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drugged driving, proposed law, San Jose marijuana DUI lawyerBetween the legalization of medicinal marijuana and the push for recreational legalization, police officers and state officials are looking for a way to better detect who might be driving while under the influence. Their hope is a handheld electronic device that would automatically detect the presence of various drugs, including marijuana, on a saliva swab. The real question is whether or not they could successfully pass such legislation and if it would, in fact, give them the evidence needed in a courtroom.

When and How the Swab Would Be Used

As the law currently stands, convictions for driving under the influence of marijuana – even medical marijuana – are rather subjective since blood tests are unable to determine the last episode of use. As such, prosecutors and law enforcement use a battery of circumstances, including presence of marijuana in the bloodstream, driving patterns, failed field sobriety tests, and physical appearance.  In contrast, a swab test focuses on recent drug use, typically within approximately 24 to 72 hours with marijuana.

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Posted on in California Laws

transgender hate crime, San Jose criminal defense lawyerTransgender equality laws have been in the news lately, headlines by the bombshell story that North Carolina’s governor recently signed a law limiting the use of public bathrooms by transgendered people. The issue of transgender rights has long been one for debate, and the debate has not slowed as transgendered people and rights issues continue to be more widely accepted in society.

History of Transgender Rights in California

California was one of the first states to include transgendered people in their civil rights laws—the first law amending that state’s hate crime statutes to include specific mention of rights violations against transgendered people dates back to 1998. The 1998 California law also extended to transsexual people, and was widely considered broad enough to include any person who is assaulted or harassed for failing to conform to gender norms, including but not limited to: the way an individual dresses, the way an individual looks, and the way an individual speaks. At the time, California was only the third state to pass such a law, after Minnesota and New Hampshire.

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domestic violence, Santa Clara County criminal defense attorneyWhile the term “domestic violence” conjures images of battered women and abused children, the legal definition of domestic violence is not limited to this type of physical injury. The common definition does, perhaps, have validity; by far the most common type of domestic violence, physical violence affects approximately 40 percent of California women in their lifetime. Younger women are far more susceptible to this type of violence; roughly 11 percent of all California women ages 18–24 had been the victims of intimate partner violence in the past year. Women who had been pregnant in the past five years were more likely to be these victims, and three-quarters of all victims had children under the age of 18 living in the home at the time that the abuse occurred.

Other Concerns

There are, however, four other main types of abuse that are categorized by law as domestic violence. Sexual abuse is one of these. While a couple may be married, it is against the law for either partner to force the other to have intimate relations—marriage does not legally preclude the right to refuse sexual advances. Sexual abuse is not limited to relations between the two married partners, either. It also includes the forcing of one partner to have relations with someone else, forced prostitution, and, commonly, forced sex after physical beating. Sexual abuse can also include some forms of emotional abuse, such as withholding sex and accusations of infidelity that are accompanied with threatening behavior.

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criminal identity theft, San Jose criminal defense attorneyIdentity theft is one of the most common types of fraud committed in the United States. More than 15 million American residents have their identities stolen every year, costing the country—at either the state or federal level—up to $50 billion annually. There are some things that a person can do to combat identity theft, or to deal with it once it occurs. The first step to overcoming identity theft is to file a police report. To aid with this, a victim may also need to fill out a Federal Trade Commission Identity Theft Affidavit. If the identity theft has occurred through another government agency, such as via the theft of sensitive mail delivered by the United States Postal Service, a victim may also need to fill out an identity theft report with the USPS.

One particularly devastating type of identity theft is known as criminal identity theft, in which a person is held accountable for a crime that he or she did not commit because the perpetrator used a stolen identity at the time of arrest. This can happen more easily than you think—all a criminal needs to do is to give a law enforcement officer a stolen driver’s license or Social Security when he or she is detained on suspicion of a crime. While it may seem simple to rectify this situation of mistaken identity, once the process has begun, it can be very difficult to slow or change it.

