Child Endangerment

(b) (1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (2) Any person who is a caretaker
and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person,with the intent described in subdivision (a), is guilty of a felonyand shall be punished by imprisonment in the state prison for three,
six, or eight years.

This is the second post on child endangerment. This section is stating that anyone who commits one of the above mentioned acts (see previous post)with the use of force, violence, duress, menace, or fear is guilty of afelony in which time in prison shall be three, six, or eight years.These are some stiff penalties, however, the state has a very strong andcompelling interest to deter this type of crime. Part (2) states thatif you are the care taken of the dependent person and you commit this type of crime you are looking at three, six or eight years in the stateprison. Once again the state is looking to punish and deter these typesof acts.

CA Penal Code 288 - child endangerment

CA Penal Code Section 288 states the following:
(a) Any person who willfully and lewdly commits any lewd or lascivious
act, including any of the acts constituting other crimes provided for
in Part 1, upon or with the body, or any part or member thereof, of a
child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of
that person or the child, is guilty of a felony and shall be punished
by imprisonment in the state prison for three, six, or eight years.

(b) (1) Any person who commits an act described in subdivision (a) by
use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.    (2) Any person who is a caretaker
and commits an act described in subdivision (a) upon a dependent
person by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person,
with the intent described in subdivision (a), is guilty of a felony
and shall be punished by imprisonment in the state prison for three,
six, or eight years.    (c) (1) Any person who commits an act
described in subdivision (a) with the intent described in that
subdivision, and the victim is a child of 14 or 15 years, and that
person is at least 10 years older than the child, is guilty of a
public offense and shall be punished by imprisonment in the state
prison for one, two, or three years, or by imprisonment in a county
jail for not more than one year. In determining whether the person
is at least 10 years older than the child, the difference in age
shall be measured from the birth date of the person to the birth
date of the child.   
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, with the intent described
in subdivision (a), is guilty of a public offense and shall be
punished by imprisonment in the state prison for one, two, or three
years, or by imprisonment in a county jail for not more than one
year.   
(d) In any arrest or prosecution under this section or Section 288.5,
the peace officer, district attorney, and the court shall consider
the needs of the child victim or dependent person and shall do
whatever is necessary, within existing budgetary resources, and
constitutionally permissible to prevent psychological harm to the
child victim or to prevent psychological harm to the dependent person
victim resulting from participation in the court process.   
(e) Upon the conviction of any person for a violation of subdivision
(a) or (b), the court may, in addition to any other penalty or fine
imposed, order the defendant to pay an additional fine not to exceed
ten thousand dollars ($10,000). In setting the amount of the fine,
the court shall consider any relevant factors, including, but not
limited to, the seriousness and gravity of the offense, the
circumstances of its commission, whether the defendant derived any
economic gain as a result of the crime, and the extent to which the
victim suffered economic losses as a result of the crime. Every fine
imposed and collected under this section shall be deposited in the
Victim-Witness Assistance Fund to be available for appropriation to
fund child sexual exploitation and child sexual abuse victim
counseling centers and prevention programs pursuant to Section 13837.
 If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general fund
of the county treasury for the use and benefit of the county.   
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:   
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent persons:    (A) Twenty-four hour health facilities,
as defined in Sections 1250, 1250.2, and 1250.3 of the Health and
Safety Code.   
(B) Clinics.   
(C) Home health agencies.   
(D) Adult day health care centers.   
(E) Secondary schools that serve dependent persons and postsecondary
educational institutions that serve dependent persons or elders.   
(F) Sheltered workshops.   
(G) Camps.   
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.   
(I) Respite care facilities.   
(J) Foster homes.   
(K) Regional centers for persons with developmental disabilities.   
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.   
(M) An agency that supplies in-home supportive services.   
(N) Board and care facilities.   
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent persons,
including, but not limited to, in-home supportive services, as defined
in Section 14005.14 of the Welfare and Institutions Code.   
(P) Private residences.   
(2) "Board and care facilities" means licensed or unlicensed facilities
that provide assistance with one or more of the following activities:   
(A) Bathing.   
(B) Dressing.   
(C) Grooming.   
(D) Medication storage.   
(E) Medical dispensation.   
(F) Money management.   
(3) "Dependent person" means any person who has a physical or mental
impairment that substantially restricts his or her ability to carry out
normal activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities or
whose physical or mental abilities have significantly diminished
because of age. "Dependent person" includes any person who is admitted
as an inpatient to a 24-hour health facility, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.   
(g) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision
(c) apply to the owners, operators, administrators, employees,
independent contractors, agents, or volunteers working at these public
or private facilities and only to the extent that the individuals
personally commit, conspire, aid, abet, or facilitate any act
prohibited by paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c).   
(h) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision
(c) do not apply to a caretaker who is a spouse of, or who is in an
equivalent domestic relationship with, the dependent person under care.

