Criminal Evidentiary Issues That a Los Angeles Criminal Defense Attorney Faces

In the American judicial system, evidence is the essence of how the defense and prosecution attempt to argue their case in criminal court. Both sides also seek to discredit and suppress the evidence submitted by the other, giving rise to several potential evidentiary issues that form an entire field of criminal law. A Los Angeles criminal defense attorney that is an expert in evidence law at the federal, state, and local level will be significantly better at building the strongest case for the client and weakening the opposing counsel’s case at the same time.

Because evidence is such a central issue to criminal law, the field of issues that can be discussed is nearly insurmountable. It takes law students multiple semesters to learn the basics of evidence law. However, there are a few key issues that people concerned for their own criminal defense should understand. The first is that one of the best ways for a criminal defense attorney in Los Angeles to help the client’s case is by filing a successful motion to suppress evidence. If evidence is collected incorrectly or its collection was made possible by an illegal or unconstitutional act, and this can be proven, the judge can be convinced to suppress the evidence. That means it won’t enter into the case and the criminal jury will never see or hear it. Of course, many lawyers will try to get evidence suppressed even when the arguments for doing so are weak, and this is a viable strategy for the defense and sometimes for the prosecution. But as far as understanding what is important to remember and explain to your lawyer, the reasons why evidence should be inadmissible are more relevant.

Any police action that wasn’t based on due process or probable cause and any evidence collected during that action or any action that follows should be inadmissible. This relates to any number of things. For example, if a police officer pulls a person over and that driver can prove, such as with a police car’s onboard video camera, that there was absolutely no good reason why the officer should have been suspicious, that demonstrates the absence of probably cause. If the officer then sees drugs on the back seat of the car, searches the car based on that fact and discovers any other punishable crimes, all of that evidence should be inadmissible. This is an example of a lack of probable cause, as well as of the police officer failing to satisfy due process and unknowingly committing an illegal search and seizure.

There are a number of ways that due process, probable cause, and search and seizure laws can be violated. This is why, for the sake of taking advantage of common evidentiary issues in criminal trials, it is so important for the client to go over absolutely every detail of the events leading up to the arrest with counsel. Likewise, it is important to be sure that the Los Angeles criminal defense attorney goes to every length to investigate all the details from the police officers’ end to check for mistakes that could result in evidence being inadmissible.

 Drug Treatment Can Replace Prison Time with a California Criminal Lawyer

As any California criminal lawyer will tell you, it is difficult to categorically say whether or not drug treatment can be used as an alternative sentence to prison time. Suspending a prison sentence in favor of rehabilitation, such as drug treatment for a drug offense or alcohol treatment for a DUI, is often within the judge/s sentencing discretion. This is especially the case when the crime charged is a misdemeanor, known sometimes as a “wobbler,”charged as a felony that could be reduced to a misdemeanor. However, several drug-related crimes are straight felonies in California, which complicates the judge’s ability to issue alternative sentences.

In California, proposition 36, called the Substance Abuse and Crime Prevention Act, sets out the ways that defendants convicted of non-violent drug offenses can qualify for a probationary sentence instead of prison time. Prop. 36, which were passed in 2000, are only available to those convicted of some non-violent drug possession crimes. So straight felony drug convictions such as possessing cocaine, heroin, or opiates, cultivation of marijuana, and sales or transportation related drug crimes are immediately not eligible. Similarly, California penal code stipulates that anyone with an incarceration in the last five years, anyone also found guilty of a non-drug related crime at the same time, any defendant who refuses treatment, or anyone who already has two separate drug convictions or participated in Prop. 36 twice already are ineligible for Proposition 36.

So barring these circumstances, you have the option of using drug treatment as an alternative to jail or prison time. But this still depends on what your California criminal lawyer can work out with the prosecution and the judge. Assuming you do qualify, most judges in California tend to prioritize treatment and rehabilitation over jail time and are very amenable to suspending an incarceration sentence if the defendant seems to be in the right state of mind and his or her lawyer makes a strong case that it was an isolated event.

If you are approved for Prop. 36 treatments, several restrictions are set and if you fail to meet any the agreed-upon requirements, your suspended sentence can be reinstated. You will have to return to court upon failing to complete, and the judge will decide how to deal with a new sentence.