Because this information is then recorded in both the state and federal criminal records databases, it can have long lasting effects that are seemingly irreversible. The scariest part of criminal identity theft is that there is little one can do to address it without the assistance of an experienced attorney. Even after a person has proved his innocence by submitting fingerprints or photographic proof, he or she may still face charges or even spend unnecessary time in jail because this information is on record. His or her name may trigger an alarm when buying gas at a gas station, or if pulled over for speeding. Red tape in the law enforcement system requires officers to arrest the individual before they are able to access the proper identifying information.

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APS law, San Jose DUI defense lawyerIn 1990, a law was passed in California that made it possible for law enforcement authorities to immediately suspend the license of any person caught driving under the influence. This law, known as Administrative Per Se (APS), was implemented as a means to address and combat the state’s 1,500 annual crash-related deaths in which alcohol was a factor.

Underage DUI

The law is only applicable to drivers 21 years and older. If you are charged with a DUI under the legal drinking age, California has a zero-tolerance policy, meaning that regardless of whether your blood alcohol level (BAC) is above the legal limit, if there is any alcohol detected in your system whatsoever, you will be guilty of underage drinking and driving. This results in a one-year license suspension—again, regardless of whether your BAC was below the legal limit. If you are found guilty of DUI as an underage drinker and have at least the legal limit of alcohol in your system (.08 percent or more), you may also be subject to: 

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Three Strikes Law, San Jose criminal defense attorneyThe California Three Strikes law was imposed in an effort to curb the rate of crimes perpetrated by repeat offenders. In practice, however, it often led to people being severely sentenced for crimes that are usually relatively minor. For example, people whose first two strikes were convictions for felony offenses, such as domestic violence or rape, were subsequently sentenced with more intense punishments for seemingly less serious third strike crimes such as theft or drug possession. The law was originally passed hoping to curb recidivism rates, but may have played a role in raising them, resulting in higher costs for both state and federal facilities without actually curbing the rate of offenses.

History and Future of Three Strikes

It was about a decade and a half ago that the first questions were raised as to the effectiveness of the law and such procedures, but it was not until late last year that a reform of the Three Strikes law was brought to the table in California. The law was first passed in 1994. In the years that followed, analysts found that a reimagining of the policy would ultimately save the state of California several hundred million dollars a year. Now, efforts are underway to bring the law may to voters for reconsideration on the November 2016 ballot.

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sobriety testing, San Jose criminal defense attorneyIf you have been accused of driving under the influence in California, there are several things you need to know to know about your rights when it comes to chemical testing. Whenever you get behind the wheel of a car in the United States, you are under the auspices of implied consent.

Understanding Implied Consent

Every state in the country has some form of implied consent law, which means that by operating a vehicle on a public road, you are agreeing to submit to chemical testing if pulled over and asked by an officer of the law to undergo a test. Refusal to submit to a requested chemical test when driving on a public road is a violation of the law, and punishment can be much harsher than it would have otherwise been. That is, fines and jail time could be greater than if the chemical test had revealed that you were driving with a blood-alcohol level above the legal limit.

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domestic violence, San Jose criminal defense attorneyIf you have been accused of domestic violence, it can be a long road to clear your name and to move on. Because of the nature of the crime, it can be difficult to absolve yourself of the accusation, even if you are found not guilty in a court of law. This can manifest in attitudes of those around you, including your children and family members, but can also have negative consequences outside of your personal relationships.

Dangers at Work

In addition to workplace discrimination often perpetrated against the victims of domestic violence (ie: being penalized for needing to see a doctor or go to a specialist, without prior notice), if you are accused of domestic violence and have to go to court, you may not be excused from work for court dates. There have also been instances when a person who is accused of domestic abuse is fired, ostensibly for other reasons, but on the heels of the charge that is difficult to overcome. . Of course, sharing the details of your accusation with your supervisor may not be advisable either, as he or she may be inclined to believe you are guilty by default, often making your problem even worse.

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drug crimes, San Jose criminal defense attorneyIf you are arrested for having drugs in your possession, you could be facing serious consequences. Drug possession is legally known as possession of a controlled substance. The exact penalties will vary depending on the type and amount of the drug you are accused of possessing. There are many different defenses to a charge of the possession of a controlled substance, depending on the circumstances. Your case may involve the use of one or more such strategies, and an experienced criminal defense attorney can help you decide the best way to proceed.