Now this is fairly long penal code section, so we will break it down
a few parts.  Today we will cover section (a).  Section (a) states
that any person (mom, dad, brother, stranger, or other family member)
who willfully (with intent and purpose) and lewdly (done for purpose
of sexual arousal in the defendant or victim) commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body (touching the victim
or having the victim touch the defendant, with hands, arms, feet, face
or any other body part), or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

As you can see this is a serious offense and carries numerous consequences.
The Defendant will likely receive a strike for the purpose of three
strike's law, will have to give blood and saliva samples and may or may not
have to pay a fine of up to $10,000.00.  The defendant will likely
face a restraining order, reporting as a sex offender and more than like
jail time (it is highly unlikely that an individual convicted of this
crime will get probation - but it is not impossible).

Theft/Dishonest crimes

The next series of blogs will cover theft/dishonest crimes. For example, theft, embezzlement, forgery, possession of stolen property, etc. These crimes can carry significant jail time, but they also have the added detriment of being crimes involving moral turpitude when dealing with immigration. It is important to note that if an individual is convicted of a crime involving moral turpitude it may prevent any immigration benefits for the alien or the alien's spouse.

CA Penal Code 472 states as follows:

Every person who, with intent to defraud another, forges, or counterfeits the seal of this State, the seal of any public officer authorized by law, the seal of any Court of record, or the seal of any corporation, or any other public seal authorized or recognized by the laws of this State, or of any other State, Government, or country, or who falsely makes, forges, or counterfeits any impression purporting to be an impression of any such seal, or who has in his possession any such counterfeited seal or impression thereof, knowing it to be counterfeited, and willfully conceals the same, is guilty of forgery.

One of the key elements of forgery is that a person intents to defraud, forge or counterfeit the seal of certain organizations/corporations of public institutions that are recognized by the state of California. PC 472 further includes any impressions of these seals. Lastly, anyone who has in his/her possession of the counterfeited seal or impression, knows it is counterfeited and willfully conceals it is guilty of forgery.

As you can see the list is pretty expansive and can include some innocent sounding activities. Anyone that is in possession of a forged social security number or driver's license could be charged with this crime.

Violating Probation

Probation is often granted in misdemeanor and felony cases. Probation is generally preferable to incarceration. During probation the defendant must abide by the terms and conditions of probation. If you fail to abide by these terms and conditions you have violated your probation. You only need to violate one of your terms and conditions to be in trouble, you do not need to violate them all.

A violation can be something as small as drinking a beer or as big as violating a restraining order! Either of these will get you in trouble. Once you have violated your probation you are looking at possible jail time. Depending on the terms and conditions and your underlying crime you may look at getting probation reinstated or you are looking at incarceration. A great deal of this depends on your D.A. and the court you are in. Sometimes it is possible to get a serious violation dropped and a minor one to replace it and you go back on probation. Other times you are going to go to jail no matter what your attorney does. Remember, you broke the terms and conditions of your probation and while your attorney may be good they cannot change the fact that you violated probation.

If you are accused of violating probation you have the right to a Vickers hearing. This is a hearing in which the state has to prove by a preponderance of the evidence (50.01%) that you violated the probation. Furthermore, the rules of evidence are much more lax and hearsay and other forms of evidence can be admitted into the hearing. It is uncommon for a person to prove that they did not violate probation.

One of the worst things about violating probation is that you may be facing more time in custody than you would have than if you had done straight time after sentencing.

Readiness Conference

Rule 4.112. Readiness conference

(a) Date and appearances

The court may hold a readiness conference in felony cases within 1 to 14 days before the date set for trial. At the readiness conference:

(1)All trial counsel must appear and be prepared to discuss the case and determine whether the case can be disposed of without trial;

(2)The prosecuting attorney must have authority to dispose of the case; and

(3)The defendant must be present in court.

At a Readiness Conference, which may also be called a pre-trial conference, all parties discuss the case and try to determine if it can be settled before going to trial. The parties will also discuss any issues that may come up during the case or any legal matters that are pending. If the parties are unable to come to a settlement a trial date may be confirmed or a party may ask for an extension. A readiness hearing may be only a formality in certain cases (both parties are ready to go forward and it has been determined that a settlement is not an option).

