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If you have been accused of a crime you should seek legal representation as soon as possible.  Many people come to my office and are unaware of where they are exactly in the legal system.  

Most of the time in California Courts at least you have the case negotiation, before the preliminary hearing and if the case settles than there is no need for a preliminary hearing. 

However, there is many different exceptions to that rule.  Many times there I have revcieved offers in the middle of a preliminary hearing.  And immediately after the preliminary hearing that are better than the last offer given depending on the circumstances and how things went during the preliminary hearing. 

WHAT IS A PRELIMINARY HEARING

A preliminary hearing is a probable cause determination.  Simetimes you will hear a Judge say reaonable probability to believe a crime was committed and this person committed the crime.  

This is inocmprehensible and basically means that there is probable cause to hold the defendant over for trial.  This means that the case will not be dismissed by the Judge. 

If the Judge dismisses the case the proseuction can refill one time and bring more evidence.  Or the prosecution can choose to bring the case to a grand jury for a determination of probable cause.  If the defendant loses he can bring what is called a 995 motion to have the decision of probable cause reavaluated by the same Judge that made the original determination.  This is often the case some Attorneys rarely file the 995 motions but some are granted. 

If you are doing a motion to suprress they must be heard befor the prelim usually scheduled on the same day.  You cannot argue the validity of a search during a prelim instead you should file the motion to suppress before the hearing. 

If you lose the motion to suppress you can file a appeal on just the issues pertaining to the motion to suppress.  

If you have any further questions you can give us a call at 559 441 1418. 

There are several changes that prop 64 made to the penalties for possession of Marijuana.  Most of these changes deal with adults, but also affect minors.  Or people under the age of 21.  

POSSESSION OF LESS THAN 28.5 GRAMS OF MARIJUANA

Over the age of 21 it is legal to posssess under 28.5 grams of marijuana.

if you are ages 18-20. It is an infraction with a $100.00 fine. 

if you are 18 than it is a misdemeanor max 6 months in jail and a $500.00 fine. 

POSSESSION OF CONCENTRATED CANNIBAS

Up to 8 grams is legal; more than 8 grams is a misdemeanor (max 6 months in jail and or $500.00 fine.) 

18 to 20 under 4 grams is an infraction with $100.00 fine ; more than 4 grams is a misdemeanor (max 6 months in jail and or $500.00 fine.) 

POSSESSION ON SCHOOL GROUNDS

1ST Offense misdemeanor max $250.00 fine.

2nd offense or subsequent offense misdemeanor max 10 days in jail and or $500.00 fine.

POSSESSION WITH INTENT TO SALE MARIJUANA 11359 

Misdemeanor max 6 month jail $500.00 fine.

if amount was under 28.5 grams and intent was to share, not sell it is legal per health and safety code section 11362.1

there is no charge for giving away marijuana to a person over the age of 21. 

 

 

 

 

Many pepple call my office confused about the difference between misdemeanor and Felony probation and the diffference between misdemeanor and felonies.  There is a big difference.  That is why you should call our office and get guidance if you have been arrested or are facing criminal charges. 

 

MISDEMEANOR PROBATION

When you are placed on misdemeanor probation you are placed on informal probation.  This term is sometimes misconstrued by people on probation.  People on Misdemeanor probation will sometimes believe that they are really not on probation because it is stated informal probation, or that they cannot be subject to search and seizure.  

This is incorrect you may still have subject to search and seizure and have a probation officer.  It is rare but may happen especially in misdemeanor domestic vioelence cases.

Also, you  can if the case is a misdemeanor domestic violence case have a preclusion against owning or possessing firearms.  

WHAT HAPPENS WHEN YOU VIOLATE MISDEMEANOR PROBATION?

Depending on several factors you could be taken into custody, ordered to restart your probation and several other options if you violate your probation. Because it is misdemeanor probtion you cannot go to state prison for violating your probation, however, you could do local jail time.  

FELONY PROBATION

Felony probation is the more serious form of probation.  You will be on formal probation, and probably have a  probation officer.  At the least you will have to mail in reports and probably in most cases have drug or alcoohol terms stating you cannot use alchol or drugs and you will be tested for compliance. 

WHAT HAPPENS WHEN YOU VIOLATE FELONY PROBATION?

If you  violate your felony probation the consequences could be much more sever for you.  You could go to prison for the term for the underlying offense.  For example if you are on probation for a residential burglary the sentencing trial is 2, 4 or 6 years.  This means you could get any of those three terms.  You could be ordered to restart your probation, and spend time in local jail.  This all depends on several factors including how many violations of probation you have and the severity of those violations.  

 

If you are facing probation give our office a call and we can help you. 

If you find out you are being investigated for a crime, you need to seek representation as soon as possible.  Every  criminal case begins with a criminal investigation.  Sometimes those investigations are short and sometimes they are long and involved investigations. 

