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If you or a loved one needs help sealing a record after an arrest but not a conviction give us a call.  As a former probation officer district attorney and attorney with more than 15 years of criminal defense experience I can help you with this process.  

If you have been convicted or have pled guilty to a crime the sealing of records is not the process for you.  That would be the expungement process which is a completely different process in the law. 

There have been many changes to the law in the last several years in the state of California regarding arrest that did not lead to a conviction and the effect of that.  The sealing process I will explain below deals with the arrest but not conviction and public rather than Law Enforcement uses.  It should be stated that law enforcement will always be able to see your arrest even if the law enforcmement agency did not file charges or charges were dismissed. 

Below I will go through the old law and the changes and the processs to get your record sealed. 

OLD LAW

The way the law stood in the past was that if you were arrested and not convicted or no charges were filed you would have to file a 851.8 motion get a court date and convince a Judge you were "factually innocent" of the charges.  Then the record could be sealed the burden was on you and you would have to show the statute has run out that you were factually innocent and then the public record of the case would be sealed and that means that even if you were completely innnocent of the crime there would permanently be a record of this crime that people could see including potential employers, apartment rental agencies etc.  

CHANGES TO THE LAW 851.87

Penal Code section 851.87  gives people the right to have an arrest record sealed as long as there arrest did not result in conviction.  This means an arrest did not end in a conviction under the following circumstances. 

No charges were filed

Charges were filed but later dismissed

Charges were filed but the defendant weas acquitted (found not guilty) at trial

The defendant was convicted but the conviction was later vacated or reversed on appeal

Charges were dismissed after the defendant succesffully completed a pretrial diversion program such as drug diversion. 

Under the old law the burden was on the person bringing the motion to prove that they were "factually innocent"  under the new law the burden is on the prosecution to show the person should not be given the relief. 

REASON FOR NOT GRANTING RELIEF

There are exceptions to this new law such as a pattern of domestic violence or if a person is a sex offender, so forth the government has the burden to show the person is not eligible.  Also if you still may be charged with the offense then you may not seek relief under this new law. 

EFFECT OF SEALING

The effect of sealing your record means that the public will no longer be able to view the arrest.  Law Enforcement will still be able to view the arrest and it can be used for certain sentencing matters in later criminal proceedings.  

There is separate legislation that has passed recently dealing with how private individuals such as employers and apartment complexes can use an arrest but not a conviction if you have questions about that you can view the blog that deals with that type of situation.  If you have questions please give us a call and we can get you through this.  559-441-1418.

 

If you are arrested for a DUI  you will have a lot of questions.  As a former deputy district attorney and a criminal defense attorney I can help you through this.  Below I will be going through some of the consequences for a first and second time DUI as well as some of the Reckless driving consequences.  If you have any questions after reading this blog please let us know at 559-441-1418. 

CONSEQUENCES OF PLEA OF GUILTY OF NO CONTEST 23153

First or Second Offense Vehicle Code section 23153, whithin 10 years.  (Vehicle Code 13352, 23554, 23560) 90 days to 1  year in jail $390.00 dollar fine to $5,000.00 fine and a 1 -year, or 3 year license suspension, if granted probation it could be up to 5 years. 

FIRST OFFENSE VEHICLE CODE 23152 

If granted probation 96 hours to 6 months in jail $390.00 to $1,000.00 fine and a 6 months in jail.  If granted probation can be for up to 5 years.  

SECOND OFFENSE VEHICLE CODE SECTION 23152 WITHIN 10 YEARS (VEHICLE CODE 13352, 23540 23542) 

I the following is the minumum and maximum sentence you can recieve for the offense stated above 90 days to 1-year in jail, $390.00 to $1,000.00 dollar fine and a 2 year license suspension If granted probation it could be up to 5 years.  

THIRD OFFENSE VEHICLE CODE SECTION 23152 within 10 years (vehicle Code section 1332 23546, 23542) 

120 days to 1 year in jail $390.00 fine to $1,000.00 fine and a 3 year drivers license revocation.  If granted probation it could be up to 5 years.  

RECKLESS DRIVING REDUCED FROM DRIVING UNDER THE INFLUENCE (VEHICLE CODE 2310.5) 

5 days to 90 days in jail, or a $145.00 to $1,000.00 fine, or both.  If alcohol or drugs are involved this conviction will as a seperated DUI conviction if a committ a subsequent DUI offense whithin 10 years.  

