Monder Law Group - News

Proposition 34: The Death Penalty Remains in California

On November 6^th, California voters decided to keep the death penalty in place as a way to punish those convicted of the most egregious offenses. The death penalty question was placed on the ballot as Proposition 34. Proposition 34 was rejected by a margin of 52.8 percent to 47.2 percent.

What is surprising about this recent vote is that recent polling before the election took place showed that Californians were growing concerned over the cost of capital punishment. The Legislative Analyst said that ending the death penalty would save the state $130 million dollars annually. Despite this prediction, California voters decided to keep the death penalty in place.

California has executed 13 convicts. Its death row has grown to 726 inmates since 1978. No executions have taken place since 2006 because of federal and state lawsuits filed by death row inmates.

Proposition 34 would have repealed capital punishment in California. The death sentences of the 726 inmates on death row would have been converted to life sentences without the possibility of parole. If passed, Proposition 34 would have created a $100 million to fund the investigation of unsolved murder and rape cases.

Many influential people who opposed the measure made arguments against its passage. Law enforcement officials and three former governors argued that the inmates on death row would escape justice if Proposition 34 passed and that there were no true cost savings from closing death row.

Presently, Federal and state judges have halted executions in California since 2006 after ordering prison officials to develop new lethal injection procedures.

IF YOU HAVE QUESTIONS, CONTACT SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063

Monder Law Group - News

Amended Three Strikes Law

On November 6^th, 2012 the citizens of California voted in favor of changing the golden state’s Three Strikes Law. As it originally stood, California’s Three Strikes Law was enacted in order send a clear message to violators that repeating certain offenses will not be tolerated. Originally, anyone convicted of certain felonies that are considered serious or violent would receive a “strike” on their record. If a person already has two strikes on their record and is convicted of violating any other crime, whether violent, serious, or neither, he or she may be sentenced to 25 years-to-life in prison.

Examples of violent felonies area murder, manslaughter, arson that causes great bodily injury, and robbery of an inhabited dwelling. Examples of serious felonies are murder, involuntary manslaughter, assault with a deadly by an inmate, and arson.

Judges were given discretion to impose the 25 years-to-life sentence based on the facts of the case. A judge did not have to impose the long sentence.

Proposition 36 was put on the November 6th ballot in order to make it more difficult to impose the 25 years-to-life sentence. The proposition requires the third offense to be serious or violent in order for a judge to be able to impose the 25 years-to-life sentence.

There are many people sitting in prison now who were sentenced under the old “Three Strikes Law” before Proposition 36 was passed. As a result, many inmates are eligible for resentencing.

Supporters of Proposition 36 believe that it is a beneficial change to California’s Three Strikes law that helps to prevent the state from wasting resources. Supporters feel that the Three Strikes Law mandatory minimum sentencing is a waste because low-level drug offenders are sent to prison at a huge cost to taxpayers.

If you have questions about Amended Three Strikes Law in San Diego, contact San Diego Attorney Vik Monder at 619.405.0063

Monder Law Group - News

Child Immigrants In San Diego, CA

One of the most recent actions that President Obama has taken is instituting the Deferred Action plan for young adults who do not have lawful immigration status. The Deferred Action Program is an executive immigration policy. This means that President Obama and his administration created this policy which is in effect while Obama is in office. As a result, this policy can be changed by the next administration in office. But, exactly what is Deferred Action?

Deferred Action means that the government is giving a person who does not have lawful immigration status permission to remain in the United States for two years. At the end of the two years, the applicant may request a renewal of the deferred action. For many, this is absolutely a relief. However, this program is not meant to lead to permanent American citizenship.

Before an applicant is granted Deferred Action, there are several requirements that the applicant must meet. Some of the most notable of these requirements is that the applicant must have come to the United States before his or her sixteenth birthday and have continuously lived in the United States since June 15, 2007. The applicant must also be thirty years old or younger as of June 15, 2012. A successful applicant must be in school, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or be an honorably discharged veteran of the Coast Guard or U.S. armed forces.

The criminal records of all applicants weigh in as to whether the government will grant or deny Deferred Action. As for felony offenses, applicants who have them will not receive Deferred Action unless the applicant shows “exceptional circumstances.” Another criminal barrier to receiving Deferred Action is if the applicant has been convicted of a “significant misdemeanor.”