PC 417(a)(1) (brandishing a weapon)

California Penal Code section 417 states:
(a) (1) Every person who, except in self-defense, in the
presence of any other person, draws or exhibits any deadly weapon
whatsoever, other than a firearm, in a rude, angry, or threatening
manner, or who in any manner, unlawfully uses a deadly weapon other
than a firearm in any fight or quarrel is guilty of a misdemeanor,
punishable by imprisonment in a county jail for not less than 30
days.
  Under PC 417(a)(1) a person is guilty of a misdemeanor if they
draw or exhibit any deadly weapon (knife, bat, machete, switch-blade,
broken bottle, crowbar, etc.) that is not a firearm in a rude,
angry or threatening manner.  The individual is also guilty of a
misdemeanor if they unlawfully use a deadly weapon (except a
firearm) in any fight or quarrel.
  The punishment for this is a minimum of 30 days in county jail.

CA Penal Code Section 484(a)

Under California Penal Code Section 484(a) a person commits
theft if:
(a) Every person who shall feloniously steal, take, carry,
lead, or drive away the personal property of another, or who
shall fraudulently appropriate property which has been
entrusted to him or her, or who shall knowingly and
designedly, by any false or fraudulent representation or
pretense, defraud any other person of money, labor or real
or personal property, or who causes or procures others to
report falsely of his or her wealth or mercantile character
and by thus imposing upon any person, obtains credit and
thereby fraudulently gets or obtains possession of money, or
property or obtains the labor or service of another, is
guilty of theft. In determining the value of the property
obtained, for the purposes of this section, the reasonable
and fair market value shall be the test, and in determining
the value of services received the contract price shall be
the test. If there be no contract price, the reasonable and
going wage for the service rendered shall govern. For the
purposes of this section, any false or fraudulent
representation or pretense made shall be treated as
continuing, so as to cover any money, property or service
received as a result thereof, and the complaint, information
or indictment may charge that the crime was committed on any
date during the particular period in question. The hiring of
any additional employee or employees without advising each
of them of every labor claim due and unpaid and every
judgment that the employer has been unable to meet shall be
prima facie evidence of intent to defraud.

The current law got rid of the various common law definitions
that used to be presented to juries.  Today, theft includes
theft by trick, theft by larceny, embezzlement, fraud, and
other forms of obtaining property of another in which you do
not have a valid claim to.  California Penal Code 484
contains more parts but I wanted to focus on 484(a) as it
defines the various types of theft.

Theft has traditionally been defined as the larcenous taking
of the personal property of another with the intent to
permanently deprive.  Today, this definition is included in
section 484, but it was expanded to include embezzlement and
other crimes.  For a conviction based on 484, the jurors only
have to convict based on any one of these crimes, they need
not agree or convict on all the discussed crimes.

H&S 11350 Possession of a controlled substance

(a) Except as otherwise provided in this division,
every person who possesses (1) any controlled
substance specified in subdivision (b) or (c), or
paragraph (1) of subdivision (f) of Section 11054,
specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in
subdivision (b) or (c) of Section 11055, or specified
in subdivision (h) of Section 11056, or (2) any
controlled substance classified in Schedule III, IV,
or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or
veterinarian licensed to practice in this state,
shall be punished by imprisonment in the state prison.
  (b) Except as otherwise provided in this division,
every person who possesses any controlled substance
specified in subdivision (e)of Section 11054 shall be
punished by imprisonment in the county jail for not
more than one year or in the state prison.
  (c) Except as otherwise provided in this division,
whenever a person who possesses any of the controlled
substances specified in subdivision (a) or (b), the
judge may, in addition to any punishment provided for
pursuant to subdivision (a) or (b), assess against
that person a fine not to exceed seventy dollars ($70)
with proceeds of this fine to be used in accordance
with Section 1463.23 of the Penal Code. The court
shall, however, take into consideration the defendant'
s ability to pay, and no defendant shall be denied
probation because of his or her inability to pay the
fine permitted under this subdivision.
  (d) Except in unusual cases in which it would not
serve the interest of justice to do so, whenever a
court grants probation pursuant to a felony conviction
under this section, in addition to any other
conditions of probation which may be imposed, the
following conditions of probation shall be ordered:
  (1) For a first offense under this section, a fine
of at least one thousand dollars ($1,000) or community
service.
  (2) For a second or subsequent offense under this
section, a fine of at least two thousand dollars
($2,000) or community service.
  (3) If a defendant does not have the ability to
pay the minimum fines specified in paragraphs (1) and
(2), community service shall be ordered in lieu of the
fine.

