An Award-Winning Criminal Defense Law Firm In Your Corner

Santa Rosa - Sonoma County 707.571.8600 San Rafael - Marin County 415.492.4507
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Is A “Wet Reckless” Plea Bargain By The District Attorney Really A Good Deal?

It is a very stressful experience to be arrested, bailed and even jailed for a DUI in Northern California.

For many of our defendant clients, the idea of being offered a DUI plea bargain to a reduced charge like a ‘wet reckless is a god-send—But is it really? It might be a greatly preferable alternative to the stress and strain of full blown jury criminal jury trial for DUI, but what about its ultimate effect?

What exactly are you getting with a DUI Plea Bargain stemming from DUI related charges? How do you know that you are getting the best bargain or deal possible?

Many times a “wet reckless” is the first offer many assistant district attorneys will offer to a DUI defendant who is interested in negotiating a plea reduction. A wet reckless is basically a Vehicle Code 23103 VC misdemeanor reckless driving conviction–except with a notation on the record that alcohol and/or drugs were involved in the arrest that led to the conviction.

Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?

One major advantage of a “wet reckless” is it does not mean an automatic driver’s license suspension so many defendants would rather take a wet reckless deal or plea bargain over that of a Standard First, DUI.  But the clincher for many defendants is that a wet reckless avoids the stigma of a DUI. 

However, many criminal defense attorneys fail to tell their client defendants the whole story about a wet reckless plea bargain.

First, it is “priorable,” just like a DUI conviction. This means that if you are arrested for a DUI again at any time in a ten year period, you will be punished as a repeat offender and face more severe penalties, fines, and jail.

Second, insurance carriers treat wet reckless convictions very similarly to DUI convictions. This means you have a good chance of having your premium increased–or your policy cancelled–the next time your car insurance comes up for renewal. But even if you do we have several alternatives which will save you thousands of dollars over the next few years.

Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?

Our law firm works closely with two private companies that you can choose from who will place you into a pool of higher risk drivers with a rider of a fraction of the cost.  The rider ensures you the same good comprehensive and liability car insurance that you had before.  The only difference is that you will pay a lot less for it and eventually work yourself back to your old policy or an even better while you will be assisted by this company with your filing of the SR-22.

Our Firm, Fiumara & Milligan Law, PC is always looking for the best deal or plea bargain and a California “dry reckless” is even better than a “wet reckless.”

A dry reckless is just an ordinary reckless driving conviction, without a specification that alcohol or drugs were involved in the offense. A dry reckless unlike a “WET” will NOT increase your penalties for any subsequent DUI’s.  Further, your car insurance company is unlikely to take it as seriously as a wet reckless so your premiums will not be as adversely affected or increased.

The DUI plea bargain deal you are eventually able to get will depend on the facts of your case, the prosecutor’s evidence, the prosecutor’s personality–and upon the negotiation skill of your DUI defense attorney. 

The attorneys at Fiumara & Milligan Law, PC have over 40 years combined legal experience.  The Firm was established in 1992 and has been highly acclaimed and rated by independent sources including the National Trial Lawyers, the American Institute of DUI/ DWI Attorneys, YELP, AVVO among others.

Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?Is A "Wet Reckless" Plea Bargain By The District Attorney Really A Good Deal?

WE accept that our clients’ preferences play a vital role in what they will ultimately want to accept as a plea bargain if they are unwilling to take their case to a jury or bench trial. Accepting a plea bargain offer from the District Attorney makes more sense for our clients who do not want to deal with the risk or stress of taking their DUI case to trial. 

To get the best deal or  plea bargain, we still have to order all of the discovery including the body CAMS, collect all audio and video evidence and carefully evaluate and analyze all of the tests, calibration and maintenance records and equipment that produced the breath and or blood test results that formed the basis of your criminal charge(s).

At Fiumara & Milligan we do not rest upon our laurels, but continue to turn over every rock, nook and cranny to make sure that we have not missed one detail that would enable you to get the best wet reckless, or dry reckless plea bargain possible from the District Attorney if a trial is not in your best interest. 

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Call us anytime at our Santa Rosa location at: 707 571-8600 or our San Rafael location at: 415 492-4507.

“The Right Attorney makes all the Difference.”

For more info on DUI, please CLICK HERE

For DUI related PENAL CODES, please click HERE, HERE, HERE, and HERE


California Lawmakers Consider Eliminating Bail

Six out of ten people who are arrested and held on suspicion of committing a crime in California never end up facing criminal charges or being convicted of those crimes.

This is because those wrongly accused of crimes can spend months and even years in custody while their case works its way through the criminal justice system. Despite ultimately being exonerated, there is still a significant cost paid by many of these people who end up losing their jobs, homes and families.

Sonoma County jail alternatives

“Somebody is arrested, and because they don’t have a few bucks to get out of jail, they’re sitting in jail,” said Sen. Bob Hertzberg, D-Van Nuys, the lead author of Senate Bill 10. “That is not justice. That is not what this country is about.”

In an attempt to eliminate this inequity in our justice system, California lawmakers have introduced legislation that would drastically change the bail system in the state.

Senate and Mirror Assembly Bill

Senate Bill 10 and an identical bill introduced in the Assembly by Assemblyman Rob Bonta, D-Oakland — would toss county bail schedules in the trash. Instead, counties would conduct “pretrial assessments” in the hours after someone’s arrest to determine whether the defendant poses a safety threat or a flight risk. The county also would create a plan for low-risk defendants aimed at making sure they show up for their court dates after their release.

Under the Senate bill, a judge would determine whether to release a defendant in cases involving serious felonies, domestic violence or stalking or violations of a court order.

