Rizio and Nelson California Law Blog

A recent case

By now, you’ve all heard about the recent arrest of Seargent Michael Rodriguez, a former Deputy Sheriff. This most recent arrest involved suspicion of rape (a fourth charge) as well as two counts of firearms and ammunition possession. These charges are in addition to the charges he has already been arraigned on (3 prior rape counts) and come while he is under a restraining order.

Strong Criminal Defense

The original arraignment of Rodriquez resulted in his being released on his own recognizance and then in December, he was required to post $300,000 in bail before being released from the San Benito County Jail. The December arrest was in conjunction with charges that included 3 counts of rape (forcible), unlawful sexual penetration (2 counts), spousal rape, attempted rape and domestic violence.

Sadly, too often these cases are often not defended by an aggressive sexual defense attorney who understands the variety of sexual assault charges in California. An aggressive felony criminal defense attorney can prevent false accusations, unfair prosecution and a defense that works for you when you feel you’re being unfairly tried of a sexual assualt crime.

Feeling secure about your defense

At Rizio and Nelson we understand that if someone you love has been charged with felony rape that you want to make sure that the attorney you hire to defend them is someone you not only feel comfortable with but someone you trust to get the job done. Don’t hesitate to contact us seven days a week, 24 hours a day for legal help. We’re here to answer your questions regardless of how inconsequential you may feel they are. Don’t let a felony rape charge go undisputed in California!

Fair Representation

At Rizio and Nelson we understand that there are multiple sides to each story that we read or hear about in the news. Just because you’re case my be high profile doesn’t mean that we will shy away from providing you with the defense you need in a sexual assault case in California.

If you or someone you know is charged with a felony sexual assault crime in California, you can rest assured that Rizio & Nelson is here to help provide you with the defense you need. No more worrying about who to get to defend you, go to the best felony sexual assault attorney in Southern California.

Pornography

Pornography includes any material, textual or visual, that is solely intended to incite or excite sexual feelings of an “aberrational” nature. Pornography is exceptionally available on the Internet and if you are caught downloading and viewing child pornography, you will face a lifetime of registration as a sex offender if successfully convicted. If you forward a picture to someone over the Internet, you could face felony charges and, in some cases, federal charges as well.

Federal and state laws mandate that it is a criminal act to produce, possess, distribute, or sell pornographic images that depict or exploit minors. Sometimes the distribution is inadvertent, or included in a “peer to peer” type of source. You need a strong defense in any of these cases. If you’re facing charges of child pornography, you need an aggressive and knowledgeable criminal defense attorney who understands how these cases are investigated and tried.

Sexual Abuse

Sexual abuse charges are very serious, but are becoming an increasingly common criminal charge that carries not only a weighty social stigma but also requires the most knowledgeable and aggressive defense available.

As with any other sex crimes, the result of a conviction (even in cases where a defendant settles for a plea bargain) is lifetime registration as a sexual offender. In many sexual abuse cases, children are the accusers and you may have been reported by a teacher, a physician, or other caregivers who are required by law, morality, or ethics to make such reports. Even a casual or meaningless comment made by a child could be misinterpreted and result in severe criminal charges, even if the child adamantly denies that any wrongdoing took place.

If you or someone you know is facing potential sexual abuse charges, it is crucial that you find a defense team that has specific expertise and proven results in these types of cases.

Sexual Assault

A charge of sexual assault typically refers to a crime in which the offender subjects the victim to unwanted and/or offensive sexual contact. These crimes include sexual harassment, groping, assault, assault and battery, simple battery or attempted rape, and occasionally result in federal sexual abuse charges.

Harsh sentencing guidelines as well as the additional requirement to register as a sex offender requires that you fight any sexually based crimes, including a charge of sexual assault. Like other sex crimes, there is usually little or no physical evidence that links you to the crime and resulting charge(s), and the only witness to the crime is usually the “victim.” Sexual assault charges may be chosen when there is not enough evidence to include other crimes, and therefore careful pre-trial research may result in these charges being dropped, avoiding a trial altogether. If a trial is unavoidable, it is crucial that your legal team be experienced in the specific strategies that must be utilized when defending sexual assault charges.

