When Can Police Seize Your Property?

Oct 4, 2016

What Happens if the Property is Seized?

When the police are called it is rarely a good situation. Typically, there is a dangerous situation, like a fire, or someone alleging a crime has occurred. Either way, when the police show up, people tend to be on edge, panicked, and stressed. If someone claims a crime took place, police immediately begin interviewing witnesses and start trying to identify a suspect.

Beyond arresting a suspect, which triggers the need for a skilled criminal defense attorney, police investigations include another aspect that few people realize. As most know, evidence at a scene is seized by police for further examination and processing, and what people may not know is this evidence can include someone’s private property, like a car or computer.

This process is called asset forfeiture and can be used to take permanently any property, without compensation, police believe was used to commit a crime or obtained through criminal activity. Most of this property belongs to suspected criminals, and there is rarely any recourse to this taking even if the person is never convicted.

California lawmakers passed a bill this year that will prohibit seizing private property worth less than $40,000 from suspects without a conviction. The goal of this law is to limit the impact of this practice on innocent, lower-income individuals who lack the resources to fight back. Most property is seized in relation to drug-related crimes, so a discussion of when the property may be seized in drug crimes and the procedure to contest forfeiture will follow below.

What is Califonia Seizures Laws?

California’s asset forfeiture laws are extremely complex, but essentially these laws act as civil penalties for criminal acts.

Because forfeitures are viewed as civil matters, a person attempting to reclaim his/her property is not entitled to an attorney, as in a criminal trial, if the individual cannot afford to pay a lawyer.

• In drug cases, many different types of property are subject to seizure by police, including:
• any illegally obtained, distributed, or manufactured drugs;
• equipment used to make, hold or transport the drugs;
• any money used to pay for the drugs; and
• real estate used or permitted to be used by the owner for the sale, distribution, manufacture, or storage of drugs. However, homes cannot be seized they are used for lawful purposes, such as family residences, or if one of the owners did not know of the drug activity.

Convictions are required for some, but not all, asset seizures under the state’s drug laws. Convictions are needed to take: boats, airplanes, and vehicles; money worth up to $25,000; and any real estate. Note that the property can be seized before conviction, and the government just needs a conviction for the owner to forfeit it. Thus, the owner could be legally deprived of his/her property for years before the criminal case ever comes to trial.

No conviction is required for cash seizures over $25,000. Instead, the government is only required to prove the cash was used a drug-related enterprise by “clear and convincing evidence”, and not the criminal standard of “beyond a reasonable doubt.”

How to Apply for Return of Seized Property?

Once the property is seized by police as part of a drug investigation, the owner must act quickly to avoid losing it forever. However, note that seized drugs are automatically forfeited, except legally obtained medical marijuana.

Beyond drugs, the government must go through a process called administrative asset forfeiture for personal property worth less than $25,000, and judicial forfeiture for property worth more than $25,000 and real estate. In administrative forfeiture, the government must notify property owners of the forfeiture proceedings and publish a notice in a newspaper circulated in the county where the property was seized or is located.

The owner has 30 days to file a claim, and if one is not filed, the property is automatically forfeited. In judicial forfeitures, the same notice requirements apply, and if a claim is filed, a civil trial takes place where the prosecutor must prove the property was used in or obtained through a criminal act, and the owner consented to such use.

Combating both criminal charges and property forfeiture can seem overwhelming, but an experienced criminal defense attorney can help you through these procedures.

Ask for Help

People are suspected and accused of crimes every day, and if you find yourself facing criminal charges, take away the government’s advantage by retaining a criminal defense attorney as soon as possible.

The Los Angeles law firm, Manshoory Law Group, APC, handles a broad range of criminal charges, including drug offenses, theft, and assault. Contact our firm for a free consultation.

When Can Police Collect a DNA Sample?

Sep 12, 2016

California DNA Collection Law

Most people who have run-ins with the law will say that the experience was unsettling at best and terrifying at worst. Being accused of a crime by a police officer, coupled with being handcuffed and placed in the back of a police car, is an embarrassing and often overwhelming situation. Retaining the services of a criminal defense attorney following an arrest is critical to protecting a person’s rights. There is, however, an additional aspect to many arrests that many people do not know.

Police do not have to wait for a conviction or even charges to be filed against a person, before collecting a DNA sample. In fact, they have the right to collect DNA from anyone arrested for a felony offense. This is an especially scary proposition given the recent passage of a proposed bill by the California Legislature that will allow rape victims to pursue charges against an alleged attacker up to 20 years after the incident.