THE BOOKING & BAIL PROCESS AFTER A DUI ARREST IN THE NORTH BAY, SANTA ROSA, MARIN, NAPA, SOLANO, ALAMEDA, MENDOCINO and SAN FRANCISCO Counties…

Does Bail Punish Poor People?

The bail system allows defendants to pay a certain amount of money to the court as a guarantee that they will show up for their court hearings. In most cases, a person charged with a crime will seek the help of a bail bond company that will post the full amount of bail in exchange for a non-refundable fee (generally equal to 10% of the bail amount set by the court).

This means if bail is set at $50,000, the defendant can pay a bail bondsman $5,000 to be released from custody while the case is pending. If the charges are dropped or if the defendant is found not guilty at trial, the bondsman receives the $50,000 back from the court, but keeps the $5,000 the defendant paid him or her.

The current bail system punishes people who are not able to afford bail. That is why California lawmakers want to change how the courts calculate bail fees.

Sonoma County jail alternatives

Income-Based Bail Amounts

Currently, the average bail in California is $50,000, and bail fees are based on the crime allegedly committed rather than the defendant’s ability to pay. A new bill working its way through the California legislature would eliminate bail in some cases and change the way it is calculated in others.

Under this proposed law, in cases where the person’s criminal charge is one that is not serious or violent, home detention or monitoring devices could be used in place of monetary bail. In cases involving serious or violent crimes where bail fees would be required, the courts would be directed to use the defendant’s income as the basis for the amount of bail required.

Will the Bill Become Law?

The bill is not without its critics. The bail industry, victims’ rights groups and law enforcement agencies oppose the bill, saying that the proposed change will lead to more people failing to show up to court, and that it will cost counties more money to supervise individuals who are given a bail alternative, like electronic confinement.

In the meantime, FIUMARA & MILLIGAN LAW, PC has led the way fighting hard for all JAIL ALTERNATIVES until this LAW is REFORMED:

http://northbaylegaldefense.com/jail-alternatives

Contact the Defense Attorneys at Fiumara & Milligan Law, PC for Help with Your Case

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While the proposed changes to California’s bail system are encouraging, they are not yet law. Therefore, if you are arrested for a crime, you should contact an experienced and highly skilled criminal defense attorney immediately at our law firm.

WE are able to get you a reduction in your bail from 10% to 7% by the mere fact that we are reputable and Bail bondsmen trust us.

At Fiumara & Milligan Law, PC, our attorneys have over 40 years of combined experience successfully defending our clients facing criminal charges. We may be able to help you save thousands of dollars on bail bond fees. Or in the alternative get you the JAIL ALTERNATIVE that will be most suitable and cost effective for you.

With offices in Santa Rosa & San Rafael, there is an experienced and skilled criminal defense attorney available to help you no matter where you are located.

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Contact our offices today at 707-571-8600 OR 415-492-4507 for a free phone consultation. We will get through this together.

“The Right Criminal Defense Attorney Makes All the Difference”


Ten Hot Tips – The First Day of Court

It is very stressful to be charged with a crime. For many people, just the thought of going to court and having everyone judge you is a terribly frightening thought.

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However, the following ten hot tips should help ease your concerns. Having the knowledge of what happens on the first day will give you some power.

1.       The first day of court is called the arraignment. At that time, the prosecutor will have filed a Complaint, which is a formal document listing the charges against you.

Once your attorney receives it, he or she will say something like, “stipulate to due and proper arraignment, waive further reading of the complaint and advisements of rights, plead not guilty to all charges and deny any enhancements or priors.” This litany tells the judge that you accept that you are being charged with crimes and you will fight the allegations.

2.       You should always go inside the courtroom as soon as it opens, even if your attorney has not arrived yet. Often, attorneys have cases in other courtrooms on the same day and may arrive to your courtroom a little after it opens.

If you go inside right away and your name is called, walk to the front of the courtroom and wait for the judge to ask you questions. Inevitably, one of the first questions is, do you have your own attorney? At this time, you can advise the judge that you do and he or she is supposed to be there. The judge will understand and give your attorney some time to arrive.

3.       If you don’t have an attorney, but would like sometime to get one, you can always ask the judge for time to do so. To do this, wait for your name to be called, walk to the front of the courtroom, and when asked if you have your own attorney, respond that you do not, but would like some more time to look for one.

The judge will give you more time. Ask for a month. The judge will likely give you only one or two weeks, but there is no harm in asking for more time (this will allow you time to save the funds to hire a private attorney.)

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4.       When your name is called, make eye contact with the bailiff as you approach the front of the courtroom. This way, if there is a certain direction you are supposed to take to get to the front of the court room, the bailiff will show you.

For instance, in Sonoma County the bailiffs will not allow you to walk behind the prosecutor to get to the front so the bailiff will point out which way you are supposed to go, which will be to walk around the side of the bar (the wall between the public seating and the front of the courtroom) where the public defenders are. In all the other county’s I practice in, except Mendocino, they do not seem so concerned with the defendant’s proximity to the prosecutors.

5.       If you do not have enough money to hire your own attorney and are expecting to get a public defender, then wait for your name to be called. When the judge asks you whether you have your own attorney, tell the judge you do not.

The judge will then ask you some questions to determine whether you qualify for a public defender. Generally, you qualify if you make no more than $2,000 per month and own no property. If you qualify, then the judge will appoint the public defender attorney to handle your case.

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6.        It is important that you dress appropriately for court. This means no shorts, sandals, or tank tops. You don’t have to dress in a suite, but make sure you dress as nice as you can. Also, most courts these days will not allow many items in the courtroom that are considered a safety risk. For that reason, take the same precautions you might take if you are boarding a plane.