If you are facing potential sexual assault charges, it is essential that you work with a defense team that has specific knowledge and proven results.

Sexual Harassment

One of the most complex areas of employment law are those that deal with sexual harassment. Jokes, photographs, touching, leering, and unwanted requests for a date have all been judged by courts to be sexual harassment in the workplace. Sexual harassment in the workplace can be between people of the same or opposite sex.

Recent court rulings have placed the burden on the employer to prove that they have taken all reasonable precautions to prevent and correct sexually harassing behavior and that the employee failed to prevent or correct the harassment by complaining to management.

If you are an employer who has adequately adopted and distributed to all supervisors and employees a policy that advises all of your staff that:

(a) absolutely no sexual harassment will be tolerated on your premises,
(b) lists specific examples of prohibited behavior,
(c) explains how to inform people in authority of behavior that they might consider sexual harassment and
(d) your pledge that you will investigate these charges promptly and fully;

You must ensure that all of your supervisors and employees are aware of your policy. Re-inform them annually to make certain. All supervisors and management need to be trained to identify and investigate sexual harassment (or hire an outside party to investigate charges). If you consistently and aggressively enforce this policy, you have lived up to the law and are blameless in this situation.

If you find yourself facing any sexual crimes charges that could potentially ruin your business and your life, call the law offices of Rizio & Nelson so that we can help you understand the laws that affect you and help you defend these charges. We are available 24 hours a day, 7 days a week to schedule your free, confidential consultation.

Child Abuse

Child Abuse is technically classified as cruelty inflicted on a child. This can include mental or physical abuse, neglect, or sexual exploitation. Teachers, doctors, and other caregivers are legally, ethically, and morally required to report any suspected cases of child abuse. We also know that testimony obtained from a child may have been coerced in a manner meant to assist the prosecutors’ case.

Child abuse carries harsh charges, and carries a weighty social stigma that can affect not only you, but also your family and job. Often, this stigma alone lowers the burden of proof in the minds of jurors. Due to the nature of these crimes, prosecutors are under tremendous public pressure to charge and convict someone as soon as possible.

If you are facing potential child abuse charges, you must use a legal defense team that has specific knowledge and expertise in crimes against children. Call us twenty four hours a day seven days a week for your free, confidential initial consultation.

Molestation

Molestation is legally defined as harassment by way of unwanted or indecent advances for the purposes of the abuser’s sexual gratification. Most serious and seen more frequently since the introduction of internet-available child pornography is child molestation, defined as sexual advances on a child under the age of 14.

A seemingly meaningless and casual comment made by a child to anyone required by law, ethics, or morality to report such incidents (such as teachers, doctors, nannies, and other similar caregivers) may result in serious criminal charges. This can happen even if the child and family deny any knowledge or incidence of problems.

Pre-trial research often results in such as these being dropped prior to a trial ever taking place when done correctly. However, if a trial does become unavoidable, we will discuss all of the potential strategies we can use for your defense. If you are facing molestation charges, you must obtain legal counsel as early as possible and utilize a defense team with specific knowledge and proven results in molestation cases. The law offices of Rizio & Nelson are here to assist you, and are available 24 hours a day, 7 days a week for your free, confidential consultation.

Child Enticement

“Child enticement” charges have a very broad definition but may be brought against someone who had no criminal intent. However, the prosecution has the burden to prove intent to harm the child. This charge can include attempting to entice, lure or persuade any child to enter, stay or leave any building, vehicle or place with the use of force or with intent to commit indecent assault, battery, or rape, disseminate material harmful to children, committing indecent exposure, unnatural or lascivious acts and similar charges, providing many chances for system abuse.

We know that any crime against children is very emotional, and can create not only personal pain, but social stigma as well. This can follow you for the rest of your life and can affect both your home life and employment future. Because prosecutors are under such public pressure to not only charge someone with these crimes but also to prosecute and get a conviction that many times they find ways to question the child(ren) in ways that are most advantageous to their case and therefore damaging to the defendant.