Along the same lines, it is sometimes possible to have a felony conviction reduced to a misdemeanor, which carries several benefits for the defendant. It is important to discuss this and all other options with your California criminal lawyer before beginning any course of action, as sometimes one will preclude the others. However, regardless of which alternate paths you opt for, qualifying for a reduced sentence in lieu of jail time can be a life-saving opportunity.

How to Press Domestic Abuse Charges Using a Los Angeles Criminal Defense Lawyer

If you have been the victim domestic violence and want to press charges against your abuser but are afraid to do so, the first step you need to take is to reach out to a Los Angeles domestic violence attorney. Surprisingly, a Los Angeles criminal defense lawyer with domestic violence experience can often offer very sound advice as to your first steps depending on your circumstances. They will almost always include finding a way to make yourself safe from your abuser such as moving out.

You need to understand a few things about domestic violence. If you have been a victim, pressing charges may be emotionally and practically difficult, especially if the abuser is your spouse or the parent of your child. He or she may threaten you or attempt to prevent you from informing the police or testifying, which is illegal but can be quite coercive. And if the only evidence of the abuse is your word, the abuser’s defense lawyer will almost certainly attack your character in court, so you need to prepare to defend yourself despite your stressed emotional state. Once you have contacted a lawyer to begin preparing your legal charges, and moved out or done what you need to make yourself safe from the abuser, you should also call the police.

In dire circumstances, this should actually be your first step as the police should come and arrest the accused abuser and get him or her out of the house. They can also collect immediate evidence of the abuse at this point, or direct you to a police medical examiner to look for physical or emotional signs of abuse. This is important because this evidence will service as the primary foundation for your case and will make it more difficult for a Los Angeles criminal defense lawyer to weaken the case by assaulting your character. You will have to tell the police you want to press charges, and it can be difficult to persevere when put on the spot about having your partner tried for abuse. But in the end, nobody should live in fear of abuse, least of all children, so you will find you are doing the right thing to seek legal help and press domestic abuse charges.

 Reducing a Felony to a Misdemeanor with a California Criminal Lawyer’s Help

Those who have been convicted of a felony for a wobbler crime or who are charged with such a crime have a great interest in getting a felony reduced to a misdemeanor. In California, it is possible to have a court reduce some felony convictions to misdemeanor conviction after the fact. Several crimes, such as a DUI/DWI or being an accessory after the fact to a felony are known as wobbler crimes because they can be prosecuted either as a felony or a misdemeanor. With the help of an experienced California criminal lawyer, it is often possible to change or avoid a felony conviction in favor of a misdemeanor.

There are several reasons why a misdemeanor conviction is better than being convicted of a felony. A felony conviction carries a minimum jail sentence of one year in a county of state prison as well as a usual fine of $10,000, convicts lose their right to vote and carry a weapon in the future, and they must report being a convicted felon when asked in the future. On the other hand, the maximum time in jail for a misdemeanor is one year though it can be a little as none, the maximum fine is $1,000, no rights are forfeited, and you don’t have to report a misdemeanor conviction to potential employers.

Fortunately, experienced criminal defense lawyers who understand the finer points of California sentencing laws and penal codes can often reduce lesser felony’s to misdemeanors after conviction. This means you could enjoy an altered sentence, have the crime expunged from your record, and begin getting your life closer to normal. Similarly, anyone charged with a wobbler crime should put extra effort into finding a California criminal lawyer who has the expertise and resources to prioritize ensuring that the crime is tried as a misdemeanor. If you are unsure about whether your crime is a wobbler or not, the best strategy is to contact a legal expert who can determine your status and begin the process of reducing the charge or conviction.

Supreme Court Ruling

Domestic violence cases will be more difficult to prosecute following a U.S. Supreme Court decision that will make it harder for prosecutors to use out-of-court statements as evidence against defendants.

The court ruled that allowing a murder victim’s earlier reports to police to be admitted as evidence denies the suspect’s right to confront his accuser unless the killing was committed to silence the accuser.

The court ruled 6-3 to overturn the murder conviction of a Los Angeles man who shot and killed his girlfriend. The man claimed the killing was done in self-defense but was convicted after a police officer testified that the woman had reported that the man threatened her life.

Until 2004, prosecutors could introduce statements made by victims who were unable or unwilling to testify, including statements made to police.  Police can now testify about what they witnessed, but cannot repeat statements made by the victim unless prosecutors can prove that the victim was killed in order to silence him/her.

However, proving that a killing occurred to silence the victim is extremely difficult. The court’s ruling will also impact domestic violence cases where the victim is available to testify but unwilling to do so.

