Category: Post-Conviction

Post-Conviction | NoCuffs

Immigration Courts

Criminal convictions can drastically affect immigration status for non-American citizens or for lawful permanent residents (LPR). The forms of criminal behavior can range from the most severe aggravated felonies to basic traffic infractions. Moreover, the penalties for non-American citizens can include deportation, jail time, and fines. The long-term impact for minor crimes can result in catastrophic outcomes for those convicted.

 

In most cases after a conviction, the individual serves time in jail. Following the jail sentence, Immigration and Customs Enforcement (ICE ) agents take the LPR to immigration court.

 

While the criminal consequences for a conviction can cause extreme hardship for the defendant, LPR’s also face the possibility of deportation.

 

The immigration court system does not follow the same protocol as the criminal court system, and does not need to adhere to the same standards. Because immigration court is included under the executive branch of the government, those protocols and standards often shift with each president’s political leanings.

 

To effectively defend themselves against deportation resulting from a criminal conviction, accused individuals must educate themselves and hire skilled criminal defense attorneys to stop the problem before it starts.

 

diverse hands over an american flag

 

Aggravated Felonies

 

For most criminal convictions, LPRs do not face deportation. However, aggravated felonies can result in deportation if the defendant also loses the deportation case in immigration court.

 

Defense Attorney Darren Kavinoky explains aggravated felonies as follows:

“On the immigration front, misdemeanors are usually not a problem… it is ‘aggravated felonies’ (a felony for which the sentence is more than a year in custody) that will get you deported.  In that scenario, AFTER you serve your time, ICE comes to get you and brings you to the immigration court, where you wait in custody until a judge rubber stamps your deportation order and sends you back to your home country.”

 

 

Types of Aggravated Felonies

 

The Immigrant Legal Resource Center describes the types of offenses qualifying as aggravated felonies as follows:

 

 

Aggravated Felony (AF)

 

This conviction generally has the worst immigration consequences.

The AF definition in 8 USC § 1101(a)(43) includes twenty-one provisions that describe hundreds of offenses, including some misdemeanors. Some, but not all, of these offenses require a sentence of a year or more in order to be an AF. The government considers aggravated felons to be deportable and ineligible to apply for most forms of discretionary relief from deportation, including asylum, voluntary departure, and cancellation of removal, and to be subject to mandatory detention without bond. A conviction for illegal reentry after removal carries a higher federal prison term based on a prior AF conviction,

 

 

Crime of Violence (COV)

A COV conviction carries two potential immigration penalties. If it is committed against a person protected under the State’s domestic violence laws, a COV becomes a deportable “crime of domestic violence.” (See paragraph below on the grounds for domestic violence deportation  under 8 USC § 1227(a)(2)(E). If a sentence of a year or more is imposed, a COV falls under the aggravated felony category, regardless of the victim.

 

 

Crime Involving Moral Turpitude (CIMT)

 

Federal immigration case law determines whether an offense involves moral turpitude, not state cases. The State notoriously defines CIMT rather vaguely, and many immigration attorneys subject it to much litigation. It includes crimes that include intent to defraud, intent to cause great bodily injury, and theft with intent to deprive permanently. In also includes some offenses involving lewdness, recklessness, or malice.

 

 

Controlled Substance Offense (CS)

A non-citizen becomes deportable and inadmissible if convicted of an offense “relating to” a federally defined controlled substance. The State grants exceptions to deportations, with a possible waiver of inadmissibility, if the conviction relates to a single incident involving simple possession, use, or possession of paraphernalia involving 30 grams or less of marijuana or hashish under H&S C § 11377.

 

 

Conviction of a Crime of Domestic Violence, Child Abuse, Neglect or Abandonment, or  Stalking, with a Civil or Criminal Court Finding of Violation of a DV Stay-Away Order or Similar Order

 

These all trigger deportability under grounds of “domestic violence” under 8 USC § 1227(a)(2)(E). The conviction, or the conduct that violated the protective order, must have occurred after admission and after Sept. 30, 1996. The State considers a crime of domestic violence to be a “crime of violence” against a person protected from the defendant’s acts under state domestic violence laws. If a court finds an individual in violation of a portion of a domestic violence protective order whose purpose is to protect against threats or repeated harassment, that individual becomes deportable. This includes even the most minimal violation of a stay-away order.

 

 

Firearms Offenses

 

A non-citizen becomes deportable under 8 USC § 1227(a)(2)(C) if he or she can be, at any time after admission, convicted of an offense relating to a firearm. Also, the State considers convictions for the sale of firearms, or for certain offenses such as being a felon in possession, as aggravated felonies. However, no California offense that uses the definition of “firearm” under PC § 16520(a) carries these consequences because the California and federal definitions of “firearm” differ.

