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Archive for the ‘Criminal Law’ Category

Are Lawyer’s Fees Negotiable?

Tuesday, July 7th, 2009

What is oftentimes a major factor in lawyer selection in criminal cases comes down to what the lawyer’s fees will be. A fee between a lawyer and a client is not set by law, but is negotiable. There are many factors that one should consider in evaluating an appropriate lawyer fee, including the amount of the fee in proportion to the value of the services to be provided, the experience of the lawyer performing the services, the stakes involved for the client, and the time involved for the lawyer, to name but a few.

In criminal cases the standard type of fee arrangement most often used is the flat fee. There are many reasons for this. Persons facing criminal charges are generally compromised financially, and are not in a position to pay a lawyer hourly rates. Because of incarceration clients may not be able to keep up with any type of a payment schedule. Oftentimes clients make an initial payment and then are not able to pay the balance. The flat fee is also generally more cost effective for the client in that the lawyer’s time actually invested in a case may likely exceed the time the fee would otherwise indicate if the lawyer was charging on an hourly basis.

For many, the issue of selecting and paying a lawyer is about securing the peace of mind that comes from being confident that your lawyer is fully committed to your best interests, and skilled in performing whatever tasks a particular undertaking may require. That kind of comfort and confidence in your lawyer is what everyone should expect, but it is difficult to put a price on.

It is this writer’s opinion that in light of the potentially horrific consequences of a criminal proceeding it is never wise to choose a lawyer based exclusively on price. As anyone who has had the experience of working with lawyers knows, the old adage: “You get what you pay for” more often than not, applies to lawyers, just as it does to any other group of professional service providers.

If you have questions regarding lawyer fees in criminal cases please contact San Jose criminal defense lawyer Bernard P. Bray

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Posted in Criminal Law | 16 Comments »

Enough of Zero Tolerance yet?

Sunday, June 28th, 2009

In a previous blog entry I addressed the Milpitas High School Official’s decision to bar from high school graduation ceremonies a student who had broken up an on school campus fight in the name of maintaining the integrity of the school district’s zero tolerance policy on campus violence.

As it realtes to another zero tolerance policy the United States Supreme Court now has now ruled in the case of Safford Unified School District v. Redding on school campus drug possession. The case concerns Savanna Redding who was a 13 year old honor student at the time that she was strip searched after being identified by another student as possibly being in possession of Ibuprofen. The now 19 year old Ms. Redding recalled being stripped to her underwear, being made to move her bra from side to side, and further being made to open her legs and pull out her underwear, all in the name of the school’s zero tolerance policy regarding drugs.

The issue was framed by the United States Supreme Court in terms of whether the Fourth Amendment prohibits suspicious public school officials from conducting a strip search of a student suspected of possession or distributing drugs on campus in violation of school policy?

Courts generally have taken a heavy handed approach when dealing with issues concerning the scourge of the American drug problem. As the father of three daughters familiar with the sensitivities of young women, and a person of generally even keeled temperament, I can unequivocally say that in my opinion any near naked search of a 13 year old girl by suspicious school administrators is clearly excessive and unacceptable. What could those callous administrators have been thinking?

Enough already with zero tolerance, zero judgment, and maybe even a new direction for school culture in the United States?  Thankfully, the United States Supreme Court ruled that the high school officials violated Ms. Redding’s right to be free from unreasonable search and seizure, writing that the content of the suspicion failed to match the degree of intrusion.

If you or someone you know has question regarding criminal justice issues and youth please contact the San Jose criminal lawyers at the Law Offices of Bernard P. Bray.

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Can I really lose my license?

Thursday, June 25th, 2009

As a practicing criminal defense attorney in California I hear that question more than a few times a month from persons calling the office after having been arrested for driving under the influence. Anyone arrested for driving under the influence in California will face license suspension if they provide an alcohol screening test result that comes back with a result of .08% blood alcohol or higher, or if they refuse to take a test.

The threshold is much lower for persons under the age of 21. Anyone under age 21 arrested for driving under the influence in California will face license suspension if they provide an alcohol screening test result that comes back with a result of .01% blood alcohol or higher, or if they refuse to take a test.

The above rule is known as the Administrative Per Se Suspension Rule. Notice of the Administrative Per Se Suspension is provided by the arresting police officer or police agency. The actual suspension is administered by the California Department of Motor Vehicles. There is no pre-suspension imposition right to court review of an Administrative Per Se suspension. If one wishes to contest an Administrative Per Se suspension with a view toward avoiding license suspension, one only has 10 days within which to request a hearing to challenge the suspension, and request a stay of the suspension until the time of a hearing. If one takes no action, their license will be suspended 30 days after arrest.