Challenging the Stop

Often drugs are found when you have been stopped by a police officer, either in your car or while you are on foot. There are specific rules that police officers must follow before they are allowed to search you or your property.

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Posted on in DUI

San Jose criminal defense attorneyUnder California law it is illegal to drive under the influence of both alcohol and drugs. Drugs can be anything from illegal substances like methamphetamine, prescription drugs like Vicodin, or even over the counter cough medicine. If you are taking something that impairs your ability to drive, you can be arrested and convicted of Driving Under the Influence of Drugs (DUID).

How a Drug DUI is Different

The signs that a driver is under the influence of drugs will often be different than the signs of alcohol use. Many law enforcement agencies have special drug recognition experts that are brought in to observe suspects who are believed to be on drugs.

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theft, petty theft, San Jose criminal defense attorneyPetty theft has long been one of the most common non-violent crimes. It covers a wide range of offenses, including shoplifting. Though common-knowledge is that this type of petty crime is, in large part, perpetrated by younger offenders looking for a thrill or way, presumably, to rebel, shoplifting statistics, for example, show that only one-quarter of all shoplifters are teenagers. There are roughly 27 million people who shoplift in the United States at any given moment—and more than 10 million have been caught in the past five year.

This type of theft is one that has long been a burden both to retail outlets and our police departments. Yet with the advent of cellphones and other handheld technological devices, there was a whole new type of offense: the petty theft of an electronic device. This often occurs in large cities in the middle of large crowds; on public transportation systems, or in the incident of a burglary into a car or other mobile personal property.

California Kill Switch Law

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false allegations, San Jose Domestic Violence AttorneyThere is no question that domestic abuse is a real problem in today's world. Therefore, if you have been slapped with a domestic violence charge, it can seem impossible to prove your innocence. With high-profile cases making headlines every day—and popular opinion often decidedly on the side of the accuser—it may feel like an uphill battle without an end to get a fair trial. It is important, however, to stand your ground and to be sure that false charges against you do not completely destroy your life and limit your opportunities. 

Be Open

When you have been wrongly accused of domestic violence, there are several things that you can do to help your lawyer prepare for trial. The first is to be open and honest about anything you may have said or done over the years that could be misconstrued and used against you. Knowing what will be brought out against you is half the battle. Spend some time going through old letters, social media, and replaying conversations in your head. If you had said something, even jokingly or in passing, that could be construed as threatening, make sure that your lawyer is aware of it.

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DUI, San Jose DUI defense attorneyWhen you are arrested for DUI in the state of California, the procedure from the time of being pulled over to being charged is rapid—and a significant portion of your immediate future hangs in the balance of those few minutes. Immediately following an arrest, the officer must immediately forward a copy of the suspension (or revocation, depending on the severity of the incident and your prior record) to the California DMV. The DMV will then determine whether or not that suspension will be upheld. If you receive word from the DMV that the suspension will indeed be upheld, you have 10 days to request a hearing with the DMV in an attempt to overturn this. If you miss the window of those 10 days (beginning upon receipt of receiving the suspension notice), you forfeit your right to a hearing at the DMV. It is likely that your license will be confiscated by the officer at the time of arrest. In order to receive it back at the end of the suspension period, you are required to pay a $125 fine to the DMV.

In California, you imply consent to taking a roadside chemical test if asked to do so when you get behind the wheel. This means that refusing to take a Breathalyzer test is illegal in California. If you fail the chemical test when administered and it is your first DUI offense, your license will automatically be suspended for a period of four months. A second, third, fourth, or subsequent offense will carry a much more stringent punishment. For a second offense alone, your license can be suspended up to a full year. If it is your second offense and someone was injured in an incident in which you were required to submit to chemical testing, you will likely spend time behind bars.

