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Criminal Records, Employment and Expungement

The ability of employers to obtain a person’s criminal history has been simplified with the availability of online background check services. These information companies have organized criminal court records into extensive national databases that can be searched by name and date of birth. This new technology allows potential employers, licensing agencies and professional organizations to conduct a quick and thorough background check of your criminal record in moments.

Though Governor Brown signed AB 218, effective July 1, 2014, which bars public sector employers from asking about criminal records on employment applications, job applicants should be aware that this California measure does not apply to private businesses. However, local ordinances may include “ban the box” laws which prohibit some private businesses from including criminal record questions on job applications.

Miranda Rights and Pre-Arrest Questioning

In America, almost all TV cop shows have a scene where the hard nosed detective reads some hapless soul his “Miranda Rights.” As this scene has become almost obligatory, most dedicated TV fans can recite the familiar litany by heart. “You have the right….”

However, the exact wording of the “Miranda Rights” statement was not specified in Miranda v. Arizona, the landmark case in which the Supreme Court established the necessity of informing those in custody of their rights. As a practical matter, law enforcement agencies created a basic set of simple statements that can be read to accused persons prior to any questioning.

Sealing Juvenile Records in California

In California, the far reaching implications of a juvenile record, like an adult record, can include not only social stigma but, more importantly, barriers to employment, licensing, and housing years after a young person exits the juvenile system. Many people believe that their juvenile records are automatically sealed once they turn eighteen. They are not. These records remain accessible until a judicial order is obtained to have them sealed. Record sealing can offer many advantages, but people are often unaware that the process may be available to them.

Any criminal activity you were involved in as a minor (while under 18 years of age) is included in a California juvenile record. This encompasses arrest reports, court records, judge’s findings and rulings, exhibits, and probation reports. Keep in mind that juvenile proceedings are not technically considered “criminal” in nature. Being found guilty and declared a “ward of the juvenile court,” is not considered a criminal conviction. Thus even if juvenile records aren’t sealed, in a purely legal sense you have never been convicted of a “crime.”

Sentencing Enhancements

Sentencing enhancements can add more time in prison for a defendant convicted of a crime that was committed under special circumstances. Enhancements often come into play when either of two factors are present; firearms (or other deadly weapons) and gang affiliation. An enhancement is time added over and above the time that a person would normally receive for the specified crime they are accused of. These enhancements, particularly those given for the use of a weapon, can often exceed the sentence received for conviction of the actual crime itself.

California lawmakers have recognized that felony offenses involving firearms are much more serious and should carry harsher punishments. This lead the legislature to enact California Penal Code Section 12022 PC, which is a sentencing enhancement applicable to those whose felony offenses were committed while armed with a firearm. In these cases, the defendant is also accused of being armed with either a gun or another serious weapon as well as being accused of committing a felony crime. This enhancement can add significant prison time to any felony sentence imposed, up to life imprisonment in some extreme cases.

Possession of a Controlled Substance

While most references to “controlled substances” concern illegal drugs, the term actually applies to any drug, chemical, or material that has restricted use. California law makes it is not only illegal to possess drugs like cocaine and meth, but also certain “pharmacy” medications like hydrocodone, Xanax, and oxycontin unless you have a valid prescription. An individual may even face criminal charges if the controlled substance belongs to another, with or without that individual’s knowledge of the drug’s presence.

California has a Uniform Controlled Substance Act that is a consolidation of laws, comprising thirteen chapters, that regulate the possession, manufacture and distribution of prescription drugs like narcotics, stimulants, and depressants. Hallucinogens, anabolic steroids, and chemicals used in the illicit production of controlled substances or illegal drugs are also defined and regulated. The act provides for a clandestine laboratory enforcement program.

California DUI: Pre-trial Procedures

Upon being pulled over for suspicion of DUI, law enforcement officers will administer field sobriety tests (FSTs) and perhaps a breathalyzer test, technically known as a Preliminary Alcohol Screening (PAS) device. If the decision to place you under arrest is made, the law requires that the officer notify you that your license will be suspended in 30 days. The officer is also required to immediately forward a copy of a completed notice of suspension or revocation form, any driver’s license taken into possession, and a sworn report to the DMV.

The officer will then take the DUI suspect to a hospital, police station or jail for a blood or breath test to measure their blood alcohol level. Breath test readings are immediately available, however blood samples are sent to a laboratory for analysis, so the results may take several days. Frequently, the suspect will be held for several hours in a holding facility prior to your release. After any DUI test(s) have been completed (or refused), the suspect will get booked and released.

Prescriptions and DUI in California

Though most DUIs (driving under the influence) in California involve the use of alcohol or illegal drugs, an increasing number of DUI prosecutions are for legitimate prescription drugs that are legally possessed and taken by patients. California Vehicle Code Section 23152(a) makes a criminal offense to operate a motor vehicle under the influence of alcohol or drugs.

Because they have the same end effect of impairing the driver, the statute does not differentiate between legally prescribed medicines and illegal street drugs or alcohol. This makes doctor prescribed medicines such as pain killers, amphetamines, sleep aids, and marijuana identical to alcohol for the purposes of charging a driver with DUI.

Charging a Criminal Case: The Grand Jury

A lot of criminal cases begin with an arrest. After the arrest, the police will make a report that summarizes the events leading up the arrest. The police will then send the arrest report to a prosecutor. It is the job of the prosecutor to initiate and prosecute criminal cases utilizing one of three possible methods. He may decide that the case should be charged (as a felony or a misdemeanor), and file a complaint with the trial court or decide that the matter should not be pursued. The third option is to decide that the case should be charged as a felony and bring evidence before citizens serving as grand jurors, who will decide what charges, if any, to file.

The Role of a Grand Jury

Case Closed: Dismissal With or Without Prejudice

At the conclusion of a preliminary hearing, the court has the power to dismiss a criminal case for a variety of reasons and in two distinct manners: with or without prejudice. A judge may dismiss a case that was brought in bad faith, if there was misconduct on the part of the prosecution, the rules of the court were not followed or the state did not prosecute the case within a reasonable time and violated the defendant’s right to a speedy trial. A judge may also dismiss a case based on a belief that there is insufficient evidence to “hold [a defendant] to answer for the charge(s).” The court may make the dismissal on their own volition or they can rule in favor of a motion filed by a criminal defense lawyer on behalf of his client.

Dismissal Without prejudice

Plea Bargaining in California DUI Cases

Being arrested for a California DUI doesn’t necessarily mean a conviction of that charge, because under certain circumstances, it might be possible to negotiate a “wet reckless” instead. The term wet reckless derives from Vehicle Code Section 23103.5, which provides for a conviction of reckless driving involving alcohol. Though the primary goal of a skilled DUI attorney is obviously to have your charges dismissed, a plea bargain of “wet reckless,” if accepted by the prosecution, would be a favorable option.

In some cases, the prosecutor may determine that the DUI charge against you has some weaknesses. An example of a weak case might be indicated by a breath test or blood test resulted in a BAC close to 0.08, if the driving and Field Sobriety Tests were marginal, and the defendant had no prior record. In such instances, the prosecutor might offer the option to plea bargain for a wet reckless. Successful efforts to bargain for a wet reckless means a reduced charge with a reduced sentence.

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