This requirement was hard to follow on a practical basis and could be complicated. For example, persons having to register sometimes didn’t realize they needed to do so both on their birthday and within five days of moving. Any mistake in following the law could lead to a new criminal charge.

The old law also didn’t give any opportunity to get off the 290 sex registration list. This was true no matter how long it had been since your conviction or your personal efforts at changing your life since the conviction.

The California Legislature decided last year that this system was unfair to people who had committed relatively minor offenses. They wanted to also make sure that if someone rehabilitated themselves they had a chance to move on with their lives.

The Legislature decided therefore to set up a three “Tier” or “Level” system to decide who would be eligible to receive a Penal Code Section 290 Pardon.

Persons convicted of “Tier One” crimes can now petition the court to be taken off the 290 list after 10 years of being crime-free.

Persons convicted of “Tier Two” crimes can now petition the court to be taken off the list after 20 years of being crime-free. Persons convicted of the most serious, “Tier Three” crimes still must still register for life.

This new law (SB 384) allows for the filing of what is called a Penal Code section 290.5(a) petition. This is a petition to the court asking that you be removed from the 290 list. This petition must be filed in the county where you live and register. You must also serve the District Attorney’s Office in the county where the conviction first took place as well as the DA’s office where you live. Finally, the 290.5(a) petition must also be served upon every law enforcement agency where you have ever had to register.

Since the law is new and a little complicated, many lawyers have not even tried to file one of these petitions, let alone had one successfully granted.

However, VIB Law is already on its way to becoming a statewide expert in the process. Our firm was the first to have a 290.5(a) petition granted for one of our clients in Santa Clara County. We have successfully obtained this relief in several other counties as well. We currently have 290.5(a) petitions pending in Merced County, Contra County, Santa Cruz County, and Santa Clara County.

At VIB Law, our motto is, “Get off the List, Get on with your Life.” We believe this new law provides a valuable tool for getting past the stigma and shame of a 290 related conviction. Our goal is to help clients all over the state move on with their lives and start with a clean slate. Please contact us and we will work with you to get a successful 290.5(a) petition granted no matter what county you live in or register in.

The post 290 Sex Registration List Removal appeared first on VIB Law.

A Certificate of Rehabilitation is “a court order stating that an individual with prior felony conviction or misdemeanor sex crimes in California is now has been rehabilitated.” Once a certificate of rehabilitation is granted, it serves as an automatic application for Governor’s pardon. Furthermore, a certificate of rehabilitation may relieve sex offender registration requirement under PC 290.

The law which governs the process of obtaining certification of rehabilitation is stated in PC 4852.01 to 4852.21.

Am I eligible for a Certificate of Rehabilitation?

In order to be eligible for a certificate of rehabilitation, an individual must be either:

1. Convicted of a felony and sentenced to a California State Penal Institution (such as Prison)
2. Convicted of a felony and sentenced to probation and the conviction has since been expunged under PC 1203.4
3. Convicted of a misdemeanor sex crime under PC 290 and the conviction has since been expunged under PC 1203.4

Additionally, the conviction or incarceration must have been in California and the individual must have lived in California for a minimum of 5 years. And the individual must show that he or she has been released on either probation or parole and has not been incarcerated since that release. Finally, the individual must present proof of a satisfactory period of “rehabilitation” after their release.

How long does it take to get a Certificate of Rehabilitation?

The specific rehabilitation period required depends on the crime of which the defendant was convicted.

10 Years (5 years residency + 5 years of rehabilitation)
Convictions for sex crimes requiring PC 290 registration, except certain PC 311 child porn cases, sexual exploitation of a child cases, and PC 314 indecent exposure cases.

9 Years (5 years residency + 4 years of rehabilitation)
Convictions for murder (PC 187), aggravated kidnapping (PC 209), or acts involving explosives or destructive devices causes death, mayhem or great bodily injury (PC 12310).

7 Years (5 years residency + 2 years of rehabilitation)
Convictions for all other crimes including PC 311 child porn cases, sexual exploitation of a child cases, and PC 314 indecent exposure cases.

This satisfactory period of rehabilitation period starts from the date that an individual was released from custody or was placed on probation or parole.

California Governor’s Pardon

If a person is eligible for a certification of rehabilitation, he or she may file a petition with the superior court in the area that an individual resides. Upon receipt of the petition, the court sets a hearing date in which the judge will consider all evidence for or against granting the petition. If the petition is granted, the court will forward the certificate to the California Governor’s office which becomes an application for pardon.