THE DMV PROCESS

The above are the consequences in court there will be further consequences when you are involved with the DMV you should consider that an entirely different court system or the equivelant of another court system.  There could be drivers license consequences as well. 

After you drivers license that the police gave you runs out for example after 30 days.  You will be on a hard revocation period for a first time offense of 30 days.  This is unles you have requested a dmv hearing and then the revocation will take effect after the results of that hearing.  

After that 30 day revocation period you will have to obtain an sr 22 from an insurance agent pay $125.00 and enroll in a dui program to get your license back.  When you get your license back and then you enter a plea you will be on suspended status for a period of up to 4 months but you will be able to drive to and from your dui class and to and from work.  This will enable you to keep employment and to continue to support yourself.  As you can see this is a long process and you will need legal advice throughout this process probably the best thing to do is get legal advice right away befor the process can bog you down and you can make mistakes that could cost you your license and your ability to support yourself.  If again you read this article and need help give us a call we have helped many people in the same circumstances you are in and we can defintely get you  through this tough time in your life and make sure you are represented properly and help you to be able to make a living and continue to help your family. 

If you need a weekend or a night appointment give us a call we have a service that will answere you phone call and put you in touch with me so we can answer some your questions 

559-441-1418

 

 

 

Many times people are arrested for crimes and never even charged more less convicted of the crime.  This could have serious consequences.  The Bail Bondsman will not refund all of your money and sometimes none at all.  The police may have had wrong information and in some cases, may have acted without probable cause. 

WHAT HAPPENS IF I AM ARRESTED AND NOT CHARGED?

This occurs more than you may think.  Many times poeple are arrested and no charges are filed by the District Attorneys Office.  The District Attorneys office is soley responsible for who is charged with most crimes in a particular county.

If this happens you may be confused as to what happened.  Sometimes the District Attorney will give the reports back to the local agency that arrested you and ask for more information.  Other times the District Attorneys office will simply tell you they have made a decision to not file charges against you. 

If this happens you will not be charged for that particular crime and the District Attorneys office does not have to give you specific reasons as to why they are not filing or going fowrard with charges.  Many times they will simply say there is insufficient evidence to proceed.  

DOES THE ARREST STILL SHOW ON MY RECORD?

This is a difficult question in the age of computers where almost everything shows up somewhere.  It used to be that only certain law enforcement agencies had access to what are commonly  referrred to as "rap sheets" or arrest without convictions.  However, now witt live scans and such it seems more people are gaining access to these records which  is problematic

NEW CALIFORNIA LAWS AND CHANGES TO LABOR CODE

 LABOR CODE SECTION 432.7 

LABOR CODE SECTION 432.7 IS AMENDED TO READ AS FOLLOWS:

An  employer whether a public agency or private individual or corporation shall not ask an applicant for employment to disclose through any written form or verbally about an arrest that did not result in a conviction.  This includes his participation in any pre-trial diversion programs. (mental health diversion, or drug diversion where they successfully completed the diversion program.  

WHAT ABOUT EXPUNGEMENTS?

The biggest change is bill 432.7  is the effect of the law on expungements when a crime is expunged the employer can no longer as about this conviction as it has been set aside and not a subject for a potential employer there are a lot of exceptions to this law and an Attorney should be consulted before you fill out job applications and turn them in.  

WHAT ABOUT JUVENILE ADJUDICATIONS?

Juvenile adjudications are not considered convictions in the same way that adult convictions are considered convictions; therefore, they are not considered convictions for the purpose of having to disclose the conviction.  There are some exceptions to this rule and again an Attorney should be consulted regarding your specific legal rights before you make a decision as to whether you should disclose something and nothing in  this article is meant as specific legal advice as to what you should be doing in a specific circumstance with these changes to the labor code it makes it easier for people who have turned there life around to able to gain employement and re enter the workforce if they had a case where they were arrested and not charged or had something that was expunged or a juvenile adjuidication.  If you have any questions about these changes give us a call and we can help you.  

Call us at 559441-1418, and we will walk  you through this. and help you to put this behind you and get the employment that you need.

