Parents - a question about my PI case

Parents Forum
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<p>nfl2k2, I checked past posts to find out that your arrest was in Indiana. Your lawyer appears to have given you correct advice when he said that a record could only be expunged if you had been arrested without probable cause. You will find Indiana law on expungements here:
<a href="http://www.in.gov/legislative/ic/code/title35/ar38/ch5.html%5B/url%5D"&gt;http://www.in.gov/legislative/ic/code/title35/ar38/ch5.html&lt;/a&gt;&lt;/p>

<p>You'll note that expungement is available in your state only if: <a href="1">quote</a> an individual is arrested but no criminal charges are filed against the individual; or
(2) all criminal charges filed against an individual are dropped because:
(A) of a mistaken identity;
(B) no offense was in fact committed; or
(C) there was an absence of probable cause;

[/quote]
I am assuming that because you had a court date and your attorney talked a prosecutor into dismissing the case, that there were in fact criminal charges filed (or else there would be nothing to dismiss). Obviously there was no mistaken identity.</p>

<p>So that leaves either a finding that no offense was committed -- i.e., you were over age 21 at the time and you were not in fact intoxicated. (If you were under 21, you could have been charged with underage consumption of alcohol). Or else a finding that even if you were intoxicated, the police had no probable cause to to arrest.</p>

<p>As you noted, the fact that you were sitting in a public place with a beer in hand provided the probable cause. I don't know what the thresshold for "intoxication" is under Indiana law, but I assume that the cop who arrested you would be prepared to testify as to observations indicating that you were intoxicated. In any case, the only way to get a finding that no offense was committed would have been to have had a trial and and submit the question to a judge -- once the case has been dismissed it is too late for that. </p>

<p>Charm's claims about judges being able to give out orders based on informal requests outside the letter of the law is total b.s. -- if you simply read the Indiana statute governing the procedure for an expungement and all the people & agencies that need to be notified, you will see that even when available it is cumbersome procedure. Judges do not have inherent authority to disregard statutory law, and laws governing the maintenance of public records tend to be viewed as sacrosanct, for obvious reasons.</p>

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<p>What is total BS is not being an agressive trial attorney. Get a real attorney to file the expungement request; state that the basis is that the charges were dismissed since no offense was committed (or does CAlMOm think charges get dismissed when people are guilty of an offense in Indiana) and let the prosecutor do its job. If the prosecutor's office does not contest the motion to expunge, then it should be granted. Thank god for attorneys like CalMom who make sure I can always make a great living getting justice done.</p>

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<p>Charm, with all due respect, you sound like the type of lawyer that charges a lot of money to clients for filing motions that you know will be denied. Your statements on a public board challenging the advice that this kid has gotten from the lawyer he hired, which is easily substantiated by 5 minutes of legal research, borders on unethical. The lawyer he hired practices in the local courts and knows the judges and prosecutors there. You don't.</p>

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<p>Calmom, I think what Charm is saying is that there is great variation in how "by the book" judges run their courts. In many, the court has essentially unfettered discretion to go easy on a defendant even if the statutes or rules say otherwise. </p>

<p>Courts are likely to go easy if a compelling argument is made that the defendant deserves it, by an attorney that the judge knows is a straight shooter. Attorneys like that, by the way for all readers, do not need to advertise on television.</p>

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<p>^^Oh, a pet peeve of mine. I so wish bar associations would prohibit sleazy advertising!</p>

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<p>After 33/34 years of practicing law, I realized there are only two type of lawyers: those who think that if it is not expressly permitted, it is not allowed; and those (like me) who believe that if it not expressly prohibited, go for it. I do apoligize for the uncalled remarks about CalMom, it is just that expungement alone of all issues pushes all my hot buttons. I could not have been a lawyer if my lawyer had followed CalMom's cautious advice. Being able to say to federal investigators that "no , as a matter of law, I have never been arrested", like a broken record, and not admitting to any expungements, was the key to a second successful career as a federal attorney and prosecutor after a fun and exciting trial attorney career that followed being "young and irresponsible". &lt;/p>

<p>I do resent the implication that I suggested fighting for this poor kid's rights constitutes evidence that I am or ever was a shyster. That said, having made intemperate remarks, I can't complain about slander and libel. IT IS LUDICROUS TO ASSERT THAT I AM UNETHICAl. Last time I looked, you had to at least had one trial in an area to express an opinion, and I seriously doubt if CalMom ever won an expungement in her otherwise stellar career.</p>