The process to obtain a certification of rehabilitation is lengthy and complex. If you are looking to obtain a California Certificate of Rehabilitation or have further questions, schedule a free consultation with one of our professional expungement lawyers today. Our highly experienced attorneys can assist you through the process and increase the chance of having your petition granted successfully.

The post California Certificate of Rehabilitation & Governor’s Pardon appeared first on VIB Law.

Fortunately in California, pursuant to Penal Code 851.8, there is a process by which an individual can seal and destroy his or her arrest records. Once your arrest records have been sealed and destroyed, all the records (including police reports, fingerprints, rap entry and booking photos) are deleted. Thereafter, you can legally and confidently say “no” if an employer asks you whether you have been arrested on a job application.

A person who wins a 851.8 motion is also declared, “Factually Innocent” of the charges. That’s why an 851.8 motion is sometimes referred to as a “Petition for Factual Innocence.”

Below, you will find a simple guide that can answer some of your questions regarding sealing and destroying your arrest records in California. If you would like more information, request a free consultation with one of our professional record clearance attorneys.

PC 851.8 – Determining Your Eligibility

If you have been arrested but there were no charges filed by the prosecutor’s office…
PC 851.8(a) states that “In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the offense.”

If you have been arrested and charges were filed but no conviction occurred (the underlying case was dismissed or you were acquitted through a California jury trial)…
PC 851.8(c) states that “In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made.

Submitting Your Petition to Seal & Destroy Arrest Records

If you have been arrested and no charges were filed, PC 851.8 requires that you submit a “Petition to Seal and Destroy Arrest Records” to the arresting law enforcement agency. The agency then has the option to agree to the petition or deny it. If granted, the police will seal your records for three years. After three years, they will destroy your records. If you do not hear back from the arresting law enforcement agency within 60 days after you have submitted your petition, it has been denied. A formal petition for factual innocence will then need to be filed in Superior Court. A hearing will then be held on the question of your factual innocence in front of a judge.

If your case was dismissed, or you were acquitted by a jury, there is a slightly different mechanism. In these cases, you must submit your petition directly to the Superior Court that would have jurisdiction over your case. A copy of the petition must be filed with the DA’s office so they can respond. A hearing will then be held on the question of your factual innocence in front of a judge.

How much time do you have to submit your petition?

Generally you can petition to seal and destroy your records in California up to two years after the date you were arrested or the date that charges were filed against you. But if you can show good cause, the judge has discretion to hear your case beyond these deadlines.

How does the judge determine whether to grant or deny your petition?

Judges usually hold a short hearing where witnesses testify to determine whether to grant or deny your petition to seal and destroy your California arrest records. The judge has to make a decision as to whether or not you are “factually innocent” of the charges against you. This is the most difficult part of these types of hearings. You will need to prove to a judge that there was no “reasonable cause” to arrest you in the first place. If you can prove this, the judge will grant your petition and order your arrest records to be sealed and destroyed permanently. It will be as if the arrest never happened.

Need help with your California arrest records?

The process to seal and destroy your arrest records can be very complicated and usually involves a hearing before a judge. Therefore it is crucial to have an experienced criminal defense attorney that can assist you throughout the process. The criminal defense attorneys at VIB Law are always available to discuss your case and answer your questions regarding sealing and destroying your arrest records in California.

~~ Important 2019 Update ~~

On October 12, 2017, the California Legislature passed Senate Bill 393, the Consumer Arrest Record Equity (CARE) Act, which offers a second possible procedure to conduct arrest record sealings. This new law took effect on January 1, 2018. The CARE Act added Section 851.91 to the California Penal Code.

Using the new procedures outlined in this statute, a person who was arrested but ultimately not convicted of a crime may now petition the court to have his or her California arrest record completely expunged.

Although both PC 851.8 and the new PC 851.91 statutes involve arrest record sealings, there are important differences in terms of the requirements and effects of these motions.

The main difference in terms of eligibility of these two statutes come down to the difference between being “legally innocent” and “factually innocent.”

• PC 851.8 involves persons who are “factually innocent” of the crimes. In order words, “no reasonable cause” exists to believe that you committed the offense and you should never have been arrested in the first place.
• On the other hand, the new PC 851.91 statute involves persons who are “legally innocent” of the crime they were arrested for. In other words, you were never found guilty beyond a reasonable doubt and were never convicted of any crime.

