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Brian Neal Gurwitz
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Brian Gurwitz’s Answers

109 total


  • Formal probation under prop 36. As part of the terms of probation a residence can be searched, can the room of others be search?

    Our apartment has 2 bedrooms & 2 bathrooms and comon kitchen, dinning area and living room. Our son has his own bedroom & common bathroom. We have our own bedroom, bathroom and closet, Can our private area be subject to search?

    Brian’s Answer

    Under California Supreme Court precedent, a probation search condition allows the police to search all "those portions of the residence they reasonably believe the probationer has complete or joint control over." In my experience, most police officers, and many judges, will find it reasonable to believe that your son had joint control over your bedroom if it is possible for him to enter and hide things there.

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  • What are the penalties i can face for possible 2nd degree burglary/theft of a store. i.e. shoplifting

    i got caught stealing from a frys electronics, and the sum came to about $291.91, but they said they werent going to include the items i was ''told'' to take which was about maybe 100 worth? i think they did include it. anyways, i heard they were ...

    Brian’s Answer

    Unless you have a prior criminal record, it is unlikely that this will be charged as a felony by the district attorney, even if the police arrested you on a felony. As a first offense, I would expect that a DA would offer a plea deal in the range of 30 days, which could possibly be served as either jail or in the CalTrans program. Again, this assumes you have no record and that the case can easily be proved by the DA.

    Good luck.

    Brian Gurwitz

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  • N the goverment appeal the judges decision

    how many times can the goverment appeal the judges decision

    Brian’s Answer

    I agree with Ms. O'Connor answer. The prosecution's right to appeal a judge's decision is much more limited than a defendant's right to appeal a decision.

    The only thing I'd add is that an appeal of a misdemeanor case goes to the appellate division of the superior court, rather than to the court of appeal.

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  • Regarding petty theft/civil demand.

    I was questioned, arrested, questioned again, and released with the promise of an arraignment letter for taking what I presumed to be junk mail coupons from the trash at work and using them (<$100). The intended recipient found that I had used the...

    Brian’s Answer

    If the case is filed, you have a strong defense. Theft requires proof of intent to deprive the victim of property. As such, if you took it from the trash thinking the owner abandoned it, it would be virtually impossible to find you had the necessary intent.

    As for the restitution question, California Penal Code sections 1377 and 1378 allow the court to dismiss a misdemeanor criminal case (regardless of whether the DA agrees) based on the victim's representation that he or she has been compensated for any harm. These are called the "civil compromise" statutes. Note that you can handle all of this on your own, but no lawyer would advise it since you could easily say something that would result in your conviction despite the good defense I mentioned above.

    Good luck to you.

    Brian Gurwitz

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  • Looking up a case with just the penal code

    I want to go to a court house to look up a criminal case with just the penal code, is this possible?

    Brian’s Answer

    If you're looking for advice on how to find a published case that set precedent in California, feel free to email me and I'll let you know the easiest way.

    Best,

    Brian Gurwitz

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  • Jail time for first DUI?

    Got my first DUI. 18. No property damage or injuries. How much jail time do i face?

    Brian’s Answer

    WIth the caveat that I don't practice in your county, I can tell you what I know about how these cases are handled in Orange County. Assuming there is nothing out of the ordinary about your case (e.g., you have no prior criminal record and committed no other offense at the time of the DUI), the chance of you getting jail time in OC would be zero. In 15 years as a lawyer in this county, I've never seen it happen.

    I agree with those who suggest that you should still consult with an experienced attorney to determine whether you have a defense that might justify fighting it, or getting it reduced to a lesser charge. A .09 BAL is relatively low.

    Best of luck to you.

    Brian Gurwitz

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  • Can charges be filed against her

    We(wife kids and I) attended a get together at friend house to celebrate new Years Eve. There was a sixteen year old girl(friends sister) that was present also. She was drinking alcohol behind everyones back. Well the adults noticed when her speec...

    Brian’s Answer

    Yes, charges could be filed if the District Attorney decides to do so. The best short-time advice for the two of you is to refuse to discuss the case with anyone – including the girl, her family, or the police. If the police come to her and act like they want her side of the story and express doubt that the girl is telling the truth, don't be fooled. The police do this often in an effort to get the suspect to open up and trust the police. Also note that if the girl or one of her family members call your wife on the phone, there is a good chance that the call is being made (and recorded) at the request of the police, in hopes that she will say something incriminating. This is a very common technique used to prove these types of cases.

    Depending on your resources, your wife may wish to consult with an experienced attorney to guide you through the investigation and suggest certain steps to take in order to put her in the best position in the event charges are ever filed.

    Best of luck to you both.

    Brian Gurwitz

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  • Is it possible to reduce DUI charges to a wet reckless?

    I drove for 2 hours under the influence of alcohol until I decided to take off my tights. While taking off my tights, my car swerved which resulted in me getting pulled over, breathalysed, and charged with a DUI. I am 18 years old and I blew a .14...

    Brian’s Answer

    Poor driving isn't required to prove a DUI. Proof of it (and the lack of it) can be evidence that a person is or isn't intoxicated, but that's all. In other words, even if you were pulled over for an expired registration tag, and had been driving perfectly, the case could be proved based on: (1) the breath test, and (2) the officer's observation of you driving a vehicle.

    There may be some fact(s) that would give the prosecution a good reason to lower the charge to a wet reckless, but you haven't mentioned any in your question. This is particularly true with a driver your age, who breaks the law even with a blood-alcohol percentage of .01 percent.

    I can also tell you that different counties differ in their policies on dealing DUI cases down to wet recklesses. I am not familiar with the policies where you were driving (Alameda County?) but I can tell you a prosecutor in Orange County would be shot by his or her boss for offering a wet reckless for a .14, unless there was some very good reason that the case couldn't be proved.

    An experienced DUI lawyer can review your case in detail and tell you if any problems for the prosecution exist, and I encourage you to consult with one, but be very careful of any attorney who tries to get your business by telling you that a wet reckless is something that would be easy for to obtain.

    Best regards,

    Brian Gurwitz

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  • How much jail time will I need to serve if I take the deal?

    Third time DUI. Offer is 180 days. Public defenders have different answers.

    Brian’s Answer

    As of January 25, 2010, the vast majority of people sentenced to jail will only be required to serve 50% of their time. This is a big change from existing law, where the majority of people are required to serve 2/3's of a jail sentence.

    The new rule will not apply to people with a prior conviction for a serious or violent felony, and to those who are required to register as sex offenders. Assuming you fall into neither category, you should only be required to serve 90 days of your sentence (as opposed to 120 days under existing law) assuming you don't begin serving your sentence until January 25.

    I have written a much more detailed explanation about this new law on my Web site's blog. I've linked to it below.

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