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Brian Neal Gurwitz
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Brian Gurwitz’s Answers

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  • Can i have my charge's dropped if i was not read my miranda rights?

    i was charged with 11377 twice and 11364 and 11357 hs. i need help on beating this case i was not aware of my rights and i never had any other drug charges ever on my record one of these charges is a felony whats gonna happen to me? worried and my...

    Brian’s Answer

    A violation of Miranda may be a reason to keep your statements from being used against you. If your statement is necessary evidence, a ruling in your favor could lead to the DA dropping the charges.

    But note a few things that frequently come up with my clients who have similar questions:

    1) A Miranda violation never results in dismissal of the case – only suppression of a statement. While this may cause the prosecution to drop a case (or give a great offer) if it is important evidence to them, the violation does nothing for you if the prosecution doesn't need the statement to prove guilt.

    2) The Constitution does NOT require the police to give Miranda warnings simply because they have arrested someone. Instead, they are required to give the warnings before questioning a person under arrest. (Legally, the term is "custodial interrogation.") Thus, no Miranda warnings need to be given to an arrestee who isn't questioned, or to a person who isn't in custody at the time of questioning.

    Speak with a respected local defense attorney about your opportunity to enter a diversion, a Prop 36 drug treatment, or some other alternative that may be available in your county.

    Best,

    Brian Gurwitz

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  • How many actual days will I have to do or what % of time?

    I was sentenced to sixty (60) days in Imperial, CA county jail

    Brian’s Answer

    The law on jail credits changes on January 25, 2010. At that time, most inmates will only be required to serve 50% of their time. I explain this in detail on my Web site's blog. See link below.

    Best regards,

    Brian Gurwitz

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  • Would I still be able to become an attorney with a felony on my record?

    I was 17 when I was convicted of 2nd robbery 2nd degree commercial burglary and carrying a knife. Although I was a juvenile I was tried as an adult. I finished my probation without any violations and l'm currently a junior at UCI. I'm trying to at...

    Brian’s Answer

    There is absolutely the chance that you will be able to become a lawyer, so long as the State Bar concludes that you have been sufficiently rehabilitated and possess good moral character. You would be wise to consult an attorney with expertise in representing applicants before the State Bar court. The consultation may cost you a little money, but it could be invaluable for you to learn the steps you should take at this early stage of your decision to become a lawyer.

    Best of luck to you.

    Brian Gurwitz

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  • Can I reopen a 11 year old case

    I was arrested in a sting operation for trying to pick up a underage prosatude pc664/288(a). I took a plea bargain 11 years ago. I have found out that the police officer who arrested me has been accused of falsifying evidence and entrapment he has...

    Brian’s Answer

    I neglected to add in my prior answer the point of why I refer to the Mendez decision... Basically, the Court of Appeal told Mr. Mendez that he was screwed.

    Additionally, the officer involved was Officer Mack (not Raphael Perez), though both were involved in the Rampart scandal.

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  • Can I reopen a 11 year old case

    I was arrested in a sting operation for trying to pick up a underage prosatude pc664/288(a). I took a plea bargain 11 years ago. I have found out that the police officer who arrested me has been accused of falsifying evidence and entrapment he has...

    Brian’s Answer

    Given the age of your conviction, I assume that you are no longer on probation or parole. If so, I do not see any way for you to withdraw your plea, file a habeas corpus petition, etc.

    Your case is very similar to a published Court of Appeal decision I recently read that involved a defendant who pled guilty and later learned that the police officer who arrested him (LAPD Officer Raphael Perez) regularly committed perjury and stole cocaine from the evidence room. See the decision, Mendez v. Superior Court, at the link below.

    Best regards,

    Brian Gurwitz
    Orange County Criminal Defense

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  • Home Confinement laws- CA

    I'm asking this on behalf of my father. He was served a choice of 80 days in prison or 120 days of home confinement. Although bad timing due to work relocation. His company would like to relocate him to New York come December. Is there any way for...

    Brian’s Answer

    Yes, this is possible. An extension is more likely than allowing him to do it in New York. You should ask your dad's attorney whether a modification would be likely given the details of the crime and the policies/philosophy of the judge and prosecutor.

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  • Can I be charged with possession of an illegal substance?

    I rented a car under my name for a friend. They were placed as a second driver on my rental. Long story short, they got into a police chase with the cops, parked the car, and got away. I have no idea how to find this friend. But the police sea...

    Brian’s Answer

    If you didn't know about the drugs you might have an excellent defense, but you could still be charged with the offense. You need to speak with a defense attorney ASAP. Under *NO* circumstance should you speak with the police first, even if they call you saying they want "your side of the story." To the extent that Mr. Bailey's answer implied that you should remain silent only after you are charged, I would respectfully but strongly disagree.

    Good luck.

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  • Bi polar and sex offender

    I was convicted in a sting operation 10 years ago pc 664/288(a).I found out that I have bi polar 6 years later. Is there anything I can do i.e. re open the case or get a 1203.4. Will bi polar help me

    Brian’s Answer

    Getting relief from your conviction would be a very difficult challenge. If you are still on probation or parole, and your attorney failed to properly investigate and present a mental defense, you could possibly file a habeas corpus petition. If you aren't on probation/parole any longer, your case would be even more difficult to challenge. Either way, your question is extremely complex. You should seek a free consultation with a defense attorney who handles appeals and writs.

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  • Looking for a Criminal Defense Lawyer in Orange County CA that takes pro bono cases

    Are there any Defense Lawyers that do Pro Bono work here in Orange County, CA? Thank you

    Brian’s Answer

    I've been practicing criminal law in Orange County for about 15 years. Overall, the Public Defender's office does very good work in our county. As I recently wrote about on my blog (www.gurwitzlaw.com), the PD's office is a much better option generally than low-priced private defense attorneys. Because there is a PD's office to provide free legal work for people who can't afford it, it is highly unlikely that you will find an attorney to do criminal work pro bono, unless it is a friend or relative doing a favor.

    Good luck to you -

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  • Aproximately how much would it cost to expunge a felony with a strike in the state of california?

    how much would it cost including lawyer fees?

    Brian’s Answer

    Assuming you are eligible for "automatic" expungement, which depends on the nature of the prior conviction and whether you completed probation, you can hire a lawyer to handle it for a very low fee. The exact amount would depend on who you hire, etc., but I've seen and heard of many attorneys charging in the neighborhood of $800-$1,500 in addition to the amount of the filing fee ($120).

    The amount may be entirely worth it to you, to save you time, ensure you handle it correctly, advise you of what expungement does and does not accomplish, etc. But if the attorney's fee is too much for you, you should know that you can handle it on your own by filling out your own "CR-180" form (search for it online) and representing yourself. In many counties, you can do it on your own without having to appear in court.

    Good luck to you,

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