The two statutes also provide different levels of safety in terms of sealing your arrest record. For example, an 851.8 arrest record sealing permanently removes your record for all purposes, while an 851.91 sealing has some limitations.

If you’d like to determine if you’re eligible for expungement under either of these arrest record sealing statutes, please contact our record clearance experts today to schedule a free consultation.

The post Sealing & Destroying Your Arrest Record in California appeared first on VIB Law.

How Stoned Do You Have to Be for a DUI Arrest?

Under California law, driving under the influence of marijuana in your system is illegal, and can place you at risk of a DUI marijuana arrest.

At the current time there is no “per se” limit as to the level of THC that someone can drive with (Unlike the .08 blood alcohol limit). Instead the law looks at whether you were under the influence of marijuana such that you were unable to operate a motor vehicle safely.

There is no denying the fact that the number of people driving under the influence with some traces of marijuana in their system is on the increase. California allows medicinal marijuana use, and across the country some states have moved to make the sale of marijuana legal for recreational purposes as well.

The difference between marijuana and alcohol use is that alcohol does tend to get eliminated from the body very quickly, usually just a few hours after ingesting. In the case of marijuana however, it is an entirely different matter. THC can actually continue to remain in a person’s body for days, and in some cases even weeks after the person has ingested the drug. That makes it very difficult to conclusively establish that a person was driving while impaired by marijuana. Minute traces of THC ingested just a week before are hardly going to impair a person’s driving abilities.

If you are arrested for DUI marijuana it is important to speak to a marijuana DUI expert in these type of case. At VIB Law we are familiar with the issues in this case and will fight for your rights as a medical marijuana user.

What’s the difference between driving high and driving drunk?

When it comes to DUIs, the California Vehicle Code doesn’t use terms like ‘driving drunk” or “driving high.” Instead, the law makes it illegal for any person to “drive under the influence” of a substance whether that substance is alcohol, marijuana, prescription drugs or a combination of these substances

Probably the major difference between so called, “Alcohol DUIs” and “Marijuana DUIs” is that in California law, there is not currently a “per se” statute for marijuana cases.

California Vehicle Code Section 23152(b) outlines California’s “ Per Se” .08 blood alcohol level for DUIs. A “per se” statute means that the person can be prosecuted for having a .08 blood alcohol at the time of their driving, whether or not they were in fact impaired by the alcohol. California does not currently have such a statute for marijuana.

In states with so-called “per se” “Marijuana DUI” laws, a specified amount of delta-9-tetrahydrocannabinol (THC), (The active ingredient in cannabis) in the driver’s system at the time of the offense will conclusively establish impairment. For example in Colorado and Washington, there is a “per se” finding of impairment for drivers found with 5 nanograms of active THC per milliliter of blood in their system.

How do police test for marijuana impairment by drivers in California?

Police officers will normally investigate a “Marijuana DUI” by calling an officer to the scene of the traffic stop who is a “Drug Recognition Expert” or “DRE.” This officer will conduct Field Sobriety Exercises to attempt to determine the driver’s impairment. Ultimately, if an arrest is made a blood or urine sample will be taken and tested for the presence of THC.

The problem is that determining whether someone is impaired by marijuana, as opposed to having merely used the drug, is far more complicated than showing whether someone is impaired due to the use of alcohol.

In February 2015 the National Highway Traffic Safety Administration (NHTSA) released the results of “the first large-scale [crash risk] study in the United States to include drugs other than alcohol,” which it described as “the most precisely controlled study of its kind yet conducted.”

The researchers found that, after controlling for various factors, a detectable amount of THC, the active ingredient in pot, in the blood did not increase the risk of accidents at all. Having a blood alcohol level of at least 0.05 percent, though, increased the odds of being in a crash by 575 percent.

Although chemical tests (like blood tests and urine tests) can show the presence of marijuana in your system, there currently is not a scientific consensus about what level of THC in your system means you are impaired.

Also, there is a huge problem in that THC can remain in your system for a long period of time after it is no longer psychoactive or having an effect on your system. For example, a chronic user of marijuana may have a positive test days or even weeks after their use. Unlike alcohol, it is extremely difficult to take the results of a positive THC and then extrapolate back in time as to the amount and recency of use.