To learn more about prosecution and defenses to California domestic violence cases, contact a skilled defense lawyer from The Kavinoky Law Firm today for a free consultation

Auto Insurance

Auto Insurance

For those who have been charged with any type of drinking and driving offense, such as DUI, or driving under the influence of drugs (DUID), getting auto insurance is a considerable problem. If someone has either a drunk driving conviction or has had action sustained against their driving privileges by the DMV, many car insurance carriers will deny them coverage.

Just as someone needs help with their legal situation, it is imperative to get expert advice regarding their auto insurance situation for a person charged with any type of drinking and driving offense. Though everyone insured by a large car insurance company recognizes the value of the financial strength and support they receive, once many national auto insurance carriers learn of an impending drunk driving situation, they will immediately reject their applications.

There are other car insurance needs that apply subsequent a DUI conviction or a license suspension action by the Department of Motor Vehicles in addition to the difficulty in finding auto insurance coverage following a drunk driving arrest. One of these needs is the filing of an SR-22 Proof of Insurance Certificate. This certificate is not the standard insurance card issued by auto insurance providers. The SR-22 Proof of Insurance Certificate is required only for people who have a drunk driving conviction or been subjected to a DMV Administrative Action.

Requesting an SR-22 from your insurance provider will immediately alert the company that there is a pending DUI conviction, or action, to factor into any insurance quote since there is no reason other than a drunk driving offense for a driver to need the certificate. It is vital to confer with an insurance professional to obtain the most accurate advice on handling auto insurance needs following a drunk driving arrest, conviction or DMV administrative action.

Boating Under the Influence (BUI)

Boating Under the Influence (BUI)

Boating under the influence (BUI) in California is a serious offense, one that can be as serious as Driving Under the Influence (DUI). Boating under the influence (BUI) is precisely what it sounds like. It is operating a watercraft when you are under the influence of alcohol and/or drugs. In a boating under the influence (BUI) case, watercrafts are considered anything that carries or transports people on water, including water skis. But things that are propelled by water alone, such as kayaks, are immune from boating under the influence (BUI) laws in California.

But if you’re thinking of your California boating under the influence (BUI) arrest as beatable, you may have a point. Such arrests are fraught with tricky legal angles. For starters, officers may board your boat for safety check reasons that have nothing to do with alcohol. It’s what happens while they’re on your boat that things may get interesting.

Keep in mind that it is legal to operate a watercraft in California if your blood-alcohol content is below .08%, but if an officer smells alcohol on your breath while he is there, he may use that as an invitation to initiate a field sobriety test for boating under the influence (BUI).

Now consider the state you may be in after hours of boating. Your eyes may be bloodshot from forgetting or not using your sunglasses. Your face may be red from sunburn. Your ability to stand and walk without wobbling may be challenged from water skiing and sitting in a rocking boat all day. In California or any other state, a law enforcement officer can mistake these signs you are displaying as boating under the influence (BUI).

When the officer takes you off the boat for a field sobriety test, he may not consider that you are having trouble walking because you haven’t been walking on steady ground all day. Even worse is the possibility that you’ll end up having your field sobriety test taken on an unsteady pier. After all that, he may mistakenly charge you with boating under the influence (BUI).

As you can see, there are so many confusing variables involved that even a seasoned law enforcement officer may mistake light drinking for boating under the influence (BUI). Your case may have some of these conditions, or any of the many others that lead to unwarranted boating under the influence (BUI) arrests. It is best to talk to a qualified BUI attorney to find out how the particulars of California boating under the influence (BUI) law can be used in your defense.

Criminal Process

Criminal Process

A criminal defense lawyer who practices in California must be keenly aware of the process by which a case goes from arrest to conclusion. All criminal defense attorneys are not created equal. Some lawyers dabble in criminal defense, and these lawyers will attempt to handle virtually any case that comes through the door. The Kavinoky Law Firm is dedicated to the defense of criminal cases. That is all we do. If you have been accused of a crime and need a criminal defense lawyer whose concentration is not diverted into other areas, we invite you to contact us for a free consultation.

The process by which a criminal case will proceed to conclusion will depend upon whether it is a misdemeanor or a felony. The difference between a misdemeanor and a felony is that a misdemeanor can be punished by up to one year in county jail, or maximum fine of $1000, or both. The punishment available in a felony case may be probation with county jail time; however, in a felony case, punishment may include term in state prison or years or decades, or even the death penalty in certain types of murder cases. It is the range of punishment available which determines whether a case is considered a felony or a misdemeanor.

