or city against you with the allegation that you have violated a law. If the defendant is found guilty, the judge can impose a sentence that includes fines, jail/prison, or other restrictions or requirements.
  • Civil court – this occurs when one party (for example, a person, business or organization) has a claim against another party and requests the court to decide the question.  A person will not go to jail or prison for a civil case.

What types of criminal offenses are there?  

  • Infractions – this is the lower violation in terms of seriousness, and it is something like a traffic violation.  The punishment is usually a fine.
  • Misdemeanors – this is more serious than an infraction. The jail time can be 6 months or a year and the fine can be up to $1000 typically.
  • Examples include DUI, petty theft, vandalism
  • Felonies – these are the most serious.  Punishments can include fines, jail, prison, or even the death penalty in very rare cases.

What is the difference between the state system and the federal system?  

  • Type of crime – there are federal laws and state laws, but in some cases, one crime could qualify as either federal or state.  
  • Procedures – there are different procedures in the federal system vs. the state system, for example in the procedures for charging a defendant and for sentencing
  • Courtroom/judges – the courtroom and judges are different for federal vs. state

Do I need an attorney?

  • You have a right to represent yourself, so you are not required to have an attorney.
  • An attorney is trained in the rules and procedures of the court, and typically that information will be advantageous to your case.
  • Conventional wisdom is that there are advantages to having someone represent you besides just the knowledge.  Most attorneys, if they are charged with a serious offense, will even hire someone to represent them.  A person who is outside the situation is often less emotionally invested and has the impartiality to see angles and arguments that someone who is under the stress of the case may not be able to discern as easily.

4 Things You Didn’t Know About Shoplifting and Theft In California

If you have been charged with a crime in the theft category, you may have some questions about shoplifting or theft.  This article addresses some common questions.

Is it a crime if you didn’t leave the store?  Yes it can be. You can still be convicted of a crime, if you took something but didn’t leave the store.  If you look at the elements below, you will notice that the prosecutor doesn’t have to prove that you moved the item out of the store.  Still, the prosecutor must prove that you had intent, so that’s one area that can be attacked in the prosecution’s case if, for example, you intended to pay for the item but put it in a pocket or a purse without thinking.

What does the prosecution have to prove to convict me of petty theft?  The summary below will show you the general  elements of petty theft:  

  • taking possession of property owned by someone else
  • without the owner’s consent
  • with the intent to remove it from the owner’s possession
  • moving it, and keep it for a period of time
  • value of property is $950 or less.

What does the prosecution have to prove to convict me of shoplifting?  The summary below will show you the general  elements of petty theft:  

  • entering a commercial establishment (for example, a store)
  • while the establishment is open during regular business hours
  • with the intent to steal items worth less than $950

How can you fight a theft charge?  

  • Lack of intent – You can show that you had no intent to steal the item.  For example, if you purchased many expensive items and forgot to pay for the milk that was at the bottom of the cart, then those factors would indicate that not paying for the milk was an oversight rather than an intentional taking.   
  • Accident/Mistake– This defense also attacks the intent element by showing that you were unaware of the item or that it was a mistake.  For example, if a child or friend put the item in your pocket without your knowledge, you could claim that it was a mistake.  Or, if you thought the item had been previously purchased by a family member or friend, then that could show a valid accident or mistake.
  • Belief the property belonged to you – This defense is also a subset of lack of intent and can be used when you believed that the property was yours and not someone else’s property.
  • Consent from the owner – If the owner said or did something that made you believe that they consented to your use or taking of the property, then this is also a defense.

 

 

5 Things You Should Know About Domestic Violence

If you are facing domestic violence charges or if you are a victim or a witness in a domestic violence case, you may have some basic questions.  

Can the victim “drop the charges”?  No, in a criminal case the victim is not the person bringing the charges.  In a civil suit, the plaintiff can choose to dismiss the case.  In a criminal case, the charges are brought by prosecutor, and the judge has the power to dismiss the case. The prosecutor has to have enough evidence to be able to convict the defendant, so the victim’s testimony may have an impact on the prosecutor’s ability to convict.  However, in many domestic violence cases, the prosecution has pictures, statements from the victim which may be admissible due to the particular circumstances, or other types of evidence that can be used in spite of a victim’s reluctance.      

Do the defendant and the victim have to be married for the crime to count as domestic violence?  No, the defendant and the victim just have to be in an intimate relationship (which includes but is not limited to marriage).  For example, domestic partners, currently or previously dating, living or lived together, have a child together can all qualify as an intimate relationship for a domestic violence charge.