Possession of a controlled substance can be a difficult
case to win/fight.  The list of controlled substances
is fairly long and includes both legal and illegal
substances.  The legal substances are included if you
do not have a proper prescription for certain types of
professional. 

Punishment for this offense can include up to three years
time in custody, both state or local.  There are also
options for a drug diversion program if this is your
first offense.  Probation may be granted depending on the
circumstances of your offense.  Probation will include
a fine unless you are unable to pay it (in which case
you can likely do community service instead).

A lot of what happens in these types of cases depends on
how the officers discovered the controlled substance and
if you knew the controlled substances were in your
possession (which is a difficult proposition to fight if
it was in your pocket or in an easily reached spot).

PC 415 (public disturbance)

Any of the following persons shall be punished by imprisonment
in the county jail for a period of not more than 90 days, a fine of
not more than four hundred dollars ($400), or both such imprisonment
and fine:
  (1) Any person who unlawfully fights in a public place or
challenges another person in a public place to fight.
  (2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.
  (3) Any person who uses offensive words in a public place which
are inherently likely to provoke an immediate violent reaction.

PC 415 can be tried as a misdemeanor or as an infraction.  Ideally
you get the misdemeanor knocked down to an infraction, but this is
not always the case. 
Unlawfully fights generally means that there was no consent to the
fight or that the individuals involved in the fight did not agree
to the conduct.  For (2) malicious and willful the person must have
intended to disturb the person and did it for an "evil" purpose. 
For (3) offensive need not be swear words but words intended to provoke
a violent response from the victim.

Drugs Laws

Under the California Penal code, drug laws are under a number of different areas. For example, they can appear in Health and Safety Code or in the Penal Code. There are numerous types of controlled substances, for example, Marijuana, Methamphetamine, Cocaine, Crack-Cocaine, Heroine, Vicodin, Oxycodone are just a few of the drugs that are covered by these laws. There are many drugs that are prescriptions but can still be found to be controlled substances.

Drug laws are very harsh and can completely ruin a persons life. If you are lucky and have a skilled attorney or a friendly district attorney, you can walk way from the drug charge with nothing more than a warning (highly unusual and don't expect it!). More like, if it is your first offense and you had a small amount on you (this all depends on the controlled substance) you will likely get probation and have to take narcotics anonymous classes. If you have multiple offenses or were caught with a great deal of the controlled substance you are probably looking at state time.

The laws are broken down into a couple categories. There can be drug possession for personal use or drug possession with intent to sell. In general possession with the intent to sell is worse than drug possession for personal use.

Burglary - in California

California Penal code 459 states that a burglary is:

459.  Every person who enters any house, room, apartment, tenement,
shop, warehouse, store, mill, barn, stable, outhouse or other
building, tent, vessel, as defined in Section 21 of the Harbors and
Navigation Code, floating home, as defined in subdivision (d) of
Section 18075.55 of the Health and Safety Code, railroad car, locked
or sealed cargo container, whether or not mounted on a vehicle,
trailer coach, as defined in Section 635 of the Vehicle Code, any
house car, as defined in Section 362 of the Vehicle Code, inhabited
camper, as defined in Section 243 of the Vehicle Code, vehicle as
defined by the Vehicle Code, when the doors are locked, aircraft as
defined by Section 21012 of the Public Utilities Code, or mine or any
underground portion thereof, with intent to commit grand or petit
larceny or any felony is guilty of burglary. As used in this chapter,
"inhabited" means currently being used for dwelling purposes,
whether occupied or not. A house, trailer, vessel designed for
habitation, or portion of a building is currently being used for
dwelling purposes if, at the time of the burglary, it was not
occupied solely because a natural or other disaster caused the
occupants to leave the premises.

There is a lot of language here, but in essence a burglary is the unlawful,
entering of a dwelling (or place of business) with the intent to commit a
crime. Under the old common law the requirements were very strict
and could be hard to prove. Today, the prosecution needs to prove that
you the defendant, entered a building (or other specified areas) with the
intent to commit a crime. The hard part hear for the prosecution is
the intent aspect. If you were in a store and picked something up and
put it in your cart but forgot to put it on the stand you will probably not
get charged with burglary. Things change if you put it in your purse and
walked out of the store.

Each case of burglary is heavily dependent on the facts and you should
consult an experienced attorney to help you with any matter you may have.