Misdemeanor criminal cases begin when a criminal complaint is filed. The prosecutor, whether a city attorney or a district attorney, will file a complaint upon their review of various police reports that are written by the arresting agency. The first court appearance is the arraignment, and this is where the accused is formally put on notice of the charges against him or her, and provided with copies of the various reports which purportedly support the charges.

Following the arraignment, there is what is loosely referred to as the pre-trial phase. During this phase, the criminal defense attorney should be filing a variety of motions to aggressively defend his or her client. These motions may include Discovery Motions, where additional reports or evidence is sought from the prosecutor or members of the prosecution team, including law enforcement. Other types of motions include Motions to Suppress Evidence, where evidence has been illegally seized or is the fruit of an illegal search. It is also common to file a Pitchess Motion, where the criminal defense lawyer is seeking the contents of the arresting officer’s private personnel records to determine whether others have made complaints for dishonesty, excessive force, or bias.

At the end of the pre-trial phase, the case will either be dismissed, settled pursuant to a plea bargain, or set for trial.

Trial in a misdemeanor case is no different than any other criminal trial. It begins with jury selection, and proceeds to opening statements, examination and cross-examination of the prosecution’s witnesses, presentation of the defense case (if any), closing arguments, and jury deliberation. In order to be convicted of a misdemeanor, all twelve jurors must agree that the accused is guilty beyond a reasonable doubt. If even one juror votes that he or she has a reasonable doubt in the integrity of the prosecution’s case, a “hung jury” will result. A “hung jury” results in a mistrial, and the possible dismissal of criminal charges.

Felony cases proceed a little differently. In a felony criminal case, a complaint is filed and the defendant is arraigned, just as in a misdemeanor case. However, following the arraignment, the accused in a felony case is entitled to a Preliminary Hearing. A Preliminary Hearing is a “mini-trial” which is held in front of a judge, not a jury. The judge in the Preliminary Hearing determines whether there is enough evidence to allow the case to proceed to trial. The Preliminary Hearing is a safety net to ensure that those accused do not languish in custody awaiting trial on cases with insufficient evidence to support that. It is a critically important aspect of the case for both the defendant and the criminal defense attorney, as it provides an opportunity for cross-examination of witnesses prior to trial that is not afforded in misdemeanor cases.

Following the Preliminary Hearing, if the defendant is held to answer for trial, a series of pre-trial conferences and motions are scheduled, and then the case will proceed to trial if not settled. Just as described above with respect to a misdemeanor trial, in a felony trial the prosecutor has the burden to prove his or her case beyond a reasonable doubt, to the exclusion of every reasonable doubt, or else the defendant is entitled to a judgment of not guilty.

If you, or someone you care about, has been charged with a crime, it is vitally important that you consult with a criminal defense lawyer who is aware of the criminal process, and who can zealously represent your interest. Darren Kavinoky is a criminal defense lawyer whose practice is entirely devoted to criminal defense cases. Please feel free to contact The Kavinoky Law Firm for a free consultation at no obligation to you.

California Police May Enter the Homes of DUI Suspects Without a Warrant

California Police May Enter the Homes of DUI Suspects Without a Warrant

Police seeking suspected DUI / DWI drivers can enter private homes without warrants, the California Supreme Court has ruled in a 6-1 decision that erodes Fourth Amendment rights against unreasonable search and seizure.

The lone dissenter, Justice Kathryn Mickle Werdegar, said the ruling essentially gives police a “free pass” to sidestep constitutional protections and enter private homes without warrants.

The Fourth Amendment bars authorities from entering homes without warrants unless “exigent circumstances” exist, such as the pursuit of a fleeing felon, imminent danger to police or others, or the possibility that evidence will be destroyed if police wait for a warrant.

The court ruled in People v. Thompson that warrantless entries are justified in drunk driving cases because motorists can hide inside their homes until they no longer exceed the legal limit for driving. The court also cited the possibility that motorists can falsely claim that they continued to drink inside the home, which can skew the results of chemical tests to determine blood alcohol content and provide a defense to a DUI / DWI charge.

Justice Marvin Baxter wrote that the decision does not give police unlimited power to enter homes in pursuit of criminal suspects without warrants – they may only do so if exigent circumstances exist.