 

 

If you or a loved one is seeking an expungement give us a  call at 559-441-1418, we can help you with this process.  As a criminal defense attorney with more than 14 years of criminal defense experience I have the experience to help you witth you expungement.  Below I will talk about what effect and expungement has on your record and what an expungement will not do and the process of expungement.  

 

WHAT EFFECT DOES AN EXPUNGEMENT HAVE ON YOUR RECORD?

Many  people believe that after an expungement that nobody will be able to find there record.  This is not correct and any Attorney telling you this is not giving you an accurate statement of the law.  The expungement will not blot out destroy erase or make it so people will not be able to find the record.  

WHAT GOOD IS THE EXPUNGEMENT IF THE RECORD IS NOT DESTROYED?

This is a good point where again there is much misinformation out there.  An Expungment is always a good idea for your record to show that you have complied with the terms of the court and a update on your clets or rap sheet will show that the crime has been expunged.  Meaning the court has dismissed or set aside the criminal conviction.  This willl result in the defendant being able to truthfully state they were not convicted of a crime.  However, that crime may still show up in records or in a fingerprint check. Again the actual file will not be destroyed.  There will remain a court file a case number and maybe even fingerprints.  But again as stated above you may truthfully state you have not been convicted of a crime.  The court file will say set aside or dismissed.  Ways in which the conviction can still be used

 

1. Exunged convictions can still be used as priors and strikes

2. Exunge convictions can still effect your driving privileges

3. Exunged convictions can still restrict your ability to possess a firearm

4. Expungements do not affect sex registry.

WHAT STEPS DO I TAKE TO GET A CONVICTION EXPUNGED?

1.  First we determine if you are eligible for an expungement if you were sentenced to prision you will have to seek a certificate of rehab rather than an expungement. 

2. We have to check is you  have any outstanding misdemeanor or Felony cases.  If you do you will not be granted expungement.  You must wait until those matters are cleared and then seek an expungement. 

3. Also you cannot exunge federal cases in state court. 

4. If you have any outstanding warrants you must first clear those warrants. 

GOING OVER YOUR RECORD

Me or my staff would go over your court records and then make sure there is no innnacuracies or other problems that need to be dealt with before proceeding with the court process. 

We have to make sure we have the correct court name addresses, dates of convictions and so forth if there are innacuracies we need to clear those up to make sure we have an accurate record.  

We will submit the paperwork for the expungement and then get you a court date.  You will need to be present for that court date and we will discuss your case with the Judge and make the appearance for you.  

As you can see this is a sometimes difficult process we have had clients come to us that have attempted this process on there own only to be frustrated and not get the required work done. 

Instead give us a call and we can get you through this process we have helped many people before and we can help you.  Give us a call 559441-1418.

If you or a loved one has been accused of domestic violence give our office a call.  Domestic violence charges are complex and there can be several layers to the cases.  

As a former probation officer, deputy district attorney and somoene that has practiced criminal defense for more than 15 years I have the knowlege to help yo through this.  I have helped many hundreds of people through the same problems.  

WHAT ARE THE DOMESTIC VIOLENCE CHARGES?

Under Penal Code section 273.5 the crime is considered a wobbler which means the offense can be charged as a Felony or a Misdemeanor.  

The elements are virtually the same

THE ELEMENTS OF OF PENAL CODE SECTION 273.5

1. Defendant willfully inflicted corporeal injury on victim.

2. Victim was either 

defendant was either defendant's spouse or former spouse 

person with whom he or she was cohabitating with 

fiance or former fiance or somoene wth whom the offender has, or previously has had an engagement or or dating relationship 

the mother or father of his child 

corporeal injury resulted in traumatic injury. 

There is a another crime which you  may be charged with that is Misdemeanor battery upon a spouse. 

MISDEMEANOR BATTERY UPON A SPOUSE

Defendant committed battery upon the victim 

At the time of the battery, Victim was the defendants spouse or fiance, or an individual with whom the defendant currently had or previously had, a dating relationship.   

This offense is very similiar to the above described crime and both are serious there could be restraining orders, from the court regarding these cases they could also affect your ability to see your children or get custody of your children, and could have a lifetime impact on your ability to own or posses a firearm or buy a firearm. 

AFFECTS ON OWNING A FIREARM.