It is anticipated that after Prop 64, there may be newer and more accurate testing devices developed or additional training that more accurately shows marijuana impairment for DUIs. For now though, “Marijuana DUIs” should be regarded as suspect and an experienced “Marijuana DUI” attorney should be hired to fight them.

What does the DA have to show to prove a Marijuana DUI?

Vehicle Code Section 23152(e) contains two elements, “Driving” and being “Under the Influence” of a drug. Calcrim 2110 defines both of these elements for jurors.

Jury Instruction – Calcrim 2110

The defendant is charged [in Count ______ with driving under the influence of a drug or under the combined influence of an alcoholic beverage and a drug].

1. To prove that the defendant is guilty of this crime, the People must prove that:
   The defendant drove a vehicle; AND
2. When (he/she) drove, the defendant was under the influence of a drug or under the combined influence of an alcoholic beverage and a drug.

A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.

It is not a defense that the defendant was legally entitled to use the drug.

If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive.

The post FAQs About Marijuana DUI Charges appeared first on VIB Law.

When does Prop 64 go into effect?

Since Prop 64 did not designate a specific effective date, it became effective on November 9, 2016. “An initiative statute or referendum approved by a majority of the votes thereon takes effect the day after the election unless the measure provides otherwise.” (Calif. Const., Art. 2, § 10(a).)

Prop 64 makes immediate changes to the laws surrounding growing, possessing and transporting marijuana. However, some of its other provisions do not take immediate effect. For example, people will not have a place to legally buy non-medical marijuana until stores are licensed. California has until January 1, 2018 to begin issuing these type of retail licenses.

Under Prop 64, can I grow my own marijuana?

Prior to Prop 64, California treated cultivation of marijuana as a felony offense under Health and Safety Code Section 11358. It is now legal for adults who are 21 years and older to plant, cultivate, harvest, dry or process up to six (6) living marijuana plants out of public view.

Cultivating more than 6 plants remains a misdemeanor offense punishable by up to six months in jail or a $500 fine. There are some exceptions to this. Cultivating more than 6 plants becomes a felony under Health and Safety Code Section 11358 if any of the following is true:

• You have a prior conviction for one of a list of particularly serious violent felonies. (These type of prior felonies are sometimes referred to by the slang term, “Superstrikes” and include crimes like murder, sex crimes against a child under 14 or gross vehicular manslaughter while intoxicated).
• You have been been convicted of any sex crime that requires you to register as a sex offender.
• You have two (2) or more prior misdemeanor convictions for marijuana cultivation.
• The offense resulted in intentional division of public waters, introduction of harmful chemical into waters or otherwise caused substantial environmental harm to public lands.
• Defendants who fall into any of these categories are punishable by a felony sentence of sixteen (16) months, two (2) years, or three (3) years in jail despite marijuana legalization.

Only persons aged 21 and older can legally cultivate cannabis. Under Prop 64, people from 18 to 20 years old who cultivate 6 plants or less can be charged with an infraction and a $100 dollars fine. 18 to 20 year olds who cultivate more than six plants normally can be charged with a misdemeanor. However, just like 21 year olds, 18 to 20 years who cultivate more than six plans are subject to possibly being charged with a felony depending on their record and the manner of cultivation. (See above list of four factors.)

Minors under 18 who cultivate marijuana can be charged with an infraction and can be sentenced to drug counseling and community service.

Also, as mentioned above, California’s marijuana legalization law imposes restrictions on the manner in which cannabis is cultivated. In an adult cultivates no more than 6 plants for personal use but the plants are visible to the public or not kept in a locked space they can still be charged with an infraction and fined.

Where am I allowed to smoke marijuana under Prop 64?

Interestingly, Prop 64 added Business and Professions Code Section 26200. This statute allows guidelines for businesses that may want to set up “pot bars” or “marijuana gardens” for customers in California.

This statute states that a local jurisdiction may allow a local business to set up an area for smoking, vaporizing and ingesting marijuana or marijuana products if:

• They are a licensed retailer or microbusiness permitted by local law.
• They restrict access to the area where marijuana consumption is allowed to persons 21 years of age and older.
• Marijuana consumption is not visible from any public place or non-age restricted area.
• Sale or consumption of alcohol or tobacco is not allowed on the premises.

It will be interesting to see how many “pot bars” of this type will be opened and what local jurisdictions will allow them. For now, marijuana consumption in private homes remains the safest option.

Am I eligible for expungement under Prop 64?