Many times you will not know that you are being investigated for any crimes when you are finally arrested you realize that the investigation had been going on for quite some time, and you never knew you were the target of an investigation. 

Law Enforcement may ask you to cooperate in the investigation or question you regarding the investigation.  it is important to have a criminal defense attorney any time you are dealing with law enforcement in any way, even if it is before you have been contacted by law enforcement. 

 

Police investigations can be conducted by many different law enforcement agencies, Sheriffs Department, Police Departments, or State and Federal Agencies.  And once Law Enforcement contacts you, you should contact an Attorney to determine your rights. 

Police are trained to make arrest and put people in jail they are not advocates for you or your best interest.  

DO I NEED AN ATTORNEY DURING THE INVESTIGATION?

Yes, I have heard Defense Attorneys sometimes tell people well call me once charges are filed and I can help you.  Do not listen to this advice, it is wrongheaded and simply poor legal advice that could seriously hurt your chances of keeping your freedom.  The legal system is a vast complicated system with many different angles.  As stated above the police are not your Attorneys and do not have your best interest in mind.  It is simply not there job to be  your Attorney it is there job to put people in jail  Therefore, you need an Attorney that is experienced and has dealt with those kind of cased before.  So if you find out that you are being investigated give our office a call as soon as possible. 

Many times there is much confusion as to time waivers in court, and exactly what they mean.  Many times you will hear Attorneys in court that will ask for a time waiver or a general time waiver.  Some defendants think that they are somehow waiving time credits.  

ARREST

After an arrest you must be arraigned within 48 hours or released from custody.  That is generally because there could be some other hold, i.e. parole hold, violation of probation hold etc. that is keeping you in custody.  There is different time limits if you are out of custody.  

PRELIMINARY HEARING

After arraignmnent you have a right to a preliminary hearing within 10 days of arraignmnet and the court must find good cause to continue past that date.  You can even enter a specific time waiver for example waive the 10 days plus 5 more days.  This could enable your Attorney to have more time to work on the case and still keep a time waiver in place. 

Many times specifically on complicated cases a  general time waiver will be entered.  This enables the Attorney to get things done without the time waiver running out.  

TRIAL 

After a preliminary hearing the defendant has the right to a trial within 60 days of the indictment or information, or if the District Attorney has dismissed and refiled the case.  Generally, the District Attorney can dismiss and refile a case one time. 

Usually after a prelimary hearing you will be arraigned at what is called an HTA arraignment. This means that from that court date wich occurs 15 days after a holding order in a preliminary hearing you will have a right to a trial whithin 60 days.  If you enter a general time waiver, then revoke the waiver, the trial will be set whitin 60 days of that date. 

You should listen to your Attorney as to when and when not to enter into a time waiver.  Many times cases are complex and can take time.  Even locating potential witnesses can be very time consuming and difficult.  

If you have any questions give us a call and we will help you out. 559441-1418.

 

If you or a  loved one has been accused of domestic violence it is imperative that you get counsel as soon as possible.  In some of my other blog post I have given the reasons why securing counsel immidiately can help your case.  When accused of domestic violence many people ask what are some of the defenses they may have to the charge.  

I will discuss some of the most common defenses to domestic violence.  

You can disprove the charge at trial or to the Deputy District Attorney handling the case.

Factual Contradiction The accusers facts contradict each other

Self Defense you were defending yourself from attack

Defense of Others you were defending someoen else from attack and were not the initial aggressor.

Accidental injury the injuries sustained by the victim were an accident. 

False Accusation the accusation is not based in truth and the alleged victim made up either all or part of the story

Mistaken identification

If you are accused of Domestic Violence you could be in for a long tough road.  There are many false claims, false restraining orders, and the scales of justice are tipped in the favor of accuser.  I have seen even the most ludicrous claims get past the point of preliminary hearing.  Even to the point of the victim actually admittting that she made the story up.  The prosecution will sometimes attempt to get an expert say that many cases involve recanting and still go forward.  

 

HOWEVER, you must defend yourself in this system and fight back and you need experienced representation for the fight.  You need someone that has tried cases and did prelimary hearings in the domestic violence system.  As stated above the domestic violence system is vastly different than the non domestic violence system.  In fact, if you as a citzen were to complain of a battery using the facts that are present in most domestic violence cases, the case would not be filed by the court.  

There could be several reasons whey the accuser is making a false accusation. 

the accuser likes playing the victim role

revenge

a divorce settlement

the accuser wants custody of the kids.

I have seen all of these play out in court and they can all be very scary processes.  If you have been acccused of domestic violence you need to uncover these possible motives and have the case properly investigated for possible defenses.  Just hoping the accuser will calm down is not legal advice and will not improve your situation in most instances. 

If you are in this situation please give us a call and we can help you.  559441-1418.

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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