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James B. Hernan

James Hernan’s Answers

482 total


  • D. A recommendation vs. Judge Ruling

    My boyfriend was charged with aggravated assault towards me and was arrested and recently got a bond. The D. A said they recommenced a TPO order with conditions of his bond.In court Tuesday at his bond hearing he said the judge told him his bond w...

    James’s Answer

    In assault cases such as this, courts often include a "no contact" or "no violent contact" provision in the bond conditions. Those two are significantly different. A no contact order restricts any contact or communication (from in person to texting, calling, Facebook, etc.). A no violent contact order allows contact and communication but restricts the defendant from any violent behavior. Get a copy of the bond order to see the conditions your boyfriend faces.

    Although it appears from your post that you do not want him to have those restrictions, just in case you do, you can go to the court and request a no contact order. Also, Georgia has a hotline for victims of domestic violence. You can reach the hotline by calling 1-800-33-HAVEN.

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  • My daughter had court on April 27 looking at her court records online it shows 17 STATE COURT PROBATION REVOCATION

    that was all on the same court date which she got probation of one year. What does that mean she was arrested yesterday when she went to probation and we don't know why. What do I need to do? No one will tell me anything and the probation offic...

    James’s Answer

    Your daughter needs an attorney who can inquire with the court and the probation office regarding the alleged violation of her probation. The specific course of action will depend on factors not listed such as in which county her case is located. She could end up sitting in custody for a while waiting for a hearing. Some places are better than others (particularly if she only has minor, technical violations) and will get her before a judge, but others will let her sit upwards of thirty days. I don't write that to alarm you, other than to point out that it is important to speak with an attorney right away to get them working on trying to get your daughter released.

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  • In georgia for a shoplifting misdemeanor is there a chance to get it dismissed and expunged on court date itself?

    In georgia for a shoplifting misdemeanor which is a first offense is there a chance to get it dismissed and expunged on court date I have a job joining and they are going to do a background verification plz suggest I also have immigration proble...

    James’s Answer

    Be careful about even entering a diversion program if there are potential immigration consequences without first consulting an attorney. Some pre-trial diversion programs still involve a plea of guilty that is withheld. For example, you appear to be from Alpharetta where the court has a program called a Hold & Clear program. In my experience with clients entering into that program, the defendant pleads guilty to the charge but the judge holds off on entering the conviction. The defendant is given a set of conditions to meet (program fee, community service and shoplifting class to attend) and twelve months to complete the conditions. If the defendant fails to complete the conditions, the conviction is entered. If the conditions are successfully met, the case is dismissed. Getting the case dismissed can be a great deal, and will usually result in the criminal record being restricted from employers (expunged).

    However, it can still have devastating immigration consequences. A conviction for a theft offense involving a sentence of twelve (12) months can be an aggravated felony for immigration purposes. And, the definition for "conviction" used for immigration purposes is more broad than the state criminal context. The Immigration and Nationality Act defines conviction as in Section 101(a)(48) as:

    (A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-

    (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

    (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

    Merely making an admission of sufficient facts to warrant a finding of guilt is enough and, in the context of the a program such as in Alpharetta, immigration can use a plea of guilty or admission of guilt as a conviction even if the case is ultimately dismissed.

    You need the advice of a criminal defense attorney with knowledge of the immigration consequences of your case.

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  • What is the cost of an expungement if the defendant was placed in a Pretrial Diversion Program?

    First time offender of shoplifting was given a PTI at arraignment. Program administration fee of $500 to be paid within 90 days. $95 educational counseling class. 20 hours of community service. $35/month probation fee. The filing fee of an expunge...

    James’s Answer

    Other attorneys have answered the question, so I'll just add that if your date of arrest pre-dates the changes to the law regarding expungement / restriction of record and you go through the process of submitting the paperwork, never assume that everything was processed as it should have been. Always check your own criminal history (following the dismissal if the restriction of record is automatic or six months after you start the paperwork for the expungement) to confirm the information has been expunged or restricted.

    You can get more information about expungements / restriction of records from the Georgia Crime Information Center at https://gbi.georgia.gov/sites/gbi.georgia.gov/files/related_files/site_page/Request%20to%20Restrict%20Arrest%20Record%20Instructions%20and%20Request%20Form.pdf.

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  • Can security guard put there hans on me?

    i was at the mall during Christmas . a gaurd ran out of the store grabed me by my neck and said i had to come back in the store. i thought i was neing robbed. he said he wanted there jewlery back. the detained me amd got me for theft over 500.

    James’s Answer

    You did not mention where this happened, but based on your listed city I will assume it was in Tennessee. The Tennessee Code deals with the use of force by a private security guard. For example, see Tennessee Code Section 39-11-621 which states: "A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, §§ 39-11-611 and 39-11-612."

