Hinkle, Jachimowicz, Pointer & Emanuel
Please Call : 408-246-5500
Successfully Defending Clients for more than Thirty Years
An Experienced Team of Criminal Defense Lawyers Successfully Defending Clients for More Than 30 Years
The California criminal defense lawyers of Hinkle, Jachimowicz, Pointer & Mayron can help you stay out of jail and get back on your feet. We are the largest criminal defense law firm in San Jose and the South Bay area. Our criminal defense lawyers have been defending people charged with crimes in the Santa Clara area for more than 30 years.
At Hinkle, Jachimowicz, Pointer & Mayron, we believe that every citizen deserves competent, aggressive counsel. When the government arrests you, state and federal prosecutors have almost limitless resources at their disposal to convince a jury that you’re guilty. It is critical that you have a local criminal defense attorney committed to your case and working hard to keep you out of jail.
Our team of criminal lawyers includes two former police officers. We understand the procedures police and prosecutors are required to follow, and will assure you that your civil and Constitutional rights are not violated. We help citizens in the following areas:
CRIMINAL DEFENSE
Motor Vehicle Offenses
Domestic Abuse
White Collar Crime
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Other Areas of Practice
Personal Injury
Civil Litigation
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We are proud of the service we provide to the citizens of the South Bay area, and of our track record of successfully defending individuals charged with crimes and of preventing charges from being filed in the first place.
Have you been arrested or cited for a criminal violation? Are you facing DUI charges? Have alcohol, prescription drugs or illegal drugs led to your arrest? Have you been charged with a crime of theft or violence? Do you require the services of a skilled criminal defense lawyer to keep you out of jail following allegations of spousal abuse or a sex crime?
Contact the law offices of Hinkle, Jachimowicz, Pointer & Emanuel to schedule an initial consultation. We are the largest criminal defense law firm in San Jose, and the South Bay area. Our criminal defense lawyers have been defending people charged with crimes in Santa Clara County for more than thirty years.
The California criminal defense lawyers at the law offices of Hinkle, Jachimowicz, Pointer & Emanuel can help you stay out of jail and get back to work and your family.
Aggressive Attorneys Striving for the Best Results
At the law offices of Hinkle, Jachimowicz, Pointer & Emanuel, we believe that every citizen deserves competent, aggressive counsel. When the government arrests you, state and federal prosecutors have almost limitless resources at their disposal to convince a jury that you are guilty. Our experienced criminal defense attorneys are committed to your case and to keeping you out of jail. We have the resources available to counter or attack the prosecutor's charges.
Our team of criminal lawyers includes two former police officers and a Certified Criminal Law Specialist (State Bar of California Board of Legal Specialization). We understand the procedures police and prosecutors are required to follow and will assure you that your civil and constitutional rights are not violated in either state or federal court.
Our Practice Areas
Our firm represents clients facing a wide range of charges. From traffic cases such as DUI/DWI and DMV cases, to sex crimes involving allegations of child molestation or prostitution, we strive to obtain results for you.
Many other misdemeanor and felony cases we handle include:
- Abuse: Have you been charged with assault and battery, spousal abuse or child abuse? We can protect your rights.
- Theft: Our firm handles all theft and related charges, including petty theft embezzlement, burglary and shoplifting and robbery.
- White collar crimes: Whether you were charged with tax fraud, embezzlement or another white collar crime, we can protect your rights, your reputation and your freedom.
- Juvenile law: Our attorneys represent minors against all criminal charges from underage drinking (minor in possession) and drug-related offenses to vandalism, violence and sex crime cases.
- Internet crimes: These crimes include possession of child pornography, credit card fraud, phishing scams, and all others.
- Homicide: Whether you face charges of 1st degree murder, manslaughter or vehicular homicide, we can help.
We Have Hope in Our Clients' Futures
Few who commit a crime are bad people. They may have just made a bad decision at the wrong time. That is precisely why we look for ways to minimize the effects of a criminal conviction, including reducing felonies to misdemeanors or expunging prior convictions from criminal records. We also offer dedicated assistance to our clients' who are struggling with drug or alcohol addiction.
Contact an Experienced and Successful Criminal Defense Lawyer
If you have been or are about to be charged with a criminal offense, contact the San Jose, California, law offices of Hinkle, Jachimowicz, Pointer & Emanuel immediately. We proudly serve citizens of Santa Clara County, and throughout the South Bay area.