However, police will interpret the ruling as broadly as possible and use it to justify searches that were once prohibited. There is always a possibility that a criminal suspect may destroy evidence, Mickle Werdegar wrote in dissent.

The panel’s ruling is among several recent high court decisions that threaten the constitutional rights of criminal defendants in California and across the country. The California Supreme Court recently ruled that police can use uncorroborated anonymous tips to arrest drunk driving suspects. And the U.S. Supreme Court determined that police are no longer required to knock and announce themselves when serving a search warrant at a private home.

These high court rulings show why it’s more important than ever to have a skilled lawyer representing the rights of every criminal defendant, said Darren T. Kavinoky, who is widely regarded as one of the top defense attorneys in California.

“These decisions safeguard the rights of police officers, not the public,” Kavinoky said. “Defendants need top-notch legal representation to ensure they get a fair shake in the justice system.”

The attorneys of the Kavinoky Law Firm have the skills and experience needed to ensure that individuals facing charges of driving under the influence or other criminal offenses receive the quality defense they deserve. During a free consultation, one of the firm’s top attorneys will carefully review the facts of a case to determine the best defense strategy.

Although the courts continue to weaken the rights of criminal defendants, many options still exist to challenge arrests and evidence. Mounting an aggressive defense can make the difference between a conviction and an acquittal.

Californians Pass One of Nation’s Toughest Sex-Offender Laws

Californians Pass One of Nation’s Toughest Sex-Offender Laws

Californians have overwhelmingly passed a ballot initiative that gives the state some of the strictest requirements in the nation for sex offenders. Proposition 83, known as Jessica’s Law, requires that registered sex offenders live 2,000 feet from parks and schools and allows for lifetime satellite tracking of certain offenders.

The measure is certain to be the subject of a fierce court battle. Prop. 83’s language makes it unclear whether the law will apply retroactively to California’s 90,000 registered sex offenders. And the expanded residency restrictions will likely be the subject of a constitutional challenge.

California law already prohibits registered low-risk sex offenders from living within 1,320 feet, or a quarter mile, from schools. The new requirements, if they survive a court challenge, will likely push many offenders out of cities and into rural areas, where they will face problems finding employment, transportation, and other necessities.

Forcing parolees onto public assistance doesn’t help Californians – it hurts them. There are better ways to protect children than to increase the burden on our welfare rolls.

In addition to being constitutionally dubious, Jessica’s Law is certain to be costly. The cost of using satellites to track paroled rapists, child molesters, and other felony sex offenders is expected to cost California hundreds of millions of dollars.

Prop. 83 also will further erode one of the basic tenets of our justice system – that once individuals served their sentences, they should be allowed to pursue productive lives.

Above all, Prop. 83 is unlikely to achieve what its backers set out to do – guard children and other vulnerable individuals from predators. In Iowa, where a similar law was passed, many sex offenders simply failed to register their addresses to avoid the restrictions. A coalition of Iowa prosecutors is now pushing to have the law overturned.

In California, many people fear that Prop. 83 will have a similar effect, said Darren Kavinoky, one of the state’s top defense attorneys and an expert on constitutional search and seizure issues.

“I’m in favor of anything that will protect children, but I don’t think Jessica’s Law will accomplish that goal,” Kavinoky said. “If it survives court challenges, Proposition 83 will serve only to deprive many individuals of adequate employment and housing, and prompt many to avoid registering as sex offenders.”

Studies by California Senate researchers show that under Prop. 83’s restrictions, nearly all of San Francisco and most of Los Angeles would be off-limits to registered sex offenders. In addition to making it nearly impossible for offenders to live near employment opportunities, Prop. 83 will force certain rural communities to bear a disproportionate burden.

The bureaucratic and financial burden of enforcing Prop. 83’s monitoring requirements is expected to be monumental, particularly if it’s interpreted to include tens of thousands of existing offenders.

Satellite tracking of so many individuals requires not only technology but also manpower. Using transmitters to track people is useless unless officials are prepared to devote resources to monitor and enforce the requirements. California’s law-enforcement resources are already stretched to the limit.

Prop. 83’s passage shows that it’s more important than ever to have expert legal representation if accused of a crime. The best way to avoid draconian restrictions is not to be convicted in the first place.

There’s too much at stake in any prosecution not to have an experienced defense lawyer fighting for the defendant’s rights. The skilled attorneys of the Kavinoky Law Firm are prepared to aggressively fight any criminal case and protect individuals from negative consequences.