Drunk in Public/Public Intoxication

Drunk in Public/Public Intoxication (PC 647 (f)):

In order to violate California’s “drunk in public” law, you need to be so intoxicated that you are either unable to exercise care for your safety or those around you, or, you have interfered, obstructed, or prevented others from using streets, roads, sidewalks, and so forth. Behaving in such a way that invades the peace of others could land you a drunk in public charge.

Penalties (PC 647 (f)):

If convicted of PC 647 (f), a misdemeanor charge will be placed on your record. It will be visible to prospective employers and licensing agencies. If convicted you may face up to 6 months in county jail and/or pay up to $1,000 in fines.

Legal Defenses (PC 647 (f)):

Our skilled criminal defense team of lawyers can use a variety of legal defenses in order to reduce or dismiss your PC 647(f) charge. Some of these defenses include: arguing you were not in a public place, there is insufficient evidence to prove your high level of intoxication, or your civil rights were violated by the police who investigated the charge.

California: California Penal Code 647(f) considers public intoxication a misdemeanor. The code describes public intoxication as someone who displays intoxication to liquor, drugs, controlled substances or toluene and demonstrates an inability to care for themselves or others, or interferes or obstructs the free use of streets, sidewalks or other public way. California Penal Code 647(g) affords law enforcement the option to take an individual fitting the arrest criteria for 647(f), and no other crime, into civil protective custody if a “sobering facility” is available. Essentially, the detainee agrees to remain at the location until the facility’s staff consents to their departure; usually after four hours and upon the belief that the detainee is safe to look after themselves. Not every municipality in California has such a facility. Also, if a person is being combative and/or is under the influence of drugs, they will be taken to jail. Unlike a person who is taken to jail, a civil detainee under 647(g) is not later prosecuted in a court of law. –Wikipedia

May 5, 2015May 7, 2015

Expungements

Once you have completed summary probation, you can apply to have your initial charges “dismissed in the interest of justice.” Having a conviction(s) expunged can be very beneficial for those involved, especially since an expunged conviction would not be reported on Criminal Records Background Checks in California. If you successfully complete the terms of your probation- you and your criminal defense attorney can clean up your Rap Sheet in the state of California.

In the United States, criminal records may be expunged, though laws vary by state. Many types of offenses may be expunged, ranging from parking fines to felonies. In general, once sealed or expunged, all records of an arrest and/or subsequent court case are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged.

However, when applying for a state professional license or job that is considered a public office or high security (such as security guard, law enforcement, or related to national security), you must confess that you have an expunged conviction or else be denied clearance by the DOJ. There is no post-conviction relief available in the federal system, other than a presidential pardon.^[2]

Congressman Charles B. Rangel proposed the Second Chance Act in 2007, 2009, and 2011, which was intended to “[amend] the federal criminal code to allow an individual to file a petition for expungement of a record of conviction for a nonviolent criminal offense”.

Permissibility

Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.

Requirements often include one or more of the following:

Fulfilling a waiting period between the incident and expungement;
Having no intervening incidents;
Having no more than a specified number of prior incidents;
That the conviction be of a nature not considered to be too serious;
That all terms of the sentence be completely fulfilled;
That no proceedings be pending;
That the incident was disposed without a conviction; and
That the petitioner complete probation without any incidents.

Types of convictions that are often not eligible for expungement include:^[3]

Murder
Felonies and first degree misdemeanors in which the victim is under 18 years of age
Rape
Sexual battery
Corruption of a minor
Sexual imposition
Obscenity or pornography involving a minor
Serious weapons charges

In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged, or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he/she can decide to represent themselves. This is called appearing pro se.

Most jurisdictions have laws which allow – or possibly even require – the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are “sealed.” The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, “delinquent acts,” to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a “clean slate,” shielding him or her from the negative effects of having a criminal record.

Petition for Expungement

California‘s expungement law permits someone convicted of a crime to file a Petition for Dismissal^[4] with the court to re-open the case, set aside the plea, and dismiss the case.^[5] In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime.^[5] If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so.^[5] A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal.^[5] The petitioner then can honestly and legally answer to a question about their criminal history, with some exceptions, that they have not been convicted of that crime.^[5] What is actually stated on the record of the case is that the case was dismissed after conviction. If the petitioner is later convicted of the same crime again, then the expungement may be reversed.

Certificate of Rehabilitation

For persons who serve sentences in the state prison system (felons), they must apply to the Superior Court for a Certificate of Rehabilitation (CR).^[6] The CR does not remove or expunge anything negative from the individual’s record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain of their rights are restored.^[7] and a request for apardon is automatically sent to the governor.^[8]

Sealing juvenile records

Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday.^[9]

May 5, 2015May 7, 2015

Motions to Withdraw a Plea

California Penal Code 1018 PC allows defendants to withdraw their guilty pleas under a variety of circumstances. The law states that if you demonstrate “good cause” and file a Motion to Withdraw a Plea either before you are sentenced, or within 6 months of a probationary sentence, then you must be given the opportunity to withdraw the plea and substitute it with a plea of not guilty (if you pled guilty or no contest without an attorney), or, you may be given an opportunity to do the same if you pled guilty or no contest while you were represented by an attorney.

There are six kinds of Motions to Withdraw a Plea to an indictment or an information, or to a complaint charging a misdemeanor or infraction:

1. Guilty.
2. Not guilty.
3. Nolo contendere, subject to the approval of the court. The
court shall ascertain whether the defendant completely understands
that a plea of nolo contendere shall be considered the same as a plea
of guilty and that, upon a plea of nolo contendere, the court shall
find the defendant guilty. The legal effect of such a plea, to a
crime punishable as a felony, shall be the same as that of a plea of
guilty for all purposes. In cases other than those punishable as
felonies, the plea and any admissions required by the court during
any inquiry it makes as to the voluntariness of, and factual basis
for, the plea may not be used against the defendant as an admission
in any civil suit based upon or growing out of the act upon which the
criminal prosecution is based.
4. A former judgment of conviction or acquittal of the offense
charged.
5. Once in jeopardy.
6. Not guilty by reason of insanity.
A defendant who does not plead guilty may enter one or more of the
other pleas. A defendant who does not plead not guilty by reason of
insanity shall be conclusively presumed to have been sane at the time
of the commission of the offense charged; provided, that the court
may for good cause shown allow a change of plea at any time before
the commencement of the trial. A defendant who pleads not guilty by
reason of insanity, without also pleading not guilty, thereby admits
the commission of the offense charged.