Please Call : 408-246-5500
Attorney profile
John H. Hinkle San Jose, California
Founding Partner
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408-217-0356 877-295-4814
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408-246-1051
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Email Me
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John Hinkle is a founding partner of Hinkle, Jachimowicz, Pointer & Emanuel, having practiced criminal law since 1976. He served as a San Jose Police Officer from 1969 through 1974, gaining valuable experience in relationships with local law enforcement. This law enforcement background gives him unique knowledge of the criminal justice system from both sides, as well as the political knowledge to produce excellent results in the negotiation of cases which might or might not benefit from trial.
He has served as a Judge Pro Tem of the Superior and Municipal Courts in Santa Clara County and serves on the Board of Directors of the Teen Counseling Center of the West Valley (President 1997 and 1998), Pate House, Inc., Alcohol and Drug Recovery Home (President 1995 through 1996), Volunteers In Parole, serving juvenile offenders currently released on parole from the California Youth Authority, having served as president of that organization as well; he is a member of the Santa Clara County Bar Association, National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, Founding Member of the California DUI Defense Lawyers, and has served on many committees of the Santa Clara County Bar Association, including the Ethics Committee and the Mediator/Arbitrator Committees.
John Hinkle's experience in defending police and firefighters in their discipline and criminal cases has earned him a following of loyal clients for whom he has successfully represented cases from homicide to petty theft. He maintains a strong focus in sex cases and spousal abuse.
"Good citizens rights are rights that are regularly trampled by ill conceived laws and overly aggressive enforcement."
John is a family man, married with two children. He enjoys playing tennis, golf, playing guitar, mandolin and banjo and is a member of the Peninsulaires, men's barber shop chorus.
John Hinkle has the experience, as Managing Partner of Hinkle, Jachimowicz, Pointer & Emanuel, to steer your legal problem to the right conclusion, with the right counsel. Call John Hinkle directly for immediate personal contact and advice. (408) 246-5500.
Criminal Law practice areas:
DUI, DMV & Traffic Violations DUI 1st Offense DUI 2nd Offense DUI 3rd Offense DUI 4th Offense DUI DUI with Injury Traffic Misdemeanor DMV Cases Assault, Abuse & Sex Crimes Spousal Abuse Assault & Battery Sex Crimes / Child Sexual Abuse Child Molestation Rape Spousal Rape Child Pornography Prostitution Theft & Fraud Petty Theft Grand Theft Theft & Embezzlement Shop Lifting Robbery Burglary Internet Crimes Tax Fraud Mortgage Fraud Notary Fraud Mortgage and Notary Fraud Drugs & Violent Crimes Drug-Related Offenses Law & Addiction Homicide / Murder / Manslaughter Vehicular Manslaughter Juvenile Law Juvenile Law Juvenile DUI / Underage Drinking Felonies, Federal & Criminal Records Reduction of Felonies to Misdemeanors Expungement / Dismissal of Criminal Records Federal Cases
- Drug-Related Cases
- Personal Injury
- Criminal Defense
- DUI, DWI, DMV
- Federal Cases & Tax Fraud
- Juvenile & Dependency
- Law & Addiction
- Misdemeanors & Felonies
- Spousal & Child Abuse
- Sex Offenses
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- California, 1976
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- Superior and Municipal Courts, Santa Clara County
- Judge Pro Tem
- California DUI Defense Lawyers
- Founding Member
- Teen Counseling Center of the West Valley
- Board of Directors, Past President
- Teen Counseling Center of the West Valley, 1997 - 1998
- Past President
- Pate House, Inc., Alcohol and Drug Recovery Home
- Member
- Pate House, Inc., Alcohol and Drug Recovery Home, 1995 - 1996
- Past President
- Volunteers In Parole, California Youth Authority Santa Clara County
- Executive and Board of Directors
- Santa Clara County Bar Association
- Member
- National Association Criminal Defense Lawyers
- Member
- California Attorneys for Criminal Justice
- Member
- Santa Clara County Bar Association, Ethics Committee
- Member
- Santa Clara County Bar Association
- Member, Mediator/Arbitrator Committee
- Santa Clara County Criminal Defense Bar
- Member
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- San Jose, California, Police Officer, 1969 - 1974
- Miller & Hinkle Attorneys at Law, Founding Partner
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Please Call : 408-246-5500
 Firm Overview
   
Experienced San Jose Criminal Defense Lawyers
The experienced and capable lawyers at the criminal defense law firm of Hinkle, Jachimowicz, Pointer & Mayron have been defending people in the San Jose area for more than 30 years. Very few South Bay area criminal defense law firms have the breadth of experience we offer our clients. We’ve helped thousands of clients facing charges in San Jose for DWI. Our attorneys have extensive experience handling complicated state and federal cases
What sets our law practice apart from other firms is our unique insight into the process of investigating our clients’ cases.