It would also entirely remove a limit for prosecuting child molesters by eliminating the current cut-off that occurs when the victim reaches the age of 40 or ten years has passed since the date of the incident. It is extremely hard to contest charges from so long ago, which makes understanding how DNA samples can be used and how to expunge them once collected are very important to preserving a person’s rights.

Can Police Collect your DNA Sample?

As stated above, anyone arrested for a felony offense is subject to DNA collection by the police. The collection is typically taken via a mouth swab and occurs when the arrestee is booked as part of the identification process. Collected DNA samples are then submitted to the state crime lab for processing and entry into the state database.

Law enforcement agencies use this database to identify suspects by comparing an unidentified DNA sample collected from a piece of evidence with known DNA profiles in the database. Refusing to give a DNA sample is a misdemeanor offense punishable by a $500 fine and up to one year in the county jail. However, law enforcement is authorized to use reasonable force to collect samples if certain conditions are met.

These include:

• prior written consent of the supervising officer on duty;
• efforts to obtain voluntary consent; and
• a recording of the collection if the individual is taken from a prison cell.

Importantly, even if a person is acquitted or the charges dropped, the DNA profile remains in the database until that person requests an expungement.

What is a DNA Expungement?

Requests for expungement of a DNA profile from the state database and the destruction of the DNA specimen may be directly submitted to the California Department of Justice, DNA Database Program. California law states that a person is entitled to an expungement in the following situations:

• no charges were filed following an arrest for a felony offense;
• the felony charges were dismissed or the person was acquitted; and
• the underlying conviction that gave rise to the collection of the DNA sample was reversed and the charges dismissed.

Requests for expungement may also be made to the trial court in the county where the arrest occurred, and the court has discretion on whether to grant the request or not.

Note that denial of a request for expungement is non-appealable. Consequently, these requests should be made under the advice of a criminal defense attorney to ensure they have the best chance of succeeding.

Defending Against DNA Evidence

If you were arrested for a criminal offense, talking to a criminal defense attorney as soon as possible is the best way to preserve your rights and to start building a strong defense to the charges.

The Manshoory Law Group, APC represents clients throughout Los Angeles and will fight for justice in your case. Contact the office for a free consultation. Attorneys are available 24/7 to assist you.

California Concealed Carry Laws and Regulations

Aug 29, 2016

What are The Concealed Carry Laws in California?

There are few topics in contemporary America that elicit as much divisiveness as the debate over gun ownership and the right to carry concealed weapons in public. Owning firearms is a long-held tenet of this country, and is memorialized in the Second Amendment.

Carrying a gun without the proper permit and/or license is a crime under California law, and if arrested and charged, would require hiring a criminal defense attorney to defend the person’s rights.

Disagreement over whether private individuals should have the ability to own guns is often split along lines of where someone lives – urban or rural. Those that live in cities are more apt to oppose gun ownership because they see how guns contribute to the crime rate. Individuals from rural settings, on the other hand, view gun ownership as essential to self-defense. 

Gun rights advocates in California recently filed a lawsuit in federal court challenging the State law on concealed weapons because it effectively prevents most citizens from carrying a firearm in public.

This lawsuit is the product of an earlier effort that sought to block counties from requiring individuals to provide specific reasons to justify their request for a gun permit, but the Ninth Circuit upheld the counties’ right to impose this additional requirement earlier this summer.

Given how contentious this issue is, and how complex the laws on concealed gun permits are, an overview of the law in this area will follow below.

How to Get a Concealed Carry Permit in California?

Generally, carrying a firearm in California is illegal, regardless of whether it is loaded, unloaded, concealed, or carried in the open. The only way to legally carry a firearm outside of the home is to obtain a concealed weapons permit.

Permits are issued by county sheriff departments, and in L.A. County, applicants must prove the following to receive one:

• possess good moral character, which is verified by a criminal history check;
• have good cause, which is only established when the applicant can show by clear and convincing evidence that they or their family is under a present threat of danger to life or of suffering great bodily harm. Further, they must show there is no reasonable alternative to avoid the danger, and the danger would be substantially reduced by carrying a concealed firearm;
• be a resident of the county; and
• have completed a firearms training and safety course.

Permits are good for up to two years after issue, and applicants are informed within 90 days of submitting the application whether it is approved or denied. Sheriffs have almost complete discretion in deciding whether to issue a permit, so given the high burden authorities impose on applicants through the good cause requirement, it is highly unlikely anyone in L.A. County would be granted a permit.

What is the Penalty for Concealed Carry Without a Permit in California?

Anyone found in possession of a firearm by law enforcement could face charges for: carrying a concealed weapon on their person or in the vehicle, carrying a loaded gun in public, and/or openly carrying an unloaded weapon in public.