“Significant Misdemeanor” is a new term that has made its debut in immigration policy. The Department of Homeland Security (DHS) coined “significant misdemeanor” for the Deferred Action policy without legislation under its rule-making power. On August 3, 2012 DHS announced that a “significant misdemeanor” is defined as any federal, state, or local offense that is punishable by a maximum term of imprisonment of one year or less but greater than five days, a misdemeanor for which the individual was sentenced to jail of more than 90 days, or a conviction for domestic violence, sexual abuse or exploitation, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence. If an applicant has a “significant misdemeanor” conviction, the applicant may be able to qualify for deferred action if the applicant can show exceptional circumstances as in the case of felony convictions.

The criminal barrier to granting Deferred Action does not stop at “significant misdemeanors.” Although state immigration offenses, traffic offenses, juvenile delinquency, and expunged convictions do not lead to an automatic denial of Deferred Action, the government may still deny an applicant Deferred Action under a discretionary public safety and a totality of the circumstances analysis.

Wouldn’t potential applicants think twice before applying knowing that their criminal history will be exposed? In order to ease nerves and to encourage people to apply for Deferred Action, the government protects the information that an applicant provides as part of the Deferred Action request from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) for purposes of removal proceedings. However, if an applicant’s request for Deferred Action is denied, the information the applicant provided may be given to authorities if the applicant meets the criteria of USCIS’ November 2011 NTA Memo. The 2011 NTA Memo can be found here:

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf

Criminal convictions, arrests, prior immigration problems, and fraud in the Deferred Action application process could result in referral to removal proceedings. It’s important for any potential applicant who has concerns that their personal history could be provided to ICE or CBP to speak to an attorney that could shed some light on the situation and provide helpful advice.

For young adults who have made a life in America, there is now this avenue for them to receive permission to stay and to continue with their lives. Hopefully those who qualify will learn about this process and make the best decision for their situation.

If you have questions about Child Immigrants in San Diego, contact San Diego Attorney Vik Monder at 619.405.0063 or visit Child Immigrants Attorney

Monder Law Group - News

San Diego DUI Checkpoints

You are driving home from a Friday night out with your friends and then you find yourself in a line of cars all slowing down in front of police officers. The police officers are all leaning over to each and every driver, asking a question, and then the car moves on. You may be frustrated at the traffic jam that this has created or even feel a little anxious at the fact that you actually have to answer a question posed by a police officer.
Do not be alarmed! These stops were created for your very own safety! These stops are called sobriety checkpoints and they were created to reduce the number of drunk drivers on our highways.

When approaching a sobriety checkpoint, you should obey all signs and instructions that the police officers give you. If a police officer is under the impression that you are under the influence, the officer has the right to arrest you. Even if you are arrested, it would work in your favor to comply with the officer’s instructions.

There are certain standards that the police must follow when setting up and running a sobriety checkpoint. If you are at all under the belief that the police violated your rights or that the checkpoint did not follow the standards, you should consult an attorney. Many attorneys will research your case and possibly file a motion to suppress the evidence found against you at the checkpoint. Evidence not only includes tangible, physical objects such as beer cans, but also the police officer’s observations he made of you including but not limited to red eyes and an unsteady gait.

The good news is that you have the power to feel no fear when driving up to one of these checkpoints. If you are going to drink, designate a driver that will remain sober, call a cab, stay at your home or a hotel, or call a friend or a family member to pick you up.

IF YOU HAVE QUESTIONS, CONTACT SAN DIEGO DUI EXPERT ATTORNEY VIK MONDER AT 619.405.0063 OR VISIT DUI CHECKPOINT EXPERT

Monder Law Group - News

.08% BAC

The Immediate Suspension or Revocation

Someone arrested on suspicion of driving under the influence of alcohol, may experience California Administrative Law in addition to being charged with violating the Vehicle Code. In 1990, California implemented “Administrative Per Se (APS)” license suspension law. Under APS law, the Department of Motor Vehicles (DMV) is permitted to suspend or revoke the driving privilege of someone who is arrested on suspicion of driving under influence. In order for the DMV to be able to suspend or revoke someone’s driving privilege, the following requirements must be met: 1) the person who is losing their driving privilege must have been arrested; 2) the person arrested must be 21 years of age or older (a different law pertains to drivers under the age of 21); and 3) the person arrested must have a blood alcohol concentration (BAC) of .08% or more or the person must have refused a chemical test upon arrest. Upon arrest, the person’s driver’s license is immediately confiscated and an order of suspension or revocation is served.