- You’ve been charged with a white collar crime, such as embezzlement or tax fraud? One of our attorneys is a former Revenue Agent for the Internal Revenue Service. He knows how these cases are handled.
- You’ve been charged with a criminal offense, such as murder or a drug - related offense? Two of our California drug crimes lawyers are former police officers.
Because our attorneys have in-depth knowledge of investigative procedures, we don’t rely on information provided by the prosecution to refute their charges. We do our own investigation.
Our criminal defense law firm has successfully handled cases including:
If you have been or are about to be charged with a criminal offense, contact the California criminal defense law firm of Hinkle, Jachimowicz, Pointer & Mayron immediately. We offer a free face-to-face consultation and can work out a payment plan in most situations. | Practice Areas
   
Experienced San Jose Criminal Defense Attorneys
At Hinkle, Jachimowicz, Pointer & Mayron, our experienced criminal defense attorneys have handled a wide variety of criminal matters, winning acquittals or reduced sentences for many of our clients. Our San Jose and South Bay area criminal defense attorneys have been helping San Jose residents facing criminal charges for more than 30 years in the following areas:
CRIMINAL DEFENSE
Motor Vehicle Offenses
- DUI / DWI: Our DWI / DUI lawyers have an impressive track record of getting DMV automatic penalties set aside. BE AWARE, you only have ten days to challenge the suspension of your driver’s license.
- Traffic Offenses
Domestic Abuse
- Spousal Abuse: If you have been accused of spousal abuse in California, you need to take the charge seriously, even if you did not commit the crime. California law almost always requires the police to arrest a person accused of spousal abuse. Information about Domestic Violence
- Child Abuse: Anyone can make a child abuse claim and the consequences of a child abuse allegation are serious. You could lose your child to the child welfare system and end up in jail.
Assault & Battery
Sex Crimes
White Collar Crime
- Theft & Embezzlement: These are serious consequences that have the potential to change your life forever. When you are facing embezzlement or theft charges you need an attorney who is experienced with white-collar crime defense.
- Tax Fraud: We are experienced in handling state and federal tax fraud cases and other cases involving the I.R.S. One of our attorneys is a former Revenue Agent for the Internal Revenue Service.
Drug-Related Offenses : If you have been arrested on a drug related offense, you need an attorney who understands how the police and district attorney operate. Depending on your situation you may be charged with a number of different charges.
Federal Cases : Our federal lawyers can represent clients before any federal court in the United States.
Law & Addiction : We look to find the true alcohol or drug problems of our clients, which are causing them trouble with the criminal justice system, and recommend RECOVERY PROGRAMS when those programs can help.
Homicide / Murder / Manslaughter : Our firm has been involved with hundreds of cases of homicide or related crimes. During that time, we’ve had numerous cases dismissed due to the disregard for individuals’ Constructional rights.
Juvenile Law and Juvenile Dependency: Our attorneys maintain a special interest in the defense of juvenile cases; they represent kids, parents, and others accused of crimes involving kids. |
Other Areas of Practice
Personal Injury
Wrongful Death
Civil Litigation
Employment Law
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Prior to practicing criminal defense, two of our lawyers were police officers and one was a Revenue Agent for the IRS. These credentials provide our clients with the insight necessary to win a case in state or federal court.
Don’t let criminal charges change your life forever, contact the California white collar crimes law firm of Hinkle, Jachimowicz, Pointer & Mayron immediately. Our San Jose criminal defense attorneys offer a free face-to-face consultation and can work out a payment plan in most situations. | The Court Process
   
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There is never a charge for your initial in-office conference with us. At that conference the facts and defense of your case are discussed as well as the fee we will charge. In most cases payment plans can be arranged.