Is domestic violence a felony or a misdemeanor level crime?  Each case is unique and the prosecutor determines the charges.  There are multiple different types of specific crimes relating to domestic violence.  In general, the extent of injury involved is one factor the prosecutor uses in determining how to charge, and the second factor is previous criminal convictions.  

Are there any possible defenses to a domestic violence charge? Yes, there are many potential defenses, and you should seek legal advice on the facts of your specific case. Self-defense is one common defense, where the defendant claims that he/she reasonably perceived an imminent threat, had a proportional response and was not the initial aggressor.  False allegations for manipulating child custody or divorce proceedings.  Here, the defendant shows that the witness has a motive to lie about facts, and did in fact lie about them.  Another tactic for winning these types of cases is to attack the level of proof presented.  The prosecutor must prove the crime beyond reasonable doubt and many domestic violence cases leave room for significant doubt about what was said and done. Another common defense is to show that the conduct was not willful, in the instances where a true accident occurred.

Is a domestic violence allegation a big deal? Yes, it can be, and it’s likely that you are going to want to hire an attorney to vigorously defend you.  Fines can be up to $6,000, and on rare occasions with enhancements even higher.  Penalties can include up to a year of jail for misdemeanors and several years for felonies.  Convictions can have consequences for your career as well, so it’s important to take a domestic violence allegation seriously.

 

Criminal Law Basics:  How Does the Criminal Law System Work?

If you are facing a criminal charge, you may be wondering how the criminal law system works.  This article will walk you through the main steps in a typical criminal case.  

  1. Arrest and Jail.  The typical start of a criminal case is the arrest by the police.  

From there, there are three main scenarios:  

1) the defendant can be released from jail if the prosecutor decides to drop the case,

2)  the defendant posts bail/bond, and is released with the promise to appear,

3) the defendant stays in jail.

Charging.  The police write a report.  The prosecutor reviews the report and has discretion to decide whether or not to file charges and which ones. Charges are typically filed within 48 hours of the arrest if the defendant is in custody.  

Arraignment.  This is the defendant’s first appearance in court to find out what the charges are and to enter a plea, which is very often “Not Guilty.”  Even if you think you are guilty, it is often advisable to enter a “Not Guilty” plea at this stage of the process.  After the plea is entered, the judge will either release the defendant on his or her own recognizance, or set bail for the defendant’s release, or require that he or she stay in jail.

Pre-trial. In the interim before the trial, there can be additional hearings.  For example, in felony cases, a preliminary hearing is held, where the judge makes sure that there is enough evidence for the case to continue.  In some cases, the defendant will concede that sufficient evidence exists, and waive the preliminary hearing.  This pre-trial time is the time for discovery, which is when the prosecution and defense can exchange documents.  During this time, the defense attorney will research the facts in more detail.  Motions can also be filed.  For example, a Motion to Suppress alleges that evidence should not be admitted (or heard by the jury), because the defendant’s rights were violated in the process of getting that evidence.

Trial.  A defendant is presumed innocent, so the purpose of the trial is for the prosecution to present the evidence that shows beyond reasonable doubt that the defendant committed the crime.  Each crime has specific elements that the prosecution must prove.  The trial must occur within a certain time period of the Arraignment.

Appeals.  If the verdict is guilty, the defendant may have the right to appeal.  The appeal must be filed within a certain time period, so a defendant should consult with his or her attorney immediately if an appeal is desired.

Sentencing.  If the verdict is guilty and an appeal is not sought, the next step is sentencing, where the judge imposes the punishment, which is typically involves fines, counseling, incarceration in jail or prison.  

3 Most Common Financial Questions When Hiring a Divorce Attorney

It has been said that there are no right answers to the wrong questions, so the first step in making your divorce process work for you financially is to ask the right questions.  This article will outline a few of the most important financial questions when hiring a divorce attorney.

1. What is the structure of the fee agreement?

Your lawyer should have you sign a fee agreement that lays out how you will be billed.  Understanding this agreement is extremely important.

Ask about the retainer.  The retainer is like a down payment that you pay up front, and it will be used to cover the fees as your case progresses.  

Ask whether you will be billed hourly or flat fee.  If you are billed hourly, then you will obviously be billed for the attorney’s time, but what isn’t obvious is how this can add up and how you can work with your attorney to keep costs down.  

