Law Offices of Erik Steven Johnson

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Domestic ViolenceIf you are going through a divorce, being accused of domestic violence can negatively impact your case. Many people incorrectly believe that domestic violence charges are only addressed in criminal court and will have no bearing on a family law case. However, that is far from the truth. A mere allegation of domestic violence can affect the amount you may be required to pay in spousal and child support and can restrict your child custody and visitation rights.

Child Custody and Visitation (Parenting Time)

If there is a domestic violence charge against you while you are going through divorce proceedings, you could lose custody of your children. Whether you are being accused of abusing either your spouse or your children is irrelevant. Any alleged abuse committed against family members may result in the court finding that there is a rebuttable presumption that you are an unfit parent. In addition, because the court is committed to protecting the best interests of children, you may not be awarded custody if the court believes it would be against your children’s best interests.  

If you are not granted child custody, you may share parenting time with the other parent. However, if you are accused or convicted of family violence, then the visits with your child could be significantly limited in length and frequency. In addition, you may be required to have your visits supervised by a neutral third party. 

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What to do if you are pulled over for DUIBeing stopped on suspicion of driving under the influence can be a frightening experience, because the penalties for DUI in California are severe. However, if you are pulled over on suspicion of drunk driving, the last thing you should do is panic. Instead, you should remember your rights and take certain actions that can later help you in court if you are arrested.

After you are stopped by law enforcement on suspicion of driving under the influence, there are a few steps you should take to ensure that the DUI charges against you have a weak basis in court:

  1. Remember that you are not free to leave. While you are not in custody, you are considered detained when stopped by the police. Therefore, you are not free to leave even if you have not been arrested yet.
  2. Decline to answer questions. You are permitted to refuse to answer any incriminating questions. Keep in mind, however, that you must provide the police with your vehicle registration, driver’s license, and auto insurance.
  3. Refuse participation in field sobriety tests. You can refuse to participate in any field sobriety test. Field sobriety tests are physical tests that may require you to stand on one foot or walk in a straight line. These tests do not accurately determine whether the participant is intoxicated. In addition, if a suspected person is nervous or is confused by the officer’s questions, he or she may perform poorly on the test, which may result in the officer deeming the suspected person intoxicated.
  4. Do not refuse a chemical test. Although you may refuse to take a preliminary alcohol screening (PAS) test, you cannot refuse required chemical tests that determine your blood-alcohol content (BAC). If you do refuse to take a chemical test, you may be fined, imprisoned if convicted of driving under the influence of alcohol, and your driving privileges will be suspended for up to one year if it is your first offense. 
  5. You can choose which type of test to take. If you do agree to submit to a chemical test, you will be given the choice of either a breath or blood test. A breath test can be easily challenged in court; however, a breath sample cannot be retested, while a blood test can. You may be required to submit to a blood test if the police officer has reasonable cause to believe that you were driving under the influence of a drug or both a drug and alcohol.

Contact Our San Jose Criminal Defense Lawyer

If you are being charged with DUI, contact the San Jose DUI lawyers at the Law Offices of Erik Steven Johnson. There are many possible defenses to a drunk driving test refusal or DUI charge. An experienced attorney can challenge the chemical tests used to determine whether a driver is under the influence. To schedule a free consultation, call us at 408-246-3004.

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DUI

California has some of the most restrictive DUI laws in the country. If you are an out-of-state driver, it is important that you understand these laws and what will happen if you are arrested on suspicion of DUI.

California DUI laws are applied to both in and out-of-state drivers. If you are from a state that is party to the Interstate Driver's License Compact, you may face consequences back home.

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Tagged in: dui

DUI

After a long and harsh winter, people get ready for Spring break. Indeed. Spring break symbols the return of warm weather. This is the time where young people come together to plan fun events. Unfortunately, many of these young people end up getting arrested during Spring break. As a result, they are charged with criminal offenses and some end up in jail. Being arrested during Spring break is definitely a party “pooper.” This can ruin anyone’s Spring break plans.

What was meant to be a time of fun, freedom and leisure, could lead to jail time. The last thing you want to happen is to get arrested during Spring break. Instead, you want to rejoice with friends and have fun. The Bay Area is notorious for young people sometimes getting out of hand and getting arrested during Spring break. For every one thousand households, there are 70 crime incidents in the Bay area. In fact, the Bay area’s crime index is among the worst in the nation. Most of the crimes are attributed crime incidences such as theft.

