New Court for Veterans in San Mateo County

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Following a national trend of establishing courts that can specially attend to the needs of veterans, San Mateo County now has a Veterans’ Treatment Court (VTC) for current and former members of the United States Military. These courts come in response to ample research showing that imprisonment can severely aggravate PTSD and other mental health conditions military veterans often have and are part of a concerted effort to keep veterans out of jail and prison.

Participants in San Mateo County’s VTC enroll in mental health treatment and therapy and/or substance abuse counseling as well as other services like job training, and receive intensive supervision by probation. Participants may have to agree to additional probation conditions, such as wearing an electronic monitoring device, agreeing to take prescribed medications, or giving up due process rights. Upon completion of an agreed upon program, participants may have fines reduced, probation terminated early, and charges dismissed or expunged.

The eligibility requirements for VTC are:

  1.  Prior or current membership in the U.S. military and be eligible for Veterans’ Administration benefits;
  2.  Have a diagnosis of Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma and/or substance abuse or other mental health issue that stems from military service; and
  3.  Be eligible for probation and not considered to be a danger to the community.

Participation is voluntary.  Participation may be to your benefit but it may also add consequences and conditions you might not otherwise have, so it’s best to talk to a defense attorney before applying to transfer your case to VTC.  The Law Offices of Thomas Greenberg can help by counseling you in this decision and by representing you in whichever court you choose.

Applying for Deferred Action With a Criminal Record

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Will your criminal record be a bar to your eligibility for Deferred Action for Childhood Arrivals? The new deferred action immigration policy has several eligibility requirements including a relatively clean criminal record. If you have a minor conviction on your record, are you still eligible? Is it worth getting your conviction expunged or dismissed? And if you are considering a plea bargain, are there certain charges you should avoid?

If you apply for deferred action status, the Department of Homeland Security (DHS) will consider you entire criminal record—including arrests and dismissed convictions, but not all convictions are considered bars to eligibility.  Below is a brief explanation and links to further resources.

1. Deferred Action is a discretionary policy, but these offenses generally disqualify an individual at the outset:

  • A felony conviction (offenses punishable by more than one year of imprisonment).
  • A “significant misdemeanor” conviction. “Significant misdemeanors” include: domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm, drug sales, burglary, driving under the influence, and any other misdemeanor for which you received a jail sentence of more than 90 days.
  • Multiple misdemeanor convictions: three or more non-significant misdemeanors, not including traffic offenses (such as driving without a license).
  • Convictions suggesting that you pose a threat to national or public safety (e.g., with gang enhancements).

Even if you have the above types of convictions on your record, you may be eligible under exceptional circumstances (See INA 240(e)).

How do you know what type of conviction you have? If you are considering applying for deferred action, you should request your entire criminal record (from the FBI as well as the Department of Justice in any state where you lived or were arrested) so that you can check for the exact status of any contact you have had with law enforcement and also so that you can check it for mistakes.

2.  Is it worth it to get an old conviction dismissed or expunged?

Having an old conviction dismissed or expunged may help your application if your conviction would otherwise automatically disqualify you. The Law Offices of Thomas Greenberg has extensive experience getting old convictions dismissed and can help you.

Another option—better than getting a dismissal—would be to withdraw your plea (if it was recently entered) for good cause under California Penal Code section 1018 or have your plea vacated (undone) for legal error.  It can be a complex and difficult process to get a judge to vacate your plea, but it may be worthwhile.

3.  What about juvenile convictions?

Juvenile convictions do not automatically disqualify you for deferred action, however, they will be considered.

4. What if you have criminal charges pending?

If you have a criminal case pending, tell your attorney that you are a noncitizen and that you want to try to preserve your eligibility for deferred action. You may want to consider the following options, if available: informally deferring an entry of plea; seeking a deferred adjudication; entering a plea to a lesser, non-significant misdemeanor offense and obtaining a lesser jail sentence; pleading to an infraction or a minor traffic offense—if you are facing a DUI, you definitely want to try to pursue a lesser plea to protect your eligibility for deferred action. The Law Offices of Thomas Greenberg has been very successful in helping clients get charges reduced and protecting their immigration status.