In addition to “redesignation,” Prop 64 added a procedure for persons to have their prior marijuana convictions cleared or “expunged.”

Penal Code section 11361.8(f) provides that persons who have completed their sentence for qualified marijuana offenses can now apply to the court to “seal the conviction as legally invalid” in appropriate cases.

In other words, If the prior illegal conduct has been legalized by the passage of Prop 64, the court is authorized to seal the conviction completely as “legally invalid.”

Can I have my gun rights restored under Prop 64?

Yes, if the court grants a request to redesignate a felony offense as a misdemeanor or infraction, thereafter the crime will be treated as a misdemeanor or infraction for all purposes. Unlike similar provisions in Proposition 47, the redesignation does not preclude the right to own or possess firearms. (See Pen. Code § 1170.18(k).)

The post FAQs About California’s Prop 64 appeared first on VIB Law.

What happens to my record when I do a “record clearance” or “expungement?”

In California, when you expunge your record, your plea of guilty or no-contest is set aside by a judge. A new plea of “not guilty” is entered into the record and the the judge will then dismiss your case.

A person whose conviction is expunged can lawfully answer “no” if asked whether he or she has been convicted of a crime. Also, the California Code of Regulations says an employer cannot even ask a job applicant about an expunged misdemeanor conviction. An employer may still inquire about an expunged felony conviction.

Our goal is to help you move forward with your life and put any past problems behind you. Call us at 1-877-766-5245 or contact us here for an immediate free consultation.

Several years ago when I was younger I was convicted of an offense. Will that prior record still show up on an employer’s’ background check now when I apply for a job?

Yes. Criminal records are maintained indefinitely. Criminal records do not automatically go away or “drop off” after a certain amount of time.

Almost every employer does a background check before hiring an applicant. How thorough that background check is varies depending on the company. Bottom line, you should assume that your criminal history will show up on any background check unless you take legal action.

I was arrested but no charges were ever filed. However, the arrest itself keeps popping up on my background check. Is there any way to seal my arrest record so it doesn’t impact my chances at future employment?

If you were arrested, but the prosecutor never filed criminal charges you are entitled to ask for your arrest record to be sealed by filing what is known as a “Petition for Factual Innocence.” This type of motion is sometimes called a “Motion to Seal Arrest Record.”

You are also eligible to file this motion if you had your case dismissed in court or were acquitted by a jury trial. If successful, this motion will seal your arrest record so that it does not show up on future background checks. It’s as if the case never happened.

These motions can be difficult to win. They also require a great deal of expertise to handle them correctly. Therefore many law firms do not handle these cases. However, VIB Law is not only familiar with these motions but files them often and wins them.

2018 UPDATE: A new law took effect on January 1, 2018 that makes this entire process dramatically easier. Read this article to learn more.

I have a felony on my record. Is it possible to restore my right to own a firearm?

Gun ownership is a right, but that right can be taken away if you are convicted of a felony. This can have a serious impact if you carry a gun for work, for protection or simply for recreational purposes.

Restoring your right to own, possess or purchase a firearm can be a complicated process. Under state law you must first reduce your felony conviction to a misdemeanor. This is accomplished by filing a section 17(b) motion to reduce your conviction to a misdemeanor. This motion will only be granted, however, if your conviction meets certain criteria.

First, the crime you were convicted of must be a “wobbler.” A wobbler is an offense that can be charged as either a felony or a misdemeanor. Not every crime is a wobbler, and our attorneys can help you determine whether your offense qualifies.

Second, in addition to the offense being a wobbler, you must have received probation.

Finally, the judge must decide if your case is an appropriate one to be reduced. For example, the judge may look at how serious the charge was, how long ago it took place and what efforts you have made to lead a law abiding life since you were convicted.

It is important to remember that the law on when you may possess a firearm are very complicated. It’s best to go over these issues with your attorney.

The post FAQs About Expungement & Record Clearance appeared first on VIB Law.

I was just arrested for a domestic violence charge, what steps can I take now to give me the best chance of winning my case?