 

 

Crimes against a Minor that Block Family Visa Petitions

 

If the State convicts any LPR or United States citizen of certain crimes against a minor, the government can prevent him or her from attaining lawful status for an immigrant spouse or child (through filing a “family visa petition.”) The crimes include kidnapping, false imprisonment, offenses involving sexual conduct, or child pornography under the Adam Walsh Act.

 

 

Types of Consequences for Aggravated Felony Convictions

 

For individuals with LPR status, Aggravated felony convictions can lead to a litany of severe consequences as described by the American Immigration Council.

 

 

Deportation without a Removal Hearing

 

The courts provide fewer legal protections to certain non-citizens convicted of an “aggravated felony” than for other immigrants. Any non-LPR immigrant convicted of an “aggravated felony” may be administratively deported from the United States without a formal hearing before an immigration judge. Immigrants in these proceedings lose eligibility for asylum or for any other form of discretionary relief. Immigrants found deportable in this manner may not appeal to the Board of Immigration Appeals (BIA) and can be physically removed two weeks after entry of the order.

 

 

Mandatory Unreviewable Detention Following Release from Criminal Custody

 

The government mandates that ICE authorities detain any immigrant convicted of an “aggravated felony” upon his or her release from criminal custody. In order for ICE to release the detained immigrants, the detained immigrant must demonstrate with substantial likelihood that the crime in question does not qualify as an “aggravated felony.”

 

 

Ineligibility for Asylum

 

Any immigrant convicted of an “aggravated felony” loses eligibility for asylum. The government considers asylum a form of immigration relief available to immigrants who suffer or possess a well-founded fear of persecution in their native country. Immigrants convicted of an “aggravated felony” may also lose eligibility for “withholding of removal,” which the government defines as a similar form of relief for non-citizens whose country of deportation threatens their life or freedom.

 

 

Ineligibility for Cancellation of Removal

 

Any immigrant convicted of an “aggravated felony” loses eligibility for “cancellation of removal” (“cancellation”). Cancellation occurs when immigration judges permit otherwise deportable immigrants to remain in the United States. Immigrants convicted of an “aggravated felony” lose eligibility for cancellation of removal, even if their removal would cause “exceptional and extremely unusual hardship” to an immediate family member who legally resides in the United States.

 

 

Ineligibility for Certain Waivers of Inadmissibility

 

Certain LPRs may not obtain a “waiver of inadmissibility” under Section 212(h) of the Immigration and Nationality Act (INA) if the State convicts them of an “aggravated felony”. A waiver of inadmissibility excuses immigrants for past misconduct that would normally make them ineligible for admission to the United States. Only prospective LPRs whose deportation would cause “extreme hardship” to a U.S. citizen or LPR qualify for waivers of inadmissibility.

 

 

Ineligibility for Voluntary Departure

 

An immigrant convicted of an “aggravated felony” loses eligibility for “voluntary departure.” Voluntary departure allows otherwise deportable immigrants to leave the country of their own accord. These immigrants may leave at their own expense in place of formal deportation under an order of removal.

 

 

Permanent Inadmissibility Following Departure from the United States

 

An immigrant removed from the United States after being convicted of an “aggravated felony” (or who leaves while an order of removal is outstanding) may never reenter the country. To lawfully reenter the United States, such an immigrant must receive a special waiver from the Department of Homeland Security and must meet all other requirements of admissibility.

 

 

Enhanced Penalties for Illegally Reentering the United States

 

If ICE removes an immigrant from the United States following a conviction for an “aggravated felony,” and that same immigrant subsequently reenters the country illegally, he or she may be imprisoned for up to 20 years rather than two years.

hands on prison bars

 

 

Understanding Immigration Court

 

If the State convicts individuals with LPR status of a crime, the defendant may also face deportation in immigration court. The sole purpose of immigration court is to determine whether the State will deport a non-American citizen, or whether the individual may stay in the United States.

 

Immigration court functions under the United States Department of Justice, which falls under the executive branch of the federal government. However, it is the Attorney General of the United States who ultimately determines the tone and practice of immigration courts.

 

The United States Department of Justice grants to immigration courts the responsibility for adjudicating immigration cases in the United States. The primary function of immigration courts revolves around removal proceedings.

 

While immigration courts do handle criminal matters, the government considers them to be civil courts. This is because the only thing that immigration courts decide is whether or not the defendant can stay in the United States. In these courts, the federal government does not need to provide legal representation to defendants who cannot afford a lawyer. The University of Pennsylvania Law Review conducted a study in 2015, and found that only 37% of immigrants attain legal representation. It also found that children from two to 17 years of age routinely represent themselves in immigration court.

