Saturday, August 29, 2015
FIRST NONPROFIT LAW FIRM IN WA SERVING CLIENTS WITH MODERATE MEANS IN CIVIL LEGAL MATTERS
During my years as a criminal defense attorney, people often asked me about expungements. An expungement is the common term people use when there are talking about removing a criminal conviction from a person's record by filing a motion to vacate the conviction. Expungements can be expensive and the public defender will not do expungements because they are not criminal matters. Although the case that resulted in a conviction is a criminal matter, a motion to vacate is a civil matter. There can also be a motion made to seal the records if you don't qualify for an expungement. I just wanted to announce that Puget Sound Center For Law is the first nonprofit law firm in the State of Washington to handle civil matters for clients of moderate incomes between 125% and 600% of the federal poverty level. The civil matters the firm handles include expungements, landlord-tenant law, employment law and wills/trusts & probate. All of the fees are at substantially reduced rates, making civil legal services and the justice system within the reach of the average person with moderate income. The firm has already begun taking clients and the firm's website is at www.pscfl.org
Monday, March 12, 2012
HOW CAN I CLEAR MY CRIMINAL RECORD? (EXPUNGEMENT)
HOW CAN I CLEAR MY CRIMINAL RECORD? (EXPUNGEMENT)
As a criminal defense attorney in Seattle, Washington, I get just as many questions about what to do after a criminal conviction has been put on a person’s record as I do questions about defending a person before the conviction is entered. Many people find themselves facing trouble getting jobs, applying for loans, getting licenses, getting into schools and finding housing due their criminal record. If you are experiencing trouble due to a criminal conviction on your record in the State of Washington, there are ways to clear your record. If you meet certain eligibility criteria, you can clear your record by filing a motion to vacate the conviction. This process is commonly referred to as “expungement.”
If you expunge a criminal conviction in the State of Washington, the record will reflect that the conviction has been vacated. This means that the conviction no longer exists. If you are successful in getting the conviction vacated or “expunged,” you will not have to tell potential employers about the conviction on a job application.
When you have a criminal conviction expunged, the fact that the conviction is vacated will be reflected in the court records as well as the Washington State Patrol Records. You may be eligible for an expungement for both misdemeanor and felony convictions. Some convictions are not eligible. For example, violent felonies and crimes against a person are not eligible for expungement, but most other felonies are. When you get a criminal conviction expunged, not only do you clear your criminal record, but you can also have certain rights restored including your right to possess a firearm.
If circumstances are such that you are not eligilble for expungment, you may still be able to get the desired effect through another process known as “sealing” criminal records. I will discuss sealing records and expunging noncriminal information and arrest records in another post. If you are interested in finding out if you are eligible for an expungment of a criminal conviction and would like an attorney help you clear your criminal record, you can call Attorney John E. Gross at (206) 618-1629.
As a criminal defense attorney in Seattle, Washington, I get just as many questions about what to do after a criminal conviction has been put on a person’s record as I do questions about defending a person before the conviction is entered. Many people find themselves facing trouble getting jobs, applying for loans, getting licenses, getting into schools and finding housing due their criminal record. If you are experiencing trouble due to a criminal conviction on your record in the State of Washington, there are ways to clear your record. If you meet certain eligibility criteria, you can clear your record by filing a motion to vacate the conviction. This process is commonly referred to as “expungement.”
If you expunge a criminal conviction in the State of Washington, the record will reflect that the conviction has been vacated. This means that the conviction no longer exists. If you are successful in getting the conviction vacated or “expunged,” you will not have to tell potential employers about the conviction on a job application.
When you have a criminal conviction expunged, the fact that the conviction is vacated will be reflected in the court records as well as the Washington State Patrol Records. You may be eligible for an expungement for both misdemeanor and felony convictions. Some convictions are not eligible. For example, violent felonies and crimes against a person are not eligible for expungement, but most other felonies are. When you get a criminal conviction expunged, not only do you clear your criminal record, but you can also have certain rights restored including your right to possess a firearm.
If circumstances are such that you are not eligilble for expungment, you may still be able to get the desired effect through another process known as “sealing” criminal records. I will discuss sealing records and expunging noncriminal information and arrest records in another post. If you are interested in finding out if you are eligible for an expungment of a criminal conviction and would like an attorney help you clear your criminal record, you can call Attorney John E. Gross at (206) 618-1629.
