Articles Posted in Defense

When a Southern California Criminal Defense lawyer quotes you a fee for the completion of your case, several different factors will be taken into consideration. It is important to understand what the basis for the fee is in order to know whether you are overpaying, or if you are paying an adequate amount for an attorney that has the experience and knowledge that you need.

One of the biggest factors that will be considered when quoting an attorney’s fees is the complexity of the case. If the case is a very simple straightforward case the fee will be much lower. For example, if a DUI case has an accident, and a blood alcohol level of .12 with another injured party involved, it is going to be a complex case. There are several factor that make it a felony, including injury and an accident as well as a high BAC. In contrast, take a DUI case where the driver was pulled over on the side of the road asleep in the backseat with a BAC of .07. The latter case is much simpler and could probably be resolved in one or two court appearances.

Whether the case is a felony or misdemeanor will make a difference when quoting a fee. Felony cases are generally more extensive, require more defense work and court appearances and consequently will warrant a higher fee. Also, the lawyer will work hard at preparing a defense that will give your case the best chance of being reduced. Misdemeanor cases generally do not require jail or prison time and can be resolved in fewer appearances requiring less time from the attorney.

One of the biggest concerns when hiring a Southern California Criminal Defense attorney is the amount it will cost you. Many people are on a budget and the expense of an attorney is not something that has been planned for, making it difficult to be able to hire an experienced and knowledgeable attorney with the budget they have. Fortunately, there are many options so that a person who needs the help of a well established attorney is able to get it.

Many personal injury cases or civil litigation type cases will allow what is known as a contingency fee. This allows the person being represented to not have to provide any money initially, or as a retainer. The attorney gets paid from any money that is awarded or part of a settlement. The general percentage given as a contingency fee is generally around 33%.

Criminal cases, however, do not use contingency fees. It is against the California Rules of Ethics for attorneys to charge a contingency rate on a criminal case. Additionally, there is rarely any money that is being sought in criminal court, therefore such a fee method would not make sense. Beware of a criminal defense attorney who agrees to do your case on a contingency basis, they may be violating ethical obligations they have to the California State Bar.

Entrapment is a defense that may be used in some California Criminal cases. Entrapment is a valid defense when police officers engage in conduct that would cause otherwise law abiding citizens to commit a criminal act or unlawful conduct. Although the concept seems fairly straightforward, it is a very complex defense that must be used properly for it to be effective.

In order for someone to successfully use the entrapment defense a significant distinction must be made between opportunity and pressure, fraud or inducement. If someone is given a mere opportunity by a police officer to commit an unlawful act, it will not be enough to constitute entrapment.

The officer must have pressured you for entrapment to apply. This means applying a significant amount of pressure, not just a minimal amount. They may have offered you a high payment or bothered you until you felt that you had no choice in the matter and felt that you must complete the task they are asking of you. For example, let’s assume an officer is dressed undercover and asks you to sell him some drugs, asking you to engage in the illegal act of California Drug Sales. You politely decline and the officer continues walking along. There is no pressure in this situation, the officer merely asked once and when he was turned down, he left. This is more of an opportunity. The officer offered an opportunity for you to sell drugs illegally, but since nothing came of it both parties went their separate ways.

Entrapment is a complete defense in some criminal cases. A person will be said to have been entrapped if a law enforcement officer engaged in conduct that would cause a normally law abiding citizen to commit a crime. The definition of entrapment may seem fairly straightforward, but in actuality it is a lot more complex in it’s application.

Entrapment will be a successful defense when there is pressure, harassment or fraud applied by the law enforcement officer. Anything less than that will not be considered entrapment. The definition of what constitutes enough pressure or harassment is subjective, and therefore is open to many different interpretations. An experienced Los Angeles Criminal Defense attorney has handled many entrapment defenses and can determine whether a specific case has a strong or weak entrapment defense.

One of the biggest elements that will distinguish a valid entrapment defense from what is not entrapment is the element of predisposition. If a person is predisposed, has the inclination to engage in certain kinds of behavior, there is a weak argument in favor of entrapment. The Supreme Court ruling in Mathew v. United States (485 U.S. 58 (1988)) determined that entrapment will only be successful in cases where there is a lack of predisposition on behalf of the person being charged. If the government can establish that the person trying the entrapment defense was predisposed to commit the unlawful act then he or she will not be able to use the defense successfully. It won’t be entrapment when the person is already willing to commit a crime and the law enforcement officer merely provides the opportunity to do so.

When a person is charged with Prostitution, a commonly used defense is entrapment. An entrapment defense will be successful when it can be proven that law enforcement engaged in behavior that would cause an otherwise law abiding citizen to engage in an unlawful act. If it is shown that a law enforcement officer pressured or persuaded a person to engage in prostitution, there is a strong defense in favor of the person charged and will lead to a dismissal of the case.

The legislation defines prostitution as a lewd act between persons for money or other consideration. California Penal Code § 647 (b) punishes those that solicit, agree to participate, or participate in prostitution. Therefore, if a person is pressured or coerced by a law enforcement officer to engage in prostitution they will have a valid entrapment defense. However, if there is no fraud or pressure and it can be proven that they have a predisposition to engage in prostitution the entrapment defense will not be valid. The prosecutor will demonstrate that a person has the predisposition to commit a crime through the use of any existing criminal record and proof of character. Predisposition to commit an unlawful act will strongly weaken an entrapment defense.