Additional Resources:

Own the Dream http://www.weownthedream.org/

Immigrant Legal Resource Center http://www.ilrc.org/news-events/new-updated-resources-on-criminal-bars-to-deferred-action-for-childhood-arrivals

U.S. Citizenship and Immigration Services: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD

 

Your Criminal Conviction and Your Job Application

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Applying for a Job With a Criminal Record

The federal government is realizing how much criminal convictions for even minor transgressions of the law can hold people back from getting or keeping jobs. Currently, one in four Americans has a criminal conviction of some sort. Employers have a lot of access to applicants’ background reports. Employers can hold some convictions against you, but not others, and employers are required to follow certain procedures when looking into your criminal background.

This new video by the Federal Trade Commission provides some helpful information about how to deal with your criminal conviction when applying for jobs and what rights you have if you think an employer is discriminating against you for your criminal record:

http://www.ftc.gov/multimedia/video/jobs.shtm

 

 

Once The Restraining Order is Up, Should You Make Contact with the Alleged Victim?

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Very often, people facing charges where a restraining order has been imposed want to approach the alleged victim after the restraining order expires in order to try to make amends or to find out if the person wants to testify against you.  Where children are involved or the relationship is complicated in other ways, the restraining order may have caused excruciating disruption to your life.  Is talking to the person protected by the restraining order before or while court proceedings are underway a good idea?

 These are some things you should consider before making contact:

1. If you talk to him/her, could you in any way be charged with the crime of dissuading a witness? Dissuading a witness/victim (PC 136.1) is a very serious charge that you do not want added to whatever you are already facing.  You may be charged with PC 136.1 if you prevent, dissuade, or intimidate a witness from doing any of the following:

    • Attending or testifying at any court proceeding,
    • Reporting the crime,
    • Aiding in the prosecution of the case, or
    • Aiding in the arrest process.

2. Is the alleged victim the person who called the police?  Keep in mind that this person got you arrested once and he/she might get you arrested again.  If the alleged victim is unstable or extremely angry, he/she may make a false report even if your is completely non-violent and within the bounds of the law.

3. Do you have anyone else who could talk to the alleged victim instead of you?  For personal matters, do you have a close friend or family member?  Regarding your case and whether the alleged victim is interested in testifying against you, it is best to go through a professional so that neither you nor your friend or family member risks being charged with dissuading a witness.  Can you go through an investigator?

4. Can you get a legal opinion before you talk to the alleged victim to find out what you should and should not say or discuss, and to find out whether talking to him/her is really in your interest.  The Law Offices of Thomas Greenberg have handled hundreds of these cases and are a good resource.  Call today to discuss your case.

Criminal Threats

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California Penal Code section 422 defines the crime of “criminal threats” (formerly “terrorist threats”) as threatening to kill or physically harm someone, causing that person to reasonably fear for his/herself or his/her family member. The threat must be unconditional, unequivocal, specific and immediate. The threat may be communicated verbally, in writing, or electronically. If you are being charged with PC 422 and have made threats against multiple people or made threats on more than one occasion, you could face penalties for each threat communicated.

Criminal threats (PC 422) can be charged as either a misdemeanor or a felony. A misdemeanor conviction for criminal threats can result in up to a year in jail. A felony conviction for criminal threats can result in up to four years in prison, plus one year if a dangerous or deadly weapon was used. A felony conviction for criminal threats can be considered a “strike” under California’s three strikes law.

Criminal threats is a serious charge. Criminal threats is considered a crime of moral turpitude, and as such, a conviction for PC 422 may expose you to professional discipline or deportation or removal if you are a legal immigrant or alien. Criminal threats is also considered a crime of violence and is considered a deportable domestic violence offense if committed against a domestic violence victim. If a sentence of a year or more is imposed, PC 422 is considered an aggravated felony.

Criminal threats is often one of several charges filed in situations involving battery or domestic violence, although it is also charged as a single offense, such as if the prosecutor does not have enough evidence to substantiate a more grievous crime. Your attorney may be able to get your PC 422 charged reduced or dismissed. Depending on the facts, one of the following lesser charges may be a better option for you in plea bargaining:

  • PC 236 – false imprisonment (misdemeanor 236 generally is not a crime of moral turpitude)
  • PC 240, 241 – simple assault (not a crime of moral turpitude)
  • PC 415 – public disturbance (misdemeanor or infraction)
  • PC 594 – vandalism (not a crime of moral turpitude)
  • PC 602.5 – trespass (not a crime of moral turpitude)

Defenses for Criminal Threats

The facts of your case may support one or more of the following defenses:

