Misdemeanors vs. Felonies by Darren Kavinoky Misdemeanors vs. Felonies Most states break their crimes into two major groups, felonies and misdemeanors. The difference between the two types of crime is the punishment involved. Where a crime can be punished with a year of more of imprisonment in state prison, it is a felony. But if the potential punishment is for a year or less in the county jail, then the crime is considered a misdemeanor. There are certain crimes, called Author's Biography: ... The Process in a Felony Case by Darren Kavinoky The Process in a Felony Case Initial Arraignment The arraignment is the first court hearing in a felony case. An arraignment follows the constitutional principles of speedy trial rights and the ability to hear the charges being held against the defendant. Both in-custody and out-of-custody defendants must be arraigned without undue delay, no more than two calendar days after arrest, excluding Sundays and holidays. There are two arraignments in a felony case. This first arraignment w ... The Process in a Misdemeanor Case by Darren Kavinoky The Process in a Misdemeanor Case Arraignment The arraignment is the defendant¡¦s first court hearing after the arrest, booking, and initial bail phases of the criminal process have taken place. This is usually the first opportunity for the defendant to hear the charges pending against him and provides the defendant the opportunity to plead to those charges. A prompt arraignment is related to the Constitutional safeguard of providing a ¡§speedy trial.¡¨ The arraignment date will be depend ... Wobblers vs. Wobblettes by Darren Kavinoky Wobblers vs. Wobblettes Wobblers In California this term is used to identify crimes that are punishable either as a felony or as a misdemeanor. There are over a hundred cases that can be classified as either a felony or a misdemeanor. This distinction can be found in the Penal Code. These types of cases are referred to as “wobblers” due to the sentencing structure. In other words, wobbler crimes are those that could bring a sentence of state prison, county jail, or fines. Wobblers are ... Who has burden in DMV Hearings by Darren Kavinoky Who has burden in DMV Hearings The DMV has the burden of proof in the Administrative Per Se (APS) hearing. The burden of proof is that there is more evidence weighted towards driving under the influence of alcohol than not. State law has mandated that the burden rests with the DMV to justify its order of suspension. There are only 3 issues that are legally relevant in an APS hearing. The DMV must prevail on all 3 issues. Thus, if the DMV meets the burden of proof on only 2 of the iss ... “Davenport” Issues at DMV Hearings by Darren Kavinoky “Davenport” Issues at DMV Hearings The Davenport case holds that the arresting officer’s written statement is sufficient to support the DMV’s suspension of the defendant’s driver’s license. The Davenport court held that the officer has a duty to administer chemical tests according to methods that are designed to assure reliability. Similarly, California Evidence Code Section 664 gives the presumption that the officer’s official duty has been “regularly performed,” thus giving rise to an inf ... DMV and court: two separate processes. by Darren Kavinoky DMV and court: two separate processes. When someone is charged with a DUI offense, there are two separate battles to fight: the DMV and the criminal court case. The DMV will suspend driving privileges within 30 days of an arrest for driving with an alleged blood alcohol content (BAC) over .08 percent, unless an Administrative Per Se (APS) hearing is requested within 10 days of the DUI arrest. The court case commences with the arraignment date, which is usually held within 45 days of arrest ... by Darren Kavinoky Author's Biography: ... How does Evidence Code Sec. 664 apply to DMV Hearings by Darren Kavinoky How does Evidence Code Sec. 664 apply to DMV Hearings California Evidence Code Section 664 shifts the burden of proof to the DMV licensee to establish the nonexistence of one, or more, of the foundational requirements with regard to the police officer’s sworn statement, except when it is clear that the trustworthiness is not established when the officer incorrectly reports all the facts in the sworn statement. Section 664 Section 664, titled “Official duty regularly performed,” states: ... How does Evidence Code Sec. 1280 apply to DMV Hearings by Darren Kavinoky How does Evidence Code Sec. 1280 apply to DMV Hearings A police officer’s statement, contained in a police report, is hearsay. However, California Evidence Code Section 1280 allows the statement in as an exception to the hearsay rule. Section 1280, titled “Record by public employee” reads: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or ev ... Pros and cons of in-person vs. telephonic DMV Hearings by Darren Kavinoky Pros and cons of in-person vs. telephonic DMV Hearings The Administrative Per Se (APS) hearings are held in the DMV Driver’s Safety Office nearest to the location of the arrest. The APS hearings are run by DMV employees, called hearing officers. The request for the APS hearing must be made within 10 calendar days of the arrest, or else the defendant’s license will automatically be suspended 30 calendar days after the date of arrest. The APS hearing may be conducted in two ways: teleph ... Pro's and cons of in-person vs. telephonic DMV Hearings by Darren Kavinoky Pro's and cons of in-person vs. telephonic DMV Hearings The Administrative Per Se (APS) hearings are held in the DMV Driver’s Safety Office nearest to the location of the arrest. The APS hearings are run by hearing officers. The request for the APS hearing must be made within 10 calendar days of the arrest, or else the defendant’s license will be suspended. The APS hearing may be conducted in two ways: telephonically or in person. There are pros and cons to each method. Telephonic ... Standard of proof in DMV Hearings by Darren Kavinoky Standard of proof in DMV Hearings The standard of proof at DMV hearings is the preponderance of the evidence standard. This level of proof is required in most civil cases, which DMV hearings can be likened to, as opposed to the criminal court trial where the burden of proof is beyond a reasonable doubt. The preponderance of the evidence standard merely requires that there be more evidence in support of a defendant’s guilt than not. For example, in bare numbers alone, this could mean that 51 ... Battery on a Peace Officer by Darren Kavinoky Battery on a Peace Officer The crime of battery occurs with the striking of someone, with intent to harm them. . California Penal Code Section 242 states, ¡§A battery is any willful and unlawful use of force or violence upon the person of another.