Anyone facing child enticement charges needs a legal defense team with knowledge and expertise with crimes against children. At Rizio & Nelson, our experienced legal team is available twenty four hours a day, seven days a week to help you understand your legal rights. Call us to prepare your defense and prevent this stigma from haunting you, your job, and your family.

Child Pornography

Most people are not aware that even getting an email that simulates an actual or staged sexual act by a person under 18 could result in charges under California Child Pornography laws. Additionally, state and federal laws make it a crime to produce, distribute or sell materials that abuse or even portray a minor child. Even though this material may not be considered legally obscene, and may not involve nudity, courts have deemed that material including films and images obtained, shared or distributed through the use of computer technology and the internet cannot include those under 18.

Internet pornography charges are frequently prosecuted at the Federal level and are much harder to defend because they require different strategies. If you are charged, it is vital that you understand whether the charges brought against you are being filed by the state, the federal government, or both. As with any other crime involving children, a weighty social stigma is also attached to child pornography.

Computer technology’s complexity can affect child pornography cases and must be considered when defending these crimes. It is also crucial when computers are involved that your defense team possess experience in cyber-crimes. If you are facing potential child pornography charges, you should use a legal defense team with targeted knowledge and expertise dealing with crimes against children and cyber-crimes (if necessary). The law offices of Rizio & Nelson are qualified to represent you in these matters, and are available 24 hours a day, 7 days a week.

Date Rape

More often than not charges of date rape lack material witnesses and/or physical evidence. Many cases of “date rape” are spouses of the defendant being charged. It is essential to your defense that we are able to conduct thorough pre-trial investigation work including criminal history, psychological profiles, potential motives, and that we are able to ask questions of character witnesses, as well as find information that might keep your case from going to trial.

Since rape charges can be extremely hard to prove, an aggressive and skilled defense coupled with early intervention is the most effective approach. After all, there is no law against date rape, per se, in California. The legal team at Rizio & Nelson is here to assist you with knowledge and experience in defending date rape and sexual assault charges. Contact us 7 days a week, 24 hours a day and consult with our attorneys to ensure that you get the best defense possible.

Spousal Rape

Spousal rape is defined as non-consensual sexual assault in which the perpetrator is the victim’s spouse. Spousal rape is also called marital rape and is often incorrectly associated with partner rape or intimate partner sexual assault (IPSA). Due to the popular and widely but wrongly held view that a man or woman surrenders the right to consent upon getting married, the law has been painfully slow to criminalize this form of sexual assault. It is now a crime in most states in the U.S., but exemptions still apply in some places, an example being the fact that in some places marital rape cannot be prosecuted if a couple was cohabitating at the time of the assault.

Rape charges can be very difficult to prove because charges often are made during a messy divorce proceeding or contentious child custody fight. Unfortunately there are many times when family law disseminates into criminal charges, and when this happens, aggressive and skilled criminal defense is necessary.

If you are facing Spousal Rape charges, it is absolutely imperative that you obtain legal counsel as early as possible and find a defense team with specific knowledge and proven results in rape cases. The law offices of Rizio & Nelson are here to assist you in this difficult time, 24 hours a day, 7 days a week. Contact us for your free confidential consultation.

Rape

Allegations of sexual misconduct carry extremely harsh penalties (social and actual) and are often punishable more severely than any other offense except murder convictions. Sexual misconduct is rarely witnessed by anyone except the victim and the accused, increasing the risk of an innocent person being wrongfully accused and convicted. Due to the delicate nature of this type of situation, especially the fact that there is often no other witness, the victim’s credibility becomes an extremely important issue.

In light of the serious nature of both felony sex laws and California laws’ ‘three strikes’ technicality, the most important thing you can do for your future is to take your sex crime defense as seriously as Rizio & Nelson will. Failure to present a proper defense could not only result in serious jail time, but could additionally result in your having to register as a sex offender for the rest of your life.