 

 

Current State of Immigration Courts

 

In 2016, the New York Times wrote an article describing the current state of immigration courts. The wait times for trials in immigration courts can range from two to five years. Consequently, evidence pertaining to the case becomes stale, and helpful witnesses may leave, forget vital pieces of information, or even die from old age.

 

The United States only has 58 immigration courts across the lower 48 states. During the last two decades, a surge in immigration from Central America has caused an increase in immigration enforcement. However, due to bureaucratic red tape, the courts cannot hire enough judges fast enough.

 

Although immigrant courts are dealing with relatively simple issues, the consequences of those issues have had effects greater than anyone could have expected. Basically, the United States deports people who lose immigration court hearings. Period.

Regardless of how the defendant’s life will be impacted, the court abides by the rules.

 

According to the United Nations, since 2008 there has been a five-fold increase in asylum seekers from Central America’s Northern Triangle, which includes Honduras, Guatemala, and El Salvador. Organized gangs dominate this landscape. According to the U.N., Honduras had the world’s highest murder rate in 2014, with El Salvador and Guatemala close behind.

 

border patrol agent in the desert

 

Laura S.

 

The New Yorker ran an article entitled “When Deportation is A Death Sentence” in its January 2018 issue. The article told of an incident that occurred in June 2009 involving a young woman in Pharr, Texas named Laura S. Pharr, Texas lies directly across border from the Mexican town of Reynosa. The U.S. State Department forbids its employees from venturing out after midnight in this area due to the extreme violence in Reynosa.

 

Laura fled an abusive husband in Reynosa and began to build a life in Pharr with her daughter from the relationship. A police officer pulled Laura over one night while she was on her way home from her waitress job. When the officer asked to see her license and proof of insurance, she could not provide them. The 22-year-old Laura was living in the U.S. as an undocumented immigrant.

 

Laura told the officer as she began to cry, “I have a protection order against my ex—please, just let me call my mom and she’ll bring you the paperwork.”

In Mexico, her former husband had reportedly joined a local drug cartel and frequently texted death threats to Laura.

 

The border patrol agents pressured her into signing “voluntary return” paperwork. After sunrise, she began her walk across the McAllen-Hidalgo International Bridge to Reynosa.

 

In the final moments before Laura crossed the bridge, she turned to the border patrol agent and said, “When I am found dead, it will be on your conscience.”

 

the scales of justice

 

Criminal Charges in Immigration Courts

 

Laura S. represents how broken the immigration courts have become over the last 20 years. Because the courts take too long to actually hold a hearing, they pass this responsibility on to border patrol agents. While border patrol agents perform a vital function in protecting the U.S. from violent people attempting to enter the country, they are NOT trained and vetted court judges. The outcome of many deportation cases often leads to more extreme consequences than mere removal from the U.S.

 

All immigrants charged with criminal activity must act quickly and aggressively during the criminal proceedings to ensure the best outcome. Experienced defense attorneys know how to fight criminal charges and obtain the best solution for the defendant.

Orange County Seal

What is going on in the OC?

New Questions about Justice in the Orange County Courts May Impact You.

By Robin Sax

There is bad news for Orange County Defendants. If you had a case in Orange County, you’re at risk of errors, omissions, and/or fabrications on your record.

There is even worse news for Orange County Defendants, too. Your court records may be in jeopardy. It is possible your records received inaccurate documentation.

There is good news for Orange County Defendants. The top criminal defense lawyers in Los Angeles at The Kavinoky Law Firm have a plan. We are ready to help you correct history.

Orange County Court System

Orange County Courts-300x113The Orange County court system, as a whole, is currently under fire. For the last few weeks, newspapers and journalists alike are salivating at the opportunity to dig up even more dirt. The newest revelation reported by The Los Angeles Times is called; “Probe Underway Into Possible Tampering in Orange County Superior Court.” This report states Judge Thomas Borris ordered defendants and defense attorneys into court. His goal?

To get to the bottom of what appears to be blatant lies and factual errors in court records.

Grievous Errors on Court Records

Honestly, there is a wide variety of errors and/or blatant lies.

Some records show that the attorney of record listed in the court file is not really the attorney of record. Still others note that a jail sentence is complete when, in fact, there was no penalty jail time at all. Additionally, gross misstatements about what true occurrences in a criminal case.

What does this mean? It means that your past may be recorded incorrectly. Which in turn, could wreak havoc on your future.