So no knives, pointy things, nail clippers, chains, and certainly no guns! You will have to go through security, so be prepared for being checked for any of these items. Unless illegal, the security guards will ask if you want to return to your car with any item that violates their rules or if you want them to discard the item.

The security guards will not hold on to an item for you. I once had a metal water bottle seized from me. I really liked that water bottle because it was a souvenir from a trip I took to Yosemite with my wife. It was very difficult to get it back. It’s not worth the hassle so leave anything you think might violate the court security rules at home.

7.       If you have your own attorney, he or she will do most of the talking. Some judges like to hear the “not guilty” from the defendant themselves. Other than that, you may be asked to answer some yes or no questions (like the questions they ask to determine whether you qualify for a public defender).

If you don’t know the answer, look to your attorney and he or she will be nodding or shaking their head to suggest the right answer.

If you don’t have your own attorney and don’t know the answer to a question being asked, by all means, tell the judge you don’t know the answer. It is far better to say that, then to guess or make up an answer. That will always get you in trouble in the courtroom.

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8.       One of the things that took me some time to get used to was the gruffness of the bailiffs. They will order you about, they will push you roughly out of the way, and if there is an emergency, you better stay out of the way or you may find yourself flat on your back after being run over as the bailiff addresses an emergency. Don’t take this personally.

They have a very difficult job to do. One of the things they are most concerned about is keeping order amongst the inmates who are brought into the court. Sometimes, they may consist of rival gang members with histories of violent crimes. They keep everybody safe and don’t have time to be nice about it.

So keep tuned to the bailiffs because they are the ones who ultimately control the courtroom. It’s not the judge so much. Even if the judge wants something done, he or she will ask the bailiff to do it.

9.       Unfortunately, sometimes the result of your first court date is that you are taken into custody. This can happen when you were given a ticket and released instead of arrested. This means that bail was not imposed on you.

If the prosecutor or the judge believes the crime you are charged with warrants bail being imposed, then the judge will impose bail, you’ll be taken into custody, and will have to pay the bail to get out.

If you are taken into custody, do not resist, even if you believe being taken into custody is wrong. There is only one exception allowing you to resist an officer carrying out the performance of their duties and that is when they are using excessive force, but in most cases, resisting an officer will only make things worse.

That being said, you still have the right to remain silent about your case. However, you do have to answer questions about your name, drivers license, residence, etc.

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10.   Congratulations! You’ve gotten to court and gotten through arraignment without being taken into custody, now what? The judge will set the next court date usually about a month to a month and a half off. That court date will either be a trial date or a interim date to allow you and the prosecutor to try and resolve your case.

Whether a trial date or a settlement conference date (called differently from jurisdiction to jurisdiction) is set depends on the facts being used against you, how much jail or prison you are exposed to, an many other factors.

Unless you are well versed in the practice of law, it is extremely important you get an attorney to help you decide what to do in your particular case.

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At Fiumara & Milligan Law, PC, we pride ourselves in providing the very best representation and legal advice.

We are experienced attorneys who know our way around the law. The right attorney makes all the difference, so make sure you call us. Know your rights!

Fiumara & Milligan Law, PC

182 Farmers Lane, Suite 100A

Santa Rosa, CA 95405

707-571-8600

Or call us at our Marin County Office:

4040 Civic Center Drive, Suite 200

San Rafael, CA 94903

415-492-4507


WHAT YOUR DUI ATTORNEY SHOULD DO FOR YOU!?

The Santa Rosa Police Department has been busying issuing DUI Warrants for YOUR Arrest! I can HELP!

Results of DUI Warrant Operation

WARNING: For Immediate Release from the Santa Rosa Police

HOW FIUMARA & MILLIGAN LAW, PC Can HELP!!

7 Suspects with Outstanding DUI Warrants were
Caught in a Santa Rosa Police Department Sweep

Santa Rosa, CA – Some think if they just don’t show up for a court hearing, the police won’t have the manpower to come find them. If your violation is a DUI, don’t count on it. On Friday March 3rd, 2017 Santa Rosa Police Department Officers with dozens of outstanding arrest warrants in hand, fanned out into neighborhoods in search of DUI offenders. Officers served warrants and arrested 7 offenders who either failed to show up for a court date or violated terms of their probation in an outstanding DUI case.

Those caught often face additional jail time for failing to appear in court or for violating probation (VOP). When family, friends, and co-workers find out, violators can also face personal embarrassment as they are led away in handcuffs. Further, missing work while sitting in jail increases the prospect of losing your job!

The Santa Rosa Police Department strongly believes that the Special DUI Warrant Service Operations along with regularly scheduled ‘High Visibility’ DUI enforcement has a deterrent effect on those who disregard driving safety and abuse alcohol and drugs. The Santa Rosa Police Department places a high priority on lowering deaths and injury with the goal of removing impaired drivers and heightening awareness of the dangers of driving under the influence of drugs and alcohol.

IF YOU NEED OUR HELP TO CLEAR YOUR DUI WARRANT AND TO ASSIST YOU WITH YOUR UNDERLYING DUI OR RELATED LEGAL MATTER, PLEASE CONTACT US AT:
(707) 571-8600 OR (415) 492-04507.

LOOK no further for HELP!
http://northbayduifirm.com/


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WHAT YOU SHOULD KNOW about your competency to stand trial!