<p>All I know as fact is that I did get expungements for many kids with the colloboration of prosecutors even when it may not have been a matter of right. Again, nobody with any trial experience can deny that if you make a motion in open court and the prosecutor acquieseces, that more likely than not it will be granted. Reasonable people can disagree without being disagreeable, but facts are facts.</p>

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<p>Several people have mentioned the question on clearances and admitting expungement. In my field we have forms which ask people about conviction or pleading guilty to a felony....what about CA drug diversion programs wherein the client must have completed a long program and after the time is done, the charge is dismissed and they are even told they can claim they have never been arrested. How do YOU adivse clients on this? If the law says they can say it never happened, then how does that merge with having to admit it? I think in Ca it does say you must admit it to law enforcement, but what about state licensing (Bar, psych, insurance, etc)? Do you tell them to admit or not?</p>

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<p>I consider it unethical for an outside lawyer who is neither directly familiar with the facts of the case nor of the law of jurisdiction to directly interfere with the relationship a client has with his exisiting attorney by denigrating the work of that attorney and questioning the advice -- especially when the lawyer offering the criticism has not been directy consulted and retained. </p>

<p>That's my pet peeve -- too often I have seen client's situations made much worse than they have to be because of such "advice" from an outsider. In the instant case, with 2 minutes of research I figured out that the state in question had an expungement statute with rather onerous notice requirements. It is definitely unethical, at least in my state, for judges to issue orders on an ex parte basis (without open hearings including the other side) -- so its pretty obvious that in this case expungement would either be an expensive long shot, or require someone to cross some ethical boundaries. </p>

<p>There is no such thing as "expungement" in California, so lawyers in this state who claim to be getting that for their clients really mean that they have had the conviction set aside, which has absolutely no impact on the computer arrest records maintained by the state-wide database. This is no different from what the OP already has with a dismissal. </p>

<p>I also resent the implication that I was an overly cautious lawyer; on the contrary, I often was on the forefront of getting relief for clients that other lawyers said was impossible, or that no one else had ever thought of. But the point is that I did my research first, and I didnt go around second-guessing the advice of other attorneys to their clients unless and until I was retained to replace those lawyers. </p>

<p>I can't count the number of times I have seen bad outcomes after a litigant or criminal defendant has turned down a favorable settlement or plea offer against the advice of their own attorney, because of some other person who is very willing to call their lawyer an idiot without knowing anything of the facts of the case. </p>

<p>If Charm had merely expressed an opinion ("I think you should explore....") I wouldn't have a problem... but Charm repeatedly made generalized statements like A good attorney can get your record totally expunged or sealed so that it will not surface<a href="not%20true,%20since%20the%20procedures%20differ%20from%20one%20state%20to%20another%20and%20often%20are%20available%20under%20certain%20factual%20scenarios">/i</a> - *any attorney who tells you he or she cannot get your arrest expunged just does not have the right stuff<a href="wrong%20again%20-%20same%20reasons">/i</a>. - *There is no state in the USA where a judge cannot excerise equity authority. - "equity" doesn't give judges jurisdiction to override or ignore statutory requirements - if it did, the written law would be meaningless -- California judges can direct their clerks to "black out records of arrests -- untrue: in California, arrest records are maintained in a computer database by the state justice department - so only an order directed to the state DOJ could lead to removal of items from that database -- "I always found that having a judge sign an order pretty much took care of whatever. -- again untrue: orders have to be served and acted upon to be effective; judges are not empowered to sign orders beyond their legal authority. (What happened for the "pharmacists and attorneys" that Charmed references is that they had convictions dismissed under PC 1203.4 -- again the same result OP already has -- the pharmacists/attorneys did not need to have the record of the arrest itself erased, as an arrest without a conviction simply does not impact the ability to get licensed to do anything in the state). </p>

<p>So what am responding to is the series of posts questioning the competence of a lawyer who has the advantage of actually knowing the circumstances of the arrest in question, as well as the law of the state in question. </p>

<p>The whole thing is very unfair to the OP, who is a young man who paid for his lawyer out of his own pocket and ended up with a good outcome for a minor offense. I hope he has the common sense to ignore statements from anonymous forum posters and recognize that the attorney he paid is in a much better position to give accurate advice. (To nfl2k2 -- if you are in any way confused by this discussion, if you PM me I will provide you with my real life credentials, in a way that you can easily verify online. But my advice will still be to listen to your own lawyer and not to strangers on the internet.... which I think was pretty much what I posted when you were initially arrested.)</p>

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<p>Thank God for attorneys like Charm who remind me why I work in-house!</p>