Misdemeanor Cases
- Arrest or Citation (for many misdemeanor cases).
- Arraignment (first appearance in court). We can appear for you at arraignment, plead “not guilty” and set the case for pre-trial conferences. Our misdemeanor clients rarely go to court.
- Pre-trial Conferences are conferences with the prosecutor and the judge over a period of one to six months in our attempt to reduce or dismiss charges without a trial.
- If your case cannot be settled according to your wishes, we can and will set the cause for a court or jury trial. The burden of proof in on the prosecutor to prove guilt “beyond a reasonable doubt.”
All of our cases are handled on a single fee for pre-trial services and a daily fee for trial.

Lower Court
- Arrest or warrant
- Contact us immediately to discuss bail alternatives or the fastest way to get in and out of custody
- Arraignment – Client must appear at arraignment. We may be able to avoid some court dates.
- Plea: A not guilty plea is entered in every case.
- Preliminary settings – an opportunity to gather evidence and discuss your case with the Prosecutor.
- FAR – an opportunity to meet with the judge, the prosecution, and probation officer to discuss possible settlement.
- Preliminary hearing – Evidence presented by the prosecution. Our opportunity to cross-examine witnesses and settle some cases.
Higher Court
- Arraignment at the higher court. Not Guilty plea is entered
- Motions and settlement conferences. Opportunity to file motions such as:
- Motions to dismiss
- MIRANDA violations by the police
- Suppress illegally obtained evidence
- Trial by court or Jury. The final decision to go to trial is made by the client. There is almost always a chance to negotiate even on trial day.
- Sentencing if not dismissed before trial or if settled by admission to any crime whether infraction, misdemeanor, or felony. All sentencing options are explored and even in folony cases actual jail can often be avoided.
If you have been or are about to be charged or are about to be charged with a misdemeanor or felony, contact Hinkle, Jachimowicz, Pointer & Mayron immediately. We can help you stay out of jail and get your life back on track. | Attorney Profiles   
Experienced San Jose Criminal Defense Lawyers
We've been practicing Criminal and Personal Injury law for over 25 years. Our Criminal Team of lawyers includes a former San Jose police officer. And, our Personal Injury team has collected millions in damages. |
Criminal Team
JOHN H. HINKLE
John Hinkle is a founding partner of Hinkle, Jachimowicz, Pointer & Mayron, having practiced criminal law since 1976. He served as a San Jose Police Officer from 1969 through 1974, gaining valuable experience in relationships with local law enforcement. This law enforcement background gives him unique knowledge of the criminal justice system from both sides, as well as the political knowledge to produce excellent results in the negotiation of cases which might or might not benefit from trial.
He has served as a Judge Pro Tem of the Superior and Municipal Courts in Santa Clara County and serves on the Board of Directors of the Teen Counseling Center of the West Valley (President 1997 and 1998), Pate House, Inc., Alcohol and Drug Recovery Home (President 1995 through 1996), Volunteers In Parole, serving juvenile offenders currently released on parole from the California Youth Authority, having served as president of that organization as well; he is a member of the Santa Clara County Bar Association, National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and has served on many committees of the Santa Clara County Bar Association, including the Ethics Committee and the Mediator/Arbitrator Committees.
John Hinkle has the experience, as Managing Partner of Hinkle, Jachimowicz, Pointer & Mayron, to steer your legal problem to the right conclusion, with the right counsel. Call John Hinkle directly for immediate personal contact and advise. (408) 246-5500.
ALBIE B. JACHIMOWICZ
Albie Jachimowicz, a former police officer in San Mateo County, California, was admitted to the State Bar of California in 1982, and has been a criminal trial lawyer since that time. He has tried a wide variety of cases in Municipal, Superior and Federal Court, covering the full range of criminal cases from drunk driving to all degrees of murder. He has served as a Judge Pro Tem in the Municipal Court, Criminal Division and Superior Court Juvenile Division and Juvenile Dependency Divisions.
He has served as a Judge Pro Tem in the Municipal County, Criminal Division and Superior County, Juvenile Delinquency and Juvenile Dependency Divisions. He emphasizes the practice of juvenile criminal law and white-collar crimes, and has developed particular expertise in the area of sexual offenses as well. He is a graduate Magna Cum Laude from the California State University at Sacramento and Santa Clara University Law School. He is a member of the Santa Clara County Bar Association, State Bar of California and the California Attorneys for Criminal Justice. He is also a member of the board of directors of the Teen Counseling Center of West Valley. Albie is the quintessential trial lawyer, tough and knowledgeable. He has the know-how to win your case in criminal court. He is a partner with the firm of Hinkle, Jachimowicz, Pointer & Mayron.