Defense against a rape charge should be handled by legal counsel with extensive experience in sex crimes defense, as is available with Rizio and Nelson. Call us at any time for your free and confidential initial consultation, 24 hours a day and seven days a week.

Statutory Rape

Statutory rape is rape of someone over the age of 14 but under the legal age of consent (17-18 years old in most areas of the United States). As with all sexual offenses that carry not only severe prison time but also lifetime registration as a sexual offender, statutory rape charges must be taken seriously and defended aggressively. Unlike most rape charges, statutory rape does not require the victim’s consent to file the charges, but may be filed by anyone on the victim’s behalf, usually by the parents or legal guardians of the victim. Even in spite of the alleged victims claim that the sex was consensual, prosecutors usually proceed with filing charges.

The fact that the alleged victim is a minor is only one of several factors that will complicate a statutory rape case. The person being charged may not be aware that the victim was under the age of 18 because the age may have been misrepresented by the alleged victim (or a third party). However, this does not prevent charges from being filed or a conviction from being received.

If you find yourself facing statutory rape charges, call the law offices of Rizio & Nelson so we can help you understand the laws that affect you and help you defend these charges. We are available to schedule your free and confidential initial consultation 24 hours a day and seven days a week, so do not wait any longer to begin your defense.

Placing the Burden in DMV Hearings

The DMV must bear the burden of proof in the Administrative Per Se (APS) hearing. This means that there is more evidence balanced in favor of driving under the influence of alcohol. State law has mandated that the burden rests with the DMV to justify its order of driver’s license suspension.

Legally Relevant Issues

There are only 3 legally relevant issues during an APS hearing. The DMV must prevail on all 3 issues in order for the suspension to be upheld. If the DMV meets the burden of proof in only 2 issues, they must set aside the license suspension. The issues include the following 3 points:

1. Did the officer have reasonable cause to believe that the suspect in violation of California Vehicle Code Sections 23152 or 23153?
2. Was the defendant legally arrested?
3. Was the defendant driving a vehicle with a BAC of .08% or higher?

Probable Cause

The DMV relies on the paperwork submitted by the original arresting police officers. The officer fills out pre-printed forms detailing the facts of the arrest. The facts generally include the date and time of arrest, probable cause for stopping/detaining the defendant, and the facts that support the officer’s finding of intoxication. If probable cause exists, the resulting arrest was justified.

There are four areas frequently cited to support a finding of intoxication and determine probable cause to justify the license suspension.

1. Driving pattern
2. Physical appearance
3. Performance on field sobriety tests (FSTs)
4. Results of chemical tests

Burden of Proof

The DMV shows at the APS hearing that the defendant drove with a BAC at or above .08%. Once the DMV does this, the burden then shifts to the defendant. If the bulk of the evidence supports the finding of intoxication, the DMV has met its burden of proof. The DMV may do this by showing that any defendant arrested for DUI:

* Takes a breath test which shows a BAC of 0.08% or higher OR 0.05% or higher if the defendant is under age 21, or
* Takes a blood or urine test and the officer believes that the driver is at or above the 0.08% BAC OR 0.05% if the defendant is under age 21, or
* Refuses to take or fails to complete a blood, breath, or urine test to determine his/her BAC.

Sentencing Alternatives: Alcohol/Drug Rehab

County jail incarceration offers no rehabilitative benefit to the DUI offender. Some defendants have addiction problems related to alcohol and/or drugs that are not addressed during their incarceration.

As a result of the alcohol abuse problem, there has been an enormous change in how addicts and alcoholics are viewed by our court systems. It is not effective to lock away addicts and alcoholics without treating the underlying issue of addiction. Judges and prosecutors search for alternative measures that allow substance abusers to stop using in order to lessen the risk of drug/alcohol recidivism. The alternative to incarceration is treatment in an established and state licensed drug and/or alcohol rehabilitation program.