  1. The statement was not specific – e.g., “What do I have to do to get your attention—burn down the neighborhood?” (it isn’t clear that a specific person is being threatened) or “I’m going to kill the (unknown) person who took my things and put her body on your porch” (the statement to kill an unknown person is not specific enough to be considered a criminal threat).
  2. The statement was equivocal.
  3. The recipient’s fear was not reasonable – e.g., the statement was so outrageous as to be unbelievable.
  4. The person who was threatened was not actually in fear.
  5. The person threatened only experienced fleeting, momentary fear.
  6. You did not intend your statement to be received as a threat—e.g., you were just blowing off steam.
  7. The statements were constitutionally protected speech. PC 422 is intended to punish those who try to instill fear in others; it was not enacted to punish emotional outbursts, and it does not punish such things as “mere angry utterances or ranting soliloquies, however violent.” (Ryan D., supra, 100 Cal.App.4th at p. 861, 123 Cal.Rptr.2d 193.).
  8. A threatening gesture was made but no threat was communicated verbally, in writing, or electronically.
  9. No threat was made—the allegation was false.

Additional Complications to Criminal Threat Charges

You may be facing significantly increased penalties if your charge of PC 422 arose out of one of the situations below:

PC 136.1: Dissuading a Witness

It is illegal to prevent or attempt to prevent any witness or victim of a crime from reporting the crime or testifying about the crime. If you attempt to dissuade a witness from testifying by threatening imminent harm, then you may be charged with PC 422 in addition to PC 136.1. PC 136.1 is a wobbler (it may be charged as a felony or a misdemeanor), punishable by up to a year in county jail (as a misdemeanor) or up to four years in state prison (as a felony).

PC 518: Extortion

Extortion is the use of force or threats to gain money, property, or other services. Extortion is a felony punishable by two, three, or four years in prison and up to a $10,000 fine.

Domestic Violence

PC 422 may be one of several charges filed after a domestic violence arrest, or the charge of criminal threats as a crime of domestic violence may be filed. Domestic violence charges may be filed if the victim is the defendant’s current or former spouse, romantic partner, roommate, child, or parent.

PC 646.9: Stalking

Stalking is the crime of harassing or threatening a person to the point that the person fears for the safety of his/herself or his/her family. The crime of stalking may be charged in addition to the crime of criminal  threats. A conviction for stalking adds up to five years in state prison (for a felony) or up to a year in county jail (for a misdemeanor).

PC 186.22: Gang Enhancement

Making a criminal threat for the benefit of a gang can increase the sentence for a PC 422 conviction by five, ten, fifteen, twenty years in prison, or 25 years to life.
Criminal threats is a serious charge, whether you are facing it as a solitary charge or combined with other charges. It’s important that you get an experienced attorney who will fight for you. The Law Offices of Thomas Greenberg has handled hundreds of PC 422 cases and can help you get the best possible outcome. Call today for a free consultation.

New Law Would Reduce Penalty for Simple Drug Possession

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The California State Senate is considering a bill introduced by State Senator Mark Leno that would reduce the penalty for simple drug possession from a possible felony to a misdemeanor only, and would eliminate the recent trend of lengthy prison sentences for minor drug possession.  The bill, SB1506, recently won support from a Senate legislative committee.

California Simple Drug Possession Laws

You might think, didn’t California already reduce the penalty for simple drug possession?  No. Possession of meth and ecstasy and many controlled substances is a “wobbler,” meaning the prosecutor can charge either a felony or a misdemeanor, depending on the facts of the case; possession of cocaine, heroin, and many other drugs is a felony.  In 2000, California voters passed Proposition 36, which allows people convicted of simple possession to get treatment for drug use instead of going to prison, but the initial money for the program has run out and the state has not funded it further.

If SB1506 becomes enacted into law, California would become the 14th state in the country to treat simple drug possession as a misdemeanor.  Simple drug possession means drugs for personal use and not intended to be sold.  Under federal law, simple drug possession is a misdemeanor.  The bill does not apply to anyone involved in selling, manufacturing, or possessing drugs for sale.

Senator Leno’s reasons for reducing the penalty for simple drug possession are that there is no evidence to show that long prison sentences deter or limit people from abusing drugs, and meanwhile, harsh penalties for simple drug possession causes prison and jail overcrowding.  He added, “Time behind bars and felony records often have horrible unintended consequences for people trying to overcome addiction because they are unlikely to receive drug treatment in prison and have few job prospects and educational opportunities when they leave. This legislation will help implement public safety realignment and protect our communities by reserving prison and jail space for more serious offenders.”