Saturday, July 3, 2010
FOURTH OF JULY POST- IS IT LEGAL TO POSSESS OR USE FIREWORKS IF YOU HAVE LOST YOUR GUN RIGHTS?
With 4th of July celebrations just 1 day away, I thought I'd examine the issue of possessing fireworks unlawfully. This post does not address possession of illegal fireworks, but rather the unlawful possession of legal fireworks.
As you may be aware, when you are convicted of a felony or a misdemeanor domestic violence charge, you lose your right to possess firearms. If you have been convicted of a felony or a misdemeanor charge of domestic violence and you own or possess a firearm, you are guilty of the crime of Unlawful Possession of a Firearm. This crime is a felony in and of itself.
In Washington, RCW 9.41.010 (7) sets forth the statutory definition of “firearm” :
" 'Firearm' means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder."
It sounds like many fireworks that are commonly used to celebrate Independence Day would fit the definition of “firearm” under Washington State law. Does that mean you cannot possess or use fireworks if you have a felony or domestic violence conviction?
No. Here's why:
RCW 9.41.320 says:
"Nothing in this chapter [9.41] shall prohibit the possession, sale, or use of fireworks when possessed, sold, or used in compliance with chapter 70.77 RCW."
RCW 70.77 sets forth provisions for the public fireworks displays, selling, and manufacturing of fireworks, and the statutory definition of fireworks:
“Fireworks” means any composition or device designed to produce a visible or audible effect by combustion, deflagration, or detonation, and which meets the definition of articles pyrotechnic or consumer fireworks or display fireworks.
"Consumer fireworks" means any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the United States consumer product safety commission, as set forth in 16 C.F.R. Parts 1500 and 1507 and including some small devices designed to produce audible effects, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials and classified as fireworks UN0336 by the United States department of transportation at 49 C.F.R. Sec. 172.101 …..
So as long as you're in compliance with RCW 70.77, you can use consumer fireworks without being considered to be in possession of a firearm.
But what if you're NOT in compliance with RCW 70.77? What if you possess or use fireworks containing more than 50 mg of explosive materials and do not have the required license for display fireworks?
If that is the case, in theory, it looks like you COULD be found to be in possession of a firearm under RCW 9.41 if you use a device that meets the statutory definition of “firearm” because it is a device that fires a projectile using an explosive such as gunpowder.
But for most instances involving the average consumer using consumer fireworks on the Fourth of July, you cannot be found to be in possession of a firearm.
As you may be aware, when you are convicted of a felony or a misdemeanor domestic violence charge, you lose your right to possess firearms. If you have been convicted of a felony or a misdemeanor charge of domestic violence and you own or possess a firearm, you are guilty of the crime of Unlawful Possession of a Firearm. This crime is a felony in and of itself.
In Washington, RCW 9.41.010 (7) sets forth the statutory definition of “firearm” :
" 'Firearm' means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder."
It sounds like many fireworks that are commonly used to celebrate Independence Day would fit the definition of “firearm” under Washington State law. Does that mean you cannot possess or use fireworks if you have a felony or domestic violence conviction?
No. Here's why:
RCW 9.41.320 says:
"Nothing in this chapter [9.41] shall prohibit the possession, sale, or use of fireworks when possessed, sold, or used in compliance with chapter 70.77 RCW."
RCW 70.77 sets forth provisions for the public fireworks displays, selling, and manufacturing of fireworks, and the statutory definition of fireworks:
“Fireworks” means any composition or device designed to produce a visible or audible effect by combustion, deflagration, or detonation, and which meets the definition of articles pyrotechnic or consumer fireworks or display fireworks.
"Consumer fireworks" means any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the United States consumer product safety commission, as set forth in 16 C.F.R. Parts 1500 and 1507 and including some small devices designed to produce audible effects, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials and classified as fireworks UN0336 by the United States department of transportation at 49 C.F.R. Sec. 172.101 …..
So as long as you're in compliance with RCW 70.77, you can use consumer fireworks without being considered to be in possession of a firearm.
But what if you're NOT in compliance with RCW 70.77? What if you possess or use fireworks containing more than 50 mg of explosive materials and do not have the required license for display fireworks?