This isn’t the first time that Orange County’s legal blemishes have made headlines. Just a couple of weeks ago, an Orange County Court saw a judge take a stand when ordering disqualification of the entire Orange County District Attorney’s Office in a high profile capital murder case (read: 250 prosecutors NOT allowed to prosecute their own case). In a breath of fresh air decision, the court found that there was the shady and unconstitutional practice by the Sheriff’s Department (through coordination with the DA’s office) using jailhouse informants to elicit confessions from other defendants.

Who is to Blame?

It is unclear who is responsible for these inaccurate (or false) entries. Even so, perhaps a more important query is the question of “why?”

While the Judge Borris is trying to gleam these answers, defense attorneys must ask “how does this affect our clients?” Of course, those that have court case histories wonder “How does this impact me?” The answer is huge. It could affect everything about your record going forward.

The Orange County court system relies on prior convictions. In addition, it relies on court records each and every day to paint a picture. Court records make rap sheets, provide critical records to the DMV, the Department of Corrections, and inform prosecutors of how to charge a new case. For example, in a Driving Under the Influence Case, whether someone has suffered a prior DUI will effect their driver’s license, jail sentence, and DA’s perspective of a case.

Priors effect not only the perception of a defendant in general but also provide for mandatory increases in other offenses. For example, petty theft, domestic violence, stalking, violations of restraining orders have specific requirements for subsequent effects. If someone’s record reflects completed jail time (when it isn’t), they could be looking at more time! Consequently, we typically see the DA wanting to increase the punishment to teach a lesson to the offender.

As a result, in order to address the issues of accuracy, The Kavinoky Law Firm created a system. This new system ensures our client’s records are accurate and corrects them if need be. If you would like the peace of mind to know that your case is correct and your record reflects what really occurred, call us. 1.800.NO.CUFFS.

 

Direct Application for Pardon

Direct Application for Pardon in the State of California can be tricky. Let us clear it up for you!

Criminal Record and an Application for Pardon

Clearing up a California criminal record can have an enormously positive effect on one’s life. Such opportunities include employment, housing, education, and overall peace of mind. There are many ways to go about obtaining post-conviction relief. These include expungementCertificates of Rehabilitation, and a direct application for pardon.

A direct application for pardon is not the same as a California Certificate of Rehabilitation. As a matter of fact, the application goes directly to the governor. Rather than traipsing through trial court, the individual has a direct path to seek renewal.

A direct application for pardon is often a viable alternative for individuals who are ineligible for Certificates of Rehabilitation. These such people include non-residents. The experienced post-conviction relief lawyers of The Kavinoky Law Firm thoroughly evaluate each case. Through this we determine the best way to clear a criminal record. Whatever you do, it is possible to make a fresh start.

Applicable Offenses

Direct applications for pardon generally come from those with California felony convictions. These individuals are likely living out-of-state, or individuals convicted of certain sex crimes. Such applicable crimes include California Penal Code sections 286(c), 288, 288a(c), 288.5, and 289(j). Those with these crimes on record are ineligible for expungement or other forms of post-conviction relief. Individuals with misdemeanor offenses such as drunk driving should consider another option, such as expungement.

Moreover, an application for pardon is made directly to the governor’s office and must include the following information:

  1. The name of the applicant, including any aliases;
  2. Explain need for a pardon;
  3. Date of conviction;
  4. County and case number of conviction;
  5. Prison number;
  6. Name of parole agent;
  7. Current address and telephone number,
  8. Dates and circumstances of all felony offenses;
  9. Dates the individual entered prison and was released; and finally,
  10. A brief statement of employment and activities since release from custody.

This last aspect of the pardon application is perhaps the most important. The governor doesn’t grant every pardon application. Therefore, the individual must show that he or she leads an exemplary life post-conviction.

Generally speaking, if all goes well, then the process runs smoothly after the first few steps. By the same token, if the governor’s legal staff recommends consideration of the application, the individual will receive an Application for Executive Clemency and Notice of Intention to Apply for Executive Clemency. Once the formal application is filed, it is reviewed by the Board of Prison Terms on the governor’s behalf.

File the Application with Support

A California direct application for pardon is a complex process. Not to mention, the procedures must be followed exactly to increase the chances of success. The skilled attorneys of The Kavinoky Law Firm are some of the best criminal defense attorneys in Los Angeles. If you want to seek release from a criminal conviction, you need a crime attorney who knows every aspect of post-conviction relief.

Call 1.800NoCuffs for a free consultation.

Application for Rehabilitation Aids Entry into Canada

Entry Into Canada (Application For Rehabilitation)

Many Americans are unaware that there are several restrictions governing travel to Canada. For example, individuals with criminal convictions in the U.S. or another country likely cannot enter. In light of the tragic event on Sept. 11, 2001, the Canadian government made a decision to restrict certain travelers. Individuals with criminal records find it difficult to enter their country.