Reinstatement of Probation

Sometimes despite our best efforts we make a mistake after we are on probation. When this happens a number of things can happen. The judge may terminate our probation and issue a warrant. The judge may continue the probation if you have shown a good faith effort to comply with the terms and conditions of your probation. No matter what happens you need to take care of the matter in front of you. An attorney can help get your terms and conditions of probation changed or reinstate a prior probation if you failed to comply with the probation.

Of course, the ability of the attorney to fix your probation error depends on how you messed up your terms of probation. If you happened to miss a few hours of community service the attorney can generally fix that problem by extending the probationary period. But, if you commit a serious crime while on probation there is probably very little that your attorney can do for you unless there are some serious mitigating circumstances.

Reinstatement of probation is potentially a very useful thing for many people as it will prevent the imposition of the sentence, meaning you will not go to jail! Therefore complying with your probation is very important and will keep you out of trouble and out of jail.

Robbery PC 211

CA penal code Section 211 is the crime of robbery.
The code defines robbery as:

Robbery is the felonious taking of personal property
in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of
force or fear.

Robbery can easily be described as theft with force or
threat of force. A person commits robbery when he or she
takes the personal property of another (wallet, keys,
clothes, or other items) with the use of force or the threat
of force on the victim.  There are a few other
requirements for robbery, but these are the basic
requirements.  Force can be minimal such as a simple touch
it need cause injury to the victim.

Robbery is a serious crime and carries serious penalties
for those who are convicted.

Restitution hearing

A restitution hearing is a criminal hearing in which the court determines by the evidence provided what amount of restitution the defendant must pay to the victim. The amount can come straight out of pocket or it can come from insurance proceeds or other sources. If there is an identifiable victim there will more than likely be a restitution hearing. Restitution hearings will probably not occur if there is no damage to the public, for example you are charged with drunk in public and no damage to property or drunk driving and no accident occurred.

Restitution hearings occur after conviction or a plea and can occur a number of months later. The victim is allowed to speak/be present at the hearing and can present evidence as to the amount of damages they suffered. The court can accept or reject this evidence depending on credibility and relevance.

Parole

Parole is akin to probation but is still distinct. Probation is when you have been convicted of a crime but you do not serve any jail time, instead you are either on formal or informal probation - in essence the Court wants to make sure you stay on your best behavior.

Parole is for those individuals who have served time but are let out early. For example if the individual is sentenced to 10 years prison time but only serves 6 before being let out, the individual will have to serve some time on parole (likely one year). During this time the individual is to follow all laws, be a model citizen, keep in contact with your parole officer and refrain from any drugs or alcohol.

Parole is intended as a means of introducing individuals who were incarcerated back into the general public. In California a person with a life sentence will be released into the general public if the Board of Prison Terms determines that the individual is no longer an unreasonable danger to the public. The Board looks at many factors including the individuals programming, criminal history, prison history, vocational skills, education and support in the general populace if let out.

Depending on what the individual did he or she may or may not get parole. Once an individual gets parole it is in their best interest to follow the terms and conditions of the parole otherwise they are looking at significant jail time.

Motions

A motion is a legal action that is asking the court to do something. A motion can be made orally or written. Oral motions are generally made during court or at a court hearing. Written motions are much more formal and follow a set of rules. Motions encompass a large number of topics.

For example:
Motion to suppress is a motion to prevent certain evidence from coming in at trial

Motion to compel is a motion that forces a party to do something, e.g. provide evidence, appear at a deposition, etc.

Medical Motion is a motion to require the state to provide certain medical needs for an individual.

Motions in limini are motions made right before a trial to determine the admissibility or evidence or what type of evidence may be introduced during trial (for example what topics can be covered by a witness)

These are just a few of the motions that can be made on your behalf. Now, motions may not always been the best choice when planning a strategy for your case. If you file a frivolous motion you run the risk of angering the judge or prosecutor who could make your life much harder from that point on. Furthermore, it may be easier to get what you want by talking to the prosecution and getting a stipulation (which is an agreement between the parties to a certain set of conditions or rules or outcome).

Motions are a powerful tool of any case, but as mentioned above may not be needed or may be detrimental to your case depending on your circumstances. Lastly, when your attorney is drafting a motion for you make sure the information provided is correct otherwise it may come back to haunt you!

Probation

Probation occurs when the court imposes a prison term, but does not require the defendant to serve actual prison time. The individual must behave and comport to the terms and conditions of the probation or they will serve time. The prison term floats over the defendant's head for the entire term, for example in CA for a first time D.U.I. offense there is probation for 3 years. This means the individual must obey the rules for those three years (you should always obey the rules) and if you do not then the prior sentence gets imposed - you go to jail.