If that is the case, in theory, it looks like you COULD be found to be in possession of a firearm under RCW 9.41 if you use a device that meets the statutory definition of “firearm” because it is a device that fires a projectile using an explosive such as gunpowder.
But for most instances involving the average consumer using consumer fireworks on the Fourth of July, you cannot be found to be in possession of a firearm.
Friday, May 7, 2010
ARIZONA'S NEW LAW, RACIAL PROFILING & PRETEXT STOPS: IS THE NEW LAW UNCONSTITUTIONAL?
As you may well have heard, Arizona recently passed a new law that makes entering and/or remaining in the country illegally a crime. The law has been criticized for a variety of reasons, one of the main ones being that the law will lead to racial profiling and pretext stops. On April 30, 2010, new text was added to the Arizona statute, which says that the police can investigate the immigration status of a person only if the police have already made a lawful stop, detention, or arrest of that person. A stop, even a brief stop, is considered a seizure under the Fourth Amendment ban on unreasonable searches and seizure. The stop is lawful only if the police have reasonable suspicion.
Critics say that this will lead to racial profiling and pretext stops. Does that make the Arizona law unconstitutional? First, I'll explain what a pretext stop is. A pretext stop occurs when the officer observes a person violating some law or otherwise has reasonable suspicion that the person violated a certain law, and uses that violation (such as failing to signal a turn) as an excuse to make the stop, but the officer's real purpose of making the stop is to obtain evidence of some other crime for which the officer lacks probable cause or reasonable suspicion. Police may stop a member of a minority group for some minor violation in the hopes that the stop may result in the officer smelling the odor of marijuana or observing a bag of drugs in plain view in the vehicle once the stop is made.
Is this practice constitutional? In 1996, in the case of Whren v. U.S., the U.S. Supreme Court said YES. This practice is allowed under the U.S. Constitution as long as the officer had a lawful reason to stop the person who is detained. Under the Fourth Amendment, the police can stop a person if they have reasonable suspicion, which is supported by objective articulable facts that a law violation has been committed or is about to be committed.
That means the police can single certain people out who appear to be latino and follow them until they observe a traffic violation or stop someone who appears to be latino for jaywalking when they would not normally stop a person who appeared to be caucasian for the same violation. As long as they have reasonable suspicion that a person has violated the law, the police may stop a person. At that point, under the new Arizona law, they may ask for immigration papers. This is allowed under Whren v. U.S. The Supreme Court did say that racially motivated stops were invalid. In practice, however, it is nearly impossible to prove that a stop was racially motivated if the police had reasonable suspicion that the person stopped had violated the law.
I personally don't like the probable result of police using pretext stops to harass people who appear to be Mexican in the hopes that they just might stop someone who happens to be an illegal immigrant. As a criminal defense lawyer who practices in Seattle and other parts of Washington,I'd like to point out how some states, such as Washington, have outlawed this type of police practice.
In 1999, The Washington Supreme Court decided the case of State v. Ladson. In that case, the Court said that, while pretext stops may be allowed under the U.S. Constitution, the Washington State Constitution provides broader protection from unreasonable police stops than the U.S. Constitution and that pretext stops are not allowed under the Washington State Constitution.
Not every state has taken the same position as Washington and pretext stops are allowed in those states. I am not familiar with Arizona State law, but unless the Arizona Supreme Court holds that pretext stops are not allowed or legislation is passed that prohibits pretext stops, the new Arizona law is constitutional as far as the law of search and seizure goes.
There have been other constitutional attacks to Arizona's new law. Among these is the argument that immigration is reserved for the Federal government to regulate and that Arizona's law is unconstitutional because it encroaches on an area that has been set aside exclusively for the Federal government. Such arguments are beyond the scope of this blog post, which is limited to addressing the constitutionality of Arizona's new law with regard to the Fourth Amendment and the law of search and seizure.
Critics say that this will lead to racial profiling and pretext stops. Does that make the Arizona law unconstitutional? First, I'll explain what a pretext stop is. A pretext stop occurs when the officer observes a person violating some law or otherwise has reasonable suspicion that the person violated a certain law, and uses that violation (such as failing to signal a turn) as an excuse to make the stop, but the officer's real purpose of making the stop is to obtain evidence of some other crime for which the officer lacks probable cause or reasonable suspicion. Police may stop a member of a minority group for some minor violation in the hopes that the stop may result in the officer smelling the odor of marijuana or observing a bag of drugs in plain view in the vehicle once the stop is made.