Due Process

In order for APS law to comport with the constitutional requirements of due process, the DMV issues a 30-day temporary license that is meant to provide the driver with sufficient time to challenge the suspension through DMV administrative review. Upon review, if the driver is dismissed for insufficient evidence or is never charged with criminal violations, the driver may request an APS dismissal hearing to consider setting aside the associated APS action. However, DMV will impose different license suspensions depending on the person’s history.

The DMV will impose a 4-month license suspension if a driver submits to and “fails” a BAC test and has no prior DUI convictions or APS actions (within 7 years prior to September 20, 2005 and within 10 years thereafter).

The DMV will grant a 5-month restricted license that allows a person only to drive to and from an alcohol treatment program, and to, from and during the course of employment if the following requirements are met: 1) the person has already undergone 30 days of “hard” suspension; 2) the person has demonstrated proof of insurance; 3) the person has shown proof of enrollment in an approved alcohol treatment program; and 4) the person has paid all penalty fees.

The DMV will issue a 1-year suspension on drivers having 1 or more prior DUI convictions or APS actions within 7 years prior to September 20, 2005 and within 10 years thereafter, with no provision for a restricted license.

The DMV will also impose a different suspension depending on whether the person has refused a BAC test. For refusing a BAC test, a 1-year license suspension is imposed for a first offense, a 2-year revocation is imposed for a second refusal, and a 3-year revocation is imposed for a third-or-subsequent refusal (within 7 years prior to September 20, 2005 and within 10 years thereafter). There are no provisions for issuance of a restricted license following a BAC test refusal.

The Separation of Administrative Law and Criminal Law

Administrative Law is separate from Criminal Law. This means that APS applies whether or not someone is in fact charged with committing a crime. This plays out when someone is arrested on suspicion of driving under the influence of alcohol and is never criminally charged. In that scenario, the driver may request an APS dismissal hearing to consider setting aside the associated APS action. On the other hand, if the driver is criminally charged, the driver will need to communicate with the DMV to see about the length of the driving privilege suspension instead of with the courts.

IF YOU HAVE ANY QUESTIONS ABOUT A .08% BAC, CONTACT SAN DIEGO DUI ATTORNEY VIK MONDER AT 619.405.0063 OR VISIT .08% BAC ATTORNEY

Monder Law Group - News

San Diego Court Budget

Life is always full of hurdles and challenges that we must face. A current challenge for the county of San Diego is the historic budget cuts for the San Diego Superior Court. The San Diego Superior Court is experiencing $14 million in reduced funding as a result of state budget cuts. This extreme loss in receiving funds has forced the courthouse in Ramona to close down, the probate department in the Vista courthouse to shut down, and many other necessary but unprecedented changes have been made throughout county court system.

Presiding Judge Trentacosta recently said that “The cuts envisioned by our budget reduction plan will affect every judge, court employee and ultimately the litigants, court users and citizens of San Diego County.”

For lawyers, it will be a challenge to get certain matters on the court calendar as courtrooms are closing and it may not be as feasible for every matter to be heard in a courtroom. However, on a positive note, Judge Trentacosta has assured San Diego that criminal cases will continue to be prosecuted. Judge Frederic Link said that criminal courts will continue to take priority because defendants have a right to a speedy trial.
Civil cases are a different matter. Judge Link said that he expects civil lawsuits to take much, much longer than before. Many civil cases, no matter the type of case will be delayed. Attorneys will likely have to wait as patiently as they can until the court calls their case.

For the public, they will also have to wait for their cases to be heard. The public will also have to travel more than before to have their day in court.
Luckily, all of us in San Diego are on the same page when it comes to this challenge of the budget cuts. We all wish there was just more funding for the court system and that the San Diego courts did not have to make so many changes. Hopefully, San Diegans will find ways to keep moving forward and to ensure that everyone has their day in court despite the budget cut.

If you have any questions about the San Diego Court budget and how it will affect your case, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063