RICHARD P. POINTER
Richard Pointer is a seasoned and effective criminal defense trial attorney with over 24 years experience practicing exclusively criminal law. His cases have included more than 100 felony trials and hundreds of misdemeanor trials in both State and Federal Courts. He has represented clients in major felony drug conspiracy/manufacturing charges, homicides, three-strike cases, sexual assault, fraud, DUI and theft cases as well as numerous other cases statewide. He is respected by Judges, District Attorneys and his peers alike for his dedication, negotiating, trial skills and professionalism. Mr. Pointer's high client satisfaction and referral rate is due not only to his knowledge and skills, but to his dedication to achieve the best outcome for his clients, a willingness to provide personal attention, and to communicate with his clients and their families.
Mr. Pointer was admitted to the California Bar in 1979, having served as a Revenue Agent for the Internal Revenue Service prior to and after his admission to the Bar. He is a graduate of Occidental University and a member of the Santa Clara County Bar Association. In addition to being a member of the State Bar of California, he is a member of the National Association of Criminal Defense Lawyers,as well as the California Attorneys for Criminal Justice. He is also a member of the Santa Clara County Criminal Defense Bar. He volunteers his time as a mentor for the Volunteers In Parole of Santa Clara County, as well as many other volunteer organizations.
Mr. Pointer is a partner of the firm, speaks Spanish fluently and is an avid fly fisherman.
MICHAEL L. HORNER
Michael Horner is one of the finest DUI (Driving Under the Influence) attorneys in the State of California. He has been a member of the firm of Hinkle, Jachimowicz, Pointer & Mayron since 1986. He holds Bachelor's Degrees in Political Science, and a Master's Degree in American Government, as well as a Juris Doctorate Degree.
From 1973 to 1987, he served as a Legislative Assistant to Senator Alfred Alquist. He is a Member of the Board of Fellows of Lincoln University and volunteers his time in many legal and community service organizations.
Mr. Horner has emphasized the practice of drunk driving and motor vehicle cases, including felonies and misdemeanors since 1986. He is a member of the California Deuce Attorneys and has successfully defended hundreds of DMV cases, protecting the right to drive of most of his clients. He is a text book of Motor Vehicle law and serves as a mentor to other attorneys on the subject of drunk driving and Department of Motor Vehicle cases. He also serves as a Pro Tem Commissioner in the Traffic Court for the City of San Jose, which gives him a wide view on the administration of justice on that level.
Injury Team
MICHAEL MAYRON
Michael Mayron is a partner in the firm of Hinkle, Jachimowicz, Pointer & Mayron, having practiced personal injury and civil litigation law since 1974. In his more than 26 years as a personal injury and civil litigation attorney, he has tried many injury cases and recovered millions of dollars in damages for his clients, both in injury matters and business-related litigation.
Michael Mayron and his team of civil litigation injury attorneys vigorously fight to protect the rights of people who are injured, whether in an accident, in sexual harassment situations, product liability, wrongful death, airplane disasters and in many cases where an insurance company deals unfairly with its own insured. Besides his expertise in civil litigation and personal injury , he supervises the Civil Litigation Department, bringing the full force of his 26 years of civil litigation practice to bear for the clients and the firm.
GERALD EMANUEL
Gerald Emanuel is an experienced litigator emphasizing the areas of sexual harassment and employment discrimination including harassment such as unwanted touching, vulgar language, constant sexual discussion, requests for personal relationships outside the workplace. In the area of employment discrimination, he represents clients who have been discriminated against based on color, religion, sex (including sexual orientation), age, and national origin.
Gerald is a graduate of San Jose State University and Lincoln University, and graduated with a J.D. Degree from Lincoln University in 1974. He has been practicing in the area of employment, sexual harassment and personal injury for nearly 30 years. His tough, smart lawyering have won him praise from his peers, and he has been named repeatedly one of San Jose's best lawyers in employment discrimination and sexual harassment (San Jose Magazine).