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This past November, California voters approved Proposition 64 by a margin of about 56% to 44%. This makes California the fifth state to legalize recreational marijuana. So what does California's new marijuana law mean for you?

What's Legal

California was one of the first states to legalize marijuana for medical use. It's been legal since 1996 and is still legal today.

The new law means anyone 21 and over can transport, use, possess, and share up to an ounce of marijuana. In addition, each household can grow up to six plants.

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Drones are useful tools in the areas search and rescue, increased mapping and scientific research, not to mention personal recreation and photography. But we have to be careful and concerned about government use of drones that have the tempting invitation for abuse. Aerial drones are the new investigative devices being employed by police departments across the country and so far have minimal regulation and oversight. Drones are increasingly getting smaller, but equipped with more sophisticated and powerful technologies to capture video images and audio recordings in traditionally “private spaces,” where search warrants would or should be required.

Because the threat of abuse is dangerous to constitutional and privacy rights, government use of drones should be regulated and limited. Some reasonable regulations include: 1) police may only deploy a drone upon receipt of a warrant or in the case of an articulable emergency where obtaining warrant is not possible; 2) The City or State government should set forth the policies for the use of drones and those policies made public; 3) Images and information collected may only be retained if there is a criminal investigation.

The Law Office of Erik Steven Johnson defends clients against criminal charges from Palo Alto to San Jose and throughout surrounding California communities. When the government obtains evidence in contradiction of constitutional rights, the evidence will be excluded from trial. If you have been charged with a crime in California, contact us today online or by telephone at 408-246-3004 to schedule a consultation with an experienced criminal defense attorney.

Posted on in DUI

Many people enjoy ringing in the new year with a celebratory drink, but this can also lead to more arrests for driving under the influence over the holidays.

The LA Times reported that DUI arrests on New Year's Eve more than doubled from 2014 to 2015. Statewide, the California Highway Patrol made 1,072 arrests, up from 457 the previous year. While there were more officers on patrol than previous years, the huge increase was still surprising.

This year, California drivers may see even more officers on the road. The CHP recently announced the launch of a new Statewide Impaired Driving Enforcement program that runs from October 2016 through September 2017. CHP also participates in the national “Drive Sober or Get Pulled Over” enforcement initiative. This year, drivers can expect lots of officers on patrol on New Year's Eve looking for violators.

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Posted on in Drug Crimes

California law enforcement officials aggressively pursue drug crime arrests. If you have been arrested for committing a drug crime, it is important to have a skilled, aggressive criminal defense attorney on your side.

At the Law Offices of Erik Steven Johnson, we defend clients against a broad range of drug crimes. Erik Steven Johnson is a skilled trial advocate who is well-versed in successful drug crime defense strategies and can use them on your behalf.

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Protecting Your Freedom, Your Future And Your Family

California prosecutors aggressively pursue convictions in domestic violence cases. If you have been accused of domestic violence, the prosecution may still pursue charges. Even if the accuser tries to “take back” the allegation or refuse to press charges, the accused may still be pursued.

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In California, possession of a controlled substance, at one point, was a “wobbler” which means that the prosecutor had the discretion to charge it as either a felony or misdemeanor. Charing as a felony generally depended on the drug and other facts and circumstances surrounding the defendant’s arrest and prior criminal history. Since Proposition 47 passed, possession of a controlled substance is generally charged as a misdemeanor. Although a misdemeanor is not as serious as a felony, a conviction of a misdemeanor drug offense carries serious, long-lasting collateral consequences.

One of the most important aspects in defending a possession of a controlled substance charge is the actions the law enforcement officer who first came in contact with the defendant. It the job of a criminal defense attorney to review all discovery, look for mistakes, inaccuracies, inconsistencies, and even misconduct on the part of the law enforcement officers involved. It is not uncommon for the police to violate the law in regards to search and seizure.

Although there are police officers who follow the law, there are some who do not. A few of the more common violations that law enforcement officers make may include: entrapment, writing inaccurate police reports, misleading judges to obtain search warrants, and arresting people without probable cause. When criminal defense attorneys are able to identify police misconduct, it creates a huge problem for the prosecution and might lead to the suppression of evidence in the case. This could lead to a dismissal of the charges.

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Will I Lose My Child Because Of A Domestic Violence Charge?

An allegation of domestic violence creates a rebuttable presumption that the accused parent is “unfit” to have custody of his or her child and to have visitation rights. (See Family Code section 3011). Such allegations must be disputed early to preserve your parental rights.