Travel Restrictions

Even a misdemeanor record can prevent an individual from traveling from the U.S. to Canada. For example, drunk driving is a misdemeanor to our neighboring north. In turn, someone with a misdemeanor DUI / DWI conviction in the U.S. is denied admission into Canada.

Since a criminal record in the United States can prevent entry into Canada, it’s critical to obtain post-conviction relief as soon as possible. Clearing the individual’s record will open up travel opportunities and release life-restrictions.

If approved, an Application for Rehabilitation will clear the way for an individual convicted of a criminal offense in the U.S. to enter Canada. The experienced lawyers of The Kavinoky Law Firm can assist an individual with an Application for Rehabilitation that may allow entry into Canada.

Application For Rehabilitation

In order to qualify for and Application for Rehabilitation to enter Canada, at least five years must have passed since the completion of any sentence and probation imposed for the offense. Some individuals can have their rehabilitation request processed at a Canadian port of entry through two processes known as “deemed” and “streamlined” rehabilitation. Equally as important, applicants must provide all required documentation and pay a fee of $200 Canadian for streamlined rehabilitation. There is no fee for deemed rehabilitation.

Required documents include identification, court documents for each conviction that show that the sentence was completed, a recent FBI criminal record check, and a police certificate from the state(s) where the offense occurred and any state where the individual has lived for more than six months in the past 10 years.

Rehabilitation requests can also be submitted to the Canadian Consulate. The individual must submit an application and all relevant documents to the Canadian Consulate. Just as in streamlined or deemed rehabilitation, there is no guarantee that the Canadian government will approve the request.

All in all, if it is less than five years since sentence completion, the individual may qualify for a Temporary Resident Permit (TRP). To qualify for a TRP, the individual must complete an application and provide all of the documentation for rehabilitation.

Work with an Attorney

The procedures for submitting an Application for Rehabilitation to enter Canada are complex. It’s best to work with a skilled attorney who is familiar with the requirements.

The best criminal defense lawyers in Los Angeles work for The Kavinoky Law Firm. They are well-versed in every aspect of the Canadian rehabilitation process. Additionally, a federal criminal defense lawyer, such as the ones we employ, can ensure the best chance of a successful application. Contact them today for a free consultation. 1.800.NoCuffs.

What an Expungement Can Do for You

Expungement of criminal history is not available to everyone. However, if you have the opportunity to delete your criminal history and move forward without shackles, take it. A great criminal defense attorney can help you.

While everyone makes mistakes, some mistakes come with repercussions that can last a lifetime. In the case of a criminal history, a mark on your criminal record can make day to day life difficult for years to come. Employers and landlords commonly ask job applicants and apartment seekers whether they have been convicted of a criminal offense. Employers may not hire, and landlords may not lease, to those who answer “yes” to the question.

An expungement can make landing a job and renting an apartment easier for those with a criminal record. Additionally, an expunged record can provide peace of mind, and make getting a loan and adoption a possibility. If you don’t want one mistake to haunt you for the rest of your life, an expungement may be the best route for you to take.

Expungement Eligibility

Both adult convictions and juvenile adjudications are eligible for expungement. Although expungement is an option for many with criminal records, not everyone can do it. To be eligible, you must meet very specific criteria. These criteria for expungement include:

  • Conviction must meet the guidelines described in Penal Code 1203.4, Penal Code 1203.4a, or Penal Code 17.
  • Complete the terms of your sentence, including any probation.
  • May not be imprisoned or serving time for any offense.
  • No pending charges for any other offense.
  • You must not have another conviction within one year of the first.
  • Probation not revoked or reinstated – for the charge in question.

Loans & Adoption

Some loan agencies believe a criminal conviction is an indication of irresponsibility. They believe a person with a criminal history is less likely to meet their financial obligations; therefore, interest rates are increased for individuals with a criminal history, if a loan is given at all. This means buying a home, a car, or paying for an education can be harder for those with criminal convictions.

Additionally, any person trying to file for an adoption in California and has a criminal background cannot normally petition for an adoption in the state. An expungement of your criminal record can help make the adoption process easier on all parties.

Jobs & Education

As previously mentioned, many employers ask prospective employees to divulge their criminal history. With an clean record, revealing such information isn’t mandatory. Although it is possible to lie on a job application, doing so is risking a violation of the law once again. By successfully cleaning up your record, you should be able to truthfully answer “no” in such situations.

The only time you may not answer “no” is when the question also asks “even if you’ve had it expunged.” This question is common for many professional license and, in these cases, you must acknowledge the conviction and answer “yes” even though there has been an expungement.