Gerald will consult with you at no charge regarding your harassment case, and in most cases, if he believes that you have a case, will represent you on a contingency basis, which means that no attorney's fees will be due unless a settlement or favorable verdict has been reached in your case. He is a former partner in the firm of Emanuel and Ince, and when he is not fighting for his clients, he is enjoying his wife and four children, as well as playing his beloved game of softball.
BRAID PEZZAGLIA
Braid Pezzaglia, an associate with Hinkle, Jachimowicz, Pointer & Mayron, practices general litigation, including personal injury law, tort litigation, administrative law and trial practice. He is a graduate of the University of Pacific, McGeorge School of Law, and has a 1993 Business Degree from the University of California, Riverside. He is a member of the State Bar of California and the Santa Clara County Bar Association, Trial Practice Barrister Section and Insurance Law Section.
Prior to attending Law School, he obtained real-life experience, working for Interactive Network, Inc., and Nellcor, Inc., a bio-mechanical engineering firm. He has gained significant experience in medical/orthopedic injuries through his practice and prior experience. As a compliment to his legal background, he enjoyed the study of Comparative Civil Rights with U.S. Supreme Court Justice Anthony Kennedy.
Mr. Pezzaglia also represents many clients in administrative and other civil problems involving the City of San Jose and school districts within the County of Santa Clara. His interests outside of the law include golf and music.
JOHN A. ALVAREZ
John Alvarez was born in Brawley, California in 1943. He is a graduate of the University of California at Riverside and recieved his Juris Doctorate Degree from Santa Clara University in 1973. He has been practiced exclusively in civil litiagation since he was licensed in the State of California and in the Federal Courts in 1974. His practice has included major litigation in the areas of medical malpractice, construction law, personal injury and product liability.
Mr. Alvarez is a member of the State Bar of California, Santa Clara County Bar Association, the California Applicants Attorneys Association and the Consumer Attorneys of California. He serves as an Arbitrator for the Santa Clara County Superior Court. He practices in the areas of Personal Injury , Construction and RoadAccidents, Construction Sesign Defects, Product Liability and Workman's Compensation. His hobbies include cycling, photography and chess.
JOEL WAELTY
Joel Waelty obtained his undergraduate degree at the University of California at Berkeley. He recieved a Juris Doctorate degree from the University of California, Hastings College of the Law, where he was an executive editor of the Hastings Constitutional Law Quarterly. He focused his coursework on constiutional law, insurance claims and civil litigation. In 2003 Mr. Waelty served as a judicial extern for the Honorable Ronald M. Whyte of the Federal District Court in San Jose.
Mr. Waelty is an extremely dedicated and creative attorney. His practice includes injury cases, insurance claims, arbitration and business disputes. When he is away from the office he enjoys spending time with his family and surfing the California coast.
AMY CARLSON Amy Carlson graduated from the University of California, San Diego with a Bachelor's Degree in English Literature. She received her Juris Doctorate degree from California Western School of Law in San Diego. She was admitted to the California Bar and began practicing Insurance Defense for a large insurance company in San Jose. Her primary focus, since joining Hinkle, Jachimowicz, Pointer & Mayron, in March 2005, has been civil law, with an emphasis in personal injury resulting from motor vehicle accidents, public entity negligence or slip and falls.
Ms. Carlson is a member of the Santa Clara County Bar Association and the California State Bar. Outside of the office, she enjoys spending time with her family. Criminal Defense Newsletter
   
Sentencing Alternatives: From Incarceration to Diversion
A convicted defendant's punishment may involve one or a combination of different elements, including prison, probation, compensating the victim or community service. This article looks at each in turn.
A sentence may involve one or a combination of a number of different elements, including incarceration (prison, jail), probation, restitution (victim compensation) and community service.
Incarceration
The concept of locking someone up for a fixed period of time is relatively new to our culture. Competing theories exist as to why some laws require, and why some judges order, convicted criminals to be incarcerated:
- Retribution. Some people think that the primary goal of sentencing is retribution, a sort of taking out society's vengeance against a defendant.
- Rehabilitation. Others argue that the primary purpose of incarceration is rehabilitation -- that the sentence will help the defendant mend his or her criminal ways and encourage the defendant to adopt a lawful lifestyle. Rehabilitation is commendable in theory, but today's jails and prisons tend not to rehabilitate. Many defendants say that they come out "better criminals" than they went in, that they learn the tricks of the trade from other prisoners.