Depending on the terms and conditions you may need a probation officer or you may have to show up to court on your own. Most people prefer not having a probation officer as it allows more freedom and you are acting on your own honor to abide by the rules. However, certain crimes will require you to have a probation officer whether you like it or not.

While on probation your constitutional rights are limited. For example you will have to submit to a breathalizer or blood test if asked by the police. You generally have to give fingerprints or other biometric information to the police. You cannot break any laws except for maybe traffic violations (speeding, doing a U-turn when not allowed, etc.).

Probation is a realistic option for the justice system that is overflowing with inmates. Allowing individuals to remain outside of custody decreases the burden on the courts, on the prisons and on the state. If the courts were to require everyone to go to prison or jail then our already overburdened system would cease to function due to over-population. When you are charged with a crime, I highly recommend that you attempt to get probation and then ABIDE by the rules set forth by the probation even if they seem trivial or stupid. You do NOT want to go to jail or prison because you could not get home before curfew or you just had to have a drink!

Alternative Sentencing

Alternative sentencing is sometimes an option for criminal offenders. An alternative sentence will allow an individual to stay out of prison and in some cases can replace certain fees. In order to get an alternative sentence both the judge, prosecutor and defendant must agree to the terms and conditions. The judge or prosecutor will accept not just any alternative sentencing program.Some judges are more accepting of alternative sentences than others and some almost never seem to accept them. In order to get an alternative sentence one must generally have an attorney as the attorney will likely have a good relationship with the judge and prosecutor and present a good offer.

Alternative sentencing includes community-based programs, such as tree farming, road clean-up, community service, work release programs, and graffiti clean up, as well as drug and alcohol rehabilitation programs. Keep in mind that Alternative Sentencing is punishment and must fit the crime. Some alternative sentencing arraignments fit only for misdemeanors and others work for felonies. For example, to get into a drug rehabilitation program you may have to plead to a felony.

Alternative sentences can apply to individuals who fall within these parameters (just because you fall within these does not mean you will get alternative sentencing)

• Have not committed the ‘worst' crimes and no mandatory sentence

• Have not committed numerous crimes

• Have not committed a serious felony, with or without the use of a weapon

• Do not pose a risk to themselves or the community

Traffic Violations

Traffic violations can be infractions, misdemeanors or in some cases felonies. A speeding ticket is an infraction in most cases. A D.U.I. is generally a misdemeanor and vehicular manslaughter is a felony. As you can see the penalty (infraction, misdemeanor or felony) increases with the severity of the crime.

In a traffic violation a person can plead guilty or request a trial just like a misdemeanor or felony. However, these are much more lax in the application of the rules given that at most the individual is looking at a monetary fine. The monetary fines are both criminal and civil in nature. The presiding judge or commissioner takes your guilty or not guilty plea and then determines what your civil penalties are. The amount you pay can range greatly.

If you failed to appear for a prior court appearance the penalty with be much higher than it would be if you had appeared on the prior court date. There are some alternatives as well, for example tree farming or other community service can help reduce the amount you are required to pay. Generally, you are given 30 days to pay the fine unless the amount is fairly large, at that point the judge may give you 90 days to pay the fine.

DMV hearing

In certain cases when an individual violates the law the DMV will hold a hearing to determine the individuals suitability to drive. This is not a criminal proceeding and requirements for due process are not the same. This is a civil procedure so the burden of proof is only a preponderance of the evidence (51% proof as opposed to beyond a reasonable doubt). This makes it much easier for the DMV to revoke or suspend an individual's license. Furthermore, when certain crimes are committed the individuals license is automatically revoked and the person must wait a year or more before they can get a license.

One must remember that a license is a privilege not a right and a privilege can be revoked, unlike a right which will always exist unless you waive it (e.g. Miranda rights). The DMV cannot permanently keep your license, however, they can suspend your license for a number of months to a few years depending on the alleged crime or the number of points one has on their record. The point system is designed to tell them DMV when you are an unsafe driver. For example speeding 20 miles over the speed limit might get you 2 points taken off your record; going through a red light might be one.

DMV hearings can be in person or over the phone. Given the recent centralization of the DMV services the number of hearings over the phone is constantly increasing. During these hearings you can produce your own evidence or witnesses. However, the rules of court do not apply and more often then not the issues being looked at by the hearing are limited in nature and may not go towards the underlying offense. In general the DMV will likely suspend your license for a period of time.