Senator Leno believes that the bill would help alleviate overcrowding in state prisons and county jails, ease pressure on California’s court system, and result in millions of dollars in annual savings for both state and local governments.  Indeed, the Legislative Analyst’s Office estimates that SB1506 would result in annual savings of nearly $160 million for counties and approximately $64 million for the state. It also would reduce the average daily state prison population by about 2,200 people and the average daily county jails population by 2,000 people.

For more information, see:  http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/04/17/MNDU1O4MFP.DTL#ixzz1sWG1MAFq

Faulty Blood Alcohol Breath Tests

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San Francisco DUI InvestigationThe past two weeks have seen a lot of news about faulty breath tests and the effect on DUI convictions.  The San Francisco Public Defender Office discovered that the San Francisco Police Department had been falsifying the calibration records for the preliminary alcohol screening (PAS) device its officers use in the field.  The San Francisco Public Defender discovered that SFPD had been fabricating testing records for 20 in-the-field Alco-Sensor IV devices rather than actually conduct accuracy checks every 10 days or 150 tests, as recommended by the manufacturer.

The public defender noticed this fabrication after comparing police logs for calibration records dating back to 2010 and discovering that the logs for the various devices were identical to each other.  As a result, San Francisco may throw out as many as 1,000 DUI convictions.  Other counties that use the Alco-Sensor IV in the field (Santa Clara, Ventura, and others) may also have to re-examine their convictions.

Might this apply to you?  Only if your DUI conviction relied on the in-the-field PAS test alone, and not a breath or blood test that you took at the station.  The breath-analyzing devices and blood tests have not been called into question.

For more information, see this San Francisco Chronicle front page article http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/05/BAT51NGCFC.DTL and this March 12, 2012 front page follow-up piece: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/12/MN551NI15D.DTL

CPA Licenses and the Duty to Report Convictions

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What Must You Disclose When Applying for Initial CPA License in California or When Reapplying After License Lapsed?

When applying for your initial CPA license in California, you must disclose any and all convictions—felonies, misdemeanors, and infractions—only minor traffic infractions may be excluded. Disclose your convictions on the required “Criminal Conviction Disclosure Form” that you submit with your application to the California Board of Accountancy (CBA).

  • You are required to disclose any pleas, verdicts, or findings by a trial court, even if the conviction may not be final or the sentence actually imposed, until appeals are exhausted.
  • DUIs are not considered minor traffic infractions (they are misdemeanors, or in some cases felonies), and must be disclosed.
  • You are required to disclose convictions that arose from military service, convictions in which the imposition or execution of sentence was suspended, convictions which arose as a result of a failure to appear, and any for which an order of rehabilitation was entered.
  • You are also required to report convictions that have been expunged or dismissed or for which a pardon was granted. Even though you are required to report expunged or dismissed convictions to the California Board of Accountancy, it is still advisable to get any and all convictions eligible for reduction or dismissal for reduction, reduced and dismissed. For more information about getting convictions expunged in San Mateo, Santa Clara, and San Francisco counties, see http://www.defendca.com/expungement-san-mateo.php

For any convictions other than minor traffic infractions, you will need to provide details including: the date of arrest, city and state where arrested, name and location of court where case was heard, details of the violation, details of the sentence imposed, conditions of probation, and fines ordered.

In addition to submitting the Criminal Conviction Disclosure Form, you will also have to furnish your fingerprints to the CBA. The CBA will conduct a criminal history record check with the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). In addition to authorizing a background check, submitting your fingerprints also authorizes the CBA to receive subsequent criminal conviction information on you as an applicant or licensee.

Do CPAs Have An Ongoing Duty to Report Arrests, Charges, or Convictions to the California Board of Accountancy?

When you furnish your fingerprints to the California Board of Accountancy (CBA), you not only authorize the board to conduct a criminal history record check, you also authorize the Board to receive subsequent criminal conviction information on you as an applicant or licensee. Criminal conviction information the board receives includes notice of any plea or verdict of guilty, and any conviction following a plea of nolo contendere (no contest).
Criminal convictions can trigger the CBA to take disciplinary action against you, including revocation or suspension of your license, conditions of probation such as ethics courses or fines, refusal to renew your license, or censure.

You must report to the board in writing, within30 days of the knowledge of a conviction for:

(A) Any felony.
(B) Any crime related to the qualifications, functions, or duties of a public accountant or certified public accountant, or to acts or activities in the course and scope of the practice of public accountancy.
(C) Any crime involving theft, embezzlement, misappropriation of funds or property, breach of a fiduciary responsibility, or the preparation, publication, or dissemination of false, fraudulent, or materially misleading financial statements, reports, or information.
Be aware that California courts are required to report to the board convictions and judgments listed above under (a) and (c), within ten days of entry.