    The security guard will likely claim that you were fleeing and that he was using the force reasonably necessary to accomplish the arrest. You could contact a local personal injury attorney if you want an evaluation specific to your case whether or not the security guard was authorized to detain you and whether or not the force was reasonable. That being said, the fact that you allegedly took over $500 from the store does not help your case and may make it difficult to find an attorney willing to consider the case. I would suggest contacting a criminal defense attorney first to deal with the theft charge and maybe they can take a look at the negligence part.

    Be aware that there are statutes of limitation that limit the time during which you can pursue a claim.

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  • After dui arrest in Georgia do i still have my license

    So i was arrested for a dui drugs i consented to the blood breath urine test but was never tested. I have a nys liscense but it wasn't taken w away nor did they give me a dds1205 Do i have a still have a licensee?

    James’s Answer

    Georgia drivers are able to check the status of their license online at https://online.dds.ga.gov/dlstatus/default.aspx; however, that will not do you much good for the New York license. Even the Georgia system is not fully accurate because it will show a license as valid even if the administrative license suspension process is proceeding and if there is a suspension pending the outcome of that case. There appears to be an equivalent process available on the NY Driver's Services website at http://dmv.ny.gov/driver-license/check-my-licensedriving-privilege-status, but I am not licensed in New York and cannot provide any advice regarding New York law or how a DUI in Georgia will affect your driving privileges in New York.

    Generally speaking, the DDS 1205 form in Georgia is used by the officer to initiate the administrative suspension of your license.

    You should contact a Georgia criminal defense attorney right away to assist you with the case, and they can look into your license status.

    Best of luck.

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  • Auto insurance: other driver got a ticket but her insurance company says she is only 80% at fault?

    I was in an accident where the other driver was written a ticket for failure to yeild and was found at fault by police officer. She then lied to her insurance company claiming that she had a green arrow. I was able to prove that there is in fact n...

    James’s Answer

    Fight back and assert your rights to be reimbursed for the damages caused by their insured driver's negligence. That being said, sometimes the time and resources necessary to pursue that fight (such as pursuing litigation in small claims court or state court) is not justified by the amount of damages involved. A personal injury attorney can assist with the property damage portion of your claim (generally they will as part of an injury claim or can be retained specifically for the property damage portion only), and can put pressure on the insurance company to accept full responsibility for the accident.

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  • Should I take a blind plea offer if I'm a fist time offender?

    I am a first time offender. I was charged with 2 counts of false statements in writing. The DA has offered me 3 years which includes 90 days in jail and the remainder on probation and community service. I'm unable to do jail time due to my kids an...

    James’s Answer

    Your attorney is in a much better position to answer that question, because he or she has a much better understanding of the facts of your case, your possible defenses and the strength of the evidence in your case. Also, the determination whether to take a "blind plea" that is also referred to as a non-negotiated plea depends a lot on the court in which you are entering the plea. There are some judges in front of which I would allow my clients to do a non-negotiated plea and others where it would not even be a consideration. You really need to rely on your attorney, rather than an online forum. I understand the situation is difficult and wish you the best of luck.

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  • I missed my recorders court date for a DUI yesterday. What should I do?

    I had made a honest mistake by looking at the wrong continuance of arraignment sheet from a previous date.

    James’s Answer

    First, you need an attorney to assist you with the DUI case. That is not the type of case that you want to handle on your own. So, I recommend you contacting an attorney right away to consult with them about the case and the attorney can likely get your case put back on a calendar. The other attorney who posted a response earlier is correct that sometimes the failure to appear warrant or bond forfeiture might not have been put into the system yet, so the time to act is now. If your case is in the Gwinnett County Recorders Court (assumption based your listed home city), the attorney should be able to work with the clerk's office (which is very professional and reasonable) to get you back on the calendar. That court also allows walk ins, so the attorney can walk in and get the clerk's office to pull the file so they can speak with the prosecutor.

    Be sure to contact an attorney right away.

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  • Need a lawyer

    i went to take a urine test...the 1st one was not the correct temperature...a thick tongue Spanish lady gave my test...i did not completely understand her English. i went and sat down...told the guy that was to watch me...i had to use it...he said...

    James’s Answer

    The attorneys who moved your case over to the criminal law forum helped because this is now in front of attorneys who handle those requests. That being said, there is not enough detail in your statement to determine what you are asking. I recommend contacting a criminal defense attorney directly to go over the specific details of your case. It sounds like you may have a violation of probation. If so, you need to speak with an attorney to address the probation revocation issues as well as any problems that may result for your CDL.

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