A conviction for domestic violence may lead to loss of:

  • Physical and legal custody of your child
  • Loss of visitation or an order of supervised visitation
  • Stay-away orders
  • Requirements to pay the victim’s attorney’s fees and other costs
  • Mandatory parent counseling and therapy.

NOTE: An accusation of domestic violence may also be used as a factor to deny spousal support to the accused party in a divorce or separation proceeding. (Family Code Section 4325 and 4320(m)).
What happens in criminal court may have a direct impact on your divorce and child custody proceedings. Your criminal attorney needs to aware of all the potential consequences a conviction may in a family court proceeding to protect your rights as a parent.

Child support in San Jose is a family law issue that can greatly differ depending on the situation and circumstances of the parties involved. Support is a right enjoyed by the children involved in the family law proceedings. This means that once the court becomes involved it cannot be waived by the parents.

The court understands that child support orders have a significant impact on the finances of both households involved. Any time there change in circumstances of either parent involved, child support may be recalculated and a new order put in place. The calculation of child support in San Jose is based on the time each parent spends with the child or children and other guideline factors which are found in California’s Family Code. Even if the obligor parent is the unemployed or underemployed, the court may, in its discretion, impute an income. The court disfavors those that purposely avoid child support obligations.

If you are pursuing child support in San Jose or are already involved in a child support matter and are concerned that you are either paying too much or the other party is not paying enough, contact a family law attorney in San Jose. An experienced family law attorney can help you understand the process and may be able to assist you in putting together a compelling argument for why child support should be increased or decreased.

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As we approach Cinco de Mayo and Memorial Day we can expect a spike in DUI investigations and arrests. A major tool law enforcement uses is the sobriety checkpoint or “DUI roadblock.” As a general rule police may not stop a vehicle unless there is probable cause that the motorist committed a law violation. However, DUI checkpoints are an exception to this rule and can get the unwary driver rolled up into the criminal justice system.

My clients often ask me what their rights are when they get trapped into a sobriety checkpoint. You do have rights which you may and sometimes should exercise, but you should also use reason and good judgment to avoid further complicating an already uncomfortable situation.

First, do you have a right to avoid DUI checkpoints? Yes, in fact, you do and should have the ability to avoid a checkpointbefore you enter into it. Police are required to publicize the checkpoint in advance and must clearly advertise the roadblock with sufficient lights and signage warning approaching motorists that they may be stopped. However, once you enter the checkpoint, you have passed the point of no return and may not turn away.

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Posted on in DUI

Drivers in California often mistakenly believe that the law entitles them to decline or refuse to submit to a chemical test during a DUI investigation. While you may refuse to cooperate in the performance of pre-arrest field sobriety tests and even decline a pre-arrest breathalyzer, California law requires that you provide a blood or breath sample when arrested for suspicion of driving under the influence.

The law of implied consent states that every motorist who operates a vehicle in California tacitly agrees and consents to give a blood or breath sample when validly arrested for DUI. If you decline to submit to a blood draw or a chemical breath test you may be charged with a misdemeanor offense and lose your driving privileges for up to one year on a first offense.

However, the arresting police officer has to follow strict rules in the performance of any chemical test and his failure to do so could result in a violation of your rights. First, he must unequivocally inform you that: 1) you are under arrest for suspicion of DUI; 2) you must submit to a chemical test; 3) you may choose between a blood or breath test and 4) failing to submit to a test is a violation of the law and will result in a license suspension for one year or license revocation for two or three years.

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If you are charged with a crime, you should definitely consider hiring a lawyer. Misdemeanors are crimes that are punishable by less than a year in the county jail. Felonies are those crimes punishable by a year or more in the state penitentiary. When you are charged with either, a felony or misdemeanor, the consequences can be life changing. You likely have a lot of questions.

When you are arrested, charged with a crime, or tried for a crime, you are afforded certain rights. You definitely have the right to remain silent, and you should before talking to a criminal defense attorney. A criminal lawyer will review what you are being charged with and will discuss with you what the district attorney must prove beyond a reasonable doubt in order for a jury to find you guilty. In some circumstances a person may be guilty of a crime but not the crime that is being charged.

In addition to discussing the elements of the crime the DA must prove, a criminal defense attorney will discuss the potential punishments for the crime or crimes that you are charged with. The criminal defense attorney will review the facts and circumstances of your case and discuss any available defenses. Plea bargaining may also be discussed, wherein a reduction in the punishment is bargained for a guilty plea to a lesser offense or same offense with a reduction in the punishment that would be given if the defendant had been found guilty of the crime.