For example, let’s say that Person A has nothing on their criminal record besides a lot of parking tickets on their record and cannot afford to pay them. Additionally, she is not known by friends and family to be of a promiscuous nature. An officer contacts Person A and asks her if she would like for him to make the tickets disappear, and all she has to do is come over to his home and engage in some activities with him. Person A says no. The officer continues to call her asking for the same, and eventually tells her that he will make sure that due to the huge amount of unpaid tickets, he will make sure that she not only owes steep fines, but will serve jail time as well. Person A, terrified at the idea and scared agrees and engages in unlawful conduct that results in a charge of prostitution.

Entrapment is a full defense that is common to certain types of criminal cases. Among these are drug sales cases, prostitution and charges of lewd conduct. Depending on the specific facts of the case, as well as the individual’s background, the defense may be successful and will result in a dismissal.

One of the types of charges where Entrapment is argued often is in drug sales. The typical case will involve an undercover officer who asks to buy drugs from a known dealer. The dealer sells drugs to the officer and is arrested and charged with a violation of the California Health and Safety Code § 11352. §11352 makes it unlawful for any person to be transporting or selling a controlled substance.

The defense will only be successful if the person was coerced or pressured into selling the controlled substance to the officer. It must be more than a suggestion, it must be enough to make reasonable person feel that they cannot refuse but do as the officer asks. If the person is predisposed to selling drugs then the entrapment defense will not work. The prosecutor will demonstrate that a person has the predisposition to commit a crime through the use of any existing criminal record and proof of character.

Many of our clients ask us about a letter they receive shortly after having been charged with shoplifting from the merchant. This letter often comes from the store asking for money to be paid in an attempt to recoup their losses.

Under California Penal Code §490 (b) and (c) the merchant who has allegedly been stolen from has the right to seek civil remedies against the person. They may demand anywhere between $50 to $500 in civil liability, as well as the cost of the item stolen. However, there must be a loss. If the item stolen was recovered, then the merchant has no right to seek compensation for the losses, since the item was returned.

The Civil Demand letter is something is concerned with Civil liability, not criminal. If there are any issues or debate over the amount being asked for, or liability itself, it is a matter for civil court. Civil court is a matter between the injured party and the one being accused, whereas criminal court is a matter between the state government and the person being accused.

The United States Constitution, under the Fourth Amendment, gives each person the right to be protected from unreasonable search and seizure. If evidence is gathered as the product of an unreasonable search and seizure, then that evidence will not be admissible by prosecution during the criminal case.

The most common question our clients have is in regards to drugs that are found via a search of their vehicle or home. There must be a reasonable suspicion before an officer can check a person’s vehicle or home for drugs. For example, if a person is driving a vehicle and is stopped for a broken taillight, does the officer have a right to search the vehicle for marijuana possession?

The officer may not search the vehicle unless he has a reason to believe that there may be marijuana in the car. Such reasons include if the officer smells the marijuana in the car, or if he sees that the person looks like he or she has been smoking, or they observe something that leads to a strong belief that there is marijuana in the car.

California Vehicle code §23222 makes it illegal for any person to have in his or her possession , while operating a motor vehicle, any bottle, can or receptacle containing an alcoholic beverage. This includes any alcohol container that has the seal fully, or partially broken, and which has contents partially removed. The container may not be in a place that is easily accessible by the driver.

California follows the Federal rule and allows for an exception to open containers in a moving vehicle. If passengers are using a vehicle whose primary purpose is to provide transportation for compensation, then the passengers are permitted to have open containers of alcohol. Those vehicles that fall under this exception include, limousines, taxi cabs and buses. It is important to distinguish between public buses and those hired privately strictly for the purpose of transport. Drinking on a public bus with an open container is potentially a charge of being intoxicated while in public, or disturbing the peace.

If the open container is in a parked car, there may be an argument that the person had been driving with the container open, or a possible drinking in public offense. Oftentimes the potential consequences can be a misdemeanor depending on the specific facts of the case. It may also be added on as an additional offense to something more serious such as driving under the influence. In cases where driving with an open container is part of multple offenses, the penalty may be something more severe than the charge on its own.

Many of our clients are stopped for a violation of California Vehicle Code 23152, and are found to be under the influence of marijuana and alcohol. California VC 23152 makes it unlawful for any person to be operating a vehicle under the influence of alcohol of drugs. The code section was written before medical marijuana was permitted under certain situations, and therefore case law since then has determined how to deal with medical marijuana.

If a person holds a lawful Medical Marijuana card in compliance with the Compassionate Use Act, then they are permitted to be in possession of an ounce of marijuana. The question many of our clients have, is if this allows them to have used the marijuana before driving a vehicle, since they are legally permitted to be under the influence.

The answer can be explained by comparing marijuana usage to alcohol consumption. By law, a person over the age of 21 is permitted to drink alcohol, but they are still not allowed to be operating a vehicle under its influence. The consumption of alcohol is legal, until it becomes a danger to society, i.e, when the person gets behind the wheel and decides to drive.

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