Is this practice constitutional? In 1996, in the case of Whren v. U.S., the U.S. Supreme Court said YES. This practice is allowed under the U.S. Constitution as long as the officer had a lawful reason to stop the person who is detained. Under the Fourth Amendment, the police can stop a person if they have reasonable suspicion, which is supported by objective articulable facts that a law violation has been committed or is about to be committed.
That means the police can single certain people out who appear to be latino and follow them until they observe a traffic violation or stop someone who appears to be latino for jaywalking when they would not normally stop a person who appeared to be caucasian for the same violation. As long as they have reasonable suspicion that a person has violated the law, the police may stop a person. At that point, under the new Arizona law, they may ask for immigration papers. This is allowed under Whren v. U.S. The Supreme Court did say that racially motivated stops were invalid. In practice, however, it is nearly impossible to prove that a stop was racially motivated if the police had reasonable suspicion that the person stopped had violated the law.
I personally don't like the probable result of police using pretext stops to harass people who appear to be Mexican in the hopes that they just might stop someone who happens to be an illegal immigrant. As a criminal defense lawyer who practices in Seattle and other parts of Washington,I'd like to point out how some states, such as Washington, have outlawed this type of police practice.
In 1999, The Washington Supreme Court decided the case of State v. Ladson. In that case, the Court said that, while pretext stops may be allowed under the U.S. Constitution, the Washington State Constitution provides broader protection from unreasonable police stops than the U.S. Constitution and that pretext stops are not allowed under the Washington State Constitution.
Not every state has taken the same position as Washington and pretext stops are allowed in those states. I am not familiar with Arizona State law, but unless the Arizona Supreme Court holds that pretext stops are not allowed or legislation is passed that prohibits pretext stops, the new Arizona law is constitutional as far as the law of search and seizure goes.
There have been other constitutional attacks to Arizona's new law. Among these is the argument that immigration is reserved for the Federal government to regulate and that Arizona's law is unconstitutional because it encroaches on an area that has been set aside exclusively for the Federal government. Such arguments are beyond the scope of this blog post, which is limited to addressing the constitutionality of Arizona's new law with regard to the Fourth Amendment and the law of search and seizure.
Sunday, April 25, 2010
THE DIFFERENCE BETWEEN FOURTH DEGREE AND SECOND DEGREE ASSAULT CAN BE TRIAL STRATEGY
Division II of the Washington court of Appeals has just reversed the conviction of a man who was charged with 2nd degree assault. The decision is based on the fact that the defendant's lawyer did not ask for a jury instruction on the lesser included offense of 4th degree assault. In the case of State v. Breitung, the victims claim that Breitung approached the victims' vehicle, pointed a gun at them, and threatened to kill them. This constitutes 2nd degree assault because the defendant allegedly used a deadly weapon.
However, Breitung testified that he did not aim a gun at the victim's, but rather a microscope, which he put in his pocket once he got the victims to stop. Breitung testified that he later walked up to the vehicle and asked the victims to leave.
Breitung's lawyer argued that no assault occurred. Since the argument was that there was no assault, Breitung's lawyer did not ask for an instruction on the lesser included offense of assault 4. Second degree assault is an assault where the defendant intends to inflict great bodily harm, actually does inflict great bodily harm, or uses a deadly weapon. The assault in this case was the intentional act of putting the victims in reasonable apprehension of bodily harm or death. When there is no intent to inflict great bodily harm, no actual bodily harm or use of deadly weapon, then the assault wold be assault 4 rather than assault 2.
Breitung appealed his felony conviction of assault 2 on the grounds that it was ineffective assistance of counsel for his lawyer to not ask for a jury instruction on the lesser included offense of assault 4. The Washington Supreme Court found that, because Breitung himself testified that he pointed a microscope at the victims, there was evidence that he committed 4th degree assault and the defense should have asked for a jury instruction on that offense. Though the Court recognized that it was a trial strategy to not ask for the instruction because the defense was arguing that no assault whatsoever took place, it was too risky not to ask for the instruction on the lesser included offense because assault 4 is a misdemeanor and assault 2 is a violent felony with much more serious consequences.