- Deterrence. Some believe that because prison is so bad, the threat of a prison sentence will deter (stop or prevent) people from committing crimes. Like rehabilitation, deterrence doesn't seem to be effective, for several reasons. Often, crimes are committed on impulse or under the influence of a drug or alcohol, without thought of the possible consequences. Also, people who commit crimes have frequently spent major parts of their lives in institutions and do not fear incarceration the way people who have been free all their lives might. And finally, a sizable number of criminal defendants actually seek punishment because of various psychological pathologies.
- Punishment and public safety. Increasingly, people in the know admit that prison doesn't rehabilitate criminals or deter crime. They just lock defendants up for punishment, and to get them off the streets for as long as possible.
- Politics. Finally, and unfortunately, an influential group of leaders emphasize incarceration as a way of getting votes. By building more prisons and locking more people up, politicians can cite statistics that make them look "tough on crime" -- whether or not true crime is actually reduced or the underlying problems causing the crime are ever solved.
Determining the Length of a Prison Sentence
Some state laws require the judges to impose what are called "determinate" prison sentences. A determinate sentence is a fixed-term sentence pronounced by a judge. For example, a defendant sentenced to "30 days in county jail" or "five years in state prison" has received a determinate sentence. Defendants who receive determinate sentences at least know the maximum period of incarceration as soon as they are sentenced, but they may get out earlier because of parole, or because they have not been a problem (good time credits) or because the jail or prison is overcrowded and their bed is needed for a new inmate.
Other state laws require judges to give "indeterminate sentences." Indeterminate sentences are those in which the legislature sets a minimum and/or maximum time of incarceration, but leaves the decision as to when to release an inmate to prison officials. For example, a defendant sentenced to "serve not less than two nor more than twenty years in the state penitentiary" has received an indeterminate sentence. As a general rule, indeterminate sentences are only imposed on people who are sentenced to state prison after being convicted of a felony.
Suspended Sentences
Sometimes a defendant's prison sentence is "suspended." A suspended sentence is jail or prison time that is put on hold if the defendant complies with certain other obligations, for example, the conditions of probation or the completion of a drug treatment program. Under a suspended sentence, the judge has authority to order the defendant to serve the sentence without first holding a trial, provided that the prosecution or probation department is able to show that the defendant violated the condition that led to the sentence being suspended in the first place.
Fines
Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include minor drug possession (of a small amount of marijuana, for example), fish and game violations, shoplifting, traffic and even some first-time drunk driving cases. In more serious offenses or where the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service and probation. In many parts of the country, laws specify the maximum amount an offender may be fined for a particular offense. The judge is then free to impose a fine up to but not exceeding that amount.
Restitution
While fines go to the state (or federal or local government prosecuting the crime), restitution is money paid by the defendant to the victim or to a state restitution fund. In some cases, the "victim" is society, such as welfare and Medicare fraud schemes where defendants may be sentenced to pay the state back the money defrauded. More typically, in both state and federal jurisdictions, offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries, medical and psychological treatment costs or to pay funeral and other costs where a victim dies.
Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to prison, community service, probation and/or some other punishment. Sometimes, plea bargains are struck where criminal charges are dropped altogether if the defendant admits guilt and completely compensates the victim for stolen property or a vandalized car. This type of arrangement may be called a "civil compromise."
Probation
Probation is a leash that the criminal justice system puts on defendants in lieu of incarceration in jail or prison. Offenders who are put on probation (either instead of or in addition to any other punishment they might receive) are typically required to adhere to a number of "conditions of probation." Common conditions of probation include:
- obey all laws (even petty laws like jaywalking have been known to land a probationer back in jail)
- abide by any court orders, such as an order to pay a fine or restitution;
- report regularly to the probation officer
- report any change of employment or address to the probation officer
- abstain from the excessive use of alcohol or the use of any drugs
- refrain from travel outside of the jurisdiction without prior permission of the probation officer, and
- avoid certain people and places (for example, an offender convicted of assaulting his ex-wife may have as one condition of probation that he avoid any contact with his ex-wife or her family).
Probation officers also can check in on a probationer -- at home or at work, announced or unannounced. Some probationers such as those convicted on drug charges are also subject to random searches and drug tests. Most courts have concluded that probationers do not have the same Fourth Amendment rights to be free from unreasonable searches and seizures as other people.