  • A person is mentally incompetent under the law if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Penal Code section 1368.)
  • Incompetent to stand trial is different than “not guilty by reason of insanity.” Incompetence to stand trial relates to the defendant’s ability to communicate with his or her attorney or understand the criminal proceedings against him or her, while an insanity defense arises when the defendant, at the time the offense occurred, is not responsible for criminal conduct because at the time he or she lacked substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law as result of mental disease of defect. (Penal Code section 1026.)
  • One of the worst aspects of mental incompetency proceedings is that if the defendant is found incompetent and they are never “restored to competency”, then their case may be suspended indefinitely. If the defendant is charged with a felony, they may spend the rest of their lives in a state hospital, such as Napa State Hospital, without their case ever being resolved. Defense attorneys often refer to incompetency proceedings as a potential life imprisonment because of this.
  • If medications are recommended by the psychologist, the court must ask the defendant whether he or she is willing to take those medications. If the defendant is unwilling to do so, then the court will hold a hearing to determine whether the defendant should be forced to take the medications. If the court determines that medications are necessary, the court will order the defendant to submit to the administration of those medications. This means that a defendant can literally be strapped to a table and forced to take the medication.
  • If a person is mentally incompetent, then the judge must suspend the proceedings. This means that instead of litigating whether the defendant committed a crime, the issue then becomes whether the person is competent. The next steps are first, confirm mental incompetency, second, to order that the person receive mental health services to restore them to competency, and third, to have the defendant treated to restore them to competence.
  • The judge, the prosecutor, or the defendant’s own attorney can bring up the issue of mental incompetence.
  • The most common practice when the competency of the defendant is raised, is to suspend proceedings and have a psychologist examine the defendant. The psychologist then serves the judge, the prosecutor and the defendant with a report. If the report concludes the defendant is incompetent, then the judge will order another examination with the focus being on exactly what the defendant’s mental incompetency is, what medications may be helpful, and a recommendation about where the defendant should be house. For defendants charged with felonies, the law requires they be “housed” in a secure state hospital. For a defendant charged with only misdemeanors, the law allows them to be “housed” within community, meaning a local psychiatric facility.
  • One of the main goals of incompetency proceedings is the restore the defendant to competency. This is accomplished via therapy, education, and medication.
  • Another of the worse aspects of mental incompetency proceedings is that, if the defendant is charged with a felony and they are found incompetent, then they must wait to be transferred to available bed space at an authorized state hospital. To our knowledge there are only nine state hospitals for the whole state of California. This means that bed space is limited and even more li limited for female defendants. When a defendant must wait for bed space, they must wait in a jail cell in felony cases. Often these people’s mental condition deteriorates while waiting. This is one of the worst situations because the whole idea of these proceedings is to make the defendant better, but often results, at least at first, in them getting worse.
  • Another aspect of incompetency proceedings that, as mentioned, a defendant can become worse while waiting for bed space at a state hospital. Often, one of the few people who understands and can help are family members who are thoroughly familiar with the particular symptoms of the defendant’s mental health condition and how to communicate with them. Unfortunately, when a person gets worse as a result of incarceration while waiting for bed space, also referred to as “decompensating,” that person loses the ability to authorize family members to visit them. The very person that may be able to stabilize a person is thereafter prohibited from even visiting them. In my opinion, this is one of the worst things that can happens.

How a Criminal Defense Lawyer Can Help Me Win My Theft Charges Case

Defending yourself against accusations of THEFT is a nearly impossible burden without the help of a highly skilled and experienced theft attorney.

The theft lawyers at Fiumara & Milligan Law, PC understand what you are facing and feeling! You can make it through this–you just need a little help.  Below we go through just a few of the defense strategies that we have employed that have allowed many of our clients to win their cases.

How a Criminal Defense Lawyer Can Help Me Win My Theft Charges Case

Punishment for Theft Crimes in California

An experienced theft defense attorney can do a great deal for you in the stages before a trial. The reason is the penalties you face for theft charges depend a lot on the prosecutor or the DA handling the case. A criminal defense attorney can attempt to have the prosecutor DISMISS or REDUCE the charges.

For instance, if you face accusations of grand theft under California Penal Code section 487, you are accused of stealing items worth more than $950. Grand theft is a “wobbler” offense, meaning the prosecutor can charge you with a misdemeanor or a felony.

If you are convicted of a misdemeanor, you face up to one year in county jail and a $1,000 fine. A felony conviction can result in a sentence between 16 months and three years in jail and a $10,000 fine.

In many cases, we have been able to have our clients’ felony grand theft matters either DISMISSED or REDUCED to a misdemeanor with NO jail time having to be served.

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How is Theft Crimes Prosecuted in California?

If your case goes to trial, the prosecutor must prove beyond a reasonable doubt that you committed the crime. To do this, they have to prove all elements of the crime. If they cannot meet this burden of proof, then the charges against you will likely be dismissed or you will be acquitted.

Call a Northern California Theft Attorney at Fiumara & Milligan Law, PC

The bottom line is that when you have an experienced criminal defense law firm fighting for you in your corner you can relax and be assured of your continued freedom.

That is why you need to speak with an experienced and highly skilled theft attorney right away from Fiumara & Milligan Law, PC if you are accused of theft or any theft related crime.

At Fiumara & Milligan Law PC, our skilled attorneys have been successfully defending our clients accused of theft for almost 25 years.  We know the best legal defenses and strategies to help you obtain the best possible result in your case.

How a Criminal Defense Lawyer Can Help Me Win My Theft Charges Case

With offices located in Santa Rosa, Sonoma County and San Rafael in Marin County there is an experienced Fiumara & Milligan Law, PC criminal defense attorney available to help you no matter where you work or live.

Call us today at 707-571-8600 OR 415-492-4507 for a free phone consultation. We will be there when you call and will FIGHT for your freedom!

Please see our dedicated webpage relating to THEFT Crimes for more info- CLICK HERE  


Felony Preliminary Hearing

Ten Hot Tips on the Preliminary Hearing

If you are charged with a felony, then you have a right to a preliminary hearing. The following are ten hot tips to help you understand what that hearing is, but your attorney should be the first person you go to with any questions.