At VIB Law, we recommend that our clients do three things immediately to help give them the best chance at getting your domestic violence charge dismissed:

1. Document any injuries you may have received – Be sure to document any injuries you received from your encounter with the complaining witness. Take pictures of any minor injuries or see a doctor if you were injured more seriously. This type of evidence is critical to preserve if you want to show that you acted in self-defense.
2. Gather Defense Evidence – You should gather any emails, text messages or voice messages that might help your case. Start thinking about potential defense witnesses you may need to have interviewed by our investigator. These could include characters witnesses or people who have seen violent or erratic behavior from your partner. Gather their contact information for a later interview.
3. Retain an attorney who is an expert in domestic violence BEFORE your first court date and take a proactive approach – Many defense attorneys will advise taking a “wait-and-see” approach to handling these type of cases. In fact, some attorneys will even tell you to wait until your first court date to think about hiring a lawyer. This is exactly the wrong way to defend a domestic violence case. The most critical window for defense work is often the first few days following an arrest, and prior to formal charges being filed by the DA’s office.

If you are arrested for a domestic violence charge, the police agency will send a copy of the police report to the DA’s office for their review. By getting to work immediately, often we can locate favorable defense evidence and witnesses, and get a “head start” towards defeating the charges. If charges have not been filed yet, we can sometimes intervene with the DA’s office on your behalf.

But the victim in my case wants to “drop charges.” Can’t he or she just come to court and explain to the Judge what happened?

No. Once an arrest has been made, the decision about prosecution is no longer in the hands of the complaining witness. Prosecutors will not drop or reduce domestic violence charges even if the alleged victim requests them to do so or refuses to testify in court.

Unfortunately, some criminal defense attorneys even repeat this common myth and will tell clients to just have their spouses come to court and “explain what happened.” This is legal nonsense. Once charges have been filed, only the DA’s office (Or in some cases the Judge) can dismiss your case. This is why it is important to hire an experienced domestic violence attorney to make sure the and Judge hear your side of the case.

The post FAQs About Domestic Violence Charges appeared first on VIB Law.

I was just arrested for a DUI. What should I do?

Yes. At VIB Law, we recommend that our clients do three things immediately to help give them the best chance at getting their DUI charge dismissed or reduced.

1) Ask for a DMV hearing within Ten (10) days of your arrest – If you are arrested for a DUI, your license will be taken from you by the police officer who arrested you. In its place you will be given a temporary license on a pink piece of paper called a “DS-367.” This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to ask for a hearing on your license suspension. Do not miss this deadline or your license will be suspended automatically.

As part of of our representation, we can set this DMV hearing up for you. We can also represent you at this hearing. Remember, if you miss the Ten (10) day deadline, it is almost impossible for us to save your license from being suspended.

2) Start preparing a “Timeline” of important facts for your DUI consultation – You should bring all of your paperwork from the arrest to your DUI consultation. Also, start working on a timeline of the incident. and start thinking of potential witnesses who may be able to help your case. Finally start collecting any evidence of medical or physical conditions that might have affected the tests conducted in your case.

3) Retain an attorney who is an expert in DUI Law BEFORE your first court date and take a proactive approach – The attorneys at VIB Law have literally decades of criminal defense and DUI defense experience. Whether your case needs an aggressive motion driven defense or is better suited for an early negotiation, the experts at VIB Law are prepared.

What if I have an out-of-state drivers license and I get a DUI in California?

If you have an out-of-state drivers license and have be charged with a DUI in California you have two options:

Option 1 – Stay in California and complete the alcohol classes.

Option 2 – Move to another state and waive your “privilege” to drive in California. If you live in California, the California DMV will never accept completion of an alcohol class from another state. The class must be taken in California even if the court accepted an out-of-state program in satisfaction of probation. DMV Mandatory Actions Unit in Sacramento, California, at (916) 657-6525 and ask for a “1650 waiver packet.” They will only mail this packet to the licensee at an out-of-state address (you will also have to prove you live out-of-state with a utility bill or such). This waiver allows out-of-state licensees to drive in California, but does not allow the out-of-state licensee to acquire a California license within 3 years of filing the waiver. The 1650 Waiver removes the California hold, assuming an SR22 is also on file with DMV. If you come back to California within 3-years and want your license back, you will have to take the applicable California DUI class.

I was arrested for Vehicle Code Section 23152(a) AND 23152(b). Does that mean I was charged with two crimes?

No. There are two standard charges you may face when you have been arrested for a DUI:

23152 (a) – This is a charge that you were “Driving under the Influence.” Legally the idea is that no matter the blood alcohol if you were impaired to the point that it was unsafe for you to operate a vehicle you can subject to this charge. You will see a charge of 23152 (a) charges in cases where there was a “refusal” or “drug” charge.