The period of suspension will be for four months for over age 21 first time offenders that take a test. A restricted license may be available after 30 days of suspension. The suspension will be one year for persons refusing a test and for under age 21 offenders. Multiple offenders are looking at much longer periods of suspension.

If you, or any you know has been arrested for DUI and has questions contact the best San Jose DUI Lawyers at the Law Offices of Bernard P. Bray at: (408) 292-9700.

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Posted in Criminal Law, DUI Law | 1 Comment »

30 Days for DUI Manslaughter: Could it Happen in California?

Tuesday, June 23rd, 2009

Sacramento California raised Dante Stallworth, who was most recently employed as a receiver for the Cleveland Brown’s, after stints with the New England Patriots, the Philadelphia Eagles, and the New Orleans Saints was sentenced in Florida to 30 days in jail for DUI manslaughter.  Was this result at variance from the public’s expectations in such situations?  You bet it was!

While the outcome could have been the result of great lawyering, Stallworth’s celebrity status, or most appropriately extenuating facts and circumstances of the case, this writer strongly suspects that it was most probably the influence of the victims’ family who reportedly received a substantial confidential settlement from Stallworth.

The reported facts of the case are not mitigated.  Apparently, Stallworth drove his Bentley around a stopped car to beat a red light and struck 59 year old Mario Reyes, who was walking to a bus stop form work as an overnight crane operator.  While Stallworth cooperated with the authorities, he is alleged to have provided a blood alcohol breath test  result of .126%.  The legal limit in California is .08%.

The case did not go to trial, and resolved at a very early stage of the proceedings, and consequently did not provide much opportunity for courtroom lawyering.  To pin the result on Stallworth’s status as a sports celebrity would be a stretch for even the most cynical of observers.

Could such a result be possible in law and order California, the home of the nation’s first three strikes law?  Sure, and this fact should arguably not be shocking, or even out of line, when considering current state law concerning the rights of victims to influence the outcome in criminal cases.  Florida, like California, has its own Crime Victim’s Bill of Rights, and it appears on first read not even to be as expansive as the bill that the California voters passed on November 4, 2008 in the form of Proposition 9, also known as Marsy’s Law and the Victims’ Rights and Protection Act of 2008.  Proposition 9 extended the victim’s right to be heard, to a right to be involved substantively in the criminal justice process.  California victims are now constitutionally entitled to safeguards fully protecting all of their rights, including the right to reasonably confer with prosecuting agencies even before any pretrial disposition of a criminal case.

Perhaps in an ironic tweak of law, Florida’s Crime Victims’ Bill of Rights arguably set up vulnerable crime victims to unnecessarily infringe upon the power of the state in its search for justice for the people of the state of Florida, and certainly in the case of Dante Stallworth, set up his victims to be his most powerful allies in the courthouse.

If you or someone you know has been arrested for a DUI in Santa Clara County, contact the San Jose DUI lawyers at the Law Offices of Bernard P. Bray.

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Posted in Criminal Law, Drug Law, DUI Law | 6 Comments »

Will Budget Cuts Impact Criminal Justice?

Monday, June 15th, 2009

Prosecutor’s loss of staff will impact their office’s ability to prosecute crimes.  Attorneys will be assigned further cases to their already overloaded caseloads.  Specialized units may have to be shut down.  Law Enforcement can still make arrests, but without adequate resources, cases cannot be appropriately prosecuted.

Everyone has the right to a fair trial.  In order to insure this the United States Constitution requires that an accused person who is charged with a crime and cannot afford to hire a lawyer must be appointed an attorney by the government. While in order to insure equal access to a fair trial indigent defendants are entitled to a Public Defender or appointed counsel, budget cutbacks threaten the availability of Public Defenders and court appointed counsel.  Of further concern is that the economic downturn will result in an increasing number of unemployed people needing to rely on Public Defender and court appointed counsel services.

Lack of Public Defender and appointed counsel staffing with result in delays.  No one gets a fair trial if they need to wait several months for trial.  Further, lack of resource caused delays will drive up incarceration expenses.

Budget cuts and the lack of staff will result in Public Defender and appointed counsel being unable to provide adequate representation to clients.  Inadequate representation increases the likelihood that not guilty people will be wrongfully convicted.  The expense to the government in reversing a wrongful conviction can be staggering.

If you have questions regarding criminal justice issues contact the San Jose criminal defense attorneys at the Law Offices of Bernard P. Bray.

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