Additionally, applying for higher education becomes complex when hindered by a criminal conviction. Those with criminal histories may face hurdles. However, a great crime attorney knows how to fight for an an expungement. This legal move can successfully remove this roadblock and open the highway to success. By successfully expunging your record, your criminal history will not affect your attainment of higher education.

Introduction to Post Conviction Relief in California

Post-conviction relief is possible with the help of an experienced criminal defense attorney.

Need for Post-Conviction Relief

post-conviction reliefLife following a conviction is not always fun. As the world gets smaller and technology makes our private life more public, our lives are more connected. Which means, past criminal conviction can become a future obstacle.

While past convictions cannot disappear, the law provides important ways help. In fact, the law places limits on the impact of a prior arrest and/or conviction on one’s future. It is possible to gain relief from a prior conviction. Actually, sometimes the prior conviction falls apart  This area of law is commonly referred to as post-conviction relief, or post-judgment relief.

Ultimately post conviction relief is a way to clear a criminal record by dismissing the case, limiting public access to the records regarding the arrest and conviction, or alleviating certain consequences associated with the conviction. A good criminal defense attorney can quickly assess the best option in each individual case.

Cleaning up Your Record

Post-conviction relief is of critical importance to anyone convicted of a criminal offense. If a person wants to clean up his or her criminal record. A criminal record is like a credit report and can often be accessed by others. Anyone with a criminal offense in their past knows that the punishments of the conviction go beyond fines, probation and jail time. A prior conviction can have a negative impact on employment opportunities, educational goals, and self-confidence. It’s probably one of the most frustrating aspects of life following conviction.

There are several common forms of post-conviction, or post-judgment, relief available including: expungement, sealing and destruction of records, reduction of felony to misdemeanor, and certificates of rehabilitation and/or pardon.

Expungement is the most common option for people who have prior misdemeanor and certain felony convictions on their criminal record. This process is essentially a dismissal of the conviction after the probationary period ends and is a requirement for many employers and professional licensing boards.

In certain circumstances, arrest records, and even prior conviction records, are not accessible. You can seal them and ultimately destroy them legally. If records are sealed then the arrest is deemed to have never occurred and public access is limited. Approval for sealing is not a guarantee. They are much more common in cases in which a juvenile offender faced charges or when an offender faced arrest but not conviction.

Reductions in Sentencing

Even after a conviction, some felonies receive criminal reductions to misdemeanors. In fact, reduction to a misdemeanor typically goes hand-in-hand with expungement.

Reducing a felony to a misdemeanor helps clean up a criminal record. More serious felonies generally require a gubernatorial pardon. Furthermore, these pardons go directly to the governor or following a Certificate of Rehabilitation. Certificates of Rehabilitation come from a judge. Once approved, the certificate goes to governor as an application for pardon. In turn, if granted, a pardon restores most all rights prior to conviction. This includes restoration of gun possession rights and relief from sex offender registration.

Because of the vast nature of forgiveness for conviction, it is not easy to receive expungement. In fact, most forms of post conviction relief, including expungement, sealing and destroying records or vacating convictions, require a judge’s approval. Other types of relief are simple. Some even occur automatically. For example, destruction of minor misdemeanor marijuana records. A direct pardon however, requires an application to the governor.

Hire an Attorney

Almost everyone with a criminal conviction can benefit from post conviction relief. Due to the complexities of post-conviction relief, it’s best to use an attorney. An attorney at The Kavinoky Law Firm can help to determine which form of post conviction relief is best. We hire only the best attorneys in Los Angeles. Contact a skilled defense lawyer today for a free consultation.

Limits of Post Conviction Relief

Individuals with California criminal convictions often fear that their records will follow them throughout their lives, but in some cases post-conviction relief can remove criminal offenses from the record and help individuals to move forward. The experienced defense attorneys of The Kavinoky Law Firm will gladly evaluate your case to determine whether post-conviction relief is an option.

While there are many benefits to post-conviction relief, there are some notable limitations. Expungement and other misdemeanor relief alone will not reinstate certain rights such as firearm possession. While the primary misdemeanor charge can be expunged, possession of firearms and relief from registration on as a sex offender will require a certificate of rehabilitation and/or a pardon.

Post-conviction relief does not prevent disclosure of prior convictions several circumstances, including an application or public office, seeking any license from the state, such as real estate, stock broker, doctor, lawyer, etc., or contracting with the California State Lottery. In these situations the prior conviction must be disclosed.

Other situations not specifically spelled out by law may also require disclosure of an expunged conviction. For example, applications to become a peace officer, while not mentioned in the statute, typically require disclosure of expunged convictions.

