Nov/100
DUII Attorneys – Pleading “no Contest” – Criminal Law Information
Pleading “no Contest” - Criminal Law Information
When someone is charged with a crime they can enter a plea of guilty, not guilty or no contest. Often, a guilty or no contest plea is entered as a result of a plea agreement – a deal reached with the prosecutor where the defendant gives up their right to go to trial in exchange for a specific, agreed upon punishment. It is important when entering a plea to understand your options and how a no contest plea is both similar to and different from a guilty plea.
What is a no contest plea? Pleading “no contest” to a criminal charge is not an admission of guilt like when entering a guilty plea. Instead, a defendant entering a “no contest” plea agrees not to challenge the criminal charge – he accepts the deal reached in the plea agreement without expressly admitting that he committed the crime.
How is a plea of no contest similar to a plea of guilty? A plea of no contest and guilty are treated identically for sentencing purposes in a criminal case. For example, if a defendant charged with DUI pleads no contest, the court will treat the no contest plea the same as if the defendant had plead guilty. The defendant’s sentence and punishment will not change by pleading no contest instead of guilty.
Why plead no contest? A plea of no contest is treated differently than a guilty plea if the defendant is sued by the victim in a civil lawsuit. For example, imagine a defendant that beats someone up and is charged criminally with battery and is also sued by the victim in a civil case (a civil battery claim). If the defendant pleads guilty in the criminal case, his guilty plea can be used against him in the civil case as evidence of his liability. On the other hand, if the defendant pleads no contest in the criminal case, his no contest plea
1000
cannot be used as evidence of his liability in the civil case.
For defendants charged with crimes where the victim could also sue in a civil lawsuit, it is important to understand the difference between pleading guilty and pleading no contest. While pleading no contest instead of guilty will have no real effect in the criminal case, it could be important in the civil case.
Sincerely,
Steven Valerio and Garret Weinrieb
Valerio | Weinrieb Criminal Defense Attorneys
(note: Information contained within this article is intended for general information purposes only and is not, nor is it intended to be, legal advice for any individual case or situation. The information contained within this article is not intended to create an attorney-client relationship and use of this article, and any information contained herein, does not constitute such a relationship.)
By: VALERIO | WEINRIEB Criminal Defense Attorneys
Article Directory: http://www.articledashboard.com
Valerio | Weinrieb is a Los Angeles Criminal Defense law firm that specializes in a variety of criminal cases. If you're looking for an experienced Los Angeles Criminal Defense Attorney, Beverly Hills Criminal Defense Attorney, or an attorney for other parts of Los Angeles, call (877) 7NO-CUFFS.
Fraud Lawsuits in California
The various ways a victim can be defrauded are as limitless as the bounds of human ingenuity. But under California law, wrongful actions are generally characterized as civil "fraud" only under one of the following legal theories:
1. Intentional Misrepresentation. Probably the most common type of fraud is a false statement. But not every false statement is fraudulent. The elements of a claim for intentional misrepresentation are:
a. An intentionally or recklessly false statement of fact. Not every false statement is a false statement of "fact." Statements of opinion generally are not actionable. Sales talk, or "puffing" ("This is the best location in the county!"), is generally not actionable. However, if the defendant claims to be an expert or there are other reasons to expect that the victim would rely upon the defendant’s opinion as a statement of "fact," an opinion may be treated by the court as a statement of fact. Also, a statement need not be made directly to the victim. For instance, if the defendant made the false statement to a third person with the expectation that the statement would be repeated to the victim, the victim may have a valid claim for fraudulent misrepresentation.
b. Intention to defraud. If a representation of fact was intentionally false and a material part of the transaction (e.g., "this house does not have flooding problems"), it is likely the false promise was made with the intention to defraud the victim.
c. Reasonable reliance upon the false statement. The victim must have actually relied upon the statement to change his or her position (e.g., the victim would not have purchased the house if he or she knew the truth). The false statement need not be the only reason the victim changed his or her position, but it must be at least part of the reason. Also, the victim’s reliance on the false statement must be reasonable. If the victim knew or should have known the statement was false, the victim did not reasonably rely. The sophistication of the victim will play a role in determining whether his or her reliance on the statement was reasonable; e.g., a sophisticated real estate investor’s reliance on a representation about the qualities of a house may not be reasonable while an unsophisticated buyer’s reliance may be. Even an unsophisticated victim, however, "may not put faith in representations which are preposterous, or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth." Seeger v. Odell (1941) 18 Cal. 2d 409.
d. Resulting in damages. There must be measurable damages that were caused by the fraud. It is not enough that the victim was told a lie (e.g., "A famous movie star once slept in this house"); the victim must also be able to prove some type of damage resulted from the lie.
2. Negligent Misrepresentation. A claim for negligent misrepresentation is generally the same as a claim for intentional misrepresentation, except the victim must only prove the defendant did not have "a reasonable basis" to believe its statement of fact was true (as opposed to proving the defendant knew its statement was false). If the defendant’s false statement was both honestly made and based upon reasonable grounds, however, there is no claim. Punitive damages are not available for negligent misrepresentations.