Under California law if you are convicted of any Felony you cannot own or possess a firearm.  For a non domestic violence felony if your felony is later reduced to a Misdemeanor per penal code section 17b and not through prop 47 you can again possess a firearm. 

However, under Federal law if you are convicted of a Misdemeanor of Felony for domestic violence you can not buy a firearm, in fact when you go to buy a firearm you will blocked during the background from getting the firearm.  This is a lifetime ban and what is worse is that this may even include conditional pleas to misdemeanor domestic violence cases. 

WHAT IS A CONDITIONAL PLEA

A conditional plae is a plea where you plead guilty and then the case is dismissed and a not guilty plea is entered if you meet certain criteria such as completing domestic violence awareness class anger management and such. This may still be a reason for the federal government to keep you from you fireram rights.  

In a different blog article i go through how you can defend yourself from domestic violence charges.  As you can see this is a very complex and difficult area of the law and you should call us a soon as possible after you have been charged or arrested for domestic violence.  Yous should not be talking to police until you have sought legal counsel as to your legal rights and responsibilities. 

If you have questions give us a call at 559 441-1418 and we can get you through this we have helped many people under the same or similiar circumstances in more than 15 years of law and of a helping people througout the state of California.  

If you have charges pending give us a call and it is best not to talk to police until you have spokent to a lawyer.

 

 

If you or a loved on has been accused of this crime the ramifications can be serious.  As a former probation officer and deputy district attorney with more than 15 years of experience representing people accused of crimes I can help you through this.  

 

WHAT IS A BATTERY CRIME?

California law defines battery as any willful and unlawful use of force or violence upon the person of another.  The crime of battery upon a spuse is a different crime and has even more specific ramifications under Penal Code section 243 (e) 1

WHO IS A VICTIM OF DOMESTIC SPOUSAL BATTERY

A current spouse 

a person with whom the defendant is cohabilitation with

A person that is the parent of the defendants child

A former spouse

A fiance

A person with whom the defendant currently has, or has previously had a dating or engagement relationship with

WHAT MUST THE PROSECUTOR PROVE FOR ME TO BE CONVICTED OF SPOUSAL BATTERY 243 E 1

In order for you to be convicted of this crime the following the prosecution must prove the following elements

1. That you willfully and unawfully touched the alleged victim in a harmful or offensive way

And

2. The alleged victim is your current or former spouse your current or former cohibitant your current or former fiance, or someoene you are having a dating relationship.  or someoene you have a child with.

WHAT DOES WILLFULLY MEAN?

Willfully to acti willfully means that you committed the violent act upon someoen on purpose and not by reason of mistake or accident.

COHABITANT

Is an unrelated person to you for a substantial period of time.  The following factors apply as to wether there is a cohabitant relationship.

whether there was a sexual relationhsip

whether there was shared income or expenses

whether you consider yourselves spouses or romantic partners or 

the length or continuity of the relationship. 

SENTENCING AND PUNISHMENT FOR SPOUSAL BATTERY CHARGES - CALIFORNIA PENAL CODE 243E 1

If you are convicted of charges you can recive 364 days in jail and face a fine of up to $2,000.00

you must participate in a batterers treatment program

and may lose your rights to buy a firearm for life under federal law. 

WHAT ARE SOME OF THE DEFENSES TO THIS CRIME?

SELF DEFENSE- if you are protecting yourself or someone els than this may be a defense to the crime.

FALSE ALLEGATION- if you did not willfully or unlawfully touch another person in a harmful or offensive nature than that is a defense to this charge.   

INSUFFICIENT EVIDENCE- If there is insufficient evidence to convict you of the crime beyond all reasonable doubt than this is a defense  to the crime of spousal battery.  If ther is no physical evidence of the harmful or offensive touching ever happening than this is a defense to the crime.  Many times proseuctors will be looking for specfiic things to help them in prosecuting these types of cases. 

Are there physical injuries is there picutures of the injuries? is there independent witnesses to the alllged act

is there a taped statement from the alleged victim did the alleged victim make a statement on police body cams that may be used a evidence. 

 

These are all the questions that a prosecutor will be looking into to determine if they will prosecute or turn down the case or refer the case for further evidence.  

These cases can be complex and confusing and these are only part of the issues you will be dealing with in a case like this it is imperative to call an experienced Attorney as soon as possible so that you can get solid legal advice give us a call 559-441-1418

 

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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