Practice Areas and Legal Definitions

Felony Crimes:
Felony Crimes involve drug and narcotics charges, arson, burglary, armed robbery, murder and/or attempted murder, rape and/or sexual assault, kidnapping and aggravated assault and battery. A felony conviction is a serious matter that can result in a substantial state prison sentence and the potential loss of certain privileges and Constitutional rights of U.S. citizenship, such as the right to possess a firearm or the right to vote.

Misdemeanors:
Misdemeanors are more serious than petty offenses, but much less serious than felonies. Misdemeanors typically result in imposition of such punishments as a fine or a jail sentence not exceeding a year. If a jail sentence is imposed, it is served at a local, city or county jail rather than a state or federal prison (penitentiary). In many jurisdictions and in certain types of cases defendants who can't afford an attorney are not entitled to a court-appointed attorney in a misdemeanor case. Unlike felonies, misdemeanors are usually handled by special courts with abbreviated procedures, such as a city court or municipal court.

Domestic Violence:
Domestic violence is any physical, emotional, sexual or other violence that takes place between people who may be married or not married; heterosexual, gay, or lesbian; living together, separated or dating. Domestic violence can be criminal and include physical assault: hitting, pushing and shoving, etc., sexual abuse: unwanted or forced sexual activity, and stalking. Domestic violence charges can have a serious impact on your life.

Serious Violent Crimes and Murder:
By definition, a violent crime is a behavior by persons, against persons or property that intentionally threatens, attempts or actually inflicts physical harm. The seriousness of the injuries to the victim(s), whether or not guns or other weapons were used and/or whether or not the alleged perpetrator has a criminal record will determine the seriousness of the charge. Most violent crimes are considered felonies and are subject to be considered a "strike" in a state that has adopted three strikes laws. Violent criminal charges can include: aggravated assault, arson, assault and battery, domestic violence, hate crimes, homicide, larceny, rape, manslaughter, mayhem and murder.

One of the most serious areas of violent crime is homicide - killing a person, whether lawfully or unlawfully. Justifiable homicide and excusable homicide are lawful homicides, while criminal homicide, negligent homicide, reckless homicide and vehicular homicide are unlawful homicides. Unlawful homicide comprises the two crimes of murder and manslaughter.

DUI/Driving Under the Influence:
"DUI" stands for Driving Under the Influence and occurs when someone is operating, or is in actual physical control, of a motor vehicle while under the influence of alcohol or other controlled substance to the extent that their mental faculties are impaired and/or their blood alcohol content (BAC) is above the legal limit. Even for a first offense, penalties can include license suspension, substantial fines, community service, mandatory attendance at a state or DMV approved alcohol program, mandatory overnight incarceration and the required installation (at the offender's expense) of a car ignition locking device. In addition, a DUI conviction stays on a DMV record for several years, it typically results in higher insurance premiums and an offender may become ineligible for credit.  Plus, a DUI could also jeopardize your employment opportunities.

However, if someone was injured as a result of the drunken driving accident, it is possible the defendant will be charged with a felony (and if the victim dies, the driver may be charged with vehicular manslaughter). Further, a DUI conviction will likely be raised to a felony if it is the driver's fourth DUI offense or the driver has had a prior felony DUI offense within 10 years of the new charge.

Drugs and Narcotics Charges:
Drugs and Narcotics laws have tried to keep up with the changing perceptions and real dangers of substance abuse. By 1970, over 55 federal drug laws and countless state laws specified a variety of punitive measures, including life imprisonment and even the death penalty. To clarify the situation, the Comprehensive Drug Abuse Prevention and Control Act of 1970 repealed, replaced or updated all previous federal laws concerned with narcotics and all other dangerous drugs.

Most states have laws that give different treatment to possession of different categories of drugs (i.e., prescription drugs, marijuana, crystal methamphetamine), and also make a distinction in the offense charged as to whether a small amount of the drug was found with the defendant (personal use) or a larger amount (intent to sell or distribute, trafficking). A conviction on a drug charge of any magnitude, even a small amount of marijuana, can seriously affect your present and future employment chances, your education, your reputation and your freedom.

Traffic Crimes:
Traffic crimes are specifically addressed in state statutes. The complex body of law that regulates the operation of motor vehicles on the streets and highways can be difficult to interpret and apply.  Examples of traffic crimes include reckless driving, aggressive driving, drag racing and driving with a suspended license. 

Driver’s License Revocation:
Typically, a driver’s license will not be revoked for one or even two traffic tickets resulting from a moving violation such as speeding, running a stoplight or stop sign. However, if the offense is extremely reckless and/or if the driver has had previous convictions for moving violations in the past, his or her license may be revoked or suspended. If the driver is charged with drunk driving, reckless driving, or is involved in a hit-and-run, the defendant’s license may be suspended for a year or more.

If you or someone you know needs the skilled legal representation of an experienced San Diego, California criminal defense lawyer, call Attorney Michael Malowney today at 866-811-9792, or complete the contact form provided on this site to schedule your free consultation.

Frequently Asked Questions

The following information includes frequently asked Criminal Law questions. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. For a personal consultation regarding your specific case, please contact San Diego, California criminal defense Attorney Michael Malowney today at 866-811-9792.

Do I need a criminal defense lawyer?
This is the first and most important question. And the best way to answer this question may be to rely on instinct: if your gut feeling is that you should talk to a criminal defense lawyer, you probably are right – seek advice.