How a Judge Decides Whether to Give a Defendant Probation
Most states limit when and under what circumstances a court may impose probation on a criminal defendant. For instance, some states do not allow a judge to impose probation on defendants who have a prior conviction for cocaine sales. When deciding whether to give a defendant probation (where it's allowed), the judge will look at the defendant's criminal record and the seriousness of the crime. The judge will also consider:
- whether the crime was violent
- whether the defendant is a danger to society
- whether the defendant made or is willing to make restitution to the victim, and
- whether the victim was partially at fault.
What Happens When a Defendant Violates Probation
Defendants caught (either by police or probation officers) violating a condition of probation are subject to having their probation revoked and all or part of the original suspended jail or prison sentence reimposed. Since one typical condition of probation is to obey all laws, a probationer who is rearrested on even a minor charge may then be subject to penalties for both the current arrest and the probation violation.
If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing. If the defendant violated probation by breaking a law, the probation revocation hearing will probably take place after the new offense has been disposed of. If the violation was not illegal as such (for instance, socializing with people the judge prohibited a defendant from contacting), then the revocation hearing may take place as soon as practicable after the violation is reported. Defendants are entitled to written notification of the time, place and reason for the probation revocation.
Community Service
Judges can sentence defendants to perform unpaid community work called "community service" to repay a debt to society for having committed the offense. The defendant may be required to perform community service in addition to receiving some other form of punishment, such as probation, a fine or restitution.
Miscellaneous "Alternative Sentences"
There are many different types of "alternative sentences." Alternative sentencing is the buzzword for an increasingly visible movement in the criminal justice system. Largely inspired by overcrowded and nonrehabilitative prisons, some judges are beginning to work with prosecutors and defense lawyers to impose nontraditional sentences, especially in cases that don't involve violence.
To some, "alternative sentencing" means anything other than incarceration. And it is true that many "alternative" sentences are simply variations of probation -- perhaps with a fine and community service thrown in. But alternative sentencing can also include fairly innovative punishments. People have been required to:
- install breathalyzer devices ("ignition interlocks") in their cars so that their cars will not start unless the offender blows into the device and has "clean" breath (after drunk driving convictions)
- drive around with signs on their cars notifying others they'd been convicted of a drunk driving offense
- give lectures or teach classes about the dangers of criminal behavior
- attend lectures given by crime victims
- complete a drug or alcohol treatment program
- do weekend jail time
- stay at home under "house arrest"
- live in their own slummy building ( if the defendant is a landlord who has been convicted of criminal negligence or other offenses related to the poor condition of the building), or
- serve time in "private jails" -- jails administered by private contractors for a fee which they charge both governments and inmates.
Another alternative approach to handling offenses, especially minor ones and those where prosecutors have declined to press charges, is for the prosecutor to send the defendant and the victim to a neighborhood justice center to resolve their dispute through a process known as mediation. In mediation, a neutral third party helps the disputing parties arrive at a mutually satisfactory agreement.
Diversion
Cases can be "diverted" out of the criminal justice system. Defendants whose cases are diverted typically have to participate in a treatment or rehabilitation program. Since criminal charges are normally dropped when a defendant successfully completes a diversion program, diversion allows defendants to escape the stigma of a criminal conviction.
Eligibility for diversion varies from one locality to another. Diversion programs are most often available to defendants charges with misdemeanors and nonviolent felonies involving drugs or alcohol. In some jurisdictions, diversion may be available to defendants charged with domestic violence, child abuse or neglect, traffic-related offenses or even writing bad checks.
Prosecutors sometimes voluntarily offer diversion to defendants who are clearly eligible under a community's guidelines. Defense counsel may also suggest diversion to prosecutors, sometimes even before formal charges are filed. Finally, defense counsel may wait until a defendant's first court appearance and ask the judge to order an "evaluation for diversion."
A defendant who is referred for diversion in any of these ways then meets with a probation officer, who conducts an investigation and prepares a report as to the defendant's suitability for diversion. The report may specify the type of program that is most suitable for the defendant. Judges normally follow a probation officer's recommendation.
To read and printout a copy of the Form please link below.
True or False Quiz: Juvenile Offenders
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Copyright 2005 Nolo
DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.
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