While many circumstances may arise that are not specifically exempted from disclosure, as the world gets smaller, many people have access to our private information. As such, in this day and age of computers, internet, and the free-flow of information, carefully worded disclosure may be the best way to proceed. This is a strategic issue and one that should be considered with the help of an experienced criminal defense attorney.

Regardless of your individual case, post-conviction relief is something that opens doors to employment, education, and housing, and provide much-needed peace of mind. To learn more about expungement and other post-conviction relief options, contact a caring attorney from The Kavinoky Law Firm today for a free consultation.

Misdemeanor and Felony Laws on Professional Licenses Issues

If you have a professional or occupational license in California, your license can be affected if you are convicted of a misdemeanor or a felony. Don’t get lulled into believing that pleading guilty will not result in a conviction. It does. In fact you are guaranteed to be convicted if you plead guilty. Once you have been found guilty, the proper licensing authority will be informed through the system. In other cases, you may be required to notify the licensing authority of your conviction.

Generally the licensing authority has its own investigative abilities and it can, and often does, investigate matters more thoroughly than the court. Just by example, this can happen in the case of a licensed taxi driver who is charged with a DUI but pleads guilty to the lesser offense of reckless driving or even a wet reckless. This driver may think that the licensing authority would not look as harshly on the reckless plea as on a conviction for drunk driving. However, when the licensing authority conducts its own investigation and they find out that the driver was far above the legal limit, they may conclude that the offense had with it a degree of moral turpitude that would affect the person’s ability to conduct himself or herself in accordance with the requirements of the business license. Therefore, it might be wiser to fight a conviction when any other outcome may result in the loss of an ability to continue one’s business and have a livelihood.

Retaining a professional license requires the expertise of a criminal defense attorney with years of experience. A qualified lawyer can help you make the best possible decisions for your future.

After an arrest, the investigation that will be launched will involve a professional investigator and the state attorney general’s office where a prosecutor will read your file to determine if any action against your license should be taken.

At a hearing of the license authority, a person applying for a license who has been convicted of a crime will have the burden of proving by a preponderance of the evidence that he or she deserves the license. The licensing authority only needs to provide to the court papers that prove a conviction in order to assert that you may not be entitled to a particular license.

Certain professionals could lose business insurance if they are convicted of crimes. Physicians and dentists are particularly susceptible in this area. They can be dropped from service provider lists and they may fired from the hospitals wherein they work. It just might be worth the fight, so get in touch with a skilled defense attorney as soon as possible if your license is at risk.

On the other hand, if you already have a license but you are called in for a disciplinary hearing, you carry the burden of proving that there were mitigating circumstances that would diminish the seriousness of the crime. Mitigating circumstances are good reasons or excuses for your actions. It takes a lawyer long practiced in criminal defense law to come up the goods necessary to have a license authority show some lenience.

If you are person with a professional license or if you intend on getting a professional license, and you have been charged with a crime, do not hesitate in seeking a free case evaluation from The Kavinoky Law Firm.

Criminal Law 101 – Post-conviction Relief

Criminal Law 101 – Post-conviction Relief

Many individuals convicted of criminal offenses in California worry that their records will follow them forever, but post-conviction relief is an option in some cases to clear a criminal conviction and put the incident into the past. The knowledgeable defense lawyers of The Kavinoky Law Firm are well-versed in California post-conviction relief options, and will fight to help an individual clear up a criminal record. Post-conviction relief options vary case by case, but in general, will depend on three key factors:

  • Whether the case was charged as a misdemeanor or a felony; and
  • Whether the offense was chargeable with time in jail or prison; and
  • Whether probation was included in the sentence and has been completed

Because there are many legal terms that people may not be familiar with, this section will provide definitions and highlight several key components common to most post-conviction options. The most common post-conviction relief options include: sealing and destruction of records, expungement, felony reduction, and Certificates of Rehabilitation and/or pardon.

Misdemeanors vs. Felonies: When evaluating a case for the first time, a criminal defense attorney will first want to know whether the prior offense was charged as a misdemeanor or a felony. Ultimately the difference between a misdemeanor and felony comes down to the severity of the offense and the punishment that can be imposed.

Misdemeanors typically involve fines and are punishable by not more than one year in county jail. They are considered less severe than felonies. Felonies, by definition, are punishable with one year or more in state prison. While any time behind bars is difficult, technically county jail is considered less severe than prison and is reserved for less serious offenses.

Probation Requirement: In addition to jail or prison, most crimes include a period of time where a person is restricted from doing certain things. In general, probation is commonly included as a condition of conviction in nearly all misdemeanor crimes and some felonies. Probation can be either formal (supervised by a probation officer) or informal (it is up to the individual to comply with the terms without reporting to a probation officer). In many cases even something seemingly small, like getting a traffic ticket while on probation can be enough to cause the original judge to impose additional penalties, such as additional jail time. Post-conviction relief is not generally available until the probationary period is over.