The main reasons prompting the need for a criminal defense lawyer are:

• You have been charged in court with a crime. This may occur following an arrest or through a summons to appear in court and answer a criminal complaint or indictment. All people have an absolute constitutional right to the assistance of a lawyer in a criminal court case.
• You have been arrested. If arrested for a potential criminal charge, a referral for criminal charge(s) may be made to the District Attorney in the county of the alleged law violation, or to the prosecutor for the federal district of the alleged violation. If an in-custody interrogation follows the arrest, the person being questioned has an absolute constitutional right to remain silent and to have a lawyer present during the questioning.
• You are being investigated for a crime. Law enforcement officers and prosecutors often contact people directly to answer questions about their alleged involvement in a crime.

Generally, the sooner a criminal defense lawyer is brought into a criminal case or investigation, the better potential results for the client. Do not take a wait-and-see approach to a criminal situation. Do not seek answers to questions about your rights and legal status from police officers and prosecutors who do not have a legal duty to act in a suspect’s best interest.

What is a plea bargain?
Settling a criminal case is usually called a plea bargain. It means that the prosecution and the defense have come to an agreement to resolve the case. The case can be settled at several points during the process, from before it is charged until right before the jury hands down its verdict. Usually, however, the best bargain can be obtained earlier rather than later in the process. And in many cases, it is a question that should be analyzed immediately so that good opportunities for a plea bargain aren’t given up because of pride or inattention.

Must a police officer always advise a person of their Miranda rights before asking a question?
No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave.

For example: Officer Jones is investigating a robbery at the local supermarket. The cashier indicates that a patron named Mary Smith may have seen the robber. When Officer Jones interviews Mary, Mary makes statements implicating herself in the robbery as a lookout. Can Mary's statements be used against her later, even though she was not read her Miranda Warning? The answer is yes, because Mary was not in custody when she was being asked the questions. Therefore, Mary was free to leave if she wanted to.

If I am in custody, how do I assert my right to remain silent?
A suspect who has been arrested need only say "I want to speak with an attorney" or "I have nothing to say now". If the police continue to question the suspect, the police have violated the suspect`s 5th Amendment rights. Anything that the suspect says after the violation is generally inadmissible as evidence in court.

What happens if I am arrested?
If someone is arrested for breaking a criminal law, the case is taken before a magistrate who may issue a warrant if necessary and set bond for appearance in court. If the defendant cannot post the bond he may be incarcerated pending appearance in court. If bond is posted, he will remain free pending appearance at an arraignment. An arraignment usually occurs within 24 hours of the arrest or the first date available if on a weekend or holiday. The arraignment is held before a judge of the courts. During the arraignment the defendant is formally told what offense he is charged with, told his constitutional rights, and of the possible penalties. The defendant will enter a plea of guilty or not guilty, bond may be reviewed and a date for the next hearing will be scheduled.

Can I answer not guilty even if I am guilty?
There is nothing unethical about pleading not guilty even if you really did it.  Technically speaking, pleading not guilty is merely exercising your right to question the prosecution's evidence. You are innocent until your guilt is proven beyond a reasonable doubt.  That's the prosecution's job. You are innocent until you are proven guilty.  Your lawyer may think that the evidence against you is not enough to prove that you are guilty.  You may have a better chance if you have a trial and you can only have a trial if you plead not guilty.

What happens after a conviction?
In most cases, after either a plea of guilty or a finding of guilt after trial, the following options may be available:

• Motion for new trial OR motion to withdraw the guilty plea
  These two motions must be addressed on a case-by-case basis, but both motions attempt to set aside the conviction.
• Appeal
  Again, the facts of each case must be examined to determine if one can bring an appeal and, if so, whether it would it have merit.
• Modification of sentence
  It is possible in some cases to come back before the sentencing judge and ask for modifications on some of the terms and conditions of probation.
• Expungement
  In some cases, after a person has successfully completed the terms and conditions of probation, it may be possible to appear before the court and have the conviction expunged or removed from your record.

What happens at a bail hearing?
The accused is brought before a magistrate or judge when an arrest happens for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results. A judge holds an official arraignment later. There are four possible results from the bail hearing:

• Recognizance - This is the defendant`s written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit or security by property or professional bondsman is required.
• Unsecured Bond - This release pending court appearance is based on the defendant’s written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court date set.
• Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
• Ineligible for Bail - The defendant is denied a release pending court appearance.

The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending court appearance could result in the issuance of an Order to Show Cause why the release should not be revoked. A show cause hearing may also be issued by a judge for not appearing in court as agreed.

Professional Profile

Attorney Michael Malowney understands that certain criminal charges carry severe consequences for individuals and their families. Whether the criminal charges filed are minor, major or catastrophic, each case receives his undivided attention and service. Michael Malowney is committed to providing criminal defense clients with aggressive and dedicated legal representation, while simultaneously treating clients with genuine courtesy and respect.

If you or someone you know in San Diego, California or anywhere in Southern California needs the assistance of an experienced criminal defense lawyer, please contact Attorney Michael Malowney today at 866-811-9792, or complete the contact form provided on this site to schedule your free consultation.

FIRM ADDRESS:
Law Offices of Michael T. Malowney
2247 San Diego Ave.
San Diego, CA 92110
Phone: 866-811-9792
Hours: M-F, 8:00AM-5:00PM

MEMBERS OF THE FIRM:
Michael T. Malowney, Attorney

EDUCATION:

• Western State University School of Law (Thomas Jefferson School of Law), J.D., 1993
• University of California Santa Barbara, B.A., 1989

COURTS ADMITTED:

• California, 1993
• U.S. District Court, Southern District of California, 1993

PRACTICE AREAS:

• Criminal Law
• DUI/Drunk Driving Defense
• Drug Violations
• Domestic violence
• Vehicular Felonies