There are many types of rehabilitation available for convicted offenders. The length of the treatment varies, but averages no less than 30 days. Three frequently used behavioral treatments for alcohol abuse include:

* Motivation enhancement therapy,
* cognitive-behavioral therapy, and
* 12-step facilitation therapy.

Alcohol and drug rehabs are utilized as a replacement for typical alcohol education programs. California Vehicle Code section 23598 states that in lieu of an alcohol or drug education program, the court may instead impose a live-in alcohol treatment term of probation. The court will impose that the DUI offender complete such a program only if the person consents and has been accepted into said program. The type of proof required is a certification, made under penalty of perjury, by the director of the program. The time spent in rehabilitation is tallied against the time that would otherwise have been spent incarcerated in a county jail. This process is defined as “good time custody credits.”

A strong California DUI Attorney should be contacted to advise you of all of your rights and options.

Law enforcement agencies utilize different field sobriety tests to determine probable cause to make a DUI arrest. The National Highway Traffic and Safety Administration (NHTSA) has conducted studies that determined that some tests are accurate indicators, to a certain degree, of a blood alcohol content (BAC) above .10%. Law enforcement agencies use non-scientific or non-standardized field sobriety tests to determine intoxication accurately. Non-standardized FST’s do not have scientific data supporting their use as a means of indicating alcohol impairment.

Alphabet Test

The alphabet test is not recognized as a standardized field sobriety test (FST).

Method

The subject is directed to stand upright with their hands at their sides and recite the alphabet aloud, either from A to Z or from one established arbitrary letter to another.

Clues

1. Subject starts too soon
2. Subject is unable to follow instructions
3. Subject skipped one or more letters
4. Subject stopped and restarted test (restarting from beginning)
5. Subject exhibited other objective clues of intoxication

Scoring

There is no scientifically-based scoring system to determine a passing or failing score because this test is non-standardized. Whether or not the subject fails is subjective to the officer administering the test.

The Finger Count

The Finger Count is a typical non-standardized field sobriety test (FST).

Method

The Finger Count is a test that requires the subject to hold either hand palm up and touch the thumb of one hand to the little finger of the same hand, then to each subsequent finger until the little finger is reached again. The subject is instructed to count as follows: “4, 3, 2, 1, 2, 3, 4.” The subject must repeat the procedure 3 times.

Clues

1. Subject begins too soon
2. Subject does not follow instructions
3. Subject does not count as instructed
4. Subject does not touch each finger as instructed
5. Subject stops or restarts test

Scoring

There is no scientifically-based scoring system to determine a passing or failing score because this test is non-standardized. Whether or not the subject fails is subjective to the officer administering the test.

Forced Blood Testing

Implied consent laws dictate that a chemical test be given to determine blood alcohol content (BAC) and level of intoxication when a person is lawfully arrested for a DUI. If a person refuses to submit to this, law enforcement may elect to take a “forced blood draw.” Law enforcement officers may physically grasp the suspect (or threaten to hold them) while medical personnel draw blood for the DUI prosecution.

The United States Supreme Court permits officers to take a suspect’s blood to determine intoxication, provided:

1. The taking of the sample is done in a medically approved manner,
2. Is part of a lawful arrest, and
3. Is based upon the belief that the suspect is intoxicated.

If these guidelines are strictly followed a forced blood draw does not violate the 4th Amendment right that dictates unreasonable search and seizure.

Courts have determined that it is unreasonable to mandate that a warrant is necessary to invade the person’s body with a needle to extract their blood due to the temporary stature of alcohol within the blood and the short time it takes for it to dissolve.

In California, a forced blood draw is classified as a “refusal” and may result in fines, jail time, and suspension of driving privileges, as it is used as an enhancement during court proceedings. A forced blood draw may result in both a conviction for DUI and additional penalties. There are instances where what is initially viewed as a refusal is a misunderstanding, including cases where language barriers, over-reactive police officers, or a fear of needles are present.

If formal protocols are not properly followed, DUI defendants may have a valid 4th Amendment right violation. The California DUI attorney may then attempt to suppress exclude evidence of the forced blood draw. Suppressed evidence may not be heard by the jury. Also, any evidence attained must also be suppressed.