The only reasons allowed by law for refusing a roadside chemical test are:

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three strikes, San Jose criminal defense attorneyIn the mid-1990s, California was among 24 states to enact what would become known as a "Three Strikes” sentencing law. The laws were passed in an effort to curb recidivism rates and rates of repeat offenders. For the most part, these laws provided that a defendant who had been convicted of a serious felony would be sentenced to state prison for twice the term otherwise allowed for the offense if the sentencing was the result of a second conviction. When a person committed a crime with at least two other felony incidents on his or her record, the law dictated that the person would serve a state prison term of 25 years to life.

This law was not reviewed until 2012, when voters approved a slight change to the terms: The third felony, or the third strike, now has to be a violent or serious felony in order for the person to be sentenced to 25 years to life. The amended law also allowed prisoners who were currently serving time under the old provisions to petition the court for a reduction of sentence.

There are several arguments against Three Strikes policies—the most common of which is the argument that harsh sentencing laws are not a deterrent for crime. Instead, these types of laws result in overcrowded prisons and poor prison conditions, and their implementation does not reflect a reduction in the overall crime rate, whether serious or not. One alleged reason for this is that the majority of violent crimes are not premeditated; they are crimes committed in the heat of passion, anger, or when under the influence of alcohol. In these instances, when a person is about to commit a violent crime, he or she is not considering the punishment, regardless of how severe it may be.

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b2ap3_thumbnail_teen-handcuffs-juvenile-justice.jpgCalifornia has long had one of the strictest policies against juvenile crime in the country, but this has begun to change. As recently as 2010, more than 200 of the state’s youth were locked up, serving life prison terms with no possibility of parole, for crimes that they had committed before they were 18 years old. In contrast, the rest of the world—not the U.S., the world—had only seven people who were under 18 serving life sentences without the possibility of parole.

Gang Violence Influences Laws

When looking at recent social history, it is hardly surprising that this would be the case. Throughout the 1980s and 1990s, the rate of gang-related criminal activity reached new highs in California, a type of crime specifically perpetrated by and targeting young people. In an effort to curb this dramatic and devastating gang violence, the state passed an anti-crime measure in 1990 that made life sentences without the possibility of parole the norm for any murder charge. This law was in effect until 2012, when it was changed to allow youth offenders who had served at least 15 years of their sentence to be eligible for a parole hearing. It was not until just last year, three years after the monumental bill was passed, that the first youth serving a life sentence was released from prison.

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b2ap3_thumbnail_identity-theft-fraud-electronic-theft.jpgFraud may be a common crime, though it is not without victims and not without serious consequence. The idea of “defrauding” someone often brings to mind images of people selling fake Rolexes from open jackets on a dark street corner, but the reality of fraud is much less noticeable, even when it is happening to you. As the world continues to modernize and we increasingly rely on technology to perform all of our daily functions—including those which involve money and the transferring of funds from one account to the other—the issue of identity theft is one type of fraud that has proportionately risen in prominence. Roughly 15 million Americans are victims of identity theft annually, resulting in financial losses totally at least $50 billion. All told, nearly 7 percent of all American adults have been the victim of identity theft.

It is true that identity theft used to be a crime most often perpetrated by large criminal organizations, with the capability of sophisticated tracking and phishing technology. As technology changes, however, so does the crime perpetrated via technology. One no longer needs to be a sophisticated criminal to simply hack into someone’s account, and the data sought after by identity thieves are no longer just bank accounts. The theft or unauthorized use of a person’s cell phone line, cable service, government benefits, and financial loans are other types of common identity theft, the number of which have continued to steadily increase in recent years.

Monitoring your financial assets can help you to avoid becoming a victim of identity theft. If you have already been the victim of such a crime, you can, free of charge, place a fraud alert on your credit reports and financial accounts to help avoid a similar circumstance in the future.

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Posted on in DUI

holidayEach year around the holiday season, traffic on the roadways increases significantly.  It is estimated that 30 percent of all Americans travel during holiday celebrations.  As you can imagine, with a surge in travel also comes a rise in DUI-related traffic incidents.  In 2013 alone, 10,076 people were killed in alcohol-related vehicular accidents, accounting for nearly one-third (31 percent) of all traffic-related deaths in the United States.   For those affected, the holidays are not always so merry and bright. 