23152 (b) – Driving with over a .08 blood alcohol. This is what is known as an “alternative charge” to 23152 (a) .” In other words, the DA is allowed to argue that even if you were not impaired, if you were over the .08 legal limit you are guilty.

What if my license is suspended? Is there any way I can get a restricted license?

The good news is that in a standard first offense DUI, even if you do sustain a driver’s license suspension, you can usually get a restricted license within 30 days. This allows you to drive to and from work related activities and any court or DMV imposed alcohol program.

In order to get a “restricted” license, you will need to do the following:

1. Complete a 30 day “hard” suspension
2. Pay a reissue fee
3. Enroll in a 3 month First Offender Drinking Driver Program (FOP)

Our DUI attorneys can guide you through this process at the appropriate time.

I was just arrested for a DUI. Now I am being flooded with mail from low cost DUI attorneys. How did they even get my address?

This practice is what is known as “jail mail.” Many defense attorneys will pay money to see a list of who has been arrested for a DUI and send them coupons or offers for cheap DUI defense.

At VIB law, we think you should save the coupons for shopping at your local grocery store. The last thing you want to do is go to court with a “discount attorney.” We’ve literally seen them plead people guilty without even reading the police report. Don’t do it. The power of the government is immense and you need the resources of a law firm behind you.

The expression, “You get what you pay for” doesn’t always apply but when it comes to a serious matter involving your life and liberty it makes no sense to shop for the cheapest option.

Do I need an attorney with me at the DMV hearing?

We think that having an attorney at your hearing is really important. The DMV process is very complicated. The DMV essentially is a “separate” proceeding entirely that needs to be coordinated with the criminal proceedings. Fortunately, our attorneys are experts at both of these types of hearings.

But if my blood alcohol (BA) was over the .08 legal limit, isn’t my DUI case hopeless?

At VIB Law, we have a saying… There is No Case That Cannot Be Won, Negotiated or Mitigated

And we stand by that. Sometimes your case may require an aggressive approach. For example, we can subpoena the breathalyzer’s maintenance and calibration logs and see if it shows a history of malfunctions and inaccurate readings.

We can also subpoena the arresting officer to testify at the DMV hearing. This allows us to pin down an officer’s testimony regarding what happened. Often the office is not prepared to be cross-examined at this type of hearing and we can get damaging admissions from him or her about poor DUI training and mistakes in the investigation.

Also, we review every DUI case to see if we think the officer had sufficient legal justification to pull you over. If we feel the officer stopped you illegally, we will file what is called a “Motion to Suppress Evidence.” If the officer pulled you over without sufficient reason, the evidence collected from the stop (The observations of you, your statements, your performance on field sobriety tests, the results of any blood or breath test, etc.) must be thrown out by the judge.

On the other hand, sometimes, you just need a good negotiator who can help get you through this process as painlessly as possible. We can help steer you to the resources you may need and give you advice as to how to get through this process. We can help clients with things as simple as getting your SR-22 insurance in place or help finding the First Offender Program (FOP) to help finding an in patient rehab that your judge is willing to accept as a jail alternative.

What is implied consent?

California Vehicle Code Section 23612(a)(1)(B)

A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood test is unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

The driver can choose between either a blood or urine test. However, the driver does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law. Id. § 23612 (a)(2)(C).

Failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a DUI, and one year license suspension. If the driver is unconscious or dead, consent is assumed and the tests may be administered.

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What happens when an allegation of a sex crime is reported to police?

1. First of all, an investigating officer is assigned to the case. This officer is in charge of putting a case together for the District Attorney to Review.
2. The alleged victims are interviewed. The investigating officers will then interview the alleged victims to find out what the allegations are.
3. Witnesses will then be interviewed to help corroborate the alleged victim’s statements. These witnesses might be friends from school, parents, neighbors, therapist, etc.
4. Pretext phone call. In many of these cases, officers will have the alleged victim call the client and ask them questions about the case. They may say something like “Why did you do that to me?” These are all recorded and the hope is to get a confession that they can use against you. Be suspicious if you receive a phone call from somebody that never calls you and if they start talking about any event that had sexual connotations.
5. Interview of the Suspect. In many cases, the officer will want to interview the suspect. They will ask them to come down to the station and “clear the air”. They will appear very friendly and explain that you can leave at any time. UNDER NO CIRCUMSTANCES ARE YOU TO GIVE A STATEMENT. Officers are allowed to lie and use ruses to get a confession. They are very good at this. DO NOT MAKE ANY STATEMENT WITHOUT A LAWYER.
6. Results of police investigation are given to the DA. Once the investigation is completed, the investigating officer will walk the case over to the Supervising District Attorney. They will then discuss the case and decide what charges, if any, should be filed.

