Post-conviction Relief

As the world gets smaller and technology makes our private life more public, a past criminal conviction can become a future obstacle. While past convictions cannot be completely erased, the law provides important ways to limit the impact that a prior arrest and/or conviction may have on an individual’s future. It is possible that a prior conviction can be relieved – and sometimes destroyed altogether. 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.

Post-conviction relief is of critical importance to anyone who has been convicted of a criminal offense and is interested in cleaning 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 resulting from 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.

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. Expungement 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 can be sealed and ultimately destroyed. If records are sealed then the arrest is deemed to have never occurred and public access is limited. Requests for sealing are not granted in all cases, but are commonly granted in cases where an arrest did not result in conviction or in juvenile court cases.

Some felonies can be reduced to misdemeanors, even after a conviction. This is typically done in connection with expungement. Reducing a felony to a misdemeanor helps clean up a criminal record. More serious felonies may require a gubernatorial pardon. Requests for pardons can be made directly to the governor or following an approved Certificate of Rehabilitation. Certificates of Rehabilitation are approved by a judge. The approved certificate is then sent to the governor as an application for pardon. If granted, a pardon will restore most disabilities associated with a prior conviction, including restoration of gun possession rights and relief from sex offender registration.

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 less complicated and may even occur automatically – for example, destruction of minor misdemeanor marijuana records. A direct pardon however, requires an application to the governor.

Almost everyone with a criminal conviction can benefit from post-conviction relief. A caring attorney at The Kavinoky Law Firm can help to determine which form of post-conviction relief is best. Contact a skilled defense lawyer today for a free consultation.

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.

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.

Supreme Court Approves No-Knock Warrants

For decades, police were required to knock and announce themselves before entering a private home to execute a warrant. That protection has disappeared in the wake of a recent U.S. Supreme Court ruling that held that police can burst into criminal suspects’ homes without knocking if they have a valid warrant.

Overturning more than 90 years of precedent that held that such entries violated the Constitution’s Fourth Amendment ban on unreasonable search and seizure, the justices ruled in Hudson v. Michigan that Detroit police were justified when they barged into a man’s home looking for weapons and drugs.

As the nation’s highest court grows more conservative, and Constitutional protections are weakened or eliminated, it’s more important than ever to have an experienced criminal defense attorney fighting for the rights of defendants.

The ruling means that defense attorneys will have to use other proven methods to exclude evidence from trials that was seized during warrant searches. A skilled attorney may argue that permission was improperly obtained, that the search was improperly executed, or that evidence seized was outside of the scope of the warrant.

An experienced criminal defense attorney will use these avenues and other available options to challenge evidence and convince jurors that there is reasonable doubt in a defendant’s guilt.

“There are many ways to challenge evidence in a criminal trial,” said Darren T. Kavinoky, a top-notch defense attorney known for his expertise in having evidence excluded. “This ruling makes it more difficult for defendants to get a fair trial, but a skilled defense attorney will find a way to ensure justice.”

Four justices dissented from the ruling, saying the ruling will further erode the Constitutional rights of Americans and essentially give police a free pass to enter private homes without notice.

“It weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection,” Justice Stephen Breyer wrote on behalf of himself and three other liberal justices.

The U.S. Supreme Court’s Hudson v. Michigan ruling means it’s more critical than ever to have superb legal representation in any criminal matter. The top attorneys of the Kavinoky Law Firm employ tested methods to exclude evidence in criminal matters and ensure that defendants receive a fair trial.

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.

Southern California County Employs GPS Technology to Track Drunk Drivers

A Southern California county has introduced a program that uses technology to notify authorities instantly when convicted drunk drivers take even a step out of line.

Riverside County recently unveiled a program that will require convicted DUI / DWI drivers to wear tracking devices equipped with Global Positioning System technology. Only individuals with multiple felony drunk driving convictions will be required to wear the lightweight devices, which can be worn on the wrist or ankle.

The devices are programmed to alert a probation officer when an offender enters a restricted area, such as a bar, or leaves a mandatory confinement, such as house arrest or an alcohol rehabilitation center. The devices can be programmed to send the information instantly or one day later, depending on how much county officials want to pay.

The county already requires repeat offenders to wear a device known as the Secure Continuous Remote Alcohol Monitor, or SCRAM, which detects alcohol consumption through secretions in the skin.

The GPS technology costs $10 per offender each day for devices that report information instantly, and $5 per day to receive the information the next day. The SCRAM monitors cost the county an additional $15 per day. Once a grant covering the program’s costs expires in 2007, officials will consider making offenders pay the cost of monitoring.

Although the technology is currently being used in only one California county, it may become more widespread as officials in other jurisdictions monitor the program’s progress. Neighboring San Bernardino County will soon launch a similar program.

As laws governing drunk driving become more and more strict, and the penalties more severe, it’s clear that accused motorists need expert legal help when confronting DUI / DWI charges. The skilled attorneys of the Kavinoky Law Firm can effectively defend driving under the influence charges throughout California.

Riverside County’s program is a perfect example of why it’s imperative to aggressively fight drunk driving charges, whether it’s a first offense or a repeat DUI / DWI, said Darren Kavinoky, KLF’s founder and a national expert on drinking and driving defense.

"Technology such as the GPS monitor can now track every move a repeat DUI offender makes," he said. "Successfully fighting a drunk driving charge means that driver will continue to enjoy the freedom that we all take for granted."

The stakes are high in a DUI / DWI case, so it’s crucial to have an experienced drunk driving lawyer providing an exceptional defense. The top attorneys of the Kavinoky Law Firm have the experience and knowledge to expertly confront a drinking and driving prosecution and keep negative consequences to a minimum.

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.