Remember, the right attorney makes all the difference because knowledge is POWER!

  • In all California felony cases, there are four important court dates. The first court date, which is called the arraignment, the second court date, which is the preliminary hearing, the third court date for filing of the Information, which sets forth the charges based on the evidence taken at the preliminary hearing, and then the fourth court date, which is the trial. Those are the four most important, but there are often many other appearances in between them.
  • What is the California Preliminary Hearing? Your right to one begins when the district attorney files a Complaint on or before your first court date. The Complaint list the charges the district attorney believes are supported by the police report. At the preliminary hearing, the district attorney must present enough evidence to convince the judge that there is probable cause to support those charges. This is a very low burden of proof. It is far easier than satisfying the burden of evidence imposed on the district attorney at trial, which is beyond a reasonable doubt; the very highest burden of proof in the law. In contrast, the burden of proof at the Preliminary Hearing is one of the lowest there is in law. Evidence will consist of the testimony of the alleged victim, if any, witnesses, and then any real evidence, such as toxicology results. Real evidence may also consist of showing the judge the actual knife used in a stabbing or the gun used in a shooting.
  • The judge may find enough evidence to support all the charges in the Complaint. The judge may also dismiss some of the charges for lack of sufficient evidence. The judge may also reduce any or all of your charges from felonies to misdemeanors. However, one of the risks at the Preliminary Hearing is that evidence of additional crimes may be presented. If that happens, then the district attorney can add additional charges to the Information, which is filed at the next court date. If your attorney is not asking very many questions at the Preliminary Hearing, there is a good chance the reason is that he or she is concerned about asking a question that will result in additional charges being made.
  • If additional charges are filed based on the evidence at the Preliminary Hearing, then there is a good chance that your bail will increase. If that happens, then you will be remanded into custody at the third court date and will not be released until you pay the additional bail. Harsh! However, if charges are dismissed or reduced to misdemeanors, then there is a good chance that your bail will be decreased. That sounds a lot better!
  • Despite the risk of additional charges, there are some great advantages to having a Preliminary Hearing. One of those is that it is an opportunity to make a record of the testimony. So if the alleged victim is testifying at the hearing, then every word that person says will be recorded. The same is true for every other witness who testifies. After the hearing, a transcript of the testimony will be provided to the defendant free of charge. Your attorney will review every word said by all the witness and keep their testimony in mind if you case goes to trial. If a witness says anything different at trial then they did at the Preliminary Hearing, it can be used against them to show they are not credible. We have won cases based on witnesses saying one thing at the Preliminary Hearing and something different at trial. This is why it is so difficult to successfully lie on the stand.
  • Another great advantage of the Preliminary Hearing is that the defendant can challenge the lawfulness of how any evidence was seized or any search was made. To do this though, your attorney must file notice with the court and serve that notice on the district attorney at least five court days before the hearing. For an illustration, assume the defendant was stopped while driving for no reason other than he just looked like a gangster and during the stop cocaine was found. It is illegal for an officer to stop anybody just because they look like a gangster. If your attorney proves at the Preliminary Hearing that the stop was illegal then all the evidence obtain by the officer as a result of the stop should be suppressed, meaning it cannot be used against you. That means that any charges being made as a result of the discovery of cocaine would be dismissed. That would be great! Just in case you were wondering, you do not get your cocaine back.
  • One of the many differences between a Preliminary Hearing and a trial is that hearsay is admissible if the person testifying is a peace officer. This means that if you are being charged with domestic violence, for example, then the officer who interviewed the alleged victim can testify as to what the alleged victim, or any other witness for that matter, told him. If that happens, then your accuser won’t event testify at the Preliminary Hearing. This is not the case at trial. At trial, hearsay is NOT admissible, which means that the alleged victim or witness would have to testify.
  • As mentioned, at the Preliminary Hearing, the judge may find all the charges in the Complaint are supported by the evidence or may find there are additional charges. If so, then the district attorney will prepare the Information based on the judge’s ruling. The district attorney may even add charges to the Information not even considered at the Preliminary Hearing if it is believed they are supported by the evidence. If your attorney disagrees with either the ruling by the judge or district attorney over what charges in the Information are supported by the evidence, then they can be challenged at a proceeding called a “995 Motion to Strike.” That motion is made after the third court date and is based solely on the record, also known as the transcript, of the Preliminary Hearing. At the 995 hearing the judge will either agree or disagree with your attorney and make a ruling accordingly.
  • Once you enter a “not guilty” plea, you have a right to a preliminary hearing within 10 court days and under any circumstance before 60 calendar days from the date you entered your plea of not guilty. This is called your right to a speedy Preliminary Hearing. To calculate court days, you count all the days from the date you entered your “not guilty” plea, except weekends and holidays. Calendar days include weekends and holidays. Often, you will want to defer entering pleas of “not guilty,” meaning you wait to say it until another court date, to give your attorney more time to review all the evidence, which may include toxicology results, viewing physical evidence, reviewing all police report, video evidence, and audio evidence. If your attorney is not given enough time to do this, then he or she may miss something crucial at the Preliminary Hearing. Sometimes, deferring entry of your “not guilty” plea is a difficult choice to make because your bail may be so high that you can’t get out of jail. Making the right choice about whether to assert your right to a speedy Preliminary Hearing is sometimes difficult, but with the right attorney, is should be a little easier.
  • You also have a right to waive your Preliminary Hearing. If you do this, then you go right to the third court date where the information is filed. One of the reasons to waive the Preliminary Hearing, and really the only reason, is if there is a good chance that evidence will be presented at the preliminary hearing that will result in additional charges (see Hot Tip #3, above.) If that is the case and your attorney determines that the risk and harm to you if charges are added outweighs the benefits to proceeding with the Preliminary Hearing, then it is better to waive it.