In September of 2007 new regulations were put into place that expanded safety requirements for bicycle riders. It is now required that if a bike rider is operating a bike in the dark or on a highway that they are required to use a lamp and specific reflective devices. Any failure to do so is a violation. Bike riders must now have reflectors on their bike pedals as well as on their shoes or ankles to allow drivers of cars to more easily see them.

If you’ve been involved in an accident and were in compliance with the new laws but still suffered injuries because of a vehicles failure to yield or failure to see you the California Bicycle Accident Attorney, Rizio and Nelson can help!

Were you aware that in California that if you are involved in a domestic partnership that you must also file for dissolution, separation or annulment in order to legally end your relationship?

In order to determine if you must legally end your living arrangement you should first be familiar with the laws as they apply to you.

If you are an adult who is living with an adult and your relationship is registered as a domestic partnership with the Secretary of State of California (or recognized by civil union in other States) then you are considered to be a domestic partner provided:

• You have filed a notarized Declaration of Domestic Partnership with the Secretary of State
• You and your partner share a common residence
• You are not legally barred from another marriage (i.e. you’re not related by blood or already legally married)
• You are at least eighteen years old
• Both partners are of the same sex or both are over 62 and eligible for Social Security

If all of these conditions are met, you will need to follow the legal requirements to end a domestic partnership. To do this you’ll require the following forms:
A) A petition of Domestic Partnership (Form FL103)
B) A response for Domestic Partnership (Form FL123)
C) Same forms required for dissolution of marriage through divorce, legal separation or annulment.

There are some significant differences between divorces of domestic partners and married partners which are:

Domestic partners who have registered in California agree to the jurisdiction of California Courts to end their partnership (this applies whether they live in California, have never lived in California or lived in California but have since moved)

If one domestic partner (or otherwise recognized civil union partner) lives in California you can file to end the partnership in California

Domestic Partner support is probably not taxable to receiving partner nor is it likely to be deductible to paying partner

You should be in contact with Domestic Partner California divorce lawyers since the laws are still new and subject to change.

California law allows that either spouse may file for legal separation.  You need to be aware that a legal separation does not mean the dissolution of a marriage, but instead provides for a legal option for those who are not prepared to legally divorce.

While many of the procedures for legal separation are the same as they are for divorce there are some things that cannot be changed during a legal separation including:

* Neither party is able to remarry since there is no divorce
* Health Insurance benefits cannot be terminated

Legal separations are seldom trial cases as it is generally not in the best interest for the parties to spend large amounts of money on a trial. Some of the positions that will be addressed in a settlement conference include:

* custody of minor children
* visitation rights of either parent
* child and spousal support
* legal fees and costs
* division of assets and debts

There are very strict time rules and discovery rules that apply for a California Legal Separation and you will need an attorney on your side who understands all of the laws that apply to your individual case. At Rizio & Nelson we take pride in understanding all of the legal separation laws in the State of California and we’re fully prepared to help you through the legal separation process.

Approximately 1 1/2 million children each year go through the adoption process in the United States.  In California, adoption means that all rights and responsibility are transferred from the birth parents to the adoptive parents.

It’s critical if you are considering adoption that you’re properly represented by an attorney who understands the proper procedures to follow based on the laws of the State of California.  Foster parents, relatives or a non-related adult is eligible to adopt a foster child.  Many times, families opt to go through the formal process of step-children being adopted and this requires either the natural parent agreeing to the adoption or them being declared unfit as a parent by the court.

Adoptive parents assume the full responsibility for the care and well being of an adopted child and they must prove that they are fit to take on this role as the natural parent (or parents) no longer have any obligation (financial or otherwise) to the child.  They also agree to give up any rights to visit with the child unless it is clearly stated in the overall adoption agreement that is reached.

If you’re considering adopting a foster child, a step child or any other minor child it is important that you seek legal assistance so that you understand the rights and obligations you will have under the laws of the State of California.