Articles 26 September 2014
As many of you have read, I recently successfully defended a client who was alleged to have violated 81 (yes 81) separate incidences of a family law visitation order. To say that it was complex and lengthy is putting it mildly but luckily the judge that presided over the case was a very experienced family law judge and was able to see the core legal and factual issues of the case.
To hold a person in contempt, the order must be in writing and must also be definitive; otherwise it lacks the certainty required to punish through a proceeding regarded as criminal or quasi criminal. What is “contempt of court?” When a party is ordered to do something and fails to do it, the other party can file a Contempt of Court Order to Show Cause.
The judge then determines if the party is in contempt of a court order. If a party is found in contempt, the judge will sentence as appropriate. The punishment can include, fine, community service and imprisonment. The “accused” is afforded constitutional guarantees, including the right to remain silent and a right to a jury trial.
Articles 22 September 2014
The difference between a misdemeanor and a felony is not always clear from state to state. In general, it is fair to say that a misdemeanor is defined by the maximum length of time a person is incarcerated, usually no more than one year. Crimes with a minimum jail time of over a year are usually felonies. One can usually state that any crime that is not a felony is by nature a misdemeanor.
In many jurisdictions, there are generally two requirements for a felony conviction to be reduced to a misdemeanor. In California, the process is memorialized in the Penal Code, Section 17 (b).
First, the offense you were convicted of must be defined as a “wobbler”—meaning the crime could be filed as either a felony or a misdemeanor. The list of crimes defined as wobblers is fairly extensive, but includes crimes such as domestic violence, burglary, assault with a deadly weapon, criminal threats and most fraud charges.
Articles 15 September 2014
Having criminally prosecuted individuals failing to pay child support, I have extensive experience in this specialized area of family law. As many individuals who are paying child support are well aware, the laws in this area are highly regulated and public policy supports active collection of the money for the care of a minor child. The reach of the government is very broad. For example, they can garnish your wages, intercept tax refunds, lottery winnings and failure to pay can mean negative reports on your credit and non-renewal of your passport. Many assume that back due child support payments (“arrears”) are dischargeable in bankruptcy court. This is not true. This debt is due until paid in full or a waiver (for non-assigned arrears only).
The laws support the strong policy that a parent’s first and principal obligation is to support his/her minor children. Each parent has equal responsibility to support the child. The court has the authority to order either or both parents to pay any amount necessary for the support and education of their child.
The state has a mandatory uniform child support guideline to determine the amount of child support. The court cannot deviate from this guideline amount unless it finds ordering a different amount than the guideline amount is in the child’s best interest or the application of the guideline is unjust for reasons enumerated in the Family Code. The reasons, however, are very limited, giving the court very little discretion.
Articles 07 September 2014
Not every defendant who faces criminal charges will proceed to trial or a plea. Many cases end up being dismissed by either the prosecutor or the court. The critical task for an effective criminal defense attorney is to determine whether there are grounds for a case to be dismissed before a plea or trial.
Some grounds for dismissal include: lack of probable cause to arrest, an illegal stop or search, lack of evidence to prove the defendant committed the crime, unavailable witness who is necessary to prove the defendant committed the crime or loss of evidence necessary to prove the defendant committed the crime.
Probable cause of arrest: In order to arrest a person, the police must have probable cause to believe the person committed a crime. The officer must have a reasonable belief based on objective factual circumstances that the person robbed the store. For example, after the liquor store robbery, a witness describes the person to the police wearing a red jacket with a dragon emblem. If the officer sees a person matching this description running away a block from the store, he likely has probable cause to arrest.