I have to register as a sex offender. How can I get past this requirement and move on with my life?

The stigma of having to register as a sex offender is extreme. Many sex crimes carry a lifetime registration requirement. However, the law recognizes that in certain situations it may be appropriate to allow a person to apply for a certificate of rehabilitation. This can relieve a person convicted of a sex crime from having to register as a sex offender.

Not surprisingly, considering the benefit of a certificate of rehabilitation, the process of obtaining one is extremely challenging. The first step is record clearance, which is a complex process in itself. After that process is complete, there will be an array of applications and an interview with at the district attorney’s office. There will also be a hearing to determine if the candidate is appropriate for the post conviction relief. We prepare for the hearing thoroughly, readying ourselves to present a case to make it clear why you should be granted the certificate. Our experience has led to a positive record of success in these matters.

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How to find an inmate in Santa Clara County

The easiest way to locate someone in the Santa Clara County Department of Correction is to use their Inmate Information website.

If possible, obtain the inmate’s Personal File Number (PFN). A PFN not only makes it much easier to locate a person in jail, it may also be needed for a variety of other legal documents in the coming days. If you can’t obtain a PFN, try to obtain the inmate’s full name and date of birth as well as the correct spelling of that name.

Here’s a link to the Inmate Locator website. You can also call the inmate information hotline at (408) 299-2305. This number is available seven days a week between the hours of 5:00 AM and 1:00 AM.

Please note that inmate information generally isn’t available for at least 4-6 hours after the time of arrest.

How to visit or contact an inmate in Santa Clara County

Elmwood Correctional Facility

The Elmwood Correctional Facility is located at 701 S. Abel Street, Milpitas, CA 95035 (map). Their phone number is (408) 299-2306.

The Elmwood Correctional Facility has both a men’s and a women’s’ side. The Correctional Center for Women can house about 600 inmates of all security levels. The Elmwood Men’s Facility can hold approximately 2,500 inmates in minimum to medium security sections.

Like the Main Jail, inmates at Elmwood are not allowed to receive incoming telephone calls. As with the Main Jail, you can choose to set up a calling card account online through Global Tel* Link or by calling (800) 483-8314. These cards are available in increments of $25 and $50. In order to make sure that the correct inmate receives the card, be sure to specify the inmate’s booking number and full and complete name.

You may want to call your local telephone provider to make sure that you can receive these types of calls (as well as collect calls) and that they are not blocked on your phone. If you currently have this type of restriction, it may take up to 72 hours for the collect or calling card calls to come through once you remove it.

Santa Clara County Main Jail

The Santa Clara County Main Jail Complex is located in Downtown San Jose at 150 W. Hedding Street, San Jose, CA 95110 (map). Their phone number is (408) 808-2800.

The Santa Clara County Main Jail complex consists of two jail facilities: the Main Jail South and the Main Jail North.

All males who are arrested in Santa Clara County are initially taken to the Santa Clara County Main Jail. Some males are then transferred to the Elmwood Correctional Facility depending on a variety of factors, such as:

• the charges for which the inmate was arrested (the Main Jail typically houses medium to maximum security inmates)
• the availability of bed space
• medical needs, etc.

All female arrestees are taken to the Correctional Center for Women which is part of the Elmwood Correctional Facility.

When inmates are booked into the Santa Clara Jail, they are entitled to make free outgoing local phone calls to arrange for bail, inform family members as to their whereabouts and contact an attorney. Thereafter, calls must be made on a collect basis or placed with a calling card. Inmates are not allowed to receive incoming calls.

If you wish to set up a prepaid calling card account for an inmate, you may do so online via Global Tel∗ Link, or you can call Global Tel at (800) 483-8314. Prepaid cards are available in increments of $25 and $50. In order to make sure that the correct inmate receives the card, be sure to specify the inmate’s booking number and full name.

If you know that a friend/family member is being held in the Santa Clara County Main Jail Complex, you may want to contact your local telephone carrier to make sure that collect and calling card calls are not blocked on your telephone plan.

As an alternative, you can hire one of the attorneys at VIB Law to make immediate contact with the inmate.

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