With the climbing amount of traffic fatalities in the Bay area this year, local law enforcement is out to ensure that everyone makes it to their holiday destination safely.   In addition to patrol units, we can anticipate sobriety checkpoints.  Through their new campaign, “Buzzed Driving is Drunk Driving,” the San Jose Police Department reminds drivers to be cautious of the amount they drink before you drive, even if it is just one beer.  There are a few methods to ensure that you can have a memorable celebration without getting a DUI: 

  • Abstain From Drinking: Not only will you not risk a DUI, but you may also even be able to provide transportation to a friend, family member, or acquaintance if they are in need of assistance.  
  • Get a Designated Driver (DD):It is best to agree upon this before you make your plans, so this person is aware that they are responsible for your safety. They are not supposed to drink alcohol that night (or take any medications that may impair driving abilities).  If you see them not fulfilling their duty and partake anyway, find another DD. There also are many public service sober ride options available online.
  • Take Public Transportation: There are dozens of cab companies that will gladly take you home (for a fee). The bus system is another option if one is running within walking distance of your location.
  • AAA Tipsy Tow: This is a free service offered during the holidays by AAA (whether you are a member or not). It gets your vehicle, and you, home within a five-mile radius. Their number is 1-888-AAA-HELP (222-4357).
  • Stay the Night: Most hosts care about their guests’ safety. If you have had too much and there is not a better option, stay the night where you are.

If all else fails, and you do end up drinking, driving, and are pulled over by police, there is hope. Make sure that you have a trusted, knowledgeable attorney to call to assist you in everything that happens after the DUI. Having processed cases in excess of 3,000, Attorney Thomas Nicholas Cvietkovich can be that life-altering phone call. To schedule a free consultation with our San Jose DUI defense lawyer, call 408-625-1130.

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Posted on in Sex Crimes

b2ap3_thumbnail_website-http-online-www.jpgWhile the trend may not be new or as old as the Internet itself, sexual crimes committed on the Internet have garnered more professional and social attention as of late. There are several types of Internet sex crimes, which extend into definition child pornography, though this may be the most publicized example of the crime and, by far, the most commonly perpetrated.

For example, soliciting chats of a sexual nature from any vulnerable person (which can include someone unable to make the decision for him or herself, as well as children)—or asking that person to send a sexual photo of him or herself—is considered an Internet crime. Asking a minor to meet somewhere with sexual intentions, whether they are complicit in it or not, is considered the sexual online crime of “luring.”

Potential Impact

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b2ap3_thumbnail_domestic-violence-allegations-problems.jpgThe idea that the rate of domestic violence increases during the holidays is nothing new, and if often brought to the attention of a national audience by sensational local news and media. Yet the sensationalism around such cases may in fact be warranted—domestic violence rates do tend to tick up during the holidays, as evidenced by the number of people seeking respite in domestic violence shelters goes up right around New Year’s Day.

According to one report, calls to law enforcement agencies reporting intimate partner violence in an unnamed U.S. city were significantly higher on New Year’s Day than on any other day of the year, going up from 34 to 56 calls. The trend tends to extend into the first couple weeks of the new year as well—calls to national hotlines tend to increase 5 percent over the first two weeks of the year.

Reasons for Increased Violence

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juvenile crime, accused child, San Jose criminal defense attorneyIf your child has been accused of a crime, it can be a difficult time for everyone. Most families will be faced with tough questions regarding where the accused will be tried, and how to proceed. Most families will also be worried about the future for their child, regarding his or her future criminal record and what such a mark on the record could do for his or her future.

Following the arrest of a juvenile, he or she will first likely be taken in for questioning, and then be allowed, in most cases, to return home. A probation officer will then be in touch about the next steps, and both the custodial parent or parents and the accused will be required to meet with a probation officer to discuss possible outcomes of the situation.

It is the probation officer who will decide whether or not the child will be assigned to juvenile detention (juvenile hall) or whether he or she will be allowed to return home to await the trial. If your child is assigned to juvenile hall, he or she will have to remain there until the case is decided. This can often be several months, depending on the severity of the case and the complexity of the ruling. The probation officer will also determine visitations rights of the parents while the child is in custody.

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