To prove ineffective assistance of counsel, the defendant must show 1) that the defense lawyer was deficient and 2) that the defense was prejudiced by the deficiency. The second part usually means that there was a high probability that the case would have come out differently if it was not for the deficiency.
I agree with the dissenting opinion in this decision, that the defense lawyer should not have been required to ask for an instruction on assault 4. This is because it was likely that Breitung would be convicted of being in unlawful possession of a firearm, which Breitung admitted. Breitung was therefore already facing 9-12 month in prison on the firearm charge and the assault 2 conviction would not have made that much of a difference. Also, Breitung's testimony that he approached the victims with a microscope rather than a gun is, as the dissenting Judge said, “comedic.”
The trial lawyer was put in a tight spot in deciding between arguing an implausible version of the facts or taking a risk and arguing that no assault occurred whatsoever. As a Washington criminal defense lawyer, I do not believe that the trial lawyer's tactical decision not ask for a jury instruction on 4th degree assault amounted o ineffective assistance of counsel in this case.
However, Breitung testified that he did not aim a gun at the victim's, but rather a microscope, which he put in his pocket once he got the victims to stop. Breitung testified that he later walked up to the vehicle and asked the victims to leave.
Breitung's lawyer argued that no assault occurred. Since the argument was that there was no assault, Breitung's lawyer did not ask for an instruction on the lesser included offense of assault 4. Second degree assault is an assault where the defendant intends to inflict great bodily harm, actually does inflict great bodily harm, or uses a deadly weapon. The assault in this case was the intentional act of putting the victims in reasonable apprehension of bodily harm or death. When there is no intent to inflict great bodily harm, no actual bodily harm or use of deadly weapon, then the assault wold be assault 4 rather than assault 2.
Breitung appealed his felony conviction of assault 2 on the grounds that it was ineffective assistance of counsel for his lawyer to not ask for a jury instruction on the lesser included offense of assault 4. The Washington Supreme Court found that, because Breitung himself testified that he pointed a microscope at the victims, there was evidence that he committed 4th degree assault and the defense should have asked for a jury instruction on that offense. Though the Court recognized that it was a trial strategy to not ask for the instruction because the defense was arguing that no assault whatsoever took place, it was too risky not to ask for the instruction on the lesser included offense because assault 4 is a misdemeanor and assault 2 is a violent felony with much more serious consequences.
To prove ineffective assistance of counsel, the defendant must show 1) that the defense lawyer was deficient and 2) that the defense was prejudiced by the deficiency. The second part usually means that there was a high probability that the case would have come out differently if it was not for the deficiency.
I agree with the dissenting opinion in this decision, that the defense lawyer should not have been required to ask for an instruction on assault 4. This is because it was likely that Breitung would be convicted of being in unlawful possession of a firearm, which Breitung admitted. Breitung was therefore already facing 9-12 month in prison on the firearm charge and the assault 2 conviction would not have made that much of a difference. Also, Breitung's testimony that he approached the victims with a microscope rather than a gun is, as the dissenting Judge said, “comedic.”
The trial lawyer was put in a tight spot in deciding between arguing an implausible version of the facts or taking a risk and arguing that no assault occurred whatsoever. As a Washington criminal defense lawyer, I do not believe that the trial lawyer's tactical decision not ask for a jury instruction on 4th degree assault amounted o ineffective assistance of counsel in this case.
Tuesday, April 20, 2010
4/20 EDITITON: CAN YOU BE FIRED FOR USING MEDICAL MARIJUANA PRESCRIBED BY A DOCTOR?
With today being April 20th (4/20), I thought today would be just as good as any to write about the case that is going up to the Washington Supreme Court involving medical marijuana. The case is Roe v. Teletech Customer Care Management, LLC. What happened was Roe was hired by Teletech to work as a customer service consultant for the company. Roe had been prescribed medical marijuana by her physician in Bellevue, Washington to treat her migraine headaches and had documents authorizing her to use marijuana under Washington's medical Use of Marijuana Act (MUMA).