• Carrying a concealed weapon is generally a misdemeanor offense, absent aggravating factors like criminal history, and is punishable by up to one year in county jail or a $1,000 fine.
• Carrying an unloaded weapon in public is also a misdemeanor, and carries the same penalties.
• Carrying a loaded weapon in public can be charged as a misdemeanor or felony offense.
  • If a misdemeanor, the person faces informal probation, up to one year in county jail, and/or up-to a $1,000 fine.
  • Felony charges for this offense carry the potential penalties of 16 months or two to three years in county jail, and/or a $10,000 fine.

What to Do If You’ve Been Charged with a Gun Crime?

If you were arrested for an offense related to the unlawful possession of a firearm, it is critical to speak with an experienced criminal defense lawyer as soon as possible. There are many nuances to this area of the law, and many defenses to these charges that can help.

The Los Angeles Manshoory Law Group, APC will assess the facts of your case and advise you on your options. Contact the office for a free consultation.

Do I Have to Identify Myself to a Police Officer in California?

Jun 27, 2016

Dealing with the police is often viewed from the lens of two contrasting experiences – very pleasant or happy relief when a person needs their assistance, or scary and threatening when a person is the target of their suspicion. Being targeted by police for possible wrongdoing is an overwhelming situation and urges most people to seek a criminal defense attorney to protect their rights.

Conversely, walking down the street, or just being out in public generally, is usually considered a safe and innocuous activity that is unlikely to provoke interaction with police because it does not carry the inherent risk and consequential increased scrutiny given to someone driving a car or large groups gathering in a public place.

In fact, a person who is not driving or planning to enter a facility with security may not even carry identification. But, what if a person is stopped by the police for questioning? Are they required to carry identification or otherwise identify who they are to the police?

Is it legal to Walk Around Without Identification?

Unless a person is driving a car or entering a secure location, such as an airport or government building, California does not require someone to carry an ID. In practice, this means that if the police stop a driver for a misdemeanor traffic violation, this person can be arrested if they fail to produce a valid license.

Do You Have to Identify Yourself to a Police Officer?

As a preliminary matter, it is important to note that police always have the right to ask for identification or request you answer a few questions, but unlike many states, California does not have a law that requires a person to identify themselves to the police. Thus, a person does have the right to refuse to present identification or otherwise identify themselves if the police ask.

However, under the 4th Amendment, if the police have reasonable suspicion of criminal activity or probable cause to make an arrest, they can detain a person for a short period of time while they attempt to identify them. Additionally, police can perform a pat-down at the scene to ensure the person is not carrying weapons for officer safety.

The standard for what is “reasonable suspicion” or “probable cause” is very low, and even innocent behavior can be used to justify detention. The possible range of responses varies from taking a fingerprint at the point of the stop to arresting the person and holding them in jail. Without suspicion of criminal activity, police are not permitted to arrest for simply refusing to provide identification.

However, such arrests do happen and require a strong defense from a criminal defense attorney to ensure any charges brought against the person are dropped. By contrast, in many states, there are statutes that make it a crime for someone detained for suspicion of criminal activity to refuse to identify themselves. These states do differ on whether a verbal response is sufficient or if the presentation of a valid ID is necessary to satisfy this requirement.

Get Help

If the police arrest you on baseless claims, securing a criminal defense attorney as soon as possible is important to contesting allegations by the police. Evidence, such as the video from the officer’s body cam, is essential to your defense and needs to be secured right away to ensure it is not lost or deleted.

Attorneys at the Los Angeles-based Manshoory Law Group, APC represent clients accused of many different crimes and want to help you effectively assert your rights. Contact us for a free consultation.

What to Do When Falsely Accused of Domestic Violence

Jun 20, 2016

Any couple in a serious relationship will have disagreements at some point, and sometimes, emotions can get the better of people and lead to loud shouting matches. While these incidents are unfortunate, and probably not the best representative moments of a relationship, having an argument does not automatically translate into physical violence.

Being falsely accused of domestic violence is a very serious and damaging claim and requires a vigorous response by an experienced domestic violence attorney. People tend to assume these charges are true and treat the accused as if he/she was found guilty.

An assemblyman in California is facing this situation as three State Republican officials are pressuring him to resign and fold his campaign in the wake of domestic violence allegations from his wife. Assemblyman Roger Hernandez is in the middle of a divorce, and his wife is seeking a restraining order after claiming over 20 violent incidents during their three-year marriage.

Having this charge leveled against you can be very overwhelming, but understanding how the law views domestic violence and the restrictions imposed with restraining orders may make moving through the ordeal a little easier.