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Senate Bill No. 61 effectively extended DMV’s pilot Ignition Interlock Device program for Alameda, Los Angeles, Sacramento, and Tulare counties. The program was set to be repealed as of January 1, 2016. The bill extends the operation of the program to July 1, 2017. The pilot program extended by SB 61 “requires, as a condition of being issued a restricted driver’s license, being reissued a driver’s license, or having the privilege to operate a motor vehicle reinstated subsequent to a conviction for any violation of the above offenses, a person to install for a specified period of time an ignition interlock device on all vehicles he or she owns or operates.”

For the past few years there have been pilot programs for the ignition interlock device or IID, including Alameda county. These programs require the installation of an IID even upon a conviction for a first-time offense. Such a device must be installed on any vehicle that the defendant owns or drives and requires that he or she blow into the machine before starting the vehicle. The purpose of the device is to prohibit and discourage drunk driving, or in the case of the ignition interlock device, prohibit driving with any measurable amount of alcohol. Many counties require the installation of an IID on a third or even sometimes second offense, but it is mandatory for a first offense in the pilot counties. The DMV will require it for up to two years on a second and third offense.

However, earlier this year the Department of Motor Vehicles released a study where they concluded that there were no real changes in the volume of first, second and third time DUI violations post implementation of the pilot programs. In fact the DMV concluded that the DUI rates were nominally the same in those counties pre-implementation. Thus imposing an installation of an IID has little deterrent effect, which is the real purpose of the program and the device. So in other words, even where there is a dramatic increase in the use and installation of ignition interlock devices on first offenders, there is no associated reduction in the number of first and repeat offenses.

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A San Jose man is charged with robbery and assault with a deadly weapon after he ran the victim over with a vehicle. According to the Mercury News, the man stole the victim's purse and tried to make off in a car. The victim attempted to retrieve her property and reached into the passenger side window and was subsequently dragged for 300 feet. The defendant then allegedly backed up over the woman.

Felony robbery is a serious crime and strike offense. This defendant will be charged with robbery and assault with a deadly weapon. Other likely charges may include felony aggravated battery and attempted murder if the man intentionally ran over the woman with the car.

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Sexual battery charges have in fact been filed against Forty-Niner Ahmad Brooks. The Santa Clara County District Attorney filed misdemeanor charges against the football player, to which he has pleaded not guilty.

The sexual battery allegations stem from an incident at former Forty-Niner Ray McDonald's San Jose home in December of last year. Both men are alleged to have sexually abused a woman at the home while she was unconscious due to alcohol intoxication. McDonald has been indicted on felony rape charges and pleaded not guilty last Friday.

Brooks is facing misdemeanor charges of sexual battery. California Penal Code section 243.4 prohibits the offensive touching of the intimate part of another person for the purpose of sexual arousal, gratification or for the purpose of physical abuse. It is punishable up to one year in county jail and a lifetime requirement of sex offender registration.

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Assault & battery charges have been filed against three San Jose men that stem from an attack on September 14, 2015 at Levi Stadium . Prosecutors have filed felony assault in a case that they alleged caused great bodily injury to the victim.

The assault & battery claim is alleged to have taken place at a Monday Night Football game between the Forty-Niners and the Minnesota Vikings on September 14. The victims of the assault was a fan wearing a Vikings jersey and an 18-year old security guard. One of the victims lost consciousness after a blow to the head.

The suspects fled the scene but were later identified through videos posted on various social media sites and ticketing information provided by stadium officials. An underage female suspect was also arrested by police. The Mercury News reports that that the fight began with taunting and team rivalry type of bantering. The victim was then tackled and repeatedly hit in the head. A security guard unsuccessfully attempted to break up the assault and was injured in the process.

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Warrants were issued for three Santa Clara County Correctional officers related to the murder of an inmate. The officers were arrested on September 3, 2015 and according to the Mercury News the District Attorney is charging the men with murder.

Charging murder is an unprecedented move by prosecutors, and may be the first time in Santa Clara County. It is alleged that the victim was mentally ill and was assaulted by the officers during an inspection of the man's cell at the Main Jail. The victim was found naked, battered and lacerated, and later succumbed to internal bleeding.

Further reports indicate that the inmate was found heavily bruised and slashed and appears that the man was the victim of blunt force trauma at the hands of the San Jose correctional officers.

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