On October 3, 2006, TeleTech hired Roe. When Roe was told that she would have to submit to drug testing, Roe told TeleTech that she used medical marijuana at home and that she was allowed to do so by law. On October 5, 2006, Roe took a drug test and on October 10, 2006, she began working for TeleTech. Roe's drug test results also came back on October 10, 2006 and indicated that Roe tested positive for marijuana. On October 18, 2006, TeleTech fired Roe because of the positive drug test.
Roe sued Teletech for wrongful termination based on two different legal theories. The first theory was that under MUMA, it is implied that that employees who are authorized to use medical marijuana can sue employers who fire them for their use of medical marijuana. The trial court rejected this argument, finding no such legislative intent and that the average lay person who voted for the MUMA initiative would not have read an implied cause of action against employers into the plain language of the initiative.
The second legal theory was that Roe's termination was wrongful because it was against public policy to fire a person for legally using prescribed medication. The lower court rejected this argument as well and granted a motion for summary judgment in favor of Teletech. Roe appealed the trial court's decision to Division 2 of the Washington State Court of Appeals. The Court of appeals affirmed the trial court's decision.
In the Court of Appeals' decision, the court pointed out that to succeed on a wrongful termination claim, Roe would have to show (1) the existence of a clear public policy; (2) discouraging Roe's use of medical marijuana would jeopardize the public policy; (3) the public policy linked conduct was the reason Roe was fired; and (4) TeleTech cannot offer an overriding justification for Roe being fired.
The Court of Appeals found that Roe had not established that a clear public policy existed. The Court of Appeals stated that MUMA only protects patients and physicians from criminal prosecution, it does not provide them with a basis to bring a lawsuit against employers for wrongful termination. The ACLU of Washington had filed an amicus memorandum to the Washington Supreme Court, which has decided to review the case.
I predict that the Washington Supreme Court may very well reverse the lower court's decision. Although, it may be a long shot in showing that there is an implied cause of action in MUMA to sue employers, I do think that it is clearly against public policy to terminate employees for legally taking prescribed medication at home when it does not pose a threat to safety of other sin the workplace or negatively affect job performance.
On October 3, 2006, TeleTech hired Roe. When Roe was told that she would have to submit to drug testing, Roe told TeleTech that she used medical marijuana at home and that she was allowed to do so by law. On October 5, 2006, Roe took a drug test and on October 10, 2006, she began working for TeleTech. Roe's drug test results also came back on October 10, 2006 and indicated that Roe tested positive for marijuana. On October 18, 2006, TeleTech fired Roe because of the positive drug test.
Roe sued Teletech for wrongful termination based on two different legal theories. The first theory was that under MUMA, it is implied that that employees who are authorized to use medical marijuana can sue employers who fire them for their use of medical marijuana. The trial court rejected this argument, finding no such legislative intent and that the average lay person who voted for the MUMA initiative would not have read an implied cause of action against employers into the plain language of the initiative.
The second legal theory was that Roe's termination was wrongful because it was against public policy to fire a person for legally using prescribed medication. The lower court rejected this argument as well and granted a motion for summary judgment in favor of Teletech. Roe appealed the trial court's decision to Division 2 of the Washington State Court of Appeals. The Court of appeals affirmed the trial court's decision.
In the Court of Appeals' decision, the court pointed out that to succeed on a wrongful termination claim, Roe would have to show (1) the existence of a clear public policy; (2) discouraging Roe's use of medical marijuana would jeopardize the public policy; (3) the public policy linked conduct was the reason Roe was fired; and (4) TeleTech cannot offer an overriding justification for Roe being fired.
The Court of Appeals found that Roe had not established that a clear public policy existed. The Court of Appeals stated that MUMA only protects patients and physicians from criminal prosecution, it does not provide them with a basis to bring a lawsuit against employers for wrongful termination. The ACLU of Washington had filed an amicus memorandum to the Washington Supreme Court, which has decided to review the case.
I predict that the Washington Supreme Court may very well reverse the lower court's decision. Although, it may be a long shot in showing that there is an implied cause of action in MUMA to sue employers, I do think that it is clearly against public policy to terminate employees for legally taking prescribed medication at home when it does not pose a threat to safety of other sin the workplace or negatively affect job performance.
Sunday, March 21, 2010
WHAT IF YOU CHANGE YOUR MIND? CAN YOU WITHDRAW A PLEA OF GUILTY?