At Fiumara & Milligan Law, PC, we pride ourselves in providing the very best representation and legal advice. We are experienced attorneys who know our way around the law. The right attorney makes all the difference, so make sure you call us. Know your rights!

Fiumara & Milligan Law, PC

182 Farmers Lane, Suite 100A

Santa Rosa, CA 95405

707-571-8600

Or call us at our Marin County Office

4040 Civic Center Drive, Suite 200

San Rafael, CA 94903

415-492-4507


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WHAT YOUR DUI ATTORNEY SHOULD DO FOR YOU!?

 

  1. He/she should be willing and able to take your case to trial if the district attorney is unwilling to give you a fair deal. Ask the attorney you are about to hire if they will go to trial for you if they have no other choice?
  1. Ask your DUI attorney how many trials have they done in the last year or two?
  1. Ask the DUI attorney you are about to hire if they have ever worked for the public defender or the prosecution— the other side?
  1. Ask your DUI attorney how many years of experience do they have under their belt?
  1. Don’t get nickel and dimed—Ask your DUI attorney if their “low” price includes a motion to suppress and a subsequent Court hearing?

WHAT YOUR DUI ATTORNEY SHOULD DO FOR YOU!?

WHY HIRE FIUMARA & MILLIGAN LAW, PC?!

  1. Our fearless, highly skilled and compassionate attorneys are not afraid to go to trial! That’s because you get the best deals by going to trial. The District attorneys know which attorneys will collapse like a cheap lawn chair.  
  1. This past year alone, we have had three successful acquittals at jury trial.
  1. None of our attorneys have ever worked as a public defender or a prosecutor. Hence, we completely have your back and will always, without a conflict, fully defend your constitutional rights as an accused! 
  1. The well-respected and established law firm, of Fiumara & Milligan, has been achieving great results for all of its clients since 1992—We have over forty years of combined criminal defense experience in the courtroom. Our record speaks for itself!
  1. Our affordable rates include motion work and a suppression hearing if necessary to get you the best results! Our great video testimonials speak for themselves when it comes to client satisfaction. Go with a winner!

Ten Hot Tips on the Differences Between Felonies, Misdemeanors, and Infractions

If you are charged with a crime, your attorney should tell you what you are facing, what your defenses are, and answer your questions. One of the first things I review with my clients is the level of crime they are facing.

Ten Hot Tips on the Differences Between Felonies, Misdemeanors, and Infractions

The following are Ten Hot Tips regarding the difference between felonies and misdemeanors.

  • There are three levels of crimes in California. From the most serious to the least they are; (1) Felonies, (2) Misdemeanors, and (3) infractions.
  • Felonies are punishable by state prison (anywhere from 18 months to life in prison or the death sentence,) misdemeanors are punishable by up to one year in county jail, and infractions are only punishable by a fine.
  • There are four important court dates for felonies. They are (1) Arraignment, (2) Preliminary Hearing, (3) Arraignment on the Information, and (4) Trial.
  • There are three important court dates for misdemeanors. They are (1) Arraignment, (2) Settlement Conference, and (3) Trial.
  • There is usually no arraignment for infractions. Because infractions do not expose a person to jail time, one of the most famous constitutional rights we see in TV shows does not apply. You have no right to an attorney at a trial for an infraction. If you want to challenge your speeding ticket and show up without an attorney, be prepared to try your case!
  • For felony cases, when you say, “not guilty,” you automatically have a right to a preliminary hearing within 10 court days (no weekends or holidays included) and no longer than 60 calendar days unless you waive the right. One might wonder, what does 10 court days or 60 calendar days mean??? It means that you do have a right to a preliminary hearing within 10 court days, but stuff happens and things get continued. By that I mean the court can continue your preliminary hearing under certain circumstances beyond the 10 court day rule even if you object, but not beyond the 60 calendar day rule.
  • A good reason for the court to continue your case beyond the 10 court day rule is if you have a co-defendant who requests a continuance for good cause. Though we at Fiumara & Milligan Law support a right for a co-defendant to continue his or her case for good cause because our own client might at times make the same request, it is still difficult when you are ready to go with your preliminary hearing and it is continued because of a request of your co-defendant. We will do our very best to help you through this difficult time.
  • As mentioned, your right to a preliminary hearing within 10 court days and no more than 60 calendar days begins as soon as you say, “not guilty.” This is called entry of plea. However, it is often the case that your attorney will request you not say you are “not guilty,” to allow him or her to review all the evidence available before starting that clock running. This is called Deferred Entry of Plea. You want your attorney to have reviewed all the available evidence in a case before representing you at the preliminary hearing. Deferring Entry of your Plea allows your attorney to prepare under circumstances where they would not otherwise be able to do so.
  • Whether you Defer Entry of Plea or not depends largely on whether you are incarcerated or not. Some people can afford the bail bond themselves. Some people pay a bail bondsmen percentage of their bond, usually 10%, to get them out of jail. If you bond is $2,500, then you would pay the bond yourself or pay a bondsmen 10% (ask us about getting a discount on that rate), or $250, to get you out of jail. However, if your bond is $1,000,000, even paying 10% on that is unaffordable. For this reason, making the decision about whether to stay in jail and allow your attorney time to gather all the information available or whether to ford ahead can be a very difficult decision for you. You should feel somewhat better that we at Fiumara & Milligan Law, PC, make incarceration cases a priority.
  • In misdemeanor cases, you have no right to a preliminary hearing. What is a preliminary hearing? A preliminary hearing is a hearing during which the prosecutor or district attorney has to prove there is enough evidence to support the charges being made against you. In felony cases, it is an opportunity to get witnesses on records because during that hearing everything they say is recorded. However, in a misdemeanor case, though it would be nice to have such a record, you do not have that right. If you want to challenge the charges against you in a misdemeanor case, then you will have to go to trial.