What are the Penalties for Domestic Violence in California?

When someone makes an allegation of domestic violence, California has several provisions in the penal code a prosecutor could use to bring charges. The first is the battery, which is the “willful and unlawful use of force or violence” against another person. The maximum penalty for this offense is a $2,000 fine and/or six months in the county jail.

If the prosecutor decides to elevate the charge to one involving violence against a spouse or partner, the possible penalties include fines up to $2,000 and one year in county jail.

Alternatively, if the sentence is for probation, there is an automatic condition that the defendant attends a one-year batterer’s treatment program. If the prosecutor chooses to charge a defendant with a battery that resulted in serious bodily harm, the sentence is a minimum of one year in jail.

Finally, there is an offense for corporal injury to a spouse or partner that is used when the allegations include claims of causing internal and external wounds that carries a sentence of one year in jail and/or a fine up to $6,000 if charged as a misdemeanor, or two to four years in state prison if charged as a felony.

How Do Restraining Orders Work?

Typically, when someone is accused of domestic abuse by a family member, there is also a corresponding petition filed asking for a restraining order. A restraining order essentially limits the ability of a person to interact with a specific individual and is granted if the petitioner can show there is a threat of or previous abuse.

Further, in the context of domestic violence, in order to be eligible to ask for this restraint, the individual filing the petition must be married, living together, divorced, separated, dating, share a child, or be related as an in-law through a current marriage to the person named in the petition. Abuse can cover a wide range of behaviors and includes written and spoken communications as well as physical altercations.

The primary actions a restraining order will address include:

• requiring the accused to move out of the shared home;
• imposing child and spousal support;
• setting out who gets possession of the certain property, such as the family home and car;
• prohibiting contact between the accused and accuser, and any family members that reside with the accuser; and
• blocking the accused from possessing guns or ammunition.

These orders are issued on a temporary basis within one business day of filing a petition and remain in effect until a hearing to determine if the order will continue.

The court can extend the order up to five years, and if the order is violated, the restrained person can be arrested and charged with additional crimes. No matter the details of the accusations against you our restraining order attorney can help protect your rights.

The Damage of False Accusations of Domestic Violence

Domestic violence is a physical act against a person with whom an individual has a special and often intimate relationship, such as a spouse or former spouse, a cohabitant, the other parent of an individual’s child, a fiancée or former fiancée, or anyone with whom the individual has or had a dating or engagement relationship.

The primary problem of false accusations, generally, and especially false accusations of domestic violence, has to do with perception. In other words, when one is initially accused of domestic violence, there is an initial perception by everyone involved that the accuser is speaking the truth. As a result, there can be a severe backlash against the accused.

While not everyone is as well-known as a professional athlete, the backlash can nevertheless be just as severe if against one who is not well-known. Friends, co-workers, and family will reflexively reduce communication and contact with the accused, making him/her feel overwhelmed and insulated, when, in reality, he/she is the victim.

How to Beat a False Domestic Violence Charge?

As stated above, if presented with a false allegation of domestic violence, do not try to go it alone. The feeling of insulation may lead to frustration, which may lead to other potential issues that could be more difficult to combat.

Rather, it is best to act proactively. Thus, if the relationship begins to sour, and one person believes the other may file a false claim of domestic violence, the first thing that should be done is to contact a criminal defense attorney experienced in domestic violence.

These attorneys will be able to help the person in this situation understand what options he/she may have at his/her disposal. Additionally, the attorney will help the potentially accused individual gather evidence in case the accusations, in fact, are made.

In addition to practical steps a person can take to defend against domestic violence accusations, one’s attorney has several avenues to fight this charge in court, including:

• proving the injury was the result of an accident;
• showing the accuser’s injuries were not caused by the defendant;
• establishing the defendant acted in self-defense or defense of others; or
• prove the accusations were false and motivated by issues such as anger, jealousy, or to gain the upper hand in other legal proceedings.

Further, depending on the circumstances, it may be prudent to plea to a lesser offense to avoid the serious consequences of a domestic violence conviction. One final option that may be available is to obtain a pretrial diversion, which requires the defendant to enter a batterers’ program.

Successful completion will result in a dismissal of charges, and effectively erases the criminal case for most purposes.

Protecting Yourself Against False Domestic Violence Accusations

Being accused of a crime is a serious situation that requires swift and forceful defense by a seasoned criminal defense attorney who knows how to protect your rights.

The Manshoory Law Group, APC, located in Los Angeles, works to bring the best possible results for their clients and can help you with your legal problems. Contact us for a free consultation.