People ask me all the time about withdrawing their guilty plea because they are unhappy with the sentence they received. Can it be done? The answer is yes, but only under rare circumstances. When you enter a plea of guilty you are giving up several important constitutional rights. Among these rights is the right to a trial. By entering a plea of guilty, you are allowing the judge to find you guilty based solely off of the police reports or your written statement. Because you are giving up these significant rights, the court does everything it can to ensure that you are entering the plea knowingly and voluntarily.
When you enter a guilty plea, there is a colloquy that goes on the record in which the judge confirms that you know that you are giving up your constitutional right to a trial. The judge also confirms that you understand that the court may impose a sentence that exceeds the prosecutor's recommendation. The judge usually follows the recommendation that is on the plea agreement that you sign, but the judge is not obligated to follow that recommendation- the court may impose the maximum sentence allowed by law.
On the plea forms, you will also provide information concerning your age and level of education. This assists the court in determining whether you are making a knowing waiver of your rights. The court also confirms that you you were not threatened to enter the agreement and that you were not promised anything if you entered into the agreement. All of this is confirmed in the agreement you sign and it will also go on the record when you appear in front of the judge. If the plea agreement is not placed on the record in its entirety in court, you may have grounds to withdraw the plea.
A guilty plea may only be withdrawn if you can show that a manifest injustice will occur if you are not allowed to withdraw the plea. The burden is on the defendant to prove that a manifest injustice will occur. The factors that indicate that a manifest injustice will occur are: ineffective assistance of counsel, the defendant did not agree to the plea, the plea was not voluntary, and breach of the agreement by the prosecutor. If these factors are not present, then the defendant must prove that there are some other set of circumstances that would result in an obvious injustice.
Ineffective assistance of counsel usually means that the defense attorney did not do his or her job by failing to properly advise you AND your decision to plead guilty would have been different had you been properly advised. When you attempt to withdraw a guilty plea on the ground of ineffective assistance of counsel, you should have a different criminal defense lawyer represent you due to the conflict of interest.
Although you may be unhappy with your sentence because the judge gave you more jail time than the prosecutor had recommended, that is not grounds for withdrawing a guilty plea. You generally must show that you were not properly advised, that your plea was not voluntary, or that the prosecutor breached the agreement. A motion to withdraw a guilty plea must be made within 1 year of the judgment and sentence.
When you enter a guilty plea, there is a colloquy that goes on the record in which the judge confirms that you know that you are giving up your constitutional right to a trial. The judge also confirms that you understand that the court may impose a sentence that exceeds the prosecutor's recommendation. The judge usually follows the recommendation that is on the plea agreement that you sign, but the judge is not obligated to follow that recommendation- the court may impose the maximum sentence allowed by law.
On the plea forms, you will also provide information concerning your age and level of education. This assists the court in determining whether you are making a knowing waiver of your rights. The court also confirms that you you were not threatened to enter the agreement and that you were not promised anything if you entered into the agreement. All of this is confirmed in the agreement you sign and it will also go on the record when you appear in front of the judge. If the plea agreement is not placed on the record in its entirety in court, you may have grounds to withdraw the plea.
A guilty plea may only be withdrawn if you can show that a manifest injustice will occur if you are not allowed to withdraw the plea. The burden is on the defendant to prove that a manifest injustice will occur. The factors that indicate that a manifest injustice will occur are: ineffective assistance of counsel, the defendant did not agree to the plea, the plea was not voluntary, and breach of the agreement by the prosecutor. If these factors are not present, then the defendant must prove that there are some other set of circumstances that would result in an obvious injustice.
Ineffective assistance of counsel usually means that the defense attorney did not do his or her job by failing to properly advise you AND your decision to plead guilty would have been different had you been properly advised. When you attempt to withdraw a guilty plea on the ground of ineffective assistance of counsel, you should have a different criminal defense lawyer represent you due to the conflict of interest.
Although you may be unhappy with your sentence because the judge gave you more jail time than the prosecutor had recommended, that is not grounds for withdrawing a guilty plea. You generally must show that you were not properly advised, that your plea was not voluntary, or that the prosecutor breached the agreement. A motion to withdraw a guilty plea must be made within 1 year of the judgment and sentence.
Subscribe to:
Posts (Atom)