CONTACT US IMMEDIATELY

First and foremost, we have the resources and experience to get the job done.

Second, we offer payment plans for our clients and work with them to ensure they get the BEST defense at an affordable rate. 

Third, our results speak for themselves and we have obtained numerous DISMISSALS, REDUCTIONS, & NOT GUILTY VERDICTS for our clients since 1992:

http://NorthBayLegalDefense.com/case-result/

Fifth, you can read about our excellent recommendations and reviews from satisfied clients and colleagues alike at AVVO https://www.avvo.com/attorneys/95405-ca-michael-fiumara-109708/endorsements.html who has given our Law Firm a superb rating!

Excellent YELP rating: https://www.yelp.com/biz/fiumara-and-milligan-law-pc-santa-rosa    

Excellent GOOGLE rating: https://www.google.com/search?safe=off&q=fiumara+and+milligan+law&lrd=0x808447fdc48e1f23:0x60bb0e925234761c,1,&cad=h

Finally, we have been nominated Top 100 Trial Lawyers, http://www.thenationaltriallawyers.org/profile-view/Michael/Fiumara/13477/

Ten Hot Tips on the Differences Between Felonies, Misdemeanors, and Infractions

We know what it takes to achieve satisfaction and success. 

If you would like to discuss your criminal charges with a highly skilled and very knowledgeable attorney from FIUMARA & MILLIGAN LAW, PC, or if you wish to learn more about how we can fight for you, please contact our law firm in Santa Rosa, CA in Sonoma County at: 707-571-8600 or our San Rafael, CA office centrally located in Marin County at: 415-492-4507.

“The Right Attorney makes all the Difference.”


New Laws of 2017

Cell Phone Use While Driving is Further Restricted – Vehicle Code section 23123.5

Cell phone use is now further restricted while driving. Up until January of 2017, the only restriction on cell phone use was that you could not use it while driving for either texting or calling without a hands-free device. You could use it to run applications such as mapping or information without restraint.

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Beginning January of 2017, you will now have to have the cellphone mounted on your car if you want to use the device for maps or information, just as a GPS device is mounted. Further, any use of the cellphone will be limited to a “single swipe or tap of the driver’s finger.” A violation of this law is punishable as an infraction and a fine of $20 for the first offense and $50 for any subsequent offense.

Lane Splitting (Motorcycles) is Legitimized – Vehicle Code section 21658.1

Up until now, lane splitting, the practice of a motorcycle driving between cars, was permitted in California, but unregulated. Now section 21658.1 legitimizes the maneuver. The law is what we call in the legal community, an enabling statute. In other words, the statute only provides that the CHP is authorized or enabled to issue regulations on lane splitting. It does not set forth what those regulations are.

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Regarding those regulations, we bet when the CHP issues them, they will set limits on, among other things, a motorcyclist’s speed, times of day (probably commute hours the same for the carpool lane), and distances between cars when lane splitting. It’ll be fun to see. Tell us if we are wrong!

California’s Minimum Wage Goes Up – Labor Code section 1182.12

Beginning 2017, the minimum wage will be increased from $10.00 per hour to $10.50 per hour. Interestingly, this same statute provides for the minimum wage to incrementally increase over the next six years until it reaches $15.00 per hour in the year 2023.

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This law applies to a business defined as having “employees.” That definition does not include people who are employed, for instance, under a collective bargaining agreement, an individual employed by an air carrier, or a state employee who is the recipient of a retirement allowance.

Large Capacity Magazine Regulation –  Multiple Penal Code Sections

Existing law prohibits the sale, gift, and loan of a large-capacity magazine, which is defined as any magazine capable of holding more than 10 rounds of ammunition. A violation of this prohibition is punishable as a misdemeanor with specified penalties or as a felony.

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Existing law does not punish the simple possession of a large capacity magazine. In other words, those who possessed a large capacity magazine at the time it became a crime to sell, gift, or loan it could continue to keep it. Now, it is an infraction to possess a large capacity magazine punishable by $100 for a first offense, $250 for a second offense, and $500 for a third or subsequent offense. The new laws also specifically require a person possessing a large capacity magazine to dispose of it as specified.

Officers Must Store Guns the Same as Civilians – Penal Code 25140 and 25452

Prior to 2017, an officer was not required to store handguns as required by civilians. However, because of several well publicized incidents involving the theft of officer’s handguns and subsequent use in crimes, officers are now required to store them just as civilians.

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That is, they shall, when leaving a handgun in an unattended vehicle, lock the handgun in the vehicle’s trunk, lock the handgun in a locked container and place the container out of plain view, or lock the handgun in a locked container that is permanently affixed to the vehicle’s interior and not in plain view. A violation of these statutes is punishable as an infraction and a fine of up to $1,000.

Clarification of Sexual Assault Crimes – Penal Code section 1203.065

Existing law prohibits a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of violating specified provisions of law, including rape by force, pandering, aggravated sexual assault of a child, and others.

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The clarification of section 1203.065 will prohibit a court from granting probation if a person is convicted of rape, sodomy, penetration with a foreign object, or oral copulation if the victim was either unconscious or incapable of giving consent due to intoxication. However, the court does have discretion to grant probation for these convictions, but must state on the record why probation would best serve the interests of justice.

The Term “Redskin” Prohibited for School Mascot Names – Education Code

Schools will no longer be able to name their mascots using the term, “Redskin.” However, if a school mascot was named using that term prior to 2017, it will still be able to use uniforms or other materials using that name after January 1, 2017, as long as the term is dropped from the school’s mascot’s name.