Ask about who will work on your case, and how you will be billed for each attorney or staff member’s time.  Find out how much you will billed for the paralegal or other support staff.  If you want only a particular person or group to work on your case, you need to put that into the agreement because otherwise the default is that firms may utilize various people to work on your case and you may be paying to re-educate one attorney about issues another one has covered.

2. What kind of cost estimates can be anticipated?

Your attorney will very likely be unwilling to get pinned down to a definitive cost estimate of the overall divorce because your ex-spouse is a wild card that can lead to lower or higher costs depending on what they decide to do.  However, if you push for specific answers to smaller questions, you may be able to get a reasonable understanding of the costs that will be involved.

Does your attorney anticipate fees from any other professionals?  What are the typical ranges for these people– i.e. counselors, investigators, accountants, appraisers, etc?

What has been your attorney’s experience in terms of costs in prior cases that he or she has handled?  For example, you can ask about cases where the spouse was cooperative and where the spouse was uncooperative, where custody was an issue, where certain types of assets were involved, etc.

3. How can I keep costs down?

You are the person who will be in touch with your attorney the most.  Find out your attorney’s preferences and how to save his or her time.  

Find out whether your attorney feels that it will be more cost effective to communicate with him or her via email, text, calls or in person.  Focus on the most cost-effective ways of working together. 

Find out what kind of document organizations works best for your attorney.  If you make sure that any documentary evidence you have is assembled and summarized in an organized manner then you will save your attorney time and therefore save yourself money.

Are there things you can do yourself to save attorney time?  You may want to find out if there are tasks relating to your case that your attorney can delegate to you to save on cost. Your attorney may have staff set up to do non-legal tasks, but it never hurts to ask whether there are things you can do to keep costs down. 

You can expect that your divorce will have a significant financial effect on you, your ex-spouse, and your children.  Don’t be afraid to ask questions about the process and educate yourself on how you will be billed, what you can anticipate, and how you can minimize the impact to your financial bottom line. 

What to Do If You Have Already Hired a BAD Attorney

The person representing you is vital to your case, but sometimes your initial decision was the wrong move.  What do you do now?  The next step is a decision only you can make, but this article will walk you through sound reasoning that will assist you in making the right choice.  Know that you are not alone.  If you are questioning whether you need to hire someone else, don’t hesitate to set up a consultation with the attorney you have in mind as a replacement and get his or her opinion on the situation.  

Is your attorney making mistakes that are prejudicing your case? – Is your attorney doing things or NOT doing things that are going impact you long-term and hurt you in some way?  Serious mistakes on your attorney’s part can affect you forever.  Here are some of the serious ones to watch out for:

  • Missing deadlines for filing motions.
  • Forgetting court appearances.
  • Completely ignoring communications with you.
  • Not having sufficient knowledge or experience to adequately represent you.
  • Being dishonest or encouraging you to make misrepresentations to the court either verbally or in writing.

Possible courses of actions with prejudicial mistakes:

  • Terminate your relationship with your attorney and find alternative representation.
  • In some cases, it may be appropriate to ask for a reduction or refund on your fees.
    • If the attorney’s mistakes are particularly egregious, you may feel it is appropriate to report those to the Bar of the State you live in.  
    • If the attorney you are dissatisfied with is a public defender and not someone you have hired, you can request a different attorney or represent yourself.  Be prepared to share with the judge the exact reasons why you are dissatisfied because a bare assertion that the attorney isn’t doing a good job will probably not be specific or factual enough to sway the judge to your point of view.

Are you dissatisfied with your attorney for reasons that may be fixable with communication? – Is your attorney doing things that annoy, bother or frustrate you?  

  • You don’t feel respected by your attorney.
  • You don’t feel that your attorney has thoroughly evaluated the information or evidence you or others have provided.
  • You don’t feel your attorney has the right tone with a judge/opposing counsel/prosecutor, and you would like a different tone?  (i.e. more or less adversarial, more confident, etc.)

Possible courses of actions where you feel the problems may be fixable with communication:  

  • Many attorneys respond to facts.  Give specific examples of what is bothering you and recommendations on what you feel would be an appropriate resolution.
  • In some cases, it may be appropriate for you to request a partial refund on your bill.
  • Many attorneys appreciate organized, written communications.  Summarize your concerns with your attorney’s performance in writing.  Not only does this step help the attorney understand you, but it can also document the problems.

You deserve to have an attorney that you feel confident in and who represents you well.  The practice of law is a service business where you are the client, so take charge of the relationship.  Work it out if you can or find someone different, but don’t sit back without making informed and thoughtful decisions about your future.