3. Concealment. A claim for fraud may also arise if the defendant concealed or failed to disclose a material fact during a transaction, causing damage to the victim. The elements of a claim for fraudulent concealment are:
a. The defendant failed to disclose or concealed a material fact with an intent to defraud the victim.
b. The defendant had a duty to disclose. There is not always a duty to disclose facts during a transaction. If there is a duty, it generally arises in one of four different circumstances: (i) The defendant is in a "fiduciary relationship" (such as being a partner) with the victim; or (ii) The defendant took steps to hide important information from the victim (as opposed to simply failing to tell the victim); or (iii) The defendant disclosed some information to the victim, but the disclosed information is misleading unless more information is given; or (iv) The defendant is aware of key information and knows the victim is unlikely to discover that information. In addition, California laws may create a duty to disclose in certain transactions. For example, sellers of residential property in California generally are required to make written disclosures about the condition of the house.
c. The victim must have been unaware of the fact and would not have acted as he or she did if he or she knew of the fact.
d. The victim sustained damages as a result of the concealment.
4. False Promise. A claim of fraud may arise if a defendant entered into a contract and made promises that it never intended to perform. The elements of a false promise claim are:
a. The defendant made a promise.
b. The promise was important to the transaction.
c. At the time he or she made the promise, the defendant did not intend to perform it.
d. The defendant intended the victim to rely upon the promise.
e. The victim reasonably relied upon the promise.
f. The defendant did not perform the promise.
g. The victim was harmed as a result of defendant not carrying out his or her promise.
h. The victim’s reliance on the defendant’s promise was a substantial factor in causing the victim’s harm.
It is important to understand that a broken promise, alone, is not a sufficient basis for a fraud claim. More than a mere broken promise is required. The victim must also prove that the defendant did not intend to perform the promise at the time the promise was made. In practice, it is usually difficult to tell the difference between a broken promise and a promise made without an intention to perform. Courts generally look for circumstantial evidence to support a false promise claim (as opposed to a broken promise claim), such as the defendant broke its promise immediately after making it.
Characterization of a claim as fraud has many advantages to a victim; primarily, the victim may be able to recover punitive damages in addition to actual damages. Also, the measure of damages is generally more liberal under fraud and other "tort" theories, allowing victims a more complete recovery. But even if a wrongful action does not fall under the definition of "fraud," it still may lead to a valid legal claim. For instance, a broken promise - while not necessarily fraudulently - may still constitute a valid breach of contract claim. While punitive damages and emotional distress damages are generally not available for breach of contract in California, the victim still should be able to recover his or her monetary damages.
This article constitutes general information only and should not be relied upon as legal advice.
About The Author
Michael Abney is a business and real estate litigation attorney in Orange County, California and a partner in Drosman Abney & Percival, LLP. An honors graduate of Harvard Law School, Michael has been a California lawyer for 19 years. You can contact Michael at http://www.DapLawyers.com or (949) 727-0880
In many parts of the world, government law enforcement agents need little or no reason to harass, detain or investigate the citizenry. However, United States law specifically prohibits this sort of abuse of police authority and power. In the U.S. law enforcement agents must have some observational reason for detaining, arresting or otherwise investigating the activities of a U.S. citizen.
Probable cause is the legal term describing what does and does not give officers the ability to investigate or apprehend an individual. Probable cause is simply legal jargon for saying that the officer must have a good reason, based on something that he or she has witnesses, for suspecting that a person has committed a crime. It is the need for probable cause that prevents police officers from pulling over drivers at random.
However, what is and is not probable cause can get a bit tricky. In fact, probable cause is one of the things most often disputed in criminal cases. For this reason, it is fairly uncommon for a police officer to pull someone over simply for suspicion of driving under the influence, unless the individual is driving in a noticeably erratic manner.
What is far more common, is for a police officer to pull over a driver for a routine traffic violation and then to cite probable cause for asking that driver to submit to a field sobriety test or breath analysis. Most people who get arrested for DUI don't get pulled over for swerving, they get pulled over for speeding, failure to obey a traffic sign, expired tags broken taillights or other traffic offenses. However, from the moment the police officer walks up to your window he or she is looking for other signs.
Open or empty alcohol containers in the car, bloodshot eyes, slurred speech, difficulty presenting your driver's license and registration and smelling of alcohol are all considered probable cause. It are factors such as these that make it lawful for a police officer to ask you to submit to a sobriety test. By virtue of Implied Consent Laws, you have already agreed to submit to these tests by having a driver's license. If you refuse when asked, you can face even stiffer penalties than you will for a DUI conviction.
On the other hand, if a police officer asks you to submit to a field sobriety test without probable cause then they stand in error in the eyes of the law, even if a chemical tests determines that your blood alcohol content was, in fact, over the legal limit. If it is determined that the police officer did not have probable cause then your entire case may be dismissed by the judge. This is one of the reasons that hiring a highly knowledgeable attorney who specializes in DUI cases is so important. DUI attorneys deal with the intricacies of DUI arrests and convictions on a regular basis. If the arresting officer in your DUI case didn't have sufficient probable cause, then a good DUI lawyer will be able to get the charges dropped.
Do you have more questions? For more information about this topic, visit Fort Lauderdale DUI Lawyer. If you are in the Fort Lauderdale, Florida area, you can also visit Fort Lauderdale Criminal Attorney. If you need direct help with your questions you can call the Law Offices of Robert Malove at 954-745-5840 or visit them at 1 East Broward Boulevard #700 Fort Lauderdale, FL 33301.
Article Source:
http://EzineArticles.com/?expert=Robert_Malove
Mail this post