¡¨ It is a crime to commit a battery against a peace officer, whether they are on duty or off duty. A peace officer includes the following classifications: „X Sheriff or Deputy Sheriff „X Any chief of police „X Any police officer „X Any mar ... Evading a Peace Officer by Darren Kavinoky Evading a Peace Officer The crime of evading a police officer is a misdemeanor. A misdemeanor is a crime punishable by a term in the county jail, up to one year. There are multiple reasons why evading a police officer is unlawful, including interfering with the duties of a police officer in the scope of their duties, and the danger to the public in fleeing from the officer, oftentimes involving high speeds and other traffic violations, like running red lights. However, in order to convic ... Intro to Defiance by Darren Kavinoky Intro It is a crime to act defiantly to law enforcement. Such categories of defiance include the act of evading a police officer who is trying to pull you over, resisting a police officer or firefighter when they are engaged in their duties, and battery on a police officer. Defiance is considered a crime because of the concern about public safety, in allowing police and firefighters to carry out their duties without undue interference by the public. Such crimes as battery are punished mo ... Resisting Peace Officer or Firefighter by Darren Kavinoky Resisting Peace Officer or Firefighter California Penal Code Section 148 makes it a criminal offense to willfully resist, delay, or obstruct police officers and firemen when they are performing their duties. The punishment varies with the degree of the offense, as a misdemeanor or a felony. Some of the offenses are “wobblers,” meaning that the crime may be punishable as either a misdemeanor or felony. The reason that resisting a peace officer of firefighter is a crime is based on the princ ... DMV Hearings by Darren Kavinoky DMV Hearings The California Department of Motor Vehicles has the jurisdiction to administer an Administrative Per Se, commonly known as APS, hearing affecting the driving privileges of the DUI offender. The DMV case is totally separate and independent from the criminal case. Therefore, a DUI defendant must defend himself twice-at both the DMV and at criminal court. This also means that the DUI defendant gets punished twice. In order to schedule an APS hearing, the DUI defendant must con ... Forging a Prescription by Darren Kavinoky Forging a Prescription Forging a prescription is against the law. It is generally defined as the illegal acquisition of pharmaceuticals for personal use or profit. People commit prescription fraud in many ways, including going to multiple doctors for multiple prescriptions, and forging the quantity on the prescription to increase the quantity. The biggest factor driving prescription fraud is the increasing abuse and addiction to prescription drugs. Health and Safety Code Section 11368 ... Intro to Drugs by Darren Kavinoky Intro California is the nation’s leader in drug arrests. A drug arrest causes major havoc in a person’s life, because the penalties are harsh, with imprisonment in county jail or state prison. A drug arrest can follow a person through their whole life, because a criminal record lasts a lifetime. Although there are many different types of drugs, the most commonly prosecuted are: • Marijuana • Cocaine • Cocaine based drugs, like “crack” • Methamphetamine • Heroin • Ecstasy • PCP The fo ... Maintaining Place for Selling or Using Controlled Substances by Darren Kavinoky Maintaining Place for Selling or Using Controlled Substances It is illegal to maintain a place for selling or using controlled substances. Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. The classification of offense may be deemed a misdemeanor or felony (known as a wobbler felony). A misdeme ... Marijuana Cultivation by Darren Kavinoky Marijuana Cultivation It is illegal to grow, or cultivate, marijuana. The California criminal jury instructions gives guidance to the factors that the prosecution must prove in order to successfully convict someone of this offense. “Every person who plants/cultivates/harvests/dries/ or processes any marijuana or any part thereof is guilty of a violation of Heath and Safety Code Section 11358, a crime. The word “harvesting” is defined as the gathering of crops of any kind. The verb ... Possession for Personal Use by Darren Kavinoky Possession for Personal Use Possession of drugs for personal use requires the following knowledge: „X Knowledge of the presence of the controlled substance „X Knowledge that the substance is in fact a controlled substance. It is not necessary that the defendant know the chemical name or the precise chemical makeup of the substance. Possession itself may be either actual or constructive. Actual possession means that person knowingly exercises direct physical control over the controlle ... Possession for Sales by Darren Kavinoky Possession for Sales Possession for sales of illegal drugs may be classified as a misdemeanor, felony, or “wobbler.” A misdemeanor is a crime punishable by a maximum of one year imprisonment in county jail. A felony is punishable by imprisonment in the state prison. Either of these classifications may include fines. A felony term in state prison may have a range of years for sentencing purposes. For example, there may be the option of a 2, 3, or 4 year term. This is referred to as the l ... Possession of Precursors (Meth or PCP) by Darren Kavinoky Possession of Precursors (Meth or PCP) Not only is it illegal to possess methamphetamine or PCP, but it is also illegal to possess the ingredients with the intent to manufacture these drugs. California Health and Safety Code Section 11383 (a) applies to the ingredients for methamphetamine, making it a felony, punishable by imprisonment in the state prison for a period of 2, 4, or 6 years. Section 11383 (a) reads in pertinent part: ¡§(a) Any person who possesses both methylamine and p ... | ||||||
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