Powdered Alcohol is Banned – Business & Professions Code section 25623

Did you know there was such a thing as “powdered alcohol?” Yes, there is and it will be prohibited beginning January 1, 2017. A violation of section 25623 is punishable as an infraction with a fine of up to $500.

Alcohol at the Salon – Business and Professions Code section 23399.5

Existing law provides that a provider of hot air balloon rides or limousine rides does not need a liquor license to provide limited amounts of beer and wine. Now beauty salons and barber shops can serve liquor too without a license because, getting a haircut is a lot more fun when drinking! Yeah! There are some requirements for the salon or barber shop to serve that liquor; 1) their business license must be in good standing, 2) only 12 ounce beers and 6 ounce glasses of wine may be served, and 3) the business may not charge for the beer or wine.

Using and Prescribing Experimental End of Life Drugs – Health and Safety Code sections 443, et sec.

The End of Life Option Act (ELOA) authorizes an adult who meets certain qualifications, and who has been determined by his or her attending physician to be suffering from a terminal disease, as defined, to make a request for an experimental drug for the purpose of ending his or her life. ELOA establishes the procedures for making these requests.

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It also establishes the forms to request an aid-in-dying drug and, under specified circumstances, an interpreter declaration to be signed subject to penalty of perjury. That last part means a new crime now exists. ELOA requires specified information to be documented in the individual’s medical record, including, among other things, all oral and written requests for an aid-in-dying drug.

Gender Neutral Bathrooms – Health & Safety Code section 118600

Commencing March 1, 2017, section 118600 requires all single-user toilet facilities in any business establishment, place of public accommodation, or government agency to be identified as all-gender toilet facilities, as specified. The statute also authorizes inspectors, building officials, or other local officials responsible for code enforcement to inspect for compliance with the law during any inspection.

Concussion Protocol for Youth Sports Organizations – Health and Safety Code section 124235

Existing law requires a school that offers an athletic program to immediately remove an athlete from athletic activity for the remainder of the day if the athlete is suspected of sustaining a concussion or head injury, and prohibits the athlete from returning to the athletic activity until the athlete is evaluated by a doctor. Existing law also requires the school to provide concussion information to the athlete once a year.

This new law now applies these provisions to athletes participating in youth sports organizations, as defined now to include organizations, businesses, nonprofit entities, or local governmental agencies that sponsor or conduct amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate in any of 27 designated sports.

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Youth sports organizations will now be required to notify the parents or guardians of athletes 17 years of age or younger who have been removed from athletic activities due to suspected concussions, as specified.

The law now requires youth sports organizations to offer concussion and head injury education, or related educational and materials to each of their coaches and administrators on a yearly basis. Coaches and administrators will be required to successfully complete the concussion and head injury education.

Children Who Prostitute Are Victims Not Criminals – Penal Code section 647

Current law makes it a crime to engage in any act of prostitution. Beginning this next year, a person who is under 18 years old will be treated as a victim and not a criminal. This means that instead of being arrested and prosecuted, these children can be taken into protective custody and/or provided resources to help them.

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This law really makes sense because, if you are not old enough to consent to sex, then how can you be old enough to consent to prostitution. These children need help, not incarceration and vilification.


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Case Results

  • DUI- REDUCED
  • DOMESTIC VIOLENCE- REDUCED
  • POSSESSION OF METH- DISMISSED
  • FELONY ARSON- RESOLVED
  • RESISTING ARREST- RESOLVED
  • POSSESSION OF MARIJUANA- REDUCED
  • PROBATION VIOLATION- RESOLVED
  • POSSESSION OF COCAINE- REDUCED
  • CONCEALED WEAPON- DISMISSED
  • DRUNK IN PUBLIC- RESOLVED
  • JUVENILE DRUG/WEAPON- RESOLVED
  • FELONY RAPE- REDUCED
  • DUI- Hung Jury
  • SOLICITATION OF PROSTITUTE- DIVERSION
  • POLICE EVADING- REDUCED
  • DUI- REDUCED
  • DOMESTIC VIOLENCE- REDUCED
  • FURNISHING ALCOHOL/MINOR- RESOLVED
  • RESISTING ARREST- DISMISSED
  • ACCIDENT DUI- DISMISSED
  • CANNABIS CHARGES- REDUCED
  • DOMESTIC VIOLENCE- DISMISSED
  • DRUNK IN PUBLIC- DISMISSED
  • PUBLIC INTOXICATION- DISMISSED
  • JUVENILE CASE- DISMISSED
  • PROSTITUTION SOLICITATION- DISMISSED
  • ASSAULT & BATTERY- DISMISSED
  • ARSON- RESOLVED
  • PETTY THEFT- COMMUNITY SERVICE
  • POSSESSION OF NARCOTICS- DISMISSED
  • FELONY MARIJUANA- MISDEMEANOR
  • FELONY WEAPONS POSS.- REDUCED
  • Felony Assault - JURY ACQUITTAL
  • Domestic Violence - JURY ACQUITTAL
  • Felonies - REDUCED to 1 MISD.
  • Felonies - REDUCED to 1 MISD. NO JAIL
  • Sex Felonies - REDUCED/NO JAIL
  • Prostitution - DIVERSION/NO JAIL
  • 2nd Theft - DISMISSED
  • Drug Felonies - NO JAIL
  • Driving Misd - REDUCED TO INFRACTION
  • Resisting Arrest - DISMISSED
  • Juvenile Sex Felonies - DIVERSION
  • Multi-ED CODE Charges - REMAIN IN SCHOOL
  • 3 VOP'S - ALL DISMISSED
  • 1st Degree Burglary - REDUCED

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