The board is permitted to take action when the time for appeal has elapsed, the conviction is affirmed on appeal, or when an order granting probation is made—however, it is often in your interest to report initial pleas and sentence pronouncements.

The law says that the board can only take away your license based on a conviction that is substantially related to the qualifications, functions, or duties of an accountant. The board specifies that this includes crimes involving dishonesty, fraud, or breach of fiduciary duty, as well as violations of the California Accountancy Act. In addition, the CBA has tried to discipline CPAs for DUI and domestic violence convictions. You will want to argue to the board that the conviction in your case is not related to the job and does not implicate your fitness to perform your profession.

The Law Offices of Thomas Greenberg can help you get the best possible outcome in your criminal case. As our office handles criminal matters exclusively, we will consult with an experienced employment attorney regarding proceeding before any administrative board.

Stopped for a DUI in California: What to do next

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Being stopped for DUI in California is a frightening and often a confusing experience.  If you drink and you own a car, you should  take precautions to avoid driving under the influence.  If you have been drinking, it can be difficult to tell whether you have sobered up enough to drive.

Keep these things in mind in case you are ever stopped for DUI:

  • Request your right to an attorney and do not answer questions.

    As soon as the police tell you that they suspect you of driving under the influence, tell the police that you want to cooperate and that you want to talk to an attorney before you answer any of their questions.  Provide the following four things:  license, registration, proof of insurance, and a blood test (unless you have any drugs in your system).

  • Do take the blood test—unless you have intoxicating narcotics in your system.

    When you get a California driving license you consent in advance to taking a blood or breath test if you are stopped on suspicion for driving under the influence.  If you request the blood test, in most cases it takes longer to submit to a blood test than a breath test because a blood test requires a licensed phlebotomist, who is usually not immediately available, whereas and evidentiary breath test can be administered by a police officer.  During this delay, which can take between a half an hour to an hour, your Blood Alcohol Level will drop.  For instance, a person who takes a breath test immediately after the arrest that shows a .10, had she requested a blood test may have gotten a reading of .07 due to the delay.

  • Call an attorney immediately.

    You need to contact an skilled DUI defense attorney immediately for three reasons:  (1) to be sure that you have one available for the court date, (2) so that the attorney can request the police report and conduct any necessary investigation, and (3) so that the attorney can represent you at the DMV hearing.

  • Avoid discussing your case with anyone other than your attorney.

    Anything you say to anyone other than an attorney can be used as an admission, and if the prosecutor finds out about what you have said to anyone (even a friend), those statements can be used against you in court.

  • Create an outline of what happened.

    As soon as you can, make notes about what happened:  what you drank and where, names of witnesses, the order of events, anything you ate and medications you were taking, any statements you made to the police officer, and anything unusual about the event.  Your notes can be helpful in refreshing your recollection when you meet with your defense attorney to discuss your case.

DUI defense attorney Thomas Greenberg has worked on thousands of DUI cases, is a member of the California DUI Attorneys Association, and is often consulted by other criminal attorneys regarding DUI cases and defenses.  Contact him at (650) 242-0021 to begin the defense process for your DUI.

Texting While Driving In California – Can I while stopped at a light?

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San Mateo Traffic Defense Attorney

Texting while driving in California is prohibits even while stopped at a light or stop sign, said a California Appeal Court this month.

The court heard a case appealed by Carl Nelson, who admitted to checking his email and pushing some buttons on his cell phone while stopped at a red light.  He was cited by a motorcycle cop who had pulled up in the lane next to him.  Nelson had been fined $103 by a traffic commissioner in Contra Costa County.  In his appeal, Nelson argued that California’s ban on talking on a cell phone while driving did not apply to this case because his car was not moving.

The First District Court of Appeal concluded that the law, Vehicle Code 23123, applies to stopped drivers the same as it applies to drivers in motion.  The court based its opinion in a technical argument that as long as the car was in gear, even if the vehicle’s movement was paused, the driver was still driving and therefore the law applied.  The court also cited the legislature’s intent in wanting to reduce driving distractions.

If you have been charged with a violation of the vehicle code, defense attorney Thomas Greenberg can help you.  Call for free a consultation at (650) 242-0021