Typically felonies attach a prison term and parole opportunity. There are different post-conviction options for parolees including Certificates of Rehabilitation and/or pardons. However, certain felony offenses are considered less serious, so the judge may grant county jail time and probation. In these cases, misdemeanor post-conviction relief would be available.

Early Termination of Probation: Most post-conviction relief is unavailable to individuals whom have not yet completed their entire probationary term, with certain exceptions. California Penal Code Section 1203.3 allows a judge to modify or revoke probation or terminate probation on a case-by-case basis. This is an important aspect to any discussion on post-conviction relief since expungement and other relief is generally unavailable if you are still on probation. Under PC 1203.3 a probationer can petition the judge to terminate probation early. Early termination of probation requires a skilled defense attorney to go before the judge and make an effective argument in favor of early termination.

Wobblers: Most offenses are clearly defined by the penal code as either misdemeanors or felonies. However, there are always exceptions. Certain crimes, referred to as “wobblers” can be charged by the prosecutor as either misdemeanors or felonies. In some cases people may not remember the details of their prior convictions and laws may have changed over the years. As a general rule, county jail and probation are clear indicators that a crime was charged as a misdemeanor.

Common examples of wobblers include certain DUI / DWI offenses, drug possession, assault and domestic violence offenses. If a conviction for a wobbler offense includes county jail time (regardless of whether any actual time is served) and probation, then the conviction is eligible for misdemeanor relief including sealing of records, reduction of felony to a misdemeanor and/or expungement. Straight felony convictions, on the other hand, would require an application to the governor via a Certificate of Rehabilitation or pardon.

As stated, felonies by definition are more serious than misdemeanors. In certain cases wobblers may rise to the level of a felony if certain aggravating circumstances are present, for example, when someone is actually injured. Straight felonies – those that are not wobblers – attach a specific prison term, and in most cases, there is a start and end date with a possibility of parole. Individuals convicted of felonies which were paroled, have stricter standards, as they relate to the availability of post-conviction options. Generally, in order to relieve the civil consequences of a prior felony conviction requires application for pardon or Certificate of Rehabilitation, which are more lengthy and involved than misdemeanor relief options.

A California criminal conviction doesn’t have to follow an individual through life, hampering opportunities for employment, education, housing, and other necessities. The experienced, caring defense attorneys of The Kavinoky Law Firm are knowledgeable about every aspect of post-conviction relief, and will explore every option available to clean up an individual’s criminal record. Contact a skilled attorney today for a free consultation.

Expungement

Expungement

Every arrest and conviction is recorded in an individual’s criminal record. At one time, only police and governmental agencies could access criminal records, but that has changed. Technology has blurred the gap between what is public and what is private. Similarly, background checks are becoming more and more standard, and with growing on-line public databases, accessing someone else’s criminal record couldn’t be easier.

Because of this, post-conviction relief in the form of expungement is both important and necessary. Expungement works like cleaning up a credit report. A successful expungement means that the conviction is removed from the record. The knowledgeable expungement lawyers of The Kavinoky Law Firm will evaluate any California criminal conviction to determine whether post-conviction relief may be an option.

Essentially, the judge dismisses the case after the fact. This applies even in cases where a plea of guilty was entered. In these cases, the plea is withdrawn and the case is dismissed. On your criminal record, expunged offenses are listed as “dismissed.”

While expungement offers the most relief, it is not an eraser, and relief from disclosure is limited. Also, expungement is not available in all cases. While it is possible to expunge some felonies, expungement is generally limited to misdemeanor offenses where the probationary period has ended. However, an experienced criminal defense attorney can assist with getting probation terminated early.

Common situations where expungements are granted include driving under the influence, drug possession, reckless driving, and other misdemeanor offenses. Most employers are prohibited from asking about arrests that did not result in convictions and expunged offenses. However, there are limits on expungement relief, including several situations that require mandatory disclosure of expunged offenses.

Still, the benefits of expungement far outweigh the limitations. While expungement is most commonly considered for purposes of future employment, the psychological benefits should not be overlooked. Knowing that a prior criminal conviction is out there on the record can be unnerving. While hiring a good criminal defense attorney to help resolve matters initially is always encouraged, there’s no reason to suffer needlessly from a prior conviction. Help is available. In some cases where expungement isn’t an option, alternatives such as a Certificate of Rehabilitation or a pardon may be available.

For a preliminary evaluation on whether your offense can be expunged, please contact one of the skilled criminal defense attorneys at The Kavinoky Law Firm. We have offices throughout